* NOTE this post has been edited to clarify the impact of this new law’s impact on agricultural land – the law’s primary legislative advocate has informed me repeatedly that agricultural zoned lands will not be impacted at all.

***Important heads-up to Kauai residents and land use attorneys – November 12 Planning Commission meeting

The below is important…but way down in the public policy, land-use, legal weeds…and it’s Kauai specific.

I’ll cut to the chase…my hope is that a friendly land-use attorney will challenge Act 39 which shifts specific subdivision powers away from the Kauai Planning Commission (and away from public input, public hearings, and public over-site) and grants that power to a single individual – the Kauai Planning Director.
.
On the upcoming November 12 Kauai Planning Commission agenda are many important items, one of which is:

Item #4 New Public Hearings

a. Amendment of Administrative Rules which details the applicability of Act 39 of the Thirty-Second Legislature of the State of Hawaii, Regular Session of 2024 that grants administrative authority to the Planning Director to review and act on subdivision applications for residential-zoned properties.

Note: What item #4 refers to in regular human speak –

The Kauai Planning Director is proposing the rules of subdivision approval be changed to facilitate the taking away power from the Kauai Planning Commission and giving that power to the Kauai Planning Director – because of a new law recently passed by the legislature.

This new law known as Act 39 taking away certain subdivision powers from the Kauai Planning Commission and giving it to the Kauai Planning Director was introduced and passed as SB3202 and supported by the Kauai Planning Director and by all 4 Kauai’s state legislators. It was passed into law without the input of the Kauai Planning Commission, nor was the Planning Commission ever formally informed of the implications, nor was their opinion ever requested, nor were any public hearings on this aspect of the measure ever held.

Further important note: Review and approval by the Kauai Planning Director does not require that public hearings be held, nor that the decision be made via a public process. The Sunshine Law does not apply to the Kauai Planning Director but only to the Kauai Planning Commission.

The Kauai County Charter specifically grants the power to approve subdivisions to the Kauai Planning Commission, NOT to the Kauai Planning Director. This new State law, supported by all 4 Kauai state legislators, and the Kauai Planning Director, and passed without input of the Kauai Planning Commission – supersedes and over-rides the Kauai County Charter (at least that’s what they are telling us).

The proposal does includes numerous “exceptions” to the new subdivision approval power granted to the Kauai Planning Director pertaining to flood plains, historical sites, and others including parcels designated as “important agricultural lands pursuant to part III of chapter 205”.

It’s also important to note that on Kauai the total amount of land zoned for agricultural use is 65,536 acres and the total that has been designated as important agricultural lands pursuant to part III of chapter 205 otherwise known as IAL lands – is only 37,410 acres.

Consequently 28,126 acres of agricultural land on Kauai are NOT specifically exempted in the law or in the proposed rules from the provisions of Act 39.

HOWEVER the new law’s primary advocate Representative Luke Evslin has emphatically reassured me that no agricultural zoned land will be impacted by this new law – period.

It’s unfortunate that in the law itself, and in the Planning Commission documents that present the proposed rules governing this new law only IAL lands are specifically named as being exempt instead stating all lands zoned agriculture are exempt – if that is indeed the case.

I’m checking with my attorney friends to confirm.

The entire Act 39 is here: https://www.capitol.hawaii.gov/sessions/session2024/bills/SB3202_CD1_.HTM

The exact language of the section of Act 39 impacting the Planning Directors new power states:
(g) Notwithstanding any other law, county charter, county ordinance, or rule, any administrative authority to accept, reject, and approve or deny any application for subdivision, consolidation, or resubdivision of a parcel of land that has been fully zoned for residential use within the state urban district designated pursuant to section 205-2 shall be vested with the director of the county agency responsible for land use or a single county officer designated by ordinance; provided that:

(1) The parcel of land being subdivided is not located on a site that is:

(A) Designated as important agricultural land pursuant to part III of chapter 205;

(B) On wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW2;

(C) Within a floodplain as determined by maps adopted by the Federal Emergency Management Agency;

(D) A habitat for protected or endangered species;

(E) Within a state historic district:

(i) Listed on the Hawaii register of historic places or national register of historic places;

(ii) Listed as a historic property on the Hawaii register of historic places or the national register of historic places; or

(iii) During the period after a nomination for listing on the Hawaii register of historic places or national register of historic places is submitted to the department of land and natural resource’s state historic preservation division and before the Hawaii historic places review board has rendered a decision; or

(F) Within lava zone 1 or lava zone 2, as designated by the United States Geological Survey;

(2) Any approval under this subsection shall be consistent with all county zoning, development standards, and requirements pursuant to part II of chapter 205A; and

(3) This subsection shall not apply to county powers within special management areas delineated pursuant to part II of chapter 205A.

Neither this subsection, any permit issued in accordance with this subsection, or structures developed pursuant to this subsection shall create any vested rights for any applicant, permit holder, or land owner.”

Excellent maps and breakdown of agricultural land use is here (see page 24 for Kauai) https://hdoa.hawaii.gov/wp-content/uploads/2021/04/2020_Update_Ag_Baseline_Oahu_Hawaii_Kauai_v3.pdf

Maps showing IAL lands on all islands: https://luc.hawaii.gov/maps/important-agricultural-lands-ial-maps/

Total Acreage Designated Important Agricultural Lands – by Island https://hdoa.hawaii.gov/wp-content/uploads/2022/03/IAL-voluntary-summary-updated-9-4-20.pdf

An official description of exceptions and other aspects of the proposed new administrative rules is here:

Click to access 2024-11-12-pc-agenda-packet-with-h.1.pdf

The entire Kauai Planning Commission Agenda is here: https://www.kauai.gov/files/assets/public/v/1/boards-and-commissions/planning-commission/planning-commission-meeting-agendas/2024-11-12-pc-agenda.pdf