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HAR-13-197-1

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HAWAII ADMINISTRATIVE RULES

 TITLE 13

 DEPARTMENT OF LAND AND NATURAL RESOURCES

 SUB-TITLE 8, HAWAII HISTORIC PLACES REVIEW BOARD

 CHAPTER 197

 PRACTICE AND PROCEDURE

 BEFORE THE HAWAII HISTORIC PLACES REVIEW BOARD


Official copies of Title 13, Subtitle 8, Chapter 197 are available for review.


 Subchapter 1 General Provisions

§13-197-1 Purpose
§13-197-2 Definitions
§13-197-3 Office
§13-197-4 Public records and information

 

Subchapter 2 Rulemaking Proceedings

§13-197-5 Petitions for adoption, amendment, or repeal of rules
§13-197-6 Adoption, amendment, or repeal of rules
§13-197-7 Conduct of public hearing on proposed adoption, amendment, or repeal of rules

 

Subchapter 3 Declaratory Rulings

§13-197-8 Declaratory rulings

 

Subchapter 4 Contested Case Proceedings

§13-197-10 Contested case hearings
§13-197-11 Request for hearing
§13-197-12 Notice of hearing
§13-197-13 Parties
§13-197-14 Conduct of hearing
§13-197-15 Procedure for witnesses
§13-197-16 Motions
§13-197-17 Evidence
§13-197-18 Prehearing conferences; exchange of exhibits; briefs
§13-197-19 Correction of transcript
§13-197-20 Disqualification
§13-197-21 Ex parte (single party) communications
§13-197-22 Decisions and orders
§13-197-23 Reconsideration
§13-197-24 Appeals

 


Subchapter 1 General Provisions

§13-197-1 Purpose. This chapter governs the practice of and the procedures before the Hawaii historic places review board under Chapter 91, Hawaii Revised Statutes. [Eff. 6/22/81; am and comp 3/9/89] (Auth: HRS §§6E-5.5, 91-2) (Imp: HRS §§91-2, 91-5, 91-6, 91-8)

 

 

§13-197-2 Definitions. As used in this chapter:

"Agency" means any board, commission, department, bureau, or political subdivision of the State or county governments.

"Contested case hearing" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.

"Owner or owners" means a person having fee simple title to the property being nominated for registration into the Hawaii register or national register, which interest is legally recorded at the bureau of conveyances or the land court at the State of Hawaii. If the property being nominated is publicly owned, the owner shall mean the department of land and natural resources or in cases where the public property is under the control and management (i.e. deed, executive order) of an agency, shall mean the administrative officer responsible for the control and management of the property. Owner shall not include persons holding less than fee interest in the property (i.e. lease, easement, permit, or license).

"Party" means each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party, in any proceeding before the review board.

"Person" or "persons" include individuals, partnerships, corporations, associations, or public or private organizations of any character other than an agency.

"Public records" shall be as defined in section 92-50, Hawaii Revised Statutes.

"Review Board" means the Hawaii historic places review board.

"Regular business hours" means from 7:45 a.m. to 4:30 p.m. of each day of the week except Saturdays, Sundays, and holidays.

"Rule" shall be as defined in section 91-1(4), Hawaii Revised Statutes.

"State" means the State of Hawaii. [Eff 6/22/81; am and comp 3/9/89] (Auth: HRS §§6E-5.5, 91-2) (Imp: HRS §91-2, §91-1)

 

 

§13-197-3 Office. The office of the review board is in the office of the historic preservation division, department of land and natural resources, Kakuhihewa Building, 601 Kamokila Blvd., Room 555, Kapolei, Hawaii 96707. All communication to the review board shall be sent to the review board at that address, unless otherwise specifically directed. [Eff 6/22/81; am and comp 3/9/89] (Auth: HRS §6E-5.5, 91-2) (Imp: HRS §91-2)

 

 

§13-197-4 Public records and information. (a) All public records shall be available for inspection at the office of the review board during regular business hours unless public inspection of those records is in violation of any state or federal law; provided that except where those records are open under any rule of court, the attorney general may determine which records may be withheld from public inspection when those records pertain to the preparation of the prosecution or defense of any action or proceeding, prior to its commencement, to which the State is or may be a party, or when those records do not relate to a matter in violation of law and are deemed necessary for the protection of a character or reputation of any person.

(b) Public records printed or reproduced by the review board in quantity shall be given to any person requesting the same and paying the fees established by the review board or by law for those records. Photocopies of public records shall be made and given to any person requesting same, upon payment by that person of reasonable fees established by the review board or by law.

(c) Any person may obtain information on matters within the jurisdiction of the review board by inquiring in person, during regular business hours, at the office of the review board, or by submitting a written request to the office.

(d) Requests for public information, for permission to inspect official records, or for copies of public records shall be handled with due regard for the dispatch of other public duties. [Eff 6/22/81; am and comp 3/9/89] (Auth: HRS §§6E-5.5, 91-2) (Imp: HRS §§91-2, 92-51, 92-21)

 

 

Subchapter 2 Rulemaking Proceedings

§13-197-5 Petitions for adoption, amendment, or repeal of rules. (a) Any interested person may petition the review board for the adoption, amendment, or repeal of any rule of the review board. The petition shall be submitted in duplicate and delivered to the office of the review board.

(b) The petition need not be in any special form but shall contain:

(1) A statement of the nature of each petitioner's interest in the subject matter;

(2) A draft or text of the proposed rule or amendment desired by

petitioner or a specification of the rule that petitioner desires repealed;

(3) A designation of any existing rules or laws affected by the petition;

(4) An explicit statement of the reasons that the petitioner is seeking the

adoption, amendment, or repeal of the rule;

(5) Any other facts, views, arguments, and data deemed relevant to the petition;

(6) The name, address, and telephone number of each petitioner; and

(7) The signature of each petitioner.

(c) Any petition which does not conform to the foregoing requirements may be rejected by the review board.

(d) Upon receipt of the petition, the staff or the review board shall cause it to be dated to determine the date of submission. Within thirty days after receipt of the petition, the review board shall either deny the petition in writing, stating its reasons for denial, or initiate proceedings for the adoption, amendment, or repeal of the rule as provided by law. No public hearing, oral arguments, or other form of proceedings shall be held directly on any petition. If the review board determines that the petition does not disclose sufficient reasons to justify the commencement of public rule making proceedings, or if the petition fails in material respect to comply with the requirements of these rules, the review board shall deny the petition and the petitioner shall be so notified. The provisions of this section shall not operate to prevent the review board, on its own motion, from acting on any matter disclosed in any petition. [Eff 6/22/81; am and comp 3/9/89] (Auth: HRS §§6E-5.5, 91-6) (Imp: HRS §91-6)

 

 

§13-197-6 Adoption, amendment, or repeal of rules. When, pursuant to a petition, or upon its own motion, the review board proposes to adopt, amend, or repeal a rule, the rule shall be adopted, amended, or repealed in accordance with the procedures set form in this chapter and in chapter 91 and section 92-41, Hawaii Revised Statutes. [Eff 6/22/81; am and comp 3/9/89] (Auth: HRS §6E.5.5) (Imp: HRS §§91-3, 91-6, 92-41)

 

 

§13-197-7 Conduct of public hearing on proposed adoption, amendment, or repeal of rule. (a) Each public hearing on a proposed adoption, amendment, or repeal of a rule shall be presided over by the chairperson or other person designated by the chairperson. The hearing shall be conducted in a manner which affords interested persons a reasonable opportunity to be heard on matters relevant to the issues involved and obtains a clear and orderly record.

(b) Each hearing shall be held at the time and place set in the notice but at that time and place may be continued from day to day or adjourned to a later date or to a different place without notice other than the announcement thereof at the hearing.

(c) At the commencement of the hearing, the presiding officer shall read the notice of the hearing and shall outline briefly the procedure to be followed. Testimony shall then be received with respect to the matters specified in the notices in an order the presiding officer shall prescribe.

(d) All interested persons and agencies of the State or its political subdivisions shall be given reasonable opportunity to offer testimony, orally or in writing, with respect to the matters specified in the notice. All persons, before proceeding to testify, shall state their names, addresses, and whom they represent, and shall give such other information respecting their appearances as the presiding officer may request. Every person testifying shall be subject to questioning by members of the review board but questioning by private persons shall not be permitted without the presiding officer's permission. The presiding officer shall confine the testimony to the subject matter of the hearing. All written testimony offered may be submitted to the review board at its office not less than twenty-four hours prior to the hearing. Persons submitting written testimony on the day of the hearing shall furnish twelve copies of the testimony to the review board prior to the hearing.

(e) Unless otherwise specifically ordered by the review board, testimony given at the hearing shall not be reported verbatim. All supporting written statements, maps, charts, tabulations, or similar data offered at the hearing and which are deemed by the presiding officer to be authentic and relevant, shall be received in evidence and made part of the record. Unless the presiding officer finds that the furnishing of copies in impracticable, two copies of the exhibits shall be submitted.

(f) At the close of the final public hearing, the presiding officer shall announce the decision of the review board or announce the date when it intends to make a decision. [Eff 6/22/81; am and comp 3/9/89] (Auth: HRS §6E-5.5, 91-2) (Imp: HRS §91-3)

 

 

Subchapter 3 Declaratory Rulings

§13-197-8 Declaratory rulings. (a) Any interested person may petition the review board for a declaratory order as to the applicability of any statutory provisions administered by the review board or any rule or order of the review board.

(b) The petition shall be submitted in duplicate to the office of the review board. The petition need not be in any special form but shall contain:

(1) A full disclosure of the nature of the petitioner's interest, including

reasons for the submission of the petition;

(2) A designation of the specific statutory provision, rule, or order in

question; a complete statement of the relevant facts and the precise

nature of the controversy;

(3) A statement of the interpretation given the statutory provision, rule or

order by the petitioner;

(4) A memorandum containing the reasons, including any legal authorities,

in support of the interpretation of the petitioner; and

(5) The name, address, telephone number, and signature of the petitioner.

(c) Any petition which does not conform to the requirements of subsection (b) may be rejected by the review board.

(d) Upon receipt of the petition, the review board may require the petitioner to file additional data or memoranda in support of the position taken by the petitioner.

(e) The review board may, for good cause, and without notice or hearing, refuse to issue a declaratory order. Without limiting the generality of the foregoing, the review board may also refuse where:

(1) The question is speculative or purely hypothetical and does not involve an

existing situation or one which may reasonably be expected to occur in the

near future;

(2) The petitioner's interest is not of the type which would give standing to

maintain an action in a court of law;

(3) The issuance of a declaratory order may adversely affect the interest of the

State of Hawaii, the review board, or any of the board's officers or

employees in any litigation which is pending or may be reasonably

expected to arise; and

(4) The petition requests a ruling on a statutory provision not administered by

the review board or the matter is not otherwise within the jurisdiction of

the review board.

(f) Where the petition involves a question of law, the review board may refer the

matter to the attorney general of the State for a legal opinion.

(g) No hearing need be granted to the petitioner or to any interested person in the usual course of disposition of a petition for a declaratory ruling.

However, the review board may, at its discretion, order a hearing on the disposition of the petition if the petitioner submits a written request stating, in detail, why a hearing is necessary for a fair consideration of the need for a declaratory ruling on the matter stated in the petition.

(h) The review board shall, within a reasonable time after receipt of a petition for declaratory ruling, either deny the petition, stating the reasons therefor, or issue a declaratory ruling. Upon disposition of the petition, the review board shall promptly notify the petitioner.

(i) Orders disposing of petitions shall be applicable only to the fact situation alleged in the petition or as set forth in the order. They shall not be applicable to different fact situations or where additional facts not considered in the order exist. [Eff 6/22/81; am and comp 3/9/89] (Auth: HRS §§6E-5.5, 91-8) (Imp. HRS §91-8)

 

 

 Subchapter 4 Contested Case Proceedings

§13-197-10 Contested case hearings. When required by law or administrative rule, the review board shall hold a contested case hearing upon its own motion or upon the written petition of any interested person who is properly admitted as a party pursuant to section 13-197-13. Unless specifically prescribed in this chapter or by chapter 91, Hawaii Revised Statutes, the review board may adopt procedures which in its opinion will best serve the purposes of the hearings. [Eff and comp 3/9/89] (Auth: HRS §§91-2, 6E-5.5) (Imp: HRS §91-9)

 

 

§13-197-11 Request for hearing. (a) A hearing on a contested matter may be requested by the review board on its own motion or any interested person who then properly qualifies to be admitted as a party. An oral or written request for a contested case hearing shall be made by the close of the review board meeting at which the matter is scheduled for disposition. The person requesting the contested case hearing shall file (or mail and postmark) a written petition with the review board not later than ten days after the close of the review board meeting. The time for making an oral or written request and submitting a written petition may be waived by the review board.

(b) A petition requesting a contested case hearing shall contain concise statements of:

(1) The legal authority under which the proceeding, hearing, or action is to be

held or made;

(2) The petitioner's interest that may be affected;

(3) The disagreement, denial, or grievance which is being contested by the

petitioner;

(4) The basic facts and issues raised; and

(5) The relief to which the party or petitioner seeks or deems itself entitled. [Eff and comp 3/9/89] (Auth: HRS §§91-2; 6E-5.5) (Imp: HRS §91-9)

 

 

§13-197-12 Notice of hearing. After a determination is made that a contested case hearing is required, the written notice of hearing shall be served on parties in accordance with section 91-9.5, Hawaii Revised Statutes, and shall be served on all persons or agencies admitted as a party at their last recorded addresses at least fifteen days before the hearing date. Further, the notice shall be published as provided by law but not less than once in a newspaper of general circulation within the State and within the county provided that matters of internal management shall not be subject to the publication requirement. [Eff and comp 3/9/89] (Auth: HRS §§91-2, 6E-5.5) (Imp: HRS §§91-9, 91-9.5)

 

 

§13-197-13 Parties. (a) The following persons or agencies shall be admitted as a party:

(1) The nominator shall be a party;

(2) The owner shall be a party in cases involving chapter 13-198; provided,

however, that when the owner is an agency, it shall not have standing to

petition for a contested case hearing for publicly-owned property;

(3) All persons who have some property interest in the land, who lawfully

reside on the land, who are adjacent property owners, or who otherwise can

demonstrate that they will be so directly and immediately affected by the

proposed change that their interest in the proceeding is clearly

distinguishable from that of the general public

shall be admitted as parties upon timely application; and

(4) Other persons or agencies who can show a substantial interest in the matter

may apply to be a party. The review board may approve the application

only if the applicant's participation will substantially assist the review

board in its decision making.

(b) The review board may deny any application to be a party when it appears that:

(1) The position of the applicant requesting participation is substantially the

same as the position of a party already admitted to the proceedings; and

(2) The admission of additional parties will not add substantially new

information or the addition will render the proceedings inefficient and

unmanageable.

(c) All persons with similar interests seeking to be admitted as parties shall be considered at the same time so far as possible.

(d) Where a contested case hearing has been scheduled, any other interested person who qualifies to be a party under subsection (a) may apply to participate, in accordance with this subchapter, by filing a written application with the review board not later than ten days before the scheduled contested case hearing or at an earlier date as established by the review board. Except for good cause shown, late filings shall not be permitted.

(e) The application to become a party shall contain the following:

(1) The nature of the applicant's statutory or other right;

(2) The tax map key number of the applicant's property as well as the

petitioner's or nominator's property. The nature and extent of the interest

in applicant's property;

(3) The effect of any decision in the proceeding on applicant's interest; and

(4) The difference in the effect of the proposed action on the applicant's

interest and the effects of the proposed action on the general public.

(f) If relevant, the applicant shall also address:

(1) Other means available whereby applicant's interest may be protected;

(2) The extent the applicant's interest may be represented by existing

parties;

(3) The extent the applicant's interest in the proceedings differs from that of the

other parties;

(4) The extent the applicant's participation can assist in the development of a

complete record;

(5) The extend the applicant