Report Title:

Land Use Commission; Counties

Description:

Grants authority to make land use district boundary amendment to appropriate county land use decision-making authority; provides appeal process of county land use decision-making authority decision to the land use commission; grants authority over agricultural district to the department of agriculture; repeals special permit; strengthens land use decision-making criteria to protect agriculture; requires periodic 5-year boundary reviews of all the land in the State by land use commission.

THE SENATE

S.B. NO.

1219

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to the land use commission.

 

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

SECTION 1. The legislature finds that although the purposes of Hawaii's land use law remain as valid today as they were at the time of its enactment in 1961, the procedures through which these purposes must be realized have proved inadequate and unworkable. Under existing procedures the land use commission has become redundant and overly restrictive, an impediment to rational land use planning and reasonable land use decision-making. This Act sets forth reforms intended to ensure the effective determination of statewide land use policy and its implementation by the counties. The commission is reconstituted as a quasi-legislative body for the purpose of conducting periodic reviews of land use district boundaries, within the constitutional framework of state stewardship over important agricultural and natural resource areas. Mindful of the need for property rights to be determined in quasi-judicial contested case proceedings, the legislature mandates that the counties make impartial land use district boundary amendment decisions based on proven facts and established policies. The land use commission is also reconstituted as an appellate body for the purpose of appealing a boundary amendment decision of a county.

SECTION 2. Section 205-1, Hawaii Revised Statutes, is amended to read as follows:

"§205-1 Establishment of the commission. There shall be a state land use commission, hereinafter called the commission. The commission shall consist of nine members who shall hold no other public office and shall be appointed in the manner and serve for the term set forth in section 26-34. One member shall be appointed from each of the counties and the remainder shall be appointed at large. The commission shall elect its chairperson from one of its members. The members shall receive no compensation for their services on the commission, but shall be reimbursed for actual expenses incurred in the performance of their duties. Six affirmative votes shall be necessary for any [boundary amendment.] action of the commission related to land use district boundaries.

The commission shall be a part of the department of business, economic development, and tourism for administration purposes, as provided for in section 26-35.

The commission may engage employees necessary to perform its duties, including administrative personnel and an executive officer. The executive officer shall be appointed by the commission and the executive officer's position shall be exempt from civil service. Departments of the state government shall make available to the commission such data, facilities, and personnel as are necessary for it to perform its duties. The commission may receive and utilize gifts and any funds from the federal or other governmental agencies. It shall adopt rules guiding its conduct, maintain a record of its activities and accomplishments, and make recommendations to the governor and to the legislature through the governor."

SECTION 3. Section 205-2, Hawaii Revised Statutes, is amended to read as follows:

"§205-2 Districting and classification of lands. (a) There shall be four major land use districts in which all lands in the State shall be placed: urban, rural, agricultural, and conservation. The land use commission shall group contiguous land areas suitable for inclusion in one of these four major districts. The commission shall set standards for determining the boundaries of each district, provided that:

(1) In the establishment of boundaries of urban districts, those lands that are now in urban use and a sufficient reserve area for foreseeable urban growth shall be included;

(2) In the establishment of boundaries for rural districts, areas of marginal agricultural land composed primarily of small farms mixed with very low density residential lots[, which may be shown by a minimum density of not more than one house per one-half acre and a minimum lot size of not less than one-half acre shall be included, except as herein provided;] and outdoor recreational uses shall be included;

(3) In the establishment of the boundaries of agricultural districts [the greatest possible protection shall be given to those lands with a high capacity for intensive cultivation; and], important agricultural lands shall be included to conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency, and ensure the availability of agriculturally suitable lands pursuant to article XI, section 3 of the state constitution; and

(4) In the establishment of the boundaries of conservation districts, the "forest and water reserve zones" provided in Act 234, section 2, Session Laws of Hawaii 1957, are renamed "conservation districts" and, effective as of July 11, 1961, the boundaries of the forest and water reserve zones theretofore established pursuant to Act 234, section 2, Session Laws of Hawaii 1957, shall constitute the boundaries of the conservation districts; provided that thereafter the power to determine the boundaries of the conservation districts shall be [in the commission.] pursuant to this chapter.

In establishing the boundaries of the districts in each county, the commission shall give consideration to the master plan [or], general plan, development plan, or community plan of the county.

(b) Urban districts shall include activities or uses as provided by ordinances or regulations of the county within which the urban district is situated.

(c) Rural districts shall include activities or uses [as characterized by low density residential lots 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 18,500 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.] as provided by ordinance or regulations of the county where the rural district is situated.

(d) Agricultural districts shall include activities or uses as [characterized by the cultivation of crops, orchards, forage, and forestry; farming activities or uses related to animal husbandry, aquaculture, and game and fish propagation; aquaculture, which means the production of aquatic plant and animal life for food and fiber within ponds and other bodies of water; wind generated energy production for public, private, and commercial use; bona fide agricultural services and uses which support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, whether or not conducted on the same premises as the agricultural activities to which they are accessory, including but not limited to farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, vehicle and equipment storage areas, and roadside stands for the sale of products grown on the premises; wind machines and wind farms; small-scale meteorological, air quality, noise, and other scientific and environmental data collection and monitoring facilities occupying less than one-half acre of land, provided that such facilities shall not be used as or equipped for use as living quarters or dwellings; agricultural parks; and open area recreational facilities, including golf courses and golf driving ranges; provided that they are not located within agricultural district lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B.] provided by rule of the department of agriculture under chapter 141. These districts shall include areas that identify the important agricultural lands of the State pursuant to article XI, section 3, of the state constitution, based on economically viable agricultural operations. The important agricultural lands designation is also based on the department of agriculture developing incentives to maintain and expand viable agricultural operations.

[These districts may include areas which are not used for, or which are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics.]

(e) Conservation districts shall include activities and uses as provided by rule of the department of land and natural resources under chapter 183C. These 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 4. Section 205-3, Hawaii Revised Statutes, is amended to read as follows:

"§205-3 Retention of district boundaries. Land use district boundaries existing as of [June 2, 1975,] the effective date of this Act, shall continue in full force and effect subject to amendment as provided in this chapter or order of a court of competent jurisdiction based upon any litigation filed prior to July 1, [1975,] 2005, or filed within thirty days after service of a certified copy of any final decision and order made as part of the commission's [1974 periodic boundary review,] next periodic review of districts, whichever occurs later."

SECTION 5. 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] the appropriate county land use decision-making authority of the county where the land is situated 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 and all petitions for changes in district boundaries involving lands greater than fifteen acres in the agricultural, rural, and urban districts], except as provided in section 201G-118. The [land use commission] appropriate county land use decision-making authority shall adopt rules pursuant to chapter 91 to implement section 201G-118. The appropriate county land use decision-making authority shall consolidate proceedings to amend state land use district boundaries pursuant to this section, with county proceedings to amend the general plan, development or community plan, zoning, or other proceedings. Appropriate ordinances and rules to allow the conduct of proceedings pursuant to this section shall be developed by the county land use decision-making authority.

(b) Upon proper filing of a petition pursuant to subsection (a) the [commission shall,] appropriate county land use decision-making authority, within not less than sixty and not more than one hundred and eighty days, shall 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] land use commission, the department of business, economic development, and tourism, 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 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 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] appropriate county land use decision-making authority and its staff may view and inspect any land [which] that 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] appropriate county land use decision-making authority for leave to intervene as parties. Leave to intervene shall be freely granted, provided that the [commission] the appropriate county land use decision-making authority or its hearing officer if one is appointed may deny an application to intervene when in the [commission's] authority'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 such denial to the circuit court pursuant to section 91-14.

(5) The [commission] appropriate county land use decision-making authority shall pursuant to chapter 91 adopt rules governing the intervention of agencies and persons under this subsection. Such rules shall without limitation establish: (A) the information to be set forth in any application for intervention; (B) time limits within which such applications shall be filed; and (C) reasonable filing fees to accompany such applications.

(f) Together with other witnesses that the [commission] appropriate county land use decision-making authority 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) 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,] appropriate county land use decision-making authority, the authority, 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] authority may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the [commission] authority 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) No amendment of a land use district boundary shall be approved unless the [commission] appropriate county land use decision-making authority finds upon the clear preponderance of the evidence that the proposed boundary is reasonable, not violative of section 205-2 and consistent with the policies and criteria established pursuant to sections 205-16 and 205-17. [Six affirmative votes of the commission] A two-thirds affirmative vote of all members the authority is entitled to shall be necessary for any boundary amendment under this section.

(i) Parties to proceedings to amend land use district boundaries may appeal the decision of the counties to the land use commission. The appeal shall be limited to findings from the proceedings that the decision failed to consider the criteria established in section 205-17. The moving party shall transmit a copy of the decision together with the complete record of the proceedings before the county land use decision-making authority to the commission within thirty days after the decision is rendered. Within ninety days after receipt of the complete record, the commission shall hear argument of the parties and shall act to approve, approve with modification, or deny the petition.

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

[(j)] (k) At the hearing[,] before the county land use decision-making authority, 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] county land use decision-making authority may but shall not be required to approve such stipulations based on the evidence adduced.

(l) Subject to subsections (i) and (j), a change in the state land use district boundaries shall become effective on the day designated by the county land use decision-making authority in its decision. Within sixty days of the effective date of any decision to amend state land use district boundaries by the county land use decision-making authority, the decision and a description and map of the affected property shall be transmitted to the land use commission and the department of business, economic development, and tourism by the county planning director."

SECTION 6. Section 205-4.1, Hawaii Revised Statutes, is amended to read as follows:

"§205-4.1 Fees. The [commission] appropriate county land use decision-making authority may establish reasonable fees for the filing of boundary amendment petitions and petitions for intervention to cover the cost of processing thereof and for the reproduction of maps and documents. The [commission] authority also may assess a reasonable fee or require reimbursements to be made for court reporter expenses, the inexcusable absence of a party from a boundary amendment proceeding, and any other reimbursements for hearing expenses as determined by the [commission.] authority. Any fees collected shall be deposited to the credit of the county general fund."

SECTION 7. Section 205-4.6, Hawaii Revised Statutes, is amended to read as follows:

"§205-4.6 Private restrictions on agricultural uses and activities; not allowed. Agricultural uses and activities as defined in [sections] section 205-2(d) [and 205-4.5(a)] on lands classified as agricultural shall not be restricted by any private agreement contained in any deed, agreement of sale, or other conveyance of land recorded in the bureau of conveyances after July 8, 2003, that subject such agricultural lands to any servitude, including but not limited to covenants, easements, or equitable and reciprocal negative servitudes. Any such private restriction limiting or prohibiting agricultural use or activity shall be voidable, subject to special restrictions enacted by the county ordinance pursuant to section 46-4; except that restrictions taken to protect environmental or cultural resources, agricultural leases, utility easements, and access easements shall not be subject to this section.

For purposes of this section, "agricultural leases" means leases where the leased land is primarily utilized for purposes [set forth in section 205-4.5(a).] as provided pursuant to section 205-2(d)."

SECTION 8. Section 205-5, Hawaii Revised Statutes, is amended to read as follows:

"§205-5 Zoning. [(a) Except as herein provided, the] The powers granted to counties under section 46-4 shall govern the zoning within the districts, other than in agricultural and conservation districts. Agricultural districts shall be governed by the department of agriculture pursuant to chapter 141. Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.

[(b) Within agricultural districts, uses compatible to the activities described in section 205-2 as determined by the commission shall be permitted; provided that accessory agricultural uses and services described in sections 205-2 and 205-4.5 may be further defined by each county by zoning ordinance. Other uses may be allowed by special permits issued pursuant to this chapter. The minimum lot size in agricultural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that the minimum lot size for any agricultural use shall not be less than one acre, except as provided herein. If the county finds that unreasonable economic hardship to the owner or lessee of land cannot otherwise be prevented or where land utilization is improved, the county may allow lot sizes of less than the minimum lot size as specified by law for lots created by a consolidation of existing lots within an agricultural district and the resubdivision thereof; provided that the consolidation and resubdivision do not result in an increase in the number of lots over the number existing prior to consolidation; and provided further that in no event shall a lot, which is equal to or exceeds the minimum lot size of one acre be less than that minimum after the consolidation and resubdivision action. The county may also allow lot sizes of less than the minimum lot size as specified by law for lots created or used for public, private, and quasi-public utility purposes, and for lots resulting from the subdivision of abandoned roadways and railroad easements.

(c) Unless authorized by special permit issued pursuant to this chapter, only the following uses shall be permitted within rural districts:

(1) Low density residential uses;

(2) Agricultural uses; and

(3) Public, quasi-public, and public utility facilities.

In addition, the minimum lot size for any low density residential use shall be one-half acre and there shall be but one dwelling house per one-half acre, except as provided for in section 205-2.]"

SECTION 9. Section 205-5.1, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) The board of land and natural resources shall have the responsibility for designating areas as geothermal resource subzones as provided under section 205-5.2; except that the total area within an agricultural district which is the subject of a geothermal mining lease approved by the board of land and natural resources, any part or all of which area is the subject of a special use permit issued by the county for geothermal development activities, on or before May 25, 1984, is designated as a geothermal resource subzone for the duration of the lease. The designation of geothermal resource subzones shall be governed exclusively by this section and section 205-5.2, except as provided therein. The board shall adopt, amend, or repeal rules related to its authority to designate and regulate the use of geothermal resource subzones in the manner provided under chapter 91.

The authority of the board to designate geothermal resource subzones shall be an exception to those provisions of this chapter and of section 46-4 authorizing the land use commission to establish and the counties to [establish and] modify land use districts and to regulate uses therein. The provisions of this section shall not abrogate nor supersede the provisions of chapters 182, 183, and 183C.

(c) The use of an area for geothermal development activities within a geothermal resource subzone shall be governed by the board within the conservation district and, except as herein provided, by state and county statutes, ordinances, and rules not inconsistent herewith within agricultural, rural, and urban districts[, except that no land use commission approval or special use permit procedures under section 205-6 shall be required for the use of such subzones]. In the absence of provisions in the county general plan and zoning ordinances specifically relating to the use and location of geothermal development activities in an agricultural, rural, or urban district, the appropriate county authority may issue a geothermal resource permit to allow geothermal development activities. "Appropriate county authority" means the county planning commission unless some other agency or body is designated by ordinance of the county council. Such uses as are permitted by county general plan and zoning ordinances, by the appropriate county authority, shall be deemed to be reasonable and to promote the effectiveness and objectives of this chapter. Chapters 177, 178, 182, 183, 183C, 205A, 226, 342, and 343 shall apply as appropriate. If provisions in the county general plan and zoning ordinances specifically relate to the use and location of geothermal development activities in an agricultural, rural, or urban district, the provisions shall require the appropriate county authority to conduct a public hearing on any application for a geothermal resource permit to determine whether the use is in conformity with the criteria specified in subsection (e) for granting geothermal resource permits; provided that within the urban, rural, and agricultural land use districts, direct use applications of geothermal resources are permitted without any application for a geothermal resource permit both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2 if such direct use applications are in conformance with all other applicable state and county land use regulations and are in conformance with this chapter."

SECTION 10. Section 205-7, Hawaii Revised Statutes, is amended to read as follows:

"§205-7 Adoption, amendment or repeal of rules. The land use commission and the appropriate county land use decision-making authority for each county shall adopt, amend, or repeal rules relating to matters within its jurisdiction in the manner prescribed in chapter 91."

SECTION 11. Section 205-8, Hawaii Revised Statutes, is amended to read as follows:

"§205-8 Nonconforming uses. The lawful use of land or buildings existing on the [date of establishment of any interim] effective date of this Act in any agricultural district and rural district [in final form] may be continued although the use, including lot size, does not conform to this chapter; provided that no nonconforming building shall be replaced, reconstructed, or enlarged or changed to another nonconforming use and no nonconforming use of land shall be expanded or changed to another nonconforming use. In addition, if any nonconforming use of land or building is discontinued or held in abeyance for a period of one year, the further continuation of such use shall be prohibited."

SECTION 12. Section 205-12, Hawaii Revised Statutes, is amended to read as follows:

"§205-12 Enforcement. The appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification districts adopted [by the land use commission and the restriction on use and the condition relating to agricultural districts under section 205-4.5 and shall report to the commission all violations.] pursuant to this chapter."

SECTION 13. Section 205-14, Hawaii Revised Statutes, is amended to read as follows:

"§205-14 Adjustments of assessing practices. Upon the adoption of district boundaries, certified copies of the classification maps showing the district boundaries shall be filed with the [department of taxation.] appropriate county real property taxing authority. Thereafter, the [department of taxation shall,] county taxing authority, when making assessments of property within a district, shall give consideration to the use or uses that may be made thereof as well as the uses to which it is then devoted."

SECTION 14. Section 205-16, Hawaii Revised Statutes, is amended to read as follows:

"§205-16 Compliance with the Hawaii state plan. No amendment to any land use district boundary nor any other action by the [land use commission] appropriate county land use decision-making authority shall be adopted unless such amendment or other action conforms to the Hawaii state plan."

SECTION 15. Section 205-17, Hawaii Revised Statutes, is amended to read as follows:

"§205-17 Land use commission, county land use decision-making authority; decision-making criteria. (a) In its review of any petition for reclassification of district boundaries pursuant to this chapter, the [commission] appropriate county land use decision-making authority 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 district standards[;] established under section 205-2; 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;

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

(C) Maintenance of other natural resources relevant to Hawaii's economy, including, but not limited to, agricultural resources;

(D) Commitment of state funds and resources;

(E) Provision for agricultural opportunities based on economically viable agricultural opportunities, including but not limited to important agricultural lands;

[(E)] (F) Provision for employment opportunities and economic development; and

[(F)] (G) Provision for housing opportunities for all income groups, particularly the low, low-moderate, and gap groups; and

(4) The representations and commitments made by the petitioner in securing a boundary change.

(b) Any decision pursuant to this section shall be based upon a determination that on balance the public benefit from the proposed district boundary amendment or zone change outweighs the benefits of retaining the land for agricultural purposes, and that the proposed action will have no significant impact upon the viability of agricultural operations on adjacent agricultural lands. There shall be an affirmative presumption in favor of approval of a district boundary amendment that the clear preponderance of evidence shows will yield greater public economic benefit than retention of the land in its present classification."

SECTION 16. Section 205-18, Hawaii Revised Statutes, is amended to read as follows:

"§205-18 Periodic review of districts. The [office of planning] land use commission shall undertake a review of the classification and districting of all lands in the State, within [five years from December 31, 1985,] one year from the effective date of this Act, and every fifth year thereafter. The [office,] commission, in its five-year boundary review, shall focus its efforts on reviewing the Hawaii state plan, county general plans, and county development and community plans. Upon completion of the five-year boundary review, the [office shall submit a report of the findings to the commission. The office may initiate] commission shall give notice and opportunity to be heard pursuant to section 91-3, and shall adopt state land use district boundary amendments [which] that it deems appropriate to conform to these plans[. The office] and to section 205-2. District boundary amendments adopted by the commission under this section shall not have force or effect of law until approved by the appropriate county land use decision-making authority pursuant to section 205-4. The commission may seek assistance of appropriate state and county agencies and may employ consultants and undertake studies in making this review."

SECTION 17. Section 205-3.1, Hawaii Revised Statutes, is repealed.

["§205-3.1 Amendments to district boundaries. (a) District boundary amendments involving land areas greater than fifteen acres shall be processed by the land use commission pursuant to section 205-4.

(b) Any department or agency of the State, and 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 appropriate county land use decision-making authority of the county in which the land is situated for a change in the boundary of a district involving lands less than fifteen acres presently in the agricultural, rural, and urban districts.

(c) District boundary amendments involving land areas of fifteen acres or less, except in conservation districts, shall be determined by the appropriate county land use decision-making authority for said district and shall not require consideration by the land use commission pursuant to section 205-4. District boundary amendments involving land areas of fifteen acres or less in conservation districts shall be processed by the land use commission pursuant to section 205-4. The appropriate county land use decision-making authority may consolidate proceedings to amend state land use district boundaries pursuant to this subsection, with county proceedings to amend the general plan, development plan, zoning of the affected land or such other proceedings. Appropriate ordinances and rules to allow consolidation of such proceedings may be developed by the county land use decision-making authority.

(d) The county land use decision-making authority shall serve a copy of the application for a district boundary amendment to the land use commission and the department of business, economic development, and tourism and shall notify the commission and the department of the time and place of the hearing and the proposed amendments scheduled to be heard at the hearing. A change in the state land use district boundaries pursuant to this subsection shall become effective on the day designated by the county land use decision-making authority in its decision. Within sixty days of the effective date of any decision to amend state land use district boundaries by the county land use decision-making authority, the decision and the description and map of the affected property shall be transmitted to the land use commission and the department of business, economic development, and tourism by the county planning director. "]

SECTION 18. Section 205-4.5, Hawaii Revised Statutes, is repealed.

["§205-4.5 Permissible uses within the agricultural districts. (a) Within the agricultural district all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be restricted to the following permitted uses:

(1) Cultivation of crops, including but not limited to flowers, vegetables, foliage, fruits, forage, and timber;

(2) Game and fish propagation;

(3) Raising of livestock, including but not limited to poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;

(4) Farm dwellings, employee housing, farm buildings, or activity or uses related to farming and animal husbandry;

Farm dwelling as used in this paragraph means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;

(5) Public institutions and buildings which are necessary for agricultural practices;

(6) Public and private open area types of recreational uses including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;

(7) Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, or treatment plants, or corporation yards, or other like structures;

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

(9) Roadside stands for the sale of agricultural products grown on the premises;

(10) Buildings and uses, including but not limited to mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the abovementioned uses and are permitted under section 205-2(d);

(11) Agricultural parks; or

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

(b) Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in sections 205-6 and 205-8, and construction of single-family dwellings on lots existing before June 4, 1976. Any other law to the contrary notwithstanding, no subdivision of land within the agricultural district with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be approved by a county unless the said A and B lands within the subdivision shall be made subject to the restriction on uses as prescribed in this section and to the condition that the uses shall be primarily in pursuit of an agricultural activity.

Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision shall expressly contain the restriction on uses and the condition as prescribed in this section which restriction and condition shall be encumbrances running with the land until such time that the land is reclassified to a land use district other than agricultural district.

If the foregoing requirement of encumbrances running with the land jeopardizes the owner or lessee from obtaining mortgage financing from any of the mortgage lending agencies set forth hereinbelow, and said requirement is the sole reason for failure to obtain mortgage financing, then such requirement of encumbrances shall, insofar as such mortgage financing is so jeopardized, be conditionally waived by the appropriate county enforcement officer; provided that such conditional waiver shall thereafter become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

The mortgage lending agencies mentioned hereinabove are the Federal Housing Administration, Federal National Mortgage Association, Veterans Administration, Small Business Administration, United States Department of Agriculture, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, and any other federal, state, or private mortgage lending agency qualified to do business in Hawaii, and their respective successors and assigns.

(c) Within the agricultural district all lands, with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U shall be restricted to the uses permitted for agricultural districts as set forth in section 205-5(b)."]

SECTION 19. Section 205-6, Hawaii Revised Statutes, is repealed.

["§205-6 Special permit. (a) The county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. Each county may establish the appropriate fee for processing the special permit petition.

(b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur. The county planning commission shall notify the land use commission and such persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

(c) The county planning commission may under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission.

(d) Special permits for land the area of which is greater than fifteen acres shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting such approval, including the adherence to representations made by the applicant.

(e) A copy of the decision together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres shall be transmitted to the land use commission within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.

(f) Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4.5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U."]

SECTION 20. Section 205-13, Hawaii Revised Statutes, is repealed.

["§205-13 Penalty for violation. Any person who violates any provision under section 205-4.5, or any regulation established relating thereto, shall be fined not more than $5,000, and any person who violates any other provision of this chapter, or any regulation established relating thereto, shall be fined not more than $1,000.

If any person cited for a violation under this chapter fails to remove such violation within six months of such citation and the violation continues to exist, such person shall be subject to a citation for a new and separate violation. There shall be a fine of not more than $5,000 for any additional violation.

Prior to the issuance of any citation for a violation, the appropriate enforcement officer or agency shall notify the violator and the mortgagee, if any, of such violation, and the violator or the mortgagee, if any, shall have not more than sixty days to cure the violation before citation for a violation is issued."]

SECTION 21. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 22. This Act shall take effect upon its approval.

INTRODUCED BY:

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