Monday, April 13, 2015

Panel on Clean Energy and Transportation: Land Use Entitlements

I recently had the pleasure of joining Michael Formby, Director of the Department of Transportation Services at the City and County of Honolulu, and Harrison Rue, Community Building and TOD Administrator for the City to discuss challenges and opportunities for transitioning to cleaner fuels and provide updates on TOD in Hawaii.  The Natural Resources Section of the Hawaii State Bar Association sponsored the panel.

My contribution focused on opportunities for TOD along the proposed 20-mile, 21-station route (and future extensions), with a focus on TOD entitlements required in the various jurisdictions along the route.

Below is a copy of my 5-minute presentation.

This presentation is based on past articles I wrote on TOD, which you can find at Transit-Oriented Development (TOD).

Mr. Rue's presentation provided an overview of the City's TOD vision and implementation strategies.  His presentation can be found here:

Friday, March 27, 2015

Is the Federal Government's Ambitious Proposal to Expand the Whale Sanctuary the Right Answer?

There are many iconic images of Hawaii, and near the top of that list is the endangered Humpback whale breaching in Hawaii's waters during its seasonal migration.

Source: Pacific Whale Foundation
The Hawaiian Islands Humpback Whale National Marine Sanctuary, was created by Congress in 1992, and approved by Hawaii's governor.  The purpose of the Sanctuary is to protect humpback whales in Hawaii.  It is administered by the National Oceanic and Atmospheric Administration (NOAA), under the U.S. Department of Commerce.  The Sanctuary currently encompasses 1,400 square miles, including the channel between the populated islands of Maui, Lanai, and Molokai.

The current Sanctuary model seems to be working. NOAA research finds that “Humpbacks are increasing in abundance in much of their range.”  Even with its success, the Sanctuary remains relevant.  As the population of whales increases, human-whale interactions increase.

NOAA is proposing an expansion of the Sanctuary. The proposal includes expanding the federal government’s regulatory oversight of uses and activities (e.g., fishing, energy, recreation, commerce, etc.) within the expanded Sanctuary boundaries. The proposal departs from the Sanctuary’s purpose of protecting humpback whales that seasonally migrate to Hawaii and expands to regulating all species and habitat within its boundaries.

This additional regulatory oversight would add to existing federal regulatory requirements such as the Marine Mammal Protection Act, Migratory Bird Treaty Act, Endangered Species Act, Magnuson–Stevens Fishery Conservation and Management Act, Clean Water Act, and Coastal Zone Management Act, just to name a few. The proposed expansion also contemplates including state waters, which are currently managed under existing local and state regulations administered by state agencies such as the Department of Land and Natural Resources, Office of Planning, and Department of Health.
Source: Hawaii Humpback Whale Sanctuary
Depending on the kind of activity proposed in Hawaii’s waters, additional regulation by the Bureau of Ocean Energy Management (BOEM) and the Federal Energy Regulatory Commission (FERC) might also come into play. Most all of these existing regulations require an environmental assessment, and in most cases, an environmental impact statement under the National Environmental Policy Act (NEPA) and the Hawaii Environmental Policy Act (HEPA).

On January 18, 2011, President Obama released Executive Order 13563, Improving Regulation and Regulatory Review.  The “general principles” of the regulation sums up the policy best,
Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.
Is the Sanctuary proposal consistent with the President’s executive order?  Some might argue that adding another layer of federal regulations over proposed ocean uses in Hawaii waters does not promote “economic growth, innovation, competitiveness, and job creation.”

Given the Sanctuary’s success and existing state and federal environmental regulations, does the Sanctuary’s expansive proposal apply the “least burdensome tools for achieving regulatory ends”?  Section 4 of the President’s Executive Order, entitled “Flexible Approaches,” provides:
Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.
Besides the expanded jurisdiction and regulatory authority proposed, are there other "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public"?

The Sanctuary’s proposal is in the last stages of the federal approval process. NOAA is accepting comments on its proposal. The deadline for public comments is June 19, 2015. Several public hearings will be scheduled in Hawaii starting on April 27, 2015. The full schedule is available at!documentDetail;D=NOAA-NOS-2015-0028-0002.

Ultimately, any expansion into state waters must be approved by the governor.

Friday, February 27, 2015

PBS Insights Panel Discusses Housing, Agricluture, and Other Land Use Issues

Selected Tweets from last night's live show, PBS Insights.

You can also watch the entire show:

Watch live streaming video from pbshawaii at

Thursday, February 12, 2015

Developers Have an Option for Transit-Oriented Development (TOD) with Interim Permit

Under Revised Ordinances of Honolulu (ROH) § 21-9.100, “the use of neighborhood TOD plans shall be the preferred way to create TOD development regulations for each TOD zone.”  However, creating neighborhood TOD plans is a lengthy process.  While the City has made significant progress on these plans, only the Waipahu and Aiea-Pearl City Neighborhood TOD Plan have been completed. Implementing zoning and regulations have not been submitted to Council for review and approval.

Recognizing that some developers are ready to start planning and investing in TOD and the potential community benefits these investments can provide, the City and County of Honolulu created the Interim Planned Development-Transit (IPD-T) permit under Ordinance 14-10.  Established on June 20, 2014, the IPD-T permitting process allows “TOD projects prior to the adoption and implementation of the individual neighborhood TOD plans and TOD development regulations.” Under the Ordinance, “[q]ualifying projects must demonstrably exhibit those kinds of attributes that are capable of promoting highly effective transit-enhanced neighborhoods, including diverse employment opportunities, an appropriate mix of housing types, support for multi-modal circulation, and well-designed publicly accessible and useable spaces.”

Use of the IPD-T process is limited to the following projects:
  • Parcels must be within a one-half-mile radius of a planned station;
  • Minimum project size must be 20,000 square feet--more than one lot may be part of an IPD-T project;
  • Parcels must be within the state-designated urban district; and
  • Parcels must be within the following zoning districts: apartment, apartment mixed use, business, business mixed use, resort, industrial, or industrial-commercial mixed use districts.
The IPD-T permitting process grants the Department of Planning and Permitting (DPP) and the City Council broad discretion over proposed projects.  The IPD-T permitting process is modeled after the planned development permit process in the Waikiki Special District.  The process includes appearing before a neighborhood board, filing an application with DPP, conducting a public hearing, submitting a DPP approved conceptual plan to the City Council for consideration and approval, and finally acquiring the IPD-T permit from DPP.

Under the IPD-T process, the City will grant certain development rights not allowed under current zoning in exchange for certain "contributions" by the developer.  Among other things, the City will favorably consider provision of the following contributions by the developer:
  • Mixed uses and employment opportunities;
  • Biking, transit, and walking connectivity;
  • Accessible public accommodations, gathering spaces, pedestrian ways, bicycle facilities, and parks; and
  • "Affordable housing" that is affordable to households with incomes not exceeding 120 percent of the annual median income for Oahu.  
At least 50 percent of the affordably requirement must be provided on-site.  The total required number of affordable units is set by the City's affordable housing rules (which have not yet been adopted).  A developer may provide off-site affordable housing within 1/2 mile of a transit station under the following conditions: (1) 50 percent of rental units, if they are priced at 60 percent affordability for 60 years; or (2) 35 percent of rental units, it they are priced at 80 percent affordability for 20 years.

In return for the above contributions, the City may grant the following entitlements:
  • Up to two times the maximum floor area ratio (FAR) of what existing zoning allows or 7.5, whichever is lower;
  • Where there is no draft neighborhood TOD plan, up to twice of what zoning currently allows for maximum building height or 450 feet, whichever is lower; and
  • Open space may be transferred to another accessible site near the project.
The IPD-T process may be a good fit for developers who desire early entry into the TOD market.

Thursday, February 5, 2015

Rejoining Private Practice

Aloha faithful readers.  I wanted to let you know that I have rejoined the private sector.  Mahalo.

Monday, January 26, 2015

Governor Ige Supports Rail Among Other Land Use Related Priorities in His First State of the State Address

Governor David Ige gave his first State of the State address to a joint session of the Hawaii State Legislature today.

Here's what he said about land use related priorities:

  • He supports, "low-cost government investment tools [that] can be used to create affordable homes for working families," like the interim loan of $5 million provided to enable the Kapolei Lofts, a public-private partnership with the State, the City and a private developer.
  • He supports the Honolulu Rail Transit Project.  In his words, "This governor wants rail to succeed and I’m committed to it."  He recognized that the State owns a large portion of the lands near proposed stations.  He said that, "Rail can be the driver to help us build future communities on Oahu—to sensibly direct growth, protect open space and agriculture, stimulate business, reinvigorate older neighborhoods, and build affordable homes."  As part of his actions to support Rail, he will fill a position in the Office of Planning to help assess and evaluate parcels for affordable homes.  This will likely build on the previous work Office of Planning engaged in that lead to the report entitled, "Leveraging State Agency Involvement in Transit-Oriented Development to Strengthen Hawaii’s Economy."
  • He supports increased agricultural production in Hawaii, through the preservation of agricultural lands.  In addition to land preservation, his strategy includes developing agricultural parks, combating invasive species, and reassessing "the areas that determine whether a local farmer can survive."
The Governor's complete speech is posted on his Web site.

Thursday, January 22, 2015

Land Use Policy Priorities: Opening Day of the 28th Hawaii State Legislature, 2015

Yesterday kicked off the beginning of Hawaii’s 28th legislative session.  Barring a special session, it will end on May 7, 2015, Sine Die (the length of a regular NFLseason).

The legislature prides itself on the number of bills it introduces and passes each year.  Aside from the many substantive bills introduced by each legislator, many bills are marked “introduced by request,” which ostensibly means the legislator introducing the bill does not necessarily support the bill.  Other bills are labeled “short form,” which means that any substantive matter can be inserted in the bill at some point in the legislative process so long as it has some relationship to the bill’s title.  This can amount to thousands of proposed bills and resolutions.

Many of these bills drop out of the process, are merged with other bills, or are significantly amended or completely replaced.  Things begin to gel as we get closer to May and around crossover in mid-February.  However, if you are tracking a certain bill and want to be sure it is crafted in a way that makes sense to your business; you will want to be involved throughout the process.

Yesterday’s Opening Day remarks by the Senate President and House Speaker give some insight on the priorities for each chamber.  The following is a summary of their land use related priorities.

Senate President Donna Mercado Kim opened her remarks on a nostalgic note and played Peter, Paul and Mary’s song, “Where have all the flowers gone?”  She also referenced the popular “Hawaii Calls” radio program that ran from 1935 through 1975.  She noted the issue of sea-level rise impacts on Hawaii’s beaches and the decline of “Hawaiian entertainment in Waikiki,” Koa, Ohia-Lehua, fish, and opii.  To address these issues, she noted the following actions:
  • Providing “dedicated funding using existing TAT revenues for the maintenance and restoration of beaches across the state[.]”
  • “Giving the counties more local control over land use classifications by eliminating the Land Use Commission and overlapping operations to make the permitting process more efficient[.]”
  • The Senate expects “the Hawaii Public Housing Authority, the counties, and private sector to come up with viable solutions” to “the shortage of affordable housing[.]”
Over in the House, House Speaker Joseph Souki opened his remarks emphasizing the need for hard work and collaboration to address issues facing the people of Hawaii.  He noted Governor Ige’s call to work together and “bring as many people and ideas to the table as possible.”  The Speaker’s focus in the area of land use was as follows:
  • Transit Oriented Development  should be used to “direct growth along our rail stations, encouraging commercial development around them and building affordable neighborhoods on nearby state lands.  Directing growth in this way will also protect open space and agriculture, as well as minimize times when we are forced to choose between growth and the environment.”
Opening day remarks can be found in full at, including remarks by Senate Minority Floor Leader Sam Slom and House Majority Leader Scott Saiki.