Report Title:

DOE; Public School Facilities; Transfer of Land

Description:

Authorizes the board and department of education to acquire all lands and facilities being utilized for public schools.

THE SENATE

S.B. NO.

972

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to education.

 

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

SECTION 1. The purpose of this Act is to establish the authority of the board and department of education to own and administer all of the lands and facilities being used for the public schools of Hawaii. Accordingly, this Act transfers all public lands and facilities in use for public schools to the department of education. This Act also empowers the board and department of education to acquire, sell, lease, transfer, hypothecate, develop, and enter into agreements for the improvement of lands and facilities under its control for the support of the public schools.

SECTION 2. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART  . PUBLIC SCHOOL LANDS

§302A-A Legislative findings. The legislature finds that section 5(f) of the Admissions Act provides that public lands and the proceeds and income therefrom shall be held as a public trust and managed and disposed of for purposes including, but not limited to, support of the public schools. The legislature further finds that article X, section 3, of the State Constitution establishes that "the board of education shall have the power, as provided by law, to formulate policy and to exercise control over the public school system." The legislature further finds that under article XI, section 5, of the State Constitution, "legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws." Therefore, the legislature finds that public lands appropriately classified by the department of land and natural resources and used for public school facilities should be transferred to the department of education, with the approval of the board of land and natural resources and the board of education, for purposes and in a manner consistent with the State Constitution.

The purpose of this part is to ensure the most productive use of public lands and facilities classified or set aside by the department of land and natural resources or managed by the department of accounting and general services for public schools by allowing these lands and facilities to be transferred to and managed by the department of education.

§302A-B Definitions. For the purposes of this part:

"Public school land and development fund" means a fund to maintain the corpus of the public school land trust which is held in perpetuity for the benefit of the public school system.

"Public school land trust" means a public trust comprised of both ceded and non-ceded lands, and funds for the benefit of the public school system.

"Support of public schools" means any and all lands and property used directly or indirectly, such as off-site infrastructure of school or administrative support facilities, for public schools.

§302A-C Rules. The board shall adopt rules pursuant to chapter 91 to effectuate the purposes of this part and reflect proper trust management principles to insure perpetuity and maintaining the corpus of the trust.

§302A-D Public school land trust. All public school lands and funds derived from the sale or lease or other disposition of public school lands shall be held as a public trust for the support of the public schools.

§302A-E Public school land and development fund. (a) There is created in the department a special fund to be designated as the "public school land and development fund". All proceeds of sale of public school lands, including interest on deferred payments; all rents from leases, licenses, permits and other encumbrances derived from public school lands; all fees, fines, and other administrative charges collected under this part; and private contributions for the management, maintenance, and development of public schools shall be deposited in the fund and shall be used only as authorized by the legislature for the following purposes:

(1) For the planning, development, management, operations, or maintenance of all public school lands and improvements under the control and management of the board, including but not limited to permanent or temporary staff positions who may be appointed without regard to chapter 76, subject to Act 51, Session Laws of Hawaii 2004;

(2) To purchase or repurchase any lands used for or planned for public school use, including improvements, in the exercise by the board;

(3) For the payment of all real estate management expenses including but not limited to: appraisal fees, publication notices, and management fees; provided that all or a portion of the expenditures may be charged to the purchaser or lessee of public school lands or any interest therein under rules adopted by the board;

(4) For the payment to private land developers who have entered into joint venture agreements with the board for development of public school lands under section 302A-M;

(5) For the payment of debt service on revenue bonds issued by the department, and the establishment of debt service and other reserves deemed necessary by the board;

(6) To reimburse the general fund for debt service on general obligation bonds issued to finance departmental projects, where the bonds are designated to be reimbursed from the public school land and development fund;

(7) To reimburse the general fund of the State for advances made that are required to be reimbursed from the proceeds derived from sales, leases, licenses, or permits of public school lands; and

(8) For other purposes of this chapter.

(b) Notwithstanding the provisions of subsection (a), but subject to the restrictions contained in section 5(f) of the Admission Act, whenever the board sells remnants to abutting owners, all proceeds shall be deposited into the public school land and development fund.

(c) When use of the fund is authorized by the legislature for the development of public school lands for a particular project, to be disposed of by sale, lease, license, or permit, the board may pay from the fund the costs of the development, including the costs of surveys, construction of roads, water lines, sewer lines, and such other improvements as may be necessary for the development of the lands; provided that the project shall meet with the zoning and subdivision requirements of the appropriate county government in which the lands are located.

§302A-F Acquisition of public school lands and related facilities to the department of education. (a) The board may acquire any real or personal property or interest therein by purchase, exchange, gift, grant, lease, or other means from any person or government to provide sites for public school facilities. Exchange of real property shall be in accordance with section 302A-I.

(b) Upon mutual agreement and approval of the board and the board of land and natural resources:

(1) The department may accept the transfer of and manage certain qualifying public school lands and facilities; and

(2) Certain assets, including position counts, related to the management of existing encumbered and unencumbered public school lands and related facilities shall be transferred to the department.

(c) The transfer of public school lands shall be done in a manner to be determined by the board of education and may include more than one parcel; provided that these parcels are geographically adjacent to one another.

§302A-G Use of public lands; acquisition of state lands. Notwithstanding chapter 171, the governor may transfer lands located within an existing or planned public school facility project area to the board for its use at no compensation to the public land trust.

§302A-H Transfer of real property from a county. Notwithstanding any provision of law or charter to the contrary, a county shall transfer its ownership, to the board, any real property which the board certifies to be necessary for public school purposes. The transfer shall be made in accordance with section 302A-J and upon such terms and conditions as may be agreed upon by the county and the board.

§302A-I Exchanges. (a) No exchange of public school land for private land shall be made except for public school purposes. Those purposes include but are not limited to the following:

(1) Consolidation of holdings of public school lands;

(2) Straightening of boundaries of public school lands;

(3) Acquisition of adequate access for landlocked public school lands which have development potential; or

(4) Acquisition of lands suitable for public school use.

Exchanges shall be effected without public auction. Public notice of any proposed exchange shall be given in accordance with the applicable provisions set forth in subsection (e) of this section. All private lands conveyed to the State by way of exchanges for public school purposes shall thereafter become public school lands.

(b) The public school land exchanged shall be of substantially equal value to that of the private land. In any exchange, the fair market value of the private land and the public school land shall be separately determined by a disinterested qualified appraiser or appraisers and the cost shall be borne equally between the owner and the board. No payment by the State shall be required should the private land exceed the value of the public school land, but any difference in value of the public school land over the private land shall be paid to the State at the time of the exchange; provided no exchange shall be made should public school land exceed one hundred twenty per cent of the value of the private land.

(c) Any exchange of public school 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 next following the date of the board of education's 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.

(d) Whenever it is proposed to exchange public school lands for private land, public notice of the disposition shall be given at least once statewide and once in the county where the land or other interests being disposed of are located. The notice shall state in general terms the size and location of the public school lands proposed to be exchanged.

§302A-J Eminent domain. (a) The board may acquire any real property, including fixtures and improvements, or interest therein, through 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.

(b) The board 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 review. The recommendation by the legislature of the disposition of the land shall be 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. No award of compensation shall be increased by reason of any increase in the value of real property caused by the designation of a public school facility site, or the actual or proposed acquisition, use or disposition of any other real property by the board.

(c) The board may acquire, by the exercise of the power of eminent domain, property already devoted to a public use, provided that, except as provided in section 302A-H, 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 review. The recommendation by the legislature of the disposition of the land shall be 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 property shall not thereafter be taken for any other public use without the consent of the board.

§302A-K Use and disposition of public school lands. (a) The board may own or hold real property in support of the public school system.

(b) The board, through public auction or direct negotiation, may sell, lease, or enter into agreement, for a term not exceeding sixty-five years, all or any portion of the real estate or facilities constituting a public school facility to any person, or agency upon such terms and conditions as may be approved by the board, provided the disposition is consistent with the purpose and intent of this part, does not diminish the public school lands trust, and is done in accordance with rules adopted by the board.

§302A-L Development of property. (a) The board, on its own behalf or on behalf of any government, may:

(1) Clear, improve, and rehabilitate property; and

(2) Plan, develop, construct, finance, redevelop, and maintain public school sites, on its own or through agreements, using any and all development tools available in the support of the public school system, subject to Act 51, Session Laws of Hawaii 2004.

(b) The board may develop or assist in the development of federal lands with the approval of appropriate federal authorities.

§302A-M Joint ventures. Any public school project developed by the department in partnership with any government agency, or a private party shall be subject to a joint venture or development agreement approved by the board, which agreement shall provide, at a minimum:

(1) A determination by the board that it is in the public interest to enter into the joint venture agreement;

(2) Long-term assurance that the land will be utilized for public school purposes;

(3) Board approval of the public school facility plans and specifications;

(4) Selection and management of contractors in a manner approved by the board; and

(5) Conditions to ensure a public benefit from any state funds expended for the project.

§302A-N Quitclaim deeds. Unless otherwise provided by law, the board shall issue quitclaim deeds and leases whenever it conveys, transfers, sells, or assigns any property developed, constructed, or sponsored under this chapter.

§302A-O Procurement. The board may make, execute, and carry out contracts for, or in connection with, any public school facility project in the manner provided in chapter 103D and section 103-53; and, with regard to the contracts, the term "officers", as used in chapter 103D, shall mean the department or officer authorized by the department to act as its contracting officer. Unless made and executed in the name of the State, each contract made and executed as authorized in this section shall state therein that it is so made and executed.

§302A-P Facility management services. The board may make, execute, and carry out contracts for, or in connection with, the operation and maintenance any public school facility through the use of existing government resources and agencies or as provided under Section 302A-O regarding procurement."

SECTION 3. Section 171-2, Hawaii Revised Statutes, is amended to read as follows:

"§171-2 Definition of public lands. "Public lands" means all lands or interest therein in the State classed as government or crown lands previous to August 15, 1895, or acquired or reserved by the government upon or subsequent to that date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; including accreted lands not otherwise awarded, submerged lands, and lands beneath tidal waters which are suitable for reclamation, together with reclaimed lands which have been given the status of public lands under this chapter, except:

(1) Lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

(2) Lands set aside pursuant to law for the use of the United States;

(3) Lands being used for roads and streets;

(4) Lands to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaiian Organic Act prior to the admission of Hawaii as a state of the United States unless subsequently placed under the control of the board of land and natural resources and given the status of public lands in accordance with the State Constitution, the Hawaiian Homes Commission Act, 1920, as amended, or other laws;

(5) Lands to which the University of Hawaii holds title;

(6) Lands to which the housing and community development corporation of Hawaii in its corporate capacity holds title;

(7) Lands to which the Hawaii community development authority in its corporate capacity holds title;

(8) Lands to which the department of agriculture holds title by way of foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to recover debts otherwise owed the department under chapter 167;

(9) Lands which are set aside by the governor to the Aloha Tower development corporation; lands leased to the Aloha Tower development corporation by any department or agency of the State; or lands to which the Aloha Tower development corporation holds title in its corporate capacity;

(10) Lands which are set aside by the governor to the agribusiness development corporation; lands leased to the agribusiness development corporation by any department or agency of the State; or lands to which the agribusiness development corporation in its corporate capacity holds title; [and]

(11) Lands to which the high technology development corporation in its corporate capacity holds title[.]; and

(12) Lands to which the department of education holds title in the public school land trust."

SECTION 4. Section 302A-1111, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Under policies established by the board, the superintendent shall be designated as the chief executive officer of the public school system having jurisdiction over the internal organization, operation, and management of the public school system, as provided by law[;], including but not limited to the acquisition, ownership, development, management, and disposition of public lands for public schools; and shall administer programs of education and public instruction throughout the State, including education at the preschool, primary, and secondary school levels, and such other programs as may be established by law."

SECTION 5. Section 302A-1128, Hawaii Revised Statutes, is amended to read as follows:

"§302A-1128 Department powers and duties. (a) The department shall have entire charge and control and be responsible for the conduct of all affairs pertaining to public instruction. The department may establish and maintain schools for secular instruction at such places and for such terms as in its discretion it may deem advisable and the funds at its disposal may permit. The schools may include high schools, kindergarten schools, schools or classes for pregrade education, boarding schools, Hawaiian language medium education schools, and evening and day schools. The department may also maintain classes for technical and other instruction in any school where there may not be pupils sufficient in number to justify the establishment of separate schools for these purposes.

(b) The department shall regulate the courses of study to be pursued in all grades of public schools and classify them by methods the department deems proper; provided that:

(1) The course of study and instruction shall be regulated in accordance with the statewide performance standards established under section 302A-201;

(2) All pupils shall be progressively competent in the use of computer technology; and

(3) The course of study and instruction for the first twelve grades shall provide opportunities for all students to develop competency in a language in addition to English.

The department shall develop statewide educational policies and guidelines based on this subsection without regard to chapter 91.

For the purposes of this subsection, the terms "progressively competent in the use of computer technology" and "competency in a language in addition to English" shall be defined by policies adopted by the board. The board shall formulate statewide educational policies allowing the superintendent to exempt certain students from the requirements of paragraphs (2) and (3) without regard to chapter 91.

(c) The department shall have the entire charge of and control over, and be responsible for the acquisition, ownership, development, management, and disposition of, public lands for public schools, and for the construction, operation, maintenance, and repair of public school facilities, subject to Act 51, Session Laws of Hawaii 2004.

[(c)] (d) Nothing in this section shall interfere with those persons attending a summer school."

SECTION 6. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:

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