HOUSE OF REPRESENTATIVES

H.B. NO.

1660

TWENTY-SIXTH LEGISLATURE, 2011

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to land use.

 

 

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

 


     SECTION 1.  Section 46-4, Hawaii Revised Statutes, is amended to read as follows:

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

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

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

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

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

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

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

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

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

     (8)  Building setback lines and future street lines;

     (9)  The density and distribution of population;

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

    (11)  Minimum and maximum lot sizes; and

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

     (b)  The council of [any] each county shall prescribe rules, regulations, and administrative procedures and provide personnel as it finds necessary to enforce this section and any ordinance enacted in accordance with this section.  [The] All ordinances enacted pursuant to this section 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]; provided that an administrative proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.

     (c)  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.

     (d)  The powers granted [herein] pursuant to this section shall be liberally construed in favor of the county exercising them, and in [such] a manner [as to promote] that promotes 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).] (h) and (i).

     (e)  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] the amortization or phasing out of nonconforming uses apply to any existing building or premises used for residential, including [(]single-family or duplex[)], or agricultural uses.  Nothing in this section shall affect or impair the powers and duties of the director of transportation as set forth in chapter 262.

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

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

     [(d)] (h)  Neither this section nor any other law, county ordinance, or rule shall prohibit group living in facilities with eight or fewer residents and that are licensed by the State as provided for under section 321-15.6, or in an intermediate care facility/mental retardation-community for persons, including mentally ill, elder, disabled, developmentally disabled, or totally disabled persons, who are not related to the home operator or facility staff; provided that those group living facilities meet all applicable county requirements not inconsistent with the intent of this subsection and including building height, setback, maximum lot coverage, parking, and floor area requirements.

     [(e)] (i)  No permit shall be issued by a county agency for the operation of a halfway house, a clean and sober home, or a drug rehabilitation home unless a public informational meeting is first held in the affected community.  The State shall provide notification and access to relevant information, as required, under chapter 846E.

     A clean and sober home shall be considered a residential use of property and shall be a permitted or conditional use in residentially designated zones, including but not limited to zones for single-family dwellings.

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

     (k)  Neither this section nor any other law, county ordinance, or rule shall prohibit an individual landowner of privately-held land classified as agricultural or rural pursuant to section 205-2 from allowing camping on the landowner's land; provided that:

     (1)  The landowner shall collect for the privilege of camping on the individual's land no more than a nominal fee sufficient to recover a portion of the actual costs incurred in complying with the requirements of this subsection;

     (2)  The landowner shall provide adequate facilities for sanitation; provided that sanitation facilities located outside of the land used for camping shall not be sufficient to meet the requirement of this paragraph;

     (3)  The landowner shall provide access to potable water on or near the land used for camping;

     (4)  The landowner shall provide for the collection and removal of refuse from the landowner's property;

     (5)  There shall be adequate space separating the land used for camping from land belonging to any other person or entity, including the State or a county, so as not to infringe on the property rights of any other individual or the rights of the public to access public land; and

     (6)  The landowner shall be liable for any injury or damages to persons, property, or natural resources caused by any person or persons camping on the landlord's land.

     The counties shall adopt rules and ordinances necessary for the administration of this subsection, including rules for enforcing the limitations on fees contained in paragraph (1) and for determining adequacy of sanitation facilities pursuant to paragraph (2).

     Nothing in this subsection shall be construed to permit the construction or siting on a landowner's land of structures or facilities not otherwise allowable under relevant state and county laws.

     [(f)] (l)  For purposes of this section:

     "Camping" means living or staying outdoors for a period of time not less than twenty-four hours with the intent to sleep for at least one night in the open air or in a tent, or other temporary, portable structure, and all related activities including preparing and eating food and maintaining personal sanitation.

     "Clean and sober home" means a house that is operated pursuant to a program designed to provide a stable environment of clean and sober living conditions to sustain recovery and that is shared by unrelated adult persons who:

     (1)  Are recovering from substance abuse;

     (2)  Share household expenses; and

     (3)  Do not require twenty-four-hour supervision, rehabilitation, or therapeutic services or care in the home or on the premises;

provided that the home shall meet all applicable laws, codes, and rules of the counties and State.

     "Developmentally disabled person" means a person suffering from developmental disabilities as defined under section 333F-1.

     "Disabled person" means a person with a disability as defined under section 515-2.

     "Drug rehabilitation home" means:

     (1)  A residential treatment facility that provides a therapeutic residential program for care, diagnosis, treatment, or rehabilitation for socially or emotionally distressed persons, mentally ill persons, persons suffering from substance abuse, and developmentally disabled persons; or

     (2)  A supervised living arrangement that provides mental health services, substance abuse services, or supportive services for individuals or families who do not need the structure of a special treatment facility and are transitioning to independent living;

provided that drug rehabilitation homes shall not include halfway houses or clean and sober homes.

     "Elder" means an elder as defined under section 356D-1.

     "Halfway house" means a group living facility for people who:

     (1)  Have been released or are under supervised release from a correctional facility;

     (2)  Have been released from a mental health treatment facility; or

     (3)  Are receiving substance abuse or sex offender treatment; and

are housed to participate in programs that help them readjust to living in the community.

     "Intermediate care facility/mental retardation-community" means an identifiable unit providing residence and care for eight or fewer mentally retarded individuals.  Its primary purpose is the provision of health, social, and rehabilitation services to the mentally retarded through an individually designed active treatment program for each resident.  No person who is predominantly confined to bed shall be admitted as a resident of such a facility.

     "Mental health treatment facility" means a psychiatric facility or special treatment facility as defined under section 334-1.

     "Mentally ill person" has the same meaning as defined under section 334-1.

     "Totally disabled person" means a "person totally disabled" as defined under section 235-1.

     "Treatment program" means a "substance abuse program" or "treatment program", as those terms are defined under section 353G-2.

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

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

     1.  By amending subsection (c) to read:

     (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),] 46-4(g); 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]; provided 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 further that all other dwellings in the subdivision shall have a minimum lot size of one-half acre or 21,780 square feet.  [Such] A petition for variance may be processed under the special permit procedure.  [These] Rural 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[.] as well as facilities for camping as provided in section 46-4(k).

     2.  By amending subsection (d) to read:

     (d)  Agricultural districts shall include:

     (1)  Activities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry;

     (2)  Farming activities or uses related to animal husbandry and game and fish propagation;

     (3)  Aquaculture, which means the production of aquatic plant and animal life within ponds and other bodies of water;

     (4)  Wind generated energy production for public, private, and commercial use;

     (5)  Biofuel production, as described in section 205‑4.5(a)(15), for public, private, and commercial use;

     (6)  Solar energy facilities; provided that this paragraph shall apply only to land with soil classified by the land study bureau's detailed land classification as overall [(] or master[)] productivity rating class D or E;

     (7)  Bona fide agricultural services and uses that support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, regardless of whether conducted on the same premises as the agricultural activities to which they are accessory[,] including farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, agricultural-energy facilities as defined in section 205-4.5(a)(16), vehicle and equipment storage areas, roadside stands for the sale of products grown on the premises, and plantation community subdivisions as defined in section 205‑4.5(a)(12);

     (8)  Wind machines and wind farms;

     (9)  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 these facilities shall not be used as or equipped for use as living quarters or dwellings;

    (10)  Agricultural parks;

    (11)  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; and

    (12)  Open area recreational facilities[.], including facilities for camping as provided in section 46-4(k).

Agricultural districts shall not include golf courses and golf driving ranges, except as provided in section 205-4.5(d).  Agricultural districts include areas that are not used for, or that are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect on July 1, 2011.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Land Use; Agricultural and Rural Land; Camping

 

Description:

Permits camping under certain conditions on privately-owned agricultural and rural lands.

 

 

 

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