Haw. Code R. § 15-217-65 - Public facilities dedication fee

(a) Applicability. This section shall apply to any new development or improvement project, or existing development or improvement project within the mauka area that increases the existing floor area by more than twenty-five per cent as compared to the floor area existing on February 27, 1982 or at the time the development permit or improvement permit was issued, excluding proposed demolitions, whichever is less; provided, however, that this section shall not apply to any development or improvement project undertaken by an eleemosynary organization, development or improvement project for public uses, public project, workforce housing projects, floor area related to reserved housing, single-family dwellings and duplex units, or new buildings or structures with a floor area of less than 200 square feet.

(b) Dedication requirement. As a condition precedent to the issuance of an improvement permit or development permit, the developer shall dedicate land for public facilities. The dedication of land for public facilities shall be subject to the maximum ceiling in land or money in lieu thereof calculated in accordance with the formula designated in subsections (d) to (f) herein.

(c) In-lieu fee payments. As an alternative to the land dedication requirement of section 15-217-65(b), an in-lieu fee payment may be authorized as follows:

(1) For improvement permit applications, the executive director may authorize a developer to pay an in-lieu fee equal to the value of land which would otherwise have had to be dedicated, or combine the payment of fee with land to be dedicated. The total value of such combination shall be not less than the value of land which would otherwise have had to be dedicated; and

(2) For development permit applications, the authority may authorize a developer to pay a fee equal to the value of land which would otherwise have had to be dedicated, or combine the payment of fee with land to be dedicated. The total value of such combination shall be not less than the value of land which would otherwise have had to be dedicated.

(d) Minimum dedication requirements. Land dedication requirements are:

(1) Three per cent of the total commercial floor area ;

(2) Four per cent of the total residential floor area exclusive of floor area devoted to reserved housing units and their associated common areas in proportion with the floor area of other uses; and

(3) If the area of land approved for dedication is less than the land area required under subsection (d)(1) and (2) above, the developer shall be required to pay a fee equal to the fair market value of the land area which is the difference between the land area dedicated and the land area required under subsection (d)(1) and (2) above.

(e) Payment timing and use of funds:

(1) Authorized in-lieu fees shall be payable prior to the issuance of the initial certificate of occupancy and secured by the applicant with a financial guaranty bond from a surety company authorized to do business in Hawaii, an acceptable construction set-aside letter, or other acceptable means prior to the issuance of the initial building permit; and

(2) Payment of fees shall be made to the authority for deposit in the authority's revolving fund established under section 206E-16, HRS.

(f) Valuation methodology. Valuation of land when fees are to be paid shall be determined as follows:

(1) Valuation shall be based upon the fair market value of the land as though vacant and unimproved on the date the developer's application for an improvement permit or development permit is deemed complete pursuant to section 15-217-85 {completeness review), as agreed to by the developer and the executive director if an improvement permit or the developer and authority if a development permit; and

(2) In the event that a fair market value cannot be agreed on, the fair market value of the land as though vacant and unimproved shall be fixed and established by majority vote of three real estate appraisers whose decision shall be final, conclusive, and binding; one shall be appointed by the developer, one appointed by the executive director in the case of improvement permits or the authority in the case of development permits, and the third appointed by the first two appraisers. In the event a party shall fail to appoint an appraiser within ten days following the appointment of the first appraiser, the party who appointed the first appraiser may apply to the person sitting as the administrative judge of the circuit court of the first circuit of Hawaii, if any, or if none, to any judge in service of said court, for the appointment of the second appraiser; provided, however, that if the developer is the party who has failed to appoint an appraiser within ten days following the executive director's or authority's appointment of the first appraiser, the executive director or authority, as the case may be, may deny the developer's request to pay a monetary fee in lieu of dedicating land. The two appraisers shall appoint a third appraiser, and in case of their failure to do so within ten days after appointment of the second appraiser, either party may apply to the person sitting as the administrative judge of the circuit court of the first circuit of Hawaii, if any, or if none, to any judge in service of said court, for the appointment of the third appraiser. The appraisers shall determine the fair market value of the land as though vacant and unimproved on the date the developer's application for an improvement permit or development permit is deemed complete pursuant to section 15-217-85 (completeness review). All appraisers shall have had a minimum of five years of training and experience in real estate appraisal work in the state of Hawaii. The appraisers shall be governed in their determination by the provisions of chapter 658A, HRS. The fees and costs of each appraiser and all other appraisal costs shall, with exception of each party's attorneys' fees and costs and witnesses' fees, shall be borne equally by both parties.

(g) Dedication instrument. For land dedication pursuant to this section, the developer shall record the necessary conveyance instrument, free and clear of all encumbrances, in the bureau of conveyances, state of Hawaii, and shall file copies of the recorded conveyance instrument with the authority. The authority may require the developer to maintain the dedicated area until such time that notice is given by the authority to accept ownership and control of the area.

(h) Relationship to existing or future improvement districts. Nothing contained in this section shall preclude the creation of any improvement district for public facilities, or the imposition of assessments against properties specially benefited within the district.

Notes

Haw. Code R. § 15-217-65

[Eff NOV 11 2011 ] (Auth: HRS §§ 206E-7, 206E-12) (Imp: HRS §§ 206E-7, 206E-12)