THE SENATE                           S.C.R. NO.            159
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
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                    SENATE  CONCURRENT
                        RESOLUTION

  REQUESTING EACH STATE AND COUNTY EXECUTIVE DEPARTMENT AND
    AGENCY TO INCORPORATE APPLICATION COMPLETENESS PROVISIONS
    AND EXTENUATING CIRCUMSTANCES IN PREPARING RULES THAT
    SPECIFY A MAXIMUM TIME PERIOD TO GRANT OR DENY A BUSINESS
    OR DEVELOPMENT-RELATED PERMIT UNDER THE AUTOMATIC PERMIT
    APPROVAL LAW.



 1        WHEREAS, in 1998, the Legislature enacted Act 164, also
 2   known as the automatic permit approval law, to implement the
 3   regulatory process recommendations of the economic
 4   revitalization task force which was convened by the Governor,
 5   the President of the Senate, and the Speaker of the House of
 6   Representatives; and
 7   
 8        WHEREAS, that Act, which was subsequently codified as
 9   section 91-13.5, Hawaii Revised Statutes, requires state
10   agencies to adopt rules that specify maximum time periods to
11   grant or deny a business or development-related permit,
12   license, or approvals; and
13   
14        WHEREAS, in addition, issuing agencies under that law are
15   required to articulate informational requirements for
16   applications, review applications for completeness in a timely
17   manner, and then act to grant or deny an application within the
18   established maximum time frame, or the application is deemed
19   approved; and
20   
21        WHEREAS, in enacting Act 164, the Legislature recognized
22   the need to take constructive steps to improve Hawaii's
23   business climate and send a strong signal to the business
24   community of the State's intent to improve the overall
25   regulatory climate; and
26   
27        WHEREAS, the intent of that Act, as stated in section 1 of
28   Act 164, was that requiring maximum review and approval time
29   periods would serve to provide all parties with a greater level
30   of certainty of the time required for review and final
31   determination by an agency on any application for a business or
32   development-related permit, license, or approval; and
33   

 
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 1        WHEREAS, nevertheless, many legislators who voted to enact
 2   the automatic permit approval law expressed a number of
 3   reservations about that law, and the Governor also acknowledged
 4   the need to clarify its provisions; and
 5   
 6        WHEREAS, Act 164 may lead to unintended consequences in
 7   certain cases, for example, if the recusal of one or more
 8   voting members leaves a permit-granting board without a quorum;
 9   and
10   
11        WHEREAS, for example, a default judgment in favor of
12   approval of an application can be forced under Act 164 if a
13   board member comes to a board meeting to establish a quorum,
14   but later either leaves before the permit is voted on or
15   declares a conflict of interest.  At that point, there is no
16   longer a quorum, and the permit is automatically approved; and
17   
18        WHEREAS, approving controversial projects without adequate
19   review may leave the community with developments that are
20   inappropriate or irresponsible; and
21   
22        WHEREAS, agencies adopting rules pursuant to Act 164
23   should therefore address these and other situations that may
24   involve extenuating circumstances, as well as specific
25   provisions regarding application completeness, in order to
26   minimize litigation, mitigate the potentially unintended
27   effects of Act 164, and give each such agency sufficient time
28   and flexibility in the permitting process to ensure that each
29   project is thoroughly reviewed prior to permit approval or
30   denial, rather than through inadvertence; now, therefore,
31   
32        BE IT RESOLVED by the Senate of the Twentieth Legislature
33   of the State of Hawaii, Regular Session of 1999, the House of
34   Representatives concurring, that each state and county
35   executive department and agency is requested to incorporate
36   application completeness provisions and allowances for
37   extenuating circumstances in preparing rules that specify a
38   maximum time period to grant or deny a business or development-
39   related permit under the automatic permit approval law; and
40   
41        BE IT FURTHER RESOLVED that the department's or agency's
42   rules are requested to include provisions relating to
43   application completeness, including the following:
44   

 
 
 
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 1        (1)  Upon the receipt of a permit application, the
 2             department or agency is requested to either inform
 3             the applicant, in writing, that the application is
 4             complete and accepted for filing, or that the
 5             application is deficient and what specific
 6             information is necessary to make the application
 7             complete; and
 8   
 9        (2)  An application is deemed to be complete, and the
10             maximum time period for business or development-
11             related permits, licenses, or approvals is deemed to
12             commence, when the application meets the procedural
13             submission requirements of the issuing agency and is
14             sufficient for continued processing, even though
15             additional information may be required or project
16             modifications may be undertaken subsequently.  The
17             determination of completeness is requested not to
18             preclude the department or agency from requesting
19             additional information or studies either at the time
20             of the notice of completeness or subsequently if new
21             information is required or substantial changes in the
22             proposed action occur.  Alternatively, an application
23             is deemed to be complete if the issuing agency does
24             not provide a written determination to the applicant
25             that the application is incomplete within a specified
26             time period;
27   
28   and
29   
30        BE IT FURTHER RESOLVED that in specifying maximum time
31   periods to grant or deny a business or development-related
32   permits, the department's or agency's rules are requested to
33   provide sufficient flexibility and reasonable time extensions
34   for the following extenuating circumstances:
35   
36        (1)  For multiple permits being considered as part of a
37             state or county consolidated permit review process;
38   
39        (2)  For any period during which the applicant has been
40             requested by the agency to correct plans, perform
41             required studies, or provide other additional
42             required information.  If the agency determines that
43             the information submitted by the applicant is

 
 
 
 
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                                  S.C.R. NO.            159
                                                        
                                                        


 1             insufficient, it is requested to notify the applicant
 2             of the deficiencies and the period is requested to be
 3             further extended until all required information has
 4             been provided by the applicant;
 5   
 6        (3)  For any period during which:
 7   
 8             (A)  An environmental impact statement is being
 9                  prepared following a determination that the
10                  proposed action may have a significant effect on
11                  the environment pursuant to section 343-5(b) or
12                  (c), Hawaii Revised Statutes;
13   
14             (B)  If the government of the county, by ordinance or
15                  resolution, has established time periods for
16                  completion of environmental impact statements;
17                  or
18   
19             (C)  If the agency and applicant agree in writing to
20                  a time period for completion of an environmental
21                  impact statement;
22   
23        (4)  When a contested case hearing is requested pursuant
24             to chapter 91, Hawaii Revised Statutes, and for any
25             other period for administrative or judicial appeals
26             and review;
27   
28        (5)  For any period of time mutually agreed upon by the
29             applicant and the issuing agency;
30   
31        (6)  Except as otherwise provided by law, for any period
32             of time in which any agency is unable to maintain a
33             quorum for any reason, if that agency is required to
34             maintain a quorum before making any official
35             decisions, including approving or denying a business
36             or development-related permit, license, or approval;
37   
38        (7)  If the agency has good cause for exceeding the
39             maximum period of time under either of the following
40             circumstances:
41   
42             (A)  The number of permits to be processed exceeds by
43                  fifteen per cent the number processed in the
44                  same calendar quarter the preceding year; or
45   

 
 
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 1             (B)  The permit-issuing agency must rely on another
 2                  public or private entity for all or part of the
 3                  processing and the delay is caused by that other
 4                  entity; or
 5   
 6        (8)  If any other compelling circumstances justify
 7             additional time and the project applicant consents to
 8             that extension;
 9   
10   and
11   
12        BE IT FURTHER RESOLVED that each state and county
13   executive department and agency is requested to adopt rules in
14   compliance with this Concurrent Resolution on the first
15   occasion that the department's or agency's rules are amended or
16   by December 31, 1999, as required by section 4 of Act 164,
17   Session Laws of Hawaii 1998; and
18   
19        BE IT FURTHER RESOLVED that the director or other head of
20   each executive department or agency adopting rules pursuant to
21   section 91-13.5, Hawaii Revised Statutes, is requested to
22   report to the Legislature and the Governor, no later than
23   twenty days before the convening of the Regular Sessions of
24   2001, 2002, and 2003, any problems associated with the
25   implementation of Act 164, Session Laws of Hawaii 1998, and is
26   requested to further include the following:
27   
28        (1)  The time periods required by section 91-13.5, Hawaii
29             Revised Statutes, for each permit issued by their
30             agency, specifying any modifications or additions;
31   
32        (2)  The median, minimum, and maximum times for processing
33             permits, from receipt of the initial application to
34             the final permit decision, for each permit issued by
35             their agency; and
36   
37        (3)  Any recommendations, including proposed
38             administrative solutions or legislation, if
39             applicable, to improve the functioning of this law;
40   
41   and
42   

 
 
 
 
 
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                                  S.C.R. NO.            159
                                                        
                                                        


 1        BE IT FURTHER RESOLVED that certified copies of this
 2   Concurrent Resolution be transmitted to the Governor and to the
 3   Mayor of each County, each of whom in turn is requested to
 4   transmit copies to the director of other head of each executive
 5   department and all agencies, boards, and commissions attached
 6   to each of those executive departments within their respective
 7   administrations.
 8 
 9 
10 
11                         OFFERED BY:  ____________________________