§205-6  Special permit.  (a)  Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.  Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired.  Each county may establish the appropriate fee for processing the special permit petition.  Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment.

     (b)  The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur.  The county planning commission shall notify the land use commission and such persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

     (c)  The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter.  A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission.

     (d)  Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission.  The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant.

     (e)  A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered.

     Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition.  A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.

     (f)  Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4.5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U. [L 1963, c 205, pt of §2; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1; am L 1976, c 4, §2; am L 1978, c 166, §1; am L 1979, c 221, §1; gen ch 1985; am L 1998, c 237, §6; am L 2005, c 183, §5]


Rules of Court


  Appeal to circuit court, see HRCP rule 72.


Attorney General Opinions


  Special permits cannot be granted to authorize uses which have effect of making boundary change or creating new district.  Att. Gen. Op. 63-37.

  Authority of land use commission to modify permit approved by county commission discussed.  Att. Gen. Op. 68-30.

  Land use commission is not authorized to review county planning commission's denial of request for modification of special permit.  Att. Gen. Op. 77-4.


Law Journals and Reviews


  "Urban Type Residential Communities in the Guise of Agricultural Subdivisions:"  Addressing an Impermissible Use of Hawai‘i's Agricultural District.  25 UH L. Rev. 199 (2002).

  Ala Loop and the Private Right of Action Under Hawai‘i Constitution Article XI, Section 9:  Charting a Path Toward a Cohesive Enforcement Scheme.  33 UH L. Rev. 367 (2010).

  A Self-Executing Article XI, Section 9--The Door For a Bivens Action for Environmental Rights?  34 UH L. Rev. 187 (2012).


Case Notes


  Where plaintiffs alleged violations of Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and made other claims based on county planning commission's denial of a special use permit sought under this section:  among other things, no Eleventh Amendment immunity for the county; RLUIPA, assuming it was constitutional, did not facially invalidate Hawaii's land use law; strict scrutiny test would apply in assessing county's past actions in further proceedings in the case.  229 F. Supp. 2d 1056 (2002).

  Former provision requiring that a public hearing on an application for a special permit be held within one hundred twenty days was directory not mandatory.  62 H. 666, 619 P.2d 95.

  Validity of attaching conditions for approval of special permit.  62 H. 666, 619 P.2d 95.

  Recreational theme park on agricultural land was not "unusual and reasonable use" which would qualify for special permit.  64 H. 265, 639 P.2d 1079.

  "Communications equipment buildings" and "utility lines" in §205-4.5(a)(7) do not encompass "telecommunications antennas" or "transmission antennas" such as a cellular telephone tower; public utility thus had to apply for a special permit under this section to place the tower in a state agricultural district.  90 H. 384, 978 P.2d 822.

  Where land use commission’s imposition of restrictive condition – a termination date of July 31, 2012 for the deposit of municipal solid waste at the Waimanalo Gulch Sanitary Landfill - in its approval of special use permit was not supported by substantial evidence in the record, condition could not stand; matter remanded to land use commission.  127 H. 5, 275 P.3d 809 (2012).

  Appellee Kauai County planning commission's public trust duty under article XI, §1 of the Hawaii constitution, coupled with the State's power to create and delegate duties to the counties, established that appellee had a duty to conserve and protect water resources in considering whether to issue a special permit to appellant water bottling company.  130 H. 407 (App.), 312 P.3d 283 (2013).



Previous Vol04_Ch0201-0257 Next