Hawaii-2024-SB820-Introduced

SECTION 1. The legislature finds that the State plays an essential role in the protection and management of the State's historic places, burial sites, and aviation artifacts by requiring state agencies, officers, and subdivisions to submit all projects that may affect historic properties to the department of land and natural resources for review before approval.

The legislature further finds that permit applicants face significant delays in obtaining certain county permits due to the department's inability to process an overwhelming volume of submittals. Consequently, much needed housing, economic development, and critical infrastructure projects often face significant permit approval and implementation delays. Immediate legislative action is necessary to mitigate the overwhelming volume of submittals and the consequent impacts on permit applicants.

The purpose of this Act is to promote more timely project reviews by requiring the department of land and natural resources, through the state historic preservation division and subject to approval from the appropriate island burial council, to contract the review of proposed state projects, projects on privately owned historic properties, and projects affecting historic properties to third-party consultants if the department will not be able to complete the review within sixty days.

SECTION 2. 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, aviation artifact, or a burial site, the agency or officer shall advise the department 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. 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 programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase.

The department shall provide written concurrence or non-concurrence within ninety days after the filing of a request with the department. The agency or officer seeking to proceed with the project, or any person, may appeal the department's concurrence or non-concurrence 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.

(b) 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) 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) The department shall retain a third-party consultant to conduct the review described in subsection (a) if, after an initial evaluation, the department determines that:

(1) The department will not be able to provide its written concurrence or non-concurrence within sixty days of the request being filed with the department;

(2) The third-party consultant has the qualifications and experience to conduct the review pursuant to subsection (e); and

(3) The third-party consultant contract requires the third-party consultant to provide a recommendation to the department within thirty days of the request being filed with the department.

The department shall obtain the approval of the appropriate island burial council prior to contracting to retain the services of the third-party consultant.

(e) Whenever the department retains any third party, including an architect, engineer, archaeologist, planner, or other, to review an application for a permit, license, or approval in accordance with subsection (d), the third party shall meet the educational and experience standards and qualifications for preservation professionals established by the department.

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

SECTION 3. 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) 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) 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) 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) The department shall retain a third-party consultant to conduct the review described in subsection (a) if, after an initial evaluation, the department determines that:

(1) The department will not be able to provide its written concurrence or non-concurrence within sixty days of the landowner's notification;

(2) The third-party consultant has the qualifications and experience to conduct the review pursuant to subsection (f); and

(3) The third-party consultant contract requires the third-party consultant to provide a recommendation to the department within thirty days of the landowner's notification.

The department shall obtain the approval of the appropriate island burial council prior to contracting to retain the services of the third-party consultant.

(f) Whenever the department retains any third party, including an architect, engineer, archaeologist, planner, or other, to review an application for a permit, license, or approval in accordance with subsection (e), the third party shall meet the educational and experience standards and qualifications for preservation professionals established by the department.

[~~(e)~~] (g) The department or third-party consultant may enter, solely in performance of [~~its~~] the department's official duties and only at reasonable times, upon private lands for examination or survey thereof. Whenever any member of the department or the third-party consultant 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 or third-party consultant shall give written notice of the finding to the owner or occupant of [~~such~~] the property at least five days prior to entry. If entry is refused, the member or third-party consultant may make a complaint to the district environmental court in the circuit in which [~~such~~] the 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[,] or the third-party consultant, between the hours of sunrise and sunset, allow the member of the department or the third-party consultant to examine or survey the historic or cultural property."

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 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.

(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) The department shall retain a third-party consultant to conduct the review and comment described in subsection (a) if, after an initial evaluation, the department determines that:

(1) The department will not be able to provide its review and comment within sixty days of being advised pursuant to subsection (a);

(2) The third-party consultant has the qualifications and experience to conduct the review and comment pursuant to subsection (d); and

(3) The third-party consultant contract requires the third-party consultant to provide a recommendation to the department within thirty days of being advised pursuant to subsection (a).

The department shall obtain the approval of the appropriate island burial council prior to contracting to retain the services of the third-party consultant.

(d) Whenever the department retains any third party, including an architect, engineer, archaeologist, planner, or other, to review an application for a permit, license, or approval in accordance with subsection (c), the third party shall meet the educational and experience standards and qualifications for preservation professionals established by the department.

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

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 upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	820
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII