Bill Text: HI HB362 | 2010 | Regular Session | Introduced

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Bill Title: Land Use Commission; County Plans

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [HB362 Detail]

Download: Hawaii-2010-HB362-Introduced.html

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Report Title:

Land Use Commission; County Plans

 

Description:

Establishes a new quasi-legislative process that simplifies the State Land Use Commission's procedures for county government petitions for boundary amendments that are based on adopted county comprehensive plans prepared pursuant to state criteria.  Establishes county comprehensive plans.

HOUSE OF REPRESENTATIVES	H.B. NO.	362
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO PLANNING.

 

 

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

 

     SECTION 1.  The purpose of this Act is to facilitate the development of workforce housing by correcting the inefficiencies and application in the land classification process.  This Act clarifies the state standards for county land use plans to ensure that issues of statewide concern are incorporated in county plans and strengthens and coordinates state and county land use planning and county and state infrastructure improvements for planned growth, quality of life, and environmental quality.

     This Act establishes a new quasi-legislative process that improves the state land use commission's procedures for county government petitions for boundary amendments that are based on adopted county comprehensive plans prepared pursuant to state criteria.  District boundary amendments conducted under this process would be conducted in a holistic, regional manner conducive to best practices planning.

     SECTION 2.  Chapter 205, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§205-A  State- and county-initiated district boundary amendments.  (a)  The State through the office of planning or any county planning department may apply to the land use commission for a change in the land use district boundary of a land use district to conform to and implement the land use element of a county comprehensive plan; provided that the plan has been approved by the legislative body in accordance with section 226-D.  This section applies only to applications submitted by the State or any county planning agency for changes in district boundaries of lands contained within an approved county comprehensive plan.  All other petitions for district boundary amendments shall be subject to sections 205-3.5 and 205-4 as applicable.

     (b)  The proposed district boundary amendments shall conform to the land use element of the county comprehensive plan.  The application must be regional in geographic coverage and involve multiple parcels.  The application may include all or a portion of the land use changes identified in the county comprehensive plan.  The application may include only those lands included in a particular phase of urban or rural expansion areas identified in the county plan.

     (c)  The application shall identify the land areas for which land use district boundary amendments are being sought and a brief rationale for the proposed land use district boundary amendment.

     (d)  The land use commission shall conduct at least one public hearing on the island or islands in which the lands are situated within sixty days of acceptance of the State or county application.  The commission shall provide timely notice in a media of general circulation statewide which is printed or communicated and issued at least twice weekly in the county affected by the proposed action.  The notice shall include:

     (1)  A statement of the topic of the public hearing;

     (2)  A statement that a copy of the application will be mailed to any interested person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where and how the requests may be made;

     (3)  A statement of when, where, and during what times the application may be reviewed in person; and

     (4)  The date, time, and place where the public hearing will be held and where interested persons may be heard on the proposed application.

     The notice shall be mailed to all persons who have made a timely written request of the land use commission for advance notice of its public hearings.  The public hearing shall be conducted in accordance with the provisions of chapter 92.

     (e)  In the event the State initiates an application for a boundary amendment under this section, the State shall provide notice to the affected county at the earliest opportunity, and provide copies of the application to the county planning department no later than the date of filing the first application with the land use commission.  The county planning department shall provide written comments on the county's position to the land use commission within forty-five days of acceptance of the state application.  The planning department shall include in its report a description of general agreements made between the State and the county over implementation of the comprehensive plan, any disagreements between the State and the county that remain unresolved, potential measures to resolve the disagreement, and recommendations for proposed boundary amendments for lands affected by any outstanding disagreement between the State and the county.  The office of planning and the affected county planning department shall be parties in land use commission hearings conducted pursuant to this section.

     (f)  In the event a county initiates an application for a boundary amendment under this section, the county shall provide notice to the state office of planning at the earliest opportunity, and provide copies of the application to the office of planning no later than the filing date of the first application with the land use commission.  The office of planning shall provide written comments on the State's position to the land use commission within forty-five days of acceptance of the county application.  The office of planning shall include in its report a description of general agreements made between the State and the county over implementation of the comprehensive plan, any disagreements between the State and the county that remain unresolved, potential measures to resolve the disagreement, and recommendations for proposed boundary amendments for lands affected by any outstanding disagreement between the State and the county.  The office of planning and county planning department shall be parties in land use commission hearings conducted pursuant to this section.

     (g)  The land use commission shall act within one hundred eighty days of acceptance of a complete filing of an application to approve, approve the application in part, or deny the application.  Ex parte communications with the commissioners shall be prohibited.  Any decision under this section shall require the affirmative vote of a majority of the members to which the commission is entitled.  The commission shall not impose any conditions on any land or any owner of property reclassified to a different state land classification under this application process.  The proceedings of the land use commission under this section shall be conducted in accordance with the provisions of chapter 92.

     (h)  The land use commission shall base its decision on conformance to the county comprehensive plan, consistency with land use district standards under chapter 205, the land use decision-making criteria of section 205-17, and the degree of consensus reached between state and county agencies.

     (i)  The land use commission shall provide a written report to the state office of planning and affected county planning department if the application or a portion thereof is not approved.  The report shall identify the reasons for the land use commission's decision.

     (j)  The land use commission shall provide notice to state agencies and the county planning department of the changes to land use district boundaries.  The land use commission shall be the sole authority responsible for boundary interpretations.

     (k)  A change in land use district classification of a parcel or parcels resulting from a land use commission decision pursuant to this section may be appealed to the circuit court of the circuit in which the land in question is found.  The district boundaries and classification of parcels not subject to an appeal shall remain in full force and effect.  The appeal shall be filed within thirty days of the date of the commission's decision.  The appeal shall be in accord with chapter 91 and the Hawaii rules of civil procedure.

     (l)  The zoning of the affected lands shall remain in full force and effect until such time as the lands are rezoned by the county.

     (m)  All other individual project petitions not incorporated in a county-initiated application for boundary amendment under this section shall be subject to land use commission procedures under sections 205-3.5 and 205-4.

     (n)  Notwithstanding any other law to the contrary, the boundary amendment process conducted pursuant to this section shall be exempt from chapter 343, except for boundary amendments that reclassify land from the conservation district; provided than any application for a proposed use on lands reclassified pursuant to this section that require subsequent ministerial or discretionary approval by a county or a state body shall be subject to chapter 343 in those subsequent processes where the proposed uses require conformance to chapter 343."

     SECTION 3.  Chapter 226, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:

     "§226-A  County comprehensive plan.  (a)  Each county shall prepare, adopt, and comprehensively review at least every ten years, and revise as necessary, an internally consistent, long-range comprehensive plan or set of plans, hereinafter called the "comprehensive plan," containing the elements in section 226-C.  The comprehensive plan shall establish a vision for the long-range social, economic, and physical growth of the county or portion thereof, and establish policies to guide the development, adoption, and administration of land development regulations and related ordinances, the scheduling and execution of capital projects including workforce housing projects, and other land development and community support functions of the county to implement the comprehensive plan.

     (b)  The county planning department shall be responsible for the preparation, administration, and review of the county comprehensive plan and amendments to the comprehensive plan.

     §226-B  County comprehensive plan; purpose.  The purpose of the comprehensive plan is to direct the coordinated, efficient, and orderly development of the county or portions thereof that will, based on an analysis of present and future needs, best promote the public health, safety, morals, and general welfare.  The comprehensive plan shall:

     (1)  Provide a unified physical design for the county;

     (2)  Encourage a pattern of compact development to be guided into urban or rural centers;

     (3)  Identify the need for transportation and community facilities and services, and promote the timely provision of those facilities and services in order to support existing and planned development;

     (4)  Accommodate growth in areas where infrastructure capacity is available and direct growth to areas where infrastructure capacity is available or committed to be available in the future;

     (5)  Support mixed use development that permits the co-location of residential, office, commercial, and ancillary uses;

     (6)  Promote a range of housing options and encourage the maximum possible accommodation of quality affordable or workforce housing;

     (7)  Promote the development of new employment opportunities in existing communities with transportation services or areas planned for growth;

     (8)  Promote agricultural activities and protect important agricultural land from encroachment from urban or non­farm uses;

     (9)  Protect historic, archaeological, cultural, and conservation resources significant to the community and the State;

    (10)  Protect life and property from the effects of natural hazards, including but not limited to flooding, winds, wildfire, unstable lands, volcanic hazards, and tsunami inundation; and

    (11)  Promote design principles that enhance the character and attractiveness of communities and their environs and conserve resource use.

     §226-C  County comprehensive plan elements.  (a)  The county comprehensive plan shall include elements that specify goals, objectives, policies, development standards, and implementation strategies for each subject element, either as parts within the comprehensive plan or separate documents that are prepared and adopted as the comprehensive plan.  The required elements shall include:

     (1)  A land use element that provides a general pattern for the location, distribution, and characteristics of current and future land uses, including urban centers and planned urban centers, rural centers and areas, and agricultural lands;

     (2)  A transportation element;

     (3)  A community facilities and infrastructure element;

     (4)  An affordable housing element;

     (5)  A natural hazards mitigation element;

     (6)  An implementation program element that identifies specific actions required to implement the comprehensive plan; and

     (7)  Conceptual land use maps showing:

         (A)  Existing and future land use patterns and planned development for the comprehensive plan area, in terms of the location, character, and intensity of existing and planned land uses and growth boundaries;

         (B)  The timing and sequencing of planned land uses and development in areas where growth is to occur; and

         (C)  The general location of sites and corridors for major public infrastructure systems and facilities, and the sequencing of improvement programs to provide the level of infrastructure and services planned for designated areas.

     (b)  A comprehensive plan may include additional elements relating to the physical development of the county, including economic development, critical and sensitive areas, agricultural lands, or rural areas.

     (c)  In order to provide consistency within the comprehensive plan all required and optional elements included in a comprehensive plan shall be based on the same economic, demographic, and related assumptions, data, and projections developed by or for the county.

§226-D  County comprehensive plan; formulation, adoption, and review.  (a)  The comprehensive plan may be organized as a single plan and land use policy map for the entire land area within the jurisdiction of the county, or as a set of plans and land use policy maps for regions consisting of portions of the land area within the county jurisdiction; provided that if the plan is comprised of a set of plans, the cumulative effects of planned regional growth patterns and the effects of these growth patterns on other regions within the island or county shall be identified within each plan.

     (b)  The county plans shall specify a planning horizon; provided that the planning horizon may be no more than twenty years and the same planning horizon shall be used for all underlying studies, analyses, and elements of the plan.  The counties, at its discretion, may develop plans for a longer period of time.

     (c)  The comprehensive plan and its elements shall be coordinated with state programs and projects within the affected area and shall take into account state interests and objectives identified for the plan area or plan elements.  Each county shall provide procedures for the solicitation of issues and concerns of state agencies and consultation with state agencies in the plan preparation and adoption process.

     (d)  The county council may adopt the comprehensive plan as a whole by a single ordinance or may, by successive ordinances, adopt successive elements of the comprehensive plan, and any other amendment thereto.

     (e)  Each county shall establish procedures for periodic review as well as the comprehensive review and revision of the comprehensive plan; provided that the comprehensive review shall be conducted at least once every ten years.  Any amendment to the comprehensive plan or any part thereof resulting from the review and revision processes shall be subject to the provisions of this section and sections 226-A, 226-B, and 226-C.

     (f)  County development rules shall be consistent with the objectives and policies of the comprehensive plan.  County land use and development approvals shall be consistent with land use designations and sequencing of development in the plan."

     SECTION 4.  Section 46-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  This section and any ordinance, rule, or regulation adopted in accordance with this section shall apply to lands not contained within the [forest reserve boundaries as established on January 31, 1957, or as subsequently amended.] conservation district.

     Zoning in all counties shall be [accomplished within the framework of] consistent with and shall implement a long-range[,] comprehensive [general] plan as defined in section 226-2 prepared or being prepared to guide the overall future development of the county.  Zoning shall be one of the tools available to the county to put the [general] comprehensive plan into effect in an orderly manner.  Zoning [in the counties of Hawaii, Maui, and Kauai] means the establishment of districts of such number, shape, and area, and the adoption of regulations for each district to carry out the purposes of chapters 205, 205A, and 226 and this section.  In establishing or regulating the districts, full consideration shall be given to all available data as to soil classification and physical use capabilities of the land to allow and encourage the most beneficial use of the land consonant with good zoning practices.  The zoning power granted herein shall be exercised by ordinance [which] that may relate to:

     (1)  The areas within which agriculture, forestry, industry, trade, and business may be conducted;

     (2)  The areas in which residential uses may be regulated or prohibited;

     (3)  The areas bordering natural watercourses, channels, and streams, in which trades or industries, filling or dumping, erection of structures, and the location of buildings may be prohibited or restricted;

     (4)  The areas in which particular uses may be subjected to special restrictions;

     (5)  The location of buildings and structures designed for specific uses and designation of uses for which buildings and structures may not be used or altered;

     (6)  The location, height, bulk, number of stories, and size of buildings and other structures;

     (7)  The location of roads, schools, and recreation areas;

     (8)  Building setback lines and future street lines;

     (9)  The density and distribution of population;

    (10)  The percentage of a lot that may be occupied, size of yards, courts, and other open spaces;

    (11)  Minimum and maximum lot sizes; and

    (12)  Other regulations the boards or city council find necessary and proper to permit and encourage the orderly development of land resources within their jurisdictions.

     The council of any county shall prescribe rules, regulations, and administrative procedures and provide personnel it finds necessary to enforce this section and any ordinance enacted in accordance with this section.  The ordinances may be enforced by appropriate fines and penalties, civil or criminal, or by court order at the suit of the county or the owner or owners of real estate directly affected by the ordinances.

     Any civil fine or penalty provided by ordinance under this section may be imposed by the district court, or by the zoning agency after an opportunity for a hearing pursuant to chapter 91.  The proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.

     Nothing in this section shall invalidate any zoning ordinance or regulation adopted by any county or other agency of government pursuant to the statutes in effect prior to July 1, 1957.

     The powers granted herein shall be liberally construed in favor of the county exercising them, and in [such] a manner as to promote the orderly development of each county or city and county in accordance with a long-range, comprehensive [general] plan to ensure the greatest benefit for the State as a whole.  This section shall not be construed to limit or repeal any powers of any county to achieve these ends through zoning and building regulations, except insofar as [forest and water reserve zones are] the conservation district is concerned and as provided in subsections (c) and (d).

     Neither this section nor any ordinance enacted pursuant to this section shall prohibit the continued lawful use of any building or premises for any trade, industrial, residential, agricultural, or other purpose for which the building or premises is used at the time this section or the ordinance takes effect; provided that a zoning ordinance may provide for elimination of nonconforming uses as the uses are discontinued, or for the amortization or phasing out of nonconforming uses or signs over a reasonable period of time in commercial, industrial, resort, and apartment zoned areas only.  In no event shall [such] any amortization or phasing out of nonconforming uses apply to any existing building or premises used for residential (single-family or duplex) or agricultural uses.  Nothing in this section shall affect or impair the powers and duties of the director of transportation as set forth in chapter 262."

     SECTION 5.  Section 226-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

     ""County comprehensive plan" means the county general plan or the county general plan and the set of development or community plans for regions within a county that when taken as a whole implement the goals, objectives, and policies of the county general plan, as further defined by county charter or ordinance and adopted by the legislative body of each county."

     SECTION 6.  Section 226-52, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The statewide planning system shall consist of the following policies, plans, and programs:

     (1)  The overall theme, goals, objectives, and policies established in this chapter that shall provide the broad guidelines for the State;

     (2)  The priority guidelines established in this chapter that shall provide guidelines for decisionmaking by the State and the counties for the immediate future and set priorities for the allocation of resources.  The formulation and revision of state functional plans shall be in conformance with the priority guidelines;

     (3)  State functional plans that shall be prepared to address, but not be limited to[,] the areas of agriculture, conservation lands, education, energy, higher education, health, historic preservation, housing, recreation, tourism, and transportation.  The preparing agency for each state functional plan shall also consider applicable federal laws, policies, or programs that impact upon the functional plan area.  State functional plans shall define, implement, and be in conformance with the overall theme, goals, objectives, policies, and priority guidelines contained within this chapter.  County general plans and development plans shall be taken into consideration in the formulation and revision of state functional plans;

     (4)  County [general] comprehensive plans that have been formulated and adopted by the county in accordance with the standards for plan content and process contained in section 226-C.  County comprehensive plans shall indicate desired population and physical development patterns for each county and regions within each county.  In addition, county [general] comprehensive plans [or development plans] shall address the unique problems and needs of each county and regions within each county.  County [general] comprehensive plans [or development plans] shall further define the overall theme, goals, objectives, policies, and priority guidelines contained within this chapter.  State functional plans and state programs shall be taken into consideration in amending the county [general] comprehensive plans; and

     (5)  State programs that shall include but not be limited to programs involving coordination and review; research and support; design, construction, and maintenance; services; and regulatory powers.  State programs that exercise coordination and review functions shall include but not be limited to the state clearinghouse process, the capital improvements program, and the coastal zone management program.  State programs that exercise regulatory powers in resource allocation shall include but not be limited to the land use and management programs administered by the land use commission and the board of land and natural resources.  State programs shall further define, implement, and be in conformance with the overall theme, goals, objectives, and policies, and shall utilize as guidelines the priority guidelines contained within this chapter, and the state functional plans approved pursuant to this chapter."

     SECTION 7.  Section 226-58, Hawaii Revised Statutes, is repealed.

     ["§226-58  County general plans.  (a)  The county general plans and development plans shall be formulated with input from the state and county agencies as well as the general public.

     County general plans or development plans shall indicate desired population and physical development patterns for each county and regions within each county.  In addition, county general plans or development plans shall address the unique problems and needs of each county and regions within each county.  The county general plans or development plans shall further define applicable provisions of this chapter; provided that any amendment to the county general plan of each county shall not be contrary to the county charter.  The formulation, amendment, and implementation of county general plans or development plans shall take into consideration statewide objectives, policies, and programs stipulated in state functional plans approved in consonance with this chapter.

     (b)  County general plans shall be formulated on the basis of sound rationale, data, analyses, and input from state and county agencies and the general public, and contain objectives and policies as required by the charter of each county.  Further, the county general plans should:

     (1)  Contain objectives to be achieved and policies to be pursued with respect to population density, land use, transportation system location, public and community facility locations, water and sewage system locations, visitor destinations, urban design, and all other matters necessary for the coordinated development of the county and regions within the county; and

     (2)  Contain implementation priorities and actions to carry out policies to include but not be limited to land use maps, programs, projects, regulatory measures, standards and principles, and interagency coordination provisions."]

     SECTION 8.  Chapters 205, 205A, 226, and 343, Hawaii Revised Statutes, are amended by substituting the words "county comprehensive plan", or like term, wherever the words "county general plan", "county development plan", or "county community plan", or like term, appears, as the context requires.

     SECTION 9.  In codifying the new sections added to chapters 205 and 226, Hawaii Revised Statutes, the revisor of statutes shall substitute appropriate section numbers for the letters used in the new sections designated in this Act.

     SECTION 10.  Statutory material to be repealed is bracketed.  New statutory material is underscored.

     SECTION 11.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________