§205-4  Amendments to district boundariesinvolving land areas greater than fifteen acres.  (a)  Any department oragency of the State, any department or agency of the county in which the landis situated, or any person with a property interest in the land sought to bereclassified, may petition the land use commission for a change in the boundaryof a district.  This section applies to all petitions for changes in districtboundaries of lands within conservation districts, lands designated or soughtto be designated as important agricultural lands, and lands greater thanfifteen acres in the agricultural, rural, and urban districts, except asprovided in section 201H-38.  The land use commission shall adopt rulespursuant to chapter 91 to implement section 201H-38.

(b)  Upon proper filing of a petition pursuantto subsection (a) the commission shall, within not less than sixty and not morethan one hundred and eighty days, conduct a hearing on the appropriate islandin accordance with the provisions of sections 91-9, 91-10, 91-11, 91-12, and91-13, as applicable.

(c)  Any other provision of law to the contrarynotwithstanding, notice of the hearing together with a copy of the petitionshall be served on the county planning commission and the county planningdepartment of the county in which the land is located and all persons with aproperty interest in the land as recorded in the county's real property taxrecords.  In addition, notice of the hearing shall be mailed to all persons whohave made a timely written request for advance notice of boundary amendmentproceedings, and public notice shall be given at least once in the county inwhich the land sought to be redistricted is situated as well as once statewideat least thirty days in advance of the hearing.  The notice shall comply withsection 91-9, shall indicate the time and place that maps showing the proposeddistrict boundary may be inspected, and further shall inform all interestedpersons of their rights under subsection (e).

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

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

(1)  The petitioner, the office of planning, and thecounty planning department shall in every case appear as parties and makerecommendations relative to the proposed boundary change.

(2)  All departments and agencies of the State and ofthe county in which the land is situated shall be admitted as parties upontimely application for intervention.

(3)  All persons who have some property interest inthe land, who lawfully reside on the land, or who otherwise can demonstratethat they will be so directly and immediately affected by the proposed changethat their interest in the proceeding is clearly distinguishable from that ofthe general public shall be admitted as parties upon timely application forintervention.

(4)  All other persons may apply to the commission forleave to intervene as parties.  Leave to intervene shall be freely granted,provided that the commission or its hearing officer if one is appointed maydeny an application to intervene when in the commission's or hearing officer'ssound discretion it appears that: (A) the position of the applicant forintervention concerning the proposed change is substantially the same as theposition of a party already admitted to the proceeding; and (B) the admissionof additional parties will render the proceedings inefficient andunmanageable.  A person whose application to intervene is denied may appealsuch denial to the circuit court pursuant to section 91-14.

(5)  The commission shall pursuant to chapter 91 adoptrules governing the intervention of agencies and persons under thissubsection.  Such rules shall without limitation establish:  (A) theinformation to be set forth in any application for intervention; (B) timelimits within which such applications shall be filed; and (C) reasonable filingfees to accompany such applications.

(f)  Together with other witnesses that thecommission may desire to hear at the hearing, it shall allow a representativeof a citizen or a community group to testify who indicates a desire to expressthe view of such citizen or community group concerning the proposed boundarychange.

(g)  Within a period of not more than threehundred sixty- five days after the proper filing of a petition, unless otherwiseordered by a court, or unless a time extension, which shall not exceed ninetydays, is established by a two-thirds vote of the members of the commission, thecommission, by filing findings of fact and conclusions of law, shall act toapprove the petition, deny the petition, or to modify the petition by imposingconditions necessary to uphold the intent and spirit of this chapter or thepolicies and criteria established pursuant to section 205-17 or to assuresubstantial compliance with representations made by the petitioner in seeking aboundary change.  The commission may provide by condition that absentsubstantial commencement of use of the land in accordance with suchrepresentations, the commission shall issue and serve upon the party bound by thecondition an order to show cause why the property should not revert to itsformer land use classification or be changed to a more appropriateclassification.  Such conditions, if any, shall run with the land and berecorded in the bureau of conveyances.

(h)  No amendment of a land use districtboundary shall be approved unless the commission finds upon the clearpreponderance of the evidence that the proposed boundary is reasonable, notviolative of section 205-2 and part III of this chapter, and consistent withthe policies and criteria established pursuant to sections 205-16 and 205-17. Six affirmative votes of the commission shall be necessary for any boundaryamendment under this section.

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

(j)  At the hearing, all parties may enter intoappropriate stipulations as to findings of fact, conclusions of law, andconditions of reclassification concerning the proposed boundary change.  Thecommission may but shall not be required to approve such stipulations based onthe evidence adduced. [L 1963, c 205, pt of §2; am L 1965, c 32, §2; Supp,§98H-4; HRS §205-4; am L 1972, c 187, §2; am L 1975, c 193, §5; am L 1976, c 4,§1; am L 1985, c 230, §4; am L 1986, c 93, §1; am L 1987, c 336, §7; am L 1988,c 352, §2; am L 1989, c 261, §10; am L 1990, c 261, §1; am L 1995, c 235, §1;am L 1996, c 299, §3; am L 1997, c 350, §15; am L 1998, c 2, §60; am L 2005, c183, §4; am L 2007, c 249, §15]

 

Attorney General Opinions

 

  The commission may be empowered to impose conditions onreclassifications and to impose sanctions for violation of the conditions, andthe conditions may be made to run with the land. Att. Gen. Op. 72-8.

  Proposal to subdivide agricultural land into agriculturallyunfeasible small lots would violate intent of chapter.  Att. Gen. Op. 75-8.

 

Law Journals and Reviews

 

  The Scramble to Protect the American Dream in Paradise:  IsAffordable Housing Possible in Hawaii?  10 HBJ No. 13, at pg. 37.

  "Urban Type Residential Communities in the Guise ofAgricultural Subdivisions:"  Addressing an Impermissible Use of Hawai‘i'sAgricultural District.  25 UH L. Rev. 199.

 

Case Notes

 

  Proceeding for amendment to boundaries challenged byadjoining landowner is a contested case within meaning of §91-1(5).  55 H. 538,524 P.2d 84.

  Provision that commission shall render decision withinforty-five and ninety days after the public hearing is mandatory and decisionrendered after the time period is void.  55 H. 538, 524 P.2d 84.

  The adoption or amendment of boundaries is not a rule-makingprocess within meaning of §91-1(4).  55 H. 538, 524 P.2d 84.

  Person entitled under prior law to petition for change inboundary.  57 H. 84, 549 P.2d 737.

  Where landlord seeks to evict tenants who exercise theirrights to appear and testify at a public hearing, defense of retaliatoryeviction is available.  59 H. 104, 577 P.2d 326.

  Commission rules re intervention and "final order"for purposes of appeal, construed.  63 H. 529, 631 P.2d 588.

  Proposal for recreational theme park on agricultural land wasmore properly the subject of a boundary amendment under this section, ratherthan a special permit.  64 H. 265, 639 P.2d 1079.