THE SENATE

S.B. NO.

3066

THIRTIETH LEGISLATURE, 2020

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to public notice.

 

 

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

 


SECTION 1. The legislature finds that recent community reactions to the Kahuku windmill project and the Thirty Meter Telescope have demonstrated that the permitting process lacks the requisite level of transparency and public notice to inform neighborhoods and cultural communities of proposed construction projects. The State has followed a stealth permitting strategy by not fully notifying the affected neighborhoods and cultural communities of the impacts that projects may have on health and safety, cultural practices, wildlife, the ecosystem, and the environment.

Accordingly, the purpose of this Act is to require the department of Hawaiian home lands, department of land and natural resources, and university of Hawaii to inform affected neighborhoods and cultural communities of proposed construction projects and to obtain community approval through a referendum.

SECTION 2. Hawaiian Homes Commission Act, 1920, as amended, is amended by adding a new section to read as follows:

" Land use, enhanced public notice requirements; referendum. (a) Within thirty days of filing a permit application to construct any project that involves a change in land use by the commission, the commission shall provide public notice pursuant to subsection (d) and as otherwise required by law.

(b) Within four months of filing a permit application to construct any project that involves a change in land use by the commission, the commission shall conduct not less than three public meetings or hearings. Notice of the public meetings or hearings shall be made pursuant to subsection (d) and as otherwise required by law.

(c) Before proceeding with any project that involves a change in land use by the commission, the commission shall obtain approval of the project by the community through a referendum. Notice of the referendum shall be made pursuant to subsection (d) and as otherwise required by law. All adult residents of parcels within five miles of any portion of the proposed project shall be eligible to vote in the referendum. Any proposed project that does not receive approval by a majority of votes cast shall be denied; provided that any blank, spoiled, and invalid ballots shall not be tallied as votes cast. The office of elections shall assist the commission in conducting the referendum and adopt rules pursuant to chapter 91, Hawaii Revised Statutes, to effectuate the purposes of this subsection. The rules may authorize voting in the referendum to be conducted by mail. Costs associated with the referendum shall be borne by the commission.

(d) In addition to any other requirement by law or rule, public notice pursuant to subsections (a), (b), and (c) shall be provided as follows:

(1) By publication once a week for four successive weeks in a newspaper of general circulation serving the area described in subsection (d);

(2) By mailing the notice to each residence within five miles of the proposed project;

(3) By posting the notice in multiple publicly accessible areas of the property of the proposed project, if any; and

(4) By posting the notice in an easily accessible location of the commission's website."

SECTION 3. Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"171- Land use, enhanced public notice requirements; referendum. (a) Within thirty days of filing a permit application to construct any project that involves a change in land use by the department, the department shall provide public notice pursuant to subsection (d) and as otherwise required by law.

(b) Within four months of filing a permit application to construct any project that involves a change in land use by the department, the department shall conduct not less than three public meetings or hearings. Notice of the public meetings or hearings shall be made pursuant to subsection (d) and as otherwise required by law.

(c) Before proceeding with any project that involves a change in land use by the department, the department shall obtain approval of the project by the community through a referendum. Notice of the referendum shall be made pursuant to subsection (d) and as otherwise required by law. All adult residents of parcels within five miles of any portion of the proposed project shall be eligible to vote in the referendum. Any proposed project that does not receive approval by a majority of votes cast shall be denied; provided that any blank, spoiled, and invalid ballots shall not be tallied as votes cast. The office of elections shall assist the department in conducting the referendum and adopt rules pursuant to chapter 91 to effectuate the purposes of this subsection. The rules may authorize the voting in the referendum to be conducted by mail. Costs associated with the referendum shall be borne by the department.

(d) In addition to any other requirement by law or rule, public notice pursuant to subsections (a), (b), and (c) shall be provided as follows:

(1) By publication once a week for four successive weeks in a newspaper of general circulation serving the area described in subsection (d);

(2) By mailing the notice to each residence within five miles of the proposed project;

(3) By posting the notice in multiple publicly accessible areas of the property of the proposed project, if any; and

(4) By posting the notice in an easily accessible location of the department's website."

SECTION 4. Section 205-4, Hawaii Revised Statutes, is amended to read as follows:

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

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

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

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

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

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

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

(3) All persons who have some property interest in the land, who lawfully reside on the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the proposed change that their interest in the proceeding is clearly distinguishable from that of the general public shall be admitted as parties upon timely application for intervention;

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

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

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

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

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

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

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

(C) Reasonable filing fees to accompany applications.

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

(g) At any time prior to the hearing or at the hearing, a representative of a citizen or a community group, the petitioner, a party, or an intervenor may request the commission to obtain approval of the proposed boundary change by the community through a referendum. Notice of the referendum shall be mailed to any person, entity, or residence entitled to receive any notice pursuant to subsection (a) and shall be posted in the same manner as notices pursuant to subsection (a). All adult residents of parcels within five miles of any portion of the land sought to be reclassified shall be eligible to vote in the referendum. Any proposed boundary change that does not receive approval by a majority of votes cast shall be denied; provided that any blank, spoiled, and invalid ballots shall not be tallied as votes cast. The office of elections shall assist the commission in conducting the referendum and adopt rules pursuant to chapter 91 to effectuate the purposes of this subsection. The rules may authorize voting in the referendum to be conducted by mail. Costs associated with the referendum shall be borne by the commission.

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

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

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

[(j)] (k) At the hearing, all parties may enter into appropriate stipulations as to findings of fact, conclusions of law, and conditions of reclassification concerning the proposed boundary change. The commission may but shall not be required to approve such stipulations based on the evidence adduced."

SECTION 5. Chapter 304A, Hawaii Revised Statutes, is amended by adding a new section to part VI, subpart D, to be appropriately designated and to read as follows:

"304A- Land use, enhanced public notice requirements; referendum. (a) Within thirty days of filing a permit application to construct any project that involves a change in land use by the university or the construction of a new project, execution of a new lease, or the extension of an existing lease within the Mauna Kea science reserve, the university shall provide public notice pursuant to subsection (d) and as otherwise required by law.

(b) Within four months of filing a permit application to construct any project that involves a change in land use by the university or the construction of a new project, execution of a new lease, or the extension of an existing lease within the Mauna Kea science reserve, the university shall conduct not less than three public meetings or hearings. Notice of the public meetings or hearings shall be made pursuant to subsection (d) and as otherwise required by law.

(c) Before proceeding with any project that involves a change in land use by the university or the construction of a new project, execution of a new lease, or the extension of an existing lease within the Mauna Kea science reserve, the university shall obtain approval of the project by the community through a referendum. Notice of the referendum shall be made pursuant to subsection (d) and as otherwise required by law. All adult residents of parcels within five miles of any portion of the proposed project shall be eligible to vote in the referendum. For referendums concerning the Mauna Kea science reserve, all adult residents of the county in which the Mauna Kea science reserve is located shall be eligible to vote in the referendum. Any proposed project that does not receive approval by a majority of votes cast shall be denied; provided that any blank, spoiled, and invalid ballots shall not be tallied as votes cast. The office of elections shall assist the university in conducting the referendum and adopt rules pursuant to chapter 91 to effectuate the purposes of this subsection. The rules may authorize voting in the referendum to be conducted by mail. Costs associated with the referendum shall be borne by the university.

(d) In addition to any other requirement by law or rule, public notice pursuant to subsections (a), (b), and (c) shall be provided as follows:

(1) By publication once a week for four successive weeks in a newspaper of general circulation serving the area described in subsection (d);

(2) By mailing the notice to each residence within five miles of the proposed project; provided that for referendums concerning the Mauna Kea science reserve, this paragraph shall not apply;

(3) By posting the notice in multiple publicly accessible areas of the property of the proposed project, if any; and

(4) By posting the notice in an easily accessible location of the university's website."

SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2020-2021 for the enhanced public notice requirements under this Act.

The sum appropriated shall be expended by the department of Hawaiian home lands for the purposes of this Act.

SECTION 7. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2020-2021 for the enhanced public notice requirements under this Act.

The sum appropriated shall be expended by the department of land and natural resources for the purposes of this Act.

SECTION 8. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2020-2021 for the enhanced public notice requirements under this Act.

The sum appropriated shall be expended by the land use commission for the purposes of this Act.

SECTION 9. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2020-2021 for the enhanced public notice requirements under this Act.

The sum appropriated shall be expended by the university of Hawaii for the purposes of this Act.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on July 1, 2020.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

DHHL; DLNR; UH; Public Notice; Land Use; Appropriation

 

Description:

Establishes enhanced public notice requirements for change in land use by the Department of Hawaiian Home Lands, Department of Land and Natural Resources, or the University of Hawaii and boundary changes by the Land Use Commission. Requires approval of the project by the community through a referendum of nearby adult residents except for projects within the Mauna Kea science reserve, which require a referendum by all adult residents of the county in which the Mauna Kea science reserve is located. Appropriates funds.

 

 

 

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