Bill Text: HI SB1238 | 2016 | Regular Session | Introduced

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Bill Title: Land Use; Transfer to Counties

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2016-01-21 - Re-Referred to WLA/PSM/TRE, WAM. [SB1238 Detail]

Download: Hawaii-2016-SB1238-Introduced.html

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THE SENATE	S.B. NO.	1238
TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to land use.

 

 

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

 

     SECTION 1.  The legislature finds that there is an urgent need to reform the state land use planning system and redefine the roles of the State and the counties in that process.  Reform is needed to promote efficiency and avoid duplication between the State and counties; to establish clear lines of responsibility for decision-making and jurisdiction; to promote the uniform application of state policies regarding the protection of our environment and economy, and the provision of shelter and the basic necessities of life to all members of our community; to be responsive to changing social, economic, and environmental needs; and to establish an integrated and collaborative land use planning system for Hawaii.

     The legislature further finds that there is no longer the need for a state land use commission and land use classification system that existed when the system was created in the early 1960s.  County governments have matured and today have planning systems and organizations in place, which are supported by professional planning staffs that are fully capable of handling these responsibilities.  Furthermore, the counties are closer to the people and their communities and are better able to determine their needs and desires through community-based planning.  In addition, the county legislative process affords the public numerous opportunities to express its views and participate in planning and decision-making.  Land use decisions vital to the future of the counties need to be made by public officials elected by the citizens of each county.

     The legislature further finds that authority for designation of public and private lands to be held in conservation and their uses should be the function of the board of land and natural resources.  It is the intent of the legislature that the counties have responsibility for land use planning and zoning for all lands within the jurisdiction of each county except that the management of conservation land shall remain with the board of land and natural resources.

     The purpose of this Act is to integrate the land use planning system for Hawaii by repealing the state-level system of land use districting and classification and by abolishing the state land use commission.

     SECTION 2.  Chapter 46, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART    .  IMPORTANT AGRICULTURAL LANDS

     §46-A  Declaration of policy.  It is declared that the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State.  There is a compelling state interest in conserving the State's agricultural land resource base and assuring the long-term availability of agricultural lands for agricultural use to achieve the purposes of:

     (1)  Conserving and protecting agricultural lands;

     (2)  Promoting diversified agriculture;

     (3)  Increasing agricultural self-sufficiency; and

     (4)  Assuring the availability of agriculturally suitable lands,

pursuant to article XI, section 3, of the Hawaii state constitution.

     §46-B  Important agricultural lands; definition and objectives.  (a)  As used in this part, unless the context otherwise requires, "important agricultural lands" means those lands, identified pursuant to this part, that:

     (1)  Are capable of producing sustained high agricultural yields when treated and managed according to accepted farming methods and technology;

     (2)  Contribute to the State's economic base and produce agricultural commodities for export or local consumption; or

     (3)  Are needed to promote the expansion of agricultural activities and income for the future, even if currently not in production.

     (b)  The objective for the identification of important agricultural lands is to identify and plan for the maintenance of a strategic agricultural land resource base that can support a diversity of agricultural activities and opportunities that expand agricultural income and job opportunities and increase agricultural self-sufficiency for current and future generations.  To achieve this objective, the counties shall:

     (1)  Promote agricultural development and land use planning that delineates blocks of productive agricultural land and areas of agricultural activity for protection from the encroachment of nonagricultural uses; and

     (2)  Establish incentives that promote:

         (A)  Agricultural viability;

         (B)  Sustained growth of the agriculture industry; and

         (C)  The long-term agricultural use and protection of these productive agricultural lands.

     §46-C  Important agricultural lands; policies.  County agricultural policies, tax policies, land use plans, ordinances, and rules shall promote the long-term viability of agricultural use of important agricultural lands and shall be consistent with and implement the following policies:

     (1)  Promote the retention of important agricultural lands in blocks of contiguous, intact, and functional land units large enough to allow flexibility in agricultural production and management;

     (2)  Discourage the fragmentation of important agricultural lands and the conversion of these lands to nonagricultural uses;

     (3)  Direct nonagricultural uses and activities from important agricultural lands to other areas and ensure that uses on important agricultural lands are actually agricultural uses;

     (4)  Limit physical improvements on important agricultural lands to maintain affordability of these lands for agricultural purposes;

     (5)  Provide a basic level of infrastructure and services on important agricultural lands limited to the minimum necessary to support agricultural uses and activities;

     (6)  Facilitate the long-term dedication of important agricultural lands for future agricultural use through the use of incentives;

     (7)  Facilitate the access of farmers to important agricultural lands for long-term viable agricultural use; and

     (8)  Promote the maintenance of essential agricultural infrastructure systems, including irrigation systems.

     §46-D  Standards and criteria for the identification of important agricultural lands.  The standards and criteria in this section shall be used to identify important agricultural lands.  Lands identified as important agricultural lands need not meet every standard and criteria listed below.  Rather, lands meeting any of the criteria below shall be given initial consideration; provided that the designation of important agricultural lands shall be made by weighing the standards and criteria with each other to meet the constitutionally mandated purposes in article XI, section 3, of the state constitution and the objectives and policies for important agricultural lands in sections 46-B and 46-C.  The standards and criteria shall be as follows:

     (1)  Land currently used for agricultural production;

     (2)  Land with soil qualities and growing conditions that support agricultural production of food, fiber, or fuel- and energy-producing crops;

     (3)  Land identified under agricultural productivity rating systems, such as the agricultural lands of importance to the State of Hawaii (ALISH) system adopted by the board of agriculture on January 28, 1977;

     (4)  Land types associated with traditional native Hawaiian agricultural uses, such as taro cultivation, or unique agricultural crops and uses, such as coffee, vineyards, aquaculture, and energy production;

     (5)  Land with sufficient quantities of water to support viable agricultural production;

     (6)  Land whose designation as important agricultural lands is consistent with general, development, and community plans of the county;

     (7)  Land that contributes to maintaining a critical land mass important to agricultural operating productivity; and

     (8)  Land with or near support infrastructure conducive to agricultural productivity, such as transportation to markets, water, or power.

     §46-E  County zoning; agricultural zoning district.  Each county shall establish at least one agricultural zoning district for the purpose of protecting important agricultural lands.  Uses in this zoning district shall be restricted to those uses directly related to agricultural production and agricultural economic opportunities.  The minimum lot size of the restricted agricultural zoning district shall be twenty-five acres.

     §46-F  Petition by farmer or landowner.  (a)  A farmer or landowner with lands qualifying under section 46-D may file a petition for declaratory ruling with the counties at any time in the designation process.

     (b)  The petition for declaratory ruling shall be submitted in accordance with the ordinances of the respective counties and shall include:

     (1)  Tax map keys of the land to be designated along with verification and authorization from the applicable landowners;

     (2)  Proof of qualification for designation under section 46-D, respecting a regional perspective; and

     (3)  The current or planned agricultural use of the area to be designated.

     (c)  Each respective county shall review the petition and the accompanying submissions to evaluate the qualifications of the land for designation as important agricultural lands in accordance with section 46-D.  If the county, after its review and evaluation, finds that the lands qualify for designation as important agricultural lands under this part, the county shall issue a declaratory order designating the lands as important agricultural lands.

     §46-G  Incentives for important agricultural lands.  (a)  To achieve the long-term agricultural viability and use of important agricultural lands, each county shall ensure that their:

     (1)  Agricultural development, land use, water use, regulatory, tax, and land protection policies; and

     (2)  Permitting and approval procedures,

enable and promote the economic sustainability of agriculture.

     Agricultural operations occurring on important agricultural lands shall be eligible for incentives and protections provided by the counties pursuant to this section to promote the viability of agricultural enterprise on important agricultural lands and to assure the availability of important agricultural lands for long-term agricultural use.

     (b)  Incentive programs shall provide preference to important agricultural lands and agricultural businesses on important agricultural lands.  Counties shall cooperate with each other in program development to prevent duplication of and to streamline and consolidate access to programs and services for agricultural businesses located on important agricultural lands.

     (c)  Counties shall cooperate with the state agencies to establish incentive and protection programs that are designed to provide a mutually supporting framework of programs and measures that enhance agricultural viability on important agricultural lands that may include:

     (1)  Grant assistance;

     (2)  Real property tax systems that support the needs of agriculture, including property tax assessments based on agricultural use valuation;

     (3)  Reduced infrastructure requirements and facilitated building permit processes for dedicated agricultural structures;

     (4)  Tax incentives to offset operational costs, promote agricultural business viability, and promote the long-term protection of important agricultural lands;

     (5)  Agricultural business planning, marketing, and implementation grants;

     (6)  Tax incentives and programs for equity investments and financing for agricultural operations, including agricultural irrigation systems;

     (7)  Other programs and mechanisms that promote investment in agricultural businesses or agricultural land protection, such as the purchase of development rights;

     (8)  State funding mechanisms to fund business viability and land protection programs;

     (9)  Water regulations and policies that provide farmers of important agricultural lands access to adequate and cost-effective sources of water;

    (10)  Other measures that would ensure that state capital investments, projects, programs, and rules are consistent with this part; and

    (11)  Agricultural education and training for new farmers; upgrading the skills of existing farmers and other agriculture-related employees through the use of mentoring, business incubators, and public or private scholarships.

     (d)  County agencies shall review the protection and incentive measures enacted for important agricultural lands and agricultural viability pursuant to this part at least every five years to:

     (1)  Determine their effectiveness in sustaining agriculture in Hawaii, assuring agricultural diversification, and increasing agricultural self-sufficiency;

     (2)  Determine their effectiveness in enhancing investment in and agricultural activities on important agricultural lands; and

     (3)  Modify measures and programs as needed.

     (e)  This section shall apply only to those lands designated as important agricultural lands pursuant to sections 46-F and 46-J.

     §46-H  Identification of important agricultural lands; county process.  (a)  Each county shall identify and map potential important agricultural lands within its jurisdiction based on the standards and criteria in section 46-D and the intent of this part, except lands that have been designated, through the zoning or county planning process for urban use by a county.

     (b)  Each county shall develop maps of potential lands to be considered for designation as important agricultural lands in consultation and cooperation with landowners, the department of agriculture, agricultural interest groups, including representatives from the Hawaii Farm Bureau Federation and other agricultural organizations, the United States Department of Agriculture – Natural Resources Conservation Service, the office of planning, and other groups as necessary.

     (c)  Each county, through its planning department, shall develop an inclusive process for public involvement in the identification of potential lands and the development of maps of lands to be recommended as important agricultural lands, including a series of public meetings throughout the identification and mapping process.  The planning departments may also establish one or more citizen advisory committees on important agricultural lands to provide further public input, utilize an existing process (such as general plan, development plan, community plan), or employ appropriate existing and adopted general plan, development plan, or community plan maps.

     (d)  The counties shall take notice of those lands that have already been designated as important agricultural lands.

     Upon identification of potential lands to be recommended to the county council as potential important agricultural lands, the counties shall take reasonable action to notify each owner of those lands by mail or posted notice on the affected lands to inform them of the potential designation of their lands.

     In formulating its final recommendations to the respective county councils, the planning departments shall report on the manner in which the important agricultural lands mapping relates to, supports, and is consistent with the:

     (1)  Standards and criteria set forth in section 46-D;

     (2)  County's adopted land use plans, as applied to both the identification and exclusion of important agricultural lands from such designation;

     (3)  Comments received from government agencies and others identified in subsection (b);

     (4)  Viability of existing agribusinesses; and

     (5)  Representations or position statements of the owners whose lands are subject to the potential designation.

     (e)  The important agricultural lands maps shall be submitted to the county council for decision-making.  The county council shall adopt the maps, with or without changes, by ordinance.

     (f)  Designations made pursuant to this section take effect three years after incentives and protections for important agricultural lands and agricultural viability are enacted.

     §46-I  Consultation with state agencies.  The respective county councils may consult with the department of agriculture and the office of planning as needed.  The department of agriculture and the office of planning may review the report and recommendations from the planning departments and provide comments to the respective county councils.

     §46-J  Designation of important agricultural lands; adoption of important agricultural lands maps.  (a)  After receipt of the maps of eligible important agricultural lands from the respective county planning departments and the recommendations of the department of agriculture and the office of planning, the respective county councils shall then proceed to identify and designate important agricultural lands, subject to section 46-F.  The decision shall consider the county maps of eligible important agricultural lands; declaratory orders designating important agricultural lands during the three year period following the enactment of ordinances establishing incentives and protections contemplated under section 46-G; landowner position statements and representations; and any other relevant information.

     In designating important agricultural lands in the State, pursuant to the recommendations of individual county planning departments, the respective county councils shall consider the extent to which:

     (1)  The proposed lands meet the standards and criteria under section 46-D;

     (2)  The proposed designation is necessary to meet the objectives and policies for important agricultural lands in sections 46-B and 46-C; and

     (3)  The respective county councils has designated lands as important agricultural lands, pursuant to section 46-F; provided that if the majority of landowners' landholdings is already designated as important agricultural lands, excluding lands held in the conservation district, pursuant to section 46-F or any other provision of this part, the respective county councils shall not designate any additional lands of that landowner as important agricultural lands except by a petition pursuant to section 46-F.

     Any decision regarding the designation of lands as important agricultural lands and the adoption of maps of those lands pursuant to this section shall be based upon written findings of fact and conclusions of law, presented in at least one public hearing conducted in the county where the land is located in, that the subject lands meet the standards and criteria set forth in section 46-D and shall be approved by the respective county council.

     (b)  Copies of the maps of important agricultural lands adopted under this section shall be transmitted to each county planning department and county council, the department of agriculture, the agribusiness development corporation, the office of planning, and other state agencies involved in land use matters.  The maps of important agricultural lands shall guide all decision-making on the proposed reclassification or rezoning of important agricultural lands, state agricultural development programs, and other state and county land use planning and decision-making.

     (c)  The respective county councils shall have the sole authority to interpret the adopted map boundaries delineating the important agricultural lands.

     (d)  The respective county councils may designate lands as important agricultural lands and adopt maps for a designation pursuant to:

     (1)  A farmer or landowner petition for declaratory ruling under section 46-F at any time; or

     (2)  The county process for identifying and recommending lands for important agricultural lands under section 46-H no sooner than three years,

after the enactment of ordinances establishing incentives and protections contemplated under this part.

     §46-K  Standards and criteria for the reclassification or rezoning of important agricultural lands.  (a)  Any land use district boundary amendment or change in zoning involving important agricultural lands identified pursuant to this part shall be subject to this section.

     (b)  Upon acceptance by the county for processing, any application for a special permit involving important agricultural lands shall be referred to the department of agriculture and the office of planning for review and comment.

     (c)  Any decision by the county pursuant to this section shall specifically consider the following standards and criteria:

     (1)  The relative importance of the land for agriculture based on the stock of similarly suited lands in the area and the State as a whole;

     (2)  The proposed district boundary amendment or zone change will not harm the productivity or viability of existing agricultural activity in the area, or adversely affect the viability of other agricultural activities or operations that share infrastructure, processing, marketing, or other production-related costs or facilities with the agricultural activities on the land in question;

     (3)  The district boundary amendment or zone change will not cause the fragmentation of or intrusion of nonagricultural uses into largely intact areas of lands identified by the respective counties as important agricultural lands that create residual parcels of a size that would preclude viable agricultural use;

     (4)  The public benefit to be derived from the proposed action is justified by a need for additional lands for nonagricultural purposes; and

     (5)  The impact of the proposed district boundary amendment or zone change on the necessity and capacity of state and county agencies to provide and support additional agricultural infrastructure or services in the area.

     (d)  Any decision pursuant to this section shall be based upon a determination that:

     (1)  On balance, the public benefit from the proposed district boundary amendment or zone change outweighs the benefits of retaining the land for agricultural purposes; and

     (2)  The proposed action will have no significant impact upon the viability of agricultural operations on adjacent agricultural lands.

     (e)  The standards and criteria of this section shall be in addition to the decision-making criteria adopted by each county to govern decisions of county decision-making authorities under this chapter.

     (f)  Any decision of any county on a land use district boundary amendment or change in zoning involving important agricultural lands shall be approved by the body responsible for the decision.

     (g)  A farmer or landowner with qualifying lands may also petition the respective counties to remove the "important agricultural lands" designation from lands if a sufficient supply of water is no longer available to allow profitable farming of the land due to governmental actions, acts of God, or other causes beyond the farmer's or landowner's reasonable control.

     §46-L  Important agricultural lands; county ordinances.  (a)  Each county shall adopt ordinances that reduce infrastructure standards for important agricultural lands no later than the effective date of the enactment of protection and incentive measures for important agricultural lands and agricultural viability.

     (b)  For counties without ordinances adopted pursuant to subsection (a), important agricultural lands designated pursuant to this part may be subdivided without county processing or standards; provided that:

     (1)  None of the resulting lots shall be used solely for residential occupancy; and

     (2)  The leasehold lots shall return to the original lot of record upon expiration or termination of the lease.

     §46-M  Periodic review and amendment of important agricultural lands maps.  The maps delineating important agricultural lands shall be reviewed in conjunction with the county general plan and community and development plan revision process, or at least once every ten years following the adoption of the maps by the respective county councils; provided that the maps shall not be reviewed more than once every five years.  Any review and amendment of the maps of important agricultural lands shall be conducted in accordance with this part.  In these periodic reviews or petitions by the farmers or landowners for declaratory rulings, the "important agricultural lands" designation shall be removed from those important agricultural lands where the respective county councils have issued a declaratory order that a sufficient supply of water is no longer available to allow profitable farming of these lands due to governmental actions, acts of God, or other causes beyond the farmer's or landowner's reasonable control."

     SECTION 3.  Chapter 183C, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

     "§183C‑    Boundary amendment decision-making criteria.  In its review of any petition for reclassification of the conservation district boundaries pursuant to this chapter, the respective counties shall specifically consider the following:

     (1)  The extent to which the proposed reclassification conforms to the applicable goals, objectives, and policies of the Hawaii state plan and relates to the applicable priority guidelines of the Hawaii state plan and the adopted functional plans;

     (2)  The extent to which the proposed reclassification conforms to the applicable conservation district standards; and

     (3)  The impact of the proposed reclassification on the following areas of state concern:

         (A)  Preservation or maintenance of important natural systems or habitats; and

         (B)  Maintenance of valued cultural, historical, or natural resources.

     §183C‑    Adjustments of assessing practices.  Upon the adoption of conservation district boundaries, certified copies of the classification maps showing the district boundaries shall be filed with the appropriate county finance departments.  The counties, when making assessments of property within the district, shall give consideration to the use that may be made thereof."

     SECTION 4.  Chapter 226, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:

     "§226‑    County development plans; agriculture.  County development and comprehensive plans shall describe and identify agricultural areas including important agricultural lands consistent with article XI, section 3, of the State Constitution.  Important agricultural lands shall include lands for current and potential agricultural cultivation and agricultural uses with a high capacity for intensive and sustainable cultivation or pasturage.  The county land use regulations shall be designed to protect those lands designated as important agricultural lands."

     SECTION 5.  Section 26-18, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The following are placed in the department of business, economic development, and tourism for administrative purposes as defined by section 26-35:  Aloha Tower development corporation, Hawaii community development authority, Hawaii housing finance and development corporation, high technology development corporation, [land use commission,] natural energy laboratory of Hawaii authority, and any other boards and commissions as shall be provided by law.

     The department of business, economic development, and tourism shall be empowered to establish, modify, or abolish statistical boundaries for cities, towns, or villages in the State and shall publish, as expeditiously as possible, an up-to-date list of cities, towns, and villages after changes to statistical boundaries have been made."

     SECTION 6.  Section 46-15, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The mayor of each county, after holding a public hearing on the matter and receiving the approval of the respective council, shall be empowered to designate areas of land for experimental and demonstration housing projects, the purposes of which are to research and develop ideas that would reduce the cost of housing in the State.  Except as hereinafter provided, the experimental and demonstration housing projects shall be exempt from all statutes, ordinances, charter provisions, and rules or regulations of any governmental agency or public utility relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction and sale of homes thereon; provided that the experimental and demonstration housing projects shall not affect the safety standards or tariffs approved by the public [utility commissions] utility commission for [such] a public utility.

     The mayor of each county with the approval of the respective council may designate a county agency or official who [shall have the power to] may review all plans and specifications for the subdivisions, development and improvement of the land involved, and the construction and sale of homes thereon.  The county agency or official [shall have the power to] may approve or disapprove or to make modifications to all or any portion of the plans and specifications.

     The county agency or official shall submit preliminary plans and specifications to the legislative body of the respective county for its approval or disapproval.  The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the approved preliminary plans and specifications.  The final plans and specifications shall constitute the standards for the particular project.

     No action shall be prosecuted or maintained against any county, its officials or employees, on account of actions taken in reviewing, approving, or disapproving such plans and specifications.

     Any experimental or demonstration housing project for the purposes hereinabove mentioned may be sponsored by any state or county agency or any person as defined in section 1-19.

     [The county agency or official shall apply to the state land use commission for an appropriate land use district classification change, except where a proposed project is located on land within an urban district established by the state land use commission.  Notwithstanding any law, rule, or regulation to the contrary, the state land use commission may approve the application at any time after a public hearing held in the county where the land is located upon notice of the time and place of the hearing being published in the same manner as the notice required for a public hearing by the planning commission of the appropriate county.]"

     SECTION 7.  Section 92-6, Hawaii Revised Statutes, is amended to read as follows:

     "§92-6  Judicial branch, quasi-judicial boards and investigatory functions; applicability.  [(a)]  This part shall not apply:

     (1)  To the judicial branch[.]; or

     (2)  To adjudicatory functions exercised by a board and governed by sections 91-8 and 91-9, or authorized by other sections [of the Hawaii Revised Statutes].  In the application of this [subsection,] section, boards exercising adjudicatory functions include, but are not limited to, the following:

         (A)  Hawaii labor relations board, chapters 89 and 377;

         (B)  Labor and industrial relations appeals board, chapter 371;

         (C)  Hawaii paroling authority, chapter 353;

         (D)  Civil service commission, chapter 26;

         (E)  Board of trustees, employees' retirement system of the State of Hawaii, chapter 88;

         (F)  Crime victim compensation commission, chapter 351; and

         (G)  State ethics commission, chapter 84.

     [(b)  Notwithstanding provisions in this section to the contrary, this part shall apply to require open deliberation of the adjudicatory functions of the land use commission.]"

     SECTION 8.  Section 171-49.7, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§171-49.7[]]  Public lands suitable and available for residential development; inventory.  The department of land and natural resources shall complete and maintain a current inventory of all public lands [placed in the urban district] designated by the [land use commission under chapter 205] various counties for urban use which are or may be suitable and available for residential development.  This inventory shall be updated at the end of each quarter and shall contain the following information:  the island and area in which the land is situated, the acreage, and [such] other related information [which] that the department determines may be necessary to identify and inventory the land."

     SECTION 9.  Section 183C-1, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§183C-1[]]  Findings and purpose.  The legislature finds that lands within the [state land use] conservation district contain important natural resources essential to the preservation of the State's fragile natural ecosystems and the sustainability of the State's water supply.  It is therefore, the intent of the legislature to conserve, protect, and preserve the important natural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety and welfare."

     SECTION 10.  Section 183C-2, Hawaii Revised Statutes, is amended by amending the definition of "conservation district" to read as follows:

     ""Conservation district" means those lands within the various counties of the State bounded by the conservation district line, as established under provisions of Act 187, Session Laws of Hawaii 1961, and Act 205, Session Laws of Hawaii 1963, or future amendments thereto.

     Conservation districts include areas necessary for protecting watersheds and water sources; preserving scenic and historic areas; providing park lands, wilderness, and beach reserves; conserving indigenous or endemic plants, fish, and wildlife, including those that are threatened or endangered; preventing floods and soil erosion; forestry; open space areas whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding communities, or would maintain or enhance the conservation of natural or scenic resources; areas of value for recreational purposes; other related activities; and other permitted uses not detrimental to a multiple use conservation concept."

     SECTION 11.  Section 183C-3, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§183C-3[]]  Powers and duties of the board and department.  The board and department shall:

     (1)  Maintain an accurate inventory of lands classified within the state conservation district by the [state land use commission, pursuant to chapter 205;] respective counties;

     (2)  Identify and appropriately zone those lands classified within the conservation district;

     (3)  Adopt rules[,] in compliance with chapter 91 [which] that shall have the force and effect of law;

     (4)  Set, charge, and collect reasonable fees in an amount sufficient to defray the cost of processing applications for zoning, use, and subdivision of conservation lands;

     (5)  Establish categories of uses or activities on conservation lands, including allowable uses or activities for which no permit shall be required;

     (6)  Establish restrictions, requirements, and conditions consistent with the standards set forth in this chapter on the use of conservation lands; and

     (7)  Establish and enforce land use regulations on conservation district lands including the collection of fines for violations of land use and terms and conditions of permits issued by the department."

     SECTION 12.  Section 201H-12, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The corporation may develop public land in an agricultural district subject to the prior approval of the [land use commission, when developing lands greater than fifteen acres in size,] respective counties, and public land in a conservation district subject to the prior approval of the board of land and natural resources.  The corporation shall not develop state monuments, historical sites, or parks.  When the corporation proposes to develop public land, it shall file with the department of land and natural resources a petition setting forth the purpose for the development.  The petition shall be conclusive proof that the intended use is a public use superior to that which the land has been appropriated."

     SECTION 13.  Section 201H-38, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The corporation may develop on behalf of the State or with an eligible developer, or may assist under a government assistance program in the development of, housing projects that shall be exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction of dwelling units thereon; provided that:

     (1)  The corporation finds the housing project is consistent with the purpose and intent of this chapter, and meets minimum requirements of health and safety;

     (2)  The development of the proposed housing project does not contravene any safety standards, tariffs, or rates and fees approved by the public utilities commission for public utilities or of the various boards of water supply authorized under chapter 54; and

     (3)  The legislative body of the county in which the housing project is to be situated shall have approved the project with or without modifications:

         (A)  The legislative body shall approve, approve with modification, or disapprove the project by resolution within forty-five days after the corporation has submitted the preliminary plans and specifications for the project to the legislative body.  If on the forty-sixth day a project is not disapproved, it shall be deemed approved by the legislative body;

         (B)  No action shall be prosecuted or maintained against any county, its officials, or employees on account of actions taken by them in reviewing, approving, modifying, or disapproving the plans and specifications; and

         (C)  The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the preliminary plans and specifications.  The final plans and specifications for the project shall constitute the zoning, building, construction, and subdivision standards for that project.  For the purposes of sections 501-85 and 502-17, the executive director of the corporation or the responsible county official may certify maps and plans of lands connected with the project as having complied with applicable laws and ordinances relating to consolidation and subdivision of lands, and the maps and plans shall be accepted for registration or recordation by the land court and registrar[; and

     (4)  The land use commission shall approve, approve with modification, or disapprove a boundary change within forty-five days after the corporation has submitted a petition to the commission as provided in section 205-4.  If, on the forty-sixth day, the petition is not disapproved, it shall be deemed approved by the commission]."

     SECTION 14.  Section 205A-2, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  Policies.

     (1)  Recreational resources[;]:

         (A)  Improve coordination and funding of coastal recreational planning and management; and

         (B)  Provide adequate, accessible, and diverse recreational opportunities in the coastal zone management area by:

              (i)  Protecting coastal resources uniquely suited for recreational activities that cannot be provided in other areas;

             (ii)  Requiring replacement of coastal resources having significant recreational value including, but not limited to surfing sites, fishponds, and sand beaches, when [such] these resources will be unavoidably damaged by development; or requiring reasonable monetary compensation to the State for recreation when replacement is not feasible or desirable;

            (iii)  Providing and managing adequate public access, consistent with conservation of natural resources, to and along shorelines with recreational value;

             (iv)  Providing an adequate supply of shoreline parks and other recreational facilities suitable for public recreation;

              (v)  Ensuring public recreational uses of county, state, and federally owned or controlled shoreline lands and waters having recreational value consistent with public safety standards and conservation of natural resources;

             (vi)  Adopting water quality standards and regulating point and nonpoint sources of pollution to protect, and where feasible, restore the recreational value of coastal waters;

            (vii)  Developing new shoreline recreational opportunities, where appropriate, such as artificial lagoons, artificial beaches, and artificial reefs for surfing and fishing; and

           (viii)  Encouraging reasonable dedication of shoreline areas with recreational value for public use as part of discretionary approvals or permits by the [land use commission,] respective counties and the board of land and natural resources[, and county authorities]; and crediting [such] the dedication against the requirements of section 46-6;

     (2)  Historic resources[;]:

         (A)  Identify and analyze significant archaeological resources;

         (B)  Maximize information retention through preservation of remains and artifacts or salvage operations; and

         (C)  Support state goals for protection, restoration, interpretation, and display of historic resources;

     (3)  Scenic and open space resources[;]:

         (A)  Identify valued scenic resources in the coastal zone management area;

         (B)  Ensure that new developments are compatible with their visual environment by designing and locating [such] these developments to minimize the alteration of natural landforms and existing public views to and along the shoreline;

         (C)  Preserve, maintain, and, where desirable, improve and restore shoreline open space and scenic resources; and

         (D)  Encourage those developments that are not coastal dependent to locate in inland areas;

     (4)  Coastal ecosystems[;]:

        [(A)  Exercise an overall conservation ethic, and practice stewardship in the protection, use, and development of marine and coastal resources;

        (B)]  (A)  Improve the technical basis for natural resource management;

       [(C)]  (B)  Preserve valuable coastal ecosystems, including reefs, of significant biological or economic importance;

       [(D)]  (C)  Minimize disruption or degradation of coastal water ecosystems by effective regulation of stream diversions, channelization, and similar land and water uses, recognizing competing water needs; and

       [(E)]  (D)  Promote water quantity and quality planning and management practices that reflect the tolerance of fresh water and marine ecosystems and maintain and enhance water quality through the development and implementation of point and nonpoint source water pollution control measures;

     (5)  Economic uses[;]:

         (A)  Concentrate coastal dependent development in appropriate areas;

         (B)  Ensure that coastal dependent development such as harbors and ports, and coastal related development such as visitor industry facilities and energy generating facilities, are located, designed, and constructed to minimize adverse social, visual, and environmental impacts in the coastal zone management area; and

         (C)  Direct the location and expansion of coastal dependent developments to areas presently designated and used for [such] these developments and permit reasonable long-term growth at [such] designated areas, and permit coastal dependent development outside of presently designated areas when:

              (i)  Use of presently designated locations is not feasible;

             (ii)  Adverse environmental effects are minimized; and

            (iii)  The development is important to the State's economy;

     (6)  Coastal hazards[;]:

         (A)  Develop and communicate adequate information about storm wave, tsunami, flood, erosion, subsidence, and point and nonpoint source pollution hazards;

         (B)  Control development in areas subject to storm wave, tsunami, flood, erosion, hurricane, wind, subsidence, and point and nonpoint source pollution hazards;

         (C)  Ensure that developments comply with requirements of the Federal Flood Insurance Program; [and]

         (D)  Prevent coastal flooding from inland projects[.]; and

         (E)  Develop a coastal point and nonpoint source pollution control program.

     (7)  Managing development[;]:

         (A)  Use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development;

         (B)  Facilitate timely processing of applications for development permits and resolve overlapping or conflicting permit requirements; and

         (C)  Communicate the potential [short] short- and long-term impacts of proposed significant coastal developments early in their life cycle and in terms understandable to the public to facilitate public participation in the planning and review process;

     (8)  Public participation[;]:

         (A)  [Promote public involvement in coastal zone management processes;] Maintain a public advisory board to identify coastal management problems and to provide policy advice and assistance to the coastal zone management program;

         (B)  Disseminate information on coastal management issues by means of educational materials, published reports, staff contact, and public workshops for persons and organizations concerned with [coastal] coastal-related issues, developments, and government activities; and

         (C)  Organize workshops, policy dialogues, and site-specific mediations to respond to coastal issues and conflicts;

     (9)  Beach protection;

          (A)  Locate new structures inland from the shoreline setback to conserve open space[, minimize interference with natural shoreline processes,] and to minimize loss of improvements due to erosion;

         (B)  Prohibit construction of private erosion-protection structures seaward of the shoreline, except when they result in improved aesthetic and engineering solutions to erosion at the sites and do not interfere with existing recreational and waterline activities;

         (C)  Minimize the construction of public erosion-protection structures seaward of the shoreline;

         (D)  Prohibit private property owners from creating a public nuisance by inducing or cultivating the private property owner's vegetation in a beach transit corridor; and

         (E)  Prohibit private property owners from creating a public nuisance by allowing the private property owner's unmaintained vegetation to interfere or encroach upon a beach transit corridor;

    (10)  Marine resources[;]:

         (A)  Exercise an overall conservation ethic, and practice stewardship in the protection, use, and development of marine and coastal resources;

       [(A)]  (B)  Ensure that the use and development of marine and coastal resources are ecologically and environmentally sound and economically beneficial;

       [(B)]  (C)  Coordinate the management of marine and coastal resources and activities to improve effectiveness and efficiency;

       [(C)]  (D)  Assert and articulate the interests of the State as a partner with federal agencies in the sound management of ocean resources within the United States exclusive economic zone;

       [(D)]  (E)  Promote research, study, and understanding of ocean processes, marine life, and other ocean resources to acquire and inventory information necessary to understand how ocean development activities relate to and impact upon ocean and coastal resources; and

       [(E)]  (F)  Encourage research and development of new, innovative technologies for exploring, using, or protecting marine and coastal resources."

     SECTION 15.  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 plans that 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.  County general plans or development plans shall further define the overall theme, goals, objectives, policies, and priority guidelines contained within this chapter.  State functional plans shall be taken into consideration in amending the county general 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 16.  Section 279E-1, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§279E-1[]]  Statement of purpose.  (a)  The legislature finds that Section 112 of the Federal-Aid Highway Act of 1973, [Section 9 of the Urban Mass Transportation Act of 1964, as amended,] Metropolitan Transportation Planning Act, 49 U.S. Code section 5303, as amended, and other federal [law] laws require that a metropolitan planning organization be designated to act as an advisory urban transportation planning organization and to receive certain funds for the purpose of carrying out continuing, comprehensive, cooperative urban transportation planning.  It is further suggested that the organization be established under specific state legislation to coordinate metropolitan transportation planning.

     The Oahu Transportation Planning Program, a quasi-agency presently charged with coordinating transportation planning on Oahu has been unable to satisfy federal requirements for a "continuing, comprehensive, and cooperative", transportation planning process.  As a result, the Federal Highway Administration and the Urban Mass Transportation Administration have decertified Oahu transportation programs for federal funding.  This problem has resulted in statewide concern about the effects of decertification because of its impact on transportation programs and consequently employment and also because Oahu contains the greater part of the State's population and employment.

     In order to be recertified, it is mandatory that a Metropolitan Planning Organization be established and designated by the State as soon as possible.  Loss of all federal planning and construction funds for transit and transportation will continue until this is done.

     (b)  This [MPO] Metropolitan Planning Organization will be primarily an advisory body to the legislature and the legislative body of the appropriate county in affairs involving the continuous, comprehensive, cooperative urban transportation planning for the county.  This chapter is designed to provide the mechanism by which orderly and reasoned urban transportation planning can take place within the framework of federal law and the need to provide for adequate and informed representation from both the state and county governments and the public at large.

     It is appropriate that each unit of general purpose government within the jurisdiction of the Metropolitan Planning Organization shall have adequate representation on the Metropolitan Planning Organization.  The Metropolitan Planning Organization [(MPO)], will, utilizing input from appropriate state and city agencies, coordinate and develop a prospectus and a unified planning work program, a transportation plan and a transportation improvement program including an annual element of projects recommended for funding in order to provide this advice to legislative and government agencies.  It is very important that the delineation of state and county functions relating to transportation within the metropolitan area be carefully considered in the designation of the [MPO.] Metropolitan Planning Organization.

     (c)  Hawaii's state government differs markedly from most mainland states.  Hawaii has a two-tier government:  the State and the various counties.  The state government functions as a general purpose government having the responsibility for many programs, such as public education, health, welfare and judiciary, which are usually controlled by local government in mainland states.  [In addition, land use, through the state land use commission, is generally determined by the State rather than by the counties as is usually the case on the mainland.]  In transportation, the state government has responsibility for such normally local government programs as airports, bikeways, harbors, and waterways.

     Hawaii's two-tier government did not come about by accident; it was the result of careful consideration and study of Hawaii's unique geographic configuration.  As a state comprised of islands, Hawaii has four counties, each consisting of separate islands and consequently not contiguous.

     Because the State of Hawaii is comprised of islands, much of the transportation planning done by the State is designed to facilitate transportation solely within the county in which the project is built.  Obviously, a state highway built on the island of Oahu will only serve that island.  Hence, for example, the State's three major defense highways, H-1, H-2 and [TH-3,] H-3 which are all located on Oahu, while designated as state highways, serve only the transportation needs of the residents of Oahu.  However, this is entirely consistent with the present delineation of roadway functions in Hawaii.  The State is generally responsible for providing highway facilities that facilitate inter-community transportation, with the counties primarily responsible for local intra-community streets and roads.  As a result, the State has by design a major portion of the responsibility for transportation in each county, and more importantly for that part of the transportation network most closely related to and impacting on planning in general and transportation planning in particular.

     (d)  Unlike most mainland states, Hawaii has only one urbanized area, the [City and County] city and county of Honolulu[, where eighty-one per cent of the State's population reside].  In transportation, the State has programmed approximately $149 million dollars in new highway facilities for Oahu in fiscal year 1976 as compared to approximately $31 million dollars by the [City and County] city and county of Honolulu.  Additionally, the State's major airports and harbors are located on Oahu.  In short, the State has responsibility for most of the major transportation facilities and projects on Oahu and any designation of [an MPO] Metropolitan Planning Organization must take this into account.  Designation of [an MPO which] a Metropolitan Planning Organization that does not provide for significant state participation simply does not recognize the existing delineation of state and county functions relating to transportation in Hawaii.

     The [MPO] Metropolitan Planning Organization must be designed to prevent the type of situation [which] that led to the decertification of the [OTPP;] Oahu Transportation Planning Program it must have its own coordinating staff independent of either state or county agencies; it must be accessible and accountable to the public; and it must provide for public input.

     (e)  The purpose of this chapter is to establish and specify the role of the organization to be designated by the governor as the [MPO] Metropolitan Planning Organization as required by 23 United States Code 134 [and Section 4(a) of the Urban Mass Transportation Act of 1964, as amended, (49 U.S.C. 1603(a))] and the Federal Transit Act (49 U.S.C. 5303(c)), as amended, which requires the comprehensive planning of transportation improvements."

     SECTION 17.  Section 343-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Except as otherwise provided, an environmental assessment shall be required for actions that:

     (1)  Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies; [provided further that an environmental assessment for proposed uses under section 205-2(d)(11) or 205-4.5(a)(13) shall only be required pursuant to section 205-5(b);]

     (2)  Propose any use within any land classified [as a] for conservation [district] by the [state land use commission under chapter 205;] respective counties;

     (3)  Propose any use within a shoreline area as defined in section 205A-41;

     (4)  Propose any use within any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E;

     (5)  Propose any use within the Waikiki area of Oahu, the boundaries of which are delineated in the land use ordinance as amended, establishing the "Waikiki Special District";

     (6)  Propose any amendments to existing county general or development plans where the amendment would result in designations other than agriculture, conservation, or preservation, except actions proposing any new county general [plan] or development plans or amendments to any existing county general [plan] or development plans initiated by a county;

     (7)  Propose any reclassification of any land classified [as a] for conservation [district] by the [state land use commission under chapter 205;] respective counties;

     (8)  Propose the construction of new or the expansion or modification of existing helicopter facilities within the State, that by way of their activities, may affect:

         (A)  Any land classified [as a] for conservation [district] by the [state land use commission under chapter 205;] respective counties;

         (B)  A shoreline area as defined in section 205A-41; or

         (C)  Any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E; or until the statewide historic places inventory is completed, any historic site that is found by a field reconnaissance of the area affected by the helicopter facility and is under consideration for placement on the National Register or the Hawaii Register of Historic Places; and

     (9)  Propose any:

         (A)  Wastewater treatment unit, except an individual wastewater system or a wastewater treatment unit serving fewer than fifty single-family dwellings or the equivalent;

         (B)  Waste-to-energy facility;

         (C)  Landfill;

         (D)  Oil refinery; or

         (E)  Power-generating facility."

     SECTION 18.  Chapter 205, Hawaii Revised Statutes, is repealed.

     SECTION 19.  The land use commission and the system of districting and classification of lands set forth in section 205-2, Hawaii Revised Statutes, are abolished.  All rights, powers, functions, and duties of the land use commission are transferred to the various counties except for the establishment of the boundaries for conservation lands as provided for in section 3 of this Act, which shall remain with the State.  Each respective county shall be accorded all the rights, powers, functions, and duties of the land use commission over the respective lands outside of the conservation district boundaries within each of the respective counties.

     All officers and employees whose functions are transferred by this Act or whose office or position is abolished, shall not be separated from public employment, but shall remain in the employment of the State or of one of the respective counties and shall be assigned to any office or position for which such officer or employee is eligible under the personnel laws of the State or of the respective counties.

     No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which the officer or employee is transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

     An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that such officer or employee possesses the minimum qualifications for the position to which the officer or employee is transferred or appointed.

     All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the land use commission relating to the functions transferred to the various counties shall be transferred with the functions to which they relate.

     SECTION 20.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 21.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 22.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 23.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Land Use; Transfer to Counties

 

Description:

Abolishes the land use commission and transfers its functions to the counties.  Transfers jurisdiction over important agricultural lands to the counties.  Makes various amendments to the coastal zone management law.  Makes various amendments to metropolitan planning organization law.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.