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The Honolulu Advertiser
Posted on: Monday, October 6, 2008

New historic preservation law irks property owners, contractors

By Andrew Gomes
Advertiser Staff Writer

Hawaii news photo - The Honolulu Advertiser

This 71-year-old home in Lower Makiki cannot be demolished until the owner submits black-and-white archival photos to the state.

Photos by REBECCA BREYER | The Honolulu Advertiser

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Hawaii news photo - The Honolulu Advertiser

Act 228 applies to owners seeking to repair, renovate or demolish buildings 50 years old or more, including this 71-year-old house in Makiki.

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WHAT NEEDS A PERMIT

The broad scope of the new law makes archival photo documentation necessary for any work on 50-plus-year-old buildings that requires a building permit. However, not all repair and renovation work requires a building permit. Among permit exclusions are:

  • Perimeter walls or fences no higher than 30 inches.

  • Professional electrical work valued under $500 within 12 months.

  • Professional plumbing under $1,000 within 12 months.

  • Repairs using similar materials if valued under $1,000 within 12 months if it doesn't involve electrical, plumbing or mechanical installations.

    But pouring a new driveway or remodeling a kitchen could trigger the photo requirement under the new law.

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    "We're not yet quite coordinated on this. We're asking for the public's patience. Hawai'i is losing its history at an alarming rate."

    Pua Aiu | State Historic Preservation Division administrator

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    Last month, Duston Onaga took 35 photographs of a 71-year-old Makiki house — meticulous shots including sinks and doorknobs — to comply with a new state law that's frustrating property owners and contractors.

    The new law applies to anyone seeking to repair, renovate or demolish buildings in Hawai'i that are 50 years old or more.

    Onaga's company, Amazon Construction, was hired to tear down the old, seemingly nondescript Makiki house by its owner, but faces an additional one- to two-month wait for the city and state to process a building permit because of the new law.

    "It's ridiculous," he said, adding that a state official rejected an initial set of photos he took of the vacant four-bedroom house. "I have to print 35 photos. I was told every angle, every room."

    Act 228, which took effect in July after little public input, requires that property owners submit black-and-white archival prints to the State Historic Preservation Division of the Department of Land and Natural Resources before county building permits can be issued for work on buildings at least 50 years old.

    Potentially affected are roughly 100,000 homes in the state, according to the latest Census Bureau estimate of Hawai'i's housing inventory built before 1959. Commercial and public buildings also are included.

    The new law is being heavily criticized by some as bureaucratic red tape that compounds an already backed-up system to get building permits, and for increasing builders' costs.

    Supporters of the law see a greater social value in establishing a more thorough historical record of architecture in Hawai'i, and helping the state better enforce long-established historic preservation law that sometimes is ignored.

    WORK IN PROGRESS

    Pua Aiu, Historic Preservation Division administrator, acknowl-edged that applying the new law has been rough in part because of difficulty establishing how the process should work between her agency and county building departments.

    "We're not yet quite coordinated on this," she said. "We're asking for the public's patience. Hawai'i is losing its history at an alarming rate."

    Aiu said her agency has received about 75 photo submissions a month since July, and that there have been complaints about the law and its application. She added that the agency and county building departments are working to make the process more efficient.

    A factor in the difficult situation is chronic short staffing at the Historic Preservation Division and the city Department of Planning and Permitting, neither of which sought the new photo requirements.

    Under prior state law, Aiu said county building departments were supposed to — but often didn't — route building permit applications for any project involving 50-plus-year-old property to Historic Preservation for review. On the other hand, the division previously has been known for not reviewing building permits that were submitted due to staff shortages.

    INTERPRETATIONS VARY

    Henry Eng, director of the city Planning and Permitting Department, has a different interpretation of state law before Act 228. He said pending building permits had to go to Historic Preservation only when permits involved property on the historic register or property already identified as having historic or archaeological significance.

    One demolition project that didn't get referred for review was Varsity Theater. The theater, built in 1939 and designed by noted architect C.W. Dickey, was torn down in March.

    Historic Preservation is supposed to assess whether a property has historical significance, and depending on its findings can either permit work to proceed or initiate a plan to preserve, salvage or document historic features. The agency also has the power to purchase property through condemnation if an applicant and the agency disagree over preservation action.

    So the new law is triggering more reviews, though Aiu said that having photos provides a visual aid that will reduce the time each review takes.

    The city Planning and Permitting Department is telling the public to expect a delay of up to two months for processing a permit if their property is 50 years old or more.

    Planning and Permitting is telling building permit applicants with property at least 50 years old that they need to take photos to the Historic Preservation office, which is in Kapolei, before they can even apply for a permit.

    NO WRITTEN RULES

    City spokesman Bill Brennan said the policy is under review, though the department refers applicants to Historic Preservation first because that agency's approval is discretionary and therefore should be completed before the building permit application.

    So an applicant needs to deliver the photos, obtain a certification that acceptable photos were submitted, and then apply for a building permit with the county. Later, the permit application is sent by the county to Historic Preservation for review.

    But Historic Preservation hasn't written rules spelling out what constitutes acceptable photos — how many, what size and what to shoot aren't defined. Some applicants have been shocked to find out that digital photos aren't acceptable. Only archival quality black-and-white prints are acceptable, and they are expensive.

    Professional photographer David Franzen said typically archival prints have to be made with special processing of film, not digital camera files. "You can't go to Longs," he said.

    Aiu said Historic Preservation will propose that lawmakers modify the law next year to allow photos in any format except when a property is on the historic register. The agency also plans to publish guidelines for submissions soon on its Web site.

    'BAD PRECEDENT'

    Local architect Glenn Mason, whose specialty is historic building preservation, said it's ridiculous that any building more than 50 years old needs to be documented with archival photos before a building permit can be approved. He also said it's unconscionable that the law is being enforced without specific rules to follow.

    "It's taken a sledgehammer that isn't aimed very well to accomplish a goal in the wrong way," he said. "There is no question that the law is poorly written. It is confusing. I think it establishes a bad precedent. I think (the law's) goal is a very good one, but I don't think it was well thought out at all."

    The law appears to be the result of a well-intentioned bill, House Bill 2486, which sought to establish an extensive photo archive to document architecture of Hawai'i's past before old buildings get demolished.

    According to Rep. Cindy Evans, chairwoman of the House Heritage Caucus that introduced the bill, historic preservationists are concerned about unique old buildings disappearing without a record of their existence.

    Evans also said the bill didn't intend to trigger additional government review of old buildings for the purpose of preserving historical elements.

    "It shouldn't be cumbersome," said Evans, D-7th (N. Kona, S. Kohala). "We're not stopping people from tearing their old buildings down."

    IMPACT DISCUSSED

    Still, concerns were raised about the bill's impact during the legislative session this year.

    Laura H. Thielen, chair of the Board of Land and Natural Resources, in written testimony recommended that photographs be required only for buildings with historic qualities that qualify for listing on state or national historic registers.

    Thielen also noted that the bill would place an "unnecessary burden" on property owners to produce costly archival photos.

    Philip Hauret, an official with Hawaiian Electric Co., testified that HECO has numerous buildings over 50 years old, including two power plants.

    "We are concerned that this requirement would impose an unreasonable burden upon the most innocuous of alteration activities, not to mention its impact on a large number of residential properties," he said in written testimony.

    The only other testimony submitted on the bill was from the nonprofit Historic Hawai'i Foundation, which said it's important to have archival quality documentation of old buildings for future reference even if the buildings don't have valuable historic features.

    Kiersten Faulkner, foundation executive director, said ideally photos would only be necessary for buildings eligible for historic registers, but that determining which buildings possess such qualities would take more effort and time than requiring photos for any property 50 or more years old.

    GOVERNOR'S CONCERNS

    Gov. Linda Lingle let the bill become law without her signature, and in a message to lawmakers said she was concerned about the bill placing a burden on property owners. Lingle in her message also said her administration would propose amendments during next year's legislative session to narrow the scope of the legislation.

    Karen Iwamoto, who tracks legislation as the government relations director for the Building Industry Association of Hawai'i, said she didn't notice the bill because of its title relating to historic preservation.

    "It caught a lot of people unaware," she said, explaining that she only heard about the law after recent inquiries from contractors, architects and engineers. "It sounds like a good idea, but when you got 'mom and pop Tanigawa' that maybe want to tear down (their home) and rebuild for their children or grandchildren, it's a nuisance. They know their property isn't historic."

    Ann Noguchi, an agent with real estate firm Marcus & Associates, said one of her clients wants to demolish a roughly 700-square-foot Salt Lake house built in 1954 before selling the property, but that's being held up by the new law.

    "That's kind of ludicrous," she said. "It's a scary house. It's tear-down condition."

    Reach Andrew Gomes at agomes@honoluluadvertiser.com.