§205-4  Amendments to district boundaries involving land areas greater than fifteen acres.  (a)  Any department or agency of the State, any department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified, may petition the land use commission for a change in the boundary of a district.  This section applies to all petitions for changes in district boundaries of lands within conservation districts, lands designated or sought to be designated as important agricultural lands, and lands greater than fifteen acres in the agricultural, rural, and urban districts, except as provided in section 201H-38.  The land use commission shall adopt rules pursuant to chapter 91 to implement section 201H-38.

     (b)  Upon proper filing of a petition pursuant to subsection (a) the commission shall, within not less than sixty and not more than one hundred and eighty days, conduct a hearing on the appropriate island in accordance with the provisions of sections 91-9, 91-10, 91-11, 91-12, and 91-13, as applicable.

     (c)  Any other provision of law to the contrary notwithstanding, notice of the hearing together with a copy of the petition shall be served on the county planning commission and the county planning department of the county in which the land is located and all persons with a property interest in the land as recorded in the county's real property tax records.  In addition, notice of the hearing shall be mailed to all persons who have made a timely written request for advance notice of boundary amendment proceedings, and public notice shall be given at least once in the county in which the land sought to be redistricted is situated as well as once statewide at least thirty days in advance of the hearing.  The notice shall comply with section 91-9, shall indicate the time and place that maps showing the proposed district boundary may be inspected, and further shall inform all interested persons of their rights under subsection (e).

     (d)  Any other provisions of law to the contrary notwithstanding, prior to hearing of a petition the commission and its staff may view and inspect any land which is the subject of the petition.

     (e)  Any other provisions of law to the contrary notwithstanding, agencies and persons may intervene in the proceedings in accordance with this subsection.

     (1)  The petitioner, the office of planning, and the county planning department shall in every case appear as parties and make recommendations relative to the proposed boundary change;

     (2)  All departments and agencies of the State and of the county in which the land is situated shall be admitted as parties upon timely application for intervention;

     (3)  All persons who have some property interest in the land, who lawfully reside on the land, 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 for intervention;

     (4)  All other persons may apply to the commission for leave to intervene as parties.  Leave to intervene shall be freely granted; provided that the commission or its hearing officer, if one is appointed, may deny an application to intervene when in the commission's or hearing officer's sound discretion it appears that:

          (A)  The position of the applicant for intervention concerning the proposed change is substantially the same as the position of a party already admitted to the proceeding; and

          (B)  The admission of additional parties will render the proceedings inefficient and unmanageable.

          A person whose application to intervene is denied may appeal the denial to the circuit court pursuant to section 91-14; and

     (5)  The commission, pursuant to chapter 91, shall adopt rules governing the intervention of agencies and persons under this subsection.  The rules shall without limitation establish:

          (A)  The information to be set forth in any application for intervention;

          (B)  The limits within which applications shall be filed; and

          (C)  Reasonable filing fees to accompany applications.

     (f)  Together with other witnesses that the commission may desire to hear at the hearing, it shall allow a representative of a citizen or a community group to testify who indicates a desire to express the view of such citizen or community group concerning the proposed boundary change.

     (g)  Within a period of not more than three hundred sixty-five days after the proper filing of a petition, unless otherwise ordered by a court, or unless a time extension, which shall not exceed ninety days, is established by a two-thirds vote of the members of the commission, the commission, by filing findings of fact and conclusions of law, shall act to approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of this chapter or the policies and criteria established pursuant to section 205-17 or to assure substantial compliance with representations made by the petitioner in seeking a boundary change.  The commission may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification.  Such conditions, if any, shall run with the land and be recorded in the bureau of conveyances.

     (h)  No amendment of a land use district boundary shall be approved unless the commission finds upon the clear preponderance of the evidence that the proposed boundary is reasonable, not violative of section 205-2 and part III of this chapter, and consistent with the policies and criteria established pursuant to sections 205-16 and 205-17.  Six affirmative votes of the commission shall be necessary for any boundary amendment under this section.

     (i)  Parties to proceedings to amend land use district boundaries may obtain judicial review thereof in the manner set forth in section 91-14, provided that the court may also reverse or modify a finding of the commission if such finding appears to be contrary to the clear preponderance of the evidence.

     (j)  At the hearing, all parties may enter into appropriate stipulations as to findings of fact, conclusions of law, and conditions of reclassification concerning the proposed boundary change.  The commission may but shall not be required to approve such stipulations based on the evidence adduced. [L 1963, c 205, pt of §2; am L 1965, c 32, §2; Supp, §98H-4; HRS §205-4; am L 1972, c 187, §2; am L 1975, c 193, §5; am L 1976, c 4, §1; am L 1985, c 230, §4; am L 1986, c 93, §1; am L 1987, c 336, §7; am L 1988, c 352, §2; am L 1989, c 261, §10; am L 1990, c 261, §1; am L 1995, c 235, §1; am L 1996, c 299, §3; am L 1997, c 350, §15; am L 1998, c 2, §60; am L 2005, c 183, §4; am L 2007, c 249, §15; am L 2017, c 12, §16]

 

Attorney General Opinions

 

  The commission may be empowered to impose conditions on reclassifications and to impose sanctions for violation of the conditions, and the conditions may be made to run with the land.  Att. Gen. Op. 72-8.

  Proposal to subdivide agricultural land into agriculturally unfeasible small lots would violate intent of chapter.  Att. Gen. Op. 75-8.

 

Law Journals and Reviews

 

  The Scramble to Protect the American Dream in Paradise:  Is Affordable Housing Possible in Hawaii?  10 HBJ, no. 13, at 37 (2007).

  "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).

 

Case Notes

 

  Proceeding for amendment to boundaries challenged by adjoining landowner is a contested case within meaning of §91-1(5).  55 H. 538, 524 P.2d 84 (1974).

  Provision that commission shall render decision within forty-five and ninety days after the public hearing is mandatory and decision rendered after the time period is void.  55 H. 538, 524 P.2d 84 (1974).

  The adoption or amendment of boundaries is not a rule-making process within meaning of §91-1(4).  55 H. 538, 524 P.2d 84 (1974).

  Person entitled under prior law to petition for change in boundary.  57 H. 84, 549 P.2d 737 (1976).

  Where landlord seeks to evict tenants who exercise their rights to appear and testify at a public hearing, defense of retaliatory eviction is available.  59 H. 104, 577 P.2d 326 (1978).

  Commission rules re intervention and "final order" for purposes of appeal, construed.  63 H. 529, 631 P.2d 588 (1981).

  Proposal for recreational theme park on agricultural land was more properly the subject of a boundary amendment under this section, rather than a special permit.  64 H. 265, 639 P.2d 1097 (1982).

  The intermediate court of appeals erred in determining that a member of the land use commission continued to serve as a valid holdover after the senate's rejection of the member's nomination for a second term; the member's actions with respect to a petition to reclassify land were invalid.  132 H. 184, 320 P.3d 849 (2013).

  The land use commission lacked the six affirmative votes required to approve a petition to reclassify land because a commission member was disqualified from participating in the petition proceedings following the senate's rejection of the member's nomination for a second term.  132 H. 184, 320 P.3d 849 (2013).

  Where property was reclassified from agricultural to urban to allow for the development of a residential community, the land use commission (LUC) erred in reverting the property to the agricultural land use district without complying with the requirements of this section because the property owners substantially commenced use of the property in accordance with the representations they made to the LUC.  134 H. 187, 339 P.3d 685 (2014).

  Cited:  125 F. Supp. 3d 1051 (2015).

 

 

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