Rules Relating to the Implementation of the
Second Proclamation Relating to Affordable Housing
§ 1 Purpose and Authority
These rules are intended to expedite the construction, development, and redevelopment of housing under the Supplemental Proclamation Relating to Affordable Housing (“Proclamation”) through the certification of projects that will be allowed to proceed under the Proclamation. Projects certified by the Build Beyond Barriers Working Group (BBB) are eligible for coverage under the Proclamation and these rules.
These rules are adopted pursuant to sections 127A-11, 12, 13, and 25, Hawaii Revised Statutes (HRS), to respond to the housing emergency declared by the Governor and have the force and effect of law.
§ 2 Definitions
“Agency” means any department, office, board, or commission of the state or county government that is part of the executive branch of that government.
“Project proponent” means the person or entity applying to have a project certified. This person or entity may be referred to as the developer of the project.
§ 3 Applicability of Proclamation and Rules
Certified projects not subject to the state or county regulations suspended under the Proclamation shall still meet minimum requirements for health and safety, including applicable floodplain management powers and duties necessary for National Flood Insurance Program participation.
§ 4 Build Beyond Barriers Working Group
A. Membership of the BBB shall consist of representatives of the following state agencies and non-state agencies and entities.
1. Office of Planning and Sustainable Development;
2. Hawaii Housing Finance and Development Corporation (HHFDC);
3. Land Use Commission;
4. Department of Transportation;
5. Hawaii Public Housing Authority;
6. County mayor of the island where the project is located;
7. The chairs of legislative subject matter committees relating to housing (non-voting members);
8. Department of Land and Natural Resources;
9. State Historic Preservation Division;
10. Commission on Water Resources Management;
11. Department of Health;
12. Department of Business, Economic Development, and Tourism;
13. Department of Budget and Finance;
14. The Island Burial Council of the island where the project is located;
15. County housing, permitting, and regulatory agency representatives of the island where the project is located (limited to a maximum of 3 representatives);
16. County department of water supply representative of the island where the project is located;
17. Hawaiian Electric Co. or Kauai Island Utility Cooperative, as applicable, for the island where the project is located;
18. Honua Consulting, LLC;
19. The Executive Director of Housing Hawaii’s Future;
20. Economic Research Organization at the University of Hawai’i (“UHERO”);
21. The Executive Director of the Sierra Club of Hawai’i; and
22. The Executive Director of the Land Use Research Foundation.
B. The chair of the BBB shall be one of the state housing officials designated in Section I of the Proclamation. These state housing officials shall decide among themselves the appropriate official to chair a BBB meeting based on the agenda items that will be up for discussion at that meeting.
C. Any action taken by the BBB shall be by a simple majority of the voting members present at a meeting.
D. The duties of the BBB will include certification of projects under the Proclamation; evaluation of the progress of certified projects and, where necessary, assist in moving projects through regulatory or review processes; and provide advice to certified projects based on the expertise of members of the BBB.
E. The chair shall have the authority to invite participation by subject matter experts to attend any meeting of the BBB as deemed appropriate and necessary to provide information and support the activities of the BBB.
§ 5 Certification Application
Project proponents seeking to have the terms of the Proclamation apply to their project shall submit to the BBB the following documentation:
1. Name, address, email address, and telephone number of the project proponent and each member of the project team. If the project proponent is a corporation or other legal entity, evidence of the project proponent’s status and registration with the Department of Commerce and Consumer Affairs, and the names, address, email address, and telephone number of each officer and director of the entity. The name, address, email address, and telephone number of the main point of contact should be identified;
2. Proof that the project proponent has site control such as a deed, agreement of sale, long-term lease, option to lease, or other disposition;
3. A description of the project proponent’s experience or involvement in the development of housing or projects of similar scope, size, and complexity;
4. A description of the project proponent’s past or current experience or involvement in any programs or its provision of services, including other than housing, that would give evidence of the project proponent’s ability to manage a project of this type and scope;
5. A conceptual site plan showing the general development of the project site including, the locations and descriptions of proposed and existing buildings, parking areas, unusual site features, proposed and existing major drainage facilities, and any proposed and existing ground disturbance;
6. A development plan including the number of units, including by AMI, maximum occupancy, construction method, infrastructure capacity and needs, and an anticipated schedule of construction. The infrastructure needs should include a description of methods of sewage and solid waste disposal and sources of water and other utilities;
7. The proposed financing for the project, including the manner in which the project will be financed during the development and construction of the project, and upon completion of the project and sources of repayment of such financing. This should include any proposed grants, donations, loans, bonds, tax credits, or other sources of financial resources;
8. The project proponent’s plan for obtaining public input, which shall include, but not be limited to, at least one public meeting (e.g., via Neighborhood Board meeting, public hearing, or town hall) during which public input shall be accepted and documented, at least one public notice of wide circulation regarding the project which shall offer the public a period for review and submission of written comments of at least 30 days from the date of publication, and a plan to consult with appropriate stakeholder groups regarding any impacts to environmental or cultural resources, if such impacts are reasonably anticipated; and
9. A full list of agency approvals that the project would be required to obtain absent certification, including any waivers, variances, and/or exemptions being sought from said agencies.
§ 6 Project Eligibility
A project is eligible for certification if the BBB finds that:
1. The project proponent has the necessary skill and experience to develop and manage a project of the intended size and scope;
2. The project proponent has successfully completed a housing project, including demonstrating ability to manage the necessary resources, including financial resources, to construct and operate the project; and
3. The project is likely to result in the commencement of construction of additional new residential units within 36 months from the certification of the project.
§ 7 Resolutions
Upon acceptance of a project by the BBB, a resolution shall be issued that sets forth the terms of the certification of the project under the Proclamation.
A resolution shall:
1. Describe the land subject to the resolution;
2. Specify the permitted uses of the property, the density or intensity of use, and the maximum height and size of proposed buildings;
3. Provide, where appropriate, for reservation or dedication of land for public purposes as may be required or permitted pursuant to laws, ordinances, resolutions, rules, or policies in effect at the time of the resolution;
4. Provide a termination date; provided that the parties shall not be precluded from extending the termination date by mutual agreement or from the BBB issuing subsequent resolutions;
5. The purpose of the resolution, which shall include the development of housing units and/or infrastructure;
6. A description of the role and responsibilities of the project proponent and other parties to the agreement;
7. A construction commencement deadline set 36 months after certification of the project;
8. Time required to complete construction of the project; and
9. The period of mandatory affordability for applicable residential units.
§ 8 Prioritization of Certified Projects
The BBB shall prioritize the processing or review of certified projects by applicable state and county agencies. The certified projects may be prioritized based on, but not limited to:
1. The number of affordable housing units as a component of the certified project. The amount and mix of affordable housing included in the project may affect the priority given to the project;t
2. The status of the financing for the project; and
3. The projected commencement and completion dates for the project.
§ 9 Application of Suspended Laws
A. Section 46-4, HRS, County Organization and Administration
Notwithstanding any law to the contrary, each county may adopt reasonable standards to allow the construction of multi-family residential dwelling units on any lot where business activities are permitted as follows:
1. For the County of Hawai’i this includes the following: Neighborhood Commercial, General Commercial, Village Commercial, Industrial – Commercial Mixed;
2. For the County of Maui these include the following: All Business Districts;
3. For City and County of Honolulu these include the following: All Business Districts; and
4. For the County of Kaua’i these include the following: All Commercial Districts.
B. Chapter 76, HRS, Officers and Employees
1. Recruitment and hiring of employees under the Proclamation shall follow, to the extent possible, the principles set forth in section 76-1, HRS.
a. No person shall be discriminated against in examination, appointment, reinstatement, reemployment, promotion, transfer, demotion, or removal, with respect to any position when the work may be efficiently performed by the person without hazard or danger to the health and safety of the person or others;
2. All employees hired under the Proclamation may be exempt from civil service and may be converted to civil service employees within a one year period at the discretion of the hiring authority without competition. Positions converted into the civil service system shall comply with the policies set forth in Policy No. 1000.002 except that all employees converted shall be treated as if they had occupied the position for a minimum of one (1) year at the appropriate step.
3. Prior to hiring any employee under the Proclamation, the appointing agency shall determine that:
a. The employee would be directly involved in the construction, development, or redevelopment of housing, the filling of public housing vacancies, the processing of housing vouchers, or in the processing of development-related permits, licenses, or approvals; and
b. It would be impractical or untimely to hire the employee under the civil service system under chapter 76, HRS.
4. The appointing agency shall ensure that all employees hired under the Proclamation meet the following:
a. Persons seeking employment meet the requirements necessary for the safe and efficient performance of the duties of the position for which they are being hired;
b. Each employee is able to perform their duties satisfactorily; and
c. Each employee is qualified to perform the duties and functions of the position that they are being hired into.
C. Chapter 103D, HRS, Hawaii Public Procurement Code
Prior to utilizing the suspension of chapter 103D, HRS, the department has determined that it is not practicable or advantageous to procure the services required via traditional procurement methods. This suspension is for the solicitation process only. Pursuant to section 103D-310(c), HRS, and section 3-122-112, Hawaii Administrative Rules, the procuring officer shall verify compliance (i.e., vendor is required to provide proof of compliance and may use the Hawaii Compliance Express) for all contracts awarded. Copies of the compliance and the award posting are required to be documented in the procurement/contract file.
The award is required to be posted on the Hawaii Awards and Notices Data System (HANDS) pursuant to Procurement Circular PC2019-05 within seven days after award.
D. Section 201H-38(a)(3), HRS, Housing development; exemption from statutes, ordinances, charter provisions, and rules.
Section 201H-38(a)(3), HRS, is suspended to allow the county in which a State affordable housing project is to be situated to approve the project, with or without modifications, without requiring the county council to approve, approve with modification, or disapprove the project by resolution. Instead, the county may approve, approve with modification, or disapprove the project through action of the county planning director within forty-five days of the receipt of the HHFDC approval. If on the forty-sixth day a project is not disapproved, it shall be deemed approved by the county planning director.