HOUSE OF REPRESENTATIVES

H.B. NO.

625

TWENTY-NINTH LEGISLATURE, 2017

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO INFRASTRUCTURE.

 

 

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 for Hawaii's future global connectivity and economic viability. 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 it is important to regulate the deployment of small wireless facilities and small wireless facilities networks.

The purpose of this Act is to facilitate the deployment of high-speed broadband infrastructure, including small wireless facilities and small wireless facilities networks.

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

"27-   Siting of small wireless facilities and small wireless facilities networks. The State shall permit the collocation of small wireless facilities or small wireless facilities networks on state structures, state utility poles, and state light standards for the deployment of high speed broadband infrastructure as follows:

(1) Small wireless facilities and small wireless facilities networks shall not be subject to the standards of a special or conditional use permit in:

(A) All public rights-of-way and property;

(B) All land designated as rural or agriculture in accordance with chapter 205; and

(C) All land designated as urban;

provided that, for the purposes of this paragraph, permissible uses within the agricultural district conform to the definition of "wireless communication antenna" in accordance with section 205-4.5(a)(18);

(2) Small wireless facilities and small wireless facilities networks may be processed for a special or conditional use permit when the small wireless facilities and small wireless facilities networks are located on land designated as conservation, in accordance with chapter 205;

(3) The State may require building permits or other permits for the collocation of small wireless facilities and small wireless facilities networks; provided that the permits are of general applicability. The State shall receive applications for, and process and issue the permits and approvals in accordance with applicable laws, including section 27-45 and subject to the following requirements:

(A) An applicant shall not be required to perform any services, including restoration work not directly related to the collocation, to obtain approval of an application;

(B) An application may be denied if it does not meet applicable laws or rules regarding construction in the public rights-of-way and building or electrical codes or standards; provided that the codes and standards are of general applicability. The State shall document the basis for any denial, including the specific code provisions or standards on which the denial was based; and

(C) An applicant for a small wireless facilities network involving no more than twenty-five individual small wireless facilities of a substantially similar design may request and shall be permitted to file a consolidated application and receive a single permit for the installation, construction, maintenance, and repair of the small wireless facilities network instead of filing separate applications for each individual small wireless facility;

(4) A wireless provider may collocate small wireless facilities and small wireless facilities networks on state structures, state utility poles, and state light standards located within the land identified in paragraph (1)(A), (B), and (C), subject to rates, terms, and conditions. The annual recurring rate to collocate a small wireless facility or small wireless facility network on a state structure, state utility pole, or state light standard shall not exceed the rate produced by applying the formula adopted by the Federal Communications Commission for telecommunications pole attachments in 47 C.F.R. 1.1409(e)(2); provided that, if the Federal Communications Commission adopts a rate formula for small wireless facility or small wireless facility network attachments, that rate formula shall apply; and

(5) The State may authorize a wireless provider or wireless provider's licensed contractor to maintain, repair, or replace the providers' small wireless facilities and small wireless facilities networks with facilities that are substantially the same, or smaller, in size, weight, and height as the existing facilities. For the purpose of this paragraph, the State may consider other impacts of the attachment."

SECTION 3. Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to part V to be appropriately designated and to read as follows:

"46-   Siting of small wireless facilities and small wireless facilities networks. The county shall permit the collocation of small wireless facilities or small wireless facilities networks on county structures, county utility poles, and county light standards for the deployment of high speed broadband infrastructure as follows:

(1) Small wireless facilities and small wireless facilities networks shall not be subject to the standards of a special or conditional use permit in:

(A) All public rights-of-way and property;

(B) All land designated as rural or agriculture in accordance with chapter 205; and

(C) All land designated as urban;

provided that, for the purposes of this paragraph, permissible uses within the agricultural district conforms to the definition of "wireless communication antenna" in accordance with section 205-4.5(a)(18);

(2) Small wireless facilities and small wireless facilities networks may be processed for a special or conditional use permit when the small wireless facilities and small wireless facilities networks are located on land designated as conservation, in accordance with chapter 205;

(3) The county may require building permits or other permits for the collocation of small wireless facilities and small wireless facilities networks, provided that the permits are of general applicability. The county shall receive applications for, and process and issue the permits and approvals in accordance with applicable laws, including section 46-89 and subject to the following requirements:

(A) An applicant shall not be required to perform any services, including restoration work not directly related to the collocation, to obtain approval of applications;

(B) An application may be denied if it does not meet applicable laws or rules regarding construction in the public rights-of-way and building or electrical codes or standards; provided that the codes and standards are of general applicability. The county shall document the basis for any denial, including the specific code provisions or standards on which the denial was based; and

(C) An applicant for a small wireless facilities network involving no more than twenty-five individual small wireless facilities of a substantially similar design may request and shall be permitted to file a consolidated application and receive a single permit for the installation, construction, maintenance, and repair of the small wireless facilities network instead of filing separate applications for each individual small wireless facility;

(4) A wireless provider may collocate small wireless facilities and small wireless facilities networks on county structures, county utility poles and county light standards located within the land identified in paragraph (1)(A), (B), and (C), subject to rates, terms, and conditions. The annual recurring rate to collocate a small wireless facility or small wireless facility network on a county structure, county utility pole, or county light standard shall not exceed the rate produced by applying the formula adopted by the Federal Communications Commission for telecommunications pole attachments in 47 C.F.R. 1.1409(e)(2); provided that, if the Federal Communications Commission adopts a rate formula for small wireless facility or small wireless facility network attachments, that rate formula shall apply; and

(5) The counties may authorize a wireless provider or wireless provider's licensed contractor to maintain, repair, or replace the providers' small wireless facilities and small wireless facilities networks with facilities that are substantially the same, or smaller, in size, weight, and height as the existing facilities. For the purpose of this paragraph, the county may consider other impacts of the attachment."

SECTION 4. Section 27-41.1, Hawaii Revised Statutes, is amended by adding nine new definitions to be appropriately inserted and to read as follows:

""Collocation" means the installation, mounting, maintenance, modification, operation, or replacement of wireless or wireless broadband service equipment on a tower, utility pole, light standard, building, or other existing structure for the purpose of transmitting or receiving radio frequency signals for communications purposes. For purposes of this definition, "wireless or wireless broadband service equipment":

(1) Includes small wireless facilities, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration; and

(2) Does not include the structure or improvements on, under, or within which the equipment is collocated.

"General applicability" refers to laws, regulations, or processes that apply to objective requirements to all persons or services in a nondiscriminatory manner and do not apply exclusively to small wireless facilities.

"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 or highway, or utility easement.

"Public property" means property owned or controlled by the State, state agencies, or a county and includes buildings, water tanks, decorative poles, and light standards.

"Rights-of-way" means the areas on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property.

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

(1) Each individual antenna, excluding the associated equipment, is individually 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, do 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.

"Small wireless facilities network" means a group of interrelated small wireless facilities designed to deliver wireless communications service.

"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 provider" means a person or entity that is:

(1) A provider as defined in section 440J-1;

(2) A wireless telecommunications service provider as defined in section 269-16.93; 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 fixed or mobile services through small wireless facilities."

SECTION 5. Section 46-15.6, Hawaii Revised Statutes, is amended by adding nine new definitions to be appropriately inserted and to read as follows:

""Collocation" means the installation, mounting, maintenance, modification, operation, or replacement of wireless or wireless broadband service equipment on a tower, utility pole, light standard, building, or other existing structure for the purpose of transmitting or receiving radio frequency signals for communications purposes. For purposes of this definition, "wireless or wireless broadband service equipment":

(1) Includes small wireless facilities, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration; and

(2) Does not include the structure or improvements on, under, or within which the equipment is collocated.

"General applicability" refers to laws, regulations, or processes that apply to objective requirements to all persons or services in a nondiscriminatory manner and do not apply exclusively to small wireless facilities.

"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 or highway, or utility easement.

"Public property" means property owned or controlled by the State, state agencies, or a county and includes buildings, water tanks, decorative poles, and light standards.

"Rights-of-way" means the areas on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property.

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

(1) Each individual antenna, excluding the associated equipment, is individually 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, do 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.

"Small wireless facilities network" means a group of interrelated small wireless facilities designed to deliver wireless communications service.

"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 provider" means a person or entity that is:

(1) A provider as defined in section 440J-1;

(2) A wireless telecommunications service provider as defined in section 269-16.93; 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 fixed or mobile services through small wireless facilities."

SECTION 6. Section 205-2, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Rural districts shall include activities or uses as characterized by low density residential lots of not more than one dwelling house per one-half acre, except as provided by county ordinance pursuant to section 46-4(c), 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 except that within a subdivision, as defined in section 484-1, the commission for good cause may allow one lot of less than one-half acre, but not less than eighteen thousand five hundred square feet, or an equivalent residential density, within a rural subdivision and permit the construction of one dwelling on such lot; provided that all other dwellings in the subdivision shall have a minimum lot size of one-half acre or 21,780 square feet. Such petition for variance may be processed under the special permit procedure. 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. Rural districts shall also include golf courses, golf driving ranges, and golf-related facilities.

In addition to the uses listed in this subsection, rural districts shall include geothermal resources exploration and geothermal resources development, as defined under section 182‑1, and wireless communication antenna, as defined under section 205-4.5(a)(18), as permissible uses."

SECTION 7. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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 and for solar energy facilities, class B or C, shall be restricted to the following permitted uses:

(1) Cultivation of crops, including crops for bioenergy, 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 activities 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, treatment plants, corporation yards, or other similar structures;

(8) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

(9) Agricultural-based commercial operations as described in section 205-2(d)(15);

(10) Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, and vehicle and equipment storage areas that are normally considered directly accessory to the above-mentioned uses and are permitted under section 205-2(d);

(11) Agricultural parks;

(12) Plantation community subdivisions, which as used in this chapter means an established subdivision or cluster of employee housing, community buildings, and agricultural support buildings on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation; provided that the existing structures may be used or rehabilitated for use, and new employee housing and agricultural support buildings may be allowed on land within the subdivision as follows:

(A) The employee housing is occupied by employees or former employees of the plantation who have a property interest in the land;

(B) The employee housing units not owned by their occupants shall be rented or leased at affordable rates for agricultural workers; or

(C) The agricultural support buildings shall be rented or leased to agricultural business operators or agricultural support services;

(13) Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;

(14) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;

(15) Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that the wind energy facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land;

(16) Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuel processing facilities and appurtenances do not adversely impact agricultural land and other agricultural uses in the vicinity.

For the purposes of this paragraph:

"Appurtenances" means operational infrastructure of the appropriate type and scale for economic commercial storage and distribution, and other similar handling of feedstock, fuels, and other products of biofuel processing facilities.

"Biofuel processing facility" means a facility that produces liquid or gaseous fuels from organic sources such as biomass crops, agricultural residues, and oil crops, including palm, canola, soybean, and waste cooking oils; grease; food wastes; and animal residues and wastes that can be used to generate energy;

(17) Agricultural-energy facilities, including appurtenances necessary for an agricultural-energy enterprise; provided that the primary activity of the agricultural-energy enterprise is agricultural activity. To be considered the primary activity of an agricultural-energy enterprise, the total acreage devoted to agricultural activity shall be not less than ninety per cent of the total acreage of the agricultural-energy enterprise. The agricultural-energy facility shall be limited to lands owned, leased, licensed, or operated by the entity conducting the agricultural activity.

As used in this paragraph:

"Agricultural activity" means any activity described in paragraphs (1) to (3) of this subsection.

"Agricultural-energy enterprise" means an enterprise that integrally incorporates an agricultural activity with an agricultural-energy facility.

"Agricultural-energy facility" means a facility that generates, stores, or distributes renewable energy as defined in section 269-91 or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the State.

"Appurtenances" means operational infrastructure of the appropriate type and scale for the economic commercial generation, storage, distribution, and other similar handling of energy, including equipment, feedstock, fuels, and other products of agricultural-energy facilities;

(18) Construction and operation of wireless communication antennas[;], including small wireless facilities; provided that, for the purposes of this paragraph, "wireless communication antenna" means communications equipment that is either freestanding or placed upon or attached to an already existing structure and that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services; provided further that nothing in this paragraph shall be construed to permit the construction of any new structure that is not deemed a permitted use under this subsection; provided further that "small wireless facilities" shall have the same meaning as set forth in sections 27-41.1 and 46-15.6;

(19) Agricultural education programs conducted on a farming operation as defined in section 165-2, for the education and participation of the general public; provided that the agricultural education programs are accessory and secondary to the principal agricultural use of the parcels or lots on which the agricultural education programs are to occur and do not interfere with surrounding farm operations. For the purposes of this paragraph, "agricultural education programs" means activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation as defined in section 165-2;

(20) Solar energy facilities that do not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser or for which a special use permit is granted pursuant to section
205-6; provided that this use shall not be permitted on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A unless the solar energy facilities are:

(A) Located on a paved or unpaved road in existence as of December 31, 2013, and the parcel of land upon which the paved or unpaved road is located has a valid county agriculture tax dedication status or a valid agricultural conservation easement;

(B) Placed in a manner that still allows vehicular traffic to use the road; and

(C) Granted a special use permit by the commission pursuant to section 205-6;

(21) Solar energy facilities on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating B or C for which a special use permit is granted pursuant to section 205-6; provided that:

(A) The area occupied by the solar energy facilities is also made available for compatible agricultural activities at a lease rate that is at least fifty per cent below the fair market rent for comparable properties;

(B) Proof of financial security to decommission the facility is provided to the satisfaction of the appropriate county planning commission prior to date of commencement of commercial generation; and

(C) Solar energy facilities shall be decommissioned at the owner's expense according to the following requirements:

(i) Removal of all equipment related to the solar energy facility within twelve months of the conclusion of operation or useful life; and

(ii) Restoration of the disturbed earth to substantially the same physical condition as existed prior to the development of the solar energy facility.

For the purposes of this paragraph, "agricultural activities" means the activities described in paragraphs (1) to (3);

(22) Geothermal resources exploration and geothermal resources development, as defined under section 182‑1; or

(23) Hydroelectric facilities, including the appurtenances associated with the production and transmission of hydroelectric energy, subject to section 205-2; provided that the hydroelectric facilities and their appurtenances:

(A) Shall consist of a small hydropower facility as defined by the United States Department of Energy, including:

(i) Impoundment facilities using a dam to store water in a reservoir;

(ii) A diversion or run-of-river facility that channels a portion of a river through a canal or channel; and

(iii) Pumped storage facilities that store energy by pumping water uphill to a reservoir at higher elevation from a reservoir at a lower elevation to be released to turn a turbine to generate electricity;

(B) Comply with the state water code, chapter 174C;

(C) Shall, if over five hundred kilowatts in hydroelectric generating capacity, have the approval of the commission on water resource management, including a new instream flow standard established for any new hydroelectric facility; and

(D) Do not impact or impede the use of agricultural land or the availability of surface or ground water for all uses on all parcels that are served by the ground water sources or streams for which hydroelectric facilities are considered."

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on July 1, 2017; provided that this Act shall apply to permit applications filed with the State or county after January 1, 2018.



 

Report Title:

Broadband; Small Wireless Facilities; Siting Process; State and County Land

 

Description:

Establishes the siting process of infrastructure for small wireless facilities and small wireless facilities networks on state- and county-owned land. (HB625 HD1)

 

 

 

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