|
THE SENATE |
S.B. NO. |
1263 |
|
THIRTY-THIRD LEGISLATURE, 2025 |
S.D. 2 |
|
|
STATE OF HAWAII |
H.D. 2 |
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
RELATING TO HISTORIC PRESERVATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1.
The legislature finds that it is critically important to preserve
Hawaii'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 crisis 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 majority-residential mixed-use transit-oriented development or residential transit-oriented development on certain parcels and rights-of-way within county-designated transit-oriented development zones that have a low risk of affecting historically significant resources;
(2) Further empower lead agencies, including county agencies, to make determinations on the potential effects of a project;
(3) Create a ninety-day limit, or thirty-calendar-day limit if no historic properties are affected, for the department of land and natural resources to concur or not concur with project effect determinations; and
(4) Ensure that projects with written concurrence are exempt from further review unless there is a significant change to the project or additional historic properties, aviation artifacts, or burial sites are identified within the project area.
SECTION 2. Section 6E-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:
""Majority-residential mixed-use transit-oriented development" means a mixed-use transit-oriented development project where the majority of the project is residential and may include off-site infrastructure."
SECTION 3. Section 6E-8, Hawaii Revised Statutes, is amended to read as follows:
"§6E-8 Review
of effect of proposed state projects.
(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
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 each construction
phase and the estimated timelines for each phase[.], and any agreed
upon mitigation measures.
(b) The department shall provide written
concurrence or non-concurrence within ninety days, or within thirty calendar
days if no historic properties are to be affected, after the filing of a
request with the department. If the
department fails to provide written concurrence or non-concurrence with a
project effect determination within ninety 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.
(c) The project applicant shall ensure that its
application is complete and accurate. If
the department:
(1) Determines that
the historic preservation review submittal requirements are not met;
(2) Requires
additional information or clarification regarding the project scope of work; or
(3) Requires an archaeological
inventory survey or reconnaissance level survey for architectural resources,
the department shall
notify the applicant and specify the information needed to meet the requirements
for complete submittal. The review
period for the project shall cease until a complete submittal is made to the department.
Once the department has received a
complete submittal, the applicable review period shall restart.
(d) 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 applicable 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.
(e) 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:
(1) If there is a
change in the project's physical scope of work or project area or if additional
historic properties or aviation artifacts are identified within the project
area post-review, the appropriate agency or officer of the State or its
political subdivisions shall notify the department within forty-eight hours of
the discovery. The notification shall
include a description of the historic property or aviation artifact and propose
actions to avoid, minimize, or mitigate adverse effects. The department shall respond within five business
days of the notification with an assessment of the historic property or
aviation artifact and shall provide concurrence or non-concurrence with the
actions proposed to avoid, minimize, or mitigate adverse effects. The appropriate agency or officer of the
State or its political subdivisions shall provide the department with a report
of the agreed upon actions when they are completed; and
(2) If a burial
site is inadvertently discovered, the lead agency shall proceed pursuant to
section 6E-43 or 6E-43.6, or both, as appropriate.
[(b)] (f) The department of Hawaiian home lands, prior
to any proposed project relating to lands under its jurisdiction, shall consult
with the department regarding the effect of the project upon historic property
or a burial site.
[(c)] (g) The State, its political subdivisions,
agencies, and officers shall report to the department the finding of any
historic property during any project and shall cooperate with the department in
the investigation, recording, preservation, and salvage of the property.
[(d)] (h) The department shall adopt rules in
accordance with chapter 91 to implement this section.
(i) For purposes of this section:
"Complete
submittal" means a packet that includes:
(1) A submittal
form;
(2) A permit set or
sixty per cent complete project drawing set;
(3) A site
plan that identifies the project area and locations of ground disturbance;
(4) A written scope
of work that identifies the length, width, and depth of ground disturbance and
the narrative boundaries of the project area;
(5) Photographs of
the property and at least one photograph of each elevation of existing
buildings or structures on the property;
(6) A map indicating
the boundaries of the project area that include any associated construction,
ground disturbance, or setting and staging areas;
(7) For projects
submitted under this section:
(A) A
copy of previous archaeological, architectural, or cultural resource survey for
the property; or
(B) A literature review and field inspection
for archaeological resources or windshield survey for architectural resources
for the tax map key or portion of the tax map key where the project area is
located;
(8) For projects
submitted under section 6E-42, a copy of the building permit application
associated with the project; and
(9) For projects
submitted under this chapter where historic properties are identified as high
effect level under section 6E-42(e), documentation of consultation with the office
of Hawaiian affairs and any associated comments the applicant received from the
office of Hawaiian affairs.
"Lead
agency" means the entity with the designated responsibility for compliance
with this section. The lead agency shall
be decided by the agencies involved; provided that priority shall be given to
the agency with the greater degree of involvement with the project.
"Physical
scope of work" means the size, location, and depth of ground disturbance."
SECTION 4. Section 6E-10, Hawaii Revised Statutes, is amended to read as follows:
"§6E-10 Privately owned historic property.
(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
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 has already begun, continue, until the department shall have given its
concurrence or ninety days have elapsed.
Within ninety 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.
(b)
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 additional historic properties, aviation artifacts,
or burial sites are identified within the project area; provided that:
(1) If there is a
change in the project's physical scope of work or project area or if additional
historic properties or aviation artifacts are identified within the project
area post-review, the property owner shall notify the department within
forty-eight hours of the discovery. The
notification shall include a description of the historic property or aviation
artifact and propose actions to avoid, minimize, or mitigate adverse
effects. The department shall respond
within five business days of the notification with an assessment of the
historic property or aviation artifact and shall provide concurrence or
non-concurrence with the actions proposed to avoid, minimize, or mitigate
adverse effects. The property owner shall
provide the department with a report of the agreed upon actions when they are
completed; and
(2) If a burial
site is inadvertently discovered, the property owner shall proceed pursuant to
section 6E-43 or 6E-43.6, or both, as appropriate.
For the purposes of this
subsection, "physical scope of work" means
the size, location, and depth of ground disturbance.
[(b)]
(c) Nothing in this section shall
be construed to prevent the ordinary maintenance or repair of any feature in or
on an historic property that does not involve a change in design, material, or
outer appearance or change in those characteristics which qualified the
historic property for entry onto the Hawaii register of historic places.
[(c)]
(d) Any person, natural or
corporate, who violates the provisions of this section shall be fined not more
than $1,000, and each day of continued violation shall constitute a distinct
and separate offense under this section for which the offender may be punished.
[(d)]
(e) If funds for the acquisition
of needed property are not available, the governor may, upon the recommendation
of the department allocate from the contingency fund an amount sufficient to
acquire an option on the property or for the immediate acquisition,
preservation, restoration, or operation of the property.
[(e)]
(f) The department may enter,
solely in performance of its official duties and only at reasonable times, upon
private lands for examination or survey thereof. Whenever any member of the department duly
authorized to conduct investigations and surveys of an historic or cultural
nature determines that entry onto private lands for examination or survey of
historic or cultural finding is required, the department shall give written notice
of the finding to the owner or occupant of such property at least five days
prior to entry. If entry is refused, the
member may make a complaint to the district environmental court in the circuit
in which such land is located. The
district environmental court may thereupon issue a warrant, directed to any
police officer of the circuit, commanding the officer to take sufficient aid,
and, being accompanied by a member of the department, between the hours of
sunrise and sunset, allow the member of the department to examine or survey the
historic or cultural property."
SECTION 5. 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 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:
(1) If there is a
change in the project's physical scope of work or project area or if additional
historic properties or aviation artifacts are identified within the project
area post-review, the appropriate agency or officer of the State or any of its
political subdivisions shall notify the department within forty-eight hours of
the discovery. The notification shall
include a description of the historic property or aviation artifact and propose
actions to avoid, minimize, or mitigate adverse effects. The department shall respond within five
business days of the notification with an assessment of the historic property
or aviation artifact and shall provide concurrence or non-concurrence with the
actions proposed to avoid, minimize, or mitigate adverse effects. The appropriate agency or officer of the
State or any of its political subdivisions shall provide the department with a
report of the agreed upon actions when they are completed; and
(2) If a burial
site is inadvertently discovered, the appropriate agency or officer of the
State or any of its political subdivisions shall proceed pursuant to section
6E-43 or 6E-43.6, or both, as appropriate.
For the purposes of this
subsection, "physical scope of work" means
the size, location, and depth of ground disturbance.
(b)
The department shall inform the public of any project proposals
submitted to it 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 majority-residential mixed-use transit-oriented development or residential
transit-oriented development where a permit, license, certificate, land use
change, subdivision, or other entitlement may be required.
(1) The counties and the Hawaii community development
authority shall first consult with the department and agree through
memorandum on the mass transit stations, and specific transit-oriented
development parcels and rights-of-way, scoping the potential area for
initiating programmatic review; and
(2) The counties and the Hawaii community development
authority shall then solicit requests and consent from non-county
landowners to have their parcels and rights-of-way within the scoped area of
the memorandum initiating programmatic review to proceed with the programmatic
review process.
(e)
The department shall review all parcels and rights-of-way submitted by
the counties and the Hawaii community development authority pursuant to the
scoping memorandum and classify each parcel and right-of-way, within six months
of submittal, according to the risk that majority-residential mixed-use
transit-oriented development or residential transit-oriented development may
pose to historic properties into three categories in order of potential effect
level from high to low in the categories of architecture, archaeology, and
history and culture; provided that:
(1) All county and
non-county and Hawaii
community development authority parcels and rights-of way for
programmatic review shall include the county's or the Hawaii community development
authority's assessment of whether development on each parcel or
right-of-way may affect historic property, aviation artifacts, or a burial
site; and
(2) This assessment
is based on:
(A) The
Hawaii or national register of historic places;
(B) The
age of above-surface structures;
(C) Any
existing archaeological inventory surveys previously accepted by the
department;
(D) Any
burial treatment plans accepted by the department;
(E) The
type of substrate known to typically contain burials;
(F) Consultation
with the:
(i) Relevant
island burial council; and
(ii) Office
of Hawaiian affairs; and
(G) Any
other literary review relevant to the area.
(f)
The department shall work with the county that made the submittal and
the Hawaii community development authority to develop and agree on permitting
memoranda within three months of classification regarding development best
practices, including continued identification, addressing levels of risk for
the lower two effect levels in each of the categories, including but not
limited to creating photo inventories, conducting an archaeological field
survey, archaeological excavation, or onsite archaeological monitoring, and the
presence of onsite archaeological monitoring, and consider these best practices
as standardized for activities conducted under this section.
A county and the Hawaii community
development authority 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 and rights-of-way identified 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 or
written concurrence from the department on project effect determination and
mitigation measures; provided that:
(1) The project is
or includes infrastructure to support the development of:
(A) Majority-residential
mixed-use transit-oriented development; or
(B) Residential
transit-oriented development;
(2) The project has
reached substantial construction by June 30, 2036; and
(3) Development
activities have commenced consistent with best practices to address the
applicable level of risk.
(h)
Any parcels or rights-of-way characterized 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 or rights-of-way 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 submittal within six months of receipt.
(k)
The Hawaii community development authority may
submit parcels or rights-of-way within its jurisdiction to the department for
review, and any parcels or rights-of-way identified by the department for
which 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
or includes infrastructure to support the development of:
(A) Majority-residential
mixed-use transit-oriented development; or
(B) Residential
transit-oriented development;
(2) The project has
reached substantial construction by June 30, 2036;
(3) Development
activities have commenced consistent with best practices to address the applicable
level of risk; and
(4) The department
shall classify the submittal within six months of receipt.
[(c)] (l) The department shall adopt rules in
accordance with chapter 91 to implement this section."
SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
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, 3000.
Report Title:
Historic Preservation; Majority-residential mixed-use transient-oriented development; County-designated Transit-oriented Development; SHPD Review; Historic Property
Description:
Creates a process for expediting the review of majority-residential mixed-use transit-oriented development or residential transit-oriented development on certain parcels within county-designated transit-oriented development zones that have a low risk of affecting historically significant resources. Authorizes lead agencies, including county governments, to make determinations on the potential effects of a project. Creates a ninety-day limit, or thirty-calendar-day limit if no historic property is to be affected, to concur or not concur with project effect determinations. Exempts projects with written concurrence from further review unless there is a change to the project or additional historic properties, aviation artifacts, or burial sites are identified within the project area. Establishes notice and reporting requirements if there is a change to the project or additional historic properties, aviation artifacts, or burial sites are identified within the project area after the initial written concurrence. Effective 7/1/3000. (HD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.