HB2527

SECTION 1. The legislature finds that given Hawaii's limited natural resources, the implementation of smart growth principles, including the preservation of open space, is crucial to the sustainability of the islands. There are ten principles of smart growth:

(1) Creating a range of housing opportunities and choices;

(2) Creating walkable neighborhoods;

(3) Encouraging community and stakeholder collaboration;

(4) Fostering distinctive, attractive communities with a strong sense of place;

(5) Making development decisions predictable, fair, and cost effective;

(6) Mixing land uses;

(7) Preserving open space, farmland, natural beauty, and critical environmental areas;

(8) Providing a variety of transportation choices;

(9) Strengthening and directing development toward existing communities; and

(10) Taking advantage of compact building design.

Smart growth principles are successful when government makes systemic changes that are consistent with community planning and development, as well as land preservation. Several other states have implemented successful programs. Maryland has implemented a series of legislation promoting smart growth and Florida has implemented a greenways and trails program to provide recreational opportunities.

The purpose of this Act is to promote smart growth and sustainability by requiring:

(1) The department of land and natural resources to establish a system of greenways and trails; and

(2) The office of planning to:

(A) Develop and promote the use of smart growth principles in new and existing communities; and

(B) Coordinate smart growth planning with the department of land and natural resources with respect to the statewide greenways and trails system program.

SECTION 2. Chapter 198D, Hawaii Revised Statutes, is amended to read as follows:

"CHAPTER 198D

HAWAII STATEWIDE TRAIL [~~AND~~], ACCESS, AND GREENWAYS [~~SYSTEM~~] SYSTEMS

PART I. HAWAII STATEWIDE TRAIL AND ACCESS PROGRAM

[[]§198D-1[]] Definitions. For the purpose of this [~~chapter:~~] part:

"Access" means an easement or way:

(1) Over which the general public has the right to travel; and

(2) Which is used by the general public or intended for use by the general public primarily to reach or depart a public beach, shore, park, trail, or other public recreational area.

It includes a lateral easement along the shoreline, coastline, or beach.

"Department" means the department of land and natural resources.

"Trail" means an identifiable linear course used primarily for or used to get a recreational, educational, or inspirational experience. It includes, but is not limited to:

(1) A corridor trail, which is a designated route, segregated from a highway, providing a continuous linkage between or among major urban areas, fragmented accesses, and major trail areas;

(2) A segment or connector trail, which is a designated route from one locale to another; and

(3) A special use trail, which is a designated course for a special activity or function.

§198D-2 Establishment of Hawaii statewide trail and access program. (a) There is established the Hawaii statewide trail and access program, to be known as Na Ala Hele. The department [~~of land and natural resources~~] shall plan, develop, acquire land or rights for public use of land, construct, restore, and engage in coordination activities to implement the program in accordance with this chapter.

(b) The trail and access program shall use funding for the management, maintenance, and development of trails and trail accesses under the jurisdiction of the department from the following sources:

(1) A portion of the highway fuel taxes collected under chapter 243;

(2) Federal government grants;

(3) Private contributions;

(4) Fees, established pursuant to administrative rules and charged by the department for the commercial and other use of trails and trail accesses under the jurisdiction of the department; and

(5) Transient accommodations tax revenues pursuant to section 237D-6.5.

(c) The moneys specified in subsection (b)(2) shall be deposited in the state treasury; provided that moneys received as deposits or contributions from the federal government shall be accounted for in accordance with the conditions established by the agencies making the contribution.

(d) The moneys specified in subsection (b)(1), (3), (4), and (5) shall be deposited in the special land and development fund under section 171-19 for the management, maintenance, and development of trails and trail accesses under the jurisdiction of the department; provided that the moneys specified in subsection (b)(5) shall be expended for the management, maintenance, and development of trails and access areas frequented by visitors in response to a master plan developed in coordination with the Hawaii tourism authority.

§198D-3 Inventory. (a) The department shall establish, maintain, and amend, as required, an inventory of all trails and accesses in the [~~State,~~] state, whether wholly or partly on public or private lands and whether or not under the jurisdiction of the department, and a separate inventory of all trails and accesses to public hunting areas in the [~~State.~~] state. The inventories shall include:

(1) Maps and lists of all trails and accesses;

(2) Name and length of each trail or access;

(3) The person or agency having management responsibility for each trail or access;

(4) The predominant transportation mode for each trail or access;

(5) The development standard, condition, and grade of each trail and access;

(6) The description of amenities or other features on or in close proximity to each trail or access;

(7) The status of availability to the general public of each trail or access; and

(8) Other information for each trail or access deemed necessary or desirable by the department.

(b) The department shall publish and periodically update documents, which shall be available to the general public. The documents shall contain that portion of the inventories which include trails and accesses available for the use of the general public. The department may charge an appropriate fee for the documents and any updates.

§198D-4 Classification. The department shall classify each trail and access in the inventories according to the following:

(1) Function;

(2) Type;

(3) Theme;

(4) Actual and desired use intensity; and

(5) Any other classification deemed necessary or desirable by the department.

§198D-5 Identification of proposed, potential, and needed trails and accesses. (a) In addition to the inventories under section 198D-3, the department shall identify and maintain a listing of:

(1) Proposed trails and accesses which may be opened to the public;

(2) Potential expansions of trails and accesses;

(3) Potential or desirable connectors between existing trail systems;

(4) Public beach, shore, park, trail, and other recreational areas to which access is unavailable or inadequate; and

(5) Trails and accesses to public hunting areas.

(b) The listing may be published in the inventories required under section 198D-3.

§198D-6 Regulation of use of trails and accesses. The department, by rule adopted in accordance with chapter 91, may regulate the use of trails and accesses under the department's jurisdiction. Regulation of the use of trails and accesses shall be established for the following purposes:

(1) To preserve the integrity, condition, naturalness, or beauty of the trails or accesses;

(2) To protect the public safety; or

(3) To restrict or regulate public access to protected or endangered wildlife habitats, except for scientific or educational purposes.

[[]§198D-7[]] Examination of legal issues. The department, in consultation with the attorney general, shall examine legal issues relating to trails and accesses. The legal issues examined shall include:

(1) Theories, options, and doctrines by which trails and accesses may be placed into or retained in public use;

(2) The validity and feasibility of dedication requirements to obtain public use of trails and accesses;

(3) The extent of liability exposure of the State, counties, and private landowners when allowing trails and accesses under their respective jurisdictions to be used by the general public; and

(4) Strategies to reduce or limit the liability exposure of the State, counties, and private landowners [~~in order~~] to promote public use of trails and accesses under their respective jurisdictions which are closed to the general public.

§198D-7.5 Agreements to defend and indemnify. (a) The department may enter into agreements with owners of public or private land to further the purposes of this [~~chapter.~~] part. Agreements between the State and an owner may provide that the State will defend the owner, its affiliates, and their respective heirs, executors, administrators, representatives, successors, trustees, guardians, assigns, lessees, officers, directors, stockholders, employees, agents, and partners, from claims made by public users of the owner’s land.

(b) These agreements may also provide that the State will indemnify the owner, its affiliates, and their respective heirs, executors, administrators, representatives, successors, trustees, guardians, assigns, lessees, officers, directors, stockholders, employees, agents, and partners, for property losses incurred due to public use, subject to the following provisions:

(1) The attorney general may review any claim;

(2) The attorney general may refer a claim associated with property loss to the chairperson of the board of land and natural resources for informal resolution subject to the terms of an agreement;

(3) All claims of property loss that are subject to the terms of an agreement shall be reviewed in the first instance by the chairperson for resolution as provided for in an agreement. The chairperson may compromise or settle claims for property loss from the trail and access program special funds for an amount not exceeding $10,000 per fiscal year, and the chairperson may pay claims for property loss up to this amount without the review of the attorney general;

(4) Upon referral by the chairperson, the attorney general, in the attorney general's discretion, shall make determinations of whether a claim for property loss would or would not be subject to the terms of an agreement; and

(5) Claims greater than $10,000 per fiscal year shall be subject to appropriation and allotment.

(c) The existence of an agreement does not allow an action to be brought against the State. The State shall not be made a party in any action solely because of the existence of an agreement to defend or indemnify. Any action defended by the State pursuant to an agreement shall be deemed an action against the owner, and the State may assert all defenses available to the owner, its affiliates, and their respective heirs, executors, administrators, representatives, successors, trustees, guardians, assigns, lessees, officers, directors, stockholders, employees, agents, and partners.

(d) If the agreement provides for indemnification by the State, no judgment shall be executed against an owner, its affiliates, and their respective heirs, executors, administrators, representatives, successors, trustees, guardians, assigns, lessees, officers, directors, stockholders, employees, agents, and partners, until the legislature has reviewed and approved the judgment.

[[]§198D-7.6[]] Limitation on liability. The State shall not be liable for any injury to any person arising from the person's use of unimproved lands owned or controlled by the State and regulated under section 198D-6, unless the injury results from gross negligence on the part of the State.

§198D-8 Request to acquire rights for public use of additional trails and accesses. The department may request the legislature for appropriations to acquire rights to trails and accesses which are closed to public use or which are necessary to effectuate the trail and access program.

§198D-9 Other powers and duties of department. The department:

(1) May establish signing and design standards for classifications of trails and accesses;

(2) Shall establish advisory councils to solicit advice and assistance in the implementation of the trail and access program. The appointment of members to advisory councils shall be made by the department. If advisory councils are established, the members of the advisory councils shall serve part-time and shall not be compensated for official duties performed. Advisory councils may be established on regional, islandwide, countywide, or statewide bases. The statewide council shall include representatives of motorized, as well as nonmotorized trail users;

(3) Shall serve as the centralized information agency for matters relating to the trail and access program;

(4) Shall coordinate its activities under this [~~chapter,~~] part, including its compilation of the inventories and classifications of trails and accesses, with other public agencies;

(5) Shall advise and, when able, assist other public agencies in the development, construction, operation, maintenance, and regulation of trails and accesses under the other agencies' jurisdiction;

(6) Shall advocate before the legislature, governor, and public agencies, for the implementation of the trail and access program; and

(7) Shall submit an annual report to the governor and legislature on activities engaged in under this chapter; provided that the annual report shall include a comprehensive description of the status of the trail and access program and the financial information specified in section 198D-2(b).

[[]§198D-10[]] Limitation on chapter's provisions. (a) Nothing in this [~~chapter~~] part shall be construed as conferring or imposing upon the department any rights, powers, and duties over:

(1) Lands not under its jurisdiction; or

(2) The activities of other public agencies; except if provided by other law or agreement.

(b) The designation as part of the statewide trail and access system of trails and accesses, the use to which the public has no rights, shall not be construed as establishing public rights to use those trails and accesses.

[[]§198D-11[]] Rules. The department may adopt rules in accordance with chapter 91 for the purposes of this [~~chapter.~~] part.

[[]§198D-12[]] General administrative penalties. (a) Except as otherwise provided by law, the board or its authorized representative by proper delegation may set, charge, and collect administrative fines or bring legal action to recover administrative fees and costs as documented by receipts or affidavit, including attorneys' fees and costs; or bring legal action to recover administrative fines, fees, and costs, including attorneys' fees and costs, or payment for damages or for the cost to correct damages resulting from a violation of this [~~chapter~~] part or any rule adopted pursuant to this [~~chapter.~~] part. The administrative fines shall be as follows:

(1) For a first violation, a fine of not more than $2,500;

(2) For a second violation within five years of a previous violation, a fine of not more than $5,000; and

(3) For a third or subsequent violation within five years of the last violation, a fine of not more than $10,000.

(b) Any criminal action against a person for any violation of this [~~chapter~~] part or any rule adopted pursuant to this [~~chapter~~] part shall not be deemed to preclude the State from pursuing civil legal action to recover administrative fines and costs against that person. Any civil legal action against a person to recover administrative fines and costs for any violation of this [~~chapter~~] part or any rule adopted pursuant to this [~~chapter~~] part shall not be deemed to preclude the State from pursuing any criminal action against that person.

[[]§198D-13[]] Criminal penalties. (a) In addition to any other penalties, any person violating this [~~chapter,~~] part, any rule adopted pursuant to this [~~chapter,~~] part, or the terms and conditions of any permit issued in accordance with this [~~chapter~~] part shall be guilty of a petty misdemeanor and shall be fined not less than:

(1) $100 for a first offense;

(2) $200 for a second offense; and

(3) $500 for a third or subsequent offense.

(b) The fines specified in this section shall not be suspended or waived. Each day of each violation shall constitute a separate offense.

(c) Any criminal action against a person for any violation of this [~~chapter~~] part or any rule adopted pursuant to this [~~chapter~~] part shall not be deemed to preclude the State from pursuing civil legal action to recover administrative fines and costs against that person. Any civil legal action against a person to recover administrative fines and costs for any violation of this [~~chapter~~] part or any rule adopted pursuant to this [~~chapter~~] part shall not be deemed to preclude the State from pursuing any criminal action against that person.

Part II. statewide greenways and trails system

§198D-A Definitions. For the purpose of this part:

"Greenway" means a linear open space established along either a natural corridor, such as a riverfront, stream valley, or ridgeline, or a canal, scenic road, or other route; any natural or landscaped course for pedestrian or bicycle passage; an open space connector linking parks, nature reserves, cultural features, or historic sites with each other and populated areas; or a local strip or linear park designated as a parkway or greenbelt.

"Trails" means linear corridors and any adjacent support parcels on land or water providing public access for recreation or authorized alternative modes of transportation.

§198D-B Establishment. (a) The department shall develop a statewide greenways and trails system that shall consist of individual greenways and trails and networks of greenways and trails. Mapping or other forms of identification of lands and waterways suitable for inclusion in the system of greenways and trails, mapping of ecological characteristics for any purpose, or development of information for planning purposes shall not constitute designation. No lands or waterways may be designated as part of the statewide greenways and trails system without the specific written consent of the landowner.

(b) Planning materials, maps, data, and other information developed or used in the program shall not be construed as designation of lands as part of the statewide greenways and trails system. Identification of lands in such information shall not:

(1) Require or empower any state or county agency to impose additional or more restrictive environmental, land use, or zoning laws, ordinances, or rules;

(2) Be construed to adopt, enforce, or amend any environmental law, ordinance, or rule; comprehensive plan goals, policies, or objectives; or zoning or land use ordinance or law;

(3) Be used as the basis for permit denial, imposition of any permit condition, or application of any law, ordinance, or rule by any subdivision of state or county government; or

(4) Be construed by any governmental agency to reduce or restrict the rights of owners and lands identified.

§198D-C Coordination. The department shall coordinate with state or county agencies that may be impacted by the designation of lands in the statewide greenways and trails system. The department shall also coordinate with the office of planning for purposes of smart growth planning.

§198D-D Rules. The department may adopt rules pursuant to chapter 91 necessary to implement the statewide greenways and trails system."

SECTION 3. Chapter 225M, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§225M- Smart growth coordination. (a) The office of planning shall coordinate efforts to incorporate the principles of smart growth in new and existing communities in the state, including:

(1) Gathering and disseminating information to the public, including the counties, nonprofit organizations, and developers, on how to develop projects that are consistent with the principles of smart growth;

(2) Providing a single point of access for individuals or organizations that need assistance or guidance in navigating the processes and regulations of the state agencies on projects that are consistent with the principles of smart growth; and

(3) Coordinating the efforts of the governor and executive branch to provide input to the legislature on legislation that concerns smart growth and neighborhood conservation.

(b) The principles of smart growth are:

(1) Creating a range of housing opportunities and choices;

(2) Creating walkable neighborhoods;

(3) Encouraging community and stakeholder collaboration;

(4) Fostering distinctive, attractive communities with a strong sense of place;

(5) Making development decisions predictable, fair, and cost effective;

(6) Mixing land uses;

(7) Preserving open space, farmland, natural beauty, and critical environmental areas;

(8) Providing a variety of transportation choices;

(9) Strengthening and directing development toward existing communities; and

(10) Taking advantage of compact building design.

(c) The office of planning shall submit annual reports to the legislature no later than twenty days prior to the convening of each regular session on the activities of the office and the implementation of smart growth projects in the preceding calendar year."

SECTION 4. Section 225M-1, Hawaii Revised Statutes, is amended to read as follows:

"§225M-1 Purpose. The purpose of this chapter is to establish an office of planning to assist the governor and the director of business, economic development, and tourism in maintaining an overall framework to guide the development of the State through a continuous process of comprehensive, long-range, and strategic planning to meet the physical, economic, and social needs of Hawaii's people, and provide for the wise use of Hawaii's resources in a coordinated, efficient, and economical manner, including the conservation of those natural, environmental, recreational, scenic, historic, and other limited and irreplaceable resources which are required for future generations.

The establishment of an office of planning in the department of business, economic development, and tourism, for administrative purposes, is intended to:

(1) Fix responsibility and accountability to successfully carry out statewide planning programs, policies, and priorities;

(2) Improve the efficiency and effectiveness of the operations of the executive branch; [~~and~~]

(3) Ensure comprehensive planning and coordination to enhance the quality of life of the people of Hawaii[.]; and

(4) Develop and promote the use of smart growth principles in new and existing communities."

SECTION 5. Section 225M-2, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The office of planning shall gather, analyze, and provide information to the governor to assist in the overall analysis and formulation of state policies and strategies to provide central direction and cohesion in the allocation of resources and effectuation of state activities and programs and effectively address current or emerging issues and opportunities. More specifically, the office shall engage in the following activities:

(1) State comprehensive planning and program coordination. Formulating and articulating comprehensive statewide goals, objectives, policies, and priorities, and coordinating their implementation through the statewide planning system established in part II of chapter 226;

(2) Strategic planning. Identifying and analyzing significant issues, problems, and opportunities confronting the State, and formulating strategies and alternative courses of action in response to identified problems and opportunities by:

(A) Providing in-depth policy research, analysis, and recommendations on existing or potential areas of critical state concern;

(B) Examining and evaluating the effectiveness of state programs in implementing state policies and priorities;

(C) Monitoring through surveys, environmental scanning, and other techniques--current social, economic, and physical conditions and trends; and

(D) Developing, in collaboration with affected public or private agencies and organizations, implementation plans and schedules and, where appropriate, assisting in the mobilization of resources to meet identified needs;

(3) Planning coordination and cooperation. Facilitating coordinated and cooperative planning and policy development and implementation activities among state agencies and between the state, county, and federal governments, by:

(A) Reviewing, assessing, and coordinating, as necessary, major plans, programs, projects, and regulatory activities existing or proposed by state and county agencies;

(B) Formulating mechanisms to simplify, streamline, or coordinate interagency development and regulatory processes; and

(C) Recognizing the presence of federal defense and security forces and agencies in the [~~State~~] state as important state concerns;

(4) Statewide planning and geographic information system. Collecting, integrating, analyzing, maintaining, and disseminating various forms of data and information, including geospatial data and information, to further effective state planning, policy analysis and development, and delivery of government services by:

(A) Collecting, assembling, organizing, evaluating, and classifying existing geospatial and non-geospatial data and performing necessary basic research, conversions, and integration to provide a common database for governmental planning and geospatial analyses by state agencies;

(B) Planning, coordinating, and maintaining a comprehensive, shared statewide planning and geographic information system and associated geospatial database. The office shall be the lead agency responsible for coordinating the maintenance of the multi-agency, statewide planning and geographic information system and coordinating, collecting, integrating, and disseminating geospatial data sets that are used to support a variety of state agency applications and other spatial data analyses to enhance decision making. The office shall promote and encourage free and open data sharing among and between all government agencies. To ensure the maintenance of a comprehensive, accurate, up-to-date geospatial data resource that can be drawn upon for decision making related to essential public policy issues such as land use planning, resource management, homeland security, and the overall health, safety, and well-being of Hawaii's citizens, and to avoid redundant data development efforts, state agencies shall provide to the shared system either their respective geospatial databases or, at a minimum, especially in cases of secure or confidential data sets that cannot be shared or must be restricted, metadata describing existing geospatial data. In cases where agencies provide restricted data, the office of planning shall ensure the security of that data; and

(5) Land use planning. Developing and presenting the position of the State in all boundary change petitions and proceedings before the land use commission, assisting state agencies in the development and submittal of petitions for land use district boundary amendments, and conducting periodic reviews of the classification and districting of all lands in the [~~State,~~] state, as specified in chapter 205;

(6) Coastal and ocean policy management. Carrying out the lead agency responsibilities for the Hawaii coastal zone management program, as specified in chapter 205A. Also, developing and maintaining an ocean and coastal resources information, planning, and management system further developing and coordinating implementation of the ocean resources management plan, and formulating ocean policies with respect to the exclusive economic zone, coral reefs, and national marine sanctuaries;

(7) Regional planning and studies. Conducting plans and studies to determine:

(A) The capability of various regions within the [~~State~~] state to support projected increases in both resident populations and visitors;

(B) The potential physical, social, economic, and environmental impact on these regions resulting from increases in both resident populations and visitors;

(D) The appropriate guidance and management of selected regions and areas of statewide critical concern.

The studies in subparagraphs (A) to (C) shall be conducted at appropriate intervals, but not less than once every five years; [~~and~~]

(8) Smart growth. Developing, planning, and coordinating the implementation of smart growth principles, including infill development;

(9) Statewide greenways and trails system. Coordinating with the department of land and natural resources for purposes of smart growth planning as it relates to the statewide greenways and trails system program developed pursuant to section 198D-C; and

[~~(8)~~] (10) Regional, national, and international planning. Participating in and ensuring that state plans, policies, and objectives are consistent, to the extent practicable, with regional, national, and international planning efforts."

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 on July 1, 2008.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2527
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII