HHF ISSUES ACTION ALERT

Urges testimony to address issues with HB2434

On March 10, 2010, Historic Hawai‘i Foundation issued an action alert for a bill being considered by the state legislature that could undermine the basic protections for historic properties in Hawai‘i. Historic Hawai‘i Foundation opposes the measure and has asked for amendments. Please provide testimony or contact your Senators to ask them to amend HB2434 to close a loophole that could otherwise cause unintended consequences that would be devastating to historic and cultural resources of Hawai‘i.

HB2434 would amend the section of state law (HRS 6E-42) that provides for the review and comment on any project that could affect a historic structure, site, burial or aviation artifact. The bill would mandate that once the State Historic Preservation Division (SHPD) has provided one approval of a proposed project—whether by affirming a determination of no effect on historic properties or through inaction—subsequent reviews would not be allowed. HHF finds this section of the bill most concerning as written, but suggests that an amendment could easily resolve the issue by adding language to clarify that “projects” refers to each distinct application for approval, entitlement or funding, and not to a single sweeping approval of any and all development activity that may ever occur on a particular piece of property, even if the project changes or as more information is known.

A hearing in the Senate has been scheduled for Friday, March 12 at 1:15 p.m., in Conference Room 224 at the Capitol.

Testimony may be submitted 24 hours in advance and directions can be found in the hearing notice, found here: http://www.capitol.hawaii.gov/session2010/hearingnotices/HEARING_WTL-TIA_03-12-10_.HTM

The text of the bill can be found at: http://www.capitol.hawaii.gov/session2010/Bills/HB2434_HD2_.pdf

HHF is requesting two amendments to the bill: to clarify that "projects" refers to each distinct approval rather than all phases of a development undertaking; and to add qualifications for third-party reviewers of historic properties.

The full text of HHF’s testimony is:
TO: Senator Clayton Hee, Chair
Senator Jill N. Tokuda, Vice Chair
Committee on Water, Land, Agriculture and Hawaiian Affairs
Senator J. Kalani English, Chair
Senator Mike Gabbard, Vice Chair
Committee on Transportation, International and Intergovernmental Affairs

FROM: Kiersten Faulkner, Executive Director
Historic Hawaii Foundation
Committee: Friday, March 12, 2010
1:15 p.m.
Conference Room 224

RE: HB2434, HD2 Relating to Permit, License, and Approval Application Processing.

On behalf of Historic Hawaii Foundation (HHF), I am writing in opposition to HB2434, HD2, unless amended. HB2434 HD2 authorizes third-party review of applications; establishes maximum time periods for designated agencies to process permits and other applications before they are deemed granted if not acted upon; and eliminates subsequent reviews by the state historic preservation division (SHPD).

HB2434, HD2, Section 3 would amend HRS §6E-42, which relates to the review process and timelines for “projects” that have potential effects on historic properties. “Project” is defined in HRS §6E-2 as “any activity directly undertaken by the State or its political subdivisions or supported in whole or in part through appropriations, contracts, grants, subsidies, loans, or other forms of funding assistance from the State or its political subdivisions or involving any lease, permit, license, certificate, land use change, or other entitlement for use issued by the State or its political subdivisions.”

The bill would mandate that once SHPD has provided one approval of a proposed project—whether by affirming a determination of no effect on historic properties or through inaction—subsequent reviews would not be allowed.

Historic Hawaii Foundation finds this section of the bill most concerning as written, but suggests that an amendment could resolve the issue by adding language to clarify that “projects” refers to each distinct application for approval, entitlement or funding, and not to a single sweeping approval of any and all development activity that may ever occur on a particular piece of property. This would close a loophole that could otherwise cause unintended consequences that would be devastating to historic and cultural resources of Hawai‘i.

The professional staff of the historic preservation division has been steadily eroded over the past several years. Currently, there are three archeologists, one preservation architect and one architectural historian to provide all project reviews for the entire state, include federal undertakings. The division has lost clerical and support positions, as well as approvals for contracting for additional staff. The lack of funding, staffing and support for the division makes it difficult for it to meet its mandates for high quality and timely review of projects. This leads to frustration by those seeking approvals, as well as by those whose priority is the protection of the state’s historic and cultural resources.

The bill attempts to address this impasse by setting a maximum number of reviews and a maximum number of days for those reviews. While the intent may be to provide greater timeliness and certainty to developers, it will come at the expense of protections for historic sites and cultural resources. The absolute deadline on taking action could also lead to a quick denial of projects rather than a slower and more thoughtful approval, simply in an attempt to meet the deadlines. The state’s historic and cultural resources should not be penalized by removing protections at the local or the state level.

The provision limiting the number of SHPD reviews per undertaking disregards the reality that developments have multiple phases of design and construction and there is a need to check-in at key points, especially if the undertaking changes. In most development undertakings, there is a continuum of due diligence, planning, entitlements, design and construction. It is rare that all possible effects on historic properties are known at each stage of the development and design process. For example, the area of potential effect for historic sites is less defined at the time of a land use change or subdivision than it is at the time of construction. The certainty and specificity of SHPD’s review is directly proportionate to the level of information provided to it, which can and does change as undertakings evolve.

For example, while SHPD may determine that no historic properties are affected by a simple change in entitlements, that same undertaking could very well have an effect at the time of site planning and construction. This is especially true when the historic properties are unknown (such as from sub-surface archeological sites or native Hawaiian burials), undocumented (such as cultural landscapes or traditional cultural properties), when the project takes many years from concept to execution (in which time structures may become eligible for the historic register by virtue of increasing age or significance), or when the scope and scale of the undertaking changes. It is also a rare development that does not change in its details from the time of concept, to schematic design, to design development, to construction. At any of these stages, a historic property that was not previously anticipated to be affected could become at risk. Therefore, an earlier determination of no adverse effect may not hold true when the undertaking becomes more specific and more information is provided, and vice versa.

HB2434 HD2 Section 2 provides for third party reviewers to certify that proposals are in compliance with applicable codes and standards. HHF requests that this section be amended to require that any architects, engineers or other third parties that review an application for a permit, license or approval for a project that affects historic properties meet the education and experience standards and qualifications for preservation professionals as defined by the Secretary of the Interior’s Standards. This will help ensure that reviewers are qualified to make the determinations entrusted to them when making decisions that impact the historic and cultural resources of the Islands and refers to industry standards in federal statute.

In establishing appropriate rules and procedures related to integrating protection of historic properties with contemporary uses, there are many good models that allow for a more systematic and predictable approach, including the use of Certified Local Governments with local preservation ordinances; programmatic agreements; and preservation planning. These methods should be explored for additional ways to address both real and perceived conflicts in a way that is thoughtful and deliberate, without sacrificing the historic resources of the state in the process. HHF encourages the legislature, DLNR and the counties to initiate any of these pro-active ways to address ways in which protection of Hawai‘i’s historic resources and meeting contemporary needs can both be met in harmony.

Thank you for the opportunity to comment and for your consideration of these suggested amendments to the bill.