Re1164port Title:

Land Use

Description:

Abolishes the land use commission and transfers its functions to the counties. Makes various amendments to coastal zone management law.

THE SENATE

S.B. NO.

 

TWENTY-SECOND LEGISLATURE, 2003

 

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. Findings and purpose. The legislature finds that there is an urgent need to reform the state land use planning system and redefine the roles of the State and the counties in that process. Reform is needed to promote efficiency and avoid duplication between State and counties; to establish clear lines of responsibility for decision-making and jurisdiction; to promote the uniform application of state policies regarding the protection of our environment and economy, and the provision of shelter and the basic necessities of life to all members of our community; to be responsive to changing social, economic, and environmental needs; and to establish an integrated and collaborative land use planning system for Hawaii.

The legislature further finds that there is no longer the need for a state land use commission and land use classification system that existed when the system was created in the early 1960's. County governments have matured and today have planning systems and organizations in place, which are supported by professional planning staffs, that are fully capable of handling these responsibilities. Furthermore, the counties are closer to the people and their communities and better able to determine their needs and desires, through community-based planning. In addition, the county legislative process affords the public numerous opportunities to express its views and participate in planning and decision-making. Land use decisions vital to the future of the counties need to be made by public officials elected by the citizens of each county.

The purpose of this Act is to further integrate the land use planning system for Hawaii by repealing the state-level system of land use districting and classification and by abolishing the state land use commission. Authority for designation of public and private lands to be held in conservation and their uses shall be the function of the board of land and natural resources. It is the intent of the legislature that the counties have responsibility for land use planning and zoning for all lands within the jurisdiction of each county except that the management of conservation land shall remain with the board of land and natural resources.

SECTION 2. Chapter 183C, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§183C- Boundary amendment decision-making criteria. In its review of any petition for reclassification of the conservation district boundaries pursuant to this chapter, the respective counties shall specifically consider the following:

(1) The extent to which the proposed reclassification conforms to the applicable goals, objectives, and policies of the Hawaii state plan and relates to the applicable priority guidelines of the Hawaii state plan and the adopted functional plans;

(2) The extent to which the proposed reclassification conforms to the applicable conservation district standards; and

(3) The impact of the proposed reclassification on the following areas of state concern:

(A) Preservation or maintenance of important natural systems or habitats; and

(B) Maintenance of valued cultural, historical, or natural resources.

§183C-   Adjustments of assessing practices. Upon the adoption of conservation district boundaries, certified copies of the classification maps showing the district boundaries shall be filed with the appropriate county finance departments. Thereafter, the counties, shall, when making assessments of property within the district, give consideration to the use or uses that may be made thereof as well as the uses to which it is then devoted."

SECTION 3. Chapter 226, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:

"§226-   County development plans; agriculture. County development/comprehensive plans shall describe and identify agricultural areas including important agricultural lands. Important agricultural lands shall include lands for current and potential agricultural cultivation and agricultural uses with a high capacity for intensive and sustainable cultivation or pasturage. The county land use regulations shall be designed to protect those lands designated as important agricultural lands."

SECTION 4. 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 5. Section 46-4, Hawaii Revised Statutes, is amended to read as follows:

"§46-4 County zoning. (a) 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.

(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 accord 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 and which are licensed by the State as provided for under section 321-15.6 or in an intermediate care facility/mental retardation-community (ICF/MR-C) for persons, including the mentally ill, elders, the handicapped, the developmentally disabled, or totally disabled persons, who are not related to the home operator or facility staff; provided that those group living facilities meet all applicable county requirements, not inconsistent with the intent of this subsection and including building height, setback, maximum lot coverage, parking, and floor area requirements. For purposes of this section:

"Mentally ill person" means a mentally ill person as defined under section 334-1.

"Elder" means an elder as defined under section 201G-1.

"Handicapped person" means an individual with a physical handicap as defined under section 515-2.

"Developmentally disabled person" means a person suffering from developmental disabilities as defined under section 333F-2.

"Totally disabled person" means a person totally disabled as defined under section 235-1.

"Intermediate care facility/mental retardation-community (ICF/MR-C)" is defined as an identifiable unit providing residence and care for eight or fewer mentally retarded individuals. Its primary purpose is the provision of health, social, and rehabilitation services to the mentally retarded through an individually designed active treatment program for each resident. No person who is predominately confined to bed shall be admitted as a resident of such a facility.

(e) Each county shall establish at least one agricultural zoning district for the purpose of protecting important agricultural lands. Uses in this zoning district shall be restricted to those uses directly related to agricultural production and agricultural economic opportunities.

The minimum lot size of the restricted agricultural zoning district shall be twenty-five acres."

SECTION 6. Section 46-15, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The mayor of each county, after holding a public hearing on the matter and receiving the approval of the respective council, shall be empowered to designate areas of land for experimental and demonstration housing projects, the purposes of which are to research and develop ideas that would reduce the cost of housing in the State. Except as hereinafter provided, the experimental and demonstration housing projects shall be exempt from all statutes, ordinances, charter provisions, and rules [or regulations] of any governmental agency or public utility relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction and sale of homes thereon; provided that the experimental and demonstration housing projects shall not affect the safety standards or tariffs approved by the public [utility commissions] utilities commission for such public utility.

The mayor of each county with the approval of the respective council may designate a county agency or official who shall have the power to review all plans and specifications for the subdivisions, development and improvement of the land involved, and the construction and sale of homes thereon. The county agency or official shall have the power to approve or disapprove or to make modifications to all or any portion of the plans and specifications.

The county agency or official shall submit preliminary plans and specifications to the legislative body of the respective county for its approval or disapproval. The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the approved preliminary plans and specifications. The final plans and specifications shall constitute the standards for the particular project.

No action shall be prosecuted or maintained against any county, its officials or employees, on account of actions taken in reviewing, approving, or disapproving such plans and specifications.

Any experimental or demonstration housing project for the purposes hereinabove mentioned may be sponsored by any state or county agency or any person as defined in section 1-19.

[The county agency or official shall apply to the state land use commission for an appropriate land use district classification change, except where a proposed project is located on land within an urban district established by the state land use commission. Notwithstanding any law, rule, or regulation to the contrary, the state land use commission may approve the application at any time after a public hearing held in the county where the land is located upon notice of the time and place of the hearing being published in the same manner as the notice required for a public hearing by the planning commission of the appropriate county.]"

SECTION 7. Section 92-6, Hawaii Revised Statutes, is amended to read as follows:

"§92-6 Judicial branch, quasi-judicial boards and investigatory functions; applicability. [(a)] This part shall not apply:

(1) To the judicial branch[.] or

(2) To adjudicatory functions exercised by a board and governed by sections 91-8 and 91-9, or authorized by other sections of the Hawaii Revised Statutes. In the application of this [subsection,] paragraph, boards exercising adjudicatory functions include, but are not limited to, the following:

(A) Hawaii labor relations board, chapters 89 and 377;

(B) Labor and industrial relations appeals board, chapter 371;

(C) Hawaii paroling authority, chapter 353;

(D) Civil service commission, chapter 26;

(E) Board of trustees, employees' retirement system of the State of Hawaii, chapter 88;

(F) Crime victim compensation commission, chapter 351; and

(G) State ethics commission, chapter 84.

[(b) Notwithstanding provisions in this section to the contrary, this part shall apply to require open deliberation of the adjudicatory functions of the land use commission.]"

SECTION 8. Section 171-49.7, Hawaii Revised Statutes, is amended to read as follows:

"[[]§171-49.7[]] Public lands suitable and available for residential development; inventory. The department of land and natural resources shall complete and maintain a current inventory of all public lands [placed in the urban district] designated by the [land use commission under chapter 205] various counties for urban use, which are or may be suitable and available for residential development. This inventory shall be updated at the end of each quarter and shall contain the following information: the island and area in which the land is situated, the acreage, and such other information which the department determines may be necessary to identify and inventory the land."

SECTION 9. Section 183C-2, Hawaii Revised Statutes, is amended by amending the definition of "conservation district" to read as follows:

""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.

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."

SECTION 10. Section 183C-3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§183C-3[]] Powers and duties of the board and department. The board and department shall:

(1) Maintain an accurate inventory of lands classified within the state conservation district by the [state land use commission, pursuant to chapter 205;] respective counties;

(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 chapter 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 department."

SECTION 11. Section 201G-118, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The corporation may develop, on behalf of the State or with an eligible developer, or may assist under a government assistance program in the development of, housing projects which shall be exempt from all statutes, ordinances, charter provisions, and rules of any governmental agency relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction of units thereon; provided that:

(1) The corporation finds the project is consistent with the purpose and intent of this chapter, and meets minimum requirements of health and safety;

(2) The development of the proposed project does not contravene any safety standards, tariffs, or rates and fees approved by the public utilities commission for public utilities or the various boards of water supply authorized under chapter 54; and

(3) The legislative body of the county in which the project is to be situated shall have approved the project.

(A) The legislative body shall approve or disapprove the project by resolution within forty-five days after the corporation has submitted the preliminary plans and specifications for the project to the legislative body. If on the forty- sixth day a project is not disapproved, it shall be deemed approved by the legislative body;

(B) No action shall be prosecuted or maintained against any county, its officials, or employees on account of actions taken by them in reviewing, approving, or disapproving the plans and specifications; and

(C) The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the preliminary plans and specifications. The final plans and specifications for the project shall constitute the zoning, building, construction, and subdivision standards for that project. For purposes of sections 501-85 and 502-17, the executive director of the corporation, or the responsible county official may certify maps and plans of lands connected with the project as having complied with applicable laws and ordinances relating to consolidation and subdivision of lands, and the maps and plans shall be accepted for registration or recordation by the land court and registrar[; and

(4) The land use commission shall approve or disapprove a boundary change within forty-five days after the corporation has submitted a petition to the commission as provided in section 205-4. If on the forty-sixth day the petition is not disapproved, it shall be deemed approved by the commission]."

SECTION 12. Section 205A-2, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Policies.

(1) Recreational resources[;]:

(A) Improve coordination and funding of coastal recreational planning and management; and

(B) Provide adequate, accessible, and diverse recreational opportunities in the coastal zone management area by:

(i) Protecting coastal resources uniquely suited for recreational activities that cannot be provided in other areas;

(ii) Requiring replacement of coastal resources having significant recreational value including, but not limited to, surfing sites, fishponds, and sand beaches, when such resources will be unavoidably damaged by development; or requiring reasonable monetary compensation to the State for recreation when replacement is not feasible or desirable;

(iii) Providing and managing adequate public access, consistent with conservation of natural resources, to and along shorelines with recreational value;

(iv) Providing an adequate supply of shoreline parks and other recreational facilities suitable for public recreation;

(v) Ensuring public recreational uses of county, state, and federally owned or controlled shoreline lands and waters having recreational value consistent with public safety standards and conservation of natural resources;

(vi) Adopting water quality standards and regulating point and nonpoint sources of pollution to protect, and where feasible, restore the recreational value of coastal waters;

(vii) Developing new shoreline recreational opportunities, where appropriate, such as artificial lagoons, artificial beaches, and artificial reefs for surfing and fishing; and

(viii) Encouraging reasonable dedication of shoreline areas with recreational value for public use as part of discretionary approvals or permits by the [land use commission,] respective counties, and board of land and natural resources[, and county authorities]; and crediting such dedication against the requirements of section 46-6.

(2) Historic resources[;]:

(A) Identify and analyze significant archaeological resources;

(B) Maximize information retention through preservation of remains and artifacts or salvage operations; and

(C) Support state goals for protection, restoration, interpretation, and display of historic resources.

(3) Scenic and open space resources[;]:

(A) Identify valued scenic resources in the coastal zone management area;

(B) Ensure that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline;

(C) Preserve, maintain, and, where desirable, improve and restore shoreline open space and scenic resources; and

(D) Encourage those developments that are not coastal dependent to locate in inland areas.

(4) Coastal ecosystems[;]:

[(A) Exercise an overall conservation ethic, and practice stewardship in the protection, use, and development of marine and coastal resources;

(B)] (A) Improve the technical basis for natural resource management;

[(C)] (B) Preserve valuable coastal ecosystems, including reefs, of significant biological or economic importance;

[(D)] (C) Minimize disruption or degradation of coastal water ecosystems by effective regulation of stream diversions, channelization, and similar land and water uses, recognizing competing water needs; and

[(E)] (D) Promote water quantity and quality planning and management practices that reflect the tolerance of fresh water and marine ecosystems and maintain and enhance water quality through the development and implementation of point and nonpoint source water pollution control measures.

(5) Economic uses[;]:

(A) Concentrate coastal dependent development in appropriate areas;

(B) Ensure that coastal dependent development such as harbors and ports, and coastal related development such as visitor industry facilities and energy generating facilities, are located, designed, and constructed to minimize adverse social, visual, and environmental impacts in the coastal zone management area; and

(C) Direct the location and expansion of coastal dependent developments to areas presently designated and used for such developments and permit reasonable long-term growth at such areas, and permit coastal dependent development outside of presently designated areas when:

(i) Use of presently designated locations is not feasible;

(ii) Adverse environmental effects are minimized; and

(iii) The development is important to the State's economy.

(6) Coastal hazards[;]:

(A) Develop and communicate adequate information about storm wave, tsunami, flood, erosion, subsidence, and point and nonpoint source pollution hazards;

(B) Control development in areas subject to storm wave, tsunami, flood, erosion, hurricane, wind, subsidence, and point and nonpoint source pollution hazards;

(C) Ensure that developments comply with requirements of the Federal Flood Insurance Program; [and]

(D) Prevent coastal flooding from inland projects[.]; and

(E) Develop a coastal point and nonpoint source pollution control program.

(7) Managing development[;]:

(A) Use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development;

(B) Facilitate timely processing of applications for development permits and resolve overlapping or conflicting permit requirements; and

(C) Communicate the potential [short] short- and long-term impacts of proposed significant coastal developments early in their life cycle and in terms understandable to the public to facilitate public participation in the planning and review process.

(8) Public participation[;]:

(A) [Promote public involvement in coastal zone management processes;] Maintain a public advisory body to identify coastal management problems and to provide policy advice and assistance to the coastal zone management program;

(B) Disseminate information on coastal management issues by means of educational materials, published reports, staff contact, and public workshops for persons and organizations concerned with coastal-related issues, developments, and government activities; and

(C) Organize workshops, policy dialogues, and site-specific mediations to respond to coastal issues and conflicts.

(9) Beach protection[;]:

(A) Locate new structures inland from the shoreline setback to conserve open space[, minimize interference with natural shoreline processes,] and to minimize loss of improvements due to erosion;

(B) Prohibit construction of private erosion-protection structures seaward of the shoreline, except when they result in improved aesthetic and engineering solutions to erosion at the sites and do not interfere with existing recreational and waterline activities; and

(C) Minimize the construction of public erosion-protection structures seaward of the shoreline.

(10) Marine resources[;]:

(A) [Ensure] Exercise an overall conservation ethic, and practice stewardship in the protection, use, and development of marine and coastal resources;

(B) Assure that the use and development of marine and coastal resources are ecologically and environmentally sound and economically beneficial;

[(B)] (C) Coordinate the management of marine and coastal resources and activities to improve effectiveness and efficiency;

[(C)] (D) Assert and articulate the interests of the State as a partner with federal agencies in the sound management of ocean resources within the United States exclusive economic zone;

[(D)] (E) Promote research, study, and understanding of ocean processes, marine life, and other ocean resources in order to acquire and inventory information necessary to understand how ocean development activities relate to and impact upon ocean and coastal resources; and

[(E)] (F) Encourage research and development of new, innovative technologies for exploring, using, or protecting marine and coastal resources."

SECTION 13. 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 14. Section 246-10, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) (1) The land in each county shall be classified, upon consideration of its highest and best use, into the following general classes:

(A) Single-family and two-family residential,

(B) Three or more family residential, apartment, hotel and resort,

(C) Commercial,

(D) Industrial,

(E) Agricultural, and

(F) Conservation[.] and preservation.

(2) In assigning land to one of the general classes the director of taxation shall give major consideration to the districting established by [the land use commission pursuant to chapter 205, the districting established by] a county in its general plan and zoning ordinance, use classifications established in the general plan of the State, and such other factors which influence highest and best use.

(3) "Improved residential property" shall mean property which is classified as residential by the department of taxation upon consideration of its highest and best use, and is property which fulfills the provisions of at least one of the following subparagraphs:

(A) Property which has been subdivided prior to any assessment year as a lot for single or two-family residential use in conformity with the then existing county zoning ordinances, and has been approved for sale or approved as being in conformity with all of the subdivision requirements of the particular county in which it is located[, or];

(B) Property which is in actual single or two-family residential use at a density of at least a single or a two-family residential building per acre[,]; or

(C) Land which is sufficiently developed with necessary land improvements to support a use density of at least a single or a two-family residential building per acre.

(4) "Unimproved residential property" shall mean all residential class lands not classified as "improved residential property" by the department of taxation."

SECTION 15. Section 279E-1, Hawaii Revised Statutes, is amended to read as follows:

"[[]§279E-1[]] Statement of purpose. (a) The legislature finds that Section 112 of the Federal-Aid Highway Act of 1973, Section 9 of the [Urban Mass Transportation Act of 1964,] Federal Transit Act, as amended, and other federal [law] laws 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] 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.

(b) 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.

(c) 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.

(d) Unlike most mainland states, Hawaii has only one urbanized area, the [City and County] city and county of Honolulu, where eighty-one per cent of the [state's] 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] 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.

(e) 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,] Federal Transit Act, as amended[,] (49 U.S.C. 1603(a)), which requires comprehensive planning of transportation improvements."

SECTION 16. Section 343-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Except as otherwise provided, an environmental assessment shall be required for actions which:

(1) Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects which the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies;

(2) Propose any use within any land classified as conservation [district] by the [state land use commission under chapter 205;] respective counties;

(3) Propose any use within the shoreline area as defined in section 205A-41;

(4) Propose any use within any historic site as designated in the National Register or Hawaii Register as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E;

(5) Propose any use within the Waikiki area of Oahu, the boundaries of which are delineated in the land use ordinance as amended, establishing the "Waikiki Special District";

(6) Propose any amendments to existing county general or development plans where such amendment would result in designations other than agriculture, conservation, or preservation, except actions proposing any new county general [plan] or development plans or amendments to any existing county general [plan] or development plans initiated by a county;

(7) Propose any reclassification of any land classified as conservation [district] by the [state land use commission under chapter 205;] respective counties; and

[[](8)[]] Propose the construction of new, or the expansion or modification of existing helicopter facilities within the State which by way of their activities may affect any land classified as conservation [district] by the [state land use commission under chapter 205;] respective counties; the shoreline area as defined in section 205A-41; or, any historic site as designated in the National Register or Hawaii Register as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E; or, until the statewide historic places inventory is completed, any historic site found by a field reconnaissance of the area affected by the helicopter facility and which is under consideration for placement on the National Register or the Hawaii Register of Historic Places."

SECTION 17. Section 201G-12, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The corporation may develop public land in an agricultural district subject to the prior approval of the [land use commission, when developing lands greater than five acres in size,] respective counties, and public land in a conservation district subject to the prior approval of the board of land and natural resources. The corporation shall not develop state monuments or historical sites, or parks. When the corporation proposes to develop public land, it shall file with the department of land and natural resources a petition setting forth such purpose. The petition shall be conclusive proof that the intended use is a public use superior to that which the land has been appropriated."

SECTION 18. Section 501-33, Hawaii Revised Statutes, is amended to read as follows:

"§501-33 Accretion to land. An applicant for registration of land by accretion shall prove by a preponderance of the evidence that the accretion is natural and permanent. "Permanent" means that the accretion has been in existence at least twenty years. The accreted portion of the land shall be considered within the conservation district unless designated otherwise by the [land use commission under chapter 205.] respective counties. Prohibited uses are governed by section 183-45."

SECTION 19. Section 669-1, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) Action may be brought by any person to quiet title to land by accretion. The person bringing the action shall prove by a preponderance of the evidence that the accretion is natural and permanent. "Permanent" means that the accretion has been in existence for at least twenty years. The accreted portion of land shall be considered within the conservation district unless designated otherwise by the [land use commission under chapter 205.] respective counties. Prohibited uses are governed by section 183-45."

SECTION 20. Chapter 205, Hawaii Revised Statutes, is repealed.

SECTION 21. The land use commission and the system of districting and classification of lands set forth in section 205-2 are abolished. All rights, powers, functions and duties of the land use commission are transferred to the various counties except for establishment of the boundaries for conservation lands, which shall remain with the State. Each respective county shall be accorded all the rights, powers, functions, and duties of the land use commission over the respective lands outside of the conservation district boundaries within each of the respective counties.

All officers and employees whose functions are transferred by this Act or whose office or position is abolished, shall not be separated from public employment, but shall remain in the employment of the State or of one of the respective counties and shall be assigned to any office or position for which such officer or employee is eligible under the personnel laws of the State or of the respective counties.

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 the officer or employee is 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 the officer or employee is transferred or appointed.

All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the land use commission relating to the functions transferred to the various counties shall be transferred with the functions to which they relate.

SECTION 22. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 23. This Act shall take effect on July 1, 2003.

INTRODUCED BY:

_____________________________

By Request