REPORT TITLE:
Kaneohe Bay; Private Piers


DESCRIPTION:
Requires any unpermitted pier in Kaneohe Bay existing in whatever
form on the effective date of this Act to be considered a
nonconforming use, and allows the same to continue although the
use does not conform to the laws relating to the management and
disposition of public lands and the conservation district.
Eliminates the requirement that all sunbathing and swimming piers
built on submerged lands have signs placed on them indicating the
public's right to use the pier.  Includes private residential
noncommercial piers as items not requiring prior legislative and
governor approval on easement dispositions.  (HB1711 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1711
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO KANEOHE BAY.



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

 1      SECTION 1.  The legislature has determined that the State
 
 2 has an interest in regulating submerged lands to protect and
 
 3 preserve the environment and ecosystem that exists there.  There
 
 4 are more than two hundred piers on state submerged land in the
 
 5 Kaneohe and Kahaluu area, of which only approximately twenty are
 
 6 paying rent to the state.
 
 7      Many piers in the affected area were built prior to October
 
 8 1, 1964, the effective date of the first regulatory measures
 
 9 concerning piers.  Other piers built after this date were built
 
10 in compliance with other regulations that were in effect at the
 
11 time of construction.  Piers constructed before October 1, 1964,
 
12 and those built subsequent to that date in compliance with
 
13 regulations adopted after that date are nonconforming uses
 
14 pursuant to section 183C-5, Hawaii Revised Statutes, and the
 
15 legislature has previously stated that no rules may be adopted,
 
16 which shall prohibit the continued use of such structures.
 
17      Some piers, however, were built without complying with any
 
18 permitting requirements whether at the time of construction or
 
19 any time thereafter.  These piers are illegal.  The legislature
 

 
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 1 finds, however, that official records that would help to identify
 
 2 nonconforming piers and illegal piers are scattered among various
 
 3 state and federal departments and agencies or have been
 
 4 destroyed.  
 
 5      The legislature finds that pier owners have overwhelmingly
 
 6 expressed their desire to pay a reasonable amount to the State
 
 7 for their continued use of submerged lands.  The legislative
 
 8 auditor has previously found that the cost to account for monthly
 
 9 rent for piers has exceeded the revenues realized to the State.
 
10      The legislature finds that the State has already sold more
 
11 than fifty easements for the use of submerged lands, many of
 
12 which are for piers in the same area.  The legislature finds that
 
13 the issuance of easements for a period of not less than fifty-
 
14 five years, pursuant to section 171-36(a)(2), Hawaii Revised
 
15 Statutes, would result in a substantial return to the State while
 
16 significantly reducing the accounting costs to the State as
 
17 provided in sections 171-13 and 190D-21, Hawaii Revised Statutes.
 
18      Lessees of state land are required pursuant to chapter 171,
 
19 Hawaii Revised Statutes, to indemnify the State against
 
20 liability.  Section 171-36(a)(9), Hawaii Revised Statutes, as now
 
21 constructed, requires lessees to open their piers to the public
 
22 at large.  This provision creates a problem for pier lessees
 
23 because it makes obtaining liability insurance prohibitively
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 expensive and difficult to obtain and moreover interferes with
 
 2 pier owners' ability to maintain their structures and implied
 
 3 right to quiet enjoyment.  The legislature, therefore, finds that
 
 4 repealing this requirement as to noncommercial residential piers
 
 5 is in the best interests of the state.
 
 6      The purpose of this Act is to protect the piers in the
 
 7 Kaneohe and Kahaluu area by:
 
 8      (1)  Requiring any unpermitted pier in Kaneohe Bay existing
 
 9           in whatever form on the effective date of this Act to
 
10           be considered a nonconforming use, and allowing the
 
11           pier to continue although the use does not conform to
 
12           the laws relating to the management and disposition of
 
13           public lands and the conservation district;
 
14      (2)  Eliminating the requirement in section 171-36(a)(9),
 
15           Hawaii Revised Statutes, that lessees open their piers
 
16           to the public at large; and
 
17      (3)  Expediting the issuance of easements for piers by
 
18           including private residential noncommercial piers as
 
19           items not requiring prior legislative and governor
 
20           approval on easement dispositions.
 
21      SECTION 2.  Chapter 200, Hawaii Revised Statutes, is amended
 
22 by adding a new section to be appropriately designated and to
 
23 read as follows:
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      "§200-     Kaneohe Bay; private piers.  (a)  For the
 
 2 purposes of this section only:
 
 3      "COLREG" refers to the International Regulations for
 
 4 Preventing Collisions at Sea, 1972.
 
 5      "Kaneohe Bay" means the area encompassed by the shoreline
 
 6 and the COLREG Demarcation Line, as indicated on National Oceanic
 
 7 and Atmospheric Administration map no. 19359, on the effective
 
 8 date of this Act.
 
 9      "Pier" means any covered or uncovered, enclosed or
 
10 unenclosed, deck, dock, platform, ramp, seawall, staircase, or
 
11 boat house that is used at least part of the time as a pier,
 
12 whether floating or built on submerged lands or the shoreline,
 
13 regardless of its width, height, length, construction material,
 
14 abutment to permitted land-based structures, or state of
 
15 disrepair.
 
16      "Shoreline" has the same meaning as defined in section
 
17 205A-1.
 
18      (b)  Any unpermitted pier in Kaneohe Bay existing in
 
19 whatever form on the effective date of this Act shall be
 
20 considered a nonconforming use and may be continued although the
 
21 use does not conform to chapters 171 and 183C; provided that:
 
22      (1)  The unpermitted pier may not be replaced,
 
23           reconstructed, or expanded or changed to another
 
24           nonconforming use;
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (2)  If the use of the unpermitted pier is discontinued or
 
 2           held in abeyance for a period of one year, the further
 
 3           continuation of the nonconforming use shall be
 
 4           prohibited;
 
 5      (3)  The unpermitted pier shall be considered the private
 
 6           property of its owner, and not the property of the
 
 7           State or public property; and
 
 8      (4)  Any claim for personal damages or property damages
 
 9           resulting from the unpermitted pier shall be the sole
 
10           responsibility of its owner, and not the responsibility
 
11           of the State or the county.
 
12      (d)  The department shall adopt rules in accordance with
 
13 chapter 91 to carry out the purposes of this section."
 
14      SECTION 3.  Section 171-36, Hawaii Revised Statutes, is
 
15 amended by amending subsection (a) to read as follows:
 
16      "(a)  Except as otherwise provided, the following
 
17 restrictions shall apply to all leases:
 
18      (1)  Options for renewal of terms are prohibited;
 
19      (2)  No lease shall be for a longer term than sixty-five
 
20           years, except in the case of a residential leasehold
 
21           which may provide for an initial term of fifty-five
 
22           years with the privilege of extension to meet the
 
23           requirements of the Federal Housing Administration,
 

 
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 1           Federal National Mortgage Association, Federal Land
 
 2           Bank of Berkeley, Federal Intermediate Credit Bank of
 
 3           Berkeley, Berkeley Bank for Cooperatives, or Veterans
 
 4           Administration requirements; provided that the
 
 5           aggregate of the initial term and extension shall in no
 
 6           event exceed seventy-five years;
 
 7      (3)  No lease shall be made for any land under a lease which
 
 8           has more than two years to run;
 
 9      (4)  No lease shall be made to any person who is in arrears
 
10           in the payment of taxes, rents, or other obligations
 
11           owing the State or any county;
 
12      (5)  No lease shall be transferable or assignable, except by
 
13           devise, bequest, or intestate succession; provided that
 
14           with the approval of the board of land and natural
 
15           resources, the assignment and transfer of a lease or
 
16           unit thereof may be made if:
 
17           (A)  It contains the personal residence of the lessee;
 
18           (B)  In the case of commercial, industrial, hotel,
 
19                resort, apartment, and other business uses, the
 
20                lessee was required to put in substantial building
 
21                improvements;
 
22           (C)  The lessee becomes mentally or physically
 
23                disabled;
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1           (D)  Extreme economic hardship is demonstrated to the
 
 2                satisfaction of the board;
 
 3           (E)  It is to the corporate successor of the lessee; or
 
 4           (F)  In the case of agricultural uses, the assignee
 
 5                meets the qualifications of a bona fide individual
 
 6                farmer or a nonindividual farm concern pursuant to
 
 7                section 171-14.5, in addition to or
 
 8                notwithstanding the other conditions of this
 
 9                paragraph;
 
10           provided further that prior to the approval of any
 
11           assignment of lease, the board shall have the right to
 
12           review and approve the consideration to be paid by the
 
13           assignee and may condition its consent to the
 
14           assignment of the lease on payment by the lessee of a
 
15           premium based on the amount by which the consideration
 
16           for the assignment, whether by cash, credit, or
 
17           otherwise, exceeds the depreciated cost of improvements
 
18           and trade fixtures being transferred to the assignee;
 
19           provided further that with respect to state
 
20           agricultural leases, in the event of foreclosure or
 
21           sale, the premium, if any, shall be assessed only after
 
22           the encumbrances of record and any other advances made
 
23           by the holder of a security interest are paid;
 

 
Page 8                                                     1711
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (6)  The lessee shall not sublet the whole or any part of
 
 2           the demised premises except with the approval of the
 
 3           board; provided that prior to the approval, the board
 
 4           shall have the right to review and approve the rent to
 
 5           be charged to the sublessee; provided further that in
 
 6           the case where the lessee is required to pay rent based
 
 7           on a percentage of its gross receipts, the receipts of
 
 8           the sublessee shall be included as part of the lessee's
 
 9           gross receipts; provided further that the board shall
 
10           have the right to review and, if necessary, revise the
 
11           rent of the demised premises based upon the rental rate
 
12           charged to the sublessee including the percentage rent,
 
13           if applicable, and provided that the rent may not be
 
14           revised downward;
 
15      (7)  The lease shall be for a specific use or uses and shall
 
16           not include waste lands, unless it is impractical to
 
17           provide otherwise; and
 
18      (8)  Mineral and metallic rights and surface and ground
 
19           water shall be reserved to the State[; and
 
20      (9)  No lease of public lands, including submerged lands,
 
21           nor any extension of any such lease, shall be issued by
 
22           the State to any person to construct, use, or maintain
 
23           a sunbathing or swimming pier or to use the lands for
 

 
Page 9                                                     1711
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1           such purposes, unless such lease, or any extension
 
 2           thereof, contains provisions permitting the general
 
 3           public to use the pier facilities on the public lands
 
 4           and requiring that a sign or signs be placed on the
 
 5           pier, clearly visible to the public, which indicates
 
 6           the public's right to the use of the pier.  The board,
 
 7           at the earliest practicable date, and where legally
 
 8           possible, shall cause all existing leases to be amended
 
 9           to conform to this paragraph.  The term "lease", for
 
10           the purposes of this paragraph, includes month-to-month
 
11           rental agreements and similar tenancies]."
 
12      SECTION 4.  Section 171-53, Hawaii Revised Statutes, is
 
13 amended by amending subsection (c) to read as follows:
 
14      "(c)  The board, with the prior approval of the governor and
 
15 the prior authorization of the legislature by concurrent
 
16 resolution, may lease submerged lands and lands beneath tidal
 
17 waters under the terms, conditions, and restrictions provided in
 
18 this chapter; provided that the approval of the governor and
 
19 authorization of the legislature shall not be required for any
 
20 grant of easement or lease of submerged lands or lands beneath
 
21 tidal waters used for noncommercial residential piers, docks,
 
22 moorings, cables, or pipelines; provided further that this
 
23 exemption shall not apply to easements for cables used for
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 interisland electrical transmission or slurry pipelines used for
 
 2 transportive materials, mined at sea, or waste products from the
 
 3 processing of the same.
 
 4      The lease shall provide that the lands shall be reclaimed at
 
 5 the expense of the lessee.  Title to the reclaimed lands shall
 
 6 remain in the State."
 
 7      SECTION 5.  Statutory material to be repealed is bracketed.
 
 8 New statutory material is underscored.
 
 9      SECTION 6.  This Act shall take effect upon its approval.