Kaneohe Bay; Private Piers

Requires any unpermitted pier in Kaneohe Bay existing in whatever
form on the effective date of this Act to be considered a
nonconforming use.  Eliminates the requirement that all
sunbathing and swimming piers built on submerged lands have signs
placed on them indicating the public's right to use the pier.
Includes private residential noncommercial piers as items not
requiring prior legislative and governor approval on easement
dispositions.  (HB1711 HD2)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature has determined that the State
 2 has an interest in regulating submerged lands to protect and
 3 preserve the environment and ecosystem that exists there.  There
 4 are more than two hundred piers on state submerged land in the
 5 Kaneohe and Kahaluu area, of which only approximately twenty are
 6 paying rent to the State.
 7      Many piers in the affected area were built prior to October
 8 1, 1964, the effective date of the first regulatory measures
 9 concerning piers.  Other piers built after this date were built
10 in compliance with other regulations that were in effect at the
11 time of construction.  Piers constructed before October 1, 1964,
12 and those built subsequent to that date in compliance with
13 regulations adopted after that date are nonconforming uses
14 pursuant to section 183C-5, Hawaii Revised Statutes, and the
15 legislature has previously stated that no rules may be adopted,
16 which shall prohibit the continued use of such structures.
17      Some piers, however, were built without complying with any
18 permitting requirements whether at the time of construction or
19 any time thereafter.  These piers are illegal.  The legislature
20 finds, however, that official records that would help to identify

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                                     H.B. NO.           H.D. 2

 1 nonconforming piers and illegal piers are scattered among various
 2 state and federal departments and agencies or have been
 3 destroyed.  
 4      The legislature finds that pier owners have overwhelmingly
 5 expressed their desire to pay a reasonable amount to the State
 6 for their continued use of submerged lands.  The legislative
 7 auditor has previously found that the cost to account for monthly
 8 rent for piers has exceeded the revenues realized to the State.
 9      The legislature finds that the State has already sold more
10 than fifty easements for the use of submerged lands, many of
11 which are for piers in the same area.  The legislature finds that
12 the issuance of easements for a period of not less than fifty-
13 five years, pursuant to section 171-36(a)(2), Hawaii Revised
14 Statutes, would result in a substantial return to the State while
15 significantly reducing the accounting costs to the State as
16 provided in sections 171-13 and 190D-21, Hawaii Revised Statutes.
17      Lessees of state land are required pursuant to chapter 171,
18 Hawaii Revised Statutes, to indemnify the State against
19 liability.  Section 171-36(a)(9), Hawaii Revised Statutes, as now
20 constructed, requires lessees to open their piers to the public
21 at large.  This provision creates a problem for pier lessees
22 because it makes obtaining liability insurance prohibitively
23 expensive and difficult to obtain and moreover interferes with

Page 3                                                     1711
                                     H.B. NO.           H.D. 2

 1 pier owners' ability to maintain their structures and implied
 2 right to quiet enjoyment.  The legislature, therefore, finds that
 3 repealing this requirement as to private residential
 4 noncommercial piers is in the best interests of the State.
 5      The purpose of this Act is to protect the piers in the
 6 Kaneohe and Kahaluu area by:
 7      (1)  Requiring any unpermitted pier in Kaneohe Bay existing
 8           in whatever form on the effective date of this Act to
 9           be considered a nonconforming use in the conservation
10           district;
11      (2)  Eliminating the requirement in section 171-36(a)(9),
12           Hawaii Revised Statutes, that lessees open their piers
13           to the public at large; and
14      (3)  Expediting the issuance of easements for piers by
15           including private residential noncommercial piers as
16           items not requiring prior legislative and governor
17           approval on easement dispositions.
18      SECTION 2.  Section 171-36, Hawaii Revised Statutes, is
19 amended by amending subsection (a) to read as follows:
20      "(a)  Except as otherwise provided, the following
21 restrictions shall apply to all leases:
22      (1)  Options for renewal of terms are prohibited;
23      (2)  No lease shall be for a longer term than sixty-five

Page 4                                                     1711
                                     H.B. NO.           H.D. 2

 1           years, except in the case of a residential leasehold
 2           which may provide for an initial term of fifty-five
 3           years with the privilege of extension to meet the
 4           requirements of the Federal Housing Administration,
 5           Federal National Mortgage Association, Federal Land
 6           Bank of Berkeley, Federal Intermediate Credit Bank of
 7           Berkeley, Berkeley Bank for Cooperatives, or Veterans
 8           Administration requirements; provided that the
 9           aggregate of the initial term and extension shall in no
10           event exceed seventy-five years;
11      (3)  No lease shall be made for any land under a lease which
12           has more than two years to run;
13      (4)  No lease shall be made to any person who is in arrears
14           in the payment of taxes, rents, or other obligations
15           owing the State or any county;
16      (5)  No lease shall be transferable or assignable, except by
17           devise, bequest, or intestate succession; provided that
18           with the approval of the board of land and natural
19           resources, the assignment and transfer of a lease or
20           unit thereof may be made if:
21           (A)  It contains the personal residence of the lessee;
22           (B)  In the case of commercial, industrial, hotel,
23                resort, apartment, and other business uses, the

Page 5                                                     1711
                                     H.B. NO.           H.D. 2

 1                lessee was required to put in substantial building
 2                improvements;
 3           (C)  The lessee becomes mentally or physically
 4                disabled;
 5           (D)  Extreme economic hardship is demonstrated to the
 6                satisfaction of the board;
 7           (E)  It is to the corporate successor of the lessee; or
 8           (F)  In the case of agricultural uses, the assignee
 9                meets the qualifications of a bona fide individual
10                farmer or a nonindividual farm concern pursuant to
11                section 171-14.5, in addition to or
12                notwithstanding the other conditions of this
13                paragraph;
14           provided further that prior to the approval of any
15           assignment of lease, the board shall have the right to
16           review and approve the consideration to be paid by the
17           assignee and may condition its consent to the
18           assignment of the lease on payment by the lessee of a
19           premium based on the amount by which the consideration
20           for the assignment, whether by cash, credit, or
21           otherwise, exceeds the depreciated cost of improvements
22           and trade fixtures being transferred to the assignee;
23           provided further that with respect to state

Page 6                                                     1711
                                     H.B. NO.           H.D. 2

 1           agricultural leases, in the event of foreclosure or
 2           sale, the premium, if any, shall be assessed only after
 3           the encumbrances of record and any other advances made
 4           by the holder of a security interest are paid;
 5      (6)  The lessee shall not sublet the whole or any part of
 6           the demised premises except with the approval of the
 7           board; provided that prior to the approval, the board
 8           shall have the right to review and approve the rent to
 9           be charged to the sublessee; provided further that in
10           the case where the lessee is required to pay rent based
11           on a percentage of its gross receipts, the receipts of
12           the sublessee shall be included as part of the lessee's
13           gross receipts; provided further that the board shall
14           have the right to review and, if necessary, revise the
15           rent of the demised premises based upon the rental rate
16           charged to the sublessee including the percentage rent,
17           if applicable, and provided that the rent may not be
18           revised downward;
19      (7)  The lease shall be for a specific use or uses and shall
20           not include waste lands, unless it is impractical to
21           provide otherwise; and
22      (8)  Mineral and metallic rights and surface and ground
23           water shall be reserved to the State[; and

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                                     H.B. NO.           H.D. 2

 1      (9)  No lease of public lands, including submerged lands,
 2           nor any extension of any such lease, shall be issued by
 3           the State to any person to construct, use, or maintain
 4           a sunbathing or swimming pier or to use the lands for
 5           such purposes, unless such lease, or any extension
 6           thereof, contains provisions permitting the general
 7           public to use the pier facilities on the public lands
 8           and requiring that a sign or signs be placed on the
 9           pier, clearly visible to the public, which indicates
10           the public's right to the use of the pier.  The board,
11           at the earliest practicable date, and where legally
12           possible, shall cause all existing leases to be amended
13           to conform to this paragraph.  The term "lease", for
14           the purposes of this paragraph, includes month-to-month
15           rental agreements and similar tenancies]."
16      SECTION 3.  Section 171-53, Hawaii Revised Statutes, is
17 amended by amending subsection (c) to read as follows:
18      "(c)  The board, with the prior approval of the governor and
19 the prior authorization of the legislature by concurrent
20 resolution, may lease submerged lands and lands beneath tidal
21 waters under the terms, conditions, and restrictions provided in
22 this chapter; provided that the approval of the governor and
23 authorization of the legislature shall not be required for any

Page 8                                                     1711
                                     H.B. NO.           H.D. 2

 1 grant of easement or lease of submerged lands or lands beneath
 2 tidal waters used for private residential noncommercial piers,
 3 docks, moorings, cables, or pipelines; provided further that this
 4 exemption shall not apply to easements for cables used for
 5 interisland electrical transmission or slurry pipelines used for
 6 transportive materials, mined at sea, or waste products from the
 7 processing of the same.
 8      The lease shall provide that the lands shall be reclaimed at
 9 the expense of the lessee.  Title to the reclaimed lands shall
10 remain in the State."
11      SECTION 4.  Notwithstanding any law to the contrary, any
12 existing private residential noncommercial pier in Kaneohe Bay,
13 located offshore of property between Kealohi Point and Nuupia
14 Pond, in the effective day of this Act, shall be considered
15 nonconforming for the purposes of Chapter 183C, Hawaii Revised
16 Statutes; provided that the owner of the pier obtains all
17 necessary approvals and land disposition from the department of
18 land and natural resources.  Any penalties assessed under section
19 183C-7(b) for violations under section 183C-5 prior to the
20 effective day of this Act shall be expunged.
21      SECTION 5.  Statutory material to be repealed is bracketed.
22 New statutory material is underscored.
23      SECTION 6.  This Act shall take effect upon its approval.