§46-4  County zoning.  (a)  This section and any ordinance, rule, or regulation adopted in accordance with this section shall apply to lands not contained within the forest reserve boundaries as established on January 31, 1957, or as subsequently amended.

     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.  Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner.  Zoning in the counties of Hawaii, Maui, and Kauai means the establishment of districts of such number, shape, and area, and the adoption of regulations for each district to carry out the purposes of this section.  In establishing or regulating the districts, full consideration shall be given to all available data as to soil classification and physical use capabilities of the land to allow and encourage the most beneficial use of the land consonant with good zoning practices.  The zoning power granted herein shall be exercised by ordinance which may relate to:

     (1)  The areas within which agriculture, forestry, industry, trade, and business may be conducted;

     (2)  The areas in which residential uses may be regulated or prohibited;

     (3)  The areas bordering natural watercourses, channels, and streams, in which trades or industries, filling or dumping, erection of structures, and the location of buildings may be prohibited or restricted;

     (4)  The areas in which particular uses may be subjected to special restrictions;

     (5)  The location of buildings and structures designed for specific uses and designation of uses for which buildings and structures may not be used or altered;

     (6)  The location, height, bulk, number of stories, and size of buildings and other structures;

     (7)  The location of roads, schools, and recreation areas;

     (8)  Building setback lines and future street lines;

     (9)  The density and distribution of population;

    (10)  The percentage of a lot that may be occupied, size of yards, courts, and other open spaces;

    (11)  Minimum and maximum lot sizes; and

    (12)  Other regulations the boards or city council find necessary and proper to permit and encourage the orderly development of land resources within their jurisdictions.

     The council of any county shall prescribe rules, regulations, and administrative procedures and provide personnel it finds necessary to enforce this section and any ordinance enacted in accordance with this section.  The ordinances may be enforced by appropriate fines and penalties, civil or criminal, or by court order at the suit of the county or the owner or owners of real estate directly affected by the ordinances.

     Any civil fine or penalty provided by ordinance under this section may be imposed by the district court, or by the zoning agency after an opportunity for a hearing pursuant to chapter 91.  The proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.

     Nothing in this section shall invalidate any zoning ordinance or regulation adopted by any county or other agency of government pursuant to the statutes in effect prior to July 1, 1957.

     The powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accordance with a long-range, comprehensive general plan to ensure the greatest benefit for the State as a whole.  This section shall not be construed to limit or repeal any powers of any county to achieve these ends through zoning and building regulations, except insofar as forest and water reserve zones are concerned and as provided in subsections (c) and (d).

     Neither this section nor any ordinance enacted pursuant to this section shall prohibit the continued lawful use of any building or premises for any trade, industrial, residential, agricultural, or other purpose for which the building or premises is used at the time this section or the ordinance takes effect; provided that a zoning ordinance may provide for elimination of nonconforming uses as the uses are discontinued, or for the amortization or phasing out of nonconforming uses or signs over a reasonable period of time in commercial, industrial, resort, and apartment zoned areas only.  In no event shall such amortization or phasing out of nonconforming uses apply to any existing building or premises used for residential (single-family or duplex) or agricultural uses.  Nothing in this section shall affect or impair the powers and duties of the director of transportation as set forth in chapter 262.

     (b)  Any final order of a zoning agency established under this section may be appealed to the circuit court of the circuit in which the land in question is found.  The appeal shall be in accordance with the Hawaii rules of civil procedure.

     (c)  Each county may adopt reasonable standards to allow the construction of two single-family dwelling units on any lot where a residential dwelling unit is permitted.

     (d)  Neither this section nor any other law, county ordinance, or rule shall prohibit group living in facilities with eight or fewer residents for purposes or functions that are licensed, certified, registered, or monitored by the State; provided that a resident manager or a resident supervisor and the resident manager's or resident supervisor's family shall not be included in this resident count.  These group living facilities shall meet all applicable county requirements not inconsistent with the intent of this subsection, including but not limited to building height, setback, maximum lot coverage, parking, and floor area requirements.

     (e)  Neither this section nor any other law, county ordinance, or rule shall prohibit the use of land for employee housing and community buildings in plantation community subdivisions as defined in section 205-4.5(a)(12); in addition, no zoning ordinance shall provide for the elimination, amortization, or phasing out of plantation community subdivisions as a nonconforming use.

     (f)  Neither this section nor any other law, county ordinance, or rule shall prohibit the use of land for medical cannabis production centers or medical cannabis dispensaries established and licensed pursuant to chapter 329D; provided that the land is otherwise zoned for agriculture, manufacturing, or retail purposes. [L 1957, c 234, pt of §6 and §9; am L Sp 1959 2d, c 1, §§26, 38; am L 1965, c 140; Supp, §138-42; HRS §46-4; am L 1980, c 203, §1; am L 1981, c 229, §2; am L 1982, c 54, §5; am L 1985, c 272, §3; am L 1986, c 177, §1; am L 1987, c 109, §2, c 193, §1, and c 283, §4; am L 1988, c 141, §§5, 6 and c 252, §1; am L 1989, c 313, §1; am L 1990, c 67, §3; am L 1997, c 350, §15; am L 2004, c 212, §2; am L 2005, c 139, §3; am L 2006, c 237, §2; am L 2007, c 249, §7; am L 2011, c 220, §§9, 10; am L 2014, c 193, §7; am L 2015, c 241, §3; am L 2017, c 170, §2]


Cross References


  Zoning within land use districts, see §§205-5, 6.

  See also county charters.


Rules of Court


  Appeal to circuit court, see HRCP rule 72.


Attorney General Opinions


  Counties have the power to prescribe lot sizes within an agricultural district established by the state land use commission.  Att. Gen. Op. 62-33.

  Preempts conflicting county fire and building codes.  Att. Gen. Op. 84-7.

  Immunity of state land from county planning and zoning laws extends to private nonprofit lessee undertaking park project in public interest.  Att. Gen. Op. 86-3.


Law Journals and Reviews


  Kaiser Hawaii Kai Development Company v. City and County of Honolulu:  Zoning by Initiative in Hawaii.  12 UH L. Rev. 181.

  Honolulu's Ohana Zoning Law:  To Ohana or Not to Ohana.  13 UH L. Rev. 505.

  The Lum Court, Land Use, and the Environment:  A Survey of Hawaii Case Law 1983 to 1991.  14 UH L. Rev. 119.

  The Manoa Valley Special District Ordinance:  Community-Based Planning in the Post-Lucas Era.  19 UH L. Rev. 449.

  Water Regulation, Land Use and the Environment.  30 UH L. Rev. 49.

  Maui's Residential Workforce Housing Policy:  Finding the Boundaries of Inclusionary Zoning.  30 UH L. Rev. 447.


Case Notes


  Kauai county charter section 3.19 and ordinance no. 912 created a land use classification that did not previously exist and established the process developers must follow in order to use their land within that classification.  Section 3.19 was an improper zoning initiative and, pursuant to Kaiser Hawaii Kai and subsection (a), section 3.19 was invalid.  955 F. Supp. 2d 1156 (2013).

  Where county officials assured developer that developer's plans met zoning requirements and developer expended substantial sum in reliance, the city was estopped from denying developer a building permit under a subsequently enacted ordinance.  60 H. 446, 592 P.2d 26.

  Section does not relate to a city's executive, legislative and administrative structure and organization; zoning by initiative is impermissible.  70 H. 480, 777 P.2d 244.

  Public utilities commission has the authority to regulate the height of utility poles.  72 H. 285, 814 P.2d 398.

  As state water code expressly reserves the counties' authority with respect to land use planning and policy, water resource management commission allegedly imposing a "directive" on the counties to designate priorities among proposed uses did not usurp counties' land use planning and zoning authority.  94 H. 97, 9 P.3d 409.

  Rezoning is a legislative function; a zoning ordinance is a legislative act and is subject to the deference given legislative acts.  102 H. 465, 78 P.3d 1.

  Where department of planning and permitting director's mixed finding of fact and conclusion of law that a change in nonconforming use was permitted under the land use ordinance was not supported by the record, the appeals court erred when it concluded that the director's ruling "was reasonably based on the evidence before the director and constituted a reasonable application of the applicable zoning ordinance and the department's previous interpretation of that ordinance".  121 H. 16, 211 P.3d 74. 

  Grandfather protections afforded a property owner under this section and land use ordinance intended to prohibit new zoning ordinances from interfering with an owner's lawful uses of a building or premises under an existing zoning ordinance.  86 H. 343 (App.), 949 P.2d 183.

  "Lawful use" and "previously lawful", as used in this section and land use ordinance, respectively, refer to compliance with previous zoning laws, not the building codes or other legal requirements that may be applicable to the construction or operation of a structure.  86 H. 343 (App.), 949 P.2d 183.

  Subsection (a) establishes a private right of action in favor of a real estate owner directly affected by an alleged land use ordinance (LUO) zoning violation to seek judicial enforcement of the LUO; thus, the circuit court had original subject matter jurisdiction over plaintiffs’ zoning enforcement claim; however, the circuit court’s jurisdiction was subject to the doctrine of primary jurisdiction where the court was justified in requiring the plaintiffs to first pursue an administrative determination of their claim that defendants had been violating the LUO before proceeding with judicial enforcement of the LUO.  127 H. 390 (App.), 279 P.3d 55 (2012).

  Public trust duties under article XI, §1 of the Hawaii constitution extended to appellee Kauai County planning commission's review of appellant water bottling company's existing and proposed use of water for its operations; the county's public trust duty under article XI, §1 coupled with the State's power to create and delegate duties and responsibilities to the various counties through the enactment of statutes, established that the county had a duty to conserve and protect water in considering whether to issue a use permit and zoning permit to appellant.  130 H. 407 (App.), 312 P.3d 283 (2013).