Bill Text: HI SB2355 | 2016 | Regular Session | Amended
Bill Title: Land Use Commission; Boundary Amendments; Special Permit; Conditions; Enforcement; Fine; Authority
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2016-03-10 - Referred to WAL, JUD, FIN, referral sheet 26 [SB2355 Detail]
Download: Hawaii-2016-SB2355-Amended.html
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THE SENATE |
S.B. NO. |
2355 |
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TWENTY-EIGHTH LEGISLATURE, 2016 |
S.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THE LAND USE COMMISSION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 205-4, Hawaii Revised Statutes, is amended to read as follows:
"§205-4 Amendments to district boundaries involving land areas greater than fifteen acres. (a) Any department or agency of the State, any department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified, may petition the land use commission for a change in the boundary of a district. This section applies to all petitions for changes in district boundaries of lands within conservation districts, lands designated or sought to be designated as important agricultural lands, and lands greater than fifteen acres in the agricultural, rural, and urban districts, except as provided in section 201H‑38. The land use commission shall adopt rules pursuant to chapter 91 to implement section 201H-38.
(b) Upon proper filing of a petition pursuant to subsection (a) the commission shall, within not less than sixty and not more than one hundred and eighty days, conduct a hearing on the appropriate island in accordance with the provisions of sections 91-9, 91-10, 91-11, 91-12, and 91-13, as applicable.
(c) Any other provision of law to the contrary notwithstanding, notice of the hearing together with a copy of the petition shall be served on the county planning commission and the county planning department of the county in which the land is located and all persons with a property interest in the land as recorded in the county's real property tax records. In addition, notice of the hearing shall be mailed to all persons who have made a timely written request for advance notice of boundary amendment proceedings, and public notice shall be given at least once in the county in which the land sought to be redistricted is situated as well as once statewide at least thirty days in advance of the hearing. The notice shall comply with section 91-9, shall indicate the time and place that maps showing the proposed district boundary may be inspected, and further shall inform all interested persons of their rights under subsection (e).
(d) Any other provisions of law to the contrary notwithstanding, prior to hearing of a petition the commission and its staff may view and inspect any land which is the subject of the petition.
(e) Any other provisions of law to the contrary notwithstanding, agencies and persons may intervene in the proceedings in accordance with this subsection.
(1) The petitioner, the office of planning, and the county planning department shall in every case appear as parties and make recommendations relative to the proposed boundary change.
(2) All departments and agencies of the State and of the county in which the land is situated shall be admitted as parties upon timely application for intervention.
(3) All persons who have some property interest in the land, who lawfully reside on the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the proposed change that their interest in the proceeding is clearly distinguishable from that of the general public shall be admitted as parties upon timely application for intervention.
(4) All other persons may apply to the commission for leave to intervene as parties. Leave to intervene shall be freely granted, provided that the commission or its hearing officer if one is appointed may deny an application to intervene when in the commission's or hearing officer's sound discretion it appears that: (A) the position of the applicant for intervention concerning the proposed change is substantially the same as the position of a party already admitted to the proceeding; and (B) the admission of additional parties will render the proceedings inefficient and unmanageable. A person whose application to intervene is denied may appeal such denial to the circuit court pursuant to section 91-14.
(5) The commission shall pursuant to chapter 91 adopt rules governing the intervention of agencies and persons under this subsection. Such rules shall without limitation establish: (A) the information to be set forth in any application for intervention; (B) time limits within which such applications shall be filed; and (C) reasonable filing fees to accompany such applications.
(f) Together with other witnesses that the commission may desire to hear at the hearing, it shall allow a representative of a citizen or a community group to testify who indicates a desire to express the view of such citizen or community group concerning the proposed boundary change.
(g) Within a period of not more than three hundred sixty-five days after the proper filing of a petition, unless otherwise ordered by a court, or unless a time extension, which shall not exceed ninety days, is established by a two-thirds vote of the members of the commission, the commission, by filing findings of fact and conclusions of law, shall act to approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of this chapter or the policies and criteria established pursuant to section 205-17 or to assure substantial compliance with representations made by the petitioner in seeking a boundary change. The commission may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. Such conditions, if any, shall run with the land and be recorded in the bureau of conveyances. For the purposes of this subsection, "substantial commencement" means the completion of all public improvements and infrastructure required by conditions imposed pursuant to this chapter, both within and outside the project area, and completed construction of twenty per cent of the physical private improvements such that they are usable or habitable.
(h) No amendment of a land use district boundary shall be approved unless the commission finds upon the clear preponderance of the evidence that the proposed boundary is reasonable, not violative of section 205-2 and part III of this chapter, and consistent with the policies and criteria established pursuant to sections 205-16 and 205-17. Six affirmative votes of the commission shall be necessary for any boundary amendment under this section.
(i) Notwithstanding any other provision of law to the contrary, the commission by motion of the commission or any interested party may vacate, void, modify, or amend any boundary amendment or any condition of direct state concern in any petition for a boundary amendment approved under this section. The conditions of direct state concern shall include but not be limited to:
(1) Conditions that relate to or require the installation of state infrastructure, including but not limited to public schools, state highways, or state facilities; and
(2) Conditions that promote or protect specific state policies, including but not limited to the preservation of state agricultural lands, increasing state agricultural production, protecting or enhancing the state marine and terrestrial environment, protecting traditional and cultural practices, and protecting archaeological features and burial grounds, and conditions relating to the public trust doctrine.
All parties to a proceeding shall be given notice that the commission has imposed such conditions of direct state concern on the petition pursuant to this subsection and that the commission may impose a fine of not more than $50,000 per day of failure to substantially meet the conditions of direct state concern.
In vacating, voiding, modifying, or amending any boundary amendment or condition of direct state concern pursuant to this subsection, the commission shall not be obligated to repeat the boundary amendment procedures described in subsections (a) to (h).
(j) The commission is authorized to impose a fine of not more than $50,000 per day of failure to substantially meet the conditions of direct state concern as described in subsection (i).
[(i)] (k) Parties to proceedings
to amend land use district boundaries may obtain judicial review thereof in the
manner set forth in section 91-14, provided that the court may also reverse or
modify a finding of the commission if such finding appears to be contrary to
the clear preponderance of the evidence.
[(j)] (l) At the hearing, all
parties may enter into appropriate stipulations as to findings of fact,
conclusions of law, and conditions of reclassification concerning the proposed
boundary change. The commission may but shall not be required to approve such
stipulations based on the evidence adduced."
SECTION 2. Section 205-6, Hawaii Revised Statutes, is amended to read as follows:
"§205-6 Special permit. (a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. Each county may establish the appropriate fee for processing the special permit petition. Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment.
(b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur. The county planning commission shall notify the land use commission and such persons and agencies that may have an interest in the subject matter of the time and place of the hearing.
(c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission.
(d) Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant.
(e) A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered.
Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.
(f) Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205‑4.5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U.
(g) Notwithstanding any other provision of law to the contrary, the commission by motion of the commission or any interested party may vacate, void, modify, or amend any special permit approved or any condition of direct state concern imposed, under this section. The conditions of direct state concern shall include but not be limited to:
(1) Conditions that relate to or require the installation of state infrastructure, including but not limited to public schools, state highways, or state facilities; and
(2) Conditions that promote or protect specific state policies, including but not limited to the preservation of state agricultural lands, increasing state agricultural production, protecting or enhancing the state marine and terrestrial environment, protecting traditional and cultural practices, and protecting archaeological features and burial grounds, and conditions relating to the public trust doctrine.
All parties to a proceeding shall be given notice that the commission has imposed such conditions of direct state concern on the petition pursuant to this subsection and that the commission may impose a fine of not more than $50,000 per day of failure to substantially meet the conditions of direct state concern.
In vacating, voiding, modifying, or amending any special permit or condition or direct state concern pursuant to this subsection, no action by the county planning commission shall be required.
(h) The commission is authorized to impose a fine of not more than $50,000 per day of failure to substantially meet the conditions of direct state concern as described in subsection (g)."
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect on January 7, 2059.
Report Title:
Land Use Commission; Boundary Amendments; Special Permit; Conditions; Enforcement; Fine; Authority
Description:
Authorizes the land use commission to amend, modify, or vacate boundary amendment approvals, special permit approvals, and conditions of direct state concern granted pursuant to chapter 205, Hawaii Revised Statutes, by motion of the commission or of any interested party. Allows the land use commission to fine parties who fail to comply with conditions of direct state concern after they have been notified of violations of the conditions. Adds a definition for "substantial commencement" in section 205-4(g), HRS. Effective January 7, 2059. (SD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
