SB1263 SD2

SECTION 1. The legislature finds that it is critically important to preserve Hawaiʻi's cultural resources, including historic properties and burial sites, as integral elements of the State's heritage. The legislature also recognizes the pressing need to expedite housing development, particularly in transit-oriented development areas, to address the housing shortage and create more housing opportunities in close proximity to transportation.

Accordingly, the purpose of this Act is to:

(1) Create a process for expediting the review of residential transit-oriented development on certain parcels within county-designated transit-oriented development zones that have a low risk of affecting historically significant resources;

(2) Further empower lead agencies, including county governments, to make determinations on the potential effects of a project, under certain conditions;

(3) Create a ninety-day calendar limit for the department of land and natural resources to concur or not concur with project effect determinations, under certain conditions; and

(4) Ensure that projects with written concurrence are exempt from further review unless there is a change to the project.

SECTION 2. Section 6E-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Before any agency or officer of the State or its political subdivisions commences any project [~~which~~] that may affect historic property, an aviation artifact, or a burial site, the lead agency [~~or officer~~] shall [~~advise the department~~] render a determination on the potential effect of the project and allow the department an opportunity for review of the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, especially those listed on the Hawaii register of historic places. The lead agency shall be the entity with designated responsibility for compliance with this section. The decision as to which agency serves as the lead agency shall be made by the agencies involved, typically the agency with the greater degree of involvement with the project. The proposed project shall not be commenced, or if it has already begun, continued, until the department has [~~given its written concurrence.~~] been afforded the opportunity to review the project in compliance with this subsection. If:

(1) The proposed project consists of corridors or large land areas;

(2) Access to properties is restricted; or

(3) Circumstances dictate that construction be done in stages,

the department may give its written concurrence based on a phased review of the project; provided that there shall be [a] an executed programmatic agreement in place between the department and the project applicant that identifies the entirety of the project scope, project area, and each construction phase and the estimated timelines for each phase[.], and any agreed upon mitigation measures. The lead agency shall submit documentation of the project to the state historic preservation division's Hawaii cultural resource information system, its successor, or an equivalent means of submission to initiate the ninety-calendar-day review period.

The department shall provide written concurrence or non‑concurrence within ninety calendar days after the filing of a request with the department. The department's ninety‑calendar‑day review period shall encompass any requests for additional information; provided that the review period shall not reset upon the request for additional information; provided further that if the department requests additional information from a project, the department shall have one hundred eighty calendar days to provide written concurrence or non-concurrence.

If the department fails to provide written concurrence or non-concurrence with a project effect determination within ninety calendar days, or within thirty calendar days if no historic properties are to be affected, of receiving a complete and true project submittal, the lead agency may assume the department's concurrence and the project may move to the next step in the compliance process; provided that the lead agency notifies the department of the action in writing and provides documentation of the historic preservation review that complies with section 6E-1, including the evaluation of the effects to historic properties and any mitigation or other measures to resolve the effects.

The agency or officer seeking to proceed with the project, or any person, may appeal the department's concurrence or non‑concurrence, or failure to provide written concurrence or non-concurrence within the ninety-calendar-day review period, to the Hawaii historic places review board. An agency, officer, or other person who is dissatisfied with the decision of the review board may apply to the governor, who may take action as the governor deems best in overruling or sustaining the department.

Once the department has provided written concurrence on the project effect determination and any necessary mitigation measures have been identified and agreed upon for a proposed project, the appropriate agency or officer of the State or any of its political subdivisions may commence the project, and the project shall be exempt from further review by the department unless there is a change to the project's physical scope of work or project area or unless an additional historic property, aviation artifact, or burial site is identified within the project area; provided that, for the purposes of this subsection, "physical scope of work" means the size, location, and depth or ground disturbances. The notification process shall conform to section 106 of the National Historic Preservation Act and the department's mitigation process."

SECTION 3. Section 6E-10, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Before any construction, alteration, disposition or improvement of any nature, by, for, or permitted by a private landowner may be commenced [~~which~~] that will affect [an] a historic property on the Hawaii register of historic places, the landowner shall notify the department of the construction, alteration, disposition, or improvement of any nature and allow the department opportunity for review of the effect of the proposed construction, alteration, disposition, or improvement of any nature on the historic property. The proposed construction, alteration, disposition, or improvement of any nature shall not be commenced, or in the event [it] that the proposed action has already begun, continue, until the department [~~shall have~~] has given its concurrence or ninety calendar days have elapsed. Within ninety calendar days after notification, the department shall:

(1) Commence condemnation proceedings for the purchase of the historic property if the department and property owner do not agree upon an appropriate course of action;

(2) Permit the owner to proceed with the owner's construction, alteration, or improvement; or

(3) In coordination with the owner, undertake or permit the investigation, recording, preservation, and salvage of any historical information deemed necessary to preserve Hawaiian history, by any qualified agency for this purpose.

The lead agency shall submit documentation of the project to the state historic preservation division's Hawaii cultural resource information system or its successor, or perform an equivalent means of submission to initiate the ninety-calendar-day review period.

The department's ninety-calendar-day review period shall encompass any requests for additional information; provided that the review period shall not reset upon the request for additional information; provided further that if the department requests additional information from a project, the department shall have one hundred eighty calendar days to provide written concurrence or non-concurrence.

Once the department has provided written concurrence on the project effect determination and any necessary mitigation measures have been identified and agreed upon for a proposed project, the property owner may commence the project, and the project shall be exempt from further review by the department unless there is a change to the project's physical scope of work or project area or unless an additional historic property, aviation artifact, or burial site is identified within the project area; provided that, for the purposes of this subsection, "physical scope of work" means the size, location, and depth of ground disturbances.

If the department does not provide written concurrence or non-concurrence within ninety calendar days, or within thirty calendar days if no historic properties are to be affected, then the department shall be presumed to concur with the agency or officer's submittal. The agency or officer may then proceed with the project; provided that the agency or officer notifies the department of the action in writing and provides documentation of the historic preservation review that complies with section 6E-1, including the evaluation of the effects to historic properties and any mitigation or other measures to resolve the effects."

SECTION 4. Section 6E-42, Hawaii Revised Statutes, is amended to read as follows:

"§6E-42 Review of proposed projects. (a) Except as provided in section 6E-42.2, before any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, [~~which~~] that may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise the department and [~~prior to~~] before any approval allow the department an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places. If:

(1) The proposed project consists of corridors or large land areas;

(2) Access to properties is restricted; or

(3) Circumstances dictate that construction be done in stages,

the department's review and comment may be based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase.

Once the department has provided written concurrence on the project effect determination and any necessary mitigation measures have been identified and agreed upon for a proposed project, the appropriate agency or officer of the State or any of its political subdivisions may commence the project, and the project shall be exempt from further review by the department unless there is a change to the project's physical scope of work or project area or unless additional historic properties, aviation artifacts, or burial sites are identified within the project area; provided that, for the purposes of this subsection, "physical scope of work" means the size, location, and depth of ground disturbances.

(b) The department shall inform the public of any project proposals submitted to [it] the department under this section that are not otherwise subject to the requirement of a public hearing or other public notification.

(c) Counties deriving and expending revenues on mass transit stations pursuant to section 46-16.8 may request programmatic review by the department for residential transit‑oriented development where a permit, license, certificate, land use change, subdivision, or other entitlement may be required.

(d) No later than January 1, 2026, the counties shall work with the department to identify and provide to the department specific parcels in proximity to mass transit stations where residential transit-oriented development is specifically consistent with a comprehensive general plan adopted pursuant to section 46-4; provided that:

(1) The counties shall first consult with the department and agree through a scoping memorandum on the locations of any mass transit stations and specific transit-oriented development parcels, scoping the potential areas for initiating programmatic review; and

(2) The counties shall then solicit requests and consent from non-county landowners to have their parcels within the scoped area of the memorandum initiating programmatic review to proceed with the programmatic review process.

(e) The department shall review all parcels submitted by the counties pursuant to the scoping memorandum and classify each parcel, within six months from the date the parcel was submitted in accordance with the risk that the residential transit-oriented development may pose to historic properties. Each parcel shall be classified further in the order of the parcel's potential effect level from high to low in the three categories of architecture, archaeology, and history and culture; provided that:

(1) All county and non-county parcels for programmatic review shall include the county's assessment of whether development on each parcel may affect historic property, an aviation artifact, or a burial site; and

(2) The assessment is based on:

(A) The Hawaii or national register of historic places;

(B) The age of above-surface structures;

(D) Any burial treatment plans accepted by the department;

(E) The type of substrate known to typically contain burials; and

(F) Any other literary review relevant to the area.

(f) The department shall work with each county that submitted a parcel to develop and agree through a permitting memoranda, within three months from the date that a parcel is classified, regarding development best practices, including continued identification and procedures for addressing levels of risk for the lower two effect levels in each of the categories classified under subsection (e), including but not limited to creating photo inventories and conducting an archaeological field survey, archaeological excavation, or onsite archaeological monitoring, and consider these best practices as standardized for activities conducted under this section.

A county shall incorporate by reference these best practices as conditions of approval for any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use.

(g) Parcels classified by the department where all categories are rated in the lower two effect levels shall be considered to comply with subsection (a) or section 6E-8 regarding state or county lands or projects, and any subsequent permit, license, certificate, land use change, subdivision, or other entitlement for use shall not require referral to the department; provided that:

(1) The project is only residential transit-oriented;

(2) The project has reached substantial construction by June 30, 2036; and

(3) Development activities that have commenced are consistent with best practices to address the applicable level of risk.

(h) Any parcels classified as highest risk shall require referral to the department pursuant to subsection (a).

(i) Section 6E-43.6 shall apply in the event of an inadvertent discovery of a burial site.

(j) The Hawaii housing finance and development corporation may submit to the department any additional parcels and state or county housing developments for programmatic review if the counties do not provide a submittal pursuant to subsection (d); provided that the same analysis shall be conducted pursuant to subsection (e) and the department shall classify the parcels submitted within six months from the date of receipt.

(k) The Hawaii community development authority may submit parcels and community development districts within its jurisdiction to the department for programmatic review. Any parcels identified by the department for which all categories are classified in the lower two effect levels shall be considered to comply with subsection (a) or section 6E-8 regarding state or county lands or projects, and any subsequent permit, license, certificate, land use change, subdivision, or other entitlement for use shall not require referral to the department; provided that:

(1) The project is only residential transit-oriented;

(2) The project has reached substantial construction by June 30, 2036;

(3) Development activities that have commenced are consistent with best practices to address the applicable level of risk; and

(4) The department shall classify the parcels submitted within six months from the date of receipt.

[~~(c)~~] (l) The department shall adopt rules in accordance with chapter 91 to implement this section.

(m) For the purposes of this section, "residential" shall include mixed-use projects where residential use is the majority use."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on April 23, 2057.

THE SENATE	S.B. NO.	1263
THIRTY-THIRD LEGISLATURE, 2025		S.D. 2
STATE OF HAWAII