THE SENATE

S.B. NO.

2133

TWENTY-NINTH LEGISLATURE, 2018

S.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO HAWAIIAN CULTURAL RESERVES

 

 

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

 


SECTION 1. The legislature finds that native Hawaiians struggle to perpetuate their traditional and customary cultural and subsistence practices and maintain cultural connections to the aina, amid increasing development and other land uses that impact the abundance of and access to natural and cultural resources and sites.

The legislature further finds that the continued disconnection of native Hawaiians from the aina, including the perpetuation of native Hawaiian traditional and customary practices, has resulted and continues to result in the loss of traditional ecological knowledge and values that could otherwise serve to increase the sustainability and self-sufficiency of our islands, and all who call Hawaii home.

Native Hawaiian culture is both interconnected with and interdependent on the maintained integrity of the natural environment. Native Hawaiian models of self-governance serve to bolster natural ecosystems for communal self-sufficiency and sustainability, based in part on communities' intimate knowledge of and connection to their place and local resources. This is reflected in modern-day "kipuka" communities, where native Hawaiian traditional and customary practices and subsistence lifestyles continue to coexist with high levels of resource abundance.

Unfortunately, soon after Western contact, shifts in land use, including sugarcane cultivation and cattle ranching, combined with a drastic decline in the native Hawaiian population, resulted in the large-scale devastation of natural and cultural resources and a multi-generational disconnect between many native Hawaiians and place. Native Hawaiians' ability to maintain connections to and steward the aina continued to decline throughout the twentieth century, as development, military activity, and other land uses further disrupted native ecosystems and destroyed natural and cultural resources integral to native Hawaiian cultural practices and subsistence lifestyles. Property owners also sought and continue to seek to exclude native Hawaiians and others from accessing or transiting through their lands, further disconnecting native Hawaiians from land and culture.

In recognition of the disconnection of native Hawaiians from their ancestral lands and the critical need to protect the living vestiges of native Hawaiian culture, the state constitution was amended in 1978 to, among other things, "protect all rights, customarily and traditionally exercised" by native Hawaiians. Two decades later, the Hawaii supreme court established the "Ka Paakai" analytical framework, which required state decision making to identify and mitigate impacts to natural and cultural resources and associated native Hawaiian traditional and customary practices. However, these legal protections do not necessarily address, much less reverse, the loss of resources and disconnection that have already occurred through prior land uses.

Today, many native Hawaiian cultural practitioners, community groups, and others are seeking to restore and maintain native ecosystems and perpetuate associated native Hawaiian traditional and customary practices, including the stewardship practice of malama aina. These efforts are of particular interest not only to native Hawaiians, but also to resource managers and others who understand the potential of traditional ecological knowledge and community-based stewardship approaches to more effectively restore and perpetuate ecosystems and environmental resources necessary for the long-term sustainability and self-sufficiency of Hawaii. However, these efforts are hampered not only by the lack of mechanisms to restore resources and connections to the aina that have already been lost, but also by the growing trend of subdivisions and condominium property regimes being proposed for largely undeveloped agricultural lands, where the resources and connections could otherwise be restored and maintained.

The legislature finds that there is a need for mechanisms to affirmatively reconnect native Hawaiians and native Hawaiian traditional and customary practices with place, as a means of more meaningfully perpetuating native Hawaiian culture, and as a first step towards reviving and perpetuating the cultural knowledge and values that can most effectively ensure the sustainability and self-sufficiency of our islands.

The purpose of this Act is to require the counties to provide for the establishment of Hawaiian cultural reserves as a condition of approval and development of certain types of subdivisions and condominium property regimes on agricultural and rural lands that include the construction of dwellings.

SECTION 2. Section 46-6, Hawaii Revised Statutes, is amended to read as follows:

"46-6 [Parks and playgrounds for subdivisions.] Hawaiian cultural reserves and parks and playgrounds for subdivisions. (a) Except as hereinafter provided, each county shall adopt ordinances to require a subdivider, as a condition to approval of a subdivision to provide land in perpetuity or to dedicate land for [park]:

(1) Park and playground purposes[,]; and

(2) Hawaiian cultural reserve purposes,

for the use of purchasers or occupants of lots or units in subdivisions[.]; provided that land set aside for Hawaiian cultural reserve purposes shall also be made available for the use of cultural practitioners and the perpetuation of native Hawaiian traditional and customary practices, cultural resources, or cultural connections to place.

In developing ordinances pursuant to this section, each county shall consider how to best ensure that the requirement to provide or dedicate land for a Hawaiian cultural reserve will be roughly proportional to the impact from that new subdivision. The considerations shall also account for how previous developments or changes to land access have impacted Native Hawaiian traditional and customary practices in the region. The ordinances may prescribe the instances when land shall be provided in perpetuity or dedicated, the area, location, grade, and other state of the sites so required to be provided or dedicated. In addition thereto, [such] the ordinances may prescribe penalties or other remedies for violation of [such] the ordinances.

(b) In lieu of providing land in perpetuity or dedicating land[,] for park and playground purposes, the ordinances may permit a subdivider pursuant to terms and conditions set forth therein to:

(1) Pay to the county a sum of money deemed adequate by the county to purchase the park land the subdivider would otherwise have had to provide or dedicate; or

(2) Combine the payment of money with land to be provided or dedicated, the value of [such] the combination to be as deemed adequate by the county to purchase the total amount of land the subdivider would otherwise have had to provide or dedicate.

The method of determining such full or partial payment shall be prescribed by the ordinances. The ordinances shall also provide that [such] the money shall be used for the purpose of providing parks and playgrounds for the use of purchasers or occupants of lots or units in the subdivision. Each county may establish by ordinance a time limit within which it must spend the park dedication fees it has collected. This section shall not satisfy the requirement for land provided in perpetuity or dedicated for Hawaiian cultural reserve purposes.

(c) Pursuant to terms, conditions, and limitations specified by the ordinances, a subdivider shall receive credit:

(1) For privately-owned and maintained parks and playgrounds;

(2) For lands dedicated or provided for park and playground purposes prior to the effective date of the ordinances.

No credit for private parks and playgrounds shall be credited against the land that would be provided in perpetuity or dedicated for Hawaiian cultural reserve purposes.

(d) Upon the provision of land in perpetuity or the dedication of land by the subdivider as may be required under this section[, the]:

(1) The county concerned shall thereafter assume the cost of improvements and their maintenance[, and the]; or

(2) With regards to a Hawaiian cultural reserve, the county concerned may assume the costs of improvements and their maintenance, or may transfer management to an organization that will assume the cost of improvements and their maintenance.

The subdivider shall accordingly be relieved from [such] the costs.

(e) The ordinances adopted pursuant to this section may provide, where special circumstances, conditions, and needs within the respective counties so warrant, for [such] any exemptions and exclusions as the councils of the respective counties may deem necessary or appropriate and may also prescribe the extent to and the circumstances under which the requirements therein shall or shall not be applicable to subdivisions.

(f) Each county shall consult with the office of Hawaiian affairs and potentially impacted native Hawaiian communities regarding the characteristics of any Hawaiian cultural reserve for which land is required to be provided or dedicated pursuant to this section.

[(f)] (g) For purposes of this section, certain terms used herein shall be defined as follows:

[(1)] "Approval" means the final approval granted to a proposed subdivision where the actual division of land into smaller parcels is sought, provided that where construction of a building or buildings is proposed without further subdividing an existing parcel of land, the term "approval" shall refer to the issuance of the building permit.

[(2)] "Dwelling unit" means a room or rooms connected together, constituting an independent housekeeping unit for a family and containing a single kitchen.

"Hawaiian cultural reserve" means an area established for the exercise of native Hawaiian traditional and customary practices, as a memorial of cultural-historical significance, as a native Hawaiian plant and animal habitat, or any combination thereof.

[(3)] "Lodging unit" means a room or rooms connected together, constituting an independent housekeeping unit for a family which does not contain any kitchen.

[(4)] "Parks and playgrounds" [mean] means areas used for active or passive recreational pursuits.

[(5)] "Subdivider" means any person who divides land as specified under the definition of subdivision or who constructs a building or group of buildings containing or divided into three or more dwelling units or lodging units.

[(6)] "Subdivision" means the division of improved or unimproved land into two or more lots, parcels, sites, or other divisions of land and for the purpose, whether immediate or future, of sale, lease, rental, transfer of title to, or interest in, any or all such lots, parcels, sites, or division of land. The term includes resubdivision, and when appropriate to the context, shall relate to the land subdivided. The term also includes a building or group of buildings, other than a hotel, containing or divided into three or more dwelling units or lodging units.

[(7)] "Privately owned parks and playgrounds" [mean] means parks or playgrounds and their facilities which are not provided in perpetuity or dedicated but which are owned and maintained by or on behalf of the ultimate users of the subdivision pursuant to recorded restrictive covenants. Where the privately owned park is a part of the lot or lots on which a building or group of buildings containing or divided into three or more dwelling units or lodging units is constructed, it shall not be required that the private park or playground meet county subdivision standards nor shall the area of the private park or playground be deducted from the area of the lot or lots for purposes of zoning or building requirements."

SECTION 3. Section 514B-3, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Hawaiian cultural reserves" means the same as defined in section 46-6(g)."

SECTION 4. Section 514B-6, Hawaii Revised Statutes, is amended to read as follows:

"[[]514B-6[]] Supplemental county rules governing a condominium property regime. (a) Whenever any county deems it proper, the county may adopt supplemental rules governing condominium property regimes established under this chapter in order to implement this program; provided that any of the supplemental rules adopted shall not conflict with this chapter or with any of the rules adopted by the commission to implement this chapter.

(b) For any condominium property regime established under this chapter that will be located on agricultural or rural lands and will include three or more residential units, each county shall adopt supplemental rules to require, as a condition of approval, the provision or dedication of land in perpetuity for Hawaiian cultural reserve purposes, for the use of cultural practitioners and the perpetuation or restoration of native Hawaiian traditional and customary practices, cultural resources, or cultural connections to place.

In developing supplemental rules pursuant to this section, each county shall consider how to best ensure that the requirement to provide or dedicate land for a Hawaiian cultural reserve will be roughly proportional to the impact from that new condominium property regime. The considerations shall also account for how previous developments or changes to land access have impacted Native Hawaiian traditional and customary practices in the region.

The supplemental rules may:

(1) Prescribe the instances when land shall be provided in perpetuity or dedicated and the area, location, grade, and other state of the sites so required to be provided or dedicated;

(2) Provide, where special circumstances, conditions, and needs within the respective counties so warrant, for any exemptions and exclusions as the councils of the respective counties may deem necessary or appropriate and may also prescribe the extent to and the circumstances under which the requirements therein shall or shall not be applicable to projects; and

(3) Prescribe penalties or other remedies for violation of the rules.

(c) Upon the provision of land in perpetuity or the dedication of land by the developer under this chapter as may be required under this section, the county concerned shall thereafter:

(1) Assume the cost of improvements and their maintenance; or

(2) Transfer management of any Hawaiian cultural reserve to an organization, which will assume the cost of improvements and their maintenance for non-exclusive use.

The developer shall accordingly be relieved from the costs.

(d) Each county shall consult with the office of Hawaiian affairs and potentially impacted native Hawaiian communities regarding the characteristics of any Hawaiian cultural reserve for which land is required to be provided or dedicated pursuant to this section."

SECTION 5. Section 514B-32, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A declaration shall describe or include the following:

(1) The land submitted to the condominium property regime;

(2) The number of the condominium map filed concurrently with the declaration;

(3) The number of units in the condominium property regime;

(4) The unit number of each unit and common interest appurtenant to each unit;

(5) The number of buildings and projects in the condominium property regime, and the number of stories and units in each building;

(6) The permitted and prohibited uses of each unit;

(7) To the extent not shown on the condominium map, a description of the location and dimensions of the horizontal and vertical boundaries of any unit. Unit boundaries may be defined by physical structures or, if a unit boundary is not defined by a physical structure, by spatial coordinates;

(8) The condominium property regime's common elements;

(9) The condominium property regime's limited common elements, if any, and the unit or units to which each limited common element is appurtenant;

(10) The total percentage of the common interest that is required to approve rebuilding, repairing, or restoring the condominium property regime if it is damaged or destroyed;

(11) The total percentage of the common interest, and any other approvals or consents, that are required to amend the declaration. Except as otherwise specifically provided in this chapter, and except for any amendments made pursuant to reservations set forth in paragraph (12), the approval of the owners of at least sixty-seven per cent of the common interest shall be required for all amendments to the declaration;

(12) Any rights that the developer or others reserve regarding the condominium property regime, including, without limitation, any development rights, and any reservations to modify the declaration or condominium map. An amendment to the declaration made pursuant to the exercise of those reserved rights shall require only the consent or approval, if any, specified in the reservation; [and]

(13) A declaration, subject to the penalties set forth in section 514B‑69(b), that the condominium property regime is in compliance with all zoning and building ordinances and codes, and all other permitting and other requirements pursuant to section 514B‑5, section 514B-6, and chapter 205, including section 205-4.6 where applicable. In the case of a project in the agricultural district classified pursuant to chapter 205, the declaration, subject to the penalties set forth in section 514B-69(b), shall include an additional statement that there are no private restrictions limiting or prohibiting agricultural uses or activities in compliance with section 205-4.6. In the case of a property that includes one or more existing structures being converted to condominium property regime status, the declaration required by this section shall specify:

(A) Any variances that have been granted to achieve the compliance; and

(B) Whether, as the result of the adoption or amendment of any ordinances or codes, the project presently contains any legal nonconforming conditions, uses, or structures.

A property that is registered pursuant to section 514B‑51 shall instead provide the required declaration pursuant to section 514B‑54. If a developer is converting a structure to condominium property regime status and the structure is not in compliance with all zoning and building ordinances and codes, and all other permitting and other requirements pursuant to [section] sections 514B‑5[,] and 514B-6, and the developer intends to use purchaser's funds pursuant to the requirements of section 514B‑92 or 514B‑93 to cure the violation or violations, then the declaration required by this paragraph may be qualified to identify with specificity each violation and the requirement to cure the violation by a date certain[.]; and

(14) If applicable, the land to be provided in perpetuity or dedicated for any Hawaiian cultural reserve; and to the extent not shown on the condominium map, a description of the location and dimensions of the horizontal and vertical boundaries of any unit."

SECTION 6. Section 514B-33, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A condominium map shall be recorded with the declaration. The condominium map shall contain the following:

(1) A site plan for the condominium property regime, depicting the location, layout, and access to a public road of all buildings and projects included or anticipated to be included in the condominium property regime, and depicting access for the units to a public road or to a common element leading to a public road;

(2) Elevations and floor plans of all buildings in the condominium property regime;

(3) The layout, location, boundaries, unit numbers, and dimensions of the units;

(4) To the extent that there is parking in the condominium property regime, a parking plan for the regime, showing the location, layout, and stall numbers of all parking stalls included in the condominium property regime;

(5) Unless specifically described in the declaration, the layout, location, and numbers or other identifying information of the limited common elements, if any; [and]

(6) A description in sufficient detail, as may be determined by the commission, to identify any land area that constitutes a limited common element[.]; and

(7) Unless specifically described in the declaration, the layout, location, and other identifying information of the land being provided in perpetuity or dedicated for Hawaiian cultural reserve purposes."

SECTION 7. Section 514B-54, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Prior to the issuance of an effective date for a developer's public report, the commission shall have received the following:

(1) Nonrefundable fees as provided in rules adopted by the director of commerce and consumer affairs pursuant to chapter 91;

(2) The developer's public report prepared by the developer disclosing the information specified in section 514B‑83 and, if applicable, section 514B‑84;

(3) A copy of the deed, master lease, agreement of sale, or sales contract evidencing either that the developer holds the fee or leasehold interest in the property or has a right to acquire the same;

(4) Copies of the executed declaration, bylaws, and condominium map that meet the requirements of sections 514B‑32, 514B‑33, and 514B‑108;

(5) A specimen copy of the proposed contract of sale for units;

(6) An executed copy of an escrow agreement with a third party depository for retention and disposition of purchasers' funds that meets the requirements of section 514B‑91;

(7) As applicable, the documents and information required in section 514B‑92 or 514B‑93;

(8) A declaration by the developer, subject to the penalties set forth in section 514B‑69(b), that the project is in compliance with all county zoning and building ordinances and codes, and all other county permitting and other requirements applicable to the project, pursuant to chapter 205, including section 205-4.6, where applicable, and sections 514B‑5, 514B-6, and 514B‑32(a)(13);

(9) In the case of a project in the agricultural district classified pursuant to chapter 205, a verified statement signed by an appropriate county official that the project as described and set forth in the project's declaration, condominium map, bylaws, and house rules does not include any restrictions limiting or prohibiting agricultural uses or activities, in compliance with section 205-4.6; and

(10) Other documents and information that the commission may require."

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval.

 


 


 

Report Title:

OHA Package; Counties; Hawaiian Cultural Reserves

 

Description:

Requires the counties to provide for the establishment of Hawaiian cultural reserves as a condition of approval and development of certain types of subdivisions and condominium property regimes on agricultural and rural lands that include the construction of dwellings. (SD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.