Real Estate & Property Law

Butterfly Effects and Environmental Impact Statements

By rht

The Honolulu Advertiser reports that the Chamber of Commerce of Hawaii is advocating in favor of a bill limiting the "use" of a state or county road as a trigger to chapter 343 environmental review:   

The state Department of Transportation, responding to two previous Supreme Court rulings, asked the state Environmental Council early last year to generally exempt the private construction of driveways or the installation of utilities within state road right-of-ways from environmental assessments. The Supreme Court, in a 1997 decision involving the Kahana Sunset project on Maui and in a 2006 decision on the Koa Ridge project in Waiawa, found that projects that touch state road right-of-ways technically use state lands and trigger potential environmental assessments.

Section 343-5, as interpreted by the Hawaii Supreme Court, requires an agency to undertake an environmental assessment if an applicant's project (broadly construed to include both the specific proposal and, as in the Superferry case, the "secondary impacts" of the project) proposes the "use of state lands." 

The "Koa Ridge" case mentioned in the article is Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006), which I discussed in this post.  In that case, the court noted its earlier decisions determining that the "use of state lands" trigger was to be taken both literally and liberally.  "Use of state lands" thus includes construction of two underpasses under a state highway, Citizens for Prot. of N. Kohala Coastline v. County of Hawaii , 91 Haw. 94, 979 P.2d 1120 (1999), and the placement of a drainage system under state land that was part of a larger project.  Kahana Sunset Owners Ass'n v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997).

Full post as published by inversecondemnation on January 25, 2008 (boomark / email).