Report Title:

Land Use; District Boundary Amendment Process

 

Description:

Establishes a new process that simplifies the State Land Use Commission's procedures for county government petitions for boundary amendments.  District boundary amendments conducted under this process would be quasi-legislative rather than quasi-judicial in nature; allowing for expeditious approval of urban and rural classified lands that could be set-aside for affordable housing.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1085

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO PLANNING.

 

 

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

 


     SECTION 1.  In August 2007, Hawaii accepted an invitation by the United States Department of Housing and Urban Development to join the National Call to Action for Affordable Housing Through Regulatory Reform.  The Call to Action presented an opportunity for Hawaii to receive technical assistance from the federal government and collaborate with other states, counties, municipalities, and organizations to knock down the barriers imposed by governments in hopes of building more affordable housing.  Governor Lingle convened a statewide task force comprised of representatives from the counties, business, labor, developers, architects, nonprofit providers of services, and the State to carry out the mission of the Call to Action and recommend solutions to address barriers to affordable housing.  Accordingly, the purpose of this Act is to implement the legislative recommendations of the task force.

     The Task Force identified a need to facilitate the development of affordable housing by correcting inefficiencies in the land classification process.  This Act establishes a new process that improves the state land use commission's procedures for county government petitions for boundary amendments that are based on adopted county general and development plans.  District boundary amendments conducted under this process would be conducted in a holistic, regional manner conducive to best practices planning.

     SECTION 2. Chapter 205, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§205-A  State and county-initiated district boundary amendments.  (a)  The office of planning or any county planning department may apply to the commission for a regional change in the boundary of a district provided that the following requirements are met:

     (1)  The application covers a land area that is regional in geographic coverage, involving multiple parcels of land;

     (2)  The application conforms the land area to the land use element of a county general or development plan that has been approved by a county council pursuant to section 226-D, provided that the application cover only a portion of the land use changes identified in the land use element of the county general plan or development plan and may include only those lands within a particular urban or rural expansion area identified in the land use element of the county general plan or development plan; and

     (3)  The application shall identify the land areas for which land use district boundary amendments are being sought and the rationale for the proposed land use district boundary amendment.

     (b)  Section (a) shall apply only to applications submitted by the state or any county planning agency for changes in district boundaries of lands contained within an approved county general or development plan.  All other petitions for district boundary amendments shall be subject to sections 205-3.5 and 205-4 as applicable.

     (c)  The land use commission shall conduct at least one public hearing on the island or islands in which the lands are situated within sixty days of the filing of the state or county application.  The commission shall provide timely notice in a media of general circulation statewide which is printed or communicated and issued at least twice weekly in the county affected by the proposed action.  The notice shall include:

     (1)  A statement of the topic of the public hearing;

     (2)  A statement that a copy of the application will be mailed to any interested person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where and how the requests may be made;

     (3)  A statement of when, where, and during what times the application may be reviewed in person; and

     (4)  The date, time, and place where the public hearing will be held and where interested persons may be heard on the proposed application.

     The notice shall be mailed to all persons who have made a timely written request to the commission for advance notice of its public hearing and to all persons with a property interest in the lands identified in the application; provided that the adoption or rejection to adopt an amendment in an application as determined by the commission shall not be invalidated solely because of the inadvertent failure to mail an advance notice of a public hearing.

     (d)  If the State initiates an application for a boundary amendment under this section, the State shall provide notice to the affected county through its county planning agency at the time of filing with the commission, and provide copies of such application to the county planning department.  The county planning department shall provide written comments on the county's position to the land use commission within forty-five days of receipt of the state application.  The planning department shall include in its comments a description of general agreements made between the State and the county over implementation of the county general or development plan, any disagreements between the State and the county that remain unresolved, potential measures to resolve the disagreement, and recommendations for proposed boundary amendments for lands affected by any outstanding disagreement between the state and the county.

     (e)  If a county initiates an application for a boundary amendment under this section, the county shall provide notice to the state office of planning at the time of filing with the commission, and provide copies of such application to the office of planning.  The office of planning shall provide written comments and a position on the application to the commission within forty-five days of receipt of the county application.  The office shall include in its report a description of general agreements made between the State and the county over implementation of the county general or development plan, any disagreements between the state and the county that remain unresolved, potential measures to resolve the disagreement, and recommendations for proposed boundary amendments for lands affected by any outstanding disagreement between the state and the county.

     (f)  The commission shall act within one hundred eighty days of receipt of a complete filing of an application to approve, approve in part, or deny the application.  Ex parte communications with the commissioners shall be prohibited.  Any decision under this section shall require the affirmative vote of a majority of the members to which the commission is entitled.  The commission shall not impose any conditions on any land or any owner of property reclassified to a different state land use classification under this application process.

     (g)  The commission shall base its decision on conformance to the county general plans or development plans, consistency with land use district standards under chapter 205, the land use decision-making criteria of section 205-17, and the degree of consensus reached between state and county agencies.

     (h)  The commission shall issue a written decision and order, and shall provide copies to the state office of planning and affected county planning department if the application or a portion thereof is not approved.  The written decision shall identify the reasons for the land use commission's decision and shall be announced at a public commission meeting.

     (i)  The zoning of the affected lands shall remain in full force and effect until such time as the lands are rezoned by the county.

     (j)  Notwithstanding any other law to the contrary, the boundary amendment process conducted pursuant to this section shall be exempt from chapter 343, except for boundary amendments that reclassify land from the conservation district; provided that any application for a proposed use on lands reclassified pursuant to this section, which require subsequent discretionary approval by a county or a state body shall be subject to chapter 343 in those subsequent processes where such proposed uses require conformance to chapter 343.

     (k)  This section shall not apply to any application for a district boundary amendment that does not meet the requirements of subsection (a)."

     SECTION 3.  Section 46-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  This section and any ordinances or rules and regulations adopted in accordance with this section shall apply to lands not contained within the forest reserve boundaries as established on January 31, 1957, or as subsequently amended.

     Zoning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county.  Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner.  Zoning in the counties of Hawaii, Maui, and Kauai means the establishment of districts of such number, shape, and area, and the adoption of regulations for each district to carry out the purposes of chapters 205, 205A, and this section.  In establishing or regulating the districts, full consideration shall be given to all available data as to soil classification and physical use capabilities of the land so as to allow and encourage the most beneficial use of the land consonant with good zoning practices.  The zoning power granted herein shall be exercised by ordinance which may relate to:

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

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

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

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

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

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

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

     (8)  Building setback lines and future street lines;

     (9)  The density and distribution of population;

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

    (11)  Minimum and maximum lot sizes; and

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

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

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

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

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

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

     SECTION 4.  Section 226-58, Hawaii Revised Statutes, is amended by adding a new subsection to read as follows:

     "§226-58  County general plans.  (a)  The county general plans and development plans shall be formulated with input from the state and county agencies as well as the general public.

     County general plans or development plans shall indicate desired population and physical development patterns for each county and regions within each county. In addition, county general plans or development plans shall address the unique problems and needs of each county and regions within each county. The county general plans or development plans shall further define applicable provisions of this chapter; provided that any amendment to the county general plan of each county shall not be contrary to the county charter. The formulation, amendment, and implementation of county general plans or development plans shall take into consideration statewide objectives, policies, and programs stipulated in state functional plans approved in consonance with this chapter.

     (b)  County general plans shall be formulated on the basis of sound rationale, data, analyses, and input from state and county agencies and the general public, and contain objectives and policies as required by the charter of each county. Further, the county general plans should:

     (1)  Contain objectives to be achieved and policies to be pursued with respect to population density, land use, transportation system location, public and community facility locations, water and sewage system locations, visitor destinations, urban design, and all other matters necessary for the coordinated development of the county and regions within the county; and

     (2)  Contain implementation priorities and actions to carry out policies to include but not be limited to land use maps, programs, projects, regulatory measures, standards and principles, and interagency coordination provisions.

     (c)  County general plans and development plans shall include recommendations to amend district boundaries of lands.  Recommendations for district boundary amendments that are part of an approved county general plan or development plan shall be used by the counties to initiate and submit an application to the land use commission for changes in district boundaries of lands, pursuant to chapter 205A."

     SECTION 6.  Statutory material to be repealed is bracketed.  New statutory material is underscored.

     SECTION 7.  In codifying the new sections added to chapter 205 and 226, Hawaii Revised Statutes, the revisor of statutes shall substitute appropriate part numbers and section numbers for the letters used in the new sections designated in this Act.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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By Request