Streamlines the land use regulatory process to facilitate the development of affordable housing.

A BILL FOR AN ACT

SECTION 1. The legislature finds that there is a need to streamline the land use regulatory process to facilitate the development of affordable housing. At present, counties prepare housing plans and the county housing agencies in coordination with the state housing and community development corporation of Hawaii have planned for and identified areas appropriate for affordable housing. The counties also prepare general and development plans which set forth land use policy and future patterns and types of development. There is a need to establish a formal linkage between county housing plans and general and development plans in order to better coordinate housing policy with land use policy and patterns of development.

The legislature finds that under the existing land use system, long-range land use policy is in effect decided on a project-by-project basis as cases come before the state land use commission. The quasi-judicial approach currently utilized by the land use commission is time-consuming. There is a need to take a longer range, more comprehensive and planning oriented view. The existing land use process also treats county government-initiated petitions for large regional areas the same as project-by-project developer initiated petitions, notwithstanding that the county petitions are based on county general and development plans prepared with extensive community input.

The legislature further finds that there is a need to prioritize investment in infrastructure improvements, including affordable housing, to serve areas identified for community investment in order to achieve cost savings, utilize funds more efficiently, and improve the quality of life of Hawaii's residents.

The purpose of this Act is to streamline the land use regulatory process to facilitate the development of affordable housing and to strengthen and coordinate state and county land use planning and infrastructure improvements.

This Act establishes a new quasi-legislative process that simplifies the state land use commission's procedures for county government petitions for boundary amendments that are based on adopted county comprehensive plans prepared pursuant to state criteria. District boundary amendments conducted under this process would be quasi-legislative rather than quasi-judicial in nature. This would streamline the state land use approval process and facilitate the development of affordable housing.

This Act establishes greater coordination among state and county plans in support of existing communities and areas planned for growth and/or protection of identified community resources to achieve cost savings and efficiency goals, to increase the supply of affordable housing, and to improve the quality of life for Hawaii's communities.

SECTION 2. Chapter 205, Hawaii Revised Statutes, is amended by adding two new parts to be appropriately designated and to read as follows:

"PART IV. CERTIFICATION OF COUNTY COMPREHENSIVE PLANS

§205-A Review and certification of county comprehensive plans. (a) The land use commission shall review and certify county plans based upon the substantive and procedural requirements set forth in part A of chapter 226. The review and certification of county comprehensive plans shall be conducted in accordance with the provisions of chapter 92.

(b) The county planning department shall submit the county plan and supporting documents to the land use commission, and shall notify the office of planning and other state agencies of the submittal to the land use commission.

(c) The office of planning shall coordinate and facilitate state agency review of the adopted county plan and its implementation program plan element, and consolidate state agency comments for transmittal to the land use commission. The office shall consult with state agencies and other interested organizations on the status of state issues, concerns, agreements discussed, and potential measures to address concerns that were not addressed or resolved during the joint planning process may consult with the county as to specific state agency concerns. The office may ask the county planning department to brief the office and other state agencies on how the adopted comprehensive plan addresses identified state issues.

(d) The office of planning shall provide written comments on state issues and concerns to the land use commission within forty-five days of receipt of the plan from the land use commission, including an update on any report resulting from a dispute resolution process pursuant to section 226-Y. The office of planning shall be a party in land use commission public hearings conducted pursuant to this section.

(e) The land use commission shall conduct at least one public hearing on the island or islands, which the county plan pertains to within sixty days of receipt of the county plan. The commission shall provide timely notice to the general public, county agencies, affected landowners, and other individuals and organizations who have requested notice. The public hearings shall be conducted in accordance with chapter 92.

(f) The land use commission shall act within ninety days of receipt of the plan to certify the plan or return the plan to the county to address issues raised by the commission. Any decision under this section shall require the affirmative vote of two thirds of the members to which the commission is entitled. The land use commission shall notify the county planning department, the office of planning, and other state agencies that the plan has been certified.

(g) If the plan is not certified, the plan shall be returned to the county, and the land use commission shall identify the actions which need to be undertaken to meet certification standards. The county shall respond to the land use commission and resubmit the plan for certification within ninety days.

§205-B Criteria for plan certification. (a) In its review of any county comprehensive plan for certification pursuant to this part, the commission shall consider whether the plan meets the following criteria:

(1) The plan meets the plan content and plan process requirements set forth in part IV of chapter 226, including community-based planning and consultation in all phases of plan development and adoption;

(2) The plan provides a set of internally consistent, long-range policies and measures to direct the long-range development of the county or portion of the county thereof;

(3) The plan results in a land use pattern of well-defined urban and rural settlements, with adequate consideration and protection of valued natural resources and resource areas;

(4) The plan addresses areas of state concern and the county has submitted a supporting report, which documents State agency concerns and priorities that were identified in the plan development process, how these concerns are addressed in the plan and in proposed community investment areas, and the issues that remain unresolved; and

(5) The plan conforms to the goals, objectives, policies, and priority guidelines in chapter 226.

PART V. COUNTY-INITIATED BOUNDARY AMENDMENTS

§205-C County-initiated district boundary amendments. (a) The county planning department may apply to the land use commission for a change in the land use district boundary of a land use district to conform to and implement the land use element of a county comprehensive plan; provided that the plan has been certified by the land use commission in accordance with part IV. This section applies only to applications submitted by the county planning agency for changes in district boundaries of lands contained within a certified comprehensive plan. All other petitions for district boundary amendments shall be subject to sections 205-3.1 and 205-4 as applicable.

(b) The proposed district boundary amendments shall conform to the land use element of the certified county comprehensive plan. The application must be regional in geographic coverage and involve multiple parcels. The application may include all or a portion of the land use changes identified in the county comprehensive plan. The application may include only those lands included in a particular phase of urban or rural expansion areas identified in the county plan.

(c) The county application may be submitted concurrently with the application for county plan certification pursuant to section 205-A. The application must identify the land areas for which land use district boundary amendments are being sought and a brief rationale for the proposed land use district boundary amendment.

(d) The land use commission shall conduct at least one public hearing on the island or islands in which the lands are situated within sixty days of acceptance of the county application. The commission shall provide timely notice in newspapers of general circulation statewide and in a newspaper which is printed and issued at least twice weekly in the county affected by the proposed action. The notice shall include:

(1) A statement of the topic of the public hearing;

(2) A statement that a copy of the application will be mailed to any interest person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where and how the requests may be made;

(3) A statement of when, where, and during what times the application may be reviewed in person; and

(4) The date, time, and place where the public hearing will be held and where interested persons may be heard on the proposed application.

The notice shall be mailed to all persons who have made a timely written request of the land use commission for advance notice of its public hearing. The public hearings shall be conducted in accordance with the provisions of chapter 92.

(e) The office of planning shall provide written comments on the State's position to the land use commission within forty-five days of acceptance of the county application. The office shall include in its report a description of general agreements made between the state and the county over implementation of the comprehensive plan, any disagreements between the state and the county that remain unresolved, potential measures to resolve the disagreement, and recommendations for proposed boundary amendments for lands affected by any outstanding disagreement between the state and the county. The office of planning shall be a party in land use commission hearings conducted pursuant to this section.

(f) The land use commission shall act within ninety days of acceptance of the application to approve, approve the application in part, or deny the application. Any decision under this section shall require the affirmative vote of two thirds of the members to which the commission is entitled. The proceedings of the land use commission under this section shall be conducted in accordance with the provisions of chapter 92.

(g) The land use commission shall base its decision on conformance to the certified county comprehensive plan, consistency with land use district standards under chapter 205, the land use decision-making criteria of section 205-17, and the degree of consensus reached between State and county agencies on implementation provisions and priority funding area requirements.

(h) The land use commission shall provide a written report to the county if the application or a portion thereof is not approved. The report shall identify the reasons for the land use commission's decision.

(i) The land use commission shall provide notice to state agencies and the county planning department of the changes to land use district boundaries. The land use commission shall be the sole authority responsible for boundary interpretations.

(j) A change in land use district classification of a parcel or parcels resulting from a land use commission decision pursuant to this section may be appealed to the circuit court of the circuit in which the land in question is found. The district boundaries and classification of parcels not subject to an appeal shall remain in full force and effect. The appeal shall be filed within sixty days of the date of the commission's decision. The appeal shall be in accord with chapter 91 and the Hawaii rules of civil procedure.

(k) The zoning of the affected lands shall remain in full force and effect until such time as the lands are rezoned by the county.

(l) All other individual project petitions not incorporated in a county-initiated application for boundary amendment under this section shall be subject to land use commission procedures under sections 205-3.1 and 205-4.

§205-D Review of projects proposed for lands reclassified under section 205-C. (a) The county planning department shall conduct a development project review for new projects proposed for lands reclassified pursuant to this part. The development project review shall examine the proposed uses, site design, and infrastructure and service requirements of the proposed project, including impacts on state agencies. The state agencies shall be provided an opportunity to enter into discussions with the county on actions required in project development to ensure consistency with priority funding area agreements. The county planning department shall establish guidelines and procedures for a development proposal review for these projects by ordinance or rule.

(b) Any state or county approval of projects involving a permit, license, certificate, land use change, subdivision, or other entitlement for use on lands which are reclassified by the commission pursuant to this part, shall be subject to sections 6E-2, 6E-8, and 6E-42, pertaining to historic, archaeological, and cultural resource preservation.

(c) For any proposed project involving lands reclassified by the commission pursuant to this part, the applicable state or county agency or officer shall advise the department of land and natural resources of any application involving a permit, license, certificate, land use change, subdivision, or other entitlement for use of such lands, which may affect threatened or endangered species and their associated ecosystems. The agency or officer shall allow the department of land and natural resources an opportunity for review and comment on the effect of the proposed project on threatened or endangered species and their associated ecosystems prior to any approval.

§205-E Declaratory ruling for project consistency. Any interested person may petition the commission for a declaratory ruling regarding the consistency of an application for a land use change or other entitlement, subdivision, or a permit for a project or use proposed for lands reclassified under this part, with the corresponding certified county comprehensive plan and the underlying state land use district classification. Except as provided in this section, the procedure for a declaratory ruling shall be in accordance with rules adopted by the commission. The commission shall conduct a hearing on the petition. The district boundaries and classification of parcels not subject to a petition for declaratory ruling shall remain in full force and effect. The commission's final action on a petition filed under this subsection shall be subject to judicial review pursuant to section 91-14. The appeal shall be filed within sixty days of the date of the commission's decision. Notwithstanding any provision of law to the contrary, declaratory relief may be obtained for the action. Any party aggrieved by the decision of the circuit court may appeal in accordance with part I of chapter 641 and the appeal shall be given priority."

SECTION 3. Chapter 226, Hawaii Revised Statutes, is amended by adding two new parts to be appropriately designated and to read as follows:

"PART IV. COUNTY COMPREHENSIVE PLANS

§226-A County comprehensive plan. (a) Each county shall prepare, adopt, and comprehensively review at least every ten years, and revise as necessary, an internally consistent, long-range comprehensive plan or set of plans, hereinafter called the "plan," containing the elements in section 226-C. The comprehensive plan shall establish a vision for long-range development of the county or portion thereof, and establish policies to guide the development, adoption, and administration of land development rules and related ordinances, the scheduling and execution of capital projects, and other land development functions of the county.

(b) The county planning department shall be responsible for the preparation and administration of the county comprehensive plan.

(c) The comprehensive plan may be organized as a single plan and land use policy map for the entire land area under the jurisdiction of the county, or as a set of plans and land use policy maps for regions consisting of portions of the land area under county jurisdiction; provided that if the plan is comprised of a set of plans, the cumulative effects of planned regional growth patterns and the effects of these growth patterns on other regions within the island or county shall be identified within each plan.

(d) The county plans shall specify a planning horizon, provided that the planning horizon shall be no less than twenty years and the same planning horizon shall be used for all components of the plan.

(e) The county plans shall conform to the standards set forth in this part for:

(1) The content of the plan and required plan elements in this part; and

(2) The process requirements for plan preparation, adoption, implementation, and revision in this part.

(f) The county plan shall be consistent with the goals, objectives, policies, and priority guidelines in this chapter.

(g) For the purposes of this chapter and chapters 46 and 205 "county comprehensive plan" means the county general plan or the county general plan and the set of development or community plans for regions within a county that implement the objectives and policies of the county general plan, as defined by county charter or ordinance and adopted by the legislative body of each county. In order to be eligible for county-initiated boundary amendments proceedings pursuant to section 205-C, the county comprehensive plan shall be reviewed for consistency with the standards of this part under section 226-U or certified pursuant to section 205-A.

§226-B County comprehensive plan; purpose. The purpose of the comprehensive plan is to direct the coordinated, efficient, and orderly development of the county or portions thereof that will, based on an analysis of present and future needs, best promote the public health, safety, morals, and general welfare. The comprehensive plan shall:

(1) Provide a unified physical design for the county;

(2) Promote a range of housing options and encourage a range of quality affordable housing;

(3) Identify the need for transportation and community facilities and services, and promote the timely provision of those facilities and services in order to support existing and planned development;

(4) Promote agricultural activities and protect agricultural land from encroachment from urban or non-farm uses;

(5) Protect and enhance rural areas and rural character;

(6) Protect historic, archaeological, cultural, and conservation resources of significance to the community and the State;

(7) Protect life and property from the effects of natural hazards, such as flooding, winds, wildfire, unstable lands, volcanic hazards, and tsunami inundation; and

§226-C County comprehensive plan elements. (a) The county comprehensive plan shall include required elements either as parts within the plan or separate documents that are prepared and adopted as the comprehensive plan. The required elements shall, at a minimum, include:

(b) The comprehensive plan shall also include the following:

(1) The community planning processes used and public participation in plan development and review;

(2) Concerns raised by state agencies and addressed in plan development; and

(3) Provisions stating that county land use and development approvals and capital improvement programs shall be consistent with and implement the plan land use designations and sequencing of development in the plan.

(c) A comprehensive plan may include additional elements or studies relating to the physical development of the county. All required and optional elements included in a plan shall be based on the same economic, demographic, and related assumptions and data developed by or for the county.

§226-D Land use element; content. (a) The county comprehensive plan shall include a land use element which shall be expressed in text and map form. The land use element shall include such urban uses as residential, commercial and industrial uses, agricultural lands and rural areas, and natural resources and open space.

(b) The purpose of the land use element is to provide a general pattern for the location, distribution, and character of land use and areas planned for growth within the jurisdiction of the county or portion thereof over the planning horizon.

(c) In preparing the land use element, the county shall undertake supporting studies, or may use studies conducted by others, concerning factors affecting existing and future land uses. These supporting studies may include, but shall not be limited to, inventories, analyses, projections of population and the economy, assessments of natural and environmental resources, and evaluations of patterns of existing land uses.

(d) The land use element shall contain a future land use map showing general locations of future land uses and urban growth boundaries and rural service area boundaries, if applicable.

(e) The land use element shall identify agricultural lands and include strategies and policies for agricultural land and the promotion of agricultural development within the county or portion thereof.

(f) The land use element shall include a natural resources and open space component. This component shall identify and map natural and environmental resources and sensitive areas including watersheds, and identify and map a comprehensive system of existing and future sites for open space and include polices for natural resources and open space protection with supporting analysis.

(g) The land use element shall set forth the county land use ordinances, land use development rules, and incentives that will be used to implement the land use policies and patterns of the plan, to include any growth or development strategies to be pursued in implementing the plan.

§226-E Transportation element; content. (a) A transportation element shall be included in the county comprehensive plan, which shall be expressed in map and text form.

(b) The purposes of the transportation element are to:

(1) Identify the impact of projected population and economic growth on existing highway, road, transit, airport, and harbor facilities and assess the need for additional capacity in the land use element; and

(2) Establish the framework for the acquisition, preservation, and protection of existing and future rights-of-way from building encroachment.

(c) The transportation element shall include, at a minimum, existing and planned highways, arterial and major collector roads, transit lines, airports, and harbors and shall be in both map and textual form.

(d) The transportation element shall contain a general assessment of the existing and committed facilities that support the land use element, a statement of policies regarding transportation, and a description in map and text of the location of planned facilities, services, and major improvements that are necessary to support the land use element and meet projected growth.

§226-F Affordable housing element; content. (a) An affordable housing element shall be included in the county comprehensive plan.

(b) The purposes of the housing element are to:

(1) Document the present and future needs for affordable housing for the county, and the extent to which private- and public-sector programs are meeting those needs;

(2) Identify barriers to the production of affordable housing; and

(3) Develop sound strategies, programs, and other actions to address needs for affordable housing.

(c) The housing element shall consist of a statement of county housing policies including numerical goals for the planning period and the next five years for affordable housing units, including low- and moderate-income and special needs housing.

(d) The housing element shall contain actions to be incorporated into the long-range program of implementation as required by section 226-I.

§226-F Community facilities and infrastructure element; content. (a) A community facilities and infrastructure element shall be included in the county comprehensive plan.

(b) The purpose of the community facilities and infrastructure element is to provide for community facilities and infrastructure that are necessary or desirable to support the future land use pattern proposed in the land use element of the plan and to meet projected needs of each island.

(c) For the purposes of this section, community facilities and infrastructure shall include, but not be limited to, the following publicly operated facilities within the jurisdiction of the county:

(1) Water, including sources, treatment, storage, pumping, and primary distribution;

(2) Wastewater, including primary treatment and collection;

(3) Storm water systems, including major drainageways, major trunk lines, streams, ditches, pump stations, retention and detention basins, outfall locations, and alternative treatment systems; and

(4) Solid waste, including landfills, other waste disposal facilities, transfer stations, and other primary facilities.

(d) The community facilities and infrastructure element shall contain the following:

(1) A general assessment of major existing community facilities and infrastructure that support the land use element;

(2) A statement of policies regarding the general distribution, location, and characteristics of community facilities and infrastructure within the county's jurisdiction.

(3) A description of existing community facilities or proposed capital improvement projects for community facilities or optimization of the use of existing facilities that are necessary or desirable to support the land use element and to meet projected needs; and

(4) A summary map that shows the general location of existing or proposed community facilities and infrastructure and service areas.

(e) For each category of community facility or infrastructure, the element shall include an analysis of projected cost of any proposed facilities.

(f) The community facilities and infrastructure element shall contain actions to be incorporated into the long-range program of implementation required by section 226-I. These actions shall cover a period of at least twenty years.

(g) The community facilities and infrastructure element shall also address the sustainable yield of aquifers, and assure consistency between the county comprehensive plan and the county water use and development plans prepared pursuant to chapter 174C.

§226-H Natural hazards mitigation element; content. (a) A natural hazards mitigation element shall be included in the county comprehensive plan.

(b) The natural hazards mitigation element shall describe and map areas prone to natural hazards including but not limited to flooding, tsunamis, storm waves, hurricane, erosion, subsidence, earthquakes, and volcanic hazards.

(c) The natural resources element shall include a statement of policies, ordinances, rules, and actions for the prevention and mitigation of damage from natural disasters.

§226-I Implementation program element; content. (a) In order to achieve the goals and policies established in a county comprehensive plan, the plan shall contain a long-range program of implementation of specific public actions.

(b) For each required element, the program of implementation shall include, but not be limited to, the following:

(1) A time frame for identified actions, that is, the sequence in which actions should occur. The time frame shall cover a period not less than five and not more than twenty years;

(2) An allocation of responsibilities for actions among the various governmental agencies and, where applicable, not-for-profit and for-profit organizations operating in the planning area and having interests in carrying out the program;

(3) A list of necessary capital improvements and facilities, and phasing for proposed capital improvements;

(4) A description of any land development rules or incentives that have been adopted by the county in order to achieve the goals, policies, and guidelines set forth in the county comprehensive plan and that may be further detailed in the individual plan elements; and

(5) A description of procedures that the county shall use in monitoring and evaluating the implementation of the plan.

§226-J Designation of community investment areas. (a) The plan shall identify community investment areas as referenced in section 226-X, and as may be further defined in state guidelines for community investment areas. The community investment areas shall identify where planned growth and redevelopment are to occur and where public investments for community infrastructure are required to support such growth, and those rural, agriculture or natural heritage areas that are to be protected for their resource value or character. The areas must correspond to the planned growth and water and sewer service areas or resource area boundaries contained in the land use element of the county comprehensive plan.

(b) The county shall collaborate and participate in a joint state and county government consultation and planning process for the identification of community investment areas and implementation requirements. The county shall collaborate and participate in state-county discussions to outline general agreements for the community investment areas and the investments required to effectuate community investment area development or protection. Evidence of general agreements on community infrastructure and facilities requirements or attempts to accomplish general agreements and a written report containing a detailed description of the state and county concerns, the areas of agreement, and areas of disagreement shall be required for plan certification.

(c) The county shall participate in a conflict resolution process initiated by the office of planning pursuant to section 226-Y when state and county agencies disagree on the identification of community investment areas and implementation responsibilities.

§226-K Optional plan elements. The county may adopt additional plan elements that define other goals, objectives, policies, and actions to preserve and enhance the quality of life of county residents. All optional plan elements shall be integrated and consistent with the comprehensive plan as a whole.

§226-L County comprehensive plan process; procedural requirements. (a) The county comprehensive planning process shall be conducted in accordance with the minimum procedural requirements defined in this part, to include but not be limited to:

(1) Extensive public input and participation;

(2) Participation in joint planning with state agencies for the identification of community investment areas and general agreements for these areas;

(3) Participation in conflict resolution where county and state agencies are not in agreement about policies, actions, infrastructure, or services required for designated community investment areas;

(4) Notice to the State of the county's intent to adopt a plan or plan amendments;

(5) Public processes for the county's plan adoption, plan amendments, and plan review;

(6) Periodic review and revision of the comprehensive plan.

(b) Each county shall adopt ordinances or rules that define the county's comprehensive planning process.

§226-M Public participation. (a) Each county shall provide a range of opportunities for public participation in the development, adoption, and maintenance of the plan. Participation shall occur at each stage of the process: plan preparation, adoption, implementation, evaluation, and revision. Each county shall make provisions for:

(1) Communication with the public and interest groups;

(2) Availability of technical information in useable and understandable form; and

(3) A variety of participatory and feedback mechanisms.

§226-N Consultation and joint planning with state agencies. State agencies and the office of planning shall be consulted during the plan drafting process and shall be kept informed of all public participation activities. State agencies shall be provided the opportunity to comment on plan drafts and county functional plan drafts, particularly in those areas impacting their interests. The county planning departments shall ensure that state agency concerns are presented at hearings and other proceedings pertaining to the county comprehensive plan or county functional plans. The county planning department and impacted county agencies shall participate in any dispute resolution proceeding initiated by the office of planning pursuant to section 226-Y to address areas of state concern that have not been resolved in the county comprehensive planning process.

§226-O Notice to State of intent to adopt comprehensive plan. The county council shall inform the land use commission and the office of planning of the intent to adopt the county comprehensive plan thirty days prior to the first hearing to consider action to adopt the plan.

§226-P County comprehensive plan adoption; consistency with plan. (a) The adoption of the plan or any part thereof or any amendment thereto shall be by ordinance. The ordinance shall refer expressly to the document that forms the whole or part of the county plan. The enactment of the ordinance shall be recorded on the plan or any part thereof or any amendment thereto by the county clerk.

(b) All county zoning codes, subdivision ordinances, land use change, and development approvals shall be consistent with and implement the plan land use designations and sequencing of development in the adopted plan.

§226-Q County comprehensive plan; availability. The county planning director shall make the county comprehensive plan or part thereof or amendment thereto available for public inspection at public sites that the director designates. The planning director shall also make the county comprehensive plan or part thereof or amendment thereto available for purchase by the public at actual cost or a lesser amount.

§226-R County comprehensive plan; amendment. (a) The county council may amend the county comprehensive plan from time to time, but not more than once during any calendar year, except in the case of:

(1) An amendment involving the siting, significant expansion, or significant reduction of a state facility; or

(2) A natural or other emergency, in which case, the council may amend the county comprehensive plan at any time, provided the council shall state in the ordinance adopting the amendment the nature of the emergency, why the plan amendment is necessary, and how it serves the public interest.

(b) Any amendment of a county comprehensive plan that has been certified by the land use commission shall also be certified pursuant to section 205-A in order to be eligible for the quasi-legislative land use district boundary amendment procedure set forth in section 205-C.

§226-S County comprehensive plan; periodic review and revision. (a) Each county shall review the county comprehensive plan at least once every five years and shall adopt such parts or other amendments to the plan in accordance with this part, as the legislative body deems necessary to update the plan. Each county shall conduct a comprehensive review and revision of the county comprehensive plan at least once every ten years. The comprehensive review and revision process shall conform to the content and process requirements of this part.

§226-T Application of this Act to existing county plans. This Act shall apply to the review and revision of all county general plans, community, or development plans comprising the county's comprehensive plan that were adopted more than five years before the effective date of this Act. County applications for district boundary amendments under section 205-C based on a county general plan, community, or development plan that were adopted less than five years before the effective date of this Act or were undergoing an amendment or revision process as of the effective date of this Act shall be subject to the interim guidelines for county plans set forth in section 226-U.

§226-U Interim plan agreements for county plans adopted in the five years preceding the effective date of the Act or which were undergoing an amendment or revision process as of the effective date of this Act. (a) The county, through its county planning agency, shall enter into a negotiation process with the State to determine what additional information, state-county agency consultations, and agreements shall be required for county plans adopted less than five years prior to the effective date of this Act or initiated as of the effective date of this Act to be eligible for county-initiated district boundary amendments under section 205-C. The county shall be responsible for providing the following information for the negotiation process:

(b) The office of planning shall coordinate and facilitate the state-county agency consultations under this section. The office shall facilitate state agency review and comment, and the development of general agreements regarding the timing of projected infrastructure, service, and program needs for community investment areas contained in the plan or portions thereof.

(c) The office shall assist in preparing and submitting a report to the land use commission with findings as to the impact of the county plan on state-funded facilities and resources, and agreements made between the county and state agencies to address state concerns regarding implementation of the county plan or portions thereof.

(d) The county planning agency may submit an application to the land use commission for district boundary amendments pursuant to section 205-C. The application shall include a report containing the information required in subsection (a), as well as a detailed description of state agency concerns raised in the negotiation process, and the agreements made to address state agency concerns.

PART V. STATE SUPPORTS FOR COUNTY PLANNING

§226-V Purpose. Quality of life for residents and communities can be enhanced by coordination of county, state, and non-governmental efforts to provide the facilities, services, and programs to:

(1) Support growth where growth and redevelopment are planned; and

(2) Protect the natural amenities and resource areas that residents feel should be protected from growth and development.

The county comprehensive plan provides a vehicle for state and county agencies to plan, organize, and implement coordinated strategies for growth, redevelopment, and protection of valued resources and resource areas. The measures established in this part are intended to enable the State to work with and assist the counties in identifying public investment priorities, and implementing projects and programs that implement mutual goals for growth, redevelopment, and conservation.

§226-W Community investment areas. (a) The county planning department shall propose community investment areas that shall identify where planned growth and redevelopment are to occur and where public investments for community infrastructure are required to support projected growth. Community investment areas may also be used by the county to identify protective areas where natural resources are to be conserved or preserved, and where the programming and financial commitments necessary to achieve protection of these resources will be directed.

(b) The community investment areas must correspond to the planned growth and water and sewer service areas or natural resource area boundaries contained in the land use element of the county comprehensive plan.

(c) The process for identifying community investment areas shall involve joint state and county government consultation pursuant to section 226-X.

(d) The county, in consultation with the State, shall prepare of a list of public investments and the timing of projects within designated community investment areas.

(e) The office of planning may initiate and the county shall participate in a dispute resolution process pursuant to section 226-Y when state and county agencies disagree on the actions, resources, or jurisdictional responsibilities required in support of community investment areas.

§226-X Joint planning process; concurrent state referral. (a) State agencies shall participate in county comprehensive plan development and revision processes and county functional planning processes required to implement the county comprehensive plan. State agencies shall be responsible for coordinating agency planning and programming with county planning processes.

(b) The office of planning shall assist the county planning department by facilitating and coordinating, as needed, state and county interagency consultation and joint planning in the county's formulation and revision of the county comprehensive plan. The joint planning process is intended to facilitate state agency participation and input in comprehensive plan development and review processes.

(c) The office of planning shall assist the county planning department in organizing and conducting a series of negotiated discussions between state and county agencies for the identification of community investment areas and the potential public investments required to support the community investment areas in the comprehensive plan.

(d) The office of planning and the county planning departments shall establish a process for concurrent state referral and comment on consistency as the county plan is being prepared or revised; provided that the director of the office of planning shall inform the county planning director at the earliest possible time if a draft plan is inconsistent with this chapter. The county planning director shall work with the office to resolve the state concern.

§226-Y Dispute resolution process. (a) If an issue of state concern pertaining to the draft comprehensive plan or proposed community investment areas cannot be resolved during the joint planning process conducted pursuant to section 226-X, the director of the office of planning shall initiate a dispute resolution process that includes the representatives of those agencies with disagreements with the proposed plan provisions. The dispute resolution process shall examine:

(1) The interests and positions central to the dispute;

(2) The significance of the issue to agreements about community investment areas and effective implementation of the proposed plan; and

(3) Alternative ways to address the parties' concerns.

(b) The office of planning shall submit to the land use commission a report on the dispute resolution process, which shall include a record of the process, a detailed discussion of substantive issues, a description of the general agreements made, if any, as a result of the dispute resolution process, and a discussion of any outstanding issues that are unresolved at the conclusion of the dispute resolution process. The proceeding may include fact-finding as needed to be able to evaluate information and resolve factual disagreements.

(c) The office may employ the services of a third party facilitator, mediator, or negotiator to assist and guide the dispute resolution process to a successful conclusion.

§226-Z. Incentives for plan certification. (a) Upon certification of the county comprehensive plan or portions thereof by the land use commission pursuant to section 205-A, the county may use the county-initiated, quasi-legislative boundary amendment procedure set forth in section 205-C to amend the district boundaries of lands covered by the plan or portions thereof that have been certified by the land use commission."

SECTION 4. 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] consistent with and shall implement a long-range [,] comprehensive [general] plan prepared or being prepared in accordance with part IV of chapter 226 to guide the overall future development of the county. Zoning shall be one of the tools available to the county to put the [general] comprehensive 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 chapters 205, 205A, 226, and 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:

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 circuit 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 insure 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 premise 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."

SECTION 5. Section 205-3.1, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(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 land use commission pursuant to section 205-4. A land use district boundary amendment shall be permitted under this section only if the subject land is situated in a geographic area covered by a county general, community, or development plan that was adopted by a county council more than five years prior to the filing date. Boundary amendments for lands situated within the geographic area covered by a county general, community, or development plan that has been adopted less than five years prior to the filing date of the petition shall only be permitted as part of a county application for land use district boundary amendments pursuant to section 205-C, with the exception of petitions filed during the interim transition period, as described in section 7 of this Act.

(b) [Any] Except as provided herein, 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 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."

SECTION 6. Section 205-4, Hawaii Revised Statutes, is amended 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[.], provided that a land use district boundary amendment shall be permitted under this section only if the subject land is situated in a geographic area covered by a county general, community, or development plan that was adopted by a county council more than five years prior to the filing date. Boundary amendments for lands situated within the geographic area covered by a county general, community, or development plan that has been adopted less than five years prior to the filing date of the petition shall only be permitted as part of a county application for land use district boundary amendments pursuant to section 205-C, with the exception of petitions filed during the interim transition period as described in section 7 of this Act. 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 all petitions for changes in district boundaries involving lands greater than fifteen acres in the agricultural, rural, and urban districts, except as provided in section 201G-118. The land use commission shall adopt rules pursuant to chapter 91 to implement section 201G-118."

(b) Upon proper filing of a petition pursuant to subsection (a) the commission shall, within not less than sixty and not more than one hundred and eighty days, conduct a hearing on the appropriate island in accordance with the provisions of sections 91-9, 91-10, 91-11, 91-12, and 91-13, as applicable.

(c) Any other provision of law to the contrary notwithstanding, notice of the hearing together with a copy of the petition shall be served on the county planning commission and the county 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 at least once in the county in which the land sought to be redistricted is situated as well as once statewide at least thirty days in advance of the hearing. The notice shall comply with section 91-9, shall indicate the time and place that maps showing the proposed district boundary may be inspected, and further shall inform all interested persons of their rights under subsection (e).

(d) Any other provisions of law to the contrary notwithstanding, prior to hearing of a petition the commission and its staff may view and inspect any land which is the subject of the petition.

(e) Any other provisions of law to the contrary notwithstanding, agencies and persons may intervene in the proceedings in accordance with this subsection.

(f) Together with other witnesses that the commission may desire to hear at the hearing, it shall allow a representative of a citizen or a community group to testify who indicates a desire to express the view of such citizen or community group concerning the proposed boundary change.

(g) Within a period of not more than three hundred sixty- five days after the proper filing of a petition, unless otherwise ordered by a court, or unless a time extension, which shall not exceed ninety days, is established by a two-thirds vote of the members of the commission, the commission, by filing findings of fact and conclusions of law, shall act to approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of this chapter or the policies and criteria established pursuant to section 205-17 or to assure substantial compliance with representations made by the petitioner in seeking a boundary change. The commission may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. Such conditions, if any, shall run with the land and be recorded in the bureau of conveyances.

(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.

(i) Parties to proceedings to amend land use district boundaries may obtain judicial review thereof in the manner set forth in section 91-14, provided that the court may also reverse or modify a finding of the commission if such finding appears to be contrary to the clear preponderance of the evidence.

(j) At the hearing, all parties may enter into appropriate stipulations as to findings of fact, conclusions of law, and conditions of reclassification concerning the proposed boundary change. The commission may but shall not be required to approve such stipulations based on the evidence adduced.

(k) 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 regardless of the date of adoption of the county general, community or development plan for up to three years after the effective date of this Act."

SECTION 7. Section 226-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""County comprehensive plan" means the county general plan or the county general plan and the set of development or community plans for regions within a county that implement the objectives and policies of the county general plan, as defined by county charter or ordinance and adopted by the legislative body of each county."

SECTION 8. Section 226-52, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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 decisionmaking 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] comprehensive plans that have been formulated and adopted by the county in accordance with the standards for plan content and process contained in part A of this chapter. County comprehensive plans shall indicate desired population and physical development patterns for each county and regions within each county. In addition, county [general] comprehensive plans [or development plans] shall address the unique problems and needs of each county and regions within each county. County [general] comprehensive 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] comprehensive 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 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."

SECTION 9. Section 226-58, Hawaii Revised Statutes, is repealed.

["§226-58 County general plans. (a) The county general plans and development plans shall be formulated with input from the state and county agencies as well as the general public.

County general plans or development plans 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. The county general plans or development plans shall further define applicable provisions of this chapter; provided that any amendment to the county general plan of each county shall not be contrary to the county charter. The formulation, amendment, and implementation of county general plans or development plans shall take into consideration statewide objectives, policies, and programs stipulated in state functional plans approved in consonance with this chapter.

(b) County general plans shall be formulated on the basis of sound rationale, data, analyses, and input from state and county agencies and the general public, and contain objectives and policies as required by the charter of each county. Further, the county general plans should:

(1) Contain objectives to be achieved and policies to be pursued with respect to population density, land use, transportation system location, public and community facility locations, water and sewage system locations, visitor destinations, urban design, and all other matters necessary for the coordinated development of the county and regions within the county; and

(2) Contain implementation priorities and actions to carry out policies to include but not be limited to land use maps, programs, projects, regulatory measures, standards and principles, and interagency coordination provisions."]

SECTION 10. The office of planning, in consultation with the land use commission and county planning departments, shall prepare and implement a one-year work program to formulate guidelines, standards, rules, and additional transitional programs necessary to effectuate the provisions of this Act by June 30, 2007. The land use commission shall prepare rules as needed for section 2 of this Act by June 30, 2007.

SECTION 11. If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are severable.

SECTION 12. Sections 46, 205-, 205A-, 226-, and 343-, Hawaii Revised Statutes, are amended by substituting the words "county comprehensive plan", or like term, wherever the words "county general plan", "county development plan", or "county community plan", or like term, appears, as the context requires.

SECTION 13. In codifying the new sections added to chapters 205 and 226, Hawaii Revised Statutes the revisor of statutes shall substitute appropriate part numbers and section numbers for the letters used in the new parts and sections designated in the Act.

SECTION 14. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval.