§205-5.1  Geothermal resource subzones. (a)  Geothermal resource subzones may be designated within the urban, rural,agricultural, and conservation land use districts established under section205-2.  Only those areas designated as geothermal resource subzones may beutilized for geothermal development activities in addition to those usespermitted in each land use district under this chapter.  Geothermal developmentactivities may be permitted within urban, rural, agricultural, and conservationland use districts in accordance with this chapter.  "Geothermaldevelopment activities" means the exploration, development, or productionof electrical energy from geothermal resources and direct use applications ofgeothermal resources; provided that within the urban, rural, and agriculturalland use districts, direct use applications of geothermal resources arepermitted both within and outside of areas designated as geothermal resourcesubzones pursuant to section 205-5.2 if such direct use applications are in conformancewith all other applicable state and county land use regulations and are inconformance with this chapter.

(b)  The board of land and natural resourcesshall have the responsibility for designating areas as geothermal resourcesubzones as provided under section 205-5.2; except that the total area withinan agricultural district which is the subject of a geothermal mining leaseapproved by the board of land and natural resources, any part or all of whicharea is the subject of a special use permit issued by the county for geothermaldevelopment activities, on or before May 25, 1984, is designated as ageothermal resource subzone for the duration of the lease.  The designation ofgeothermal resource subzones shall be governed exclusively by this section andsection 205-5.2, except as provided therein.  The board shall adopt, amend, orrepeal rules related to its authority to designate and regulate the use ofgeothermal resource subzones in the manner provided under chapter 91.

The authority of the board to designategeothermal resource subzones shall be an exception to those provisions of thischapter and of section 46-4 authorizing the land use commission and thecounties to establish and modify land use districts and to regulate usestherein.  The provisions of this section shall not abrogate nor supersede theprovisions of chapters 182, 183, and 183C.

(c)  The use of an area for geothermaldevelopment activities within a geothermal resource subzone shall be governedby the board within the conservation district and, except as herein provided,by state and county statutes, ordinances, and rules not inconsistent herewithwithin agricultural, rural, and urban districts, except that no land usecommission approval or special use permit procedures under section 205-6 shallbe required for the use of such subzones.  In the absence of provisions in thecounty general plan and zoning ordinances specifically relating to the use andlocation of geothermal development activities in an agricultural, rural, or urbandistrict, the appropriate county authority may issue a geothermal resourcepermit to allow geothermal development activities.  "Appropriate countyauthority" means the county planning commission unless some other agencyor body is designated by ordinance of the county council.  Such uses as arepermitted by county general plan and zoning ordinances, by the appropriatecounty authority, shall be deemed to be reasonable and to promote theeffectiveness and objectives of this chapter.  Chapters 177, 178, 182, 183,183C, 205A, 226, 342, and 343 shall apply as appropriate.  If provisions in thecounty general plan and zoning ordinances specifically relate to the use andlocation of geothermal development activities in an agricultural, rural, orurban district, the provisions shall require the appropriate county authorityto conduct a public hearing on any application for a geothermal resource permitto determine whether the use is in conformity with the criteria specified insubsection (e) for granting geothermal resource permits; provided that withinthe urban, rural, and agricultural land use districts, direct use applicationsof geothermal resources are permitted without any application for a geothermalresource permit both within and outside of areas designated as geothermalresource subzones pursuant to section 205-5.2 if such direct use applicationsare in conformance with all other applicable state and county land useregulations and are in conformance with this chapter.

(d)  If geothermal development activities areproposed within a conservation district, with an application with all requireddata, the board of land and natural resources shall conduct a public hearingand, upon appropriate request for mediation from any party who submittedcomment at the public hearing, the board shall appoint a mediator within fivedays.  The board shall require the parties to participate in mediation.  Themediator shall not be a member of the board or its staff.  The mediation periodshall not extend beyond thirty days after the date mediation started, except byorder of the board.  Mediation shall be confined to the issues raised at thepublic hearing by the party requesting mediation.  The mediator will submit awritten recommendation to the board, based upon any mediation agreement reachedbetween the parties for consideration by the board in its final decision.  Ifthere is no mediation agreement, the board may have a second public hearing toreceive additional comment related to the mediation issues.  Within ten daysafter the second public hearing, the board may receive additional writtencomment on the issues raised at the second public hearing from any party.

The board shall consider the comments raised atthe second hearing before rendering its final decision.  The board shall thendetermine whether, pursuant to board rules, a conservation district use permitshall be granted to authorize the geothermal development activities describedin the application.  The board shall grant a conservation district use permitif it finds that the applicant has demonstrated that:

(1)  The desired uses would not have unreasonableadverse health, environmental, or socio-economic effects on residents orsurrounding property; and

(2)  The desired uses would not unreasonably burden publicagencies to provide roads and streets, sewers, water, drainage, and police andfire protection; or

(3)  There are reasonable measures available tomitigate the unreasonable adverse effects or burdens referred to above.

A decision shall be made by the board withinsix months of the date a complete application was filed; provided that the timelimit may be extended by agreement between the applicant and the board.

(e)  If geothermal development activities areproposed within agricultural, rural, or urban districts and such proposedactivities are not permitted uses pursuant to county general plan and zoningordinances, then after receipt of a properly filed and completed application,including all required supporting data, the appropriate county authority shallconduct a public hearing.  Upon appropriate request for mediation from anyparty who submitted comment at the public hearing, the county authority shallappoint a mediator within five days.  The county authority shall require theparties to participate in mediation.  The mediator shall not be an employee ofany county agency or its staff.  The mediation period shall not extend beyondthirty days after mediation started, except by order of the county authority. Mediation shall be confined to the issues raised at the public hearing by theparty requesting mediation.  The mediator will submit a written recommendationto the county authority, based upon any mediation agreement reached between theparties for consideration by the county authority in its final decision.  Ifthere is no mediation agreement, the county authority may have a second publichearing to receive additional comment related to the mediation issues.  Withinten days after the second public hearing, the county authority may receive additionalwritten comment on the issues raised at the second public hearing from anyparty.

The county authority shall consider thecomments raised at the second hearing before rendering its final decision.  Thecounty authority shall then determine whether a geothermal resource permitshall be granted to authorize the geothermal development activities describedin the application.  The appropriate county authority shall grant a geothermalresource permit if it finds that applicant has demonstrated that:

(1)  The desired uses would not have unreasonableadverse health, environmental, or socio-economic effects on residents orsurrounding property;

(2)  The desired uses would not unreasonably burdenpublic agencies to provide roads and streets, sewers, water, drainage, schoolimprovements, and police and fire protection; and

(3)  That there are reasonable measures available tomitigate the unreasonable adverse effects or burdens referred to above.

Unless there is a mutual agreement to extend, adecision shall be made on the application by the appropriate county authoritywithin six months of the date a complete application was filed; provided thatthe time limit may be extended by agreement between the applicant and theappropriate county authority.

(f)  Requests for mediation shall be receivedby the board or county authority within five days after the close of theinitial public hearing.  Within five days thereafter, the board or countyauthority shall appoint a mediator.  Any person submitting an appropriaterequest for mediation shall be notified by the board or county authority of thedate, time, and place of the mediation conference by depositing such notice inthe mail to the return address stated on the request for mediation.  The noticeshall be mailed no later than ten days before the start of the mediationconference.  The conference shall be held on the island where the publichearing is held.

(g)  Any decision made by an appropriate countyauthority or the board pursuant to a public hearing or hearings under thissection may be appealed directly on the record to the intermediate appellatecourt for final decision and shall not be subject to a contested case hearing. Sections 91-14(b) and (g) shall govern the appeal, notwithstanding the lack ofa contested case hearing on the matter.  The appropriate county authority orthe board shall provide a court reporter to produce a transcript of theproceedings at all public hearings under this section for purposes of anappeal.

(h)  For the purposes of an appeal from adecision from a public hearing, the record shall include:

(1)  The application for the permit and allaccompanying supporting documents, including but not limited to: reports,studies, affidavits, statements, and exhibits.

(2)  Staff recommendations submitted to the members ofthe agency in consideration of the application.

(3)  Oral and written public testimony received at thepublic hearings.

(4)  Written transcripts of the proceedings at thepublic hearings.

(5)  The written recommendation received by the agencyfrom the mediator with any mediation agreement.

(6)  A statement of relevant matters noticed by theagency members at the public hearings.

(7)  The written decision of the agency issued inconnection with the application and public hearings.

(8)  Other documents required by the board or countyauthority. [L 1983, c 296, pt of §3; am L 1984, c 151, §2; am L 1985, c 226,§1; am L 1986, c 167, §1, c 187, §1, and c 290, §1; am L 1987, c 372, §§2, 3and c 378, §1; am L 1995, c 69, §9; am L 2006, c 91, §1]

 

Note

 

  Chapters 177, 178,and 342 referred to in text are repealed.

 

Case Notes

 

  Constitutional eventhough not subject to a contested case hearing; purpose is to assist in thelocation of geothermal resources development in areas of the lowest potentialenvironmental impact.  8 H. App. 183, 797 P.2d 59.

  Satisfies the United States Constitution.  8 H. App. 203, 797 P.2d 69.

  Aggrieved party wasnot barred by exhaustion of remedies doctrine from applying to court for reliefwhere section's appeal provisions were inapplicable and no other administrativerecourse was afforded.  9 H. App. 143, 827 P.2d 1149.