Haw. Code R. § 15-15-90 - Imposition of conditions; generally

(a) In approving a petition for boundary amendment, the commission may impose conditions necessary to uphold the general intent and spirit of chapters 205, 205A, and 226, HRS, and to assure substantial compliance with representations made by the petitioner in seeking the boundary amendment.

(b) The commission may request the appropriate state or county agency to report periodically to the commission on the petitioner's compliance with the applicable conditions imposed by the commission.

(c) The commission may require the petitioner to submit periodic reports indicating what progress has been made in complying with any conditions that may have been imposed by the commission.

(d) The commission may require the petitioner to notify the commission of any intent to sell, lease, assign, place in trust, or otherwise voluntarily alter the ownership interests in the property covered by the approved petition.

(e) If a boundary amendment petition filed pursuant to section 205-4, HRS, is approved pursuant to section 91-13.5, HRS, or a petition filed pursuant to section 201H-38, HRS, is deemed approved on the forty-sixth day, the following mandatory conditions shall apply:

(1) Petitioner shall develop the land to which the boundary amendment applies in substantial compliance with the representations made to the commission. Failure to so develop the subject property may result in reversion of the subject property to its former land use_district classification, or change it to a more appropriate land use district classification;

(2) Petitioner shall provide notice to the commission of any intent to sell, lease, assign, place in trust, or otherwise voluntarily alter the ownership interests in the subject property prior to or during development of the subject property, excluding, however, individual lot sales or lease in a residential or industrial development;

(3) Petitioner shall timely provide without any prior notice, annual reports to the commission, state office of planning, and the respective county planning department in connection with the status of the project proposed for the land to which the boundary amendment applies, and petitioner's progress in complying with the conditions imposed. The annual report shall be submitted in a form prescribed by the executive officer of the commission. The annual report shall consist of one original, one paper copy, and one electronic copy, and shall be due prior to or on the anniversary date of the approval of the petition;

(4) The commission may fully or partially release the conditions provided herein as to all or any portion of the land to which the boundary amendment applies upon timely motion and upon the provision of adequate assurance by the_petitioner of satisfaction of the conditions imposed;

(5} Within seven days of the approval date of the petition, the petitioner shall:

(A) Record with the bureau of conveyances a statement that the land to which the boundary amendment applies is subject to conditions imposed herein, by the commission; and

(B) File a certified copy of such recorded statement with the commission;

(6) Petitioner shall record the conditions imposed herein by the commission with the bureau of conveyances pursuant to section 15-15-92;

(7) Petitioner shall provide affordable housing opportunities for low, low-moderate, and moderate income residents of the State of Hawaii to the satisfaction of the respective county in which the land to which the boundary amendment applies is located. The respective county shall consult with the Hawaii housing finance and development corporation prior to its approval of the petitioner's affordable housing plan. The location and distribution of the affordable housing or other provisions for affordable housing shall be under such terms as may be mutually agreeable between the petitioner and the respective county;

(8) Provided that the proposed land uses include residential units, petitioner shall contribute to the development, funding, and construction of public school facilities as determined by and to the satisfaction of the state department of education;

(9) Petitioner shall participate in the funding and construction of adequate wastewater transmission and disposal facilities, on a fair-share basis, as determined by the respective county in which the land to which the boundary amendment applies is located, and the state department of health;

(10) Petitioner shall prepare a traffic impact analysis report. The traffic impact analysis report shall identify the traffic impacts attributable to the proposed development and recommended proposed mitigation measures. The report should also reflect the latest planning efforts for transportation. The report shall be reviewed and approved by the state department of transportation, and the respective county transportation agency in which the land to which the boundary amendment applies is located. Based upon the report, the petitioner may be required to participate on a fair-share basis, in the funding and construction of local and regional transportation improvements and programs, including dedication of rights-of-way as determined by the state department of transportation and the respective county transportation agency in which the land to which the boundary amendment applies is located;

(11) Petitioner shall, on a fair-share basis, fund and construct adequate civil defense measures as determined by the state civil defense agency;

(12) Petitioner shall have an archaeological inventory survey conducted by a professional archaeologist. The findings shall be submitted to the state department of land and natural resources, state historic preservation division in report format for adequacy review and a copy shall be provided to the commission. The state historic preservation division shall verify in writing with a copy provided to the commission that the survey report is acceptable, that significance evaluations are acceptable, and that mitigation commitments are acceptable;

(13) If significant historic sites are present, the petitioner shall submit a detailed historic preservation mitigation plan for review by the state historic preservation division and a copy shall be provided to the commission. This plan may include preservation and archaeological data recovery subplans (detailed scopes of work). The state historic preservation division shall verify in writing with a copy provided to the commission that the plan has been successfully executed;

(14) Petitioner shall stop work in the immediate vicinity should any previously unidentified burials, archaeological or historic sites such as artifacts, marine shell concentrations, charcoal deposits, or stone platforms, pavings or walls be found. Subsequent, work shall proceed upon an archaeological clearance from the state historic preservation division when it determines that mitigative measures have been implemented to its satisfaction;

(15) Petitioner shall participate in an air quality monitoring program as specified by the state department of health;

(16) Petitioner shall be responsible for implementing sound attenuation measures to bring noise levels from vehicular traffic in the affected properties down to a level of fifty-five decibels;

(17) If the petition for a boundary amendment involves prime agricultural lands, petitioner shall be responsible for contributing to the protection of an equivalent amount of prime agricultural lands and related infrastructure via long-term agricultural conservation easements or other agriculturally-related assets as determined by and to the satisfaction of the state department of agriculture;

(18) Petitioner shall notify all prospective buyers of property of the potential odor, noise, and dust pollution if there are any agricultural district lands surrounding the land to which the boundary amendment applies;

(19) To the extent that the petition area is contiguous or adjacent to lands in the State land use agricultural district, any action that would interfere with or restrain farming operations on those lands is prohibited, provided the farming operations are conducted in a manner consistent with generally accepted agricultural and management practices. Petitioner shall notify all prospective developers or purchasers of all or any portion of the petition area or any interest in the petition area, and shall require its purchasers to provide subsequent notification to lessees or tenants that farming operations and practices on adjacent or contiguous land in the State land use agricultural district are protected under chapter 165, HRS, the Hawaii Right to Farm Act. This notice shall be included in any disclosure required for the sale or transfer of all or any portion of the petition area or any interest in the petition area;

(20) Petitioner shall fund the design and construction of drainage improvements required as a result of the development of the land to which the boundary amendment applies to the satisfaction of the appropriate state and county agencies;

(21) Petitioner shall cooperate with the state department of health and the respective county to conform to the program goals and objectives of chapter 342G, HRS, and the respective county's approved integrated solid waste management plans in accordance with a schedule and timeframe satisfactory to the state department of health;

(22) To the extent required by the state department of health, petitioner shall ensure that nearshore, offshore, and deep ocean waters remain in pristine condition;

(23) Petitioner shall participate in the funding and construction of adequate water source, storage, and transmission facilities and improvements to accommodate the proposed uses. Water transmission facilities shall be coordinated and approved by appropriate state and county agencies. The county's water use and development plan shall be amended to reflect changes in water demand forecasts and in water development plans to supply the proposed uses; and

(24) Petitioner shall preserve and protect any established gathering and access rights of native Hawaiians who have customarily and traditionally exercised subsistence, cultural, and religious practices on the land to which to the boundary amendment applies.

(f) If a special permit filed pursuant to section 205-6, HRS, is approved pursuant to section 91-13.5, HRS, the following mandatory conditions shall apply:

(1) All conditions listed under subsection (e);

(2) The proposed use shall be established within one year from the date that the special permit was approved pursuant to section 91-13.5, HRS; and

(3) The special permit shall be valid for a period of five years from the approval date pursuant to section 91-13.5, HRS.

Notes

Haw. Code R. § 15-15-90

[Eff 10/27/86; am and comp 8/16/97; am and comp MAY 08 2000] (Auth: HRS §§ 91-13.5, 205-1, 205-7) (Imp: HRS §§ 91-13.5, 205-4) Am and comp 11/2/2013; comp 10/18/2019