Report Title:

Public Lands; Legislative Disapproval

Description:

Requires the governor or executive agency taking any action on transactions involving public lands that is subject to legislative disapproval, to provide reasonable, timely, and sufficient notice of that action to the legislature. (SD1)

THE SENATE

S.B. NO.

267

TWENTY-SECOND LEGISLATURE, 2004

S.D. 1

STATE OF HAWAII

PROPOSED


 

A BILL FOR AN ACT

 

relating to Public Lands.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

Section 1. Section 171-11, Hawaii Revised Statutes, is amended to read as follows:

"171-11 Public purposes, lands set aside by the governor; management. The governor may, with the prior approval of the board of land and natural resources, set aside public lands to any department or agency of the State, the city and county, county, or other political subdivisions of the State for public use or purpose. All withdrawals of the lands or portions thereof so set aside shall be made by the governor.

Any public lands set aside by the governor prior to the enactment of this chapter, or any public lands set aside by the governor of the Territory of Hawaii, shall be subject to the provisions of this section.

Lands while [so] set aside for [such] public use or purpose or when acquired for roads and streets shall be managed by the department, agency, city and county, county, or other political subdivisions of the State having jurisdiction thereof, unless otherwise provided by law. [Such] The department, agency of the State, [the] city and county, county, or other political subdivisions of the State in managing [such] those lands shall be authorized to exercise all of the powers vested in the board [in regard to the] to issuance of leases, easements, licenses, revocable permits, concessions, or rights of entry covering [such] the lands for [such] use as may be consistent with the purposes for which the lands were set aside, on the same terms, conditions, and restrictions applicable to the disposition of public lands[,] as provided by this chapter, all such dispositions being subject to the prior approval of the board; provided that any nonrenewable dispositions granting rights for a period not in excess of fourteen days shall not require (1) the approval of the board or (2) public auction or public advertisement for sealed tenders; and provided further that disposition of lands set aside for use as agricultural parks pursuant to chapter 166 shall not be subject to the prior approval of the board. If at the time of the disposition of any such leases the board shall have approved the same, any order withdrawing or setting aside any or all of such lands for any other public purpose shall be made subject to such leases. Subject to section 5(f) of the Act of March 18, 1959 (73 Stat. 6), all proceeds from [such] those lands shall be deposited into the appropriate funds provided by law.

This section shall also apply where the purposes are the uses and purposes of the United States; provided that all revenues derived from the lands and improvements thereon shall be paid to the department of land and natural resources by the United States.

Whenever lands set aside for a public purpose to the various departments and agencies of the State, or to any city and county, county, or other political subdivisions of the State, or to the United States, are not being utilized or required for the public purpose stated, the order setting aside the lands shall be withdrawn and the lands shall be returned to the department. The governor may withdraw public lands and, with the prior approval of the board of land and natural resources, set aside the withdrawn lands to another department or agency of the State, the city and county, county, or political subdivision of the State, or to the United States for public use or purpose, provided that no structure on such lands shall be built, demolished or altered until after the legislative action or inaction as hereinbelow provided.

The power granted to the governor in this section to set aside or withdraw or withdraw and set aside public lands shall be exercised subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by the majority vote of both[, in any regular or special session next following the date of the setting aside or withdrawal, or withdrawal and setting aside]. The governor shall notify the legislature in writing of the setting aside or withdrawal, or withdrawal and setting aside of public lands within ten days after taking that action. The legislature may act on the governor's action in the regular or special session during which the action is taken or in the next regular or special session following the date of the action.

Whenever portions of lands set aside for a public purpose to the various departments and agencies of the State, or to any city and county, county, or other political subdivision of the State are not presently utilized or required for the public purpose stated, the board shall have the power, without withdrawing the order setting aside the lands, to dispose of any and all real property interest less than the fee in the portions of [such] those lands where the disposition is for a use [which] that is consistent or inconsistent with the purpose for which the land was set aside. All funds derived from disposition by the board shall be deposited in the general fund of the State or be paid to the appropriate account; provided that all such dispositions shall be with the prior written approval of the department, agency, city and county, county, or other political subdivisions of the State and the governor, and shall be undertaken in compliance with all other applicable sections of this chapter."

SECTION 2. Section 171-42, Hawaii Revised Statutes, is amended to read as follows:

"171-42 Hotel and resort uses. Public land may be leased for hotel or resort development, if the department of business, economic development, and tourism finds that the land possesses the amenities for a successful hotel and resort development and that the advantages of its placement for such use outweigh those inherent in free public use in its natural state. Where the land being disposed of for hotel or resort use is divisible into more than one economic unit, the division shall be made prior to disposition, provided that firm use controls shall be imposed to assure that the development of each unit is compatible with the others. Provisions for community operations of shopping areas, golf courses, and other similar facilities shall be encouraged, with special assessments for the maintenance of these community facilities. Where public land disposed of for hotel or resort use is adjacent to any beach, waterway, or historic monument or landmark, the disposition shall be subject to reservations of public right-of-way or public access at all times to [such] the beach, waterway, historic monument, or landmark.

The board of land and natural resources may, with the prior approval of the governor, [and subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both, in any regular session next following the date of disposition,] sell in fee simple or lease with option to purchase, raw, unimproved public land for hotel and resort use; provided that:

(1) The board first finds that the land is suitable for resort development and that its use for resort purposes will promote the economic development of the State;

(2) The purchaser submits development plans for the area to be purchased [which] that conform [with] to applicable county or city and county zoning and subdivision requirements;

(3) The board finds upon independent study of these plans that the proposed development is compatible with the developments in the area in general and consistent with good sound planning;

(4) The purchaser agrees to construct, improve, and put in all off-site and on-site improvements as may be required by the board which may include any or all of the following--all major and minor auxiliary roads and highways as well as all local streets, all connecting water lines and mains to existing lines and mains, all necessary sewer lines, sewage treatment, or disposal plants, all pumping stations, all reservoirs, golf courses, recreational areas, shopping centers, and all other improvements necessary to develop the raw land into an economic resort enterprise;

(5) The purchaser agrees to complete all improvements within the time limitations set by the board;

(6) The title to the land shall remain in the State until the purchaser has made all payments required in the terms of the sale and has constructed the improvements as agreed; provided that where the purchaser finds it necessary to secure a loan to finance the construction of the improvements the board may issue a patent or deed upon the execution in favor of the State of a performance and payment bond conditioned upon the payment of an amount equal to one hundred per cent of the improvement cost. The bond shall by its terms inure to the benefit of the State;

(7) The board shall sell for resort uses only that portion of the public lands in the proposed resort area [which] that it finds to be absolutely necessary to give the purchaser self-sustaining economic operations; provided that no public land shall be included in the sale for these purposes [which] that will not actually be improved and used in the resort area for resort purposes; and

(8) The lessee with an option to purchase shall not be permitted to exercise the option until the lessee has complied with all the terms and conditions of the lease, including but not limited to the construction or erection of improvements as may be required by the board.

The board's authority to sell or lease public lands under this section is subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both. The governor shall notify the legislature in writing of the board's intent to sell or lease public lands under this section within ten days after approving that action. The legislature may act on the board's action or intended action in the regular or special session during which the action is taken or intended to be taken, or in the next regular or special session following the date of the action.

In any disposition under this section the board shall give consideration to the needs of the public for beach area above the high water mark.

Upon a finding by the board that the public interest demands it, the board may lease, lease with option to purchase, or sell in fee simple [such] those public lands by negotiation; subject to the provisions contained in this section and [to such] other terms and conditions contained in this chapter."

SECTION 3. Section 171-50, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Legislative disapproval. Any exchange of public land for private land shall be subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both [in any regular or special session following the date of the board of land and natural resources' approval in principle of the exchange. The department shall submit for introduction to the legislature a resolution for review of action on any exchange to be consummated by the board wherein exchange deeds will be executed by the parties together with the following information: (1) the location and area of the parcels of land to be exchanged; (2) the value of the lands to be conveyed by the State and the private party; (3) the name or names of the appraiser or appraisers; and (4) the date of the appraisal valuation]. The department shall notify the legislature in writing of the board's approval of the exchange in principle within ten days after that approval is given. The legislature may act on the board's approval in the regular or special session during which the approval is given, or in the next regular or special session following the date of the approval."

SECTION 4. Section 171-51, Hawaii Revised Statutes, is amended to read as follows:

"171-51 Quitclaim. The board of land and natural resources may, after giving public notice as required in section 171-16(d):

(1) Quitclaim public lands by deed or land patent in exchange for deeds of private lands by way of compromise or equitable settlement of rights of claimants without auction;

(2) Execute quitclaim deeds quitclaiming any and all interests of the State in private land for the purpose of perfecting title to [such private] that land in private individuals who have defective titles; provided that no quitclaim may issue where the title to private land is subject to reversion to the State or to a right of entry by the State upon breach of condition subsequent or where the title to the private land is conveyed by the State for specific uses or purposes; and provided further that no exchange or quitclaim may be entered into or made where the interest of the State arises by reason of any provision in a deed or patent issued by the State, which prescribes the specific use to which the land may be put or the specific purpose for which the land was conveyed[; provided further that any].

Any exchange or quitclaim shall be subject to disapproval by the legislature by a two-thirds vote of either the senate or the house of representatives or by majority vote of both[, in any regular or special session next following the date of the exchange or quitclaim]. The board shall notify the legislature in writing of the board's execution of a deed to quitclaim the State's interest in private lands within ten days after execution of the deed. The legislature may act on the board's execution of the deed in the regular or special session during which that action is taken, or in the next regular or special session following the date of that action."

SECTION 5. Section 171-95, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) In any disposition to public utilities under this section:

(1) The sale price or lease rental shall be no less than the value determined in accordance with section 171-17(b); provided that [such] the sale price or lease rental may be on a nominal basis, if the board finds that [such] the easement is required in connection with a government project;

(2) The board shall provide that in case the land ceases to be used at any future time for the use for which the disposition was made, the board shall have the right to repurchase the land at the original sale price or fair market value, whichever is lower, and to purchase improvements thereon at the depreciated value or fair market value, whichever is lower;

(3) Disposition shall not be made to any public utility if the utility has suitable lands of its own;

(4) The disposition to public utilities shall be subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both, [in any] upon written notice of the disposition by the board to the legislature within ten days after the disposition; provided, the legislature may act on the disposition in the regular or special session during which the disposition is made, or in the next regular or special session [next] following the date of the disposition; and

(5) For the purposes of this section, the definition of "public utility" as defined in section 269-1 is hereby incorporated herein by reference."

SECTION 6. Section 201G-16, Hawaii Revised Statutes, is amended to read as follows:

"[201G-16] Eminent domain, exchange or use of public property. The corporation may acquire any real property, including fixtures and improvements, or interest therein, through voluntary negotiation; through exchange of land in accordance with section 171-50, provided that the public land to be exchanged need not be of like use to that of the private land; or by the exercise of the power of eminent domain which it deems necessary by the adoption of a resolution declaring that the acquisition of the property described therein is in the public interest and required for public use. The corporation shall exercise the power of eminent domain granted by this section in the same manner and procedure as is provided by chapter 101, and otherwise in accordance with all applicable provisions of the general laws of the State; provided that condemnation of parcels greater than fifteen acres shall be subject to legislative disapproval [expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session following the date of condemnation].

The corporation may acquire by the exercise of the power of eminent domain property already devoted to a public use, provided that no property belonging to any government may be acquired without its consent, and that no property belonging to a public utility corporation may be acquired without the approval of the public utilities commission, and subject to legislative disapproval [expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session following the date of condemnation].

Any legislative disapproval pursuant to this section shall be by two-thirds vote of either the senate or the house of representatives or by majority vote of both, upon written notice of the condemnation by the corporation to the legislature within ten days after the condemnation; provided that the legislature may act on the condemnation in the regular or special session during which the condemnation occurs, or in the next regular or special session following the date of condemnation."

SECTION 7. Section 516-24.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The corporation may exchange public lands for private lands to be condemned or involuntarily sold pursuant to this chapter; [provided that any such exchange shall be subject to legislative disapproval;] provided further that lands exchanged need not be of like-kind or comparable use; and provided further that no lands classified as conservation shall be exchanged for private lands. Any exchange made pursuant to this section shall be subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both. The corporation shall notify the legislature in writing of the exchange within ten days after that exchange is made. The legislature may act on the exchange in the regular or special session during which the exchange is made, or in the next regular or special session following the date of the exchange."

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.