§205-4  Amendments to district boundaries
involving land areas greater than fifteen acres.  (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.  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 lands greater than
fifteen acres in the agricultural, rural, and urban districts, except as
provided in section 201H-38.  The land use commission shall adopt rules
pursuant to chapter 91 to implement section 201H-38.



(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.



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



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



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



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



(5)  The commission shall pursuant to chapter 91 adopt
rules governing the intervention of agencies and persons under this
subsection.  Such rules shall without limitation establish:  (A) the
information to be set forth in any application for intervention; (B) time
limits within which such applications shall be filed; and (C) reasonable filing
fees to accompany such applications.



(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. [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, c
183, §4; am L 2007, c 249, §15]



 



Attorney General Opinions



 



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



  Proposal to subdivide agricultural land into agriculturally
unfeasible 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:  Is
Affordable Housing Possible in Hawaii?  10 HBJ No. 13, at pg. 37.



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



 



Case Notes



 



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



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



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



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



  Where landlord seeks to evict tenants who exercise their
rights to appear and testify at a public hearing, defense of retaliatory
eviction 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 was
more properly the subject of a boundary amendment under this section, rather
than a special permit.  64 H. 265, 639 P.2d 1079.