Hawaii Supreme Court Limits Chapter 201H Exemption Authority
The Hawaii Supreme Court, in its Protect and Preserve Kahoma Ahupua'a Association v. Maui Planning Commission (SCWC-15-0000478; 2021 Haw. LEXIS 128 (2021)) ("PPKAA") opinion issued on June 16, 2021, has, for the first time, provided guidance to the applicability of the permitting exemptions set forth in Chapter 201H of the Hawaii Revised Statutes ("HRS").
One issue before the Court in PPKAA was whether Chapter 201H, HRS ("Chapter 201H") exempted a Developer's affordable housing project (the "Project") from the Coastal Zone Management Act's (the "CZMA") requirement that developments in Special Management Areas must be determined by the county planning commission to be consistent with the county general plan.
Chapter 201H, in order to expedite the development of affordable housing, exempts qualified housing projects from "all statutes, ordinances, charter provisions, and rules of any government agency relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction of dwelling units thereon." (HRS Section 201H-38(a).)
The Developer in PPKAA argued that Chapter 201H exempted the Project from the CZMA's general plan consistency requirement because such requirement is a law "relating to the development and improvement of land."
The Court, however, disagreed, and:
(1) noted that because Chapter 201H does not define "relating to" or provide guidance as to how broadly or narrowly to read such a "broad and indiscriminate phrase," a contextual reading of the CZMA's general plan consistency requirement was required;
(2) determined that, although one of the CZMA's objectives is to manage development, to the extent that the CZMA does affect development, it is in order to preserve, protect, and restore the natural resources of Hawaii's coastal zone and not to "improve" land;
(3) found that the CZMA is an environmental law and not a law "relating to" the development and improvement of land for the purposes of Chapter 201H's exemptions; and, therefore,
(4) held that the CZMA may not be exempted under Chapter 201H.
In planning to process affordable housing projects under Chapter 201H, developers should keep the Court's analysis in mind, most notably that: (a) Chapter 201H does not exempt projects from the requirements of the CZMA; and (b) in evaluating whether a legal requirement may be exempted by 201H, courts will examine such requirement in its context.
The Court's PPKAA opinion can be found at: