HOUSE OF REPRESENTATIVES

H.B. NO.

2918

TWENTY-FIFTH LEGISLATURE, 2010

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to kakaako community development district.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that predictability in the development approval process would encourage maximum efficient use of resources at the least economic impact to the public.  This predictability is especially important in view of the substantial investment required for any development project and the more conservative lending and investment practices resulting from the recent economic crisis.

     Public benefits derived from implementing master plans in the Kakaako community development district include expanded open space and recreational opportunities for Hawaii’s residents, newly-constructed market and reserved housing, major private sector investments to stimulate economic growth, and on-and off-site infrastructure and other improvements that support the broader community.  Such master plans are intended to create well-designed communities that improve the urban environment in Honolulu.  Such benefits may not be realized unless development rights for a specific period are clearly vested and investments are made to develop and complete the proposed projects.

     Development agreements are a mechanism to strengthen the implementation of an approved master plan.  Such agreements encourage private and public participation in the implementation of the master plan, reduce the economic cost of development, and allow for the orderly construction of recreational and publicly available facilities through the vesting of rights to develop the balance of the projects.

     As an administrative act, development agreements also provide assurances to the applicant for a particular development project in the master plan area that upon approval of the master plan, the applicant may proceed with the project in accordance with all applicable statutes, ordinances, resolutions, rules, regulations, and policies then in existence and that the project will not be restricted or prohibited by the State or county's subsequent enactment or adoption of laws, ordinances, resolutions, rules, regulations, or policies.

     Chapter 206E, Hawaii Revised Statutes, and associated plans, rules, and regulations, provide for vesting of certain development rights, upon approval by the Hawaii community development authority, of matters including master plans and development agreements in connection with an approved master plan.  To achieve the goals and public benefits from each approved master plan, owners, developers, and their lenders and investors need a predictable and stable framework that assures these parties they can develop and complete their proposed projects pursuant to the terms of an approved development agreement.

     The purpose of this Act is to enable the Hawaii community development authority to enter into development agreements.

     SECTION 2.  Chapter 206E, Hawaii Revised Statutes, is amended by adding nine new sections to part II to be appropriately designated and to read as follows:

     "§206E-A  Definitions for Development Agreements.  The following terms as used in this part shall have the following meanings unless a different meaning clearly appears from the context:

     "Person" means an individual, group, partnership, firm, association, corporation, trust, governmental agency, governmental official, administrative body, or tribunal, or any form of business or legal entity.

     "Principal" means a person who has entered into a development agreement pursuant to the procedures specified in this part, including a successor in interest.

     §206E-B  Development agreements; general authorization.  The authority, through its executive director, shall be authorized to enter into a development agreement with any person having a legal or equitable interest in real property for purposes of development in accordance with this section; provided that:

     (1)  An application is submitted by or on behalf of persons having a legal or equitable interest in the real property in accordance with this part;

     (2)  A public hearing on the application shall be held by the authority; provided that a public hearing held in connection with the approval process for the master plan shall be sufficient for this purpose;

     (3)  The executive director of the authority shall administer the agreements after such agreements become effective;

     (4)  The executive director of the authority shall conduct a review of compliance with the terms and conditions of the development agreement on a periodic basis as established by the development agreement;

     (5)  The development agreement does not exceed the term of the master plan, as may be extended; and

     (6)  The time periods for the review and appeal of modifications of the development agreement are consistent with those for master plans.

     §206E-C  Negotiating development agreements.  (a)  The executive director of the authority may make such arrangements as may be necessary or proper to enter into development agreements, including negotiating and drafting individual development agreements.

     (b)  The final draft of each individual development agreement shall be presented to the authority for approval or modification prior to execution.

     §206E-D  Periodic review; termination of agreement.  (a)  If, as a result of a periodic review, the authority finds and determines that the principal has committed a material breach of the terms or conditions of the development agreement, the authority shall serve notice in writing within thirty days after the periodic review, upon the principal setting forth the nature of the breach and the evidence supporting the finding and determination.  This notice shall provide the principal a period of at least ninety days, as determined by the authority, in which to cure such material breach.

     (b)  If the principal fails to cure the material breach within the time period given, as may be extended by the authority, then the authority unilaterally may terminate or modify the agreement; provided that the authority has first given the principal the opportunity to:

     (1)  Rebut the finding and determination; or

     (2)  Consent to amend the agreement to meet the concerns of the authority with respect to the finding and determination.

     §206E-E  Development agreement; provisions.  (a)  For purposes of this part, a development agreement is any agreement entered into pursuant to a master plan permit, including any amendments, modifications, or supplements, necessary for the implementation of the master plan permit.

     (b)  The development agreement shall:

     (1)  Describe the land subject to the development agreement, which shall include the land comprising the master plan area;

     (2)  Specify the permitted uses of the land, the density or intensity of use, the maximum height and size of proposed buildings, and the reserved housing requirements, which shall be consistent with the master plan in effect at the time of entering into the development agreement;

     (3)  Provide, where appropriate, the public dedication requirements and public dedication credits consistent with the master plan in effect at the time of entering into the development agreement;

     (4)  Provide that upon the execution of the development agreement, all development rights in the development agreement shall be deemed vested; and

     (5)  Provide a termination date for no less than the length of the term of the master plan; provided that the parties shall not be precluded from extending the termination date by mutual agreement or from entering into amendments, modifications, or supplements to the development agreement to implement the master plan.

     (b)  The development agreement may provide commencement dates and completion dates; provided that such dates as may be set forth in the agreement may be extended at the discretion of the authority at the request of the principal upon good cause shown subject to subsection (a)(5).

     (c)  The development agreement may incorporate by reference the terms and conditions of the approved master plan.

     (d)  The development agreement also may cover any other matter not inconsistent with this chapter, nor prohibited by law.

     (e)  In addition to the authority and principal, any county, federal, or local government agency or body may be included as a party to the development agreement.  If more than one government body is made party to an agreement, the agreement shall specify which agency shall be responsible for the overall administration of the agreement.

     §206E-F  Enforceability; applicability.  (a)  Unless terminated pursuant to section 206E-D_or unless canceled pursuant to section 206E-G, a development agreement, and any amendment, modification, or supplement thereto, once entered into, shall be enforceable by any party thereto, or their successors in interest, notwithstanding any change in any applicable law adopted by the State or county subsequent to the execution of the original development agreement, which alter or amend the laws, ordinances, resolutions, rules, regulations, or policies specified in this part.

     (b)  All state or county laws, ordinances, resolutions, rules, regulations, and policies governing the development and use of the land that is the subject of the development agreement, including the density or intensity of use, the maximum height and size of proposed buildings, and the reserved housing requirements shall be those laws, ordinances, resolutions, rules, regulations, and policies made applicable and in force at the time of execution of the original development agreement, notwithstanding any subsequent change in any applicable law, which alter or amend the laws, ordinances, resolutions, rules, regulations, or policies specified in this part and such subsequent change shall be void as applied to property subject to a development agreement; provided that a development agreement shall not prevent a government body from requiring the principal from complying with laws, ordinances, resolutions, rules, regulations, and policies of general applicability enacted subsequent to the date of the development agreement if they could have been lawfully applied to the property which is the subject of the development agreement at the time of execution of such development agreement if the government body finds it necessary to impose the requirements because a failure to do so would place the residents of the residential project or of the immediate community, or both, in a condition perilous to the residents' health or safety, or both.

     (c)  This part shall apply to any development agreement heretofore entered into by the authority, and all laws, ordinances, resolutions, rules, regulations and policies governing development and use of the land covered by such development agreement, which were in effect as of the date of the original development agreement, shall control.  Upon the written request of the principal, the authority shall amend such agreement to conform to the provisions of this part II.

     §206E-G  Amendment or cancellation.  A development agreement may be amended or canceled, in whole or in part, by mutual consent of the parties to the agreement, or their successors in interest; provided that if the authority determines that a proposed amendment would substantially alter the original development agreement, a public hearing on the amendment shall be held by the authority before it consents to the proposed amendment.

     §206E-H  Administrative act.  Each development agreement shall be deemed an administrative act of the government body made party to the agreement.

     §206E-I  Filing or recordation.  The authority shall file or record a copy of the development agreement or an amendment to the agreement, or a short form thereof, in the office of the assistant registrar of the land court of the State of Hawaii or in the bureau of conveyances, or both, whichever is appropriate, within twenty days after the authority enters into a development agreement or an amendment to such an agreement.  The burdens of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement."

     SECTION 3.  For purposes of this Act, the Hawaii community development authority may adopt rules without regard to chapter 91.

     SECTION 4.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Hawaii Community Development Authority; Development Agreements

 

Description:

Enables the Hawaii Community Development Authority to enter into development agreements.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.