Permit Consolidation; Waikiki

Establishes a 5-year consolidated permit application and review
pilot program for proposed Waikiki developments.  Designates the
department of business, economic development, and tourism as the
lead agency for the process.  Requires reports and a review of
incentives to encourage applicants to use the process.

THE SENATE                              S.B. NO.           83
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 2 a new chapter to be appropriately designated and to read as
 3 follows:
 4                             "CHAPTER
 6         -1  Purpose.(a)  The purpose of this Act is to
 7 establish a consolidated permit application and review process
 8 for proposed Waikiki developments.  The process established under
 9 this chapter utilizes elements of the existing consolidated
10 application process established in section 201-62, but
11 incorporates useful streamlining elements contained in the
12 geothermal and cable system development process in chapter 196D,
13 as well as other streamlining techniques, to increase the
14 potential for consolidation, simplification, and coordination of
15 the regulatory and permitting processes relating to proposed
16 projects in Waikiki.
17      (b)  The consolidated permit application and review process
18 established by this Act for Waikiki developments differs from the
19 consolidated application process in section 201-62 in several

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 1 respects.  For example, the process established in this Act:
 2      (1)  Requires the appointment of a project facilitator to
 3           "walk" the applicant through the process;
 4      (2)  Specifically requires pre-application conferences and a
 5           conceptual review of the proposed project;
 6      (3)  Provides for a completeness review of applications by
 7           the department;
 8      (4)  Requires city and county participation in the process;
 9      (5)  Allows state and city and county agencies to opt out of
10           the process, but deems nonparticipating agencies to
11           have approved project permits;
12      (6)  Requires project monitoring by the department to ensure
13           the applicant's compliance with permit terms and
14           conditions;
15      (7)  Requires the incorporation of conflict resolution
16           mechanisms to resolve conflicts arising among
17           departments and agencies resulting from conflicting
18           requirements, procedures, or agency perspectives;
19      (8)  Provides for the consolidation of contested case
20           hearings on permits and for appellate review directly
21           to the supreme court;
22      (9)  Provides for joint environmental impact statements and
23           concurrent public review and processing;

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 1     (10)  (Increases the department's responsibilities with
 2           respect to streamlining activities and information
 3           services regarding Waikiki developments, including
 4           providing for explicit agency standards and
 5           incorporating rebuttable presumptions;
 6     (11)  (Provides for the transfer of permitting functions,
 7           including enforcement functions, from issuing agencies
 8           to the department upon the written agreement of the
 9           parties; and
10     (12)  Requires the department to submit annual reports
11           regarding the effectiveness of the consolidated permit
12           application and review process.
13         -2  Definitions.  As used in this chapter, unless the
14 context clearly requires otherwise:
15      "Agency" or "issuing agency" means any department, office,
16 board, or commission of the State or the city and county
17 government which is a part of the executive branch of that
18 government and which issues permits.
19      "Applicant" means any person who, pursuant to statute,
20 ordinance, rule, or regulation, requests approval or a permit of
21 a proposed project in Waikiki.
22      "Approval" means a discretionary consent required from an
23 agency prior to the actual implementation of a project.

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 1      "County" means the city and county of Honolulu.
 2      "Department" means the department of business, economic
 3 development, and tourism or any successor agency.
 4      "Director" means the director of business, economic
 5 development, and tourism or any successor agency.
 6      "Discretionary consent" means a consent, sanction, or
 7 recommendation from an agency for which judgment and free will
 8 may be exercised by the issuing agency, as distinguished from a
 9 ministerial consent.
10      "Environmental impact statement" means, as applicable, an
11 informational document prepared in compliance with chapter 343 or
12 with the National Environmental Policy Act of 1969 (Public Law
13 91-190).
14      "Interagency group" means the body established pursuant to
15 section    -5.
16      "Permit" means any license, permit, certificate,
17 certification, approval, compliance schedule, or other similar
18 document or decision pertaining to any regulatory or management
19 program which is related to the protection, conservation, use of,
20 or interference with the natural resources of land, air, or water
21 in the State and which is required prior to or in connection with
22 the undertaking of a project.
23      "Process" means the consolidated permit application and

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 1 review pilot process established in this chapter for proposed
 2 Waikiki projects.
 3      "Project" means a proposed use, development, or activity in
 4 Waikiki, the conduct of which requires the issuance of permits
 5 from one or more agencies.
 6      "Waikiki" means the area of Oahu whose boundaries are
 7 delineated in the city and county of Honolulu land use ordinance
 8 establishing the Waikiki Special District.
 9         -3  Consolidated permit application and review process
10 for Waikiki projects.(a)  This chapter shall apply only to
11 proposed projects in Waikiki.  The consolidated application
12 process established in section 201-62 shall apply to all other
13 projects as provided in that section.
14      (b)  The department, in addition to its existing functions,
15 shall establish and administer the consolidated permit
16 application and review process provided for in this chapter.
17      (c)  The consolidated permit application and review process
18 shall incorporate the following:
19      (1)  One or more pre-application conferences and a
20           conceptual review of the project
21      (2)  The designation of a project facilitator;
22      (3)  Specification of completeness requirements for
23           applications;

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 1      (4)  The creation of an interagency group pursuant to
 2           section    -5;
 3      (5)  The role and functions of the department as the lead
 4           agency and the interagency group;
 5      (6)  A schedule for meetings and actions of the interagency
 6           group;
 7      (7)  A list of all permits required for the project;
 8      (8)  All permit review and approval deadlines;
 9      (9)  A mechanism to resolve any conflicts that may arise
10           between or among the department and any other agencies,
11           including any federal agencies, as a result of
12           conflicting permit, approval, or other requirements,
13           procedures, or agency perspectives;
14     (10)  Any other administrative procedures related to the
15           foregoing, including provisions for joint hearings and
16           concurrent processing and review, as may be
17           practicable; and
18     (11)  A consolidated permit application form or master
19           application form to be used for the project for all
20           permitting purposes.
21      (d)  The department shall perform all of the permitting
22 functions for which it is currently responsible for the purposes
23 of the project, and shall coordinate and consolidate all required

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 1 permit reviews by other agencies, and to the fullest extent
 2 possible by all federal agencies, having jurisdiction over any
 3 aspect of the project.
 4         -4  Consolidated permit application and review procedure
 5 for Waikiki projects.(a)  The department shall serve as the
 6 lead agency for the consolidated permit application and review
 7 process established pursuant to section    -3 and as set forth in
 8 this section for the project.  Except as provided in this
 9 section, all affected issuing agencies shall participate in the
10 consolidated permit application and review process.
11      (b)  To the greatest extent possible, the department and
12 each issuing agency shall complete all of their respective
13 permitting functions for the purposes of the project, in
14 accordance with the timetable for regulatory review set forth in
15 the joint agreement described in subsection (c)(3) and within the
16 time limits contained in the applicable permit statutes,
17 ordinances, regulations, or rules; except that, notwithstanding
18 section 91-13.5, the department or any agency shall have good
19 cause to extend the applicable time limit if the permit-issuing
20 agency must rely on another agency, including any federal agency,
21 for all or part of the permit processing and the delay is caused
22 by the other agency.
23      (c)  The procedure shall be as follows:

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 1      (1)  On the request of the applicant, the department shall
 2           hold one or more pre-application conferences and
 3           undertake a conceptual review of the proposed Waikiki
 4           project, evaluating the general approvability or
 5           nonapprovability of the proposed project, including all
 6           proposed phases thereof, subject to the development and
 7           submission of more detailed plans and information and
 8           such additional applications for permits in the future
 9           as may be necessary.  The department shall adopt rules
10           pursuant to chapter 91 to establish guidelines and
11           criteria for the conceptual review of proposed projects
12           in Waikiki.
13      (2)  The department shall designate a project facilitator
14           within the department, who shall:
15           (A)  Assist the applicant regarding which permits may
16                be required for the project;
17           (B)  Explain available options in obtaining permits;
18           (C)  Serve as the main point of contact for the
19                applicant;
20           (D)  Manage the procedural aspects of the consolidated
21                permit application and review pilot process;
22           (E)  Ensure that the applicant has necessary
23                information to apply for the required permits;

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 1           (F)  Coordinate the review of those permits by
 2                applicable agencies;
 3           (G)  Ensure that timely permit decisions are made by
 4                those agencies; and
 5           (H)  Assist in resolving conflicts or inconsistencies
 6                among permit requirements and conditions imposed
 7                on permits with respect to the project, and
 8                mediate any other disputes that may arise from
 9                permit applications;
10      (3)  The applicant shall submit the consolidated permit
11           application using the consolidated permit application
12           form, which shall include whatever data about the
13           proposed project that the department deems necessary to
14           fulfill the purposes of this chapter and to determine
15           which other agencies may have jurisdiction over any
16           aspect of the proposed project.
17      (4)  Upon receipt of the consolidated permit application,
18           the department shall notify all issuing agencies, as
19           well as all federal agencies, that the department
20           determines may have jurisdiction over any aspect of the
21           proposed project as set forth in the application, and
22           shall invite the federal agencies so notified to
23           participate in the consolidated permit application

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 1           process.  The agencies, and those federal agencies that
 2           accept the invitation, thereafter shall participate in
 3           the consolidated permit application and review process;
 4           provided that any such state or county agency that is
 5           unable to participate shall be deemed to have approved
 6           all permits required for that project;
 7      (5)  The representatives of the department and the state,
 8           county, and federal agencies and the applicant shall
 9           develop and sign a joint agreement among themselves
10           which shall:
11           (A)  Identify the members of the interagency group;
12           (B)  Identify all permits required for the project;
13           (C)  Specify the regulatory and review responsibilities
14                of the department and each state, county, and
15                federal agency and set forth the responsibilities
16                of the applicant;
17           (D)  Establish a timetable for regulatory review, the
18                conduct of necessary hearings, the preparation of
19                an environmental impact statement if necessary,
20                and other actions required to minimize duplication
21                and to coordinate and consolidate the activities
22                of the applicant, the department, and the state,
23                county, and federal agencies; and

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 1           (E)  Provide for joint hearings and concurrent
 2                processing and review as may be practicable.
 3      (6)  An interagency group shall be established pursuant to
 4           section    -5.  The applicant shall designate its
 5           representative to be available to the interagency
 6           group, as it may require, for purposes of processing
 7           the applicant's consolidated permit application.
 8      (7)  The department, each issuing agency, and each federal
 9           agency shall issue its own permit or approval based
10           upon its own jurisdiction.  The consolidated permit
11           application and review process shall not affect or
12           invalidate the jurisdiction or authority of any agency
13           under existing law.
14      (8)  The applicant shall apply directly to each state,
15           county, or federal agency that does not participate in
16           the consolidated permit application and review process.
17      (9)  Not later than thirty days after receiving an
18           application for a proposed Waikiki project, the
19           department, or a state or county agency to which the
20           department has forwarded the application, shall review
21           the application for completeness, state in writing
22           whether the application is complete, and immediately
23           transmit that writing to the applicant.  If the

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 1           application is determined not to be complete, the
 2           department's or agency's determination shall specify
 3           those parts of the application which are incomplete and
 4           shall indicate the manner in which they can be made
 5           complete.  After the department or agency accepts the
 6           application as complete, the department or agency shall
 7           not subsequently request of the applicant any new or
 8           additional information that was not required as part of
 9           the application; provided that the department or
10           agency, in the course of processing the application,
11           may request that the applicant clarify, amplify,
12           correct, or otherwise supplement the information
13           required for the application.
14     (10)  Upon making a determination of completeness, the
15           department shall process the consolidated permit
16           application submitted by an applicant for the project,
17           and shall monitor the processing of the permit
18           application by issuing agencies.  The department shall
19           coordinate, and seek to consolidate where possible, the
20           permitting functions and shall monitor and assist in
21           the permitting functions conducted by all of these
22           agencies, and to the fullest extent possible the
23           federal agencies, in accordance with the consolidated

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 1           permit application and review process.
 2     (11)  Once the processing of the consolidated permit
 3           application has been completed and the permits
 4           requested have been issued to the applicant, the
 5           department shall monitor the applicant's work
 6           undertaken pursuant to the permits to ensure the
 7           applicant's compliance with the terms and conditions of
 8           the permits.
 9      (d)  Where the contested case provisions under chapter 91
10 apply to any one or more of the permits to be issued by the
11 agency for the purposes of the project, the agency may, if there
12 is a contested case involving any of the permits, be required to
13 conduct only one contested case hearing on the permit or permits
14 within its jurisdiction.  Any appeal from a decision made by the
15 agency pursuant to a public hearing or hearings required in
16 connection with a permit shall be made directly on the record to
17 the supreme court for final decision subject to chapter 602.
18         -5  Interagency group.(a)  The department shall
19 establish an interagency group comprised of those agencies which
20 have jurisdiction over any aspect of a project.  Each of these
21 agencies shall designate an appropriate representative to serve
22 on the interagency group as part of the representative's official
23 responsibilities.  The interagency group shall perform liaison

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 1 and assisting functions as required by this chapter and the
 2 department.  The department shall invite and encourage the
 3 appropriate federal agencies having jurisdiction over any aspect
 4 of the project to participate in the interagency group.
 5      (b)  The department and agencies shall cooperate with the
 6 federal agencies to the fullest extent possible to minimize
 7 duplication between and, where possible, promote consolidation of
 8 federal and state requirements.  To the fullest extent possible,
 9 this cooperation shall include, among other things, joint
10 environmental impact statements with concurrent public review and
11 processing at all levels of government.  Where federal law has
12 requirements that are in addition to but not in conflict with
13 state law requirements, the department and the agencies shall
14 cooperate to the fullest extent possible in fulfilling their
15 requirements so that all documents shall comply with all
16 applicable laws.
17         -6 Streamlining activities.  In administering the
18 consolidated permit application and review process for proposed
19 Waikiki projects, the department, in addition to its activities
20 under section 201-64, shall:
21      (1)  Monitor all permit applications submitted under this
22           chapter and the processing thereof on an ongoing basis
23           to determine the source of any inefficiencies, delays,

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 1           and duplications encountered and the status of all
 2           permits in process;
 3      (2)  Adopt and implement needed streamlining measures
 4           identified by the interagency group, in consultation
 5           with issuing agencies and with members of the public;
 6      (3)  Design, in addition to the consolidated permit
 7           application form, other applications, checklists, and
 8           forms essential to the implementation of the
 9           consolidated permit application and review process;
10      (4)  Recommend to the legislature, as appropriate, suggested
11           changes to existing laws to eliminate any duplicative
12           or redundant permit requirements;
13      (5)  Coordinate with agencies to ensure that all standards
14           used in any agency decisionmaking for any required
15           permits are clear, explicit, and precise; and
16      (6)  Incorporate, where possible, rebuttable presumptions
17           based upon requirements met for permits issued
18           previously under the consolidated permit application
19           and review process.
20         -7 Information services.  In addition to its
21 requirements under section 201-63, the department shall:
22      (1)  Establish a separate section within its permit
23           information and coordination center for services

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 1           related only to proposed Waikiki developments, which
 2           shall be available for public use during normal working
 3           hours, and which provides guidance to potential
 4           applicants for Waikiki projects with regard to the
 5           permits and procedures that may apply to those
 6           projects; and
 7      (2)  Maintain and update a separate repository of the laws,
 8           rules, procedures, permit requirements, and criteria of
 9           agencies and which have control or regulatory power
10           over any aspect of proposed Waikiki projects and of
11           federal agencies having jurisdiction over any aspect of
12           those project.
13         -8 Construction of this chapter; rules.  This chapter
14 shall be construed liberally to effectuate its purposes, and the
15 department shall have all powers which may be necessary to carry
16 out the purposes of this chapter, including the authority to
17 make, amend, and repeal rules pursuant to chapter 91 to implement
18 this chapter; provided that:
19      (1)  All procedures for public information and review under
20           chapter 91 shall be preserved; and
21      (2)  The consolidated permit application and review process
22           shall not affect or invalidate the jurisdiction or
23           authority of any agency under existing law.

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 1         -9  Transfer of functions.(a)  Nothing in this chapter
 2 shall prohibit the department, issuing agencies, and the
 3 applicant from entering into any written agreement that provides
 4 that certain specified functions of those agencies shall be
 5 transferred to the department, insofar as they relate to the
 6 permit application, review, processing, issuance, and monitoring
 7 of laws and rules with respect to proposed Waikiki projects, and
 8 the enforcement of terms, conditions, and stipulations of permits
 9 and other authorizations issued by agencies with respect to the
10 development, construction, installation, operation, maintenance,
11 repair, and replacement of those projects, or any portion or
12 portions thereof.
13      (b)  Any agreed-upon transfer of functions pursuant to
14 subsection (a) shall include all enforcement functions of the
15 respective agencies or their officials as may be related to the
16 enforcement of the terms, conditions, and stipulations of
17 permits.  "Enforcement", for purposes of this transfer of
18 functions, includes monitoring and any other compliance or
19 oversight activities reasonably related to the enforcement
20 process.
21      (c)  Nothing in this section shall be construed to relieve
22 an applicant from the laws, ordinances, and rules of any agency
23 whose functions are not transferred by this section to the

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 1 department for the purposes of a project."
 2      SECTION 2.  Reports.  The department of business, economic
 3 development, and tourism shall submit reports to the governor and
 4 the legislature no later than twenty days before the convening of
 5 the regular sessions of 2001, 2002, 2003, and 2004, regarding:
 6      (1)  The department's work during the preceding year
 7           relating to the consolidated permit application and
 8           review process established in this Act;
 9      (2)  The status of Waikiki projects utilizing the
10           consolidated permit application and review process;
11      (3)  Any problems encountered;
12      (4)  Incentives that may be used to encourage applicants to
13           use the process, pursuant to section 3 of this Act; and
14      (5)  Any legislative actions that may be needed to improve
15           the process and implement the intent of this Act.
16      SECTION 3.  Incentives.  The department of business,
17 economic development, and tourism shall review the awarding of
18 incentives to applicants who use the consolidated permit
19 application and review process for proposed Waikiki developments
20 established in this Act, including the following:
21      (1)  A reduction in permit fees;
22      (2)  A reduction in real property, general excise, or other
23           taxes;

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 1      (3)  Faster processing times;
 2      (4)  A reduction in state or city and county lease rent if
 3           the proposed project is situated on public lands;
 4      (5)  A reduction in other user or impact fees;
 5      (6)  Exemptions from certain ordinances, other than those
 6           affecting density, open space, and other land use or
 7           environmental provisions; or
 8      (7)  Other public incentives as the department finds
 9           appropriate.
10      SECTION 4.  There is appropriated out of the general
11 revenues of the State of Hawaii the sum of $          , or so
12 much thereof as may be necessary for fiscal year 1999-2000, for
13 the purposes of this Act, including the hiring or additional
14 personnel to assist in the and efficient implementation of
15 consolidated permit application and review process established in
16 this Act.  The sum appropriated shall be expended by the
17 department of business, economic development, and tourism for the
18 purposes of this Act.
19      SECTION 5.  There is appropriated out of the general
20 revenues of the State of Hawaii the sum of $          , or so
21 much thereof as may be necessary for fiscal year 1999-2000, to
22 assist the city and county of Honolulu in implementing this Act.
23 The sum appropriated shall be expended by the city and county of

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 1 Honolulu for the purposes of this Act.  The sum appropriated
 2 shall constitute the State's share of the cost of mandated
 3 programs under article VIII, section 5, of the state
 4 constitution.
 5      SECTION 6.  It is the intent of this Act not to jeopardize
 6 the receipt of any federal aid nor to impair the obligation of
 7 the State or any agency thereof to the holders of any bond issued
 8 by the State or by any such agency, and to the extent, and only
 9 to the extent, necessary to effectuate this intent, the governor
10 may modify the strict provisions of this Act, but shall promptly
11 report any such modification with reasons therefor to the
12 legislature at its next session thereafter for review by the
13 legislature.
14      SECTION 7.  If any provision of this Act or the application
15 thereof to any person or circumstances is held invalid, the
16 invalidity shall not affect other provisions or applications of
17 this Act that can be given effect without the invalid provision
18 or application, and to this end the provisions of this Act are
19 declared severable.
20      SECTION 8.  This Act shall take effect on July 1, 1999, and
21 shall be repealed on July 1, 2004.
23                              INTRODUCED BY:______________________

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