Counties, Initiative, Zoning

Permits zoning to be accomplished in a county by initiative or
referendum as established pursuant to the county's charter.

                                            HOUSE OF REPRESENTATIVESH.
B. NO. 383                              
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that all county charters
 2 in the State permit the voters of the county to enact ordinances
 3 by initiative.  The legislature also finds that initiative and
 4 referendum have been used successfully to propose and reject land
 5 use ordinances in the counties of Hawaii, Kauai, and Honolulu.
 6 As such, each county of the State of Hawaii has vigorously
 7 defended their home rule rights.  However, the decision of the
 8 Hawaii Supreme Court in the case of Kaiser Hawaii Kai Development
 9 Company v. City and County of Honolulu, 70 Haw. 480 (1989) has
10 called into question the legality of each county's charter
11 provisions that allow initiative and referendum in land matters.  
12      The purpose of this Act is to allow the use of initiative
13 and referendum for land use decisions.
14      SECTION 2.  Section 46-4, Hawaii Revised Statutes, is
15 amended by amending subsections (a) and (b) to read as follows:
16      "(a)  This section and any ordinances or rules [and
17 regulations] adopted in accordance with it[,] shall apply to
18 those lands not contained within [the forest reserve boundaries
19 as established on January 31, 1957, or as subsequently amended.]
20 conservation land use districts. 

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                                     H.B. NO.           

 1      Zoning in all counties [shall] may be accomplished either by
 2 action of the county's legislative body or by the electorate of
 3 the county pursuant to initiative or referendum provisions of the
 4 county's charter.  In either case, zoning shall be within the
 5 framework of a long range, comprehensive general plan prepared
 6 [or being prepared] to guide the overall future development of
 7 the county.  Zoning shall be one of the tools available to the
 8 county to put the general plan into effect in an orderly manner.
 9 [Zoning in the counties of Hawaii, Maui, and Kauai means the
10 establishment of districts of such number, shape, and area, and
11 the adoption of regulations for each district as shall be deemed
12 best suited to carry out the purposes of this section.]  In
13 establishing or regulating the districts, full consideration
14 shall be given to all available data as to soil classification
15 and physical use capabilities of the land so as to allow and
16 encourage the most beneficial use of the land consonant with good
17 zoning practices.  The zoning power granted [herein] in this
18 section shall be exercised by ordinance which may relate to: 
19      (1)  The areas within which agriculture, forestry, industry,
20           trade, and business may be conducted[.]; 
21      (2)  The areas in which residential uses may be regulated or
22           prohibited[.]; 
23      (3)  The areas bordering natural watercourses, channels, and

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                                     H.B. NO.           

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

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                                     H.B. NO.           

 1 personnel [as it may deem] necessary for the enforcement of this
 2 section and any ordinance enacted in accordance therewith.  The
 3 ordinances may be enforced by appropriate fines and penalties,
 4 civil or criminal, or by court order at the suit of the county or
 5 the owner or owners of real estate directly affected by the
 6 ordinances. 
 7      Any civil fine or penalty provided by ordinance under this
 8 section may be imposed by the district court[,] or by the zoning
 9 agency after an opportunity for a hearing, pursuant to
10 chapter 91.  Such a proceeding shall not be a prerequisite for
11 any injunctive relief ordered by the circuit court. 
12      Nothing in this section shall invalidate any zoning
13 ordinances or regulation adopted by any county or other agency of
14 government pursuant to the statutes in effect prior to July 1,
15 1957. 
16      The powers granted [herein] in this section shall be
17 liberally construed in favor of the county exercising them[,] and
18 in such a manner as to promote the orderly development of each
19 county [or city and county] in accord with a long range,
20 comprehensive, general plan[,] and to [insure] ensure greatest
21 benefit for the State as a whole.  This section shall not be
22 construed to limit or repeal any powers now possessed by any
23 county to achieve the ends through zoning and building

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                                     H.B. NO.           

 1 [regulations,] ordinances or rules, except insofar as [forest and
 2 water reserve zones] conservation land use districts are
 3 concerned and as provided in subsections (c) and (d). 
 4      Neither this section nor any ordinance enacted under this
 5 section shall prohibit the continuance of the lawful use of any
 6 building or premises for any trade, industry, residential,
 7 agricultural, or other purpose for which the building or premises
 8 is used at the time this section or the ordinance takes effect;
 9 provided that a zoning ordinance may provide for elimination of
10 nonconforming uses as the uses are discontinued or for the
11 amortization or phasing out of nonconforming uses or signs over a
12 reasonable period of time in commercial, industrial, resort, and
13 apartment zoned areas only.  In no event shall [such]
14 amortization or phasing out of nonconforming uses apply to any
15 existing building or premises used for residential (single family
16 or duplex) or agricultural uses.  Nothing in this section shall
17 affect or impair the powers and duties of the director of
18 transportation as set forth in chapter 262.
19      (b)  Any [final order of a zoning agency established under
20 this section] zoning ordinance adopted, amended, or repealed by a
21 county legislative body or any zoning initiative or referendum
22 may be appealed to the circuit court of the circuit in which the
23 land in question is found.  The appeal shall be in accord with

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                                     H.B. NO.           

 1 the Hawaii rules of civil procedure."
 2      SECTION 3.  Statutory material to be repealed is bracketed.
 3 New statutory material is underscored.
 4      SECTION 4.  This Act shall take effect upon its approval.
 6                           INTRODUCED BY:  _______________________