| 1 | 1 | | THE SENATE S.B. NO. 766 THIRTY-SECOND LEGISLATURE, 2023 S.D. 1 STATE OF HAWAII A BILL FOR AN ACT RELATING TO AFFORDABLE HOUSING. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: |
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| 3 | 3 | | THE SENATE S.B. NO. 766 |
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| 4 | 4 | | THIRTY-SECOND LEGISLATURE, 2023 S.D. 1 |
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| 5 | 5 | | STATE OF HAWAII |
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| 7 | 7 | | THE SENATE |
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| 9 | 9 | | S.B. NO. |
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| 11 | 11 | | 766 |
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| 13 | 13 | | THIRTY-SECOND LEGISLATURE, 2023 |
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| 15 | 15 | | S.D. 1 |
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| 17 | 17 | | STATE OF HAWAII |
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| 31 | 31 | | A BILL FOR AN ACT |
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| 37 | 37 | | RELATING TO AFFORDABLE HOUSING. |
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| 43 | 43 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: |
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| 47 | 47 | | SECTION 1. The legislature finds that the cost and availability of housing in the State are significant challenges facing Hawaii residents. According to the department of business, economic development, and tourism's December 2019 report titled Hawaii Housing Demand: 2022-2030, the department projects that an additional 36,155 residential housing units need to be developed between 2020 and 2030, not including units under construction or already in the permitting process, to provide housing for all of Hawaii's population. Although there is a severe need for development, considerations need to be made to preserve and protect the unique cultural history of the State. The legislature also finds that under article IX, section 7, of the Hawaii state constitution, the State recognizes the value of conserving and developing the historic and cultural property within the State for the public good, and the legislature has declared that it is in the public interest to engage in a comprehensive program of historic preservation at all levels of government to promote the use and conservation of such property for the education, inspiration, pleasure, and enrichment of its citizens. Thus, the department of land and natural resources' state historic preservation division was established to preserve and protect historically significant districts, sites, objects, structures, and buildings integral to Hawaii's history. Under existing statutes, prior to issuing any permit or land use approval for any project that affects a historic property, state and local jurisdictions must refer the matter to the state historic preservation division for review and comment, and for public projects, written concurrence is required before proceeding. However, the legislature finds that due to the current demand for the construction of affordable housing and other critical infrastructure, the state historic preservation division consistently receives more reports than they have time to review. According to a department of labor and natural resources report to the legislature in December 2021, "there are currently approximately 725 open unique projects..." under state historic preservation division review, with an anticipated six-month to one year backlog. The legislature further finds that allowing the state historic preservation division to engage with third party contractors could help expedite the review process so that more affordable housing units can be produced in a timely manner. Delegating review responsibilities will reduce the state historic preservation division's intake load and allow the division to focus on core historical review priorities. The purpose of this Act is to: (1) Require the department of land and natural resources, through the state historic preservation division, to contract its review of proposed state projects and projects affecting historic properties to third party consultants if: (A) The projects involve the development of affordable housing; (B) The department will not be able to complete its review within sixty days; (C) The third party contractor is qualified; and (D) The contract with the third party requires that a recommendation be made within thirty days of the filing of the request with the department; and (2) Appropriate funds that enable the state historic preservation division to provide for the recruitment and retention of qualified archaeologists to expedite review of proposed state affordable housing projects and affordable housing projects affecting historic properties. SECTION 2. Section 6E-8, Hawaii Revised Statutes, is amended to read as follows: "§6E-8 Review of effect of proposed state projects. (a) Before any agency or officer of the State or its political subdivisions commences any project [which] that may affect historic property, aviation artifact, or a burial site, the agency or officer shall advise the department and allow the department an opportunity for review of the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, especially those listed on the Hawaii register of historic places. The proposed project shall not be commenced, or if it has already begun, continued, until the department has given its written concurrence. If: (1) The proposed project consists of corridors or large land areas; (2) Access to properties is restricted; or (3) Circumstances dictate that construction be done in stages, the department may give its written concurrence based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase. The department shall provide written concurrence or non-concurrence within ninety days after the filing of a request with the department. The agency or officer seeking to proceed with the project, or any person, may appeal the department's concurrence or non-concurrence to the Hawaii historic places review board. An agency, officer, or other person who is dissatisfied with the decision of the review board may apply to the governor, who may take action as the governor deems best in overruling or sustaining the department. (b) The department of Hawaiian home lands, prior to any proposed project relating to lands under its jurisdiction, shall consult with the department regarding the effect of the project upon historic property or a burial site. (c) The State, its political subdivisions, agencies, and officers shall report to the department the finding of any historic property during any project and shall cooperate with the department in the investigation, recording, preservation, and salvage of the property. (d) Whenever the proposed state project involves a development intended as affordable housing, as that term is defined under section 201H-57, the department shall retain a third party consultant to conduct the review described under subsection (a) if, after an initial evaluation, the department determines that: (1) The department will not be able to provide its written concurrence or non-concurrence within sixty days of the filing of the request with the department; (2) The third party consultant has the qualifications and experience to conduct the review pursuant to subsection (e); and (3) The contract with the third party consultant requires the third party consultant to provide a recommendation to the department within thirty days of the filing of the request with the department. (e) Whenever the department retains any third party consultant pursuant to subsection (d), including an architect, engineer, archaeologist, planner, or other, to review an application for a permit, license, or approval, the third party shall meet the educational and experiences standards as well as the qualifications for preservation professionals as determined by the state historic preservation division rules. (f) The project proponent shall pay for the reasonable fee requirements of the third party consultant; provided that the project proponent may contract with or sponsor any county, housing authority, non-profit organization, or person, to meet the fee requirements. [(d)] (g) The department shall adopt rules in accordance with chapter 91 to implement this section." SECTION 3. Section 6E-42, Hawaii Revised Statutes, is amended to read as follows: "§6E-42 Review of proposed projects. (a) Except as provided in section 6E-42.2, before any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use[, which] that may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise the department and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places. If: (1) The proposed project consists of corridors or large land areas; (2) Access to properties is restricted; or (3) Circumstances dictate that construction be done in stages, the department's review and comment may be based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase. (b) The department shall inform the public of any project proposals submitted to it under this section that are not otherwise subject to the requirement of a public hearing or other public notification. (c) Whenever the project involves a development intended as affordable housing, as that term is defined under section 201H‑57, the department shall retain a third party consultant to conduct the review and comment described under subsection (a) if, after an initial evaluation, the department determines that: (1) The department will not be able to provide its review and comment within sixty days of being advised pursuant to subsection (a); (2) The third party consultant has the qualifications and experience to conduct the review required by subsection (d); and (3) The third party consultant will contract to provide a recommendation to the department within thirty days of being advised pursuant to subsection (a). (d) Whenever the department retains any third party, including any architect, engineer, archaeologist, planner, or other, to review an application for a permit, license, or approval under subsection (c), the third party shall meet the educational and experiences standards as well as the qualifications for preservation professionals pursuant to rules adopted by the state historic preservation division. (e) The project proponent shall pay for the reasonable fee requirements of the third party consultant; provided that the project proponent may contract with or sponsor any county, housing authority, non-profit organization, or person, to meet the fee requirements. [(c)] (f) The department shall adopt rules in accordance with chapter 91 to implement this section." SECTION 4. The department shall publish on its website adopted rules implementing sections 2 and 3 of this Act, within one year from the effective date of this Act. Thereafter, the department shall, within one year, present its proposed final rules to the board of land and natural resources. SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 for the state historic preservation division's recruitment and retention of qualified archaeologists. The sums appropriated shall be expended by the department of land and natural resources for the purposes of this Act. SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 8. This Act shall take effect on July 1, 2023; provided that sections 2 and 3 of this Act shall take effect on July 1, 2025. |
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| 49 | 49 | | SECTION 1. The legislature finds that the cost and availability of housing in the State are significant challenges facing Hawaii residents. According to the department of business, economic development, and tourism's December 2019 report titled Hawaii Housing Demand: 2022-2030, the department projects that an additional 36,155 residential housing units need to be developed between 2020 and 2030, not including units under construction or already in the permitting process, to provide housing for all of Hawaii's population. Although there is a severe need for development, considerations need to be made to preserve and protect the unique cultural history of the State. |
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| 50 | 50 | | |
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| 51 | 51 | | The legislature also finds that under article IX, section 7, of the Hawaii state constitution, the State recognizes the value of conserving and developing the historic and cultural property within the State for the public good, and the legislature has declared that it is in the public interest to engage in a comprehensive program of historic preservation at all levels of government to promote the use and conservation of such property for the education, inspiration, pleasure, and enrichment of its citizens. Thus, the department of land and natural resources' state historic preservation division was established to preserve and protect historically significant districts, sites, objects, structures, and buildings integral to Hawaii's history. Under existing statutes, prior to issuing any permit or land use approval for any project that affects a historic property, state and local jurisdictions must refer the matter to the state historic preservation division for review and comment, and for public projects, written concurrence is required before proceeding. |
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| 52 | 52 | | |
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| 53 | 53 | | However, the legislature finds that due to the current demand for the construction of affordable housing and other critical infrastructure, the state historic preservation division consistently receives more reports than they have time to review. According to a department of labor and natural resources report to the legislature in December 2021, "there are currently approximately 725 open unique projects..." under state historic preservation division review, with an anticipated six-month to one year backlog. |
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| 54 | 54 | | |
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| 55 | 55 | | The legislature further finds that allowing the state historic preservation division to engage with third party contractors could help expedite the review process so that more affordable housing units can be produced in a timely manner. Delegating review responsibilities will reduce the state historic preservation division's intake load and allow the division to focus on core historical review priorities. |
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| 56 | 56 | | |
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| 57 | 57 | | The purpose of this Act is to: |
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| 58 | 58 | | |
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| 59 | 59 | | (1) Require the department of land and natural resources, through the state historic preservation division, to contract its review of proposed state projects and projects affecting historic properties to third party consultants if: |
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| 60 | 60 | | |
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| 61 | 61 | | (A) The projects involve the development of affordable housing; |
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| 62 | 62 | | |
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| 63 | 63 | | (B) The department will not be able to complete its review within sixty days; |
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| 64 | 64 | | |
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| 65 | 65 | | (C) The third party contractor is qualified; and |
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| 66 | 66 | | |
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| 67 | 67 | | (D) The contract with the third party requires that a recommendation be made within thirty days of the filing of the request with the department; and |
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| 68 | 68 | | |
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| 69 | 69 | | (2) Appropriate funds that enable the state historic preservation division to provide for the recruitment and retention of qualified archaeologists to expedite review of proposed state affordable housing projects and affordable housing projects affecting historic properties. |
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| 70 | 70 | | |
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| 71 | 71 | | SECTION 2. Section 6E-8, Hawaii Revised Statutes, is amended to read as follows: |
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| 72 | 72 | | |
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| 73 | 73 | | "§6E-8 Review of effect of proposed state projects. (a) Before any agency or officer of the State or its political subdivisions commences any project [which] that may affect historic property, aviation artifact, or a burial site, the agency or officer shall advise the department and allow the department an opportunity for review of the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, especially those listed on the Hawaii register of historic places. The proposed project shall not be commenced, or if it has already begun, continued, until the department has given its written concurrence. If: |
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| 74 | 74 | | |
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| 75 | 75 | | (1) The proposed project consists of corridors or large land areas; |
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| 76 | 76 | | |
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| 77 | 77 | | (2) Access to properties is restricted; or |
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| 79 | 79 | | (3) Circumstances dictate that construction be done in stages, |
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| 80 | 80 | | |
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| 81 | 81 | | the department may give its written concurrence based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase. |
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| 82 | 82 | | |
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| 83 | 83 | | The department shall provide written concurrence or non-concurrence within ninety days after the filing of a request with the department. The agency or officer seeking to proceed with the project, or any person, may appeal the department's concurrence or non-concurrence to the Hawaii historic places review board. An agency, officer, or other person who is dissatisfied with the decision of the review board may apply to the governor, who may take action as the governor deems best in overruling or sustaining the department. |
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| 84 | 84 | | |
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| 85 | 85 | | (b) The department of Hawaiian home lands, prior to any proposed project relating to lands under its jurisdiction, shall consult with the department regarding the effect of the project upon historic property or a burial site. |
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| 86 | 86 | | |
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| 87 | 87 | | (c) The State, its political subdivisions, agencies, and officers shall report to the department the finding of any historic property during any project and shall cooperate with the department in the investigation, recording, preservation, and salvage of the property. |
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| 88 | 88 | | |
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| 89 | 89 | | (d) Whenever the proposed state project involves a development intended as affordable housing, as that term is defined under section 201H-57, the department shall retain a third party consultant to conduct the review described under subsection (a) if, after an initial evaluation, the department determines that: |
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| 90 | 90 | | |
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| 91 | 91 | | (1) The department will not be able to provide its written concurrence or non-concurrence within sixty days of the filing of the request with the department; |
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| 92 | 92 | | |
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| 93 | 93 | | (2) The third party consultant has the qualifications and experience to conduct the review pursuant to subsection (e); and |
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| 94 | 94 | | |
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| 95 | 95 | | (3) The contract with the third party consultant requires the third party consultant to provide a recommendation to the department within thirty days of the filing of the request with the department. |
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| 96 | 96 | | |
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| 97 | 97 | | (e) Whenever the department retains any third party consultant pursuant to subsection (d), including an architect, engineer, archaeologist, planner, or other, to review an application for a permit, license, or approval, the third party shall meet the educational and experiences standards as well as the qualifications for preservation professionals as determined by the state historic preservation division rules. |
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| 98 | 98 | | |
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| 99 | 99 | | (f) The project proponent shall pay for the reasonable fee requirements of the third party consultant; provided that the project proponent may contract with or sponsor any county, housing authority, non-profit organization, or person, to meet the fee requirements. |
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| 100 | 100 | | |
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| 101 | 101 | | [(d)] (g) The department shall adopt rules in accordance with chapter 91 to implement this section." |
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| 102 | 102 | | |
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| 103 | 103 | | SECTION 3. Section 6E-42, Hawaii Revised Statutes, is amended to read as follows: |
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| 104 | 104 | | |
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| 105 | 105 | | "§6E-42 Review of proposed projects. (a) Except as provided in section 6E-42.2, before any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use[, which] that may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise the department and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places. If: |
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| 106 | 106 | | |
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| 107 | 107 | | (1) The proposed project consists of corridors or large land areas; |
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| 108 | 108 | | |
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| 109 | 109 | | (2) Access to properties is restricted; or |
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| 110 | 110 | | |
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| 111 | 111 | | (3) Circumstances dictate that construction be done in stages, |
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| 112 | 112 | | |
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| 113 | 113 | | the department's review and comment may be based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase. |
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| 114 | 114 | | |
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| 115 | 115 | | (b) The department shall inform the public of any project proposals submitted to it under this section that are not otherwise subject to the requirement of a public hearing or other public notification. |
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| 116 | 116 | | |
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| 117 | 117 | | (c) Whenever the project involves a development intended as affordable housing, as that term is defined under section 201H‑57, the department shall retain a third party consultant to conduct the review and comment described under subsection (a) if, after an initial evaluation, the department determines that: |
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| 118 | 118 | | |
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| 119 | 119 | | (1) The department will not be able to provide its review and comment within sixty days of being advised pursuant to subsection (a); |
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| 120 | 120 | | |
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| 121 | 121 | | (2) The third party consultant has the qualifications and experience to conduct the review required by subsection (d); and |
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| 122 | 122 | | |
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| 123 | 123 | | (3) The third party consultant will contract to provide a recommendation to the department within thirty days of being advised pursuant to subsection (a). |
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| 124 | 124 | | |
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| 125 | 125 | | (d) Whenever the department retains any third party, including any architect, engineer, archaeologist, planner, or other, to review an application for a permit, license, or approval under subsection (c), the third party shall meet the educational and experiences standards as well as the qualifications for preservation professionals pursuant to rules adopted by the state historic preservation division. |
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| 126 | 126 | | |
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| 127 | 127 | | (e) The project proponent shall pay for the reasonable fee requirements of the third party consultant; provided that the project proponent may contract with or sponsor any county, housing authority, non-profit organization, or person, to meet the fee requirements. |
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| 128 | 128 | | |
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| 129 | 129 | | [(c)] (f) The department shall adopt rules in accordance with chapter 91 to implement this section." |
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| 130 | 130 | | |
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| 131 | 131 | | SECTION 4. The department shall publish on its website adopted rules implementing sections 2 and 3 of this Act, within one year from the effective date of this Act. Thereafter, the department shall, within one year, present its proposed final rules to the board of land and natural resources. |
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| 132 | 132 | | |
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| 133 | 133 | | SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 for the state historic preservation division's recruitment and retention of qualified archaeologists. |
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| 134 | 134 | | |
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| 135 | 135 | | The sums appropriated shall be expended by the department of land and natural resources for the purposes of this Act. |
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| 136 | 136 | | |
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| 137 | 137 | | SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. |
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| 138 | 138 | | |
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| 139 | 139 | | SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. |
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| 140 | 140 | | |
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| 141 | 141 | | SECTION 8. This Act shall take effect on July 1, 2023; provided that sections 2 and 3 of this Act shall take effect on July 1, 2025. |
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| 142 | 142 | | |
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| 143 | 143 | | Report Title: Department of Land and Natural Resources; State Historic Preservation Division; Affordable Housing; Third Party Consultants; Appropriation Description: Beginning 7/1/2025, requires the Department of Land and Natural Resources State Historic Preservation Division to contract its review of proposed state projects, and projects affecting historic properties to third party consultants if the projects involve the development of affordable housing and the division, after an initial evaluation, determines it will not be able to complete its review within sixty days. Establishes requirements for qualified third parties providing review services. Requires the project proponent to pay for the reasonable fee requirements of the third party consultant. Allows the project proponent to contract or sponsor with any county, housing authority, non-profit organization, or person, to meet the third party fee requirement. Requires the Department to publish a draft of its proposed rules within one year and within one year thereafter, present its proposed final rules to the Board of Land and Natural Resources. (SD1) The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. |
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| 146 | 146 | | |
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| 147 | 147 | | |
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| 148 | 148 | | |
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| 149 | 149 | | Report Title: |
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| 150 | 150 | | |
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| 151 | 151 | | Department of Land and Natural Resources; State Historic Preservation Division; Affordable Housing; Third Party Consultants; Appropriation |
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| 152 | 152 | | |
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| 153 | 153 | | |
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| 154 | 154 | | |
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| 155 | 155 | | Description: |
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| 156 | 156 | | |
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| 157 | 157 | | Beginning 7/1/2025, requires the Department of Land and Natural Resources State Historic Preservation Division to contract its review of proposed state projects, and projects affecting historic properties to third party consultants if the projects involve the development of affordable housing and the division, after an initial evaluation, determines it will not be able to complete its review within sixty days. Establishes requirements for qualified third parties providing review services. Requires the project proponent to pay for the reasonable fee requirements of the third party consultant. Allows the project proponent to contract or sponsor with any county, housing authority, non-profit organization, or person, to meet the third party fee requirement. Requires the Department to publish a draft of its proposed rules within one year and within one year thereafter, present its proposed final rules to the Board of Land and Natural Resources. (SD1) |
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| 159 | 159 | | |
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| 161 | 161 | | |
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| 162 | 162 | | |
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| 163 | 163 | | |
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| 164 | 164 | | |
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| 165 | 165 | | The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. |
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