Requires public notice and hearing regarding the construction or attachment of telecommunication antennae and towers/structures.

A BILL FOR AN ACT

SECTION 1. Section 46-4, Hawaii Revised Statutes, is amended to read as follows:

"§46-4 County zoning. (a) This section and any ordinances or rules and regulations adopted in accordance with it, shall apply to those 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 as shall be deemed best suited 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 so as 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:

The council of any county shall prescribe [such] rules [and], regulations, and administrative procedures and provide [such] personnel as it may deem necessary for the enforcement of this section and any ordinance enacted in accordance therewith. 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. Such a proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.

Nothing in this section shall invalidate any zoning ordinances 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 accord with a long range, comprehensive, general plan, and to insure the greatest benefit for the State as a whole. This section shall not be construed to limit or repeal any powers now possessed by any county to achieve the ends through zoning and building regulations, except insofar as forest and water reserve zones are concerned and as provided in subsections (c) [and], (d)[.], and (e).

Neither this section nor any ordinance enacted under this section shall prohibit the continuance of the lawful use of any building or premises for any trade, industry, 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.

(b) Any final order of a zoning agency established under this section may be appealed to the circuit court of the circuit in which the land in question is found. The appeal shall be in accord with the Hawaii rules of civil procedure.

(c) Each county may adopt reasonable standards to allow the construction of two single-family dwelling units on any lot where a residential dwelling unit is permitted.

(d) Prior to granting permission to build a structure or attach devices to an existing structure that will be used to provide wireless telecommunication services, a zoning agency established under this section shall give no fewer than fourteen days public notice prior to the public hearing as provided by section 1-28.5(a)(1) and (2) for a public hearing to be held by the zoning agency on the subject matter of the notice. The public hearing shall be held on the island where the subject structure is situate and shall be conducted under rules that the zoning agency may adopt.

[(d)] (e) Neither this section nor any other law, county ordinance, or rule shall prohibit group living in facilities with eight or fewer residents [and which] that are licensed by the State as provided for under section 321-15.6 or in an intermediate care facility/mental retardation-community (ICF/MR-C) for persons, including [the] mentally ill[,] persons, elders, [the handicapped, the] disabled persons, developmentally disabled[,] persons, or totally disabled persons, who are not related to the home operator or facility staff; provided that those group living facilities meet all applicable county requirements, not inconsistent with the intent of this subsection and including building height, setback, maximum lot coverage, parking, and floor area requirements.

(f) For purposes of this section:

["Mentally ill person" means a mentally ill person as defined under section 334-1.

"Elder" means an elder as defined under section 201G-1.

"Handicapped person" means an individual with a physical handicap as defined under section 515-2.

"Developmentally disabled person" means a person suffering from developmental disabilities as defined under section 333F-2.

"Totally disabled person" means a person totally disabled as defined under section 235-1.

"Intermediate care facility/mental retardation-community (ICF/MR-C)" is defined as an identifiable unit providing residence and care for eight or fewer mentally retarded individuals. Its primary purpose is the provision of health, social, and rehabilitation services to the mentally retarded through an individually designed active treatment program for each resident. No person who is predominately confined to bed shall be admitted as a resident of such a facility.]

"Developmentally disabled person" means a person suffering from developmental disabilities as defined under section 333F-1.

"Disabled person" means an individual with a physical disability as defined under section 515-2.

"Elder" means an elder as defined under section 201G-1.

"Intermediate care facility/mental retardation-community (ICF/MR-C)" means an identifiable unit providing residence and care for eight or fewer mentally retarded individuals. Its primary purpose is the provision of health, social, and rehabilitation services to the mentally retarded through an individually designed active treatment program for each resident. No person who is predominately confined to bed shall be admitted as a resident of such a facility.

"Mentally ill person" means a mentally ill person as defined under section 334-1

"Totally disabled person" means a person totally disabled as defined under section 235-1.

"Wireless telecommunication services" includes cellular or wireless digital phone services, paging services, and broadcast services."

SECTION 2. Section 171-41, Hawaii Revised Statutes, is amended to read as follows:

"§171-41 Commercial, industrial, and other business uses. (a) Leases for commercial, industrial, and other business uses shall be made only pursuant to a development plan [which] that provides for careful placement of complementary enterprises consistent with county zoning requirements; except that development plans for leases of parcels in industrial parks developed under section 171-134(b) shall provide for careful placement of complementary enterprises consistent with the final plans and specifications under section 171-134(b). Where a disposition for any such use is made without advance parcelization, the board shall make adequate provisions for the compatibility of the proposed enterprises with any existing surrounding private developments. The board, wherever possible, shall control the landscaping and architecture of the enterprises and protect the public against the creation of nuisances of smoke, soot, irritating odors and gases, and harmful wastes.

(b) The board may sell public land in fee simple for commercial, industrial, or other business uses with the prior approval of the governor and subject to disapproval by two-thirds vote of either the senate or the house of representatives or by majority vote of both in any regular or special session next following the date of disposition; provided the above restrictions shall not apply to any sale of land initially acquired for highway purposes with participating federal funds and which land is later found to be in excess of the need for highway purposes.

(c) Prior to leasing or selling public land pursuant to this section to a lessor or purchaser who will utilize the land to build a structure or to attach devices to a structure existing on the land that will be used to provide wireless telecommunication services, the board shall give no fewer than fourteen days public notice as provided by section 1-28.5(a)(1) and (2) for a public hearing to be held by the board on the subject matter of the notice. The public hearing shall be held on the island where the subject structure is situate and shall be conducted under rules that the board may adopt.

As used in this subsection,

"Wireless telecommunication services" includes cellular or wireless digital phone services, paging services, and broadcast services."

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.