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Regulating Paradise

Regulating Paradise: Land Use Controls in Hawai`i, Second Edition

David L. Callies
Copyright Date: 2010
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  • Book Info
    Regulating Paradise
    Book Description:

    Land use in Hawai‘i remains the most regulated of all the fifty states. According to many sources, the process of going from raw land to the completion of a project may well average ten years given that ninety-five percent of raw land is initially classified by the State Land Use Commission as either conservation or agriculture. How did this happen and to what end? Will it continue? What laws and regulations control the use of land? Is the use of land in Hawai‘i a right or a privilege? These questions and others are addressed in this long-overdue second edition of Regulating Paradise, a comprehensive and accessible text that will guide readers through the many layers of laws, plans, and regulations that often determine how land is used in Hawai‘i. It provides the tools to analyze an enormously complex process, one that frustrates public and private sectors alike, and will serve as an essential reference for students, planners, regulators, lawyers, land use professionals, environmental and cultural organizations, and others involved with land use and planning.

    eISBN: 978-0-8248-6044-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
  4. Note on Style
    (pp. xi-xii)
  5. Introduction: A “Baker’s Dozen” Land Policy Agenda for the Fiftieth State
    (pp. 1-20)

    Land use in Hawai‘i continues to be the most regulated of all the fifty states. According to many sources, going from raw land to the completion of a project may well average ten years, given that such raw land is almost certainly classified by the State Land Use Commission initially as either Conservation or Agriculture (still, between them, comprising 95 percent of the land area of the state). The costs associated with holding and developing land for so long are considerable, and this drives up the price of virtually anything connected with land development. It is no wonder that our...

  6. Chapter 1 State Land Use Controls
    (pp. 21-45)

    Hawai‘i is unique among the fifty states in its comprehensive statewide land use controls. The State Land Use Commission (LUC) manages a system of land district classification distinct from but overlaying the county zoning schemes. Actions by state agencies—which are required for the approval of the multitude of permits required for virtually any large land use project—must also theoretically meet the requirements of the statutory state comprehensive plan.

    Land in Hawai‘i is divided into four use districts: urban, rural, agricultural, and conservation.¹ The LUC is responsible for grouping contiguous parcels of land into these districts according to the...

  7. Chapter 2 Local Planning and Zoning
    (pp. 46-82)

    Although the legal and planning literature of the 1970s was filled with gleeful requiems for local zoning, the “ancien régime” of land use controls is not only alive but increasingly robust even after decades of neglect.² Local zoning never really declined except in the perception of commentators on the land use scene. Cities—where the vast majority of people live and work and where, therefore, land use decisions most directly affect the public’s way of life—never abandoned zoning.³ While states and federal agencies may have promoted, often successfully, regional and statewide land use management and control systems as an...

  8. Chapter 3 Subdivisions, Land Development Conditions, and Development Agreements
    (pp. 83-126)

    The subdivision approval process represents one of the most relevant of land use control techniques. It is exercised at the county level, enabled through legislation at the state level, and is a prerequisite for virtually all single-family residential development as well as a significant portion of new multifamily, commercial, and industrial development whenever a landowner-developer divides land into more parcels. Generally characterized by preliminary and then final plan or plat approval, it is at this stage in the land development process that county government often requires a series of land development conditions (exactions, dedications, impact fees) precedent to permission to...

  9. Chapter 4 Public Lands in Hawai‘i: The Impact of State and Federal Ownership and Management
    (pp. 127-168)

    Federal and state governments and their agencies own a staggering 48 percent of Hawai‘i’s land. The federal government owns or leases roughly 19 percent, or nearly 800,000 acres, and the Hawai‘i State government owns 28 percent, or nearly 1,116,000 acres.¹ While much of this land is in undevelopable park and reserve, management policies in federal and state statutes—especially those pertaining to the state’s public lands—permit a variety of private residential and commercial uses on these public lands. Moreover, federal land management and disposal policies affect the use of nearby private land in significant ways. Those aspects of public...

  10. Chapter 5 Redevelopment and the Role of Public Corporations
    (pp. 169-208)

    The Hawai‘i State Legislature has created a number of special-purpose agencies with independent powers to develop or control the use of land within their geographic boundaries. In many instances, that power is exclusive and the county or counties in which such agencies are authorized to act have little or no regulatory authority within such geographic limits. While some—such as the Hawai‘i Community Development Authority (HCDA)—are mature and have been more or less active for several decades, some are new, at least since the first edition of this book. To these we now turn.

    In 1976, the legislature created...

  11. Chapter 6 Managing the Coastal Zone
    (pp. 209-234)

    Coastal zone management has been the subject of state and local regulation through much of the last five decades in the United States. This is not particularly surprising since fully three-quarters of the population of the United States lives in the coastal zone.¹ However, it was not until the mid-1970s that a national program of coastal zone management commenced under the federal Coastal Zone Management Act (CZMA).² Designed largely to encourage states in coastal areas to plan, manage, and regulate the use of land therein, the CZMA provides funds for the creation and implementation of state coastal zone management plans,...

  12. Chapter 7 Floodplains and FEMA
    (pp. 235-262)

    Disaster protection as a policy goal sounds unassailable. In practice, it is a barely mitigated catastrophe. This is in part due to the tendency to build houses in floodplains and coastal hazard areas, despite the virtually certain knowledge that a flood will one day destroy whatever is built there. Living in flood-prone areas, whether riverine or coastal, will eventually be costly, if not disastrous. In August 2005, Hurricane Katrina ravaged the Gulf Coast region of the United States, causing over $80 billion in damages and over 1,300 direct fatalities.¹ Less cataclysmic but no less devastating, Tropical Storm Ike swept through...

  13. Chapter 8 Historic Preservation: Recapturing the Past
    (pp. 263-294)

    The preservation of historic buildings and archaeological sites has been something of a national crusade, especially since the mid-1960s. In 1966, Congress passed the National Historic Preservation Act (NHPA), which accomplished four major things: “First, it created the National Register of Historic Places [National Register], the federal government’s official list of properties worthy of preservation. Second, it led to the appointment, in every state and territory, of a State Historic Preservation Officer (SHPO) with responsibility for encouraging and assisting preservation efforts at the state level.”¹ Third, the legislation established the Historic Preservation Fund, which helps “the states carry out the...

  14. Chapter 9 Federalization of Land Use Control in Hawai‘i: Clean Air, Clean Water, Species Protection, and Environmental Impacts
    (pp. 295-336)

    The federal government injected itself into environmental law in a series of statutes passed in the 1970s. The late Don Hagman called the new environmental laws with their significant land use implications “The Federalization of land use controls.”¹ The complex array of federal environmental statutes spawned a cottage industry of lawyers devoted to keeping businesses in compliance with the laws. From a land use perspective, the most important of these laws are the Clean Air Act, the Clean Water Act, and the Endangered Species Act.² In some instances, Hawai‘i’s state environmental laws go even further. For example, as interpreted in...

  15. Bibliography
    (pp. 337-360)
  16. Index
    (pp. 361-366)
  17. Back Matter
    (pp. 367-372)