County Land Use Commissions
Replaces the state land use commission with four county land use commissions, each responsible for the classification and zoning of lands within their jurisdiction, including the zoning of conservation lands.
TWENTY-FIRST LEGISLATURE, 2002
STATE OF HAWAII
A BILL FOR AN ACT
relating to land use.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to replace the state land use commission with four county land use commissions, each responsible for the classification and zoning of lands within their jurisdiction, including the zoning of conservation lands.
SECTION 2. (a) Chapter 205, Hawaii Revised Statutes, is repealed.
(b) Chapter 183C, Hawaii Revised Statutes, is repealed.
SECTION 3. Chapter 46, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . LAND USE
A. GENERAL PROVISIONS
§46-A County land use commissions. (a) There shall be a land use commission for each county. Each commission shall consist of nine members who shall hold no other public office and shall be nominated and, by and with the advice and consent of the county council, appointed by the mayor. Each commission shall elect its chairperson from one of its members. The members shall receive no compensation for their services on the commission, but shall be reimbursed for actual expenses incurred in the performance of their duties. Six affirmative votes shall be necessary for any boundary amendment or zoning change.
(b) A commission shall be a part of the office of the mayor for administrative purposes.
(c) A commission may engage employees necessary to perform its duties, including administrative personnel and an executive officer. The executive officer shall be appointed by the commission and the executive officer's position shall be exempt from civil service. Departments of the state government shall make available to each commission such data, facilities, and personnel as may be necessary for the commission to perform its duties. A commission may receive and utilize gifts and any funds from federal or state governmental agencies. Each commission shall adopt rules in accordance with chapter 91 to guide its conduct, maintain a record of its activities and accomplishments, and make recommendations to the legislature through the mayor.
(d) A commission may establish reasonable fees for the filing of boundary amendment and zoning change petitions and petitions for intervention to cover the cost of processing thereof and for the reproduction of maps and documents. A commission also may assess a reasonable fee or require reimbursements to be made for court reporter expenses, the inexcusable absence of a party from any commission proceeding, and any other reimbursements for hearing expenses as determined by the commission. Any fees collected by a commission shall be realizations of the county.
(e) Upon the adoption of district boundaries, a commission shall file certified copies of the classification maps showing the district boundaries with the department of taxation. Thereafter, the department of taxation, when making assessments of property within a district, shall give consideration to the use or uses that may be made thereof as well as the uses to which it is then devoted.
(f) Each commission may adopt rules, including administrative penalties, to carry out the purposes of this part and part I. The rules shall be adopted in accordance with chapter 91.
§46-B Districting and classification of lands. (a) There shall be four major land use districts in which all lands in a county shall be placed: urban, rural, agricultural, and conservation. The land use commission shall group contiguous land areas suitable for inclusion in one of these four major districts. The commission shall set standards for determining the boundaries of each district, provided that:
(1) In the establishment of boundaries of urban districts those lands that are now in urban use and a sufficient reserve area for foreseeable urban growth shall be included;
(2) In the establishment of boundaries for rural districts, areas of land composed primarily of small farms mixed with very low density residential lots shall be included; and
(3) In the establishment of the boundaries of agricultural districts the greatest possible protection shall be given to those lands with a high capacity for intensive cultivation.
In establishing the boundaries of the districts in each county, the commission shall give consideration to the master plan or general plan of the county.
(b) Urban districts shall include activities or uses as provided by ordinances or rules of the county within which the urban district is situated.
(c) Rural districts shall include activities or uses as characterized by low density residential lots in areas where "city-like" concentration of people, structures, streets, and urban level of services are absent, and where small farms are intermixed with low density residential lots. These districts may include contiguous areas which are not suited to low density residential lots or small farms by reason of topography, soils, and other related characteristics.
(d) Agricultural districts shall include activities or uses as characterized by the cultivation of crops, orchards, forage, and forestry; farming activities or uses related to animal husbandry, aquaculture, and game and fish propagation; aquaculture, which means the production of aquatic plant and animal life for food and fiber within ponds and other bodies of water; wind generated energy production for public, private, and commercial use; bona fide agricultural services and uses which support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, whether or not conducted on the same premises as the agricultural activities to which they are accessory, including farm dwellings, employee housing, farm buildings, mills, storage facilities, processing facilities, vehicle and equipment storage areas, and roadside stands for the sale of products grown on the premises; wind machines and wind farms; small-scale meteorological, air quality, noise, and other scientific and environmental data collection and monitoring facilities, provided that the facilities shall not be used as or equipped for use as living quarters or dwellings; agricultural parks; and open area recreational facilities, including golf courses and golf driving ranges; provided that they are not located within agricultural district lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B.
These districts may include areas which are not used for, or which are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics.
(e) Conservation districts shall include areas necessary for protecting watersheds and water sources; preserving scenic and historic areas; providing park lands, wilderness, and beach reserves; conserving indigenous or endemic plants, fish, and wildlife, including those which are threatened or endangered; preventing floods and soil erosion; forestry; open space areas whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding communities, or would maintain or enhance the conservation of natural or scenic resources; areas of value for recreational purposes; other related activities; and other permitted uses not detrimental to a multiple use conservation concept.
§46-C Zoning. (a) Except as provided in this section, the powers granted to counties under part I shall govern the zoning within the districts, including conservation districts.
(b) Within agricultural districts, accessory agricultural uses and services described in sections 46-B and 46-C may be further defined by each county by zoning ordinance. The minimum lot size in agricultural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means.
§46-D Permissible uses within the agricultural districts. (a) Within the agricultural district all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be restricted to the following permitted uses:
(1) Cultivation of crops, including flowers, vegetables, foliage, fruits, forage, and timber;
(2) Game and fish propagation;
(3) Raising of livestock, including poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;
(4) Farm dwellings, employee housing, farm buildings, or activity or uses related to farming and animal husbandry;
"Farm dwelling" as used in this paragraph means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;
(5) Public institutions and buildings that are necessary for agricultural practices;
(6) Public and private open area types of recreational uses including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;
(7) Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, or treatment plants, or corporation yards, or other like structures;
(8) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;
(9) Roadside stands for the sale of agricultural products grown on the premises;
(10) Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the abovementioned uses and are permitted under section 46-B(d);
(11) Agricultural parks; or
(12) Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy, provided the facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land.
(b) Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in section 46-H, and construction of single-family dwellings on lots existing before June 4, 1976. Any other law to the contrary notwithstanding, no subdivision of land within the agricultural district with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be approved by a county unless the class A and B lands within the subdivision shall be made subject to the restriction on uses as prescribed in this section and to the condition that the uses shall be primarily in pursuit of an agricultural activity.
Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision shall expressly contain the restriction on uses and the condition as prescribed in this section which restriction and condition shall be encumbrances running with the land until such time that the land is reclassified to a land use district other than agricultural district.
If the foregoing requirement of encumbrances running with the land jeopardizes the owner or lessee from obtaining mortgage financing from any of the mortgage lending agencies set forth in this subsection, and the requirement is the sole reason for failure to obtain mortgage financing, then the requirement of encumbrances, insofar as the mortgage financing is so jeopardized, shall be conditionally waived by the appropriate county enforcement officer; provided that the conditional waiver shall thereafter become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.
The mortgage lending agencies mentioned in this subsection are the Federal Housing Administration, Federal National Mortgage Association, Veterans Administration, Small Business Administration, United States Department of Agriculture, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, and any other federal, state, or private mortgage lending agency qualified to do business in Hawaii, and their respective successors and assigns.
(c) Within the agricultural district all lands, with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U shall be restricted to the uses permitted for agricultural districts.
§46-E Geothermal resource subzones. (a) Geothermal resource subzones may be designated within the urban, rural, agricultural, and conservation land use districts established under section 46-B. Only those areas designated as geothermal resource subzones may be utilized for geothermal development activities in addition to those uses permitted in each land use district under this part and part I. Geothermal development activities may be permitted within urban, rural, agricultural, and conservation land use districts in accordance with this part and part I. "Geothermal development activities" means the exploration, development, or production of electrical energy from geothermal resources and direct use applications of geothermal resources; provided that within the urban, rural, and agricultural land use districts, direct use applications of geothermal resources are permitted both within and outside of areas designated as geothermal resource subzones if the direct use applications are in conformance with all other applicable state and county land use rules and are in conformance with this part and part I.
(b) The land use commission shall have the responsibility for designating areas, including areas within the conservation district, as geothermal resource subzones; except that any area which is the subject of a geothermal mining lease approved by the board of land and natural resources prior to the effective date of this part shall be designated as a geothermal resource subzone for the duration of the lease. The designation of geothermal resource subzones shall be governed exclusively by this part and part I. The commission shall adopt rules related to its authority to designate geothermal resource subzones in accordance with chapter 91.
(c) The use of an area for geothermal development activities within a geothermal resource subzone shall be governed by the land use commission; provided that:
(1) Desired uses shall not have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property; and
(2) Desired used shall not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, and police and fire protection; or
(3) There shall be reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to in paragraphs (1) and (2).
(d) Notwithstanding subsection (a) or any other provision of law, any exploratory well drilled for scientific purposes or to determine the economic viability of a geothermal resource, may be permitted outside of a designated geothermal resource subzone, regardless of land use classification, provided the activity is limited to exploration only. All applicable state and county permits shall be required to drill these exploratory wells, which shall not be exempt from the requirements of chapter 343.
§46-F Compliance with the Hawaii state plan. No amendment to any land use district boundary nor any other action by the land use commission shall be adopted unless the amendment or other action conforms to the applicable goals, objectives, and policies of the Hawaii state plan and the applicable priority guidelines of the Hawaii state plan and the adopted functional plans.
§46-G Penalty for violation. Any person who violates section 46-D, or any rule adopted pursuant to section 46-D, shall be fined not more than $5,000, and any person who violates any other provision in this subpart, or any rule adopted pursuant to this subpart, shall be fined not more than $1,000.
If any person cited for a violation under this subpart fails to remove the violation within six months of the citation and the violation continues to exist, the person shall be subject to a citation for a new and separate violation. There shall be a fine of not more than $5,000 for any additional violation.
Prior to the issuance of any citation for a violation, the appropriate enforcement officer or agency shall notify the violator and the mortgagee, if any, of the violation, and the violator or the mortgagee, if any, shall have not more than sixty days to cure the violation before citation for a violation is issued.
§46-H Nonconforming uses. The lawful use of land or buildings existing on the date of establishment of any interim agricultural district and rural district in final form may be continued although the use does not conform to this part or part I; provided that no nonconforming building shall be replaced, reconstructed, or enlarged or changed to another nonconforming use and no nonconforming use of land shall be expanded or changed to another nonconforming use. If any nonconforming use of land or building is discontinued or held in abeyance for a period of one year, the further continuation of the use shall be prohibited.
B. CONSERVATION DISTRICT; ZONING
§46-I Findings and purpose. The legislature finds that lands within the conservation district contain important natural resources essential to the preservation of the State's fragile natural ecosystems and the sustainability of the State's water supply. It is therefore, the intent of the legislature to conserve, protect, and preserve the important natural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety and welfare.
§46-J Definitions. As used in this subpart, unless the context otherwise requires:
"Conservation district" means those lands within the various counties of the State bounded by the conservation district line, as established under provisions of Act 187, Session Laws of Hawaii 1961, and Act 205, Session Laws of Hawaii 1963, or future amendments thereto.
"Kuleana" means those lands granted to native tenants pursuant to L. 1850, p. 202 entitled "An Act Confirming Certain Resolutions of the King and Privy Council, Passed on the 21st Day of December, A.D. 1849, Granting to the Common People Allodial Titles for Their Own Lands and House Lots, and Certain Other Privileges," as originally enacted and as amended.
"Land" means all real property, fast or submerged, and all interests therein, including fauna, flora, minerals, and all such natural resources, unless otherwise expressly provided.
"Landowner" means an owner of land or any estate or interest in that land.
"Land use" means:
(1) The placement or erection of any solid material on land;
(2) The grading, removing, harvesting, dredging, mining, or extraction of any material or natural resource on land;
(3) The subdivision of land; or
(4) The construction, reconstruction, demolition, or alteration of any structure, building, or facility on land.
"Nonconforming" use means the lawful use of any building, premises or land for any trade, industry, residence or other purposes which is the same as and no greater than that established prior to October 1, 1964, or prior to the inclusion of the building, premises, or land within the conservation district.
§46-K Powers and duties of the land use commission. The land use commission shall:
(1) Maintain an accurate inventory of lands classified within the conservation district by the commission, pursuant to this part and part I;
(2) Identify and appropriately zone those lands classified within the conservation district;
(3) Adopt rules, in compliance with chapter 91 which shall have the force and effect of law;
(4) Set, charge, and collect reasonable fees in an amount sufficient to defray the cost of processing applications for zoning, use, and subdivision of conservation lands;
(5) Establish categories of uses or activities on conservation lands, including allowable uses or activities for which no permit shall be required;
(6) Establish restrictions, requirements, and conditions consistent with the standards set forth in this part and part I on the use of conservation lands; and
(7) Establish and enforce land use regulations on conservation district lands including the collection of fines for violations of land use and terms and conditions of permits issued by the commission.
§46-L Zoning; amendments. (a) The land use commission, after notice and hearing as provided in this section, shall review and redefine the boundaries of the zones within the conservation district.
(b) The land use commission shall adopt rules governing the use of land within the boundaries of the conservation district that are consistent with the conservation of necessary forest growth, the conservation and development of land and natural resources adequate for present and future needs, and the conservation and preservation of open space areas for public use and enjoyment. No use except a nonconforming use as defined in section 46-M, shall be made within the conservation district unless the use is in accordance with a zoning rule.
(c) The land use commission may allow a temporary variance from zoned use where good cause is shown and where the proposed temporary variance is for a use determined by the commission to be in accordance with good conservation practices.
(d) The land use commission shall establish zones within the conservation district, which shall be restricted to certain uses. The commission, by rules, may specify the land uses permitted therein which may include, but are not limited to, farming, flower gardening, operation of nurseries or orchards, growth of commercial timber, grazing, recreational or hunting pursuits, or residential use. The rules may control the extent, manner, and times of the uses, and may specifically prohibit unlimited cutting of forest growth, soil mining, or other activities detrimental to good conservation practices.
(e) Whenever any landowner or government agency whose property will be directly affected makes an application to change the boundaries or land uses of any zone, or to establish a zone with certain land uses, or where the land use commission proposes to make the change or changes itself, the change or changes shall be put in the form of a proposed rule by the applicant and the commission shall then give public notice thereof during three successive weeks statewide and in the county in which the property is located. The notice shall be given not less than thirty days prior to the date set for the hearing, and shall state the time and place of the hearing and the changes proposed. Any proposed rules and the necessary maps shall be made available for inspection by interested members of the public. The hearing shall be held in the county in which the land is located. For the purpose of its public hearing or hearings, the commission may summon witnesses, administer oaths, and require the giving of testimony.
§46-M Nonconforming uses. Neither this part nor part I, nor any rules adopted hereunder shall prohibit the continuance of the lawful use of any building, premises, or land for any trade, industrial, residential, or other purpose for which the building, premises, or land was used on October 1, 1964, or at the time any rule adopted under authority of this part or part I takes effect. All such existing uses shall be nonconforming uses. Any land identified as a kuleana may be put to those uses which were historically, customarily, and actually found on the particular lot including, if applicable, the construction of a single family residence. Any structures may be subject to conditions to ensure they are consistent with the surrounding environment.
§46-N Permits and site plan approvals. (a) The land use commission shall regulate land use in the conservation district by the issuance of permits.
(b) The land use commission shall render a decision on a completed application for a permit within one-hundred-eighty days of its acceptance by the commission. If within one-hundred-eighty days after acceptance of a completed application for a permit, the commission shall fail to give notice, hold a hearing, and render a decision, the owner may automatically put the owner's land to the use or uses requested in the owner's application. When an environmental impact statement is required pursuant to chapter 343, or when a contested case hearing is requested pursuant to chapter 91, the one-hundred-eighty days may be extended an additional ninety days at the request of the applicant. Any request for additional extensions shall be subject to the approval of the commission.
(c) The land use commission shall hold a public hearing in every case involving the proposed use of land for commercial purposes, at which hearing interested persons shall be afforded a reasonable opportunity to be heard. Public notice of the time and place of the hearing shall be given at least once statewide and in the county in which the property is located. The notice shall be given not less than twenty days prior to the date set for the hearing. The hearing shall be held in the county in which the land is located. For the purposes of its public hearing or hearings, the commission shall have the power to summon witnesses, administer oaths, and require the giving of testimony. As used in this subsection, the term "commercial purposes" shall not include the use of land for utility purposes.
(d) The land use commission shall regulate the construction, reconstruction, demolition, or alteration of any structure, building, or facility by the issuance of site plan approvals.
(e) Any permit for the reconstruction, restoration, repair, or use of any Hawaiian fishpond exempted from the requirements of chapter 343 under section 183B-2 shall provide for compliance with the conditions of section 183B-2.
§46-O Penalty for violation. (a) The land use commission shall prescribe administrative procedures as it deems necessary for the enforcement of this subpart and any zoning rule adopted in accordance therewith. These rules may be enforced by court order at the suit of the commission or of the owner or owners of real estate directly affected by the rules. The provisions of section 607-25 shall apply to this subpart.
(b) Any person violating this subpart or any rule adopted in accordance with this subpart shall be fined not more than $2,000 in addition to administrative costs and damages to public land. After written notification from the land use commission, wilful violation of this section may incur an additional fine of up to $2,000 per day for each day in which the violation persists.
§46-P Zoning order; appeal to circuit court. Any final order of the land use commission based upon this subpart may be appealed to the circuit court of the circuit in which the land in question is found. The appeal shall be in accord with chapter 91 and the Hawaii rules of civil procedure.
SECTION 4. (a) Sections 46-15(a), 46-15.7, 343-5(a)(2), (7), and (8), Hawaii Revised Statutes, are amended by replacing the term "state land use commission", or like terms, with the term "land use commission", or like terms, as the context requires.
(b) The legislative reference bureau shall prepare proposed conforming legislation to make necessary amendments to statutes affected by the repeal of chapters 183C and 205, Hawaii Revised Statutes. The legislative reference bureau shall transmit such proposed legislation to the legislature not later than twenty days prior to the convening of the regular session of 2003.
SECTION 5. Section 26-18, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The following are placed in the department of business, economic development, and tourism for administrative purposes as defined by section 26-35: Aloha Tower development corporation, Hawaii community development authority, high technology development corporation, [
land use commission,] natural energy laboratory of Hawaii authority, the housing and community development corporation of Hawaii, and any other boards and commissions as shall be provided by law.
The department of business, economic development, and tourism shall be empowered to establish, modify, or abolish statistical boundaries for cities, towns, or villages in the State and shall publish, as expeditiously as possible, an up-to-date list of cities, towns, and villages after changes to statistical boundaries have been made."
SECTION 6. Section 46-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
This section and any ordinances or rules and regulations adopted in accordance with it, shall apply to those 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 as shall be deemed best suited 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 so as 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 lot which may be occupied, size of yards, courts, and other open spaces.
(11) Minimum and maximum lot sizes.
(12) Other such regulations as may be deemed by the boards or city council as necessary and proper to permit and encourage orderly development of land resources within their jurisdictions.
The council of any county shall prescribe such rules and regulations and administrative procedures and provide such personnel as it may deem necessary for the enforcement of this section and any ordinance enacted in accordance therewith. 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. Such a proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.
Nothing in this section shall invalidate any zoning ordinances 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 accord with a long range, comprehensive, general plan, and to insure the greatest benefit for the State as a whole. This section shall not be construed to limit or repeal any powers now possessed by any county to achieve the 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 under this section shall prohibit the continuance of the lawful use of any building or premises for any trade, industry, 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."
SECTION 7. Section 174C-3, Hawaii Revised Statutes, is amended by amending the definition of "authorized planned use" to read as follows:
""Authorized planned use" means the use or projected use of water by a development that has received the proper [
state] land use designation and county development plan/community plan approvals."
SECTION 8. Section 174C-31, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) All water use and development plans shall be prepared in a manner consistent with the following conditions:
(1) Each water use and development plan shall be consistent with the water resource protection and water quality plans;
(2) Each water use and development plan and the state water projects plan shall be consistent with the respective county land use plans and policies including general plan and zoning as determined by each respective county;
(3) The water use and development plan for each county shall also be consistent with the [
state] land use classification and policies;
(4) The cost to develop the initial water use and development plan for each county shall be funded by the State in an amount not exceeding $150,000 per county;
(5) The cost of maintaining the water use and development plan shall be borne by the counties; state water capital improvement funds appropriated to the counties shall be deemed to satisfy Article VIII, section 5 of the State Constitution; and
(6) Each county in order to be eligible for state appropriations for county water projects must have developed an acceptable water use and development plan within the time frame established by this chapter."
SECTION 9. Section 196D-10, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Those functions identified in paragraphs (1) and (2) insofar as they relate to the permit application, review, processing, issuance, and monitoring of laws, and rules and to the enforcement of terms, conditions, and stipulations of permits and other authorizations issued by agencies with respect to the development, construction, installation, operation, maintenance, repair, and replacement of the project, or any portion or portions thereof, are transferred to the department. With respect to each of the statutory authorities cited in paragraphs (1) and (2), the transferred functions include all enforcement functions of the agencies or their officials under the statute cited as may be related to the enforcement of the terms, conditions, and stipulations of permits, including but not limited to the specific sections of the statute cited. "Enforcement", for purposes of this transfer of functions, includes monitoring and any other compliance or oversight activities reasonably related to the enforcement process. These transferred functions include:
(1) Such functions of the land use commission related to: district boundary amendments [
as set forth in section 205-3.1 et seq.;] and changes in zoning [ as set forth in section 205-5;] under chapter 46; and
(2) The permit approval and enforcement functions of the director of transportation or other appropriate official or entity in the department of transportation related to permits or approvals issued for the use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266."
SECTION 10. Section 205A-29, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) No agency authorized to issue permits pertaining to any development within the special management area shall authorize any development unless approval is first received in accordance with the procedures adopted pursuant to this part. For the purposes of this subsection, county general plan[
, state] amendments, land use district boundary amendments, and zoning changes are not permits."
SECTION 11. Section 225M-2, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The office of planning shall gather, analyze, and provide information to the governor to assist in the overall analysis and formulation of state policies and strategies to provide central direction and cohesion in the allocation of resources and effectuation of state activities and programs, and effectively address current or emerging issues and opportunities. More specifically, the office shall engage in the following activities:
(1) State comprehensive planning and program coordination. Formulating and articulating comprehensive statewide goals, objectives, policies, and priorities, and coordinating their implementation through the statewide planning system established in part II of chapter 226;
(2) Strategic planning. Identifying and analyzing significant issues, problems, and opportunities confronting the State, and formulating strategies and alternative courses of action in response to identified problems and opportunities by:
(A) Providing in-depth policy research, analysis, and recommendations on existing or potential areas of critical state concern;
(B) Examining and evaluating the effectiveness of state programs in implementing state policies and priorities;
(C) Monitoring through surveys, environmental scanning, and other techniques--current social, economic, and physical conditions and trends; and
(D) Developing, in collaboration with affected public or private agencies and organizations, implementation plans and schedules and, where appropriate, assisting in the mobilization of resources to meet identified needs;
(3) Planning coordination and cooperation. Facilitating coordinated and cooperative planning and policy development and implementation activities among state agencies, and between the state, county, and federal governments, by:
(A) Reviewing, assessing, and coordinating, as necessary, major plans, programs, projects, and regulatory activities existing or proposed by state and county agencies; and
(B) Formulating mechanisms to simplify, streamline, or coordinate interagency development and regulatory processes;
(4) Planning information system. Collecting, analyzing, maintaining, and disseminating data and information to further effective state planning, policy analysis and development, and delivery of government services by:
(A) Assembling, organizing, evaluating, and classifying existing data and performing necessary basic research in order to provide a common data base for governmental planning;
(B) Planning, developing, implementing, and coordinating a statewide planning and geographic information system. The office shall be the lead agency responsible for planning and coordinating the establishment of a multi-agency, statewide geographic information system and the development of planning applications including spatial data analyses to enhance decision making; and
(C) Maintaining a centralized depository of state and national planning references;
(5) Land use planning. Developing and presenting the position of the State in all boundary change petitions and proceedings before the land use commission, assisting state agencies in the development and submittal of petitions for land use district boundary amendments, and conducting periodic reviews of the classification and districting of all lands in the State[
, as specified in chapter 205];
(6) Coastal and ocean policy management. Carrying out the lead agency responsibilities for the Hawaii coastal zone management program, as specified in chapter 205A. Also, developing and maintaining an ocean and coastal resources information, planning, and management system further developing and coordinating implementation of the ocean resources management plan, and formulating ocean policies with respect to the exclusive economic zone, coral reefs, and national marine sanctuaries;
(7) Regional planning and studies. Conducting plans and studies to determine:
(A) The capability of various regions within the State to support projected increases in both resident populations and visitors;
(B) The potential physical, social, economic, and environmental impact on these regions resulting from increases in both resident populations and visitors;
(C) The maximum annual visitor carrying capacity for the State by region, county, and island; and
(D) The appropriate guidance and management of selected regions and areas of statewide critical concern.
The studies in subparagraphs (A) to (C) shall be conducted at appropriate intervals, but not less than once every five years; and
(8) Regional, national, and international planning. Participating in and assuring that state plans, policies, and objectives are consistent, to the extent practicable, with regional, national, and international planning efforts."
SECTION 12. Section 226-52, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The statewide planning system shall consist of the following policies, plans, and programs:
(1) The overall theme, goals, objectives, and policies established in this chapter that shall provide the broad guidelines for the State;
(2) The priority guidelines established in this chapter that shall provide guidelines for decisionmaking by the State and the counties for the immediate future and set priorities for the allocation of resources. The formulation and revision of state functional plans shall be in conformance with the priority guidelines;
(3) State functional plans that shall be prepared to address, but not be limited to, the areas of agriculture, conservation lands, education, energy, higher education, health, historic preservation, housing, recreation, tourism, and transportation. The preparing agency for each state functional plan shall also consider applicable federal laws, policies, or programs that impact upon the functional plan area. State functional plans shall define, implement, and be in conformance with the overall theme, goals, objectives, policies, and priority guidelines contained within this chapter. County general plans and development plans shall be taken into consideration in the formulation and revision of state functional plans;
(4) County general plans that shall indicate desired population and physical development patterns for each county and regions within each county. In addition, county general plans or development plans shall address the unique problems and needs of each county and regions within each county. County general plans or development plans shall further define the overall theme, goals, objectives, policies, and priority guidelines contained within this chapter. State functional plans shall be taken into consideration in amending the county general plans; and
(5) State programs that shall include but not be limited to programs involving coordination and review; research and support; design, construction, and maintenance; services; and regulatory powers. State programs that exercise coordination and review functions shall include but not be limited to the state clearinghouse process, the capital improvements program, and the coastal zone management program. State programs that exercise regulatory powers in resource allocation shall include but not be limited to the land use and management programs administered by the [
land use commission and the] board of land and natural resources. State programs shall further define, implement, and be in conformance with the overall theme, goals, objectives, and policies, and shall utilize as guidelines the priority guidelines contained within this chapter, and the state functional plans approved pursuant to this chapter."
SECTION 13. Section 279E-1, Hawaii Revised Statutes, is amended to read as follows:
§279E-1[ ]] Statement of purpose. The legislature finds that Section 112 of the Federal-Aid Highway Act of 1973, Section 9 of the Urban Mass Transportation Act of 1964, as amended, and other federal law require that a metropolitan planning organization be designated to act as an advisory urban transportation planning organization and to receive certain funds for the purpose of carrying out continuing, comprehensive, cooperative urban transportation planning. It is further suggested that the organization be established under specific state legislation to coordinate metropolitan transportation planning.
The Oahu Transportation Planning Program, a quasi-agency presently charged with coordinating transportation planning on Oahu has been unable to satisfy federal requirements for a "continuing, comprehensive, and cooperative", transportation planning process. As a result, the Federal Highway Administration and the Urban Mass Transportation Administration have decertified Oahu transportation programs for federal funding. This problem has resulted in statewide concern about the effects of decertification because of its impact on transportation programs and consequently employment and also because Oahu contains the greater part of the state's population and employment.
In order to be recertified, it is mandatory that a Metropolitan Planning Organization be established and designated by the State as soon as possible. Loss of all federal planning and construction funds for transit and transportation will continue until this is done.
This MPO will be primarily an advisory body to the legislature and the legislative body of the appropriate county in affairs involving the continuous, comprehensive, cooperative urban transportation planning for the county. This chapter is designed to provide the mechanism by which orderly and reasoned urban transportation planning can take place within the framework of federal law and the need to provide for adequate and informed representation from both the state and county governments and the public at large.
It is appropriate that each unit of general purpose government within the jurisdiction of the Metropolitan Planning Organization shall have adequate representation on the Metropolitan Planning Organization. The Metropolitan Planning Organization (MPO), will, utilizing input from appropriate state and city agencies, coordinate and develop a prospectus and a unified planning work program, a transportation plan and a transportation improvement program including an annual element of projects recommended for funding in order to provide this advice to legislative and government agencies. It is very important that the delineation of state and county functions relating to transportation within the metropolitan area be carefully considered in the designation of the MPO.
Hawaii's state government differs markedly from most mainland states. Hawaii has a two-tier government: the State and the various counties. The state government functions as a general purpose government having the responsibility for many programs, such as public education, health, welfare and judiciary, which are usually controlled by local government in mainland states. [
In addition, land use, through the state land use commission, is generally determined by the State rather than by the counties as is usually the case on the mainland.] In transportation, the state government has responsibility for such normally local government programs as airports, bikeways, harbors and waterways.
Hawaii's two-tier government did not come about by accident; it was the result of careful consideration and study of Hawaii's unique geographic configuration. As a state comprised of islands, Hawaii has four counties, each consisting of separate islands and consequently not contiguous.
Because the State of Hawaii is comprised of islands, much of the transportation planning done by the State is designed to facilitate transportation solely within the county in which the project is built. Obviously, a state highway built on the island of Oahu will only serve that island. Hence, for example, the State's three major defense highways, H-1, H-2 and TH-3, which are all located on Oahu, while designated as state highways, serve only the transportation needs of the residents of Oahu. However, this is entirely consistent with the present delineation of roadway functions in Hawaii. The State is generally responsible for providing highway facilities that facilitate inter-community transportation, with the counties primarily responsible for local intra-community streets and roads. As a result, the State has by design a major portion of the responsibility for transportation in each county, and more importantly for that part of the transportation network most closely related to and impacting on planning in general and transportation planning in particular.
Unlike most mainland states, Hawaii has only one urbanized area, the City and County of Honolulu, where eighty-one per cent of the state's population reside. In transportation, the State has programmed approximately $149 million dollars in new highway facilities for Oahu in fiscal year 1976 as compared to approximately $31 million dollars by the City and County of Honolulu. Additionally, the State's major airports and harbors are located on Oahu. In short, the State has responsibility for most of the major transportation facilities and projects on Oahu and any designation of an MPO must take this into account. Designation of an MPO which does not provide for significant state participation simply does not recognize the existing delineation of state and county functions relating to transportation in Hawaii.
The MPO must be designed to prevent the type of situation which led to the decertification of the OTPP; it must have its own coordinating staff independent of either state or county agencies; it must be accessible and accountable to the public; and it must provide for public input.
The purpose of this chapter is to establish and specify the role of the organization to be designated by the governor as the MPO as required by 23 United States Code 134 and Section 4(a) of the Urban Mass Transportation Act of 1964, as amended, (49 U.S.C. 1603(a)) which requires comprehensive planning of transportation improvements."
SECTION 14. Section 339-5, Hawaii Revised Statutes, is amended to read as follows:
§339-5[ ]] Responsibilities of owners and lessees of real property. It shall be the responsibility of any owner or lessee of real property in [ state] land use urban districts zoned for urban use by the county to maintain sidewalks, alleys, curbs, roadway shoulder areas, fence lines, and hedges immediately adjoining such real property in a litter-free condition except that in no way will the statute be used to release the state and county agencies from continuing their present level of public property maintenance."
SECTION 15. There is appropriated out of the general revenues of the State of Hawaii the following sums, or so much thereof as may be necessary for fiscal year 2002-2003, to assist the counties in carrying out the purposes of this Act:
County of Kauai $
County of Honolulu $
County of Maui $
County of Hawaii $
The sums appropriated shall be expended by the respective county and shall constitute the State's share of the cost of mandated programs under article VIII, section 5 of the state constitution.
SECTION 16. No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.
An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that such officer or employee possesses the minimum qualifications for the position to which transferred or appointed.
If an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.
SECTION 17. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the state land use commission relating to the functions transferred to the counties shall be transferred, in an equitable manner, with the functions to which they relate.
SECTION 18. All rules, policies, procedures, guidelines, and other material adopted or developed by the state land use commission to implement provisions of the Hawaii Revised Statutes which are reenacted or made applicable to the county land use commissions by this Act, shall remain in full force and effect until amended or repealed by the respective county land use commission pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the state land use commission in those rules, policies, procedures, guidelines, and other material is amended to refer to the respective county land use commission.
SECTION 19. In codifying the new sections added by section 3 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 20. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 21. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 22. This Act shall take effect on July 1, 2003; provided that sections 4(b) and 15 shall take effect on July 1, 2002.