Land Use

Allows the land use commission to impose conditions on
reclassified lands.  Allows for citizen suits for violations of
the State's land use law.  Strengthens penalties for violation of
chapter 205, HRS.

THE SENATE                              S.B. NO.           558
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Chapter 205, Hawaii Revised Statutes, is amended
 2 by adding a new section to be appropriately designated and to
 3 read as follows:
 4      "205-     Citizen enforcement.  (a)  Any person, acting as
 5 a private attorney general, may commence a civil action against
 6 any person who is alleged to be in violation of this chapter or
 7 ordinances or rules adopted pursuant thereto, any condition of
 8 approval, or any restriction on approval.
 9      (b)  The circuit court shall have jurisdiction to:
10      (1)  Enforce the requirements of the chapter, ordinance,
11           rule, condition, or restriction; and
12      (2)  Apply any appropriate civil penalties.
13      (c)  No action may be commenced:
14      (1)  Prior to sixty days after the plaintiff has given
15           notice of the violation to:
16           (A)  The commission;
17           (B)  The appropriate officer or agency charged with the
18                administration of county zoning laws; and
19           (C)  Any alleged violator of the chapter, ordinance,

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 1                rule, condition, or restriction; or
 2      (2)  If the agency charged with the administration of county
 3           zoning laws has commenced and is diligently prosecuting
 4           a civil action to require compliance with the chapter,
 5           ordinance, rule, condition, or requirement, but in any
 6           such action a person may intervene as a matter of
 7           right.
 8      (d)  Fourteen days after a notice has been served pursuant
 9 to subsection (c), the plaintiff, the defendant, and the State
10 shall meet to discuss the circumstances that gave rise to the
11 notice and the possible settlement of issues.
12      (e)  Any action under this section shall be brought only in
13 the judicial circuit in which the violation occurred or where the
14 harm is alleged to occur.
15      (f)  In any action, the appropriate officer of the agency
16 charged with the administration of county zoning laws, if not a
17 party, may intervene as a matter of right at any time in the
18 proceeding.
19      (g)  The court, in issuing any final order in any action
20 brought pursuant to this section, may award costs of litigation
21 (including reasonable attorney and expert witness fees) to any
22 prevailing or substantially prevailing party, whenever the court
23 determines an award is appropriate.

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 1      (h)  Nothing in this section shall restrict any right that
 2 any person may have under any constitutional provision, statute,
 3 or common law to seek enforcement of any violation of any land
 4 use or environmental law, ordinance, rule, permit, approval, or
 5 order.  Nothing in this section shall restrict any right which
 6 any person may have under common law to seek damages against
 7 another party whose actions have been determined by the
 8 appropriate court to be frivolous."
 9      SECTION 2.  Section 205-13, Hawaii Revised Statutes, is
10 amended to read as follows:
11      "205-13  Penalty for violation.  Any person who violates
12 any provision [under section 205-4.5, or any regulation
13 established relating thereto,] of this chapter, any rule or
14 ordinance established relating thereto, or any restriction or
15 condition relating to a boundary reclassification or special use,
16 shall be fined not more than $5,000, [and any person who violates
17 any other provision of this chapter, or any regulation
18 established relating thereto, shall be fined not more than
19 $1,000.] for each violation.
20      If any person cited for a violation under this chapter fails
21 to remove [such] the violation or comply with this chapter, any
22 rule or ordinance pursuant thereto, or any restriction on or
23 condition of approval within six months of [such] a citation for

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 1 the violation and the violation continues to exist, [such] the
 2 person shall be subject to a citation for a new and separate
 3 violation.  There shall be a fine of not more than $5,000 for any
 4 additional violation.  After written notification, violation of
 5 this chapter, any rule or ordinance adopted pursuant thereto, or
 6 any restriction on or condition of approval may incur an
 7 additional fine of up to $2,000 per day for each day in which the
 8 violation persists.
 9      Prior to the issuance of any citation for a violation, the
10 appropriate enforcement officer or agency shall notify the
11 violator and the mortgagee, if any, of [such] the violation, and
12 the violator or the mortgagee, if any, shall have not more than
13 sixty days to cure the violation before citation for a violation
14 is issued."
15      SECTION 3.  Section 205-17, Hawaii Revised Statutes, is
16 amended to read as follows:
17      "205-17  Land use commission decisionmaking criteria.  In
18 its review of any petition for reclassification of district
19 boundaries pursuant to this chapter, the commission shall
20 specifically consider the following:
21      (1)  The extent to which the proposed reclassification
22           conforms to the applicable goals, objectives, and
23           policies of the Hawaii state plan and relates to the

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 1           applicable priority guidelines of the Hawaii state plan
 2           and the adopted functional plans;
 3      (2)  The extent to which the proposed reclassification
 4           conforms to the applicable district standards; and
 5      (3)  The impact of the proposed reclassification on the
 6           following areas of state concern:
 7           (A)  Preservation or maintenance of important natural
 8                systems or habitats;
 9           (B)  Maintenance of valued cultural, historical, or
10                natural resources;
11           (C)  Maintenance of other natural resources relevant to
12                Hawaii's economy, including, but not limited to,
13                agricultural resources;
14           (D)  Commitment of state funds and resources;
15           (E)  Provision for employment opportunities and
16                economic development; and
17           (F)  Provision for housing opportunities for all income
18                groups, particularly the low, low-moderate, and
19                gap groups; and
20      (4)  The representations and commitments made by the
21           petitioner in securing a boundary change.
22 The commission may impose conditions in reclassifying lands that
23 shall be binding upon the county, the landowner, and all

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 1 subsequent landowners of the reclassified lands."
 2      SECTION 4.  This Act shall not affect the rights that have
 3 matured, penalties that were incurred, or actions that were
 4 initiated prior to the effective date of this Act.
 5      SECTION 5.  Statutory material to be repealed is bracketed.
 6 New statutory material is underscored.
 7      SECTION 6.  This Act shall take effect upon its approval.
 9                           INTRODUCED BY:  _______________________