§205-6  Special permit.  (a)  Subject to
this section, the county planning commission may permit certain unusual and
reasonable uses within agricultural and rural districts other than those for
which the district is classified.  Any person who desires to use the person's
land within an agricultural or rural district other than for an agricultural or
rural use, as the case may be, may petition the planning commission of the
county within which the person's land is located for permission to use the
person's land in the manner desired.  Each county may establish the appropriate
fee for processing the special permit petition.  Copies of the special permit
petition shall be forwarded to the land use commission, the office of planning,
and the department of agriculture for their review and comment.



(b)  The planning commission, upon consultation
with the central coordinating agency, except in counties where the planning
commission is advisory only in which case the central coordinating agency,
shall establish by rule or regulation, the time within which the hearing and
action on petition for special permit shall occur.  The county planning
commission shall notify the land use commission and such persons and agencies
that may have an interest in the subject matter of the time and place of the
hearing.



(c)  The county planning commission may, under
such protective restrictions as may be deemed necessary, permit the desired
use, but only when the use would promote the effectiveness and objectives of
this chapter; provided that a use proposed for designated important
agricultural lands shall not conflict with any part of this chapter.  A
decision in favor of the applicant shall require a majority vote of the total
membership of the county planning commission.



(d)  Special permits for land the area of which
is greater than fifteen acres or for lands designated as important agricultural
lands shall be subject to approval by the land use commission.  The land use
commission may impose additional restrictions as may be necessary or
appropriate in granting the approval, including the adherence to
representations made by the applicant.



(e)  A copy of the decision, together with the
complete record of the proceeding before the county planning commission on all
special permit requests involving a land area greater than fifteen acres or for
lands designated as important agricultural lands, shall be transmitted to the
land use commission within sixty days after the decision is rendered.



Within forty-five days after receipt of the
complete record from the county planning commission, the land use commission
shall act to approve, approve with modification, or deny the petition.  A
denial either by the county planning commission or by the land use commission,
or a modification by the land use commission, as the case may be, of the
desired use shall be appealable to the circuit court of the circuit in which
the land is situated and shall be made pursuant to the Hawaii rules of civil
procedure.



(f)  Land uses substantially involving or
supporting educational ecotourism, related to the preservation of native
Hawaiian endangered, threatened, proposed, and candidate species, that are
allowed in an approved habitat conservation plan under section 195D-21 or safe
harbor agreement under section 195D-22, which are not identified as permissible
uses within the agricultural district under sections 205-2 and 205-4.5, may be
permitted in the agricultural district by special permit under this section, on
lands with soils classified by the land study bureau's detailed land
classification as overall (master) productivity rating class C, D, E, or U. [L
1963, c 205, pt of §2; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1; am L
1976, c 4, §2; am L 1978, c 166, §1; am L 1979, c 221, §1; gen ch 1985; am L 1998,
c 237, §6; am L 2005, c 183, §5]



 



Rules of Court



 



  Appeal to circuit court, see HRCP rule 72.



 



Attorney General Opinions



 



  Special permits cannot be granted to authorize uses which
have effect of making boundary change or creating new district.  Att. Gen. Op.
63-37.



  Authority of land use commission to modify permit approved by
county commission discussed.  Att. Gen. Op. 68-30.



  Land use commission is not authorized to review county
planning commission's denial of request for modification of special permit. 
Att. Gen. Op. 77-4.



 



Law Journals and Reviews



 



  "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



 



  Where plaintiffs alleged violations of Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA) and made other claims based on
county planning commission's denial of a special use permit sought under this
section:  among other things, no Eleventh Amendment immunity for the county;
RLUIPA, assuming it was constitutional, did not facially invalidate Hawaii's
land use law; strict scrutiny test would apply in assessing county's past
actions in further proceedings in the case.  229 F. Supp. 2d 1056.



  Former provision requiring that a public hearing on an
application for a special permit be held within one hundred twenty days was
directory not mandatory.  62 H. 666, 619 P.2d 95.



  Validity of attaching conditions for approval of special
permit.  62 H. 666, 619 P.2d 95.



  Recreational theme park on agricultural land was not
"unusual and reasonable use" which would qualify for special permit. 
64 H. 265, 639 P.2d 1079.



  "Communications equipment buildings" and
"utility lines" in §205-4.5(a)(7) do not encompass "telecommunications
antennas" or "transmission antennas" such as a cellular
telephone tower; public utility thus had to apply for a special permit under
this section to place the tower in a state agricultural district.  90 H. 384,
978 P.2d 822.