HAR §15-215-63. Historical and cultural sites

(a) [Lots] Historically or culturally significant sites or districts located in the Kalaeloa [CDD that are determined to be historically and culturally significant] community development district shall be interpreted, preserved, protected, reconstructed, rehabilitated [and] and/or restored by the landowners [consistent with] in adherence to the implementing regulations of section 106 of the National Historic Preservation Act, as amended, and chapter 6E, HRS[.], as applicable. (b) Prior to [the submittal of any] a permit application [to] being deemed complete by the authority, a developer shall [obtain a letter from SHPD which confirms that the developer has complied with all] confirm that it has complied with [all SHPD] State of Hawaiʻi Historic Preservation Division review requirements[.] and section 106 of the National Historic Preservation Act, as applicable. [A copy of such letter shall be included with the permit application.] Developers shall submit site inventories, effects determinations, mitigation commitments, and other applicable historic preservation review documentation, for review by the executive director. 215-76 (c) Permit conditions may incorporate any applicable provisions of historic preservation covenants and agreements, including but not limited to the conditioning of authority approvals for building and occupancy permits to the satisfactory compliance with such provisions, as necessary. (d) Project development, design, and operations shall comply with the terms of any historic preservation covenants attached to the property, as applicable. (e) Landowners shall take reasonable steps to ensure that historic or culturally significant properties are properly maintained and kept in good repair, consistent with the age and condition of the properties. As necessary, measures to protect historic resources shall be provided during: (1) Grounds maintenance activities, i.e., vegetative and debris removal; and (2) Construction activities. (f) The executive director may become a signatory to agreements with landowners and other stakeholders to resolve adverse impacts to historic resources. (g) ʻAha advisory council. (1) Purpose. An ʻaha advisory council shall advise the executive director and the authority on cultural resources and development in the Kalaeloa community development district. The advice is non-binding on the executive director and the authority; (2) Convening. The executive director or the authority may convene the ʻaha council on an ad-hoc or standing basis to review projects within the Kalaeloa community development district; (3) Composition. (A) Membership in the ʻaha advisory council shall include up to five cultural representatives with expertise in Hawaiian cultural issues and the Kalaeloa community development district. Any ex-officio members shall be counted separately from the five cultural representatives; 215-77 (B) When the ʻaha advisory council is conducting reviews of a specific project proposal, the developer or their designee(s) shall also serve as an ex-officio member in order to more fully understand community viewpoints on cultural issues; (C) The executive director or their designee may serve as an ex-officio member on the ʻaha advisory council; (D) A representative from the state historic preservation division may serve as an ex-officio member on the ʻaha advisory council; and (E) Members of the ʻaha advisory council shall be nominated by the authorityʻs cultural representative or the executive director and confirmed by the Authority. Cultural representatives must be validated or be recommended by a native Hawaiian serving organization; (4) Project reviews. The ʻaha advisory council shall initiate project reviews at the earliest possible opportunity, particularly in conjunction with reviews by the state historic preservation division. (A) The ʻaha advisory council may review improvement and development projects, conditional use of vacant land permits, and master plan permits; (B) ʻAha advisory council reviews may be held in coordination with design advisory board reviews; (C) The ʻaha advisory council shall provide any recommendations to the developer and to the executive director within thirty days of commencing a project review, or as pursuant to a mutually agreed-upon timeline with the developer and the executive director; (D) ʻAha advisory council recommendations on project reviews are non-binding; and (E) The lack of an ʻaha advisory council review and recommendation due to the failure to convene, render a 215-78 recommendation pursuant to section 15-215-63(g)(4)(C), or other reason shall not be a reason to withhold the issuance of a permit; (5) Fee. The applicant shall compensate the authority for all costs relating to the participation of technical consultants in the ʻaha council for project reviews. Prior to retaining technical consultants, the executive director shall consult with the applicant on their fees and work scope; provided, however, that the executive director may exercise sole discretion to accept or reject the applicant's recommendations and/or comments on the technical consultant to be retained; and (6) Other duties. The ʻaha advisory council may may work with the executive director to develop general recommendations to protect cultural resources and cultivate partnerships and strengthen collaboration with the community on cultural preservation and management issues. [Eff 10/27/12; am and comp ] (Auth: HRS §§206E7, 206E-194) (Imp: HRS §§206E-7, 206E-194) §15-215-64 [Dedication of public facilities] Public facilities dedication of land or fee. (a) Applicability. This section shall apply to any new development or improvement project, master plan, or existing development or improvement project within the Kalaeloa [CDD] community development district that increases the existing floor area by more than twenty-five per cent as compared to the floor area existing on [October 27, 2012] , or at the time the development permit or improvement permit was issued, excluding proposed demolitions, whichever is less; provided, however, that this section shall not apply to any development or improvement project undertaken by an eleemosynary organization, development or improvement project entirely for public uses, public project, floor area [related to] being 215-79 used to satisfy the requirement for reserved housing, or new buildings or structures with a floor area of less than two hundred square feet. (b) Dedication requirement. As a condition precedent to the issuance of an improvement permit or development permit, the developer shall agree to dedicate land or an in-lieu fee amount for public facilities. The dedication of land or in-lieu fee for public facilities shall be subject to the maximum ceiling in land or [money in lieu thereof] fee calculated in accordance with the formula designated in subsections (d) to (f) herein. Future reductions in floor area for an approved project does not retroactively reduce the required dedication credits previously approved by the Board. (c) In-lieu fee payments. As an alternative to the land dedication requirement of section 15- 215---64(b), an in-lieu fee payment may be authorized as follows: (1) For improvement permit applications, the executive director or authority, as applicable, may authorize a developer to pay an in-lieu fee equal to the value of land which would otherwise have had to be dedicated, or combine the payment of fee with land to be dedicated. The total value of such combination shall be not less than the value of land which would otherwise have had to be dedicated; and (2) For development permit applications, the authority may authorize a developer to pay a fee equal to the value of land which would otherwise have had to be dedicated, or to combine the payment of fee with land to be dedicated. The total value of such combination shall [be] not be less than the value of land which would otherwise have had to be dedicated. (d) Minimum dedication requirements. Land dedication requirements are: (1) Three per cent of the total commercial or industrial floor area; (2) Four per cent of the total residential floor area exclusive of floor area devoted to reserved housing units and their associated 215-80 common areas in proportion with the floor area of other uses; and (3) If the area of land approved for dedication is less than the land area required under subsection (d)(1) and (2) above, the developer shall be required to pay a fee equal to the fair market value of the land area which is the difference between the land area dedicated and the land area required under subsection (d)(1) and (2) above. (e) Payment timing and use of funds: (1) Authorized in-lieu fees shall be payable prior to [the issuance of the initial certificate of occupancy] the authority sign-off on any building or grading permit and secured by the developer with a financial guaranty bond from a surety company authorized to do business in Hawaii, an acceptable construction set-aside letter, or other acceptable means prior to the issuance of the initial building permit; and (2) Payment of fees shall be made to the authority for deposit in the authority’s revolving fund established under section 206E-195, HRS. (f) Valuation methodology. Valuation of land when authorized in-lieu fees are to be paid shall be determined as follows: (1) Valuation shall be based upon the fair market value of the land as though vacant and unimproved on the date the developer’s application for an improvement permit or development permit is deemed complete pursuant to section 15-215-83 (completeness review)[,]; or as agreed to by the developer and the executive director if an improvement permit, or the developer and authority if a development permit[; and] or improvement permit on authority-owned land; (2) In the event that a fair market value cannot be agreed on, the fair market value of the land as though vacant and unimproved shall be fixed and established by majority vote of three real estate appraisers whose decision 215-81 shall be final, conclusive, and binding; one shall be appointed by the developer, one appointed by the executive director in the case of improvement permits or the authority in the case of development permits[,] and improvement permits on authority-owned land, and the third shall be appointed by the first two appraisers. (3) In the event a party shall fail to appoint an appraiser within ten days following the appointment of the first appraiser, the party who appointed the first appraiser may apply to the person sitting as the administrative judge of the circuit court of the first circuit of Hawaii, if any, or if none, to any judge in service of said court, for the appointment of the second appraiser; provided, however, that if the developer is the party who has failed to appoint an appraiser within ten days following the executive director's or authority's appointment of the first appraiser, the executive director or authority, as the case may be, may deny the developer's request to pay a monetary fee in lieu of dedicating land. (4) [The two appraisers shall appoint a third appraiser, and in case of their failure to do so] If the first two appointed appraisers fail to appoint a third appraiser within ten days after appointment of the second appraiser, either party may apply to the person sitting as the administrative judge of the circuit court of the first circuit of Hawaii, if any, or if none, to any judge in service of said court, for the appointment of the third appraiser. (5) The appraisers shall determine the fair market value of the land as though vacant and unimproved on the date the developer's application for an improvement permit or development permit is deemed complete pursuant to section 15-215-83 (completeness review). 215-82 (6) All appraisers shall have had a minimum of five years of training and experience in real estate appraisal work in the state of Hawaii. The appraisers shall be governed in their determination by the provisions of chapter 658A, HRS. (7) The fees and costs of each appraiser and all other appraisal costs shall, with exception of each party's attorneys' fees and costs and witnesses' fees, [shall] be borne equally by both parties. (g) Dedication instrument. For land dedication pursuant to this section, the developer shall record the necessary conveyance instrument, free and clear of all encumbrances, in the bureau of conveyances, state of Hawaii, and shall file copies of the recorded conveyance instrument with the authority. The authority may require the developer to maintain the dedicated area until such time that notice is given by the authority to accept ownership and control of the area. (h) Relationship to existing or future improvement districts. Nothing contained in this section shall preclude the creation of any improvement district for public facilities, or the imposition of assessments against properties specially benefited within the district. [Eff 10/27/12; am and comp ] (Auth: HRS §§206E-7, 206E-12) (Imp: HRS §§206E-7, 206E-12) [