Land Use Approval Conditions 

Prohibits the land use commission and the county zoning agency
from imposing a condition on an application where the area of
concern covered by the condition was addressed by the other

HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                     A BILL FOR AN ACT



 1      SECTION 1.  The legislature finds that an expeditious land
 2 use permitting process is critical to the well being of the
 3 people of Hawaii.
 4      Oftentimes before putting land to its best use, a landowner
 5 must obtain the approval of both the state land use commission
 6 and the appropriate county land use decision-making authority.
 7 In the approval process the state and county may impose
 8 conditions relating to the same area of concern.  Consequently,
 9 the landowner may have to expend time and money at both the state
10 and county levels to address issues in an area of concern that
11 was previously addressed by the other agency.   The prohibition
12 against the imposition of such conditions by the state and the
13 county will substantially streamline the land use permitting
14 process.  The resulting benefits are many.  The cost of land
15 development will be lower and more certain, thus lowering the
16 cost of housing and commercial space, which in turn lowers the
17 cost of goods and services to the people of Hawaii.
18      A more efficient land use permitting process is an essential
19 element in any plan to lower the cost of doing business in this
20 State and a prequisite to shedding Hawaii's reputation as one of

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 1 the worst places in America to do business.  It is a harsh
 2 economic reality that Hawaii is a capital-poor state.  This Act
 3 will have a positive impact on an over-regulated business
 4 environment that must be streamlined to attract the necessary
 5 capital infusion to revitalize Hawaii's present stagnant economy
 6 in the short term, and to satisfy Hawaii's capital requirements
 7 in the long term.
 8      Duplication of efforts by government agencies removes the
 9 critical factor of accountability in the quest for government
10 efficiency.   Effective, efficient, and economical government
11 operations mandate that an agency perform its functions and
12 duties in such a comprehensive and conscientious manner that
13 another agency in its review or action can confidently focus its
14 resources on areas of concern that were not addressed by the
15 other agency.  The adverse economic and social impacts of the
16 cost and time elements of land development is so widespread in
17 our society that the legislature would be remiss if it did not
18 seek to eliminate this redundancy in the land use permitting
19 process. 
20      The purpose of this Act is to identify certain areas of
21 concern wherein the state and county cannot impose development
22 conditions respecting an area of concern already addressed by the
23 other jurisdiction.

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 1      SECTION 2.  Section 46-4, Hawaii Revised Statutes, is
 2 amended by amending subsection (a) to read as follows:
 3      "(a)  This section and any ordinances or rules and
 4 regulations adopted in accordance with it, shall apply to those
 5 lands not contained within the forest reserve boundaries as
 6 established on January 31, 1957, or as subsequently amended.
 7      Zoning in all counties shall be accomplished within the
 8 framework of a long range, comprehensive general plan prepared or
 9 being prepared to guide the overall future development of the
10 county.  Zoning shall be one of the tools available to the county
11 to put the general plan into effect in an orderly manner.  Zoning
12 in the counties of Hawaii, Maui, and Kauai means the
13 establishment of districts of such number, shape, and area, and
14 the adoption of regulations for each district as shall be deemed
15 best suited to carry out the purposes of this section.  In
16 establishing or regulating the districts, full consideration
17 shall be given to all available data as to soil classification
18 and physical use capabilities of the land so as to allow and
19 encourage the most beneficial use of the land consonant with good
20 zoning practices.  The zoning power granted herein shall be
21 exercised by ordinance which may relate to:
22      (1)  The areas within which agriculture, forestry, industry,
23           trade, and business may be conducted[.];

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 1      (2)  The areas in which residential uses may be regulated or
 2           prohibited[.];
 3      (3)  The areas bordering natural watercourses, channels, and
 4           streams, in which trades or industries, filling or
 5           dumping, erection of structures, and the location of
 6           buildings may be prohibited or restricted[.];
 7      (4)  The areas in which particular uses may be subjected to
 8           special restrictions[.];
 9      (5)  The location of buildings and structures designed for
10           specific uses and designation of uses for which
11           buildings and structures may not be used or altered[.];
12      (6)  The location, height, bulk, number of stories, and size
13           of buildings and other structures[.];
14      (7)  The location of roads, schools, and recreation
15           areas[.];
16      (8)  Building setback lines and future street lines[.];
17      (9)  The density and distribution of population[.];
18     (10)  The percentage of lot which may be occupied, size of
19           yards, courts, and other open spaces[.];
20     (11)  Minimum and maximum lot sizes[.]; and
21     (12)  Other such regulations as may be deemed by the boards
22           or city council as necessary and proper to permit and
23           encourage orderly development of land resources within
24           their jurisdictions.

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 1      Notwithstanding anything to the contrary in this section,
 2 where the use of any land must be approved by the land use
 3 commission and an appropriate county land use decision-making
 4 authority, the appropriate county land use decision-making
 5 authority shall not impose any condition relating to:
 6      (1)  Air quality;
 7      (2)  Archaeological preservation;
 8      (3)  Civil defense;
 9      (4)  Decibel noise level;
10      (5)  School facilities; or
11      (6)  Soil erosion.
12      The council of any county shall prescribe such rules and
13 regulations and administrative procedures and provide such
14 personnel as it may deem necessary for the enforcement of this
15 section and any ordinance enacted in accordance therewith.  The
16 ordinances may be enforced by appropriate fines and penalties,
17 civil or criminal, or by court order at the suit of the county or
18 the owner or owners of real estate directly affected by the
19 ordinances.
20      Any civil fine or penalty provided by ordinance under this
21 section may be imposed by the district court, or by the zoning
22 agency after an opportunity for a hearing, pursuant to chapter
23 91.  Such a proceeding shall not be a prerequisite for any
24 injunctive relief ordered by the circuit court.

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                                     H.B. NO.           

 1      Nothing in this section shall invalidate any zoning
 2 ordinances or regulation adopted by any county or other agency of
 3 government pursuant to the statutes in effect prior to July 1,
 4 1957.
 5      The powers granted herein shall be liberally construed in
 6 favor of the county exercising them, and in such a manner as to
 7 promote the orderly development of each county or city and county
 8 in accord with a long range, comprehensive, general plan, and to
 9 insure the greatest benefit for the State as a whole.  This
10 section shall not be construed to limit or repeal any powers now
11 possessed by any county to achieve the ends through zoning and
12 building regulations, except insofar as forest and water reserve
13 zones are concerned and as provided in subsections (a), (c) and
14 (d).
15      Neither this section nor any ordinance enacted under this
16 section shall prohibit the continuance of the lawful use of any
17 building or premises for any trade, industry, residential,
18 agricultural, or other purpose for which the building or premises
19 is used at the time this section or the ordinance takes effect;
20 provided that a zoning ordinance may provide for elimination of
21 nonconforming uses as the uses are discontinued or for the
22 amortization or phasing out of nonconforming uses or signs over a
23 reasonable period of time in commercial, industrial, resort, and

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 1 apartment zoned areas only.  In no event shall such amortization
 2 or phasing out of nonconforming uses apply to any existing
 3 building or premises used for residential (single family or
 4 duplex) or agricultural uses.  Nothing in this section shall
 5 affect or impair the powers and duties of the director of
 6 transportation as set forth in chapter 262."
 7      SECTION 3.  Section 205-4, Hawaii Revised Statutes, is
 8 amended by amending subsection (g) to read as follow:
 9      "(g)  Within a period of not more than three hundred sixty-
10 five days after the proper filing of a petition, unless otherwise
11 ordered by a court, or unless a time extension, which shall not
12 exceed ninety days, is established by a two-thirds vote of the
13 members of the commission, the commission, by filing finding of
14 fact and conclusions of law, shall act to approve the petition,
15 deny the petition, or to modify the petition by imposing
16 conditions necessary to uphold the intent and spirit of this
17 chapter or the policies and criteria established pursuant to
18 section 205-17 or to assure substantial compliance with
19 representations made by the petitioner in seeking a boundary
20 change.  The commission may provide by condition that absent
21 substantial commencement of use of the land in accordance with
22 such representations, the commission shall issue and serve upon
23 the party bound by the condition an order to show cause why the

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 1 property should not revert to its former land use classification
 2 or be changed to a more appropriate classification.  Such
 3 conditions, if any, shall run with the land and be recorded in
 4 the bureau of conveyance.  Notwithstanding anything in this
 5 subsection and section 205-17 to the contrary, where the intended
 6 use of the land requires the approval of the commission and an
 7 appropriate county land use decision-making authority of the
 8 county, the commission shall not impose any condition relating
 9 to:
10      (1)  Child care;
11      (2)  Drainage improvements;
12      (3)  Ground water monitoring;
13      (4)  Park and ride requirements;
14      (5)  Park dedication;
15      (6)  Police and fire facilities;
16      (7)  Building setback lines;
17      (8)  Construction methods and materials relating to sound
18           attenuation; and
19      (9)  Urban design planning."
20      SECTION 4.  Section 205-17, Hawaii Revised Statutes, is
21 amended to read as follows: 

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 1      "205-17  Land use commission decisionmaking criteria.  In
 2 its review of any petition for reclassification of district
 3 boundaries pursuant to this chapter, the commission shall,
 4 subject to the limitation on the imposition of conditions in
 5 subsection 205-4(g), specifically consider the following:
 6      (1)  The extent to which the proposed reclassification
 7           conforms to the applicable goals, objectives, and
 8           policies of the Hawaii state plan and relates to the
 9           applicable priority guidelines of the Hawaii state plan
10           and the adopted functional plans;
11      (2)  The extent to which the proposed reclassification
12           conforms to the applicable district standards; and
13      (3)  The impact of the proposed reclassification on the
14           following areas of state concern:
15           (A)  Preservation or maintenance of important natural
16                systems or habitats;
17           (B)  Maintenance of valued cultural, historical, or
18                natural resources;
19           (C)  Maintenance of other natural resources relevant to
20                Hawaii's economy, including, but not limited to,
21                agricultural resources;
22           (D)  Commitment of state funds and resources;

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 1           (E)  Provision for employment opportunities and
 2                economic development; and
 3           (F)  Provision for housing opportunities for all income
 4                groups, particularly the low, low-moderate, and
 5                gap groups; and
 6      (4)  The representations and commitments made by the
 7           petitioner in securing a boundary change."
 8      SECTION 5.  This Act does not affect rights and duties that
 9 matured, penalties that were incurred, and proceedings that were
10 begun, before its effective date.
11      SECTION 6.  Statutory material to be repealed is bracketed.
12 New statutory material is underscored.
13      SECTION 7.  This Act shall take effect upon its approval. 
15                       INTRODUCED BY:  ___________________________