REPORT TITLE:
Land Use; Citizen Enforcement


DESCRIPTION:
Amends the land use commission law to allow any person acting as
a private attorney general to commence a civil action against any
person alleged to be in violation of that law, any ordinances or
rules adopted under that law, any condition of approval, or any
restriction on approval.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           90
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO CITIZEN ENFORCEMENT.



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

 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 a
 
 5 private attorney general may commence a civil action against any
 
 6 person who is alleged to be in violation of this chapter,
 
 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
 

 
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 1           (C)  Any alleged violator of the chapter, ordinance,
 
 2                rule, condition, or restriction; or
 
 3      (2)  If the appropriate agency or official has commenced and
 
 4           is diligently prosecuting a civil action to require
 
 5           compliance with the law, ordinance, rule, condition, or
 
 6           restriction, but in any such action any person may
 
 7           intervene as a matter or right.
 
 8      (d)  Fourteen days after notice has been served, the
 
 9 plaintiff, the defendant, and the State, shall meet to discuss
 
10 the circumstances that gave rise to the notice and possible
 
11 settlement of issues.
 
12      (e)  Any action under this section shall be brought only in
 
13 the judicial circuit in which the violation occurs 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's and expert witness fees) to any
 
22 prevailing or substantially prevailing party, whenever the court
 

 
 
 
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 1 determines such an award to be appropriate.
 
 2      (h)  Nothing in this section shall restrict any right which
 
 3 any person may have under any constitutional provision, statute
 
 4 or common law to seek enforcement of any violation of any land
 
 5 use or environmental law, ordinance, rule, permit, approval, or
 
 6 order.  Nothing in this section shall restrict any right which
 
 7 any person may have under common law to seek damages against
 
 8 another party whose actions have been determined to be
 
 9 frivolous."
 
10      SECTION 2.  Section 607-25, Hawaii Revised Statutes, is
 
11 amended by amending subsection (e) to read as follows:
 
12      "(e)  In any civil action in this State where a private
 
13 party sues for injunctive relief or for the levying of civil
 
14 penalties against another private party or public agency who has
 
15 been or is undertaking any development without obtaining all
 
16 permits or approvals required by law from government agencies[:],
 
17 or is in noncompliance with any of these approvals or their
 
18 authorizing chapters:
 
19      (1)  The court may award reasonable attorneys' fees and
 
20           costs of the suit to the prevailing party.
 
21      (2)  The court shall award reasonable attorneys' fees and
 
22           costs of the suit to the prevailing party if the party
 

 
 
 
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 1           bringing the civil action:
 
 2           (A)  Provides written notice, not less than forty days
 
 3                prior to the filing of the civil action, of any
 
 4                violation of a requirement for a permit or
 
 5                approval to:
 
 6                (i)  The government agency responsible for issuing
 
 7                     the permit or approval which is the subject
 
 8                     of the civil action;
 
 9               (ii)  The party undertaking the development without
 
10                     the required permit or approval; and
 
11              (iii)  Any party who has an interest in the property
 
12                     at the development site recorded at the
 
13                     bureau of conveyances.
 
14           (B)  Posts a bond in the amount of $2,500 to pay the
 
15                attorneys' fees and costs provided for under this
 
16                section if the party undertaking the development
 
17                prevails.
 
18      (3)  Notwithstanding any provision to the contrary in this
 
19           section, the court shall not award attorneys' fees and
 
20           costs to any party if the party undertaking the
 
21           development without the required permit or approval
 
22           failed to obtain the permit or approval due to reliance
 

 
 
 
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 1           in good faith upon a written statement, prepared prior
 
 2           to the suit on the development, by the government
 
 3           agency responsible for issuing the permit or approval
 
 4           which is the subject of the civil action, that the
 
 5           permit or approval was not required to commence the
 
 6           development.  The party undertaking the development
 
 7           shall provide a copy of the written statement to the
 
 8           party bringing the civil action not more than thirty
 
 9           days after receiving the written notice of any
 
10           violation of a requirement for a permit or approval.
 
11      (4)  Notwithstanding any provision to the contrary in this
 
12           section, the court shall not award attorney's fees and
 
13           costs to any party if the party undertaking the
 
14           development applies for the permit or approval which is
 
15           the subject of the civil action within thirty days
 
16           after receiving the written notice of any violation of
 
17           a requirement for a permit or approval and the party
 
18           undertaking the development shall cease all work until
 
19           the permit or approval is granted."
 
20      SECTION 3.  Statutory material to be repealed is bracketed.
 
21 New statutory material is underscored.
 
22      SECTION 4.  This Act shall take effect upon its approval.
 
23 
 
24                              INTRODUCED BY:______________________