HB116 SD1

SECTION 1. The legislature finds that wireless communications have become an integral part of the daily lives of millions of Americans. They play an important role in enabling community economic development opportunities, improving communications among family and friends, and allowing rapid responses to accidents and emergency situations. Wireless customers demand and deserve adequate coverage and sufficient capacity on wireless networks to keep pace with their needs. Part of the challenge of providing improved services to the public is ensuring an efficient application and approval process for new wireless facilities.

The purpose of this Act is to ensure:

(1) The safe and efficient integration of facilities necessary for the provision of advanced wireless communications services; and

(2) The ready availability of reliable wireless service to the public and government agencies and first-responders, with the intention of furthering public safety and general welfare.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

§ -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Antenna" means communications equipment that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services.

"Application" means a formal request submitted to the local authority to construct or modify a wireless support structure or a wireless facility.

"Authority" means any state or county planning commission or any county council that has adopted planning and zoning regulations for all or the majority of land uses within the jurisdiction.

"Building permit" means an official administrative authorization issued by the proper authority prior to beginning construction of any new or existing support structure.

"Collocation" means the placement or installation of wireless facilities on existing structures, including towers, buildings, and water tanks, in a manner that negates the need to construct a new free-standing support structure such as a tower.

"Distributed antenna system" means a group of antennas separated in space to provide coverage over the same area as a single antenna, but with reduced total power.

"Existing tower" means a free-standing support structure constructed prior to the enactment of this Act that is used to provide wireless services.

"Wireless facility" means the set of equipment and network components, exclusive of the underlying support structure or tower, including but not limited to antennas, transmitters, receivers base stations, power supplies cabling, and associated equipment necessary to provide wireless services to a discrete geographic area.

"Wireless support structure" means a free-standing structure, such as a monopole or tower designed to support wireless facilities.

§ -2 Construction of new wireless facilities and support structures. (a) An authority may plan for and regulate the siting of wireless communications facilities in accordance with state and county planning or zoning regulations and in conformity with this chapter.

(b) Any entity that is engaged in the business of providing wireless telecommunications services or the wireless telecommunications infrastructure and that proposes to construct a wireless telecommunications support structure shall:

(1) Submit to the authority the necessary copies and attachments of the applicant's completed application to construct a wireless telecommunications support structure; and

(2) Comply with any state and county laws, ordinances, and rules concerning land use and the appropriate permitting processes, subject to the limitations imposed by this chapter.

(d) After an applicant's submission of a completed application to construct a wireless support structure, the authority shall:

(1) Review the completed application;

(2) Make its final decision to approve or disapprove the application; and

(3) Advise the applicant in writing of its final decision within ninety days from the date that the application is deemed complete or by a date certain specified in a written agreement with the applicant.

(e) A party aggrieved by the final decision denying an application under this chapter may bring an action for review in any court of competent jurisdiction.

§ -3 Collocation of antennas and equipment. (a) In deploying or expanding commercial and public safety wireless networks, the collocation of new antennas and equipment on existing support structures, including buildings, water towers, or existing conforming or nonconforming communication towers, is preferred to constructing new towers or support structures.

(b) An application for a collocation on an existing structure may be subject to the issuance of a building permit and any fee associated with such a permit.

(c) An application to construct a new wireless support structure may be denied based upon the applicant's unwillingness to evaluate the reasonable feasibility of collocating new antennas and equipment on an existing structure or structures; provided that an application may not be denied if evidence is provided that collocation is technically infeasible or unduly economically burdensome to the wireless service provider.

§ -4 Limitations. A permitting authority shall not:

(1) Impose environmental testing, sampling, or monitoring requirements, or other compliance measures for radio frequency emissions on wireless facilities that are categorically excluded under the Federal Communications Commission's rules for radio frequency emissions pursuant to 47 Code of Federal Regulations section 1.l307(b)(l);

(2) Institute a moratorium on the construction of new wireless support structures lasting over ninety days or institute any moratorium within six months of the conclusion of any previous moratorium on the construction of wireless support structures;

(3) Charge an application fee, consulting fee, or other fee associated with the submission, review, processing, or approval of a permit that is not required for other types of commercial development; provided that any fees imposed for providing review or technical consultation with regard to an application shall not exceed what is usual and customary, and in no case shall total charges and fees exceed $ for a collocation or $ for the placement and construction of a new wireless facility or support structure;

(4) Permit third-party consultants to charge wireless telecommunications service providers for any travel expenses incurred in the consultant's review of wireless telecommunications permits;

(5) Establish or enforce rules, or procedures for radio frequency signal strength or the adequacy of service quality in the consideration of any application for the construction, modification, maintenance, or operation of a wireless facility or support structure;

(6) Impose surety requirements, including bonds, escrow deposits, or any other type of financial surety, to ensure that abandoned or unused facilities can be removed unless similar requirements are allowed for permits for other types of commercial development or land use. If surety requirements are imposed, they shall be competitively neutral, nondiscriminatory, reasonable in amount, and commensurate with the historical record for similar requirements;

(7) Prohibit the placement of emergency power systems that comply with federal and state environmental requirements;

(8) Discriminate on the basis of the ownership of any property, structure, or tower when adopting rules or procedures for siting wireless facilities or for evaluating applications for collocations or new wireless facilities or support structures;

(9) Condition the approval of a new wireless support structure or collocation on the agreement of the structure owner to provide space on the structure for governmental services at less than the market rate;

(10) Limit the duration of any permit for a wireless facility or support structure when evaluating an application for a wireless facility or collocation; or

(11) Require an applicant to construct a distributed antenna system instead of constructing a new wireless support structure or collocating on an existing structure, such as an existing tower or building."

SECTION 3. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be restricted to the following permitted uses:

(1) Cultivation of crops, including but not limited to flowers, vegetables, foliage, fruits, forage, and timber;

(2) Game and fish propagation;

(3) Raising of livestock, including but not limited to poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;

(4) Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry. "Farm dwelling", as used in this paragraph, means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;

(5) Public institutions and buildings that are necessary for agricultural practices;

(6) Public and private open area types of recreational uses, including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;

(7) Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, treatment plants, corporation yards, or other similar structures;

(8) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

(9) Roadside stands for the sale of agricultural products grown on the premises;

(10) Buildings and uses, including but not limited to mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the above mentioned uses and are permitted under section 205-2(d);

(11) Agricultural parks;

(12) Plantation community subdivisions, which as used in this paragraph means a subdivision or cluster of employee housing, community buildings, and acreage established on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation and in residential use by employees or former employees of the plantation; provided that the employees or former employees shall have a property interest in the land;

[[](13)[]] Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165‑2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5; [or]

[[](14)[]] Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that such facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land[.]; or

(15) Wireless communication antennas; as defined in section -1."

SECTION 4. If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	116
TWENTY-FOURTH LEGISLATURE, 2007		H.D. 2
STATE OF HAWAII		S.D. 1