Here is a guide to some of terms that frequently crop up in discussions of Conservation District use. It is based on Title 13, Subtitle I, Chapters 1 and 2 of the Administrative Rules of the Department of Land and Natural Resources, and on Chapter 183-41, Hawai`i Revised Statutes. This is not intended, nor should it be used as a substitute for qualified legal counsel. (See the discussion of this point in our editorial.)
Conditional Use
Any use that is allowed by the Board of Land and Natural Resources and to which the Board has attached conditions is a conditional use. A set of 15 standard conditions is in the Rules (§13-2-1), although the Board may impose more. The Rules on conditional use may exceed statutory authority. Conditional use is not provided for in §183.41.
Conservation
This is defined (§13-2-1) as a practice “of protecting and preserving, by judicious development and utilization, the natural and scenic resources attendant to land.”
Conservation District Use Application (CDUA).
Whenever anyone wants to use Conservation District land, he or she must file a CDUA. The Board of Land and Natural Resources has 180 days from the time the application is accepted at the Department to render a decision on the CDUA. (The rules are unclear as to what constitutes acceptance.) If that CDUA is granted, the applicant has a CDUP (Conservation District Use Permit). If the Board fails to act within those 180 days, the applicant is granted the use of the land sought in the CDUA, subject, however to conditions listed in the Rules.
Contested case.
This is a court-like proceeding that occurs when someone who has legal standing wishes to challenge a Board decision. That person files a petition for a contested case. The Board decides whether and on what grounds to grant it. The Rules (§13-1-29) generally require that requests for contested case hearings be made orally or in writing by the close of a public hearing (if one is required) or the board meeting at which the matter is scheduled for disposition (if no public hearing is required).
Nonconforming use.
The Rules provide a two-part definition for this term. First, it refers to any activity on Conservation District land that was ongoing either as of October 1, 1964 or at the time the land was made part of the Conservation District.
Second, it refers to a proposed farm (which may include a farm house) or a single-family house proposed for Conservation District land where the following requirements are met: 1. The parcel proposed for such use is 10 acres or less in size; 2. Its boundaries have not changed since January 31, 1957; 3. Property taxes have been kept current on it; and 4. The site was intended for farming or residential use in 1957 (For all practical purposes, the Land Board does not seriously consider that fourth requirement, intent. If a CDUA is filed for a house on land that meets the first three requirements, and there is no evidence that the land was not intended for a house or farm, approval as a nonconforming use has invariably been granted.)
This has been one of the terms that has been most resistant to easy comprehension. It may help to think of the two parts of this definition in the following way:
In the first part, the term nonconforming is descriptive, in that it describes already existing activities in Conservation District land. (Those activities include housing and farming, but perhaps many other activities as well). In the second part, nonconforming is used in a prescriptive sense, inasmuch as it sets forth, or prescribes, the circumstances under which the Board may grant future nonconforming uses (which are limited to housing and farming).
Permitted use.
For each subzone, the Administrative Rules provide a list of activities that are to be permitted. (For a fuller discussion of this, see the article on subzones that appears below.) If an activity does not appear on that list of permitted uses, it may be allowed by the Board (as a nonconforming or temporary use), but it is not a permitted use. Just because an activity is permitted, there is no automatic right to engage in that activity. With rare exceptions, anyone wanting to engage in a permitted activity must first seek and obtain a permit from the Board or the Board Chairman.
Residence.
This is defined in the Rules as “a building used or designed and intended to be used as a home or dwelling place for one family.” Despite many controversies over the size of residences proposed for Conservation District lands, the Rules set no limit on size. In practice, a few limits have evolved. For example, the Board has withheld approval of plans that call for more than one kitchen.
Volume 1, Number 3 September 1990