Hawai`i's Automatic Permit Approval Law

Findings. House Resolution No. 128, H.D. 1 (2000), requested the Legislative Reference Bureau "to conduct a legal review" of concerns regarding the automatic permit approval, Act 164, Session Laws of Hawaii 1998. Upon reviewing the constitutional, quorum, rulemaking, and other issues raised by that law, the Bureau has found that there is nothing about the automatic permit approval law that renders it inherently defective or that otherwise compels its amendment as a matter of law. Each of the legal and logistical problems identified may be addressed in rules adopted by each state and county agency. The Bureau has further found that many agencies have not yet adopted rules to implement section 91-13.5, HRS, despite a December 31, 1999 deadline for the adoption of these rules as required by section 4 of Act 164, Session Laws of Hawaii 1998. Since section 91-13.5 is not self-executing and does not impose statutory time limits for anything other than the adoption of the respective agencies’ implementing rules, a determination as to whether problems will arise once agencies have adopted rules to implement that section is mostly a matter of speculation.

Recommendations. The Bureau recommends the following:

    1. Definition. Amend the definition of "application for a business or development-related permit, license, or approval" in section 91-13.5, HRS to clarify legislative intent by specifying the statutes to which the automatic approval law applies;
    2. Rulemaking deadline. Amend Act 164, Session Laws of Hawaii 1998, to extend the date specified in that Act for agency rulemaking from December 31, 1999, to a more realistic date, such as December 31, 2003, and impose a statutory maximum automatic permit approval deadline of one year for those agencies that fail to comply with that deadline;
    3. Federal programs. Require affected state and county agencies to review the statutory references in section 91-13.5(e), HRS and make recommendations to the Legislature as to whether the affected laws consist of "state administered permit programs delegated, authorized, or approved under federal law"; and
    4. Model rules. Require the Attorney General to propose model rules that may be used by the administrative agencies to implement section 91-13.5. Each agency may choose to adopt or reject portions of the model rules, depending on the experience and needs of each particular agency.

While the Bureau has found that there is no legal requirement to amend section 91-13.5 and that there is nothing inherent in the automatic approval law itself that would likely result in a constitutional violation, problems may still arise due to a particular agency’s application of section 91-13.5, HRS. Accordingly, this report discusses optional amendments that the Legislature can take on its own initiative if it concludes that there is a need to address one or more of these issues before the affected agencies address them through rulemaking.