Hawaii Real Estate Broker Exam — All Questions

Every parcel in Hawaii sits in one of the State's land use districts, which HRS section 205-2 lists as:

• a.state, county, federal and homestead lands
• b.residential, commercial, industrial and resort
• c.urban, suburban, agricultural and shoreline
• d.urban, rural, agricultural and conservation✓

Section 205-2(a) is categorical: "There shall be four major land use districts in which all lands in the State shall be placed: urban, rural, agricultural, and conservation." The Land Use Commission groups contiguous areas and sets the boundaries, giving the greatest possible protection to lands with a high capacity for intensive cultivation when drawing agricultural boundaries, and treating the conservation district as the successor to the forest and water reserve zones created in 1957. Rural districts are characterized in section 205-2(c) by low density residential lots "of not more than one dwelling house per one-half acre" mixed with small farms. This state layer sits on top of, and does not replace, county zoning: urban district uses are those the county allows by ordinance, so a parcel needs to clear both. The other lists confuse zoning categories, which are county creations, or landowner identity, with the statewide districting the Commission administers.

A client proposes to subdivide an oceanfront parcel that lies within a county's special management area. HRS section 205A-28 requires:

• a.a shoreline setback variance from the Land Use Commission
• b.an environmental impact statement filed with the Governor
• c.a special management area permit obtained from the county✓
• d.a conservation district use application filed with the DLNR

The rule is short: "No development shall be allowed in any county within the special management area without obtaining a permit in accordance with this part." What makes it bite is the breadth of "development" in HRS section 205A-22, which includes placement of solid material, grading and dredging, "change in the density or intensity of use of land, including but not limited to the division or subdivision of land," change in the intensity of use of water or access to it, and construction, reconstruction or alteration of the size of any structure. A subdivision is therefore squarely inside the definition even if nothing is built. The same section carves out, among other things, construction or reconstruction of a single-family residence of less than seven thousand five hundred square feet that is not on a shoreline parcel or a parcel impacted by waves, storm surge, high tide or shoreline erosion and is not part of a larger development. Administration sits with each county's planning department, not with the Land Use Commission, the Governor or the Department of Land and Natural Resources.

Under HRS section 46-4, county zoning in Hawaii is:

• a.exercised by ordinance within the framework of a general plan✓
• b.adopted by the Land Use Commission and applied by each county
• c.set by the Real Estate Commission for all four counties alike
• d.controlled by the recorded covenants that run with each parcel

Section 46-4(a) provides that "zoning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county," that zoning "shall be one of the tools available to the county to put the general plan into effect," and that "the zoning power granted in this section shall be exercised by ordinance." That places the drafting and the political accountability at the county council. The Land Use Commission draws the four state districts under HRS section 205-2, a different and higher layer, and the Real Estate Commission has no land use jurisdiction at all. Private restrictive covenants in a recorded declaration or deed do restrict use, but they bind by contract and are enforced by the owners or the association rather than by the county; where a covenant and an ordinance both apply, the stricter of the two is what an owner must actually observe. HRS section 508D-3.5(b) obliges a seller to disclose such recorded restrictions to the buyer.