Hawaii-2023-SB219-Amended

SECTION 1. The legislature finds that there is a lack of clarity regarding the authority of the counties to adopt zoning regulations that prohibit or phase out land uses, activities, and structures established after the passage of the Hawaii zoning enabling act in 1957. Specifically, the legislature is aware that section 46-4, Hawaii Revised Statutes, has been interpreted as prohibiting the counties from adopting zoning regulations that eliminate or amortize land uses and structures outside of county commercial, industrial, resort, and apartment zoned areas. The legislature is also aware that section 46-4, Hawaii Revised Statutes, has been interpreted as prohibiting the counties from ordaining zoning ordinances that eliminate or amortize land uses and structures that are used for residential or agricultural purposes regardless of their underlying county zoning. The legislature finds that these interpretations of section 46-4, Hawaii Revised Statutes, are not consistent with the legislature's intended limitations on county zoning powers.

The legislature further finds that when section 46-4, Hawaii Revised Statutes, was enacted in 1957, the legislature intended to protect land uses and structures that were established prior to the implementation of comprehensive zoning ordinances by the counties. Interpretations of section 46-4, Hawaii Revised Statutes, that prohibit the counties from adopting zoning regulations that eliminate or amortize land uses and structures established after the ordainment of comprehensive county zoning ordinances are inimical to the legislature's intent and direction that county zoning is to be accomplished within the framework of a long-range, comprehensive general plan, and zoning districts are to guide the overall future development of each county.

The legislature additionally finds that the rise of short‑term rentals, time shares, and other short-duration uses of real property have raised questions about whether the rental of property for human occupancy can be treated as different types of land uses depending on the duration of a renter's length of stay or the duration of the underlying rental agreement. The legislature finds that clarifications to section 46-4, Hawaii Revised Statutes, are needed to address the regulation of short‑term rentals, time shares, and other short-duration uses of real property by the counties under their local zoning ordinances.

Accordingly, the purpose of this Act is to amend section 46-4, Hawaii Revised Statutes, relating to county zoning, in order to:

(1) Clarify that section 46-4, Hawaii Revised Statutes, does not prohibit the counties from adopting zoning regulations that eliminate or amortize land uses or structures established after the effective date of the first comprehensive zoning ordinance adopted by a county; and

(2) Clarify that county zoning regulations that restrict the time, place, manner, or duration of a land use activity do not create different types of land uses by limiting the time, place, manner, or duration of a use of land.

SECTION 2. Section 46-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

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

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

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

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

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

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

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

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

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

(8) Building setback lines and future street lines;

(9) The density and distribution of population;

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

(11) Minimum and maximum lot sizes; [~~and~~]

(12) The time, place, manner, and duration in which uses of land and structures may take place; provided that zoning regulations that restrict the time, place, manner, or duration of a use of property shall not be deemed to create different types of land uses or structures based on time, place, manner, or duration restrictions established by the counties; and

[~~(12)~~] (13) Other regulations the boards or city council find necessary and proper to permit and encourage the orderly development of land resources within their jurisdictions.

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

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

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

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

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

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	219
THIRTY-SECOND LEGISLATURE, 2023		S.D. 1
STATE OF HAWAII