Telecom Towers and Antennae

Requires public notice and hearing regarding the construction or
attachment of telecommunication antennae and towers/structures.

THE SENATE                              S.B. NO.           385
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



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

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 1 encourage the most beneficial use of the land consonant with good
 2 zoning practices.  The zoning power granted herein shall be
 3 exercised by ordinance which may relate to:
 4      (1)  The areas within which agriculture, forestry, industry,
 5           trade, and business may be conducted.
 6      (2)  The areas in which residential uses may be regulated or
 7           prohibited.
 8      (3)  The areas bordering natural watercourses, channels, and
 9           streams, in which trades or industries, filling or
10           dumping, erection of structures, and the location of
11           buildings may be prohibited or restricted.
12      (4)  The areas in which particular uses may be subjected to
13           special restrictions.
14      (5)  The location of buildings and structures designed for
15           specific uses and designation of uses for which
16           buildings and structures may not be used or altered.
17      (6)  The location, height, bulk, number of stories, and size
18           of buildings and other structures.
19      (7)  The location of roads, schools, and recreation areas.
20      (8)  Building setback lines and future street lines.
21      (9)  The density and distribution of population.
22     (10)  The percentage of lot which may be occupied, size of
23           yards, courts, and other open spaces.

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 1     (11)  Minimum and maximum lot sizes.
 2     (12)  Other such regulations as may be deemed by the boards
 3           or city council as necessary and proper to permit and
 4           encourage orderly development of land resources within
 5           their jurisdictions.
 6      The council of any county shall prescribe such rules and
 7 regulations and administrative procedures and provide such
 8 personnel as it may deem necessary for the enforcement of this
 9 section and any ordinance enacted in accordance therewith.  The
10 ordinances may be enforced by appropriate fines and penalties,
11 civil or criminal, or by court order at the suit of the county or
12 the owner or owners of real estate directly affected by the
13 ordinances.
14      Any civil fine or penalty provided by ordinance under this
15 section may be imposed by the district court, or by the zoning
16 agency after an opportunity for a hearing, pursuant to chapter
17 91.  Such a proceeding shall not be a prerequisite for any
18 injunctive relief ordered by the circuit court.
19      Nothing in this section shall invalidate any zoning
20 ordinances or regulation adopted by any county or other agency of
21 government pursuant to the statutes in effect prior to July 1,
22 1957.
23      The powers granted herein shall be liberally construed in
24 favor of the county exercising them, and in such a manner as to

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 1 promote the orderly development of each county or city and county
 2 in accord with a long range, comprehensive, general plan, and to
 3 insure the greatest benefit for the State as a whole.  This
 4 section shall not be construed to limit or repeal any powers now
 5 possessed by any county to achieve the ends through zoning and
 6 building regulations, except insofar as forest and water reserve
 7 zones are concerned and as provided in subsections (c) and (d).
 8      Neither this section nor any ordinance enacted under this
 9 section shall prohibit the continuance of the lawful use of any
10 building or premises for any trade, industry, residential,
11 agricultural, or other purpose for which the building or premises
12 is used at the time this section or the ordinance takes effect;
13 provided that a zoning ordinance may provide for elimination of
14 nonconforming uses as the uses are discontinued or for the
15 amortization or phasing out of nonconforming uses or signs over a
16 reasonable period of time in commercial, industrial, resort, and
17 apartment zoned areas only.  In no event shall such amortization
18 or phasing out of nonconforming uses apply to any existing
19 building or premises used for residential (single family or
20 duplex) or agricultural uses.  Nothing in this section shall
21 affect or impair the powers and duties of the director of
22 transportation as set forth in chapter 262.
23      (b)  Any final order of a zoning agency established under
24 this section may be appealed to the circuit court of the circuit

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 1 in which the land in question is found.  The appeal shall be in
 2 accord with the Hawaii rules of civil procedure.
 3      (c)  Each county may adopt reasonable standards to allow the
 4 construction of two single-family dwelling units on any lot where
 5 a residential dwelling unit is permitted.
 6      (d)  Prior to granting permission to build a structure or to
 7 attach devices to an existing structure that will be used to
 8 provide wireless telecommunication services, a zoning agency
 9 established under this section shall give no fewer than fourteen
10 days' public notice as provided by section 1-28.5(a)(1) and (2)
11 for a public hearing to be held by the zoning agency on the
12 subject matter of the notice.  The public hearing shall be held
13 on the island where the subject structure is situated and shall
14 be conducted under rules that the zoning agency may adopt.
15      "Wireless telecommunication services" include, but are not
16 limited to, cellular or wireless digital phone services, paging
17 services, and broadcast services.
18      [(d)] (e)  Neither this section nor any other law, county
19 ordinance, or rule shall prohibit group living in facilities with
20 eight or fewer residents and which are licensed by the State as
21 provided for under section 321-15.6 or in an intermediate care
22 facility/mental retardation-community (ICF/MR-C) for persons,
23 including the mentally ill, elders, the handicapped, the

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 1 developmentally disabled, or totally disabled persons, who are
 2 not related to the home operator or facility staff; provided that
 3 those group living facilities meet all applicable county
 4 requirements, not inconsistent with the intent of this subsection
 5 and including building height, setback, maximum lot coverage,
 6 parking, and floor area requirements.  For purposes of this
 7 section:
 8      "Mentally ill person" means a mentally ill person as defined
 9 under section 334-1.
10      "Elder" means an elder as defined under section 201G-1.
11      "Handicapped person" means an individual with a physical
12 handicap as defined under section 515-2.
13      "Developmentally disabled person" means a person suffering
14 from developmental disabilities as defined under section 333F-2.
15      "Totally disabled person" means a person totally disabled as
16 defined under section 235-1.
17      "Intermediate care facility/mental retardation-community
18 (ICF/MR-C)" is defined as an identifiable unit providing
19 residence and care for eight or fewer mentally retarded
20 individuals.  Its primary purpose is the provision of health,
21 social, and rehabilitation services to the mentally retarded
22 through an individually designed active treatment program for
23 each resident.  No person who is predominately confined to bed
24 shall be admitted as a resident of such a facility."

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                                     S.B. NO.           385

 1      SECTION 2.  Section 171-41, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3      "171-41  Commercial, industrial, and other business uses.
 4 (a)  Leases for commercial, industrial, and other business uses
 5 shall be made only pursuant to a development plan which provides
 6 for careful placement of complementary enterprises consistent
 7 with county zoning requirements; except that development plans
 8 for leases of parcels in industrial parks developed under section
 9 171-134(b) shall provide for careful placement of complementary
10 enterprises consistent with the final plans and specifications
11 under section 171-134(b).  Where a disposition for any such use
12 is made without advance parcelization, the board shall make
13 adequate provisions for the compatibility of the proposed
14 enterprises with any existing surrounding private developments.
15 The board, wherever possible, shall control the landscaping and
16 architecture of the enterprises and protect the public against
17 the creation of nuisances of smoke, soot, irritating odors and
18 gases, and harmful wastes.
19      (b)  The board may sell public land in fee simple for
20 commercial, industrial, or other business uses with the prior
21 approval of the governor and subject to disapproval by two-thirds
22 vote of either the senate or the house of representatives or by
23 majority vote of both in any regular or special session next

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                                     S.B. NO.           385

 1 following the date of disposition; provided the above
 2 restrictions shall not apply to any sale of land initially
 3 acquired for highway purposes with participating federal funds
 4 and which land is later found to be in excess of the need for
 5 highway purposes.
 6      (c)  Prior to leasing or selling public land pursuant to
 7 this section to a lessor or purchaser who will utilize the land
 8 to build a structure or to attach devices to a structure existing
 9 on the land that will be used to provide wireless
10 telecommunication services, the board shall give no fewer than
11 fourteen days' public notice as provided by section 1-28.5(a)(1)
12 and (2) for a public hearing to be held by the board on the
13 subject matter of the notice.  The public hearing shall be held
14 on the island where the subject structure is situated and shall
15 be conducted under rules that the board may adopt.
16      "Wireless telecommunication services" include, but are not
17 limited to, cellular or wireless digital phone services, paging
18 services, and broadcast services."
19      SECTION 4.  Statutory material to be repealed is bracketed.
20 New statutory material is underscored.
21      SECTION 5.  This Act shall take effect upon its approval.
23                           INTRODUCED BY:  _______________________