Bill Text: HI SB2668 | 2022 | Regular Session | Introduced

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Bill Title: Relating To The Land Use Commission.

Spectrum: Moderate Partisan Bill (Democrat 6-1)

Status: (Introduced - Dead) 2022-01-24 - Referred to WTL/GVO, JDC/WAM. [SB2668 Detail]

Download: Hawaii-2022-SB2668-Introduced.html

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THE SENATE	S.B. NO.	2668
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to the land use commission.

 

 

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

 

     SECTION 1.  The legislature finds that, since 1961, it has been the land use commission's duty to establish a framework of land use management and regulation in which all lands in the State are classified into one of four land use districts.  The legislature further finds that the land use commission is misusing its authority and keeping projects pending due to its consideration of factors beyond its jurisdiction and exceeding its role of simply determining boundary classifications.

     Accordingly, because counties are better poised to make determinations regarding boundary classifications and land use management, the purpose of this Act is to:

     (1)  Require each county to establish its own land use commission to make certain determinations under chapter 205, Hawaii Revised Statutes; and

     (2)  Repeal the state land use commission.

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

     "§46-    County land use commission; established.  (a)  Each county shall, by ordinance, establish a county land use commission that shall be responsible for the districting and classification of lands within the county, pursuant to the requirements of chapter 205.  A county may designate an existing agency or office within the county as its county land use commission to satisfy the requirements of this section.

     (b)  Land use district boundaries and classifications as determined by the State and existing as of July 1, 2022, shall remain in full force and effect subject to amendment by respective county land use commissions as provided in chapter 205.  The authority of each county land use commission to amend district boundaries or classifications of lands shall apply to petitions filed after July 1, 2022."

     SECTION 3.  Section 6K-6, Hawaii Revised Statutes, is amended to read as follows:

     "§6K-6  Responsibilities and duties of the commission.  The general administration of the island reserve shall rest with the commission.  In carrying out its duties and responsibilities, the commission:

     (1)  Shall establish criteria, policies, and controls for permissible uses within the island reserve;

     (2)  Shall approve all contracts for services and rules pertaining to the island reserve;

     (3)  Shall provide advice to the governor, the department, and other departments and agencies on any matter relating to the island reserve;

     (4)  Shall provide advice to the office of planning and sustainable development and the department of the attorney general on any matter relating to the federal conveyance of Kaho`olawe;

     (5)  May enter into curator or stewardship agreements with appropriate Hawaiian cultural and spiritual community organizations for the perpetuation of native Hawaiian cultural, religious, and subsistence customs, beliefs, and practices for the purposes stated in section 6K-3;

     (6)  Shall carry out those powers and duties otherwise conferred upon the board of land and natural resources and the county of Maui land use commission with regard to dispositions and approvals pertaining to the island reserve.  All powers and duties of the board of land and natural resources and the county of Maui land use commission concerning dispositions and approvals pertaining to the island reserve are transferred to the commission;

     (7)  Shall carry out those powers and duties concerning the island reserve otherwise conferred upon the county of Maui by chapter 205A.  The powers and duties of the county of Maui and its agencies concerning coastal zone dispositions and approvals pertaining to the island reserve are transferred to the commission;

     (8)  Shall carry out those powers and duties concerning the island reserve otherwise conferred upon the island burial councils and the department with regard to proper treatment of burial sites and human skeletal remains found in the island reserve;

     (9)  Shall adopt rules in accordance with chapter 91 that are necessary for the purposes of this chapter and shall maintain a record of its proceedings and actions;

    (10)  May delegate to the executive director or employees of the commission, by formal commission action, such power and authority vested in the commission by this chapter as the commission deems reasonable and proper for the effective administration of this chapter; and

    (11)  May solicit and accept grants, donations, and contributions for deposit into the Kaho`olawe rehabilitation trust fund to support the purposes of this chapter."

     SECTION 4.  Section 10-41, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The training required by this part shall apply to members of [the] each county land use commission, board of land and natural resources, commission on water resource management, environmental advisory council, board of directors of the agribusiness development corporation, board of agriculture, legacy land conservation commission, natural area reserves system commission, and Hawaii historic places review board."

     SECTION 5.  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 for such 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 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 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] applicable county 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] county land use commission.  Notwithstanding any law, rule, or regulation to the contrary, the [state] county 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 6.  Section 46-15.7, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§46-15.7[]]  Concurrent processing.  When amendments to a county community or development plan, a county zoning map, or any combination of the two, are necessary to permit the development of a housing project, requests for amendments to these plans and zoning maps shall be allowed, if accepted for processing by the county, to be processed concurrently at the request of the applicant.  In addition, upon the request of the applicant, these plan and zoning map amendment requests may be processed concurrently with any request to the [state] county land use commission for the redesignation of lands which would permit the development of the housing project.

     For the purposes of this section:

     "County community or development plan" means a relatively detailed plan for an area or region within a county to implement the objectives and policies of a county general plan.

     "Housing project" means a plan, design, or undertaking for the development of single- or multi-family housing, including any affordable housing component which may be required by the county council.  A housing project may also include ancillary uses such as commercial and industrial uses which are an integral part of the development."

     SECTION 7.  Section 46-18, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Each county shall, by ordinance, designate an existing agency within each county which shall be designated as the central coordinating agency and in addition to its existing functions shall:

     (1)  Maintain and continuously update a repository of all laws, rules and regulations, procedures, permit requirements and review criteria of all federal, state and county agencies having any control or regulatory powers over land development projects within such county and shall make said repository and knowledgeable personnel available to inform any person requesting information as to the applicability of the same to a particular proposed project within the county;

     (2)  Study the feasibility and advisability of utilizing a master application form to concurrently file applications for an amendment to a county general plan and development plan, change in districting and classification of lands, change in zoning, special management area permit and other permits and procedures required for land development projects in the county to the extent practicable with one master application;

     (3)  Maintain and continuously update a master file for the respective county of all applications for building permits, subdivision maps, and land use designations of the [State and] county;

     (4)  When requested by the applicant, endeavor to schedule and coordinate, to the extent practicable, any referrals, public informational meetings, or any public hearings with those held by other federal, state, or county commissions or agencies, or any combination thereof, pursuant to existing laws pertaining to the respective county; and

     (5)  When requested by the applicant, endeavor to schedule and coordinate, to the extent practicable, a single joint public hearing when multiple permits from state or county commissions or agencies, or any combination thereof, require a public hearing."

     SECTION 8.  Section 46-88, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

     "(g)  This section shall not apply to development on land in the [state] county land use urban district."

     SECTION 9.  Section 84-17, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

     "(d)  The financial disclosure statements of the following persons shall be public records and available for inspection and duplication:

     (1)  The governor, the lieutenant governor, the members of the legislature, candidates for and delegates to the constitutional convention, the trustees of the office of Hawaiian affairs, and candidates for state elective offices;

     (2)  The directors of the state departments and their deputies, regardless of the titles by which the foregoing persons are designated; provided that with respect to the department of the attorney general, the foregoing shall apply only to the attorney general and the first deputy attorney general;

     (3)  The administrative director of the State;

     (4)  The president, the vice presidents, the assistant vice presidents, the chancellors, members of the board of regents, and the provosts of the University of Hawaii;

     (5)  The members of the board of education and the superintendent, the deputy superintendent, the state librarian, and the deputy state librarian of the department of education;

     (6)  The administrative director and the deputy director of the courts;

     (7)  The administrator and the assistant administrator of the office of Hawaiian affairs; and

     (8)  The members of the following state boards, commissions, and agencies:

          (A)  The board of directors of the agribusiness development corporation established under section 163D-3;

          (B)  The board of agriculture established under section 26-16;

          (C)  The state ethics commission established under section 84-21;

          (D)  The Hawaii community development authority established under section 206E-3;

          (E)  The Hawaiian homes commission established under the Hawaiian Homes Commission Act of 1920, as amended, and section 26-17;

          (F)  The board of directors of the Hawaii housing finance and development corporation established under section 201H-3;

          (G)  The board of land and natural resources established under section 171-4;

         [(H)  The state land use commission established under section 205-1;

     (I)] (H)  The legacy land conservation commission established under section 173A-2.4;

     [(J)] (I)  The natural area reserves system commission established under section 195-6;

     [(K)] (J)  The board of directors of the natural energy laboratory of Hawaii authority established under section 227D-2;

     [(L)] (K)  The board of directors of the Hawaii public housing authority established under section 356D‑3;

     [(M)] (L)  The public utilities commission established under section 269-2; and

     [(N)] (M)  The commission on water resource management established under section 174C-7."

     SECTION 10.  Section 92-6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

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

     SECTION 11.  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 by [the] each county land use commission under chapter 205 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 information which the department determines may be necessary to identify and inventory the land."

     SECTION 12.  Section 174C-3, Hawaii Revised Statutes, is amended as follows:

     1.  By amending the definition of "authorized planned use" to read:

     ""Authorized planned use" means the use or projected use of water by a development that has received the proper [state] county land use designation and county development plan/community plan approvals."

     2.  By amending the definition of "reasonable-beneficial use" to read:

     ""Reasonable-beneficial use" means the use of water in such a quantity as is necessary for economic and efficient utilization, for a purpose, and in a manner which is both reasonable and consistent with the [state and] county land use plans and the public interest."

     SECTION 13.  Section 174C-31, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

     "(b)  All water use and development plans shall be prepared in a manner consistent with the following conditions:

     (1)  Each water use and development plan shall be consistent with the water resource protection and water quality plans;

     (2)  Each water use and development plan and the state water projects plan shall be consistent with the respective county land use plans and policies including general plan and zoning as determined by each respective county;

     (3)  The water use and development plan for each county shall also be consistent with the [state] county land use classification and policies;

     (4)  The cost to develop the initial water use and development plan for each county shall be funded by the State in an amount not exceeding $150,000 per county;

     (5)  The cost of maintaining the water use and development plan shall be borne by the counties; state water capital improvement funds appropriated to the counties shall be deemed to satisfy article VIII, section 5 of the state constitution; and

     (6)  Each county in order to be eligible for state appropriations for county water projects must have developed an acceptable water use and development plan within the time frame established by this chapter.

     (c)  To prepare the water resource protection and water quality plans, the commission shall:

     (1)  Study and inventory the existing water resources of the State and the means and methods of conserving and augmenting such water resources;

     (2)  Review existing and contemplated needs and uses of water including [state and] county land use plans and policies and study their effect on the environment, procreation of fish and wildlife, and water quality;

     (3)  Study the quantity and quality of water needed for existing and contemplated uses, including irrigation, power development, geothermal power, and municipal uses;

     (4)  Identify rivers or streams, or a portion of a river or stream, which appropriately may be placed within a wild and scenic rivers system, to be preserved and protected as part of the public trust.  For the purposes of this paragraph, the term "wild and scenic rivers" means rivers or streams, or a portion of a river or stream of high natural quality or that possess significant scenic value, including but not limited to, rivers or streams which are within the natural area reserves system.  The commission shall report its findings to the legislature twenty days prior to the convening of each regular legislative session; and

     (5)  Study such other related matters as drainage, reclamation, flood hazards, floodplain zoning, dam safety, and selection of reservoir sites, as they relate to the protection, conservation, quantity, and quality of water."

     SECTION 14.  Section 174C-49, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (a) to read:

     "(a)  To obtain a permit pursuant to this part, the applicant shall establish that the proposed use of water:

     (1)  Can be accommodated with the available water source;

     (2)  Is a reasonable-beneficial use as defined in section 174C-3;

     (3)  Will not interfere with any existing legal use of water;

     (4)  Is consistent with the public interest;

     (5)  Is consistent with state and county general plans and county land use designations;

     (6)  Is consistent with county land use plans and policies; and

     (7)  Will not interfere with the rights of the department of Hawaiian home lands as provided in section 221 of the Hawaiian Homes Commission Act."

     2.  By amending subsection (c) to read:

     "(c)  The common law of the State to the contrary notwithstanding, the commission shall allow the holder of a use permit to transport and use surface or ground water beyond overlying land or outside the watershed from which it is taken if the commission determines that such transport and use are consistent with the public interest and the general plans and land use policies of the [State and] counties."

     SECTION 15.  Section 174C-93, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§174C-93[]]  Permits for construction or alteration.  No person shall construct or alter a stream diversion works, other than in the course of normal maintenance, without first obtaining a permit from the commission.  The commission may impose such reasonable conditions as are necessary to assure that the construction or alteration of such stream diversion works will not be inconsistent with the general plan and land use policies of the [State and the] affected county.  Nothing in this section shall be construed to be inconsistent with part IV.

     A person proposing to construct or alter a stream diversion work shall apply to the commission for a permit authorizing such construction or alteration.  The application shall contain the following:

     (1)  Name and address of the applicant;

     (2)  Name and address of the owner or owners of the land upon which the works are to be constructed and a legal description of such land;

     (3)  Location of the work;

     (4)  Engineering drawings showing the detailed plans of construction;

     (5)  Detailed specifications of construction;

     (6)  Name and address of the person who prepared the plans and specifications for construction;

     (7)  Name and address of the person who will construct the proposed work;

     (8)  General purpose of the proposed work; and

     (9)  Such other information as the commission may require."

     SECTION 16.  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 17.  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] each county land use commission, pursuant to chapter 205;

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

     (3)  Adopt rules, in compliance with chapter 91 which 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 18.  Section 196D-10, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Those functions identified in paragraphs (1) and (2) insofar as they relate to the permit application, review, processing, issuance, and monitoring of laws, and rules and to the enforcement of terms, conditions, and stipulations of permits and other authorizations issued by agencies with respect to the development, construction, installation, operation, maintenance, repair, and replacement of the project, or any portion or portions thereof, are transferred to the department.  With respect to each of the statutory authorities cited in paragraphs (1) and (2), the transferred functions include all enforcement functions of the agencies or their officials under the statute cited as may be related to the enforcement of the terms, conditions, and stipulations of permits, including but not limited to the specific sections of the statute cited.  "Enforcement", for purposes of this transfer of functions, includes monitoring and any other compliance or oversight activities reasonably related to the enforcement process.  These transferred functions include:

     (1)  Such functions of [the] each county land use commission related to:  district boundary amendments as set forth in section 205-3.1 et seq.; and changes in zoning as set forth in section 205-5; and

     (2)  The permit approval and enforcement functions of the director of transportation or other appropriate official or entity in the department of transportation related to permits or approvals issued for the use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266."

     SECTION 19.  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 appropriate county land use commission, when developing lands greater than fifteen acres in size, 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 20.  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;

     (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 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 appropriate county 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 21.  Section 205-1, Hawaii Revised Statutes, is amended to read as follows:

     "§205-1  Establishment of the commission.  (a)  [There shall be a state land use commission,] Pursuant to section 46‑  , each county's land use commission shall be responsible for the districting and classification of lands within its jurisdiction.  Each county's respective land use commission shall hereinafter [called] be singularly referred to in this chapter as the land use commission or the commission.  The commission shall consist of [nine] members [who shall hold no other public office and shall be appointed in the manner and serve for the term set forth in section 26-34.  One member shall be appointed from each of the counties and the remainder shall be appointed at large;] as determined by respective county ordinance; provided that each commission shall have at least three members; provided further that one member shall have substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural land practices.  [The] Each commission shall elect its chairperson from one of its members.  The members shall receive no compensation for their services on the commission, but shall be reimbursed for actual expenses incurred in the performance of their duties.  [Six affirmative votes] An affirmative vote by two-thirds majority of the members of the applicable commission shall be necessary for any boundary amendment.

     [(b)  The commission shall be a part of the office of planning and sustainable development for administrative purposes.

     (c)] (b)  The commission may engage employees necessary to perform its duties, including administrative personnel and an executive officer.  The executive officer shall be appointed by the commission and the executive officer's position shall be exempt from civil service.  Departments of the state government shall make available to the commission such data, facilities, and personnel as are necessary for it to perform its duties.  The commission may receive and utilize gifts and any funds from the federal or other governmental agencies.  It shall adopt rules guiding its conduct, maintain a record of its activities and accomplishments, and make recommendations to the governor and to the legislature through the governor.

     [(d)  Notwithstanding any law to the contrary, the commission shall be exempt from section 26-35 with the exception of section 26-35(a)(2), (3), (7), (8), and section 26-35(b) shall apply.

     (e)  The land use commission shall maintain its independence on matters coming before it to which the office of planning and sustainable development is a party by establishing and adhering to the process required by section 225M-2(d).]"

     SECTION 22.  Section 205-3.1, Hawaii Revised Statutes, is amended to read as follows:

     "§205-3.1  Amendments to district boundaries.  (a)  District boundary amendments involving lands in the conservation district, land areas greater than fifteen acres, or lands delineated as important agricultural lands shall be processed by the applicable county land use commission pursuant to section 205-4.

     (b)  Any department or agency of the State, and department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified may petition the appropriate county land use [decision-making authority] commission of the county in which the land is situated for a change in the boundary of a district involving lands less than fifteen acres presently in the rural and urban districts and lands less than fifteen acres in the agricultural district that are not designated as important agricultural lands.

     (c)  District boundary amendments involving land areas of fifteen acres or less, except as provided in subsection (b), shall be determined by the appropriate county land use [decision-making authority] commission for the district and shall not require consideration [by the land use commission] pursuant to section 205-4; provided that such boundary amendments and approved uses are consistent with this chapter.  The appropriate county land use [decision-making authority] commission may consolidate proceedings to amend [state] land use district boundaries pursuant to this subsection, with county proceedings to amend the general plan, development plan, zoning of the affected land, or such other proceedings.  Appropriate ordinances and rules to allow consolidation of such proceedings may be developed by the county land use [decision-making authority.] commission.

     (d)  The county land use [decision-making authority] commission shall serve a copy of the application for a district boundary amendment to the [land use commission and the] department of business, economic development, and tourism and shall notify the [commission and the] department of the time and place of the hearing and the proposed amendments scheduled to be heard at the hearing.  A change in the [state] land use district boundaries pursuant to this subsection shall become effective on the day designated by the county land use [decision-making authority] commission in its decision.  Within sixty days of the effective date of any decision to amend [state] land use district boundaries by the county land use [decision-making authority,] commission, the decision and the description and map of the affected property shall be transmitted to the [land use commission and the] department of business, economic development, and tourism by the county planning director."

     SECTION 23.  Section 205-4, Hawaii Revised Statutes, is amended by amending subsection (h) to read as follows:

     "(h)  No amendment of a land use district boundary shall be approved unless the commission finds upon the clear preponderance of the evidence that the proposed boundary is reasonable, not violative of section 205-2 and part III of this chapter, and consistent with the policies and criteria established pursuant to sections 205-16 and 205-17.  [Six affirmative votes of the commission shall be necessary for any boundary amendment under this section.]"

     SECTION 24.  Section 205-4.1, Hawaii Revised Statutes, is amended to read as follows:

     "§205-4.1  Fees.  The commission may establish reasonable fees for the filing of boundary amendment petitions and petitions for intervention to cover the cost of processing thereof and for the reproduction of maps and documents.  The commission also may assess a reasonable fee or require reimbursements to be made for court reporter expenses, the inexcusable absence of a party from a boundary amendment proceeding, and any other reimbursements for hearing expenses as determined by the commission.  Any fees collected shall be deposited [to the credit of the general fund.] as determined by ordinance."

     SECTION 25.  Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

     "(a)  [Within] Unless determined otherwise by a county land use commission, within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B and for solar energy facilities, class B or C, shall be restricted to the following permitted uses:

     (1)  Cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber;

     (2)  Game and fish propagation;

     (3)  Raising of livestock, including poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;

     (4)  Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry.  "Farm dwelling", as used in this paragraph, means a single-family dwelling located on and accessory to a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;

     (5)  Public institutions and buildings that are necessary for agricultural practices;

     (6)  Public and private open area types of recreational uses, including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;

     (7)  Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, treatment plants, corporation yards, or other similar structures;

     (8)  Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

     (9)  Agricultural-based commercial operations as described in section 205-2(d)(15);

    (10)  Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, and vehicle and equipment storage areas that are normally considered directly accessory to the above-mentioned uses and are permitted under section 205-2(d);

    (11)  Agricultural parks;

    (12)  Plantation community subdivisions, which as used in this chapter means an established subdivision or cluster of employee housing, community buildings, and agricultural support buildings on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation; provided that the existing structures may be used or rehabilitated for use, and new employee housing and agricultural support buildings may be allowed on land within the subdivision as follows:

          (A)  The employee housing is occupied by employees or former employees of the plantation who have a property interest in the land;

          (B)  The employee housing units not owned by their occupants shall be rented or leased at affordable rates for agricultural workers; or

          (C)  The agricultural support buildings shall be rented or leased to agricultural business operators or agricultural support services;

    (13)  Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;

    (14)  Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity.  For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;

    (15)  Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that the wind energy facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land;

    (16)  Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuel processing facilities and appurtenances do not adversely impact agricultural land and other agricultural uses in the vicinity.

              For the purposes of this paragraph:

              "Appurtenances" means operational infrastructure of the appropriate type and scale for economic commercial storage and distribution, and other similar handling of feedstock, fuels, and other products of biofuel processing facilities.

              "Biofuel processing facility" means a facility that produces liquid or gaseous fuels from organic sources such as biomass crops, agricultural residues, and oil crops, including palm, canola, soybean, and waste cooking oils; grease; food wastes; and animal residues and wastes that can be used to generate energy;

    (17)  Agricultural-energy facilities, including appurtenances necessary for an agricultural-energy enterprise; provided that the primary activity of the agricultural-energy enterprise is agricultural activity.  To be considered the primary activity of an agricultural-energy enterprise, the total acreage devoted to agricultural activity shall be not less than ninety per cent of the total acreage of the agricultural-energy enterprise.  The agricultural-energy facility shall be limited to lands owned, leased, licensed, or operated by the entity conducting the agricultural activity.

              As used in this paragraph:

              "Agricultural activity" means any activity described in paragraphs (1) to (3) of this subsection.

              "Agricultural-energy enterprise" means an enterprise that integrally incorporates an agricultural activity with an agricultural-energy facility.

              "Agricultural-energy facility" means a facility that generates, stores, or distributes renewable energy as defined in section 269-91 or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the State.

              "Appurtenances" means operational infrastructure of the appropriate type and scale for the economic commercial generation, storage, distribution, and other similar handling of energy, including equipment, feedstock, fuels, and other products of agricultural-energy facilities;

    (18)  Construction and operation of wireless communication antennas, including small wireless facilities; provided that, for the purposes of this paragraph, "wireless communication antenna" means communications equipment that is either freestanding or placed upon or attached to an already existing structure and that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services; provided further that "small wireless facilities" shall have the same meaning as in section 206N-2; provided further that nothing in this paragraph shall be construed to permit the construction of any new structure that is not deemed a permitted use under this subsection;

    (19)  Agricultural education programs conducted on a farming operation as defined in section 165-2, for the education and participation of the general public; provided that the agricultural education programs are accessory and secondary to the principal agricultural use of the parcels or lots on which the agricultural education programs are to occur and do not interfere with surrounding farm operations.  For the purposes of this paragraph, "agricultural education programs" means activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation as defined in section 165-2;

    (20)  Solar energy facilities that do not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser or for which a special use permit is granted pursuant to section 205‑6; provided that this use shall not be permitted on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A;

    (21)  Solar energy facilities on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating B or C for which a special use permit is granted pursuant to section 205-6; provided that:

          (A)  The area occupied by the solar energy facilities is also made available for compatible agricultural activities at a lease rate that is at least fifty per cent below the fair market rent for comparable properties;

          (B)  Proof of financial security to decommission the facility is provided to the satisfaction of the appropriate county planning commission prior to date of commencement of commercial generation; and

          (C)  Solar energy facilities shall be decommissioned at the owner's expense according to the following requirements:

              (i)  Removal of all equipment related to the solar energy facility within twelve months of the conclusion of operation or useful life; and

             (ii)  Restoration of the disturbed earth to substantially the same physical condition as existed prior to the development of the solar energy facility.

          For the purposes of this paragraph, "agricultural activities" means the activities described in paragraphs (1) to (3);

    (22)  Geothermal resources exploration and geothermal resources development, as defined under section 182‑1; or

    (23)  Hydroelectric facilities, including the appurtenances associated with the production and transmission of hydroelectric energy, subject to section 205-2; provided that the hydroelectric facilities and their appurtenances:

          (A)  Shall consist of a small hydropower facility as defined by the United States Department of Energy, including:

              (i)  Impoundment facilities using a dam to store water in a reservoir;

             (ii)  A diversion or run-of-river facility that channels a portion of a river through a canal or channel; and

            (iii)  Pumped storage facilities that store energy by pumping water uphill to a reservoir at higher elevation from a reservoir at a lower elevation to be released to turn a turbine to generate electricity;

          (B)  Comply with the state water code, chapter 174C;

          (C)  Shall, if over five hundred kilowatts in hydroelectric generating capacity, have the approval of the commission on water resource management, including a new instream flow standard established for any new hydroelectric facility; and

          (D)  Do not impact or impede the use of agricultural land or the availability of surface or ground water for all uses on all parcels that are served by the ground water sources or streams for which hydroelectric facilities are considered.

     (b)  [Uses] Unless determined otherwise by a county land use commission, uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in sections 205-6 and 205-8, and construction of single-family dwellings on lots existing before June 4, 1976.  Any other law to the contrary notwithstanding, no subdivision of land within the agricultural district with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be approved by a county unless those A and B lands within the subdivision are made subject to the restriction on uses as prescribed in this section and to the condition that the uses shall be primarily in pursuit of an agricultural activity.

     Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision shall expressly contain the restriction on uses and the condition, as prescribed in this section that these restrictions and conditions shall be encumbrances running with the land until such time that the land is reclassified to a land use district other than agricultural district.

     If the foregoing requirement of encumbrances running with the land jeopardizes the owner or lessee in obtaining mortgage financing from any of the mortgage lending agencies set forth in the following paragraph, and the requirement is the sole reason for failure to obtain mortgage financing, then the requirement of encumbrances shall, insofar as such mortgage financing is jeopardized, be conditionally waived by the appropriate county enforcement officer; provided that the conditional waiver shall become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

     The mortgage lending agencies referred to in the preceding paragraph are the Federal Housing Administration, Federal National Mortgage Association, Department of Veterans Affairs, Small Business Administration, United States Department of Agriculture, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, and any other federal, state, or private mortgage lending agency qualified to do business in Hawaii, and their respective successors and assigns."

     SECTION 26.  Section 205-7, Hawaii Revised Statutes, is amended to read as follows:

     "§205-7  Adoption, amendment or repeal of rules.  [The] Each county land use commission shall adopt, amend or repeal rules relating to matters within its jurisdiction in the manner prescribed in chapter 91."

     SECTION 27.  Section 205-18, Hawaii Revised Statutes, is amended to read as follows:

     "§205-18  Review of districts.  The office of planning and sustainable development may undertake a review of the classification and districting of all lands in the State.  The office, in its boundary review, shall focus its efforts on reviewing the Hawaii state plan, county general plans, and county development and community plans.  Upon completion of the boundary review, the office shall submit a report of the findings to [the] each county land use commission, the governor, legislature, and appropriate state and county agencies.  The office may initiate [state] land use boundary amendments which it deems appropriate to conform to these plans.  The office may seek the assistance of appropriate state and county agencies and may employ consultants and undertake studies in making this review."

     SECTION 28.  Section 205-42, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(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 State and 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."

     SECTION 29.  Section 205-45, Hawaii Revised Statutes, is amended to read as follows:

     "§205-45  Petition by farmer or landowner.  (a)  A farmer or landowner with lands qualifying under section 205-44 may file with the commission a petition for declaratory order to designate the lands as important agricultural lands.  The petition may be filed at any time in the designation process.

     (b)  Any law to the contrary notwithstanding, within the same petition for declaratory order as described in subsection (a), the petitioner may seek a reclassification of land in the agricultural district to the rural, urban, or conservation district, or a combination thereof; provided that:

     (1)  The land sought to be reclassified to the rural, urban, or conservation district is within the same county as the land sought to be designated as important agricultural lands;

     (2)  If the reclassification of the land is proposed to the  urban district, that reclassification to urban is consistent with the relevant county general and community, development, or community development plans; and

     (3)  The total acreage of the land sought to be designated or reclassified in the petition complies with the following proportions:

          (A)  At least eighty-five per cent of the total acreage is sought to be designated as important agricultural land; and

          (B)  The remainder of the acreage is sought to be reclassified to the rural, urban, or conservation district.

     (c)  The petition for declaratory order shall be submitted in accordance with [subchapter 14 of] the applicable county commission's rules and shall include:

     (1)  Tax map key numbers of the land to be designated as important agricultural lands and, if applicable, the land to be reclassified from the agricultural district to the rural, urban, or conservation district, along with verification and authorization from the applicable landowners;

     (2)  Proof of qualification for designation as important agricultural lands under section 205-44, respecting a regional perspective;

     (3)  The current or planned agricultural use of the area sought to be designated as important agricultural lands; and

     (4)  If applicable, the current or planned use of the area sought to be reclassified to the rural, urban, or conservation district.

     (d)  Prior to the commission considering a petition for a declaratory order to designate important agricultural land in combination with the reclassification of agricultural land to the rural, urban, or conservation district, the petitioner shall submit to the commission a certification issued by the department of agriculture as to the quality of the land for which designation as important agricultural land is being sought.

     (e)  The commission 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 205-44.

     If the petition also seeks the reclassification of land to the rural, urban, or conservation district, the commission shall review the petition and accompanying submissions to evaluate:

     (1)  The suitability of the land for the reclassification in accordance with section 205-2;

     (2)  If the reclassification of the land is proposed to the urban district, that reclassification to urban is consistent with the relevant county general and community, development, or community development plans; and

     (3)  Compliance with the other provisions of subsection (b).

     If the commission, after its review, finds that the designation and, if applicable, reclassification sought in the petition should be approved, the commission shall vote, by a two-thirds majority of the members of the commission, to issue a declaratory order designating the petitioner's identified lands as important agricultural lands and, if applicable, reclassifying the petitioner's identified land from the agricultural district to the rural, urban, or conservation district.  The commission may include reasonable conditions in the declaratory order.

     With respect to a petition that seeks to both designate important agricultural lands and reclassify agricultural lands to the rural, urban, or conservation district, if the commission finds that either the designation or reclassification as proposed by the petitioner should not be approved, the commission shall deny the petition in its entirety.

     (f)  The designation or reclassification of land pursuant to subsection (a) or (b) shall not be subject to the district boundary amendment procedures of sections 205-3.1 and 205-4 or become effective prior to legislative enactment of protection and incentive measures for important agricultural land and agricultural viability, as provided in section 9 of Act 183, Session Laws of Hawaii 2005.

     (g)  Farmers or landowners with lands qualifying under section 205-44 may file petitions for a declaratory order to designate lands as important agricultural lands following the legislative enactment of protection and incentive measures for important agricultural lands and agricultural viability, as provided in section 9 of Act 183, Session Laws of Hawaii 2005.

     (h)  A petitioner granted a declaratory order that designates important agricultural land, whether or not combined with the reclassification of land to the rural, urban, or conservation district, shall earn credits if the amount of land reclassified to the rural, urban, or conservation district is less than fifteen per cent of the total acreage of land subject to the order.  The "total acreage of land subject to the order" means the total acreage designated as important agricultural land and, if applicable, reclassified to the rural, urban, or conservation district by the declaratory order.

     The credits shall equal the difference between the following, rounded to the nearer tenth of an acre:

     (1)  The number that is fifteen per cent of the total acreage of land subject to the order; less

     (2)  The amount of the petitioner's land that is reclassified from the agricultural district to the rural, urban, or conservation district by the declaratory order.

     A petitioner with credits earned within a county may petition the commission for a declaratory order to reclassify any of the petitioner's other land in the same county from the agricultural district to the rural, urban, or conservation district until the credits are exhausted or expired.  The "petitioner's other land in the same county" means land owned by the petitioner that is in the same county as the land designated or reclassified under the petition.  The commission may issue the declaratory order if it finds that the land is suitable for reclassification in accordance with section 205-2 and that the reclassification is consistent with the relevant county general and community, development, or community development plans.  The petitioner may petition for such reclassification until all of the petitioner's credits are exhausted.  Any unexhausted credits shall expire and become unusable ten years after the granting of the declaratory order that designated the important agricultural land and, if applicable, reclassified land to the rural, urban, or conservation district.

     A petitioner with unused and unexhausted credits shall not transfer the credits to another person.

     [(i)  Notwithstanding any other law to the contrary, the land use commission may grant declaratory orders pursuant to this section before the commission receives from any county a map delineating recommended important agricultural lands.

     (j)] (i)  Land designated as important agricultural land pursuant to a declaratory order that both designates land as important agricultural land and reclassifies land in the agricultural district to the rural, urban, or conservation district, or a combination thereof pursuant to this section shall be redesignated only with the prior authorization of the legislature.  The authorization shall be expressed by the adoption of a concurrent resolution approved by a two-thirds vote of each house of the legislature voting separately.  When making its decision, the legislature shall consider the standards and criteria in section 205-50.

     [(k)] (j)  The commission may adopt rules pursuant to chapter 91 to effectuate this section."

     SECTION 30.  Section 205-47, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (a) to read:

     "(a)  Each county shall identify and map potential important agricultural lands within its jurisdiction based on the standards and criteria in section 205-44 and the intent of this part, except lands that have been designated, through the [state] land use, zoning, or county planning process, for urban use by the State or county."

     2.  By amending subsections (d) and (e) to read:

     "(d)  [The counties shall take notice of those lands that have already been designated as important agricultural lands by the commission.]

     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 205-44;

     (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 resolution.  The adopted maps shall be transmitted to the [land use commission] department of agriculture and the office of planning and sustainable development for further action pursuant to section 205‑48."

     SECTION 31.  Section 205-48, Hawaii Revised Statutes, is amended by amending its title and subsections (a) and (b) to read as follows:

     "§205-48  Receipt of maps of eligible important agricultural lands; county land use [commission.] commissions.  (a)  The [land use commission] department of agriculture and office of planning and sustainable development shall receive the county recommendations and maps delineating those lands eligible to be designated important agricultural lands no sooner than the effective date of the legislative enactment of protection and incentive measures for important agricultural lands and agricultural viability, as provided in section 9 of Act 183, Session Laws of Hawaii 2005.

     (b)  The department of agriculture and the office of planning and sustainable development shall review the county report and recommendations and provide comments to [the] each county land use commission within forty-five days of the receipt of the report and maps by the [land use commission.] respective county council.  The land use commission for each county may also consult with the department of agriculture and the office of planning and sustainable development as needed."

     SECTION 32.  Section 205-49, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  After receipt of the maps of eligible important agricultural lands from the counties and the recommendations of the department of agriculture and the office of planning and sustainable development, [the] each county land use commission shall then proceed to identify and designate important agricultural lands[,] within its jurisdiction, subject to section 205-45.  The decision shall consider the county maps of eligible important agricultural lands; declaratory orders issued by the commission designating important agricultural lands during the three year period following the enactment of legislation establishing incentives and protections contemplated under section 205-46, as provided in section 9 of Act 183, Session Laws of Hawaii 2005; landowner position statements and representations; and any other relevant information.

     In designating important agricultural lands [in the State,] within its jurisdiction, pursuant to the recommendations of individual counties, the commission shall consider the extent to which:

     (1)  The proposed lands meet the standards and criteria under section 205-44;

     (2)  The proposed designation is necessary to meet the objectives and policies for important agricultural lands in sections 205-42 and 205-43; and

     (3)  The commission has designated lands as important agricultural lands, pursuant to section 205-45; 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 205-45 or any other provision of this part, the commission shall not designate any additional lands of that landowner as important agricultural lands except by a petition pursuant to section 205-45.

     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 accordance with chapter 91, that the subject lands meet the standards and criteria set forth in section 205-44 and shall be approved by two-thirds of the membership to which the applicable county commission is entitled."

     SECTION 33.  Section 205-50, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  Any decision by the land use commission or 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 [State] applicable county 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."

     SECTION 34.  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 restoration of coastal resources that have significant recreational and ecosystem value, including but not limited to coral reefs, surfing sites, fishponds, sand beaches, and coastal dunes, when these resources will be unavoidably damaged by development; or requiring monetary compensation to the State for recreation when restoration 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 applicable county land use commission, board of land and natural resources, and county authorities; and crediting that 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 those 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)  Improve the technical basis for natural resource management;

          (C)  Preserve valuable coastal ecosystems of significant biological or economic importance, including reefs, beaches, and dunes;

          (D)  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)  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 and coastal related development are located, designed, and constructed to minimize exposure to coastal hazards and adverse social, visual, and environmental impacts in the coastal zone management area; and

          (C)  Direct the location and expansion of coastal development to areas designated and used for that development and permit reasonable long-term growth at those areas, and permit coastal development outside of designated areas when:

              (i)  Use of designated locations is not feasible;

             (ii)  Adverse environmental effects and risks from coastal hazards are minimized; and

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

     (6)  Coastal hazards;

          (A)  Develop and communicate adequate information about the risks of coastal hazards;

          (B)  Control development, including planning and zoning control, in areas subject to coastal hazards;

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

          (D)  Prevent coastal flooding from inland projects;

     (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 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;

          (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 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 minimize loss of improvements due to erosion;

          (B)  Prohibit construction of private shoreline hardening structures, including seawalls and revetments, at sites having sand beaches and at sites where shoreline hardening structures interfere with existing recreational and waterline activities;

          (C)  Minimize the construction of public shoreline hardening structures, including seawalls and revetments, at sites having sand beaches and at sites where shoreline hardening structures interfere with existing recreational and waterline activities;

          (D)  Minimize grading of and damage to coastal dunes;

          (E)  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

          (F)  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; and

    (10)  Marine and coastal resources;

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

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

          (C)  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)  Promote research, study, and understanding of ocean and coastal processes, impacts of climate change and sea level rise, marine life, and other ocean resources to acquire and inventory information necessary to understand how coastal development activities relate to and impact ocean and coastal resources; and

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

     SECTION 35.  Section 225M-2, Hawaii Revised Statutes, is amended to read as follows:

     "§225M-2  Office of planning and sustainable development; establishment; responsibilities.  (a)  There is established the office of planning and sustainable development within the department of business, economic development, and tourism for administrative purposes only.  The head of the office shall be known as the director of the office of planning and sustainable development and referred to in this chapter as director.  The director shall have:

     (1)  Training in the field of urban or regional planning, public administration, or other related fields;

     (2)  Experience in programs or services related to governmental planning; and

     (3)  Experience in a supervisory, consultative, or administrative capacity.

The director shall be nominated by the governor and, by and with the advice and consent of the senate, appointed by the governor without regard to chapter 76, and shall be compensated at a salary level set by the governor.  The director shall be included in any benefit program generally applicable to the officers and employees of the State.  The director may retain staff as may be necessary for the purposes of this chapter, in conformity with chapter 76.  The director shall report to the director of business, economic development, and tourism and shall not be required to report directly to any other principal executive department.  The director may also employ staff without regard to chapter 76, as authorized in this chapter and as may be necessary.

     (b)  The office of planning and sustainable development shall gather, analyze, and provide information to the governor, the legislature, and state and county agencies to assist in the overall analysis and formulation of state policies and strategies to provide central direction and cohesion in the allocation of resources and effectuation of state activities and programs and effectively address current or emerging issues and opportunities.  More specifically, the office shall engage in the following activities:

     (1)  State comprehensive planning and program coordination.  Formulating and articulating comprehensive statewide goals, objectives, policies, and priorities, and coordinating their implementation through the statewide planning system established in part II of chapter 226;

     (2)  Strategic planning.  Identifying and analyzing significant issues, problems, and opportunities confronting the State, and formulating strategies and alternative courses of action in response to identified problems and opportunities by:

          (A)  Providing in-depth policy research, analysis, and recommendations on existing or potential areas of critical state concern;

          (B)  Examining and evaluating the effectiveness of state programs in implementing state policies and priorities;

          (C)  Monitoring current social, economic, and physical conditions and trends through surveys, environmental scanning, and other techniques; and

          (D)  Developing, in collaboration with affected public or private agencies and organizations, implementation plans and schedules and, where appropriate, assisting in the mobilization of resources to meet identified needs;

     (3)  Planning coordination and cooperation.  Facilitating coordinated and cooperative planning and policy development and implementation activities among state agencies and between the state, county, and federal governments, by:

          (A)  Reviewing, assessing, and coordinating, as necessary, major plans, programs, projects, and regulatory activities existing or proposed by state and county agencies;

          (B)  Formulating mechanisms to simplify, streamline, or coordinate interagency development and regulatory processes; and

          (C)  Recognizing the presence of federal defense and security forces and agencies in the State as important state concerns;

     (4)  Statewide planning and geographic information system.  Collecting, integrating, analyzing, maintaining, and disseminating various forms of data and information, including geospatial data and information, to further effective state planning, policy analysis and development, and delivery of government services by:

          (A)  Collecting, assembling, organizing, evaluating, and classifying existing geospatial and non‑geospatial data and performing necessary basic research, conversions, and integration to provide a common database for governmental planning and geospatial analyses by state agencies;

          (B)  Planning, coordinating, and maintaining a comprehensive, shared statewide planning and geographic information system and associated geospatial database.  The office shall be the lead agency responsible for coordinating the maintenance of the multi-agency, statewide planning and geographic information system and coordinating, collecting, integrating, and disseminating geospatial data sets that are used to support a variety of state agency applications and other spatial data analyses to enhance decision-making.  The office shall promote and encourage free and open data sharing among and between all government agencies.  To ensure the maintenance of a comprehensive, accurate, up‑to‑date geospatial data resource that can be drawn upon for decision-making related to essential public policy issues such as land use planning, resource management, homeland security, and the overall health, safety, and well-being of Hawaii's citizens, and to avoid redundant data development efforts, state agencies shall provide to the shared system either their respective geospatial databases or, at a minimum, especially in cases of secure or confidential data sets that cannot be shared or must be restricted, metadata describing existing geospatial data.  In cases where agencies provide restricted data, the office of planning and sustainable development shall ensure the security of that data; and

          (C)  Maintaining a centralized depository of state and national planning references;

     (5)  Land use planning.  Developing and presenting the position of the State in all boundary change petitions and proceedings before [the] each county's land use commission, and assisting state agencies in the development and submittal of petitions for land use district boundary amendments, and conducting reviews of the classification and districting of all lands in the State, as specified in chapter 205;

     (6)  Coastal and ocean policy management, and sea level rise adaptation coordination.  Carrying out the lead agency responsibilities for the Hawaii coastal zone management program, as specified in chapter 205A.  Also:

          (A)  Developing and maintaining an ocean and coastal resources information, planning, and management system;

          (B)  Further developing and coordinating implementation of the ocean resources management plan;

          (C)  Formulating ocean policies with respect to the exclusive economic zone, coral reefs, and national marine sanctuaries; and

          (D)  Coordinating sea level rise adaptation with state agencies having operational responsibilities over state facilities to identify existing and planned facilities, including critical infrastructure, that are vulnerable to sea level rise, flooding impacts, and natural hazards;

     (7)  Regional planning and studies.  Conducting plans and studies to determine:

          (A)  The capability of various regions within the State to support projected increases in both resident populations and visitors;

          (B)  The potential physical, social, economic, and environmental impact on these regions resulting from increases in both resident populations and visitors;

          (C)  The maximum annual visitor carrying capacity for the State by region, county, and island; and

          (D)  The appropriate guidance and management of selected regions and areas of statewide critical concern.

          The studies in subparagraphs (A) to (C) shall be conducted at appropriate intervals, but not less than once every five years;

     (8)  Regional, national, and international planning.  Participating in and ensuring that state plans, policies, and objectives are consistent, to the extent practicable, with regional, national, and international planning efforts;

     (9)  Climate adaptation and sustainability planning and coordination.  Conducting plans and studies and preparing reports as follows:

          (A)  Develop, monitor, and evaluate strategic climate adaptation plans and actionable policy recommendations for the State and counties addressing expected statewide climate change impacts identified under chapter 225P and sections 226-108 and 226-109; and

          (B)  Provide planning and policy guidance and assistance to state and county agencies regarding climate change and sustainability;

    (10)  Smart growth and transit-oriented development.  Acting as the lead agency to coordinate and advance smart growth and transit-oriented development planning within the State as follows:

          (A)  Identify transit-oriented development opportunities shared between state and county agencies, including relevant initiatives such as the department of health's healthy Hawaii initiative and the Hawaii clean energy initiative;

          (B)  Refine the definition of "transit-oriented development" in the context of Hawaii, while recognizing the potential for smart growth development patterns in all locations;

          (C)  Clarify state goals for transit-oriented development and smart growth that support the principles of the Hawaii State Planning Act by preserving non-urbanized land, improving worker access to jobs, and reducing fuel consumption;

          (D)  Target transit-oriented development areas for significant increase in affordable housing and rental units;

          (E)  Conduct outreach to state agencies to help educate state employees about the ways they can support and benefit from transit-oriented development and the State's smart growth goals;

          (F)  Publicize coordinated state efforts that support smart growth, walkable neighborhoods, and transit-oriented development;

          (G)  Review [state] county land use decision-making processes to identify ways to make transit-oriented development a higher priority and facilitate better and more proactive leadership in creating walkable communities and employment districts, even if transit will only be provided at a later date; and

          (H)  Approve all state agencies' development plans for parcels along the rail transit corridor.  For the purposes of this subparagraph, "development plans" means conceptual land use plans that identify the location and planned uses within a defined area; and

    (11)  Environmental review.  Performing duties set forth under chapter 343, serving the governor in an advisory capacity on all matters relating to environmental review, and having such powers delegated by the governor as are necessary to coordinate and, when requested by the governor, direct all state governmental agencies in matters concerning environmental quality control, including:

          (A)  Advising and assisting private industries, government department and agencies, and other persons on the requirements of chapter 343; and

          (B)  Conducting public education programs on environmental quality control;

          provided that the office shall adopt rules in accordance with chapter 91 to implement this paragraph.

     [(c)  The land use commission's executive officer, chief clerk, and employees shall be administratively attached to the office, and section 205-1(c) shall apply.

     (d) The office of planning and sustainable development and the land use commission shall establish procedures and safeguards to avoid actual or perceived conflicts of interest that may otherwise arise as a result of any proceedings before the land use commission to which the office of planning and sustainable development is a party, including but not limited to petitions for amendments to district boundaries involving land areas greater than fifteen acres pursuant to section 205-4, and contested case proceedings pursuant to section 205-19.  These procedures and safeguards shall include a reporting structure for the land use commission and its executive director and employees that is separate from the reporting structure for the land use division of the office.]"

     SECTION 36.  Section 226-52, Hawaii Revised Statutes, is amended to read as follows:

     "§226-52  Statewide planning system.  (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 decision making 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] each county's 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.

     (b)  The statewide planning system shall also consist of several implementation mechanisms, including:

     (1)  Overall plan review, coordination, and evaluation.  Overall plan review, coordination, and evaluation shall be conducted by the office;

     (2)  The state budgetary, land use, and other decision-making processes.  The state budgetary, land use, and other decision-making processes shall consist of:

          (A)  The program appropriations process.  The appropriation of funds for major programs under the biennial and supplemental budgets shall 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;

          (B)  The capital improvement project appropriations process.  The appropriation of funds for major plans and projects under the capital improvements program shall 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;

          (C)  The budgetary review process of the department of budget and finance.  The budgetary review and allocation process of the department of budget and finance shall 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;

          (D)  Land use decision-making processes of state agencies.  Land use decisions made by state and county agencies shall 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.  The rules adopted by appropriate state and county agencies to govern land use decision making shall be in conformance with the overall theme, goals, objectives, and policies contained within this chapter; and

          (E)  All other regulatory and administrative decision-making processes of state agencies, which shall 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.  Rules adopted by state agencies to govern decision making shall be in conformance with the overall theme, goals, objectives, and policies contained within this chapter;

     (3)  The strategic planning processes.  The office and other state agencies shall conduct strategic planning activities to identify and analyze significant issues, problems, and opportunities confronting the State, including the examination and evaluation of state programs in implementing state policies and the formulation of strategies and alternative courses of action in response to identified problems and opportunities.  Strategic planning processes may include the conduct of surveys and other monitoring instruments such as environmental scanning to assess current social, economic, and physical conditions and trends.  In conducting strategic planning activities, the office and other state agencies shall ensure that general public and agency concerns are solicited and taken into consideration.  The formation of task forces, ad hoc committees, or other advisory bodies comprised of interested parties may serve to facilitate public involvement in specific planning projects; and

     (4)  Other coordination processes which include the use of the state clearinghouse process.  The state clearinghouse shall coordinate the review of all federally-assisted and direct federal development projects which are covered under the state clearinghouse process."

     SECTION 37.  Section 339-5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§339-5[]]  Responsibilities of owners and lessees of real property.  It shall be the responsibility of any owner or lessee of real property in [state] county land use urban districts zoned for urban use by the county to maintain sidewalks, alleys, curbs, roadway shoulder areas, fence lines, and hedges immediately adjoining such real property in a litter-free condition except that in no way will the statute be used to release the state and county agencies from continuing their present level of public property maintenance."

     SECTION 38.  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 conservation district by the [state] applicable county land use commission under chapter 205;

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

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

     (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 conservation district by the [state] applicable county land use commission under chapter 205;

          (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 39.  Section 356D-11, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The authority may develop public land in an agricultural district subject to the prior approval of the applicable county land use commission when developing lands greater than five acres in size.  The authority shall not develop state monuments, historical sites, or parks.  When the authority proposes to develop public land, it shall file with the department of land and natural resources a petition setting forth such purpose.  The petition shall be conclusive proof that the intended use is a public use superior to that to which the land had been appropriated."

     SECTION 40.  It is not the intent of this Act to modify the duties of the State concerning agricultural lands as established by article XI, section 3, of the Hawaii State Constitution.

     SECTION 41.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 42.  This Act shall take effect on July 1, 2022.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

State Land Use Commission; Repeal; Counties

 

Description:

Requires each county to establish its own land use commission to make certain determinations under chapter 205, Hawaii Revised Statutes.  Repeals the State Land Use Commission.

 

 

 

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