Bill Text: HI HB1503 | 2011 | Regular Session | Introduced

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Bill Title: Land Use Commission; Boundary Amendments.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2011-02-11 - (H) The committee(s) recommends that the measure be deferred. [HB1503 Detail]

Download: Hawaii-2011-HB1503-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	1503
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to land use.

 

 

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

 

     SECTION 1.  The purpose of this Act is to streamline the process used by the land use commission when a county or the state office of planning petitions for boundary amendments that implement county plans.  The counties have general plans, and in some cases, community development plans, and regional or district development plans.  These result from their long-range planning efforts and have been adopted after local community input.  To guide growth and development to areas designated by these county planning documents, it is often necessary to redistrict land, encourage a more compact development pattern, and discourage sprawl and leap-frog development.  Under current law, however, all boundary amendments at the land use commission go through a contested case hearing, which allows for intervention by third parties, formal trial-type hearings, preparation of findings of fact and conclusions of law, and the possibility of judicial appeal.  As a result, the counties have rarely initiated boundary amendments because they must go through the same process as private applicants.  Under this Act, the land use commission would decide the application through a quasi-legislative process, similar to the process used by a county council in deciding a rezoning or a boundary amendment of fewer than fifteen acres.  The commission would take public testimony and the commissioners would have to make a decision based on the record.  As with current law, the boundary amendment would need six affirmative votes of the commission to be approved.  This procedure would be tied to a comprehensive boundary review that the counties or the office of planning could initiate only once every five years to encourage a more comprehensive, planning-driven, and proactive approach.

     SECTION 2.  Section 205-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Any department or agency of the State, any department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified, may petition the land use commission for a change in the boundary of a district.  This section applies to all petitions for changes in district boundaries of lands within conservation districts, lands designated or sought to be designated as important agricultural lands, and lands greater than fifteen acres in the agricultural, rural, and urban districts, except as provided in [section] sections 201H-38[.] and 205-18.  The land use commission shall adopt rules pursuant to chapter 91 to implement section 201H-38."

     SECTION 3.  Section 205-18, Hawaii Revised Statutes, is amended to read as follows:

     "§205-18  Periodic review of districts.  [The office of planning shall undertake a review of the classification and districting of all lands in the State, within five years from December 31, 1985, and every fifth year thereafter.  The office, in its five-year 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 five- year boundary review, the office shall submit a report of the findings to the commission.  The office may initiate state land use boundary amendments which it deems appropriate to conform to these plans.  The office may seek assistance of appropriate state and county agencies and may employ consultants and undertake studies in making this review.] (a)  Each county, and the office of planning, may submit an application containing boundary amendments, which shall be separately listed within the application.  Each county, and the office of planning, shall be limited to one application for any island every five years.  Each proposed boundary amendment shall be consistent with a land use map contained in a general plan, community development plan, regional development plan, or district development plan, or other similar comprehensive plan, adopted by ordinance.

     (b)  Upon proper filing of an application, the commission, after not less than thirty and not more than ninety days, shall conduct a hearing or hearings on the affected island.  Chapter 92 shall apply, but the petition shall not be a contested case under chapter 91.  Sections 91-9 through 91-14 shall not apply to applications filed under this section.  The commission and its members shall decide the petition solely on matters presented in the record and on testimony at the hearing and ex parte contacts with the members of the commission on the subject matter of the application shall be prohibited.

     (c)  Any other provision of law to the contrary notwithstanding, notice of the hearing or hearings shall be served on the office of planning, county planning commission, planning department of the county in which the land is located, and all persons with a property interest in the land as recorded in the county's real property tax records.  In addition, notice of the hearing shall be mailed to all persons who have made a timely written request for advance notice of boundary amendment proceedings and public notice shall be given statewide, and in the county in which the land sought to be redistricted is located not less than thirty days in advance of the hearing or hearings.  The notice shall indicate the time and place that maps showing the proposed district boundary may be inspected.

     (d)  Any other provisions of law notwithstanding, prior to hearing of an application the commission and its staff may view and inspect any lands that are the subject of the application.

     (e)  The commission may take action separately on areas contained within the application or act on the application as a whole.  No boundary amendment shall be approved unless the commission finds upon the clear preponderance of the evidence that the proposed boundary amendment is reasonable, does not violate section 205-2 and conforms to the policies and criteria established pursuant to sections 205-16 and 205-17(1) and (2).  Six affirmative votes of the commission shall be necessary to approve a boundary amendment under this section.  Within one hundred eighty days after the proper filing of an application, the commission shall either approve or deny the application as a whole or approve or deny, in part or whole, the individual boundary amendments contained within the application.  Any land that is denied reclassification under this section may be the subject of a petition brought under sections 205-3.1 or 205-4, as applicable, within six months after the date of denial.

     (f)  Any subsequent county rezoning of property that is the subject of a boundary amendment under this section shall contain conditions that address the statutory requirements under section 205-17(3).  A county shall give the appropriate state agencies the opportunity to comment upon any rezoning action.  The rezoning process shall incorporate the requirements for the protection of historic sites and burials contained in sections 6E-42 and 6E-43 and any rules enacted thereunder, provided that any applicable studies shall be done in the rezoning process and not during the periodic boundary amendment process."

     SECTION 4.  Section 343-5, Hawaii Revised Statutes, is amended to read as follows:

     "§343-5  Applicability and requirements.  (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 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 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 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.

     (b)  Any state land use boundary amendment initiated by the State or county under section 205-18 shall be exempt from this chapter, except for amendments that reclassify land from the conservation district.

     [(b)] (c)  Whenever an agency proposes an action in subsection (a), other than feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or other than the use of state or county funds for the acquisition of unimproved real property that is not a specific type of action declared exempt under section 343-6, the agency shall prepare an environmental assessment for such action at the earliest practicable time to determine whether an environmental impact statement shall be required.

     (1)  For environmental assessments for which a finding of no significant impact is anticipated:

         (A)  A draft environmental assessment shall be made available for public review and comment for a period of thirty days;

         (B)  The office shall inform the public of the availability of the draft environmental assessment for public review and comment pursuant to section 343-3;

         (C)  The agency shall respond in writing to comments received during the review and prepare a final environmental assessment to determine whether an environmental impact statement shall be required;

         (D)  A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment; and

         (E)  The agency shall file notice of such determination with the office.  When a conflict of interest may exist because the proposing agency and the agency making the determination are the same, the office may review the agency's determination, consult the agency, and advise the agency of potential conflicts, to comply with this section.  The office shall publish the final determination for the public's information pursuant to section 343-3.

     The draft and final statements, if required, shall be prepared by the agency and submitted to the office.  The draft statement shall be made available for public review and comment through the office for a period of forty-five days.  The office shall inform the public of the availability of the draft statement for public review and comment pursuant to section 343-3.  The agency shall respond in writing to comments received during the review and prepare a final statement.

     The office, when requested by the agency, may make a recommendation as to the acceptability of the final statement.

     (2)  The final authority to accept a final statement shall rest with:

         (A)  The governor, or the governor's authorized representative, whenever an action proposes the use of state lands or the use of state funds, or whenever a state agency proposes an action within the categories in subsection (a); or

         (B)  The mayor, or the mayor's authorized representative, of the respective county whenever an action proposes only the use of county lands or county funds.

     Acceptance of a required final statement shall be a condition precedent to implementation of the proposed action. Upon acceptance or nonacceptance of the final statement, the governor or mayor, or the governor's or mayor's authorized representative, shall file notice of such determination with the office.  The office, in turn, shall publish the determination of acceptance or nonacceptance pursuant to section 343-3.

     [(c)] (d)  Whenever an applicant proposes an action specified by subsection (a) that requires approval of an agency and that is not a specific type of action declared exempt under section 343-6, the agency initially receiving and agreeing to process the request for approval shall prepare an environmental assessment of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required; provided that, for an action that proposes the establishment of a renewable energy facility, a draft environmental impact statement shall be prepared at the earliest practicable time.  The final approving agency for the request for approval is not required to be the accepting authority.

     For environmental assessments for which a finding of no significant impact is anticipated:

     (1)  A draft environmental assessment shall be made available for public review and comment for a period of thirty days;

     (2)  The office shall inform the public of the availability of the draft environmental assessment for public review and comment pursuant to section 343-3; and

     (3)  The applicant shall respond in writing to comments received during the review, and the agency shall prepare a final environmental assessment to determine whether an environmental impact statement shall be required.  A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment.  The agency shall file notice of the agency's determination with the office, which, in turn, shall publish the agency's determination for the public's information pursuant to section 343-3.

     The draft and final statements, if required, shall be prepared by the applicant, who shall file these statements with the office.

     The draft statement shall be made available for public review and comment through the office for a period of forty-five days.  The office shall inform the public of the availability of the draft statement for public review and comment pursuant to section 343-3.

     The applicant shall respond in writing to comments received during the review and prepare a final statement.  The office, when requested by the applicant or agency, may make a recommendation as to the acceptability of the final statement.

     The authority to accept a final statement shall rest with the agency initially receiving and agreeing to process the request for approval.  The final decision-making body or approving agency for the request for approval is not required to be the accepting authority.  The planning department for the county in which the proposed action will occur shall be a permissible accepting authority for the final statement.

     Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of the proposed action.  Upon acceptance or nonacceptance of the final statement, the agency shall file notice of such determination with the office.  The office, in turn, shall publish the determination of acceptance or nonacceptance of the final statement pursuant to section 343-3.

     The agency receiving the request, within thirty days of receipt of the final statement, shall notify the applicant and the office of the acceptance or nonacceptance of the final statement.  The final statement shall be deemed to be accepted if the agency fails to accept or not accept the final statement within thirty days after receipt of the final statement; provided that the thirty-day period may be extended at the request of the applicant for a period not to exceed fifteen days.

     In any acceptance or nonacceptance, the agency shall provide the applicant with the specific findings and reasons for its determination.  An applicant, within sixty days after nonacceptance of a final statement by an agency, may appeal the nonacceptance to the environmental council, which, within thirty days of receipt of the appeal, shall notify the applicant of the council's determination.  In any affirmation or reversal of an appealed nonacceptance, the council shall provide the applicant and agency with specific findings and reasons for its determination.  The agency shall abide by the council's decision.

     [(d)] (e)  Whenever an applicant requests approval for a proposed action and there is a question as to which of two or more state or county agencies with jurisdiction has the responsibility of preparing the environmental assessment, the office, after consultation with and assistance from the affected state or county agencies, shall determine which agency shall prepare the assessment.

     [(e)] (f)  In preparing an environmental assessment, an agency may consider and, where applicable and appropriate, incorporate by reference, in whole or in part, previous determinations of whether a statement is required and previously accepted statements.  The council, by rule, shall establish criteria and procedures for the use of previous determinations and statements.

     [(f)] (g)  Whenever an action is subject to both the National Environmental Policy Act of 1969 (Public Law 91-190) and the requirements of this chapter, the office and agencies shall cooperate with federal agencies to the fullest extent possible to reduce duplication between federal and state requirements.  Such cooperation, to the fullest extent possible, shall include joint environmental impact statements with concurrent public review and processing at both levels of government.  Where federal law has environmental impact statement requirements in addition to but not in conflict with this chapter, the office and agencies shall cooperate in fulfilling these requirements so that one document shall comply with all applicable laws.

     [(g)] (h)  A statement that is accepted with respect to a particular action shall satisfy the requirements of this chapter, and no other statement for the proposed action shall be required."

     SECTION 5.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

Report Title:

Land Use Commission; Boundary Amendments.

 

Description:

Amends the process for 5-year district boundary reviews that are initiated by a county or by the state office of planning and which are consistent with adopted county general plans or community development plans.  Exempts process from environmental review law.

 

 

 

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