§205-6  Special permit.  (a)  Subject tothis section, the county planning commission may permit certain unusual andreasonable uses within agricultural and rural districts other than those forwhich the district is classified.  Any person who desires to use the person'sland within an agricultural or rural district other than for an agricultural orrural use, as the case may be, may petition the planning commission of thecounty within which the person's land is located for permission to use theperson's land in the manner desired.  Each county may establish the appropriatefee for processing the special permit petition.  Copies of the special permitpetition 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 consultationwith the central coordinating agency, except in counties where the planningcommission is advisory only in which case the central coordinating agency,shall establish by rule or regulation, the time within which the hearing andaction on petition for special permit shall occur.  The county planningcommission shall notify the land use commission and such persons and agenciesthat may have an interest in the subject matter of the time and place of thehearing.

(c)  The county planning commission may, undersuch protective restrictions as may be deemed necessary, permit the desireduse, but only when the use would promote the effectiveness and objectives ofthis chapter; provided that a use proposed for designated importantagricultural lands shall not conflict with any part of this chapter.  Adecision in favor of the applicant shall require a majority vote of the totalmembership of the county planning commission.

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

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

Within forty-five days after receipt of thecomplete record from the county planning commission, the land use commissionshall act to approve, approve with modification, or deny the petition.  Adenial 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 thedesired use shall be appealable to the circuit court of the circuit in whichthe land is situated and shall be made pursuant to the Hawaii rules of civilprocedure.

(f)  Land uses substantially involving orsupporting educational ecotourism, related to the preservation of nativeHawaiian endangered, threatened, proposed, and candidate species, that areallowed in an approved habitat conservation plan under section 195D-21 or safeharbor agreement under section 195D-22, which are not identified as permissibleuses within the agricultural district under sections 205-2 and 205-4.5, may bepermitted in the agricultural district by special permit under this section, onlands with soils classified by the land study bureau's detailed landclassification as overall (master) productivity rating class C, D, E, or U. [L1963, c 205, pt of §2; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1; am L1976, 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 whichhave effect of making boundary change or creating new district.  Att. Gen. Op.63-37.

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

  Land use commission is not authorized to review countyplanning 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 ofAgricultural Subdivisions:"  Addressing an Impermissible Use of Hawai‘i'sAgricultural District.  25 UH L. Rev. 199.

 

Case Notes

 

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

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

  Validity of attaching conditions for approval of specialpermit.  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 "telecommunicationsantennas" or "transmission antennas" such as a cellulartelephone tower; public utility thus had to apply for a special permit underthis section to place the tower in a state agricultural district.  90 H. 384,978 P.2d 822.