HOUSE OF REPRESENTATIVES

H.B. NO.

2323

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO TELECOMMUNICATIONS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that the efficient deployment of broadband infrastructure and technology is important to the future global connectivity and economic viability of our island state. Among the benefits afforded by an advanced broadband infrastructure system are increased and enhanced educational opportunities, telehealth capacity, safety and civil defense communications, economic competitiveness, consumer privileges, and tourism services.

To ensure that consumers throughout the State may benefit from these services as soon as possible, and to provide wireless providers with a fair and predictable process for the deployment of small wireless facilities, the legislature finds that laws are needed to specify the extent and way in which the deployment of small wireless facilities and small wireless facilities networks is regulated in the State.

The purpose of this Act is to facilitate the deployment of high-speed broadband infrastructure in Hawaii, including small wireless facilities, in a way that encourages new technology and ensures a level playing field for competitive communications service providers by establishing an application process for collocation of small wireless facilities or small wireless facilities networks.

SECTION 2. Chapter 27, Hawaii Revised Statutes, is amended by adding to part VII a new section to be appropriately designated and to read as follows:

"27- Collocation permits; application, review, approval. (a) A telecommunications carrier proposing to install broadband infrastructure shall submit an application for a permitted use permit to a state or county agency with appropriate jurisdiction over state and county utility poles, light standards, buildings, or structures. The application shall include:

(1) A geographic description of the project area;

(2) A listing and description of the utility poles, light standards, buildings, and structures included in the project for the installation, mounting, operation, and placement of broadband infrastructure, including an assessment of the identifying information, location, and ownership of the listed utility poles, light standards, buildings, and structures; and

(3) A description of the equipment associated with the facilities to be installed in the project area, including radio transceivers, antennas, coaxial or fiber-optic cables, power supplies, and related equipment, and the size and weight of the equipment to be installed on each pole, building, or structure.

An applicant shall be permitted to file a consolidated application involving no more than twenty-five individual small wireless facilities of a substantially similar design.

(b) The agency shall evaluate the impact of collocating the broadband infrastructure described in the application to ensure that:

(1) The installation of the equipment on the poles, buildings, and structures is done in a manner to protect public health and safety, and safe travel in the public rights-of-way;

(2) The utility poles and light standards are able to bear the additional weight of the equipment and that the equipment is not a hazard or obstruction to the public; and

(3) The project equipment and broadband infrastructure do not interfere with government systems for public safety communication operations or emergency services.

(c) The agency shall notify the applicant that:

(1) The permit is approved;

(2) The permit is approved with modifications;

(3) The application is returned with a list of questions requiring more detailed information;

(4) The application is disapproved with a list of reasons documenting the denial, including the specific code provisions or standards on which the denial was based; or

(5) In the case of a consolidated application, line item approval or disapproval."

SECTION 3. Section 27-41.1, Hawaii Revised Statutes, is amended by adding the following definitions to be appropriately inserted and to read as follows:

""Collocation" means the installation, mounting, maintenance, modification, operation, or replacement of wireless facilities on a tower, utility pole, light standard, or other existing structures for the purpose of transmitting or receiving radio frequency signals for communications purposes.

"Light standard" means a street light, light pole, lamp post, street lamp, lamp standard, or other raised source of light located inside the right-of-way of a public road, highway, or utility easement.

"Small wireless facilities" means wireless facilities that meet the following qualifications:

(1) Each individual antenna, excluding the associated equipment, is no more than three cubic feet in volume, and all antennas on the structure total no more than six cubic feet in volume; and

(2) All other wireless equipment associated with the structure, excluding cable runs for the connection of power and other services, does not cumulatively exceed:

(A) Twenty-eight cubic feet for collocations on all non-pole structures, including but not limited to buildings and water tanks, that can support fewer than three providers;

(B) Twenty-one cubic feet for collocations on all pole structures, including but not limited to light poles, traffic signal poles, and utility poles, that can support fewer than three providers;

(C) Thirty-five cubic feet for non-pole collocations that can support at least three providers; or

(D) Twenty-eight cubic feet for pole collocations that can support at least three providers.

"Utility pole" means a pole or similar structure that is used in whole or in part for communications service, electric service, lighting, traffic control, signage, or similar functions.

"Wireless facilities" means the set of equipment and network components, including but not limited to antennas, accessory equipment, transmitters, receivers, power supplies, and other associated equipment necessary to provide wireless communications service. "Wireless facilities" shall not include:

(1) The structure or improvements on, under, or within which the equipment is collocated;

(2) Wireline backhaul facilities; or

(3) Coaxial or fiber-optic cable between utility poles or that is otherwise not immediately adjacent to and directly associated with a particular antenna.

"Wireless provider" means a person or entity that is:

(1) A provider of wireless communications service;

(2) A wireless telecommunications service provider, as defined in section 269-16.93(d); or

(3) Authorized in accordance with chapter 269 to provide facilities-based telecommunications services in the State, and builds, installs, operates, or maintains facilities and equipment used to provide wireless service.

"Wireline backhaul" means the transport of communications data or other electronic information by wire from wireless facilities to a network."

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

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

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

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

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

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

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

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

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

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

(8) Building setback lines and future street lines;

(9) The density and distribution of population;

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

(11) Minimum and maximum lot sizes; and

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

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

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

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

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

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

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

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

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

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

(f) Neither this section nor any other law, county ordinance, or rule shall prohibit the use of land for medical marijuana production centers or medical marijuana dispensaries established and licensed pursuant to chapter 329D; provided that the land is otherwise zoned for agriculture, manufacturing, or retail purposes.

(g) A telecommunications carrier proposing to install small wireless facilities or small wireless facilities networks shall submit an application for a permitted use permit to a state or county agency with appropriate jurisdiction over state or county utility poles, light standards, buildings, or structures. The application shall include:

(1) A geographic description of the project area;

(2) A listing and description of the utility poles, light standards, buildings, and structures included in the project for the installation, mounting, operation, and placement of broadband infrastructure, including an assessment of the identifying information, location, and ownership of the listed utility poles, light standards, buildings, and structures; and

(3) A description of the equipment associated with the facilities to be installed in the project area, including radio transceivers, antennas, coaxial or fiber-optic cables, power supplies, and related equipment, and the size and weight of the equipment to be installed on each pole, building, or structure.

An applicant shall be permitted to file a consolidated application involving no more than twenty-five individual small wireless or wireline facilities of a substantially similar design.

(h) The agency shall evaluate the impact of collocating the broadband infrastructure described in the application to ensure that:

(1) The installation of the equipment on the poles, buildings, and structures is done in a manner to protect public health and safety, and safe travel in the public rights-of-way;

(2) The utility poles and light standards are able to bear the additional weight of the equipment and that the equipment is not a hazard or obstruction to the public; and

(3) The project equipment and broadband infrastructure do not interfere with government systems for public safety communication operations, or emergency services.

(i) The agency shall notify the applicant that:

(1) The permit is approved;

(2) The permit is approved with modifications;

(3) The application is returned with a list of questions requiring more detailed information;

(4) The application is disapproved with a list of reasons documenting the denial, including the specific code provisions or standards on which the denial was based; or

(5) In the case of a consolidated application, line item approval or disapproval."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act, upon its approval, shall take effect on July 1, 2018.

 

INTRODUCED BY:

_____________________________

 

 

BY REQUEST


 


 

Report Title:

Technology; Broadband; Wireless Facilities Networks; Zoning; Counties; State Functions and Responsibilities

 

Description:

Describes the application process for a permitted use permit to a state or county agency for the collocation of small wireless facilities on state or county utility poles, light standards, buildings, or structures.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.