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The
State Land Use Law (Chapter 205, Hawaii Revised Statutes) is unique in
the history of Hawaii land use planning.
Originally adopted by the State Legislature in 1961, the Land Use
Law establishes an overall framework of land use management whereby all
lands in the State of Hawaii are classified into one of four Districts:
·
URBAN
·
RURAL
·
AGRICULTURAL
·
CONSERVATION
PURPOSE OF THE LAW
In
1961, the Hawaii State Legislature determined that a lack of adequate
controls had caused the development of Hawaii’s limited and valuable
land for short-term gain for the few while resulting in long-term loss
to the income and growth potential of our State’s economy.
Development of scattered subdivisions, creating problems of
expensive yet reduced public services, and the conversion of prime
agricultural land to residential use, were key reasons for establishing
the state-wide zoning system.
To
administer this state-wide zoning law, the Legislature established the
Land Use Commission. The
Commission is responsible for preserving and protecting Hawaii’s lands
and encouraging those uses to which lands are best suited.
COMPOSITION OF THE COMMISSION
The
Commission is composed of nine members, who are appointed by the
Governor and confirmed by the State Senate.
One member is appointed from each of the four counties.
Five members are appointed at-large.
Commissioners are non-paid volunteers who represent a
cross-section of the community.
ROLE OF THE COMMISSION
The
Commission’s primary role is to ensure that areas of state concern are
addressed and considered in the land use decision-making process.
The
Commission establishes the district boundaries for the entire State.
The Commission acts on petitions for boundary changes submitted
by private landowners, developers and State and county agencies. The Commission also acts on requests for special use permits
within the Agricultural and Rural Districts.
The
Urban District generally includes lands characterized by “city-like”
concentrations of people, structures and services.
This District also includes vacant areas for future development.
Jurisdiction
of this district lies primarily with the respective counties.
Generally, lot sizes and uses permitted in the district area are
established by the respective county through ordinances or rules.
Rural
Districts are composed primarily of small farms intermixed with
low-density residential lots with a minimum size of one-half acre.
Jurisdiction
over Rural Districts is shared by the Commission and county governments.
Permitted uses include those relating or compatible to agricultural use
and low-density residential lots.
Variances
can by obtained through the special use permitting process.
The
Agricultural District includes lands for the cultivation of crops,
aquaculture, raising livestock, wind energy facility, timber
cultivation, agriculture-support activities (i.e., mills, employee
quarters, etc.) and land with significant potential for agriculture
uses. Golf courses and
golf-related activities may also by included in this district, provided
the land is not in the highest productivity categories (A or B) of the
Land Study Bureau’s detailed classification system.
Uses
permitted in the highest productivity agricultural categories are
governed by statute. Uses
in the lower-productivity categories – C, D, E or U - are established
by the Commission and include those allowed on A or B lands as well as
those stated under Section 205-4.5, Hawaii Revised Statutes.
Conservation
lands are comprised primarily of lands in existing forest and water
reserve zones and include areas necessary for protecting watersheds and
water sources, scenic and historic areas, parks, wilderness, open space,
recreational areas, habitats of endemic plants, fish and wildlife, and
all submerged lands seaward of the shoreline.
The conservation District also includes lands subject to flooding
and soil erosion.
Conservation
Districts are administrated by the State Board of Land and Natural
Resources and uses are governed by rules promulgated by the State
Department of Land and Natural Resources.
District
boundary amendments are obtained by petition to the Commission.
Amendment petitions can be initiated by State departments or agencies;
County departments or agencies in which the property is situated; and
any person with a direct interest in the property sought to be
reclassified. A $500 fee is
required from private landowners and developers when filing an
application to amend district boundaries.
This fee is waived for government agencies.
Contents
and format of a petition are described in the Hawaii Land Use Commission
Rules. A petition must meet
the requirements of content and format before it is considered properly
filed and accepted for processing.
Upon acceptance of a properly filed petition, the Commission must
hold a hearing on the island on which the subject property is situated
within not less than 60 days and not more than 180 days.
This hearing can be before the entire Commission or an appointed
Hearing Officer.
The
Commission must decide upon the request within 365 days after the
petition is deemed a proper filing unless otherwise ordered by a court,
or unless a time extension, which shall not exceed 90 days, is
established by a two-thirds vote of the members of the commission.
The Commission may approve, approve with conditions or deny the
petition. If a district
boundary is amended with conditions, the conditions must be recorded
with the Bureau of Conveyances, as these conditions will run with the
land and shall be binding upon the petitioner and subsequent persons
with any interest in the land.
On
petitions to redistrict Conservation lands, the requirements of the EIS
law (Chapter 343, HRS) must be met before the petition to reclassify
Conservation land can be officially accepted as a proper filing and
acted upon by the Commission.
Amendment
of a district boundary requires approval by at least six of the nine
Commissioners.
By
law, the decision-making process of the Commission is quasi-judicial.
This means that the process is more judicial than legislative in
nature. In this way, the rights of those who are most directly involved
or most affected by the decision are accorded due process before an
action is taken by the Commission.
Theses individuals are allowed to take part in the proceedings as
“parties.”
Parties
that appear before the Commission may do so on the party’s own behalf
or through an authorized representative.
Parties may also be represented through an attorney.
Persons with direct interests that are clearly distinguishable
from those of the general public may petition the Commission to
intervene in the proceeding.
As an intervenor, a $50 fee is required and they have the right
to present witnesses, cross-examine witnesses of other parties, and have
standing to appeal the Commission’s decision to the Circuit Court.
All
others may apply for leave to intervene as long as their position is not
substantially similar to the position of party already admitted to the
proceedings.
In
addition to the petitioner, the Office of Planning and the respective
County Planning Departments are mandatory parties to the proceedings.
The
Land Use Law sets general procedures for processing district boundary
amendment and special use permit requests.
The Commission has adopted specific rules for implementing the
law and reviewing these land use requests.
The
Land Use Law requires the Commission to specifically consider the
following criteria in review of any petition for a boundary amendment:
- Conformity
to the goals, objectives and policies of the Hawaii State Plan
(Chapter 226, Hawaii Revised Statutes) and the Functional Plans
adopted pursuant to the State Plan.
- Extent
to which the proposed reclassification conforms to the applicable
district standards
- Impacts
on the following State concerns:
- preservation
or maintenance of important natural systems or habitats;
- maintenance
of valued cultural, historical or natural resources;
- maintenance
of other natural resources relevant to Hawaii’s economy,
including but not limited to agricultural resources;
- commitment
of state funds and resources;
- provision
for employment opportunities and economic development; and
- provision
for housing opportunities for all income groups, particularly the
low, low-moderate, and gap groups.
- The
representations and commitments made by the petitioner in securing a
boundary change.
Furthermore,
the Commission must take into account the General Plan of the respective
County; and, where applicable, the objectives, policies and guidelines
of the State Coastal Zone Management Law (Chapter 205A, Hawaii Revised
Statutes).
In
an effort to streamline the decision-making process, the law was amended
in 1985 to allow applicants for land use changes of 15 acres or less to
apply directly to the counties. The
Commission, therefore, no longer handles such requests except when the
lands are situated within the Conservation District.
All
amendments approved by the counties are submitted to the State Land Use
Commission Office in Honolulu for revision of the Official State Land
Use District Boundaries Maps.
Projects
which qualify under Section 201G-118, Hawaii Revised Statutes, as
affordable housing projects benefit from a “fast track” procedure
whereby petitions for district boundary amendment are required to be
heard and decided upon within 45 days after the filing of a petition.
This
permitting process allows for “unusual and reasonable” uses within
the Agricultural and Rural Districts; provided such uses comply with the
objectives of the Land Use Law and meet the guidelines established by
the Commission.
Applications
for special use permits are made initially to the appropriate planning
commission of the county where the property is located.
When the proposed permit area is greater than 15 acres, the
approval of both the county and the Commission is required.
On
an application that involves an area greater than 15 acres, the
Commission must decide on the request within 45 days after receipt of
the complete record of the proceeding held by the County.
Five affirmative votes are required to approve such a request.
Denial
or modification of a Special Use Permit is appeal able to the circuit
court of the circuit in which the land is situated. |
