DEPARTMENT OF BUSINESS,ECONOMIC DEVELOPMENT, AND TOURISM

Amendment and Compilation of Chapter 15-15Hawai'i Administrative Rules

October ii, 2013

SUMMARY

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9.

I0.ii.12.13.14.15.16o17.18.19.20.21.22.23.24.25262728293O31.32333435363738

915-15-02915-15-03915-15-05915-15-06915-15-06915-15-07915-15-08915-15-09915-15-10915-15-12915-15-13§15-15-14915-15-15915-15-16915-15-18915-15-19915-15-20915-15-21915-15-22915-15-25915-15-27§i5-15-29915-15-34915-15-34915-15-35915-15-36915-15-37915-15-38915-15-39915-15-40915-15-41915-15-42915-15-44915-15-45915-15-45.915-15-45.§15L15-47§15-15-48

is repealedis amended.is amended.is amended.

.i is amended.is amended.is amended.ms amended.ms amended.is repealed.is amended.is amended.ms amended.ms amended.is amended.is amended.

ms amended.ms amended.ms amended.is amended.ms amended.ms amended.ms amended.

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394O414243444546.4748495O5152535455565758596O6162636465666768697O7172737475767778798O818283848586878889

§15-15-49§15-15-50515-15-50.515-15-50.515-15-51515-15-52515-15-53515-15-54515-15-55515-15-55.515-15-5615-15-57

515-15-58515-15-59515-15-60515-15-61515-15-62515-15-63515-15-64515-15-66515-15-67515-15-68515-15-69515-15-70515-15-70.515-15-74515-15-76515-15-77515-15-78515-15-7915-15-80

515-15-82515-15-82.515-15-83515-15-84515-15-85515-15-85.515-15-86515-15-87515-15-88515-15-89515-15-90515-15-92515-15-93515-15-94515-15-95515-15-95.515-15-96515-15-96.515-15-97515-15-97.

is repealed.is amended.5 is added.6 is added.is amended.is amended.is amended.is amended.is amended.1 is amended.is amendedis amendedis amendedis amendedis amendedis amendedis amended.ms amended.is repealed.is amended.is amended.is repealed.ms amended.ms amended1 is addedms amendedms amendedms amendedms amendedms amendedis amendedms amended1 is addedis amendedis amendedis amended1 isÿaddedms amendedis amendedms amendedis amendedms amendedms amendedms amendedis amendedms amended1 is added.is amended.1 is added.is amended.2 is added.

ii

i

90919293949596979899i00i01102103104105106107108109ii0iii112113

15-15-98§15-15-99§15-15-10015-15-i01

§15-15-10215-15-i0315-15-i0415-15-i0515-15-i06

§15-15-107§15-15-I0715-15-i09

§15-15-11015-15-12015-15-12115-15-122

§15-15-12315-15-124

§15-15-125§15-15-126§15-15-127§15-15-128SubchapterChapter 15

isis

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amended.amended.

amended.amended.repealed.amended.amendedamendedamendedamended

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iii

3081

"HAWAI'I ADMINISTRATIVE RULES

TITLE 15

DEPARTMENT OF BUSINESS,ECONOMIC DEVELOPMENT, AND TOURISM

CHAPTER 15

LAND USE COMMISSION RULES

Subchapter 1 General Provisions

§15-15-01§15-15-02§15-15-03@15-15-04§15-15-05@15-15-06§15-15-06.115-15-07

§15-15-08§15-15-0915-15-i015-15-ii

§1.5-15-12§15-15-13

§15-15-14§15-15-15§15-15-16

PurposeRepealedDefinitionsGrammatical usageOffice and office hoursChairperson and vice-chairpersonHearings officerExecutive officerChief clerkPublic recordsMeetings; generallyExecutive meetingsRepealedQuorum and number Of votes necessary for

a decisionRemoval of persons from meetingsMinutes of meetingsComputation of time

Subchapter 2 Establishment of State Land UseDistricts

§15-15-1715-15-18

15-15-19

§15-15-20

15-15-21

§15-15-22

Districts; district mapsStandards for determining "U" urban

district boundariesStandards for determining "A"

agricultural district boundariesStandards for determining "C"

conservation district boundariesStandards for determining "R" rural

district boundariesInterpretation of district boundaries

)081

Subchapter 3 Permissible Land Uses

§15-15-23§15-15-24

%15-15-25

%15-15-26

%15-15-27

Permissible uses; generallyPermissible uses within the "U" urban

districtPermissible uses within the "A"

agricultural districtPermissible uses within the "C"

conservation districtPermissible uses within the "R" rural

district

Subchapter 4 Non-conformance

%15-15-30%15-15-31%15-15-32

%15-15-33

Statement of intentNon-conforming uses of structures and

landsNon-conforming areas and parcelsCasual or illegal use of landExistence of non-conforming use is a

question of factIllegal uses

Subchapter 5 Proceedings Before the Commission

%15-15-34

%15-15-34.1%15-15-3515-15-3615-15-3715-15-38

§15-15-39%15-15-4015-15-41

%15-15-42§15-15-43

Quasi-judicial proceedings; waiver orsuspension of rules

Verbatim transcriptsAppearance before the commissionDecisions and ordersFiling documents; place and timeFormatVerificationCopiesDefective filingsExtensions of timeAmended pleadings

515-15-44515-15-45515-15-45.1515-15-45.2

Retention of documentsService of processFeesFees Not Refundable

Subchapter 6 Application Requirements forBoundary Amendment Petitions

515-15-46§15-15-47515-15-48515-15-49515-15-50515-15-50.5

515-15-50.6

Standing to initiate boundary amendmentsFilingService of petitionRepealedForm and contents of petitionDismissal of petition for failure toprovide additional information orcorrect defectsWithdrawal or amendment of petition

Subchapter 7 Agency Hearing and Post HearingProcedures

515-15-51

515-15-52

515-15-53

515-15-54515-15-55515-15-55.1515-15-56

515-15-57

515-15-58515-15-59515-15-60515-15-61515-15-62515-15-63515-15-64515-15-65

Notice of hearing for boundary amendmentpetitions

Intervention in proceeding for districtboundary amendments

Intervention in other than districtboundary amendment proceedings orimportant agricultura! landsdesignation proceedings

ConsolidationStatement of positionFiling of exhibitsStipulation as to findings of fact,

conclusions of law, and conditions ofreclassification

Preheating conference; exchange ofexhibits; prehearing conference order

Procedure for witnessesConduct of hearingPresiding officerDisqualificationEx parte communicationsEvidenceRepealedLimiting testimony

3

)081

15-15-66§15-15-6715-15-6815-15-6915-15-70

§15-15-70.115-15-71

§15-15-7215-15-7315-15-74

§15-15-7515-15-76

Removal from proceedingCo-counselRepealedSubpoenasMotionsProtective OrdersSubstitution of partiesCorrection of transcriptPost hearing proceduresDecisionAppealsRe-application by the petitioner for

boundary amendment

Subchapter 8 Decision-Making Criteria forBoundary Amendments

§15-15-77

15-15-78§15-15-79

Decision-making criteria for boundaryamendments

Incremental districtingPerformance time

Subchapter 9 Post Hearing Procedures forHearings Before the Commission

15-15-80§15-15-81§15-15-82§15-15-82.1

§15-15-83§15-15-84

BriefsOra! argumentIssuance of decision and ordersStipulation as to findings of fact,conclusions of law, conditions ofreclassification and decision and orderService of decisions and ordersReconsideration of decision

Subchapter i0 Post Hearing Procedures for HearingConducted by Hearings Officer

15-15-8515-15-85.1

§15-15-86

§15-15-87

@15-15-88§15-15-89§15-i5-89.1

Recommendation of hearings officerProposed decisionException to hearings officer's report

and recommendationsSupport of hearings officer's report and

recommendationsOral argument before the commissionRepealedFinal decision

Subchapter ii Conditions: Filing, Enforcement,Modification, Deletion

§15-15-90§15-15-91@15-15-92

§15-15-93

§15-15-94

Imposition of conditions; generallyApplicabilityFiling procedure for conditions imposedby the commissionEnforcement of conditions,

representations, or commitmentsModification or deletion of conditions

or orders

SubchaPter 12 Special Permits

§15-15-95

15-15-95.1§15-15-96

§15-15-96ol

Petition before county planningcommission

Applicability of subchapter 5Decision and order by the land use

commissionModification of special permit

Subchapter 13 Government Sponsored HousingProjects

§15-15-97

15-15-97.1

Procedure for processing petitions forhousing projects under section 201H-

38, HRSRepealed

Subchapter 14 Declaratory Orders

§15-15-98§15-15-99

§15-15-100§15-15-101

15-15-i0215-15-i03

§15-15-104

Who may petitionPetition for declaratory Order; form and

contentsDeclaratory orders; commission actionDeclaratory orders; dismissal of

petitionRepealedDeclaratory orders; request for hearingApplicability of declaratory order

Subchapter 15 Rulemaking Proceedings

§15-15-105 Initiation of rulemaking proceedings§15-15-106 Rulemaking; form and contents of

5

3081

j

15-15-i0715-15-i07°i15-15-i0815-15-i09

§15-15-110

petitionRulemaking; action on petitionCommission actionRulemaking; notice of public hearingRule'making; conduct of public hearingEmergency rulemaking

Subchapter 16 Land Use District Boundaries

@15-15-iii Land use district boundaries

$15-15-112 to 15-15-119 reserved

Subchapter 17 Important Agricultural Lands

15-15-120

15-15-12115-15-122

15-15-12315-15-124

15-15-125

15-15-126

15-15-127

15-15-128

Criteria and procedures for theidentification of importantagricultural lands

Petition by farmer or landownerPetition by farmer or landowner for

designation of importantagricultural land and urban, ruralor conservation reclassification

Adherence to chapter 343, HRSPrivate landowner credits in important

agricultural land proceedingCounty identification of important

agricultural landsCriteria for designation of lands as

important agricultural landspursuant to county recommendation

Standards and criteria for thereclassification or rezoning ofimportant agricultural lands

Periodic review and amendment ofimportant agricultural lands maps

Subchapter 18 (Repealed)

Historical Note: This chapter is basedsubstantially upon Rules of Practice and Procedure,Part I of the land use commission [Elf. 4/21/62; am andten. 8/4/69; am and ten. 1/5/75; am and ten. 12/21/75;am 3/27/77; R I0/27/86] and State Land Use DistrictRegulations, Part II of the land use commission [Eff.8/23/64; am and ren. 8/4/69; am and ten. 1/5/75; am and

6

3081

ten. 12/21/75; R i0/27/86] and land use commissionrules, chapter 15-15. [Eff 10/27/86; am 3/20/87; am7/12/93; am 3/24/94; am 7/18/94; am and comp 8/16/97;am and comp 5/08/00; am and comp N0V 0 ÿ2013 ]

SUBCHAPTER 1

GENERAL PROVISIONS

§15-15-01 Purpose. This chapter governs thepractice and procedure before the land use commission,and shall be construed to secure the just and efficientdetermination of every proceeding. This chapter shallbe liberally construed to preserve, protec<, andencourage the development and preservation of lands inthe State for those uses to which they are best suitedin the interest of public health and welfare of thepeople of the State of Hawai'i. The rules under thischapter are promulgated pursuant to authority providedby sections 205-1 and 205-7, HRS. [Elf 10/27/86; amand comp 8/16/97; comp 5/8/00; compÿV ÿÿ ](Auth: HRS §§205-1, 205-7) (Imp: )

§15-15-02 REPEALED. [R 8/16/97]

§15-15-03 Definitions. As used in this chapter:"Accessory building or use" means a subordinate

building or use which is incidenta! to and customarywith a permitted use of the land.

"Agency" means each state or county board,commission, department, or office authorized by law tomake rules or to adjudicate contested cases, exceptthose in legislative or judicial branches.

"Agency hearing" refers only to a hQaring held byan agency immediately prior to a judicial review of acontested case as provided in section 91-14, HRS.

"Agricultural park" means the same as in section166-2, HRS.

"Building" means any structure having a roof,including, but not limited to, attached carports andsimilar structures.

"Chairperson" means the chairperson of thecommission.

"Chief clerk" means the person who is responsiblefor receiving, recording, and preserving the records of

7

all matters brought before the commission."Commission" means the land use commission of the

State of Hawai'i."Commissioner" means a member of the commission."Contested case" means a proceeding in which legal

rights, duties, or privileges of specific parties arerequired by law to be determined after an opportunityfor agency hearing.

"District" means an area of land, including landsunderwater, established as an urban, agricultural,conservation, or rural district.

"Dwelling" means a building designed or usedexclusively for single family residential occupancy,but not including house trailer, multi-family unit,mobile home, hotel, or mote!.

"Economic feasibility" means the degree to whichthe market demand for the proposed project,development, or use by the petitioner is accuratelyestimated and appears to besubstantial enough toindicate the probability of a viable endeavor tojustify the boundary amendment.

"Executive officer" means the individual appointedby the commission to be the administrative officer ofthe commission.

"Facsimile" means a document produced by areceiver of signals transmitted over telecommunicationlines, after translating the signals, to produce aduplicate of an original document.

"Farm dwelling" means a single-family dwellinglocated on and used in connection with a farm or whereagricultural activity provides income to the familyoccupying the dwelling.

"Filing" means the submittal of documents with thechief clerk. A document will be considered filed atthe time it is received in the chief clerk's office, asevidenced by the date and time endorsed on the documentby or at the direction of the chief clerk. Unlessotherwise specifically provided in these rules,electronic or facsimile transmission of documents tothe chief clerk or executive officer of the commissiondoes not constitute filing. This definition is to bedistinguished from the definition for "proper filing"for petitions to amend a district boundary.

"Hearings officer" means a person or persons dulydesignated and authorized by the commission to conductproceedings on matters within the jurisdiction of thecommission for purposes of taking testimony and toreport the person's findings and. recommendations to thecommission.

,HRS" means the Hawai'i Revised Statutes.

3081 I LJu

"Intervenor" means a person who properly seeks byapplication to intervene and is entitled to be admittedas a party in any contested case proceeding before thecommission.

"Land" means all tea! property in the Stateincluding areas under water within the boundaries ofthe State.

"Landowner" means a person or party with a feesimple interest in the land.

"Lot" means a single parcel of land of record inthe real property tax records of the county in whichthe land is located.

"Map" means the land use district boundaries mapsof the commission.

"Meeting" means the convening of the commissionfor which a quorum is required in order to make adecision or deliberate toward a decision upon a matterover which the commission has supervision, contro!,jurisdiction, or advisory power.

"Party" means a person named or admitted as aparty or entitled as of right to be admitted as a partyin any contested case proceeding before the commission.

"Person" means any individual, corporation, firm,association, partnership, society, or other lega!entity, and any federal, state, and county departmentor agency.

"Petitioner" means a person who seeks permissionor authorization from the commission in any matter forwhich the commission is authorized to grant relief.

"Planning commission" means the planningcommissions of the various counties, including the cityand county of Honolulu.

"Presiding officer" means any commissioner or ahearings officer duly designated as such. Unlessotherwise designated, the chairperson shall be thepresiding officer.

"Proceeding" means any matter brought before thecommission over which the commission has jurisdictionand shall include, but not be limited to:

1 Petitions for district boundary amendment;2 Petitions for special permit;3 Proceedings for the adoption, amendment, or

repeal of rules under sections 91-3 and205-7, HRS;

4 Petitions for declaratory orders undersection 91-8, HRS;

5 An investigation or review instituted orrequested tobe initiated by the commission;and

6 All other matters in the administration of

J

chapter 205, HRS."Proper filing," as applied in section 205-4, HRS,

means after a petition for district boundary amendmenthas been filed with the chief clerk, and the executiveofficer has made a determination that the petitionconforms to the requirements of section 15-15-50 andaccepts the petition for processing.

"Public records" means the same as "governmentrecords" as defined in chapter 92F, HRS.

"Public institution or building" means anyinstitution or building being used by a federal, state,or county agency for a public purpose.

"Respondent" means a person subject to anystatute, rule, or order administered by the commissionand upon whom an order or notice is issued by thecommission instituting an agency hearing to show cause.

"Shoreline" means the same as in section 205A-I,HRS.

"Single-family dwelling" means a dwelling occupiedexclusively by one family.

"State" means the State of Hawai'i."Structure" means a constructed or erected

material or combination of materials, which requireslocation on the ground, including, but not limited to,buildings, radio towers, sheds, storage bins, fences,and signs.

"Unauthorized ex parte communication" meansprivate communications or arguments with members of thecommission, or its hearings officer as to the merits ofa proceeding with a view towards influencing theoutcome of the petition or proceeding. JEff 10/27/86;am and comp 8/16/97; comp 5/8/00; am and comp

OV 0ÿ5 ] (Auth: HRS §ÿ205-i, 205-7) (Imp: HRS91-2 -1, 205-7)

§15-15-04 Grammatical usage. (a) Words used inthe present tense include the future tense.

(b) The singular number includes the plural; andthe plural, the singular.

(c) The word "shall" is always mandatory.(d) The word "may" is always permissive.(e) Terms not defined in this chapter shall have

the meaning customarily assigned to them. [Elf10/27/8@; comp 8/16/97; comp 5/8/00; comp NOV 0ÿ013 ](Auth: HRS §§205-1, 205-7) (Imp: HRS §ÿ91-2, 205-7)

§15-15-05 Office and office hours. (a) Theoffice of the commission is in Honolulu, Hawai'i. All

i0

]081

communications to the commission, including requestsfor information and submittals, shal! be in writingand, shall be addressed to the commission's office,unless otherwise directed by the commission.

(b) The office of the commission shall be openfrom 7:45 a.mo to 4:30 p.m., Monday through Friday,excepting legal holidays as designated pursuant tosection 8-1, HRS, and any day or any part of a day onor for which the governor has granted administrativeleave in the State, unless otherwise provided bystatute or executive order. [Eff 10/ÿ6; am and comp8/16/97; comp 5/8/00; am and comp--- ÿ201ÿ ](Auth: HRS §§205-1, 205-7) (Imp: HRS §§80-1, 91-2,205-7)

§15-15-06 Chairperson and vice-chairperson. (a)The commissioners shall annually elect a chairpersonand one or more vice-chairpersons from its members.

(b) The chairperson shall have theresponsibilities and duties prescribed in this chapter.

(c) In the absence of the chairperson, the vice-chairperson or vice-chairpersons shall have theresponsibilities and duties of the chairpersonprescribed in this chapter. In case of resignation orincapacity of the chairperson, a vice-chairperson shal!perform such duties as are imposed on the chairpersonuntil such time as the commission shall elect a newchairperson. In the event the chairperson or a vice-chairperson resigns, the commission shal! elect ÿa newchairperson or vice-chairperson, as the case may be, assoon as practicable after such resignation. [Eff10/27/86; am and comp 8/16/97; comp 5/8/00; am and comp

NOV 0 Z2013 ] (iuth: HRS ÿ205-I, 205-7) (Imp. :HRS §§91-2, 205-7)

§15-15-06.1 Hearings officer. (a) Thecommission may appoint a hearings officer pursuant tosection 92-16, HRS.

(b) If for any reason the hearings officerdesignated is unable to complete a hearing, thecommission, without abatement of the proceedings, mayassign the matter to another hearings offÿ0ÿ 2[ÿ andcomp 8/16/97; comp 5/8/00; am and comp] Auth: HRS §ÿ205-i, 205-7) (Imp: HRS §ÿ92-16, 205-1)

§15-15-07 Executive officer.

ii(a) The executive

officer shall be appointed by the commission to serveas the administrative head of the commission staff andhave responsibilities and duties as prescribed by thecommission. The executive officer shal! be directlyresponsible to the commission, and shall have controlof and responsibility for the execution of thecommission's policies, the administration of itsaffairs, and the employment and supervision of itspersonnel, subject to the commission's oversight. Fromtime to time, or as requested, the executive officershall furnish the commission members with suchinformation and make such recommendations as shall benecessary to effect the purposes of the commission andfor the proper administration of its affairs. Theexecutive officer shall develop annua! budgets,authorize and certify payrolls, requisitions, invoices,and other such documents essential to the properadministration of the commission.

(b) The executive officer shall prepare ahearings calendar and the agenda for all meetings andhearings, under the direction of the chairperson.

(c) The executive officer or such other person asmay be authorized by the commission shall certify alldecisions and orders and other actions of thecommission.

(d) The executive officer may be appointed by thecommission to serve as hearings officer.

(e) The executive officer may interpret land usedistrict boundaries at the request of the public.Interpretation of district boundaries shall be done incompliance with section 15-15-22.

(f) The executive officer may conduct thepreheating conference provided under section 15-15-57.[Elf 10/27/86; am and comp 8/16/97; comp 5/8/00; am andcomp NOV 0 2Z013 ] (Authÿ HRS ÿ§205-i, 205-7)

(Imp: HRS §205-1)

§15-15-08 Chief clerk. (a) Under thesupervision of the executive officer, the chief clerkshall have custody of the commission's official recordsand shall be responsible for the maintenance andcustody of the docket files, including the transcriptsand exhibits, the minutes of all of the commission'smeetings and hearings, ÿand all of the commission'sdecisions, orders, opinions, rules, and approved forms.

(b) In addition to other duties, the chief clerkshall maintain a docket file of all proceedings filedwith the commission, including all petitions fordistrict boundary amendments, all applications for

12

special permits, and all petitions for rule-making ordeclaratory ruling filed with the commission, and eachdocket shall be assigned a number. JEff 10/27/86; amand comm 8/16/97; comp 5/8/00; am and compNOV 0 ÿ2813 ](Auth: HRS §§205-1, 205-7) (Imp: ÿ§91-2, 205-1)

§15-15-09 Public records. All public recordsshall be available for inspection at the office of thecommission during regular business hours. Publicinformation on matters within the jurisdiction of thecommission, but which excludes confidentialinformation, may be obtained by inquiring in personduring regular business hours, or by submitting awritten request to the commission. Requests made viafacsimile or electronic mail to the commission areacceptable. Commission staff may respond to any inquiryor request by making the records available at thecommission office. [Elf 10/27/86; am and comp 8/16/97;comp 5/8/00; am and comp NOV 0 2ÿ813 ] (Auth: HRS§§205-1, 205-7) (Imp: HRS §§92F-I, et seq.)

§15-15-10 Meetings; generally. (a) Thecommission may meet and exercise its power in the Stateof Hawai'i. Except as provided in sections 92-4 and92-5, HRS, al! of the commission meetings and hearingsare open to the public. Unless waived by thechairperson, the parliamentary procedure to be utilizedby the commission in the conduct of its meetings andhearings shall be based on the current edition ofRobert's Rules of Order Newly Revised, but only if itdoes not conflict with chapters 91 and 92, HRS, orthese rules.

(b) The commission shal! allow all interestedpersons an opportunity to submit data, views, argumentsor present oral testimony on any agenda item in an openmeeting. The commission may provide for therecordation of all presented oral testimony. Thecommission may impose limitations on the submission ofdata, views, arguments, or ora! testimony in theinterest of preserving due process concerns of thecontested case proceeding.

[Elf 10/27/86; am and comp 8/16/97; am and comp5/8/00; am and comp NOV 0 ÿ2013 ](Auth: HRS §§205-1, 205-7) (Imp: HRS §§91-2, 92-3, 92-7)

15-15-ii Executive meetings.

13(a) The

081 ' t:|m

commission may hold an executive meeting from which thepublic may be excluded, for those purposes permitted bysection 92-4, HRS, but only if there is an affirmativevote of two-thirds of the members present at themeeting; provided the affirmative vote constitutes amajority of the members to which the commission isentitled. The reason for holding the executive meetingshall be publicly announced and the vote of the membersshall be recorded and entered into the minutes of themeeting.

(b) The commission shall not make a decision ordeliberate toward a decision in an executive meeting onmatters not directly related to the purposes specifiedin section 92-5(a), HRS. [Elf 10/27/86; am andcomp 8/16/97; comp 5/8/00; comp NOV 0 ÿ2813 ](Auth: HRS ÿ§205-i, 205-7) (Imp: HRS ÿ92-4, 92-5)

15-15-!2 REPEALED [ÿ0ÿ ÿ ÿ3]

§15-15-13 Quorum and number of votes necessaryfor a decision. (a) Unless otherwise provided by law,a majority of al! the members to which the commissionis entitled shall constitute a quorum to do business,and the concurrence of a majority of all the members towhich the commission is entitled shall be necessary tomake a commission decision valid; provided allapprovals of petitions for boundary amendments undersection 205-4, HRS, shall require six affirmative votesand approvals for special permits under section 205-6,HRS, shall require five affirmative votes. If apetition receives six affirmative votes, any subsequentvote reflecting the commission's' approval of the formof the order shall require five affirmative votes.

(b) If the commission's action to approve apetition for boundary amendment under section 205-4,HRS, fails to obtain six affirmative votes, findings offact, conclusions of law, and decision and orderdenying the petition shall be filed by the commission.If a petition fails to receive six affirmative votes,any subsequent vote reflecting the commission'sapproval of the form of the order shall require fiveaffirmative votes.

(G) If the commission's action to approve apetition for a special permit under section 205-6, HRS,fails to obtain five affirmative votes, findings offact, conclusions of law, and a decision and orderdenying the petition shall be filed by the commission.If a petition fails to receive five affirmative votes,any subsequent vote reflecting the commission's

14

)081

approval of the form of the order shall require fiveaffirmative votes.

(d) In contested cases, commission members whohave not heard and examined all of the evidence mayvote only after the procedures set forth in section91-11, HRS, have been complied with. [Elf 10/27/86; amand comp 8/16/97; am and comp 5/8/00; am and comp

NOV 0ÿ2013 ] (Auth: HRS §ÿ91-13.5, 205-i, 205-7)(Imp: HRS §ÿ91-13.5, 92-15, 205-4, 205-6)

§15-15-14 Removal of persons from meetings. Thepresiding officer or executive officer may remove anyperson who willfully disrupts a meeting or hearing orother proceeding before the commission. [Elf I0/27ÿcomp 8/16/97; am and comp 5/8/00; am and comp NOV__ 13

] (Auth: HRS §§205-1, 205-7) (Imp: HRS §92-3)

§15-15-15 Minutes of meetings. (a) Thecommission shall keep written minutes of all meetings.Unless otherwise required by law, neither a fulltranscript nor a recording of the meeting is required,but the written minutes shall give a true reflection ofthe matters discussed at the meeting and the views ofthe participants. The minutes shall include, but need-not be limited to:

(i The date, time, and place of the meeting;(2 The members of the commission recorded as

either present or absent;3 The substance of all matters proposed,

discussed, or decided, and a record, byindividua! member, of any votes taken; and

4 Any other information that any member of thecommission requests be included or reflectedin the minutes.

(b The minutes shall be public and shall beavailable within thirty days after the meeting exceptwhere the disc!osure would be inconsistent with section92-5, HRS. The commission may withhold publication ofthe minutes of executive meetings solong as their publication would defeat the lawfulpurpose of the executive meeting. JEff 10/27/86; amand comp 8/16/97; comp 5/8/00; am and comp NOV 0 22ÿ13

] (Auth: HRS §§205-1, 205-7) (Imp: HRS §92-9)

@15-15-16 Computation of time. In computing anyperiod of time prescribed by this chapter, by notice,or by any order, or rule of the commission, or any

15

]081

applicable statute, the time begins with the dayfollowing the act, event, or default and includes thelast day of the period unless it is a Saturday, Sunday,or legal holiday, or a day or a part of a day on or forwhich the governor has granted administrative leave inthe State, in which event the period runs until the endof the next day which is not a Saturday, Sunday, orlegal holiday. Unless otherwise specified in theserules, when the prescribed period of time is less thanseven days, Saturdays, Sundays, or lega! holidayswithin the designated period shall not be included inthe computation. [Elf 10/27/86; am and comp 8/16/97;comp 5/8/00; am and comm NOV Oÿ2013 ] (iuth:HRS ÿ205-i, 205-7) (Imp: HRS ÿ91-Z)

SUBCHAPTER 2

ESTABLISHMENT OF STATE LAND USE DISTRICTS

15-15-17 Districts; district maps. (a) Inorder to effectuate the purposes of chapter 205, HRS,all the lands in the State shall be divided and placedinto one of the four land use districts:

(I) "U" urban district;(2) "A" agricultural district;(3) "C" conservation district; or(4) "R" rural district.(b) The boundaries of land use districts are

shown on the maps entitled "Land Use DistrictBoundaries, dated December 20, 1974," as amended,maintained and under the custody of the commission.Not all ocean areas and offshore and outlying islandsof the State in the conservation district are shownwhen deemed unnecessary to do so. [Elf 10/27/86; amand comp 8/16/97; am and comp 5/8/00; and comp

NOV 0 22013 ] (Auth: HRS §§205-1, 205-7) (Imp: HRS ÿ§91-2,205-2)

§15-15-18 Standards for determining "U" urbandistrict boundaries. Except as otherwise provided inthis chapter, in determining the boundaries for the "U"urban district, the following standards shall be used:

(i) It shall include lands characterized by"city-like" concentrations of people,structures, streets, urban level of servicesand other related land uses;

(2) It shall take into consideration the

16

(3

(4'

(5

(6)

(7)

(8)

following specific factors:(A Proximity to centers of trading and

employment except where the developmentwould generate new centers of tradingand employment;

(B Availability of basic services such asschools, parks, wastewater systems,solid waste disposal, drainage, water,transportation systems, publicutilities, and police and fireprotection; and

(C Sufficient reserve areas for foreseeableurban growth;

It shal! include lands with satisfactorytopography, drainage, and reasonably freefrom the danger of any flood, tsunami,unstable soil condition, and other adverseenvironmenta! effects;Land contiguous with existing urban areasshall be given more consideration thannon-contiguous land, particularly whenindicated for future urban use on state orcounty general plans or county communityplans or development plans;It shall include lands in appropriatelocations for new urban concentrations andshall give consideration to areas of urbangrowth as shown on the state and countygeneral plans or county community plans ordeve!opment plans;.It may include lands which do not conform tothe standards in paragraphs (i) to (5):(A) When surrounded by or adjacent to

existing urban development; and(B) Only when those lands represent a minor

portion of this district;It shall not include lands, the urbanizationof which will contribute toward scatteredspot urban development, necessitatingunreasonable investment in publicinfrastructure or support services; andIt may include lands with a general slope oftwenty per Cent or more if the commissionfinds that those lands are desirable andsuitable for urban purposes and that thedesign and construction controls, as adoptedby any federal, state, or county agency, areadequate to protect the public health,welfare and safety, and the public'sinterests in the aesthetic quality of the

17

]081

landscape. [Eff 10/27/86; am and comp8/16/97; comp 5/8/00; am and comp NOV@220ÿ

] (Auth: HRS ÿ§205-i, 205-ÿ 205-7) (Imp: HRS ÿ205-2)

15-15-19 Standards for determining "A"agricultural district boundaries. Except as otherwiseprovided in this chapter, in determining the boundariesfor the "A" agricultural district, the followingstandards shall apply:

(i) It shall include lands with a high capacityfor agricultural production;

(2) It may include lands with significantpotential for grazing or for otheragricultural uses;

(3) It may include lands surrounded by orcontiguous to agricultural lands or which arenot suited to agricultural and ancillaryactivities by reason of topography, soils,and other related characteristics; and

4) It shall include all lands designatedimportant agricultural lands pursuant to partIII of chapter 205, HRS. [Elf 10/27/86; amand comp 8/16/97; comp 5/8/00; am and comp

NOV 0 2 2013 ] (Auth: HRS §ÿ205-1, 205-2,205-7) (Imp: HRS @205-2)

§15-15-20 Standards for determining "C"conservation district boundaries. Except as otherwiseprovided in this chapter, in determining the boundariesfor the "C" conservation district, the followingstandards shall apply:

(i) It shall include lands necessary forprotecting watersheds, water resources, andwater supplies;

(2) It may include lands susceptible to f!oodsand soil erosion, lands undergoing majorerosion damage and requiring correctiveattention by the state and federalgovernment, and lands necessary for theprotection of the health and welfare of thepublic by reason of the land's susceptibilityto inundation by tsunami and flooding, tovolcanic activity, and landslides;

(3) It may include lands used for national orstate parks;

(4) It shall include lands necessary for theconservation, preservation, and enhancement

18

]OBl

(5)

(6)

(7

(8)

(9)

of scenic, cultural, historic, orarchaeologic sites and sites of uniquephysiographic or ecologic significance;It shall include lands necessary forproviding and preserving parklands,wilderness and beach reserves, for conservingnatural ecosystems of indigenous or endemicplants, fish, and wildlife, including thosewhich are threatened or endangered, and forforestry and other related activities tothese uses;It shall include lands having an elevationbelow the shoreline as stated by section205A-I, HRS, marine waters, fish ponds, andtidepools of the State, and accreted portionsof lands pursuant to sections 501-33 and 669-i, HRS, unless otherwise designated on theland use district maps. All offshore andoutlying islands of the State are classifiedconservation unless otherwise designated onthe land use district maps;It shall include lands with topography,soils, climate, or other relatedenvironmental factors that may not benormally adaptable or presently needed forurban, rura!, or agricultural use, exceptwhen those lands constitute areas notcontiguous to the conservation district;It may include lands with a general slope oftwenty per cent or more which provide foropen space amenities or scenic values; andIt may include lands suitable for farming,flower gardening, operation of nurseries ororchards, growing of &ommercial timber,grazing, hunting, and recreational usesincluding facilities accessory to those useswhen the facilities are compatible with thenatural physical environment. [Elf 10/27/86;am and comp 8/16/97; comp 5/8/00; am and comp

NOV 0 2201ÿ ] (iuth: HRS §§205-1,205-2, 205-7) (Imp: HRS §205-2)

§15-15-21 Standards for determining "R" ruraldistrict boundaries. Except as otherwise provided inthis chapter, in determining the boundaries for the "R"rural district, the fol!owing standards shall apply:

(i) Areas consisting of small farms; providedthat the areas need not be included in thisdistrict if their inclusion will alter the

19

general characteristics of the areas;(2) Activities or uses as characterized by

!ow-density residentia! lots of not less thanone-half acre and a density of not more thanone single family dwelling per one-half acrein areas where "city-like" concentrations ofpeople, structures, streets, and urbanlevels of services are absent, and wheresmall farms are intermixed with thelow-density residential lots; and

3) It may also include parcels of land which aresurrounded by, or contiguous to thisdistrict, and are not suited to low-densityresidential uses for small farm oragricultural uses. JEff 10/27/86; am andcomp 8/16/97; comp 5/8/00; am and compNOV 0 22013 ] (iuth: HRS §ÿ205-i, 205-2,

205-7) (Imp: HRS @205-2)

15-15-22 Interpretation of district boundaries.(a) Except as otherwise provided in this chapter:(i) A district name or letter appearing on the

land use district map applies throughout thewhole area bounded by the district boundarylines;

(2) Land having an elevation below the shorelineas stated by section 205A-I, HRS, marinewaters, fish ponds, and tidepools of theState, and accreted portions of landspursuant to sections 501-33 and 669-1, HRS,unless otherwise designated on the land usedistrict maps, shall be included in theconservation district;

3) All offshore and outlying islands of theState are classified conservation unlessotherwise designated on the land use districtmaps; and

4) All water areas within the State areconsidered to be within a district andcontrolled by the applicable district rules.

(b) All requests for boundary interpretationsshall be in writing and include the tax map keyidentification of the property and a print of a map ofthe property. All requests for boundaryinterpretations involving shoreline properties shall beaccompanied by a survey map showing the locations ofthe shoreline as provided for in section 205A-42, HRS.Any erosion or accretion through natural processesshall be reflected on the map. Further, any shoreline

2O

structure, piers, and areas of man-made fill which wereconstructed or completed since the date of adoption ofthe state land use district boundaries existing as ofthe date of the request for boundary interpretationshall be reflected on the map.

(c) The executive officer may request thefollowing information:

(i) Additional copies of the print, including areproducible master map of the print or anelectronic copy in a recognized format of theexecutive officer's designation; and

(2) Additional information such as, but notlimited to, tax map key maps, topographicmaps, aerial photographs, certified shorelinesurveys, and subdivision maps relating to theboundary interpretation.

The executive officer may employ, or require that theparty requesting the boundary interpretation employ, atits sole expense, a registered professional landsurveyor to prepare a map for interpretation.

(d) The executive officer may use all applicablecommission records in determining district boundaries.

(e) The fol!owing shall apply wheneveruncertainty exists with respect to the boundaries ofthe various districts:

(i) Whenever a district line falls within orabuts a street, alley, canal, navigable ornon-ÿavigable stream or river, it may bedeemed to be in the midpoint of theforegoing° If the actua! location of thestreet, alley, cana!, navigable ornon-navigable stream or river varies slightlyfrom the !ocation as shown on the districtmap, then the actual location shal! becontrolling;

(2) Whenever a district line is shown as beinglocated within a specific distance from astreet line or other fixed physica! feature,or from an ownership line, this distanceshal! be controlling; and

(3) Unless otherwise indicated, the districtlines shal! be determined by the use of thescale contained on the map.

(f) Whenever subsections (a), (b), (c), (d), or(e) cannot resolve an uncertainty concerning the!ocation of any district line, the commission, uponwritten application or upon its own motion, shalldetermine the location of those district lines. JEff10/27/86; am and comp 8/16/97; comp 5/8/00; am and comp

0V 0 ÿ2013 ] (iuth: HRS §ÿ205-i, 205-7) (Imp:

21

]081

HRS §205-1)/

SUBCHAPTER 3

PERMISSIBLE LAND USES

15-15-23 Permissible uses; generally. Except asotherwise provided in this chapter, the following landand building uses are compatible and permitted withinthe following land use districts, except whenapplicable county ordinances or regulations are morerestrictive. Except as otherwise provided in thischapter, uses not expressly permitted are prohibited.JEff 10/27/86; comp 8/16/97; comp 5/8/00; and comp

NOV @ ÿ2013 ] (Auth: HRS ÿ§205-i, 205-7) (Imp: HRS§205-2)

15-15-24 Permissible uses within the "U" urbandistrict. Any and all uses permitted by the counties,either by ordinances or rules may be allowed withinthis district, subject to any conditions imposed by thecommission pursuant to section 205-4(g), HRS.[Eff 10/27/86; am and comp 8/16/97; comp 5/8/00; compNOV 0 ÿ2013 ] (iuth: HRS §§205-i, 205-7) (Imp:

HRS §205-2)

15-15-25 Permissible uses within the "A"agricultural district. (a) Permissible uses withinthe agricultural district on land with soil classifiedby the land study bureau's detailed land classificationas overall (master) productivity rating class A or Bshall be those uses set forth in section 205-4.5, HRS.

(b) Permissible uses within the agriculturaldistrict on land with soil classified by the land studybureau's detailed land classification as overall(master) productivity rating class of C, D, E, and Ushal! be those uses as set forth in sections 205-2,205-4.5, and 205-5, HRS, and also uses compatible tothe activities described in 205-2(d), HRS. JEff10/27/86; am and comp 8/16/97; comp 5/8/00; am and compNOV 0ÿ2013 ] (iuth: HRS §ÿ205-i, 205-7)(Imp: HRS

@@205-2, 205-4.5)

15-15-26 Permissible uses within the "C"conservation district. Uses of land within aconservation district shall be governed by the rules of

22

the state department of land and natural resources,title 13, and chapter 183C, HRS. [ÿ iÿ{ÿiÿ/86; am andcomp 8/16/97; comp 5/8/00; comp 0_ ](Auth: HRS §§205-1, 205-7) (Imp: HRS §205-2)

§15-15-27 Permissible uses within the "R" ruraldistrict. (a) Permissible uses within the ruraldistrict shall include the following activities:

(I) All agricultural related activities and usespermitted under section 15-15-25;

(2) Low-density residential lots of not more thanone dwelling house per one-half acre, exceptas provided by county ordinance pursuant tosection 46-4(c), HRS;

(3) Golf courses and golf driving ranges andgolf-related facilities;

(4) Public, quasi-public and public utilityfacilities; and

(5) The commission for good cause may allow onelot of less than one-half acre, but notless than 18,500 square feet, or anequivalent residential density, provided allother lots in the subdivision have theminimum lot size of one-half acre. Apetition for variance may be processed underthe special permit procedure pursuant tosubchapter 12. This exception shall apply to!ors of record existing prior to January i,1977, and of not more than two acres. Thereshal! be no more than one single-familydwelling per one-half acre, except as may beprovided for in this section. [Elf 10/27/86;am and comp 8/16/97; am and comp 5/8/00; amand comp NNV 0ÿ0!ÿ ] (Auth: HRS§§205-1, 205-7)limp: HRS §205-2)

SUBCHAPTER 4

NONCONFORMANCE

15-15-28 Statement of intent. This subchapteris intended to expedite the eventua! elimination ofexisting uses or structures that are not in conformitywith the provisions of subchapter 3 because theircontinued existence violates basic concepts of health,safety, and welfare as well as principles of good landuse. However, in applying subchapter 3, no eliminationof nonconforming uses or structures shall be effected

23

,3081

so as to cause unreasonable interference withestablished property rights. [Elf 10/27/86; comp8/16/97; am and comp 5/8/00; comm NOV 0 ÿ2013(Auth: HRS ÿ205-i, 205-7 (Imp: HRS ÿ205-8)

15-15-29 Nonconforming uses. (a) Any lawfuluse of lands or buildings existing prior to theestablishment of a land use district, may be continuedeven though those uses do not conform to the provisionsthereof.

(b) Except as otherwise provided, the followingprovisions shall apply to nonconforming uses orstructures within any district:

(i) It shall not be changed to anothernonconforming use or structure;

(2) It shall not be expanded or increased inintensity of use; and

(3) It shall not be reestablished afterdiscontinuance and abandonment for acontinuous period of one year. [Elf10/27/86; am and comp 8/16/97; am andcomp 5/8/00; am and comp NNvÿ ÿ{0ÿ{ ] (Auth:HRS §ÿ205-i, 205-7) (Imp: -8)

15-15-30 Nonconforming areas and parcels. A lotof record or any proposed subdivision of land which isnot in conformity with this subchapter, but which hasreceived approval by the county having jurisdictionprior to the establishment of the land use district,shall be permitted as a nonconforming area subject tothe ordinances and rules of the county. Al! lotswithin the nonconforming area shall be considerednonconforming parcels. [Elf 10/27/86; am andcomp 8/16/97; am and comp 5/8/00; comp ÿ0V 0 22013 ]

(Auth: HRS §§205-1, 205-7 (Imp: HRS §205-8)

§15-15-31 Casual or illegal use of land. Acasual, intermittent, temporary, or illegal use oflands or buildings shal! not be sufficient to establishthe existence of a nonconforming use. [Eff 10/27/86;comm 8/16/97; am and comp 5/8/00; comp N0Vÿ2ÿ013 ]

(Auth: HRS ÿ205-i, 205-7) (Imp: HRS §205-

§15-15-32 Existence of nonconforming use is aquestion of fact. Whether a nonconforming use existsshal! be a question of fact and shall be decided by the

24

3081 l mm

board, commission, or agency having jurisdiction overuses within the district. [Elf 10/27/86; am andcomp 8/16/97; am and comp 5/8/00; comp NOV 0 2ÿ01]

(Auth: HRS §§205-1, 205-7) (Imp: HRS §205-8)

15-15-33 Illegal uses. An illegal use of landsor buildings shal! not be validated by the adoption ofthis chapter° ÿ ÿ{ÿ7/86; am and comp 8/16/97; comp5/8/00; comp a_ ] (Auth: HRS §§205-1,205-7 (Imp: HRS §205-8)

SUBCHAPTER 5

PROCEEDINGS BEFORE THE COMMISSION

15-15-34 Quasi-judicial proceedings; waiver orsuspension of rules. (a) The intent and purpose ofchapter 205, HRS, is to establish quasi-judicialprocedures which would ensure the effective applicationof established state land use policies through anadversarial process in a hearing in which diverseinterests will have an opportunity to present theirviews in an open and orderly manner. Accordingly, thecommission expects all persons and parties to complywith this subchapter and chapter 91, HRS, so that thecommission will have a full and complete record uponwhich it can render its decision.

(b) Unless contrary to statute, the commissionmay waive or suspend any rule when the commissiondetermines that: (i) good cause exists for suchwaiver; and (2) strict enforcement of such proceduralrule would impose a manifest injustice upon a party orperson who has substantially complied with thecommission's rules in good faith. No rule relating tojurisdictional matters shall be waived or suspended bythe commission. [Elf 10/27/86; am and comp 8/16/97; amand comm 5/8/00; am and comm NOV 0 2ÿ013 ] (Auth:HRS ÿ§205-i, 205-7) (Imp: HRS §91-3)

§15-15-34.1 Verbatim transcripts. Verbatimtranscripts of hearings and other proceedings beforethe commission pursuant to chapter 91, HRS, shal! bemade and kept by the commission. [Eff and comp

NOV 0ÿ2013 ] (Auth: HRS §ÿ205-i, 205-7) (Imp: HRS§91-9)

25

.30.8 1

§15-15-35 Appearance before the commission. (a)Any party to a proceeding before the commission mayappear on the party's own behalf. A partnership,corporation, trust, or association, or other legalentity, may be represent@d by a duly authorized agent.An officer or employee of a department or agency of

the State or a political subdivision may represent thatdepartment or agency in any proceeding before thecommission.

(b) A party may be represented by an attorney.The attorney who appears before the commission shall bea member in good standing of the Hawai'i state bar. Amember of the bar of another jurisdiction may appear bymotion or by association with a member in good standingof the Hawai'i state bar. All pleadings and documentsshall be served on the member of the Hawai'i state bar.

(c) The United States or any of its agencies maybe represented by an employee of the agency or anyattorney who is a member in good standing of the bar ofany state and who is employed as an attorney by theUnited States or one of its agencies.

(d) Any person who signs a pleading or brief,enters an appearance at a hearing, or transactsbusiness with the commission, by such an act representsthat the person is legally authorized to do so andshall comply with the laws of this State and theseveral counties, and the rules of the commission.Further, the person shall maintain the respect due tothe commission, and shall never deceive or knowinglypresent any false statements of fact or law to thecommission. The commission at any time may require anyperson appearing before the commission in arepresentative capacity to prove the person's authorityand qualification to act in that capacity.

(e) All former employees of the State, as thatterm is defined in section 84-3, HRS, shall comply withthe provisions of chapter 84, HRS, standards ofconduct, prior to making an appearance in arepresentative capacity before the commission. JEff10/27/86; ammÿuv UÿLUJ 9ÿ ÿmÿIÿ/16/97; am and comp 5/8/00; amand comp ] (Auth: HRS §ÿ205-i,205-7) (Imp: HRS ÿ91-2)

15-15-36 Decisions and orders. (a) Alldecisions and orders for boundary amendment and specialpermit applications shall be signed by the chairpersonor presiding officer (b) Unless otherwise indicated inthe order, the effective date of a decision and ordershall be the date it is filed by the chief clerk.

26

(c) Official copies of decisions and orders andother commission actions shall be effectuated under thesignature of the chairperson, executive officer, or bythe chief clerk. [Elf 10/2.7_/86;_ am and comp 8/16/97;comp 5/8/00; am and compNUV ÿ]ÿ201ÿ ] (Auth: HRS§205-1, 205-7) (Imp: HRS §91-12)

§15-15-37 Filing documents; place and time. Allpleadings, briefs, submittals, petitions, reports,maps, exceptions, memoranda, and other legal papersrequired or permitted to be filed with the commissionin any proceeding shall be filed at the office of thecommission before or on the date prescribed by statute,rules, or order of the commission. Unless otherwiseordered and except as provided by section 15-15-50, thedate on which the original papers are filed by or atthe direction of the chief clerk shall be regarded asthe date of filing. The commission will not accept afacsimile or electronic copy of any document for filingpurposes unless otherwise permitted by the executiveofficer. [Elf 10/27/86; am 3/24/94; aÿkÿndcomp8/16/97; comp 5/8/00; am and compJÿUV0ÿ2813 ](Auth: HRS §§205-1, 205-7) (Imp: HRS §§91-2, 205-4;SLH 1992, Act 227, §i)

§15-15-38 Format. (a) All documents exceedingseventy five pages shall be placed in three-ringbinders or equivalent (prongs and rubber bands are notacceptable) and be printed upon white paper 8-1/2 x iiinches in size. Twelve point font or larger shall beused. Tables, maps, charts, exhibits, or appendicesmay be larger and shall be folded to that size wherepractical and tabbed. All pleadings shall be printedand shall be one and a half spaced or greater, exceptthat footnotes and quotations in excess of a few linesmay be single-spaced. Reproduction may be by anyprocess, provided all copies are clear and permanentlylegible. Electronic copies shall be similarly formattedand bookmarked.

(b) Al! pleadings shall show the title of theproceeding before the commission and the case docketnumber assigned by the chief clerk and shall show thename, address, and telephone number of the person orattorney.

(c) The original of each pleading shal! be signedby each party or the party's attorney. If the party isa corporation, association, partnership, or other legal

27

]081

entity, the pleading may be signed by an officer orpartner thereof or other authorized person. The titleand name of the person signing shall be typed below thesignature.

(d) In addition to the paper originals and onepaper copy, the parties shall also submit documents andpleadings in electronic format, as directed by theexecutive officer. However, the filing date shall bethe date the paper origina! is filed in the office ofthe commission. [Eff 10/27/86; am and comp 8/16/97;comp 5/8/00; am and comp NOV 0ÿ2013 ] (iuth:HRS §§205-1, 205-7) (Imp: HRS ÿ91-2)

§15-15-39 Verification. a) Petitions,amendments thereto, and other pleadings which initiatea proceeding, and amendments thereto shall be verifiedby at least one of the persons or officers or otherauthorized signatory of the party filing the same.

(b) If the party filing the pleading is acorporation, association, partnership, or other legalentity, the pleading may be verified by an officer orpartner thereof or other authorized person. Evidenceof such authorization shall be provided.

(c) The attorney for a party may sign and verifya pleading if the party is absent, or for some causeunable to sign and verify the pleading. [Eÿ6 10/27/86;comp 8/16/97; comp 5/8/00; am and comp V 0 ÿ2013 ](Auth: HRS @§205-i, 205-7) (Imp: HRS ÿ91-2)

15-15-40 Copies. Unless otherwise required bythis subchapter or the commission, all parties shallfile with the commission a paper original, one papercopy and one electronic copy of each pleading oramendment thereof. Additional copies shall be promptlyprovided if the chairperson or the executive officer sorequests. The commission, by order, may modify thenumber or format of copies required under this section.

[mff 10/27/86;comp 8/16/97; comp 5/8/00; am and comp NOV 0 ÿ2013 ]

(Auth: HRS §§205-1, 205-7) (Imp: HRS §91-2)

§15-15-41 Defective or nonconforming documents.(a) The mere fact that a document has been filed orbeen deemed a proper filing by the executive officerpursuant to section 15-15-50 (d) and (e) shall not bedeemed a waiver of any failure to comply with thissubchapter. Except as provided in subsection (b), if a

28

document filed in a proceeding governed by this chapteris defective, not in substantial conformity with theapplicable rules of the commission, or is otherwiseinsufficient, the commission may on its own motion oron the motion of any party, strike or dismiss suchdocument or require its amendment. If amended, thedocument shall be effective as of the date the amendedor corrected document is deemed a proper filing by theexecutive officer.

(b) Notwithstanding the provisions of sections15-15-50(e), 15-15-50(f), and 15-15-50.5, thecommission may, on its own motion, or on motion by anyof the parties addressing alleged deficiencies of thepetition, dismiss defective or nonconforming petitionswith or without prejudice. If the petition isdetermined by the commission to be defective ornonconforming, the date of proper filing shall be thedate the commission determines that the defects arecured. If the defects are jurisdictional, including,without limitation, failure to satisfy the requirementsof section 15-15-50(c) (5), the commission shall dismissthe petition without prejudice. JEff 10/27/86; am andcomp 8/16/97; comp 5/8/00; am and comp NOV 0 ÿ2013] (Auth: HRS @§205-I, 205-7) (Imp: HRS §91-2)

§15-15-42 Extensions of time. (a) Whenever aparty is required to file a pleading within a periodprescribed or al!owed by these rules by notice giventhereunder, or by an order, the chairperson, presidingofficer, or the executive officer may:

i) For good cause shown, with or without noticeor hearing, extend such period if writtenrequest therefor is made before theexpiration of the period originallyprescribed or as extended by a previousorder;

(2) Pursuant to a stipulation between all of theparties, without notice or hearing, extendthe period; or

3) Upon motion after the expiration of thespecified period, permit the act to be donewhere the failure to act is clearly shown tobe the result of excusable neglect; but maynot extend the time for taking any action onjurisdictional matters.

(b) Extensions of time to file any pleading orother document required by a decision and order of thecommission must be requested more than fourteen daysprior to the next scheduled hearing date on the matter.

29

This section shall not apply to extensions of timeaffecting jurisdictional matters [Eff IOL.ÿ70/_86; am andcomp 8/16/97; comp 5/8/00; am and compIÿUV {ÿ ÿ2{]Iÿ

] (Auth: HRS ÿ§205-i, 205-7) (Imp: HRS ÿ91-2, 205-4)

15-15-43 Amended pleadings. All pleadings maybe amended at any time until forty-five days prior tothe hearing date set pursuant to section 15-15-51.Amendments offered prior to the hearing date shall beserved on al! parties and filed with the commission.All parties shall have the opportunity to provide anyfurther response to address the amended pleading up tothirty days prior to the hearing date set pursuant tosection 15-15-51. No amended pleadings shall be filedafter forty-five days prior to the date of the hearingand no responses shall be filed after thirty days priorto the hearing date, unless a stipulation is reached byall parties, or good cause is shown and approval of thechairperson, presiding officer, or the chairperson'sdesignee is obtained. [Eff 10/27/86; am and comp8/16/97; am and comp 5/8/00; and comp NOV 0 22013 ](Auth: HRS ÿ§205-i, 205-7, SLH 1995, Act 235, §2)(Imp: HRS ÿ§91-2, 205-1, 205-7)

§15-15-44 Retention of documents. The commissionshall retain all documents filed with or presented tothe commission in the files of the commission.However, the chairperson or presiding officer maypermit a party to withdraw original documents submittedby a party upon submission of properly authenticatedcopies to replace the original documents. The partyshall not withdraw the original documents until it hassubmitted the authenticated copies and it has given tothe chief clerk a receipt, specifying the date andidentifying the origina! documents withdrawn. [Elf10/27/86; am and comp 8/16/97; comp 5/8/00; am and compNOV 0 22013 ] (Auth: HRS ÿ§205-i, 205-7) (Imp: HRS91-2)

15-15-45 Service of process. (a) Thecommission shall cause tobe served all orders,notices, and other papers issued by it, together withany other papers that it is required by law to serve.All other papers shall be served by the parties filingthem.

(b) Al! papers served by either the commission or

3O

any party shall be filed and served upon al! parties ortheir attorney and shall contain a certificate ofservice. Any attorney entering an appearancesubsequent to the proceeding shall notify all otherattorneys then of record and all parties notrepresented by an attorney of that fact.

(c) The final decision and order, and any otherpaper required to be served by the commission upon aparty, shal! be served upon the party's attorney ofrecord or in the absence of an attorney, upon theparty.

(d) Service of papers other than the notice ofhearing and the final decision and order, shal! be madepersonally or, unless otherwise provided by law, byfirst class mail. Notice of hearing shall be served asprovided in section 15-15-51, and the final decisionand order shall be served by certified mail.

(e) Service upon parties, other than thecommission, shall be regarded as complete upon theoccurrence of at least one of the following: (i) theparty or its attorney is personally served; (2) thedocument is delivered to the party's office or itsattorney's office and left with some responsibleperson; or (3) the document is properly stamped,addressed and mailed by first class mail to the lastknown address of the party on file with the commissionor to the party's attorney.

(f) Whenever a party has the right to do some actor take some proceedings within a prescribed periodafter the service of a notice or other paper upon theperson, and the notice or paper is served by mail, twodays shall be added to the prescribed period. JEff10/27/86; am and comp 8/16/97; am and comp 5/8/00; amand comp NOV 0 22013 ] (iuth: HRS ÿ205-1,205-7) (Imp: HRS §§91-2, 205-4)

§15-15-45.1 Fees. (a) Unless otherwise providedherein, a motion for incremental districting approval,motion for amendment to a decision and order, requestedrule making, a motion to release conditions, a motionfor declaratory order, a motion for special permit, amotion for order to show cause, or motion for importantagricultural land designation, by any person other thana state or county department or agency shal! beaccompanied by a filing fee by cashier's check, for$I,000, made payable to the State of Hawai'i. State orcounty departments or agencies that submit suchpetitions, motions, or applications shall not besubject to the filing fee. Such petition, motion, or

31

)081

application filed jointly by a state or countydepartment or agency and a person who is not a state orcounty department or agency shall be subject to thefiling fee.

(b) A petition for an amendment to a districtboundary filed by any person other than a state orcounty department or agency shall be accompanied by afiling fee by cashier's check for $5,000, made payableto the State of Hawai'i. State or county departmentsor agencies that submit a petition for amendment to adistrict boundary shall not be subject to the filingfee. A petition for an amendment to a districtboundary filed jointly by a state or county departmentor agency and a person who is not a state or countydepartment or agency shall be subject to the filingfee.

(c) A petition for intervention in any proceedingfiled by any person other than a state or countydepartment or agency shall be accompanied by a filingfee by cashier's check in the amount of $50, madepayable to the State of Hawai'i. State or countydepartments or agencies that submit such petitions forintervention shall not be subject to the filing fee.

(d) Except as otherwise provided by law, a copyof any public document or government record, includingany map, plan diagram, photograph, or photostat, whichis open to inspection by the public shall be furnishedto any person requesting the same by the executiveofficer having charge or control thereof upon thepayment of the reasonable cost of reproducing suchcopy, which amount shall not be less than 12 cents perpage, sheet, or fraction thereof. In addition, therequestor shall be responsible to pay for labor costsfor searching, reviewing, and segregating, and actualtime for reproducing, and material costs, includingelectricity cost, equipment cost including rental cost,cost for certification, and other related costs ofproviding the requested public document or governmentrecord.

(e) The petitioner, movant, or applicant for anypetition, motion, or application shall, unlessotherwise ordered by the commission, reimburse thecommission for or pay at ÿhe direction of thecommission any expenses related to the publication ofany required hearing notice, expenses of court reporterservices, expenses of the hearing room, expenses foraudio/visual services and equipment, and any otherhearing-related expenses.

(f) After notice and opportunity to be heard, thecommission may also assess any party to any proceeding

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before the commission a reasonable fee or requirereimbursements for hearing expenses as determined bythe commission, including without limitation, expensesof court reporter, hearing room, and expenses foraudio/visual services and equipment.

(g) The commission may assess a reasonable fee orrequire reimbursements to be made for inexcusableabsence of a party from a contested case proceeding.The assessment may include, but not be limited to, suchcosts for airfareÿ room rental fees, and publicationfees. JEff and comp NOV 0 22013 ] (Auth: HRS§§205-1, 205-4.1, 205-7) (Imp: HRS §§91-2, 92-21, 205-4.1)

§15-15-45.2 Fees nonrefundable. The fees setforth in this chapter shall be nonrefundable. [Elf andcomp ] (Auth: HRS §§205-1, 205-4.1, 205-7) (Imp: HRS §ÿ91-2, 92-21, 205-4.1)

SUBCHAPTER 6

APPLICATION REQUIREMENTS FOR BOUNDARYAMENDMENT PETITIONS

§15-15-46 Standing to initiate boundaryamendments. The following persons may initiate apetition to the commission for district boundaryamendment:

1)2)

3)

State departments or agencies;County departments or agencies of the countyin which the property is situated; orAny person with a property interest in theproperty sought to be reclassified. [Elf10/27/86; am and comp 8/16/97; comp 5/8/00;comp NOV 0 22013 ] (Auth: HRS §§205-1,205-7) (Imp: HRS §§205-3.1, 205-4)

§15-15-47 Filing. The petitioner shall file oneormginal, and one paper copy and one electronic copy ofa petition for boundary amendment and all supportingdocuments and exhibits, with the commission. Additionalcopies shall be promptly provided if the chairperson orthe executive officer so requests. The number andformat of copies required under this section may bemodified by order of the commission. [Eff 10/27/86; am

33

]081

and comp 8/16/97; comp 5/8/00; am and comp NOV 0 22013] (Auth: HRS §§205-1, 205-7) (Imp: HRS ÿ91-2,

205-4)

15-15-48 Service of petition. (a) At the timethe petition is filed with the commission, thepetitioner shall serve copies of the petition and allsupporting documents upon:

(I) the county planning department and planningcommission of the county within which thesubject land is situated,

(2) the appropriate island planning commission,(3) the state office of planning, and(4) all persons with a property interest in the

subject property as recorded in the county'stea! property tax records at the time thepetition is filed.

(b) The petitioner shall serve copies of thepetition upon any potential intervenor upon receipt ofa notice of intent to intervene pursuant to section 15-15-52 (b) .

(c) Copies of all documents filed by petitionerafter filing of the petition shall be served upon thecounty planning department and the state office ofplanning at the same time the document is filed withthe commission. JEff 10/27/86; am and comp 8/16/97;comp 5/8/00; am and compÿV° ÿ3 ] (Auth: HRS

205-I, 205-4, 205-7) (Imp: zlno0 2, 205-4)

§15-15-49 REPEALED [R /2013]

§15-15-50 Form and contents of petition. (a)The form of the petition for boundary amendment shallconform to the requirements of subchapters 5 and 6.All petitions shall:

(I) State clearly and concisely the authorizationor relief sought; and

(2) Cite by appropriate reference the statutoryprovision or other authority under whichcommission authorization or relief is sought.

(b) For petitions to reclassify properties fromthe conservation district to any other district, thepetition shall not be deemed a proper filing unless anapproved environmenta! impact statement or finding ofno significant impact is approved or accepted by thecommission for the proposed boundary amendment request.Such approved Or accepted environmental impact

statement or finding of no significant impact shal! be

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filed with and be part of the petition for boundaryamendment. Notwithstanding any rule to the contrary,the processes provided by subsections (e) and (f) shal!not commence unti! this subsection is satisfied.

(c) The following information shall also beprovided in each petition for boundary amendment:

(l) The exact legal name of each petitioner andthe location of the principal place ofbusiness and if an applicant is acorporation, trust, or association, or otherlegal entity, the state in which thepetitioner was organized or incorporated;

(2) The name, title, and address of the person towhom correspondence or communications inregard to the petition are to be addressed;

(3) Description of the subject property, acreage,and tax map key number, with maps, includingthe tax map, that identify the area stated inthe petition. If the subject property is aportion of one or more tax map key parcels,or the petition proposes incrementa!deve!opment of the subject property on bothincrements of development, the petitionershall include a map and description of thesubject property and each increment in metesand bounds prepared by a registeredprofessional land surveyor;

(4) The boundary amendment sought and present useof the property, including an assessment ofconformity of the boundary amendment to thestandards for determining the requesteddistrict boundary amendment;

(5) The petitioner's property interest in thesubject property. The petitioner shal!attach as exhibits to the petition thefollowing:(A) A true copy of the deed, lease, option

agreement, deve!opment agreement, orother document conveying to thepetitioner a property interest in thesubject property or a certified copy ofa nonappealable final judgment of acourt of competent jurisdiction quietingtitle in the petitioner;

(B) If the petitioner is not the owner infee simple of the subject property, orany part thereof, written authorizationof all fee owners to file the petitionand a true copy of the deed to thesubject property; and

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(6)

(7)

(8)

(9)

(i0

ii

(C) An affidavit of the petitioner or itsagent attesting to its compliance withsection 15-15-48;

A description of any easements on the subjectproperty, together with identification of theowners of the easements; a description of anyother ownership interests shown on the taxmaps.

Type of use or development being proposed,including without limitation, & descriptionof any planned development, residential, golfcourse, open space, resort, commercia!, orindustrial use;A statement of projected number of lots, lotsize, number of units, densities, sellingprice, intended market, and developmenttimetables;A statement describing the financialcondition together with a current certifiedbalance sheet and income statement as of theend of the last calendar year, or if thepetitioner is on a fiscal year basis, as ofthe end of the petitioner's last fiscal year,and a clear description of the manner inwhich the petitioner proposes to finance theproposed use or development. If suchinformation is protected from disclosureunder chapter 92F, HRS, the petitioner mayrequest a protective order to protect theconfidentiality of the information pursuantto section 15-15-70.1. A petitioner which isa state or county department or agency, shallbe exempt from this requirement;Description of the subject property andsurrounding areas including the use of theproperty over the past two years, the presentuse, the soil classification, theagricultural lands of importance to the Stateof Hawai'i classification (ALISH), theLand Study Bureau productivity rating, theflood and drainage conditions, and thetopography of the subject property;An assessment of the impacts of the proposeduse or development upon the environment,agriculture, recreational, cultural,historic, scenic, flora and fauna,groundwater, or other resources of the area.If required by chapter 343, HRS, either afinding of no significant impact after reviewof an environmental assessment or an

36

environmental impact statement conforming tothe requirements of chapter 343, HRS, must befiled;

12 Availability or adequacy of publicservices and facilities such as schools,parks, wastewater systems, solid wastedisposal, drainage, water, transportationsystems, public utilities, police and fireprotection, civil defense, emergency medicalservice and medical facilities, and to whatextent any public agency would be impacted bythe proposed development or boundaryamendment;

13 Location of the proposed use or developmentin relation to adjacent land use districtsand any centers of trading and employment;

14 Economic impacts of the proposed boundaryamendment, use, or development including,without limitation, the provision of anyimpact on employment opportunities, and thepotential impact to agricultural productionin the vicinity of the subject property, andin the county and State;

15) A description of the manner in which thepetitioner addresses the housing needs of lowincome, low-moderate income, and gap groups;

(16) An assessment of need for the boundaryamendment based upon the relationship betweenthe use or development proposed and otherprojects existing or proposed for the areaand consideration of other similarlydesignated land in the area;

(17) An assessment of conformity of the boundaryamendment to applicable goals, objectives,and policies of the Hawai'i state plan,chapter 226, HRS, and applicable priorityguidelines and functional plan policies;

(18) An assessment of the conformity of theboundary amendment to objectives and policiesof the coastal zone management program,chapter 205A, HRS;

19) An assessment of conformity of theboundary amendment to the applicable countygeneral plans, development or communityplans, zoning designations and policies, andproposed amendments required;

(20) Petitioners submitting petitions for boundaryamendment to the urban district shal! alsorepresent that development of the subjectproperty in accordance with the demonstrated

37

need therefor will be accomplished before tenyears after the date of commission approval.In the event full urban development cannot

substantially be completed within suchperiod, the petitioner shall also submit aschedule for development of the total of suchproject in increments together with a mapidentifying the location of each increment,each such increment to be completed within nomore than a ten-year period;

21) A statement addressing Hawaiian customary andtraditional rights under Article XII, section7 of the Hawai'i State Constitution;

(22) Any written comments received by thepetitioner from governmental and non-governmental agencies, organizations, orindividuals in regards to the proposedboundary amendment; and

(23) A copy of the notification of petition filingpursuant to subsection (d).

(d) The petitioner shall send a notification ofpetition filing to persons included on a mailing listprovided by the chief clerk. The notification ofpetition filing shall be in a form as prescribed by theexecutive officer, and shall include, but not belimited to, the following information:

(I) Petitioner's name and mailing address;(2) Landowner's name;(3) Tax map key identification of the property

requested for boundary amendment;(4) Location of the property;5) Requested boundary amendment and approximate

acreage;6) Proposed use of the property;7) A statement that detailed information on the

petition may be obtained by reviewing thepetition and maPs on file at the office ofthe commission or the respective countyplanning department or at the commission'swebsite;

8) A statement that informs potentialintervenors on the mailing list provided bythe commission that they may file a notice ofintent to intervene with the commissionWithin thirty days of the date of thenotification of petition filing pursuant tosection 15-15-52(b);

(9) A statement that informs the general publicto contact the office of the commission forinformation on participating in the hearing;

38

and(i0) A location map depicting the petition area.The notification of petition filing shall be sent

to all persons on the mailing list on the same day thatthe petition is filed with the commission. Thepetitioner shall submit to the commission an affidavitthat the petitioner has sent the notification ofpetition filing pursuant to this subsection.

(e) The executive officer shall receive andcomplete a review of the petition for completenesswithin thirty days of the filing of the petition. Theprovisions herein, however, are subject to therequirements of subsection (b) on petitions forreclassification of conservation district lands.

(f) Upon completion of the review pursuant tosubsection (e), the executive officer shall determinewhether the petition is a proper filing and is acceptedfor processing. The petition shall be deemed a properfiling if the items required in subsections (a), (b),(c), and (d) have been submitted. The petition may bedeemed defective by the executive officer if any of theitems required in subsections (a), (b), (c), or (d)have not been submitted. If the petition is deemeddefective, the executive officer shall notify thepetitioner of the determination and the reasons for thedetermination. The petition may be deemed as a properfiling upon review of the additional informationsubmitted and upon determination by the executiveofficer, and the date the petition wil! be deemed aproper filing will be the date the executive officerdetermines the defects have been cured. The executiveofficer will file a notice of proper filing and mailthe notice to the petitioner, the State office ofplanning, the county planning agency, and to personswho have filed a notice of intent to intervene. Theexecutive officer's determination is subject to reviewin accordance with section 15-15-41. The provisionsherein, however, are subject to the requirements ofsection 15-15-50(b) on petitions for boundary amendmentof conservation district lands.

(g) The petitioner has a continuing obligation toupdate the information submitted in the petition priorto and during the pendency of the hearing on thepetition. [Elf 10/27/86; am 3/24/94; am and comR8/16/97; am and comp 5/8/00; am and comp NOV 0 22013 ]

(Auth: HRS ÿ§205-i, 205-4, 205-7) (Imp: HRS §§91-2,205-4)

§15-15-50.5 Dismissal of petition for failure

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to provide additional information or correct defects.Where the executive officer, pursuant to section 15-15-50(f), has determined that a petition is defective ornonconforming and the petitioner has not providedadditional information or cured any defects within nine(9) months after the date of issuance of the noticethat the petition is defective, the executive officershall notify the petitioner in writing that thepetition is dismissed for want of prosecution unlessobjections thereto, showing good cause with specificreasons, are filed within ten days after the date ofsuch notification. If objections are not filed withinsaid ten-day period, the executive officer shal! filean order of dismissa! with or without prejudice. Ifobjections are filed within said ten-day period, thecommission shal! hear the objections upon notice anddetermine whether the petition should be dismissed.[Elf and comp NOV 0 22013 ] (Auth: HRS ÿ205-i, 205-4, 205-7)

§15-15-50.6 Withdrawal or amendment ofpetition. (a) The petitioner may withdraw or amend thepetition without prejudice: (i) at any time before apetition for district boundary amendment is deemed aproper filing or, (2) any time after a petition fordistrict boundary amendment has been deemed a properfiling but before it has been set for hearing; providedthat if substantive amendments are made, the filingdate for the petition shall be the date the amendedpetition is deemed a proper filing, and petitioner mustsend a notification of filing of the amended petitionin conformance with the requirements of section 15-15-50(d) .

(b) If a petition for district boundary amendmenthas been set for hearing, the petition may be withdrawnonly upon the commission's granting of a motion forwithdrawal filed by the petitioner. In the event thecommission grants a motion to withdraw, the petitionermay not refile the petition within one year after thegranting of the motion for withdrawal.

(c) If a petition for district boundary amendmenthas been set for hearing, the petition may be amendedonly in compliance with the requirements of section 15-15-43. [Elf and comp NOV 0 22013 ] (Auth: HRS§205-i, 205-4, 205-7)

SUBCHAPTER 7

AGENCY HEARING AND POST HEARING PROCEDURES

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§15-15-51 Notice of hearing for boundaryamendment petitions. (a) Not less than sixty days andnot more than one hundred eighty days after the properfiling of a petition for boundary amendment, a hearingshall be conducted by the commission or a hearingsofficer on the island in which the subject property issituated.

(b) The notice of hearing shall be served on theoffice of planning, the planning commission and theplanning department of the county in which the subjectproperty is situated, the appropriate planningcommission of the island on which the subject propertyis situated, all persons with a property interest inthe subject property that is recorded in the county'sreal property tax records at the time the petition issubmitted, all persons with an easement over, on, uponor through the subject property, and all persons whoappear on the county tax map to have an interest in thesubject property. In addition, notice of the hearingshall be mailed to all persons who have made a timelywritten request for advance notice of boundaryamendment proceedings.

(c) The notice of hearing for a boundaryamendment shall be published at least once in thecounty in which the land sought to be redistricted issituated as well as once statewide at least thirty daysin advance of the hearing. The notice of hearing shallalso be filed with the lieutenant governor's office atleast six calendar days before the hearing.

(d) The notice of hearing of a boundary amendmentshall include:

(i) The date, time, place, and nature of thehearing;

(2) The legal authority under which the hearingis to be held;

(3) The particular sections Of the statutes andrules involved;

(4) An explicit statement in plain language ofthe issues involved;

(5) The fact that parties may retain an attorneyif they so desire and the fact that anindividual may appear on the individual's ownbehalf, or a member of a partnership mayrepresent the partnership, or an officer orauthorized employee of a corporation, trust,or other legal entity may represent thecorporation, trust, or other legal entity;

(6) Where the map of the subject property orpetition may be inspected; and

41

(7) The rights of interested persons undersection 205-4(e), HRS.

(e) The hearing may be continued or reopened bythe commission when necessary, provided that notice isgiven pursuant to Section 92-7, HRS, and the continuedor re-opened hearing shall not extend beyond threehundred sixty-five days from the date the petition isdeemed properly filed, unless an extension of time isrequested by motion by any party, by stipulation, or bythe commission on its own motion, so long as thecommission votes affirmatively on the motion orstipulation by a two-thirds vote of the membership ofthe commission. The extension of time shall not exceedninety days beyond three hundred sixty-five days fromthe date the petition is deemed properly filed.[Eff10/27/86; am and comp 8/16/97; am and comp 5/8/00;am and comp NOV 0 ÿ2013 ] (iuth: HRS §ÿ205-i,205-4, 205-7) (Imp: HRS §ÿi-28o5, 91-9, 92-7, 92-41,205-4)

15-15-52 Intervention in proceeding for districtboundary amendments, except proceedings pursuant tochapter 201H, HRS. (a) The petitioner, the stateoffice of planning, and the planning department of theCounty within which the subject land is situated shallappear in every case as parties, and makerecommendations relative to the proposed boundaryamendment.

(b) Within thirty days of the date of thenotification of petition filing pursuant to section 15-15-50(d), persons who intend to intervene may file anotice of intent to intervene with the commission. Thenotice of intent to intervene shal! provide, but not belimited to, the following information:

(i) The person's name and mailing address; and(2) The nature and extent of the person's

interest in the petition.The notice of intent to intervene shall be served uponthe petitioner, the state office of planning, and therespective county planning department. Upon receipt ofa notice of intent to intervene, the petitioner shallserve a copy of the petition filed with the chief clerkupon the potential intervenor. All persons who wish toformally intervene shal! comply with subsections (e),(f), (g), and (h).

(c) Persons who may intervene upon timelyapplication include:

(i) All departments and agencies of the State andof the county in which the land is situated;

42

]081 jaa

and(2) All persons who have a property interest in

the land, or who otherwise can demonstratethat they will be so directly and immediatelyaffected by the proposed change that theirinterest in the proceeding is clearlydistinguishable from that of the genera!public.

(d) All other persons may apply for leave tointervene, which shall be freely granted, provided thecommission or its hearings officer may deny anapplication to intervene when, in the commission's, orhearings officer's discretion it appears that:

(i) The position of the applicant forintervention is substantially the same as theposition of a party already admitted to theproceeding; and

(2) The admission of additional parties willrender the proceedings inefficient andunmanageable°

(e) In a boundary amendment proceeding, petitionsto intervene and become a party shall be in conformitywith subchapter 5 and filed with the commission. Anoriginal and one paper copy, plus one electronic copy,of the petition for intervention with proof of serviceon all parties shall be filed with the commissionwithin fifteen calendar days after the notice ofhearing is published pursuant to section 15-15-51(c).Except for good cause shown, late filing shall not bepermitted. The number and format of copies requiredunder this section may be modified by order of thecommission.

(f) Petitions for intervention shal! makereference to the following:

(i) Nature of the petitioner's statutory or otherright;

(2) Nature and extent of the petitioner'sinterest in the matter, and if an abuttingproperty owner, the tax map key descriptionof the property; and

(3) Effect of any decision in the proceeding onthe petitioner's interest°

(g) Petitions for intervention pursuant tosubsection (d) shall also make reference to thefollowing:

(i)

(2)

Other means available whereby thepetitioner's interest may be protected;Extent the petitioner's interest will not berepresented by or differs from that ofexisting parties;

43

(3) Extent the petitioner's participation canassist in development of a complete record;

(4) Extent the petitioner's participation willbroaden the issues; and

(5) How the petitioner's intervention would servethe public interest.

(h) Petitions for intervention shall beaccompanied by a filing fee as provided for in section15-15-45.1. The fee shall not apply to state andcounty agencies.

(i) If any party opposes the petition forintervention, the party shall file a pleading inopposition within seven days after being served.

(j) All petitions to intervene shall be heardprior to the scheduled hearing.

(k) A person whose petition to intervenehas been denied may appeal the denial to the circuitcourt pursuant to section 91-14, HRS. [Elf 10/27/86;am and comp 8/16/97; am and comp 5/8/00; am and comp

NOV 02ÿ013 ] (Auth: HRS ÿ§205-i, 205-4, 205-7,SLH 1995, Act 235, ÿ2) (Imp: HRS §205-4, SLH 1995, Act235, @i)

§15-15-53 Intervention in other than districtboundary amendment proceeding or important agriculturallands designation proceeding. (a) In any proceedingother than a district boundary amendment proceeding orimportant agricultural lands designation proceedingbefore the commission, petitions to intervene andbecome a party shall conform to subchapter 5 and befiled no later than fifteen days after the date of thepublication of the hearing notice.

(b) Contents of the petition shall conform tosections 15-15-52(e) and 15-15-52(f).

(c) Petitions to intervene in special permitproceedings will not be considered since the record ismade by and before the county planning commission.JEff i0/%ÿ8ÿ% am and comp 8/16/97; comp 5/8/00; am andcomp--ÿ013 ] (Auth: HRS §ÿ205-i, 205-4, 205-7) (Imp: HRS §@205-i, 205-4)

§15-15-54 Consolidation. The commission, uponits own initiative or upon motion by any party, mayconsolidate for hearing or other purposes, or maycontemporaneously consider, two or more proceedingswhich involve substantially the same parties or issueswhich are the same or closely related if the commissionfinds that consolidation or contemporaneous

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consideration will be conducive to the proper dispatchof its business and to the ends of justice and will notunduly delay the proceedings. JEff 10/27/86; comp8/16/97; comm 5/8/00; am and comp NOV 0 ÿ2013 ](Auth: HRS §§205-1, 205-7) (Imp: HRS §§91-2, 205-4)

§15-15-55 Statements of position. No later thanthirty days after the postmarked date of notice thatthe petition has been deemed a proper filing, the stateoffice of planning and appropriate county planningdepartment, and any intervenor, or person or legalentity who filed a timely notice of intent to interveneand whose intervention petition is still pending, shallfile with the commission a statement of position with asummary of reasons in support or opposition, includingwithout limitation, a statement describing therespective positions of any department within the Stateand county that may be impacted by the boundaryamendment. [Eff 10/27/86; am and comp 8/16/97; comp5/8/00; am and comp NOV 0 22813 ] (iuth:HRS §ÿ205-i, 205-7, SLH 1995, Act 235, §2) (Imp: HRS§§91-2, 205-4, SLH 1995, Act 235, §i)

§15-15-55.1 Filing of exhibits. (a) No laterthan twenty-five days prior to the date set for hearingpursuant to section 15-15-51, or as specified in aprehearing order issued in accordance with section 15-15-57, al! parties shall submit all exhibits tosubstantiate their position on the boundary amendment.

(b) No later than twenty-five days prior to thescheduled hearing pursuant to section 15-15-51, or asspecified in a preheating order issued in accordancewith section 15-15-57, all intervenors grantedintervention shal! submit all exhibits to substantiatetheir position on the boundary amendment petition.

(c) Each party shall have the opportunity toprovide further response to address the exhibitssubmitted or amended pleadings up to twenty days priorto the hearing date set pursuant to section 15-15-51 oras specified in a preheating order issued in accordancewith section 15-15-57.

(d) Any amendments to pleadings shall besubmitted pursuant to section 15-15-43. JEff and comp8/16/97; am and comp 5/8/00; am and comp NOV 0 22013] (Auth: HRS §§205-1, 205-7, SLH 1995, Act 235, ÿ2)(Imp: HRS §§91-2, 205-4, SLH 1995, Act 235, §i)

§15-15-56 Stipulations. All parties may enter

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into appropriate stipulations as to testimony,exhibits, findings of fact, conclusions of law, andconditions of reclassification concerning the proposedboundary amendment as follows:

(i) A petitioner who desires to enter into astipulation shall prepare a proposedstipulation as to any or all testimony,exhibits, proposed findings of fact,conclusions of law, and conditions ofreclassification concerning the proposedboundary amendment;

(2) All parties shall sign the proposedstipulation as to any or all testimony,exhibits, proposed findings of fact,conclusions of law, conditions ofreclassification, and a proposed decision andorder, if at all, and shall submit suchstipulation to the commission at leastfourteen business days prior to the hearingdate;

(3) At the hearing, the commission may approve ordeny the proposed stipulation and proposeddecision and order in whole or in part, orthe commission may require the parties tosubmit additional evidence concerning theproposed stipulation and proposed decisionand order;

(4) The commission may approve the proposeddecision and order by amending or adoptingthe proposed decision and order. Thecommission shall issue a decision and orderpursuant to provisions of sections 15-15-36and 15-15-74 and section 205-4(g), HRS. [Eff10/27/86; am and comb 8/16/97; comp 5/8/00;am and comm NOV 0 2 2013 ] (iuth: HRS§205-i, 205-7) (Imp: HRS @205-4)

15-15-57 Prehearing conference; exchange ofexhibits; preheating conference order. (a) Thechairperson, presiding officer, or the executiveofficer shall be authorized to hold one or moreprehearing conferences with the parties for the purposeof identifying the issues, identifying the positions ofthe pasties, arranging for the exchange of proposedexhibits or proposed written testimony, setting ofschedules, exchanging names of witnesses, limitation ofnumber of witnesses, determining the extent ofagreement as to proposed findings, and such othermatters as may expedite orderly conduct and disposition

46

of the hearing. No motions and decisions onsubstantive matters shall occur at the prehearingconference.

(b) The chairperson, presiding officer, or theexecutive officer may issue a preheating conferenceorder that shall establish a schedule for the mutualexchange of exhibits and identification of witnesses.The prehearing conference order shall insure that allparties will be provided an opportunity to activelyparticipate in the hearing. No party shall be allowedto present additiona! exhibits or witnesses that arematerial or substantial and not identified within theschedule provided by the prehearing conference order,unless the presenting party provides good cause or theexhibit or witness is being presented for rebutta!purposes, or by stipulation of the parties with thepermission of the commission. [Elf 10/27/86; am andcomp 8/16/97; comp 5/8/00; am and comp NOV 0 22813 ]

(Auth: HRS §ÿ205-i, 205-7) (Imp: HRS @§91-2, 205-4)

§15-15-58 Procedure for witnesses. (a) Thecommission may subpoena witnesses as set forth insection 15-15-69.

(b) Together with other witnesses that thecommission may desire to hear at the hearing, thecommission shall also allow a representative of acitizen or coÿunity group to testify, who indicates adesire to express the views of those citizen orcommunity group concerning the proposed boundaryamendment. Anyone who desires to testify shal! makewritten application to be a witness prior to thehearing and, if the person desires to express the viewsof a citizen or community group, shall submit writtenevidence to show that the person is a duly authorizedrepresentative of the citizen or community group.

(c) The presiding officer shall place witnessesunder oath or affirmation prior to testifying.[Elf 10/27/86; am and comp 8/16/97; comp 5/8/00; am andcomp NOV 0 ÿ013 ] (iuth: HRS §ÿ205-i, 205-7)(Imp: HRS ÿ§91-2, 205-4)

§15-15-59 Conduct of hearing. (a) The hearingshall be conducted in accordance with this subchapter.Unless otherwise provided by law, the party initiatingthe proceeding shal! have the burden of proof,including the burden of producing evidence and theburden of persuasion°

(b) The presiding officer shall convene the

47

hearing and summarize the proceeding.(c) Before presenting the case, the parties shall

have the opportunity to make opening statements in theorder in which they present witnesses. Openingstatements may be waived.

(d) Unless otherwise directed by the presidingofficer, witnesses shall be called in the followingorder in a district boundary amendment proceeding:

(1)(2)(3)(4)

(5)(6)

e)

Witnesses for the petitioner;Witnesses for the county planning department;Witnesses for the state office of planning;Witnesses for each intervenor, in the orderin which intervention was granted;Rebuttal witnesses for the petitioner;Additional witnesses as the presiding officermay determine.Witnesses shal! be examined in the following

orderi) Direct examination by the party calling the

witness;2) Cross-examination by the other parties;3) Examination by the presiding officer or any

member of the commission;4) Redirect examination by the party calling the

witness;5) Recross examination by the other parties;6) Reexamination by the presiding officer or any

member of the commission.(f) After all parties have presented their cases

through testimony and exhibits, all parties may provideclosing statements in the order in which they presentedwitnesses; provided that petitioner may make a rebuttalclosing statement. Closing statements may be waived.[Eff 10/27/86; comp 8/16/97; comp 5/8/00; am and comp

NOV 0 22013 ] (Auth: HRS ÿ§205-i, 205-7) (Imp:HRS ÿ§91-2, 205-4)

15-15-60 Presiding officer. (a) Notwithstandingsection 15-15-06, in all hearings before thecommission, the chairperson, a vice-chairperson, one ofthe other commissioners, or a hearings officerappointed by the commission shall preside at thehearing.

(b) The presiding officer shall convene thehearing and briefly state the nature of the case,control the schedule and course of the hearings,administer oaths and affirmations, receive evidence,hold appropriate conferences before and duringhearings, rule upon all objections or motions which do

48

not involve a final determination of the proceedings,receive offers of proof, and fix the time for thefiling of briefs or proposed findings of fact,conclusions of law and decisions and orders andresponses or objections thereto, dispose of any othermatter that normally and properly arises in the courseof a hearing, and take all other actions authorized bylaw that are deemed necessary to the orderly and justconduct of a hearing.

(c) The presiding officer may postpone or continueany hearing upon a motion of any party without ahearing. JEff 10/27/86; am and comp 8/16/97;comp 5/8/00; am and comp N0V 0 22013 ] (iuth: HRS§§205-1, 205-7) (Imp: HRS §§91-2, 205-4)

§15-15-61 Disqualification. No commissioner orhearings officer shal! sit in any proceeding in whichthe commissioner or hearings officer has a personalpecuniary or business interest, or one in which thecommissioner or hearings officer is related within thefirst degree by blood or marriage to any party to theproceeding. However, if, after declaring the nature ofthe circumstances of the pecuniary interest orconsanguinity to the parties, and the parties do notoppose the commissioner or hearings officer sitting inthe proceeding, the commissioner or hearings officermay participate in the proceeding. The record shallnote clearly the waiver by the parties. [Elf 10/27/86;am and comp 8/16/97; am and comp 5/8/00; am and comp

§ÿ2!2ÿnÿI 5_4) ] (Auth: HRS §ÿ205-i, 205-7) (Imp: HRS

§15-15-62 Ex parte communications. (a) Noperson whether or not a party to a proceeding beforethe commission shall make an unauthorized ex partecommunication either oral or written about theproceeding to any member of the commission or hearingsofficer who will be a participant in thedecision-making process or the executive officer.

(b) The following classes of ex partecommunications are permitted:

(i) Communications which relate solely to matterswhich a commission member or hearings officeris authorized by the commission to dispose ofon an ex parte basis, includingcommunications regarding scheduling or otherprocedura! matters regarding the course ofthe proceeding;

49

2

3

Requests for information with respect to thestatus Of a proceeding;Communications which all parties to theproceeding agree or which the commission hasformally ruled may be made on an ex partebasis; andCommunications with representatives of anynews media on matters intended tO inform thegeneral public. [Elf 10/27/86; am and comp8/16/97; comp 5/8/00; am and compN0V 0 2ÿ013 ](Auth: HRS ÿ205-i, 205-7) (Imp: HRS§91-2, 91-13, 205-4)

§15-15-63 Evidence. (a) In contested cases,evidentiary requirements shall be controlled by thissection.

(b) Any oral or documentary evidence may bereceived, but the commission shall as a matter ofpolicy provide for the exclusion of irrelevantÿimmaterial, or unduly repetitious evidence and nosanction shall be imposed or rule or order be issuedexcept upon consideration of the whole record or suchportions thereof as may be cited by any party and assupported by and in accordance with the reliable,probative, and substantial evidence. The commissionshall give effect to the rules of privilege recognizedby law. Neither the commission nor a hearings officeris bound by the common law rules relating to theadmission or rejection of evidence.

(c) The presiding officer shall rule on theadmissibility of all evidence. The rulings may bereviewed by the commission in determining the matter onits merits. In extraordinary circumstances, whereprompt decision by the commission is necessary topromote justice, the presiding officer may refer thematter to the commission for determination.

(d) When objections are made to the admission orexclusion of evidence, the objecting party shallbriefly state the grounds relied upon. Formalexceptions to rulings are unnecessary and need not betaken.

(e) An offer of proof for the record shallconsist of a statement of the substance of the evidenceto which objection has been sustained.

(f) With the approval of the presiding officer, awitness may read into the record the testimony of awitness on direct examination. Before any writtentestimony is read, unless excused by the presidingofficer, the witness shall provide an original and one

5O

3-081

paper copy and one electronic copy of the writtentestimony to the chief clerk, with a copy to each partyto the proceeding. Admissibility shal! be subject tothe rules governing oral testimony. If the presidingofficer deems that substantial saving in time wil!result, a copy of the written testimony may be receivedinto evidence without reading, provided that thewitness shall be subject to proper cross-examination onmatters contained in the written testimony. Anyamendments to written direct and rebuttal testimony, orthe introduction of totally new matters by revisions orsupplements shal! be accompanied by a sworn affidavitor declaration explaining why these matters were notsubmitted with the original written testimony.

(g) Documentary evidence may be received in theform of copies or excerpts if the origina! is notreadily available; provided that upon request partiesshall be given an opportunity to compare the copy withthe origina!.

(h) Exhibits shall be legible and may be preparedon paper not exceeding 8-1/2 x ii inches in size orbound or folded to the respective approximate size,where practica!. Where practicable, sheets of eachexhibit shall be numbered and data and other figuresshall be set forth in tabular form. When exhibits areoffered in evidence, the party shall furnish theoriginal, one paper copy and one electronic copy of theexhibits to the chief clerk with a copy to each partyto the proceeding, unless copies have been previouslyfurnished or the presiding officerdirects otherwise. The number and format of copiesrequired under this section may be modified by order ofthe commission.

(i) A party may use maps or other demonstrativeexhibits as evidence provided the parties submit thenumber of legible copies as may be required by thepresiding officer. The commission shall not permit theintroduction of or testimony from any visual aid notintroduced as evidence.

(j) If any matter contained in the petition or ina document filed as a public record with the commissionis offered in evidence, unless directed otherwise bythe presiding officer, the document need not beproduced as an exhibit, but may be received in evidenceby reference, provided that the particular portions ofthe document are specifically identified and areotherwise competent, relevant, and material, iftestimony in proceedings other than the one being heardis offered in evidence, a copy shall be presented as anexhibit, unless otherwise ordered by the presiding

51

officer.(k) The commission may take official notice of

matters as may be judicially noticed by the courts ofthe State of Hawai'i. Official notice may also betaken of generally recognized technical or scientificfactswithin the commission's specialized knowledge whenparties are given notice either before or during thehearing of the material so noticed and afforded theopportunity to contest the facts so noticed.

(i) At the hearing, the presiding officer mayrequire the production of further evidence throughtestimony or exhibits upon any issue. The presidingofficer may authorize the filing of specificdocumentary evidence as a part of the record after theclose of the hearing, subject to the rights of theparties to request reopening of the hearing within aspecified time after the receipt of such evidence, ormay keep the hearing open until such time as evidenceis received by the commission. Upon agreement of theparties, the presiding officer may authorize the filingof specific documentary evidence as a part of therecord within a fixed time after submission, reservingan exhibit number therefor, but the hearing shallremain open. The presiding officer is authorized toclose the hearing when the exhibit is received,provided that there is no objection from any party, andno request to cross-examine by any party or a requestto answer questions by a commissioner. JEff 10/27/86;am and comB 8/16/97; am and comB 5/8/00; am and comBN0V 022013 ] (Auth: HRS §§205-1, 205-7)(Imp: HRS§91-2, 91-10, 205-4)

15-15-64 REPEALED [ÿOV O ÿ/ÿD313]

15-15-65 Limiting testimony. To avoidunnecessary cumulative evidence, the presiding officermay limit the number of witnesses or the time fortestimony upon a particular issue. [Elf 10/27/86;comB 8/16/97; comB 5/8/00; comB NOV 0 ÿ2013 ](Auth: HRS §ÿ205-i, 205-7) (Imp: HRS §§91-2, 205-4)

§15-15-66 Removal from proceeding. Any personwho wilfully disrupts a hearing or other proceeding maybe removed from the hearing room. [Elf 10/27/86; amand comB 8/16/97; comB 5/8/00; am and compN0V 0 ÿ013 ]

52

(Auth: HRS §§205-1, 205-7) (Imp:205-4)

HRS §§91-2, 92-3,

515-15-67 Co-counsel. Where a party isrepresented by more than one attorney orrepresentative, only one of the attorneys orrepresentatives shal! be permitted to make an openingstatement, or to examine or cross-examine a particularwitness or to state any objections or to make c!osingstatements, unless otherwise authorized by thepresiding officer. JEff 10/27/86; am and comp 8/16/97;comp 5/8/00; am and comp NOV 0 22013 ] (iuth: HRS5§205-1, 205-7 (Imp: HRS 5591-2, 205-4)

515-15-68 REPEALED [R NOV 0/ÿ]

515-15-69 Subpoenas. (a) Any party may file awritten motion for the issuance of a subpoena requiringthe attendance of a witness for the purpose of takingoral testimony before the commission, which motionshal! not requmre a hearing.

(b) Motions for the issuance of subpoenas ducestecum shall:

(i) Be in writing;(2) Specify the particular document or record, or

part thereof, desired to be produced;(3) State the reasons why the production thereof

is believed to be material and relevant tothe issues involved; and

(4) Include a statement of the reasons why thetestimony of the witness is believed to bemateria! and relevant to the issues involved.

(c) Three original copies of the subpoenas ducestecum shall be submitted together with the motion filedpursuant to subsection (b).

(d) The presiding officer, chairperson, or in thechairperson's absence, any commissioner, may issuesubpoenas. Subpoenas shall not be issued unless theparty requesting the subpoena has complied with thissection. Signed and sealed blank subpoenas shall notbe issued to any person. The name and address of thewitness shall be inserted in the original subpoena, acopy of which shal! be filed in the proceeding.Subpoenas shall show at whose instance the subpoena isissued.

53

3081

(e) A party requesting the subpoenas shall beresponsible for service of the issued subpoenas, andpay the witnesses summoned the same fees and mileage asare paid witnesses in circuit courts of the State ofHawai'i, and the fees and mileage shall be paid by theparty at whose instance the witness appears.

(f) Notwithstanding any rule to the contrary, thechairperson, a commissioner, or a duly-appointedhearings officer may make an oral motion to request theissuance of a subpoena. [Elf 10/27/86; am and comp8/16/97; comp 5/8/00; comp NOV 022013 ] (iuth:HRS ÿ§205-i, 205-7) (Imp: HRS §ÿ91-2, 92-16, 205-4)

15-15-70 Motions. (a) Any party may makemotions before, during, or after the close of ahearing.

(b) All motions, other than those made during ahearing, shall:

(i Be in writing;(2 State the grounds for the motion;(3 Set forth the relief or order sought;(4 Be accompanied by a memorandum in support of

the motion, if the motion involves a questionof law; and

(5 Be filed with the commission at least tenbusiness days before the next regularlyscheduled meeting of the commission.

(c Every motion, except one entitled to be heardex parte, shall indicate whether a hearing is requestedon the motion. If a motion requires the considerationof facts not appearing of record, it shall be supportedby affidavits or declarations.

(d) The moving party shall serve a copy of allmotion papers on all other parties and shall file theoriginal plus one paper copy and one electronic copywith the commission and proof of service. The numberand format of copies required under this section may bemodified by order of the commission.

(e) The opposing party Or parties shallserve on all other parties and file counter affidavitsand memorandums in opposition to the motion and of theauthorities relied upon not later than seven days afterbeing served with any written motion, or, if thehearing on the motion will occur less than seven daysafter the motion is served, at least forty-eight hoursbefore the time set for hearing, unless otherwiseordered by the chairperson, chairperson's designee, orhearings officer. The chairperson, chairperson'sdesignee, or hearings officer may order the opposing

54

3081 i. m

party or parties to file its memorandum in oppositionearlier than the seven day period. The opposing partyshall file the origina! plus one paper copy and oneelectronic copy with the commission and proof ofservice. The number and format of copies required underthis section may be modified by order of thecommission.

(f) Any party who does not oppose a motion or whointends to support a motion or who desires acontinuance shall notify the commission, through theexecutive officer, and the opposing counsel withinseven days after being served or, if the hearing on themotion will occur less than seven days after the motionis served, within forty-eight hours before the time setfor hearing.

(g) Failure to serve or file memoranda inopposition to a motion or failure to appear at thehearing may be deemed a waiver of objection to thegranting or denia! of the motion.

(h) Motions that do not involve the finaldetermination of a proceeding may be heard anddetermined by the chairperson, commissioner, orhearings officer.

(i) If a hearing is requested, the executiveofficer shall set a date and time for hearing on themotion.

(j) If a hearing on the motion is not requested,the commission may decide the matter upon thepleadings, memoranda, and other documents filed withthe commission.

(k) Any motion, except a motion for relief fromor release of conditions submitted by the same party orparties and based upon substantially the same groundsas a previous motion that has been considered by thecommission or denied by the commission shall not beagain considered.

(i) After the hearing on the evidence is closed,but before the commission votes on a decision, a partyfor good cause shown may move to re-open the hearing totake newly discovered evidence. The motion shallspecify the facts claimed to constitute good cause,including material changes of fact or of law alleged tohave occurred since the closing of the hearing andshall provide a description of the proposed additionalevidence and an explanation of why the newly discoveredevidence was not previously adduced. The party filingthe motion shall be responsible for fees and costspursuant to section 15-15-45.1.

(m) Orders granting, denying or otherwisedisposing of motions, except motions to amend decisions

55

and orders relating to district boundary amendments andto special permits, may be signed by the chairperson orany vice chairperson, or the presiding officer, or thehearings officer, as the case may be. Orders granting,denying, or otherwise disposing of motions relating toamendments of decisions and orders in district boundaryamendment proceedings and to special permits shall besigned by the commissioners who have heard or examinedthe evidence relating to the motion and who have votedaffirmatively on the decision. [Eff 10/27/86; am andcomp 8/16/97; comp 5/8/00; am and comp NOV 0 ÿ2813 ](Auth: HRS §ÿ205-i, 205-7) (Imp: HRS ÿ91-2, 205-4)

§15-15-70.1 Protective orders. Any party or anyperson may move for a protective order to protect theconfidentiality of information that is protected fromdisclosure under chapter 92F, HRS, or by other law. Amotion for protective order shall specifically identifythe document or information to be protected. Themovant shall bear the burden of establishing that theinformation should be protected. Stipulations forprotective order, subject to the commission's approval,may be filed in lieu of motions for protective orders.[Elf and comp NOV 0 22013 ] (iuth: HRS §§205-1,205-7)

§15-15-71 Substitution of parties. Upon motionand for good cause shown, the commission may ordersubstitution of parties, except that in the case ofdeath of a party, substitution may be ordered withoutthe filing of a motion. [Elf 10/27/86; comp 8/16/97;comp 5/8/00; comm NOV @ 22013 ] (Auth: HRS§205-i, 205-7) (Imp: HRS §91-2, 205-4)

15-15-72 Correction of transcript. Thechairperson, presiding officer, or hearings officershall determine any motion at the hearing to correctthe transcript. Any motions after the' hearing tocorrect the transcript shall be filed with thecommission within seven days after receipt of thetranscript unless otherwise directed, and shall beserved on all parties. Such motions shall certify thedate when the transcript was received. If noobjections are received before seven days after thedate of service, the transcript, upon approval of thecommission, shall be changed to reflect thecorrections. [Elf 10/27/86; am and comp 8/16/97;

56

]08 i

comp 5/8/00; comp NOV 0 2 2013 ]§§205-1, 205-7) (Imp: HRS §91-2)

(Auth: HRS

§15-15-73 Post hearing procedures. Post hearingprocedures shal! conform to subchapters 9 and i0.[Elf 10/27/86; comp 8/16/97; comp 5/8/00; c0mp

NOV 0 2013 ] (Auth: HRS §5205-1, 205-7) (Imp: HRS591-2)

515-15-74 Decision. (a) For district boundaryamendment petitions filed before December 31, 1995,within a period of not more than one hundred twentydays after the c!ose of the hearing, unless otherwiseordered by the court, the commission, by filingfindings of fact and conclusions of law, shallact to approve the petition, deny the petition, or tomodify the petition by imposing conditions inaccordance with subchapter ii.

(b) For district boundary amendment petitionsfiled on or after July 14, 1998, prior to a period ofnot more than three hundred sixty-five days after thepetition has been deemed a proper filing by thecommission or the executive officer, unless otherwiseordered by a court, or unless a time extension, not toexceed ninety days, is established by a two-thirds voteof the members of the commission, the commission, byfiling findings of fact and conclusions of law, shallact to approve the petition, deny the petition, or tomodify the petition by imposing conditions inaccordance with subchapter ii. If the commission failsto act on the petition pursuant to section 205-4(g),HRS, the petition shall be deemed approved, subject tothe provisions of section 15-15-90(e).

(c) Notwithstanding subsections (a), and (b),decisions for petitions submitted pursuant to section201H-38, HRS, shall be made in the timeframe asprovided in section 15-15-97. JEff 10/27/86; am3/24/94; am and comp 8/16/97; am and comp 5/8/00; amand comm NOV @ 22013 ] (iuth: HRS 5591-13.5,205-1, 205-4, 205-75) (Imp: HRS 55 91-13.5, 201G-I18,205-4, SLH 1992, Act 227, §i, SLH 1994, Act 261, 51)

515-15-75 Appeals. Parties to proceedings toamend land use district boundaries may obtain judicialreviews thereof in the manner set forth in section91-14, HRS. JEff 10/27/86; comp 8/16/97; comp5/8/00; comp NOV 0 22013 ] (Auth: HRS 55205-1,

57

205-7) (Imp: HRS ÿ§91-14, 205-4)

§15-15-76 Re-application by the petitioner forboundary amendment. (a) The commission shall notaccept any petition for boundary amendment coveringsubstantially the same request for substantially thesame land as had previously been denied by thecommission within one year of the date of filingfindings of fact and conclusions of law denying thepetition unless the petitioner submits significant newdata or additiona! reasons which substantiallystrengthen the petitioner's position, provided that inno event shall any new petition be accepted within sixmonths of the date of filing of the findings of factand conclusions of law.

(b) Additionally, the commission shall not acceptany petition for boundary amendment for the samerequest involving the same land that was before thecommission and withdrawn voluntarily by the petitionerwithin one year of the date of the withdrawal. [Elf10/27/86; am and comp 8/16/97; comp 5/8/00; am and compNOV 0 ÿ2013 ] (Auth: HRS ÿ§205-i, 205-7) (Imp:

HRS §91-2)

SUBCHAPTER 8

DECISION-MAKING CRITERIA FOR BOUNDARY AMENDMENTS

§15-15-77 Decision-making criteria for boundaryamendments. (a) The commission shall not approve anamendment of a land use district boundary unless thecommission finds upon the clear preponderance of theevidence that the proposed boundary amendment isreasonable, is not violative of section 205-2, HRS, andis consistent with the policies and criteriaestablished pursuant to sections 205-16, 205-17, and205A-2, HRS.

(b) In its review of any petition for amendmentof district boundaries pursuant to this chapter, thecommission shall specifically consider the following:

(i) The extent to which the proposed boundaryamendment conforms to the applicable goals,objectives, and policies of the Hawai'i stateplan and relates to the applicable priorityguidelines of the Hawai'ÿ state plan and theadopted functional plans;

(2) The extent to which the proposedboundary amendment conforms to the applicable

58

district standards;(3) The impact of the proposed boundary amendment

on the following areas of state concern:(A) Preservation or maintenance of important

natural systems or habitats;B) Maintenance of valued cultura!,

historical, or natural resources;C) Maintenance of other natura! resources

relevant to Hawai'i's economy including,but not limited to agriculturalresources;

D) Commitment of state funds and resources;E) Provision for employment opportunities

and economic deve!opment; and(F) Provision for housing opportunities for

all income groups, particularly the low,low-moderate, and gap groups;

(4) In establishing the boundaries of thedistricts in each county, the commissionshall give consideration to the general plan,and community, deve!opment, or communitydeve!opment plans of the county in which theland is located;

(5 The representations and commitments made bythe petitioner in securing a boundaryamendment, including a finding that thepetitioner has the necessary economic abilityto carry out the representations andcommitments relating to the proposed use ordevelopment;

6 Lands in intensive agricultural use for twoyears prior to date of filing of a petitionor lands with a high capacity for intensiveagricultural use shal! not be taken out ofthe agricultura! district unless thecommission finds either that the action:(A) Will not substantially impair actua! or

potential agricultural production in thevicinity of the subject property or inthe county or State; or

(B) Is reasonably necessary for urbangrowth; and

7 In considering boundary amendments for landsdesignated important agricultural landspursuant to part III, chapter 205, HRS, thecommission shal! specifically consider thestandards and criteria set forth in section205-50, HRS.

c) Amendments of a land use district boundary inconservation districts involving land areas fifteen

59

3081. ;ram

acres or less shall be determined by the commissionpursuant to this subsection and section 205-3.1, HRSo

(d) Amendments of a land use district boundary inother than conservation districts involving land areasfifteen acres or less shall be determined by theappropriate county land use decision-making authorityfor the district.

(e) Amendments of a land use district boundaryinvolving land areas greater than fifteen acres shallbe determined by the commission, pursuant to thissubsection and section 205-3.1, HRS. [Eff 10/27/86; amand comp 8/16/97; comp 5/8/00; am and comp NOV 0 22013] (Auth: HRS §§205-1, 205-7) (Imp: HRS @ÿ205-3.1,

205-4, 205-16, 205-17)

@15-15-78 Incremental districting. (a) If itappears to the commission that full development of thesubject property cannot substantially be completedwithin ten years after the date of the commission'sapproval and that the incremental development plansubmitted by the petitioner can be substantiallycompleted, and if the commission is satisfied that allother pertinent criteria for amending the land useboundary for the subject property or part thereof arepresent, then the commission may:

(i) Grant the petitioner's request to amend theland use boundary for the entire subjectproperty; or

(2) Amend the land use boundary for only thatportion of the subject property which thepetitioner plans to develop first and upon whichit appears that substantial development can becompleted within ten years after the date of thecommission's approval. At the same time, thecommission shall indicate its approval of thefuture land use boundary amendment of the totalsubjectproperty requested by the petitioner, orso much thereof as shall be justified asappropriate therefor by the petitioner, suchapproval to indicate a schedule of incrementalland use boundary amendments over successiveperiods not to exceed ten years each. Thecommission may amend the land use boundary of thesubject property, if it finds such an amendment isjustified.(b) In amending a land use district boundary on

an incremental basis, in addition to standards in thissubchapter, the commission may consider projectedpopulation growth for the area, other lands that have

6O

received boundary amendments in the area, theavailability of and impacts on resources, and thedesirability of directing growth and development to thearea over a long term basis.

(c) Upon receipt of an application for boundaryamendment for the second and subsequent increments ofproperty for which previous approval for incrementa!development has been granted by the commission,substantial completion of any offsite and onsiteimprovements of the deve!opment, in accordance with theapproved incremental plan, of the preceding incrementthat received boundary amendment will be prima facieproof that the approved incrementa! plan complies withthe requirements for boundary amendment.

(d) The following are procedures for processingincrementa! boundary amendment applications:

(i) The petitioner shall file an origina!, onepaper copy and one electronic copy of anapplication to approve the second orsubsequent increments utilizing the samedocket number as the original petition. Thenumber and format of copies required underthis section may be modified by order of thecommission;

(2) The petitioner shall serve copies of theapplication on all parties of record in theoriginal proceeding;

(3) The application shall include facts,affidavits or declarations, and otherdocumentation, including a metes and boundsdescription and map, in support of the factthat the petitioner has substantiallycompleted offsite and onsite improvements,complied with chapter 343, HRS, whereapplicable, and complied with conditions ofthe commission approval in accordance withthe approved incremental plan of thepreceding increment receiving a boundaryamendment;

(4 A preheating conference may be conductedpursuant to section 15-15-57;

(5 A notice of hearing shal! be publishednotifying the public of the time and placethe application will be considered by thecommission and wil! provide for the admissionof public witnesses;

(6 The procedures for hearing the applicationwil! be subject to the timeframes presentlyexisting for district boundary amendments,and the provisions of section 15-15-13; and

61

(7) The petitioner shall provide notice of theapplication to all persons having a propertyinterest in the increment for which a landuse district boundary amendment is sought.[Elf 10/27/86; am and comp 8/16/97; am andcomp 5/8/00; am and comp N0V 0 212013 ](Auth: HRS §§205-1, 205-7) (Imp: §205-4)

15-15-79 Performance time. (a) Petitionersgranted district boundary amendments shall makesubstantial progress within a reasonable period, asspecified by the commission, from the date of approvalof the boundary amendment, in developing the propertyreceiving the boundary amendment. The commission mayact to amend, nullify, change, or reverse its decisionand order if the petitioner fails to perform asrepresented to the commission within the specifiedperiod.

(b) The commission may provide by condition thatabsent substantial commencement of use of the subjectproperty or substantial progress in developing the landreceiving the boundary amendment in accordance withrepresentations and commitments made by the petitionerto the commission, the commission shall issue and serveupon the party bound by the condition an order to showcause why the property should not revert to its formerland use district classification or be changed to amore appropriate land use district classification.Such conditions, if any, shall run with the land and berecorded in the bureau of conveyances pursuant tosection 15-15-92. JEff 10/27/86; am and comp 8/16/97;comp 5/8/00; am and compmp:N0V 0 ÿ]3 ] (Auth:

20s-4, 205-7) 20 -4)

SUBCHAPTER 9

POST HEARING PROCEDURES FOR HEARINGS BEFORETHE COMMISSION

§15-15-80 Briefs. The presiding officer may fixthe time for the filing of briefs. Exhibits may bereproduced in an appendix to a brief. A brief of morethan twenty pages shall contain a subject index andtable of authorities. Requests for extension of timeto file briefs must be made to thecommission inwriting with one original, one paper copy, and oneelectronic copy filed with the commission, and a copy

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served upon or mailed to the parties to the proceeding.Ordinarily, when a matter is to be submitted onconcurrent briefs, extensions shall not be grantedunless a stipulation is filed with the commission.[Elf 10/27/86; eomp 8/16/97; comp 5/8/00; am and comp

NOV 0 22013 ] (iuth: HRS §§205-1, 205-7) (Imp:HRS §§91-2, 205-4)

15-15-81 Oral argument. The commission or thepresiding officer may direct or permit the presentationof oral argument with the petitioner opening andconcluding the argument. Not more than fifteen minuteson each side of the proceeding shall be allowed forargument without special leave of the commission. JEff

N0ÿ/ÿ6;vUÿLU1a am and comp 8/16/97; comp 5/8/00; comp] (Auth: HRS §§205-1, 205-7) (Imp: HRS

§91-2, 91-9, 205-4)

15-15-82 Issuance of decisions and orders. (a)A proceeding shall stand submitted for decision by thecommission after the taking of evidence, and the filingof briefs or the presentation of oral argument as mayhave been prescribed by the presiding officer orhearings officer. Each party to the proceeding shallsubmit a proposed decision and order which shallinclude proposed findings of fact. If a party entersinto a partia! stipulation as authorized in section 15-15-82ol, the party shall nevertheless file a proposeddecision and order indicating the findings of fact,conclusions of law and proposed conditions that arestipulated to and also set forth proposed findings offact, conclusions of law and proposed conditions thatit proposes that are different than the stipulation° Aproposed decision and order shall be filed with thecommission consisting of one origina!, one paper copy,and one electronic copy, and a copy served upon eachparty to the proceeding and an opportunity given toeach party to comment thereon.

(b) A commission member may prepare a proposedfindings of fact and conclusions of law, and serve thedocument upon each party not less than ten businessdays prior to the meeting at which the proposedfindings of fact and conclusions of law shal! bepresented.

(c) Notwithstanding any provision of this chapterto the contrary, each party may provide its position onthe commission members' proposed findings of fact andconclusions of law within five business days from the

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date of service. Aiy party providing its positionshal! provide a summary of its reasons for support orobjection.

(d) Every decision and order adverse to a partyto the proceeding, rendered by the commission in acontested case, shall be accompanied by separatefindings of fact and conclusions of law.

(e) Findings of fact, conclusions of law, anddecision and order shall be issued by the commissionfor district boundary amendments and special permitsdeemed approved pursuant to section 91-13.5, HRS. Thedecision and order shall include mandatory conditionspursuant to section 15-15-90(e). [Effÿ i0/27/86; am andcomp 8/16/97; am and comp 5/8/00; am and comp NOV 0ÿ@13

] (Auth: HRS ÿ§91-13.5, 205-1, 205-7) (Imp:91-2, 91-12, 205-4)

15-15-82.1 Stipulation as to findings of fact,conclusions of law, conditions of boundary amendment,and decision and order. After the close of theevidentiary portion of the hearing, some or all partiesmay enter into stipulations as to findings of fact,conclusions of law, conditions of boundary amendment,and decision and order concerning the proposed boundaryamendment as follows:

(i) A petitioner who desires to enter into astipulation shall prepare a proposedstipulation as to any or all findings offact, conclusions of law, conditions ofboundary amendment, and decision and orderconcerning the proposed boundary amendment;

(2) Parties in agreement with a stipulation shallsign the proposed stipulation as to any orall proposed findings of fact, conclusions oflaw, conditions of boundary amendment, and aproposed decision and order, and shal! submitsuch stipulation to the commission within thetime frame specified by the commission;

(3) After the hearing, the commission may adoptthe proposed stipulation, and if it adoptsthe stipulated decision and order thecommission may amend, accept, modify orreject in part or in whole any of thefindings of fact, conclusions of law,conditions of boundary amendment, andanything else contained in the stipulation;

(4) The commission shall issue a decision andorder pursuant to provisions of sections 15-15-36 and 15-15-74 and section 205-4(g), HRS.

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[Elf and coup NOV O 22013@ÿ205-i, 205-7)

((Auth: HRS

§15-15-83 Service of decisions and orders. Thecommission shall serve the decisions and orders bypersonal delivery or mailing certified copies to theparties of record. The effective date of the decisionand order is the date certified by the executiveofficer. When a party to a proceeding has appeared bya representative, service upon the representative orattorney shal! be deemed to be service upon the party.

[Elf 10/27/86; am and comp 8/16/97; comp 5/8/00; amand comp N0V ÿ 22013 ] (iuth: HRS §§205-1, 205-7)

(Imp: HRS ÿ§91-2, 91-12, 205-4)

15-15-84 Reconsideration of decision. (a) Amotion for reconsideration shall be filed with thecommission within seven calendar days after issuance ofthe commission's written decision and order. Themotion for reconsideration shall clearly specify thatthe motion is for reconsideration.

(b) The motion for reconsideration shall statespecifically the grounds on which the movant considersthe decision or order unreasonable, unlawful, orerroneous.

(c) In no event wil! the commission consider anymotion for reconsideration on any petition after theperiod within which the commission is required to acton the petition. [Elf 10/27/86; am and comp 8/16/97;comp 5/8/00; am and compÿ N0V 0 ÿ2013 ] (Auth:HRS §§205-1, 205-7) (Imp: HRS §§91-2,20 5-4)

SUBCHAPTER I0

POST HEARING PROCEDURES FOR HEARINGCONDUCTED BY HEARINGS OFFICER

§15-15-85 Recommended decision. (a) Uponcompletion of taking of the evidence, the hearingsofficer may request the parties to submit a proposedfindings of fact, conclusions of law, and decision andorder, consisting of one original, one paper copy, andone electronic copy. Proposed decision and orderssubmitted shall be served upon each party to theproceeding and an opportunity given to each party tocomment thereon, upon receipt of the proposed decisionand orders and any comments from the parties, thehearings officer shall prepare and submit to the

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commission a recommended decision which shall includerecommended findings of fact, conclusions of law and arecommended decision and order.

(b) The record shall include the petition andother pleadings, notice of hearing, motions, rulings,orders, transcript of the hearing, stipulations,documentary evidence, offers of proof, proposedfindings, or other documents submitted by the parties,all matters placed in evidence, objections to theconduct of the hearing, the recommended decision of thehearings officer, and all other matters placed inevidence.

[Elf 10/27/86; am and comp 8/16/97;comp 5/8/00; am and comp NOV 0 22013 ] (iuth: HRS

205-i, 205-7)

§15-15-85.1 Proposed decision. Upon receipt ofthe hearings officer's recommended decision, thecommission may adopt it as its proposed decision, ormay remand it to the hearings officer for anyclarification or correction, or may modify or reject itand issue its own proposed decision.

A copy of any proposed decision of the commissionshall be served upon each party. [Elf and comp

NOV 0 ÿ013 ] (iuth: HRS ÿ§205-i, 205-7)

§15-15-86 Exceptions; extension of time; finalityof proposed decision. (a) Within fourteen calendardays after the date of mailing or personal service of acopy of the commission's proposed decision, a party mayfile with the commission exceptions to any part thereofand request review by the commission. Such party shallserve copies of exceptions and briefs upon each partyto the proceeding.

(b) The exceptions shall:(i) Set forth specifically the questions of

procedure, fact, law, or policy, to whichexceptions are taken;

(2) Identify that part of the proposed decisionto which objections are made;

(3) Designate by page citation the portions ofthe record relied upon and specifyauthorities relied upon to sustain eachpoint; and

(4) State al! the grounds for exceptions to aruling, finding, or conclusion. Grounds notcited or specifically urged are waived.

(c) Any party may apply for an extension of time

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within which to file exceptions to the proposeddecision by filing a written application setting forththe reason for the request. The application shal! befiled before the expiration of the period prescribedfor the filing of exceptions. Upon good cause shown,the executive officer may extend the time for filingexceptions for an additional period not to exceed ten(i0) calendar days.

(d) If no exceptions and request for review arefiled within the time specified, the proposed decisionshall become final, unless the commission, on its ownmotion, orders further proceedings to be held. [Eff10/27/86; am and comp 8/16/97; comp 5/8/00; am and comp

NOV 0 22013 ] (Auth: HRS §5205-1, 205-7)(Imp: HRS 5591-2, 91-11, 205-4)

515-15-87 Support of hearings officer'srecommended decision. (a) Within seven days afterservice of the exceptions taken to the proposeddecision, any party may file with the commission abrief opposing the exceptions. Such party shal! servecopies of the brief in support upon each party to theproceeding

(b) The brief opposing exceptions shall:(i) Answer specifically the points of procedure,

fact, law, or policy to which exceptions weretaken;

(2) State the facts and reasons why the proposeddecision must be affirmed; and

(3) Designate by page citation the portions ofthe record relied upon. JEff 10/27/86; amand comp 8/16/97; comp 5/8/00; am and comp

0V 0 22013 ] (Auth: HRS 55205-i, 205-7) (Imp: HRS 5591-2, 91-11, 205-4)

515-15-88 Argument on exceptions. Upon thefiling of exceptions by a party adversely affected bythe proposed decision, the commission shal! grant suchparty an opportunity to present arguments to thecommission. The executive officer, with direction fromthe chairperson, shall set the time and place ofhearing of argument on exceptions and give writtennotice to the parties. [Elf 10/27/86; am and comp8/16/97;comp 5/8/00; am and comp N0V 0 ÿ013 ] (iuth: HRS55205-1, 205-7) (Imp: HRS ÿ591-i0, 91-11, 205-4)

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3O8 1 imm

15-15-89 Final decision. (a) When exceptionshave been filed to the commission's proposed decision,the commission, within forty-five days after thehearing on exceptions, shall render its final decision°In rendering its final decision, the commission shall

consider the whole record or such portions thereof asmay be cited by the parties and shall resolve al!questions of fact by what it deems to be the greaterweight of the evidence thereon. The final decisionshall contain findings of fact and conclusions of lawupon which the decision is based.

(b) After the commission has heard and examinedall of the evidence, the commission, shall issue itsdecision within forty-five days after receiving theevidence, or filing of any memoranda or proposedfindings of fact and conclusions of law upon which thedecision is based. [Elf 10/27/86; am ÿd comm8/16/97; comp 5/8/00; am and commNUV 0 2ÿIÿ ]

(Auth: HRS §ÿ205-i, 205-7) (Imp: HRS ÿ91-2, 92-16)

SUBCHAPTER ii

CONDITIONS: FILING, ENFORCEMENT, MODIFICATION,DELETION

15-15-90 Imposition of conditions; generally.(a) In approving a petition for boundary amendment,the commission may impose conditions necessary touphold the general intent and spirit of chapters 205,205A, and 226, HRS, and to assure substantia!compliance with representations made by the petitionerin seeking the boundary amendment.

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

(c) The commission may require the petitioner tosubmit periodic reports indicating what progress hasbeen made in complying with any conditions that mayhave been imposed by the commission.

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

(e) If a boundary amendment petition filedpursuant to section 205-4, HRS, is approved pursuant to

68

section 91-13.5, HRS, or a petition filed pursuant tosection 201H-38, HRS, is deemed approved on the forty-sixth day, the following mandatory conditions shal!apply:

(i) Petitioner shall develop the land to whichthe boundary amendment applies in substantialcompliance with the representations made tothe commission. Failure to so develop thesubject property may result in reversion ofthe subject property to its former land usedistrict classification, or change it to amore appropriate land use districtclassification;

(2 Petitioner shall provide notice to thecommission of any intent to sell, lease,assign, place in trust, or otherwisevoluntarily alter the ownership interests inthe subject property prior to or duringdevelopment of the subject property,excluding, however, individual !ot sales orlease in a residentia! or industria!development;

(3 Petitioner shal! timely provide without anyprior notice, annual reports to thecommission, state office of planning, and therespective county planning department inconnection with the status of the projectproposed for the land to which the boundaryamendment applies, and petitioner's progressin complying with the conditions imposed.The annual report shall be submitted in aform prescribed by the executive officer ofthe commission. The annual report shallconsist of one origina!, one paper copy, andone electronic copy, and shall be due priorto or on the anniversary date of the approvalof the petition;

(4 The commission may fully or partially releasethe conditions provided herein as to all orany portion of the land to which the boundaryamendment applies upon timely motion and uponthe provision of adequate assurance by thepetitioner of satisfaction of the conditionsimposed;

(5 Within seven days of the approva! date of thepetition, the petitioner shall:(A) Record with the bureau of conveyances a

statement that the land to which theboundary amendment applies is subject toconditions imposed herein by the

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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 thebureau of conveyances pursuant to section 15-15-92;

7 Petitioner shall provide affordable housingopportunities for low, low-moderate, andmoderate income residents of the State ofHawai'i to the satisfaction of the respectivecounty in which the land to which theboundary amendment applies is located. Therespective county shall consult with theHawai'i housing finance and developmentcorporation prior to its approval of thepetitioner's affordable housing plan. The!ocation and distribution of the affordablehousing or other provisions for affordablehousing shall be under such terms as may bemutually agreeable between the petitioner andthe respective county;

8 Provided that the proposed land uses includeresidential units, petitioner shallcontribute to the development, funding, andconstruction of public schoo! facilities asdetermined by and to the satisfaction of thestate department of education;

9) Petitioner shall participate in the fundingand construction of adequate wastewatertransmission and disposal facilities, on afair-share basis, as determined by therespective county in which the land to whichthe boundary amendment applies is located,and the state department of health;

i0) Petitioner shall prepare a traffic impactanalysis report. The traffic impact analysisreport shall identify the traffic impactsattributable to the proposed development andrecommended proposed mitigation measures.The report should also reflect the latestplanning efforts for transportation. Thereport shall be reviewed and approved by thestate department of transportation, and therespective county transportation agency inwhich the land to which the boundaryamendment applies is located. Based upon thereport, the petitioner may be required toparticipate on a fair-share basis, in thefunding and construction of loca! and

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ii

12

13

14

15

regional transportation improvements andprograms, including dedication of rights-of-way as determined by the state department oftransportation and the respective countytransportation agency in which the land towhich the boundary amendment applies islocated;Petitioner shal!, on a fair-share basis, fundand construct adequate civi! defense measuresas determined by the state civil defenseagency;Petitioner shall have an archaeologicalinventory survey conducted by a professiona!archaeologist. The findings shall besubmitted to the state department of land andnatural resources, state historicpreservation division in report format foradequacy review and a copy shall be providedto the commission. The state historicpreservation division shall verify in writingwith a copy provided to the commission thatthe survey report is acceptable, thatsignificance evaluations are acceptable, andthat mitigation commitments are acceptable;If significant historic sites are present,the petitioner shall submit a detailedhistoric preservation mitigation plan forreview by the state historic preservationdivision and a copy shall be provided to thecommission. This plan may includepreservation and archaeological data recoverysubplans (detailed scopes of work). Thestate historic preservation division shallverify in writing with a copy provided to thecommission that the plan has beensuccessfully executed;Petitioner shal! stop work in the immediatevicinity should any previously unidentifiedburials, archaeological or historic sitessuch as artifacts, marine shellconcentrations, charcoa! deposits, or stoneplatforms, pavings or walls be found.Subsequent work shall proceed upon anarchaeological clearance from the statehistoric preservation division when itdetermines that mitigative measures have beenimplemented to its satisfaction;Petitioner shal! participate in an airquality monitoring program as specifiedÿ bythe state department of health;

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(16) Petitioner shall be responsible forimplementing sound attenuation measures tobring noise levels from vehicular traffic inthe affected properties down to a level offifty-five decibels;

(17) If the petition for a boundary amendmentinvolves prime agricultural lands, petitionershall be responsible for contributing to theprotection of an equivalent amount of primeagricultural lands and related infrastructurevia long-term agricultural conservationeasements or other agriculturally-relatedassets as determined by and to thesatisfaction of the state department ofagriculture;

(18) Petitioner shall notify all prospectivebuyers of property of the potential odor,noise, and dust pollution if there are anyagricultural district lands surrounding theland to which the boundary amendment applies;

(19) To the extent that the petition area iscontiguous or adjacent to lands in the Stateland use agricultural district, any actionthat would interfere with or restrain farmingoperations on those lands is prohibited,provided the farming operations are conductedin a manner consistent with generallyaccepted agricultural and managementpractices. Petitioner shall notify allprospective developers or purchasers of allor any portion of the petition area or anyinterest in the petition area, and shallrequire its purchasers to provide subsequentnotification to lessees or tenants thatfarming operations and practices on adjacentor contiguous land in the State land useagricultural district are protected underchapter 165, HRS, the Hawai'i Right to FarmAct. This notice shall be included in anydisclosure required for the sale or transferof al! or any portion of the petition area orany interest in the petition area;

(20) Petitioner shall fund the design andconstruction of drainage improvementsrequired as a result of the development ofthe land to which the boundary amendmentapplies to the satisfaction of theappropriate state and county agencies;

(21) Petitioner shall cooperate with the statedepartment of health and the respective

72

county to conform to the program goals andobjectives of chapter 342G, HRS, and therespective county's approved integrated solidwaste management plans in accordance with aschedule and timeframe satisfactory to thestate department of health;

(22) To the extent required by the statedepartment of health, petitioner shall ensurethat nearshore, offshore, and deep oceanwaters remain in pristine condition;

(23) Petitioner shall participate in the fundingand construction of adequate water source,storage, and transmission facilities andimprovements to accommodate the proposeduses. Water transmission facilities shall becoordinated and approved by appropriate stateand county agencies. The county's water useand development plan shall be amended toreflect changes in water demand forecasts andin water development plans to supply theproposed uses; and

(24) Petitioner shall preserve and protect anyestablished gathering and access rights ofnative Hawaiians who have customarily andtraditionally exercised subsistence,cultural, and religious practices on the landto which to the boundary amendment applies.

(f) If a special permit filed pursuant to section205-6, HRS, is approved pursuant to section91-13.5,HRS, the following mandatoryconditions shall apply:

i) All conditions listed under subsection (e);2) The proposed use shall be established within

one year from the date that the specialpermit was approved pursuant to section 91-13.5, HRS; and

3) The special permit shal! be valid for aperiod of five years from the approval datepursuant to section 91-13.5, HRS.[Elf 10/27/86; am and comp 8/16/97; am andcomp 5/8/00; am and comp ÿ0<ÿ2ÿtÿ ](Auth: HRS ÿ§91-13.5, 205-1, (Imp:HRS §ÿ91-13.5, 205-4)

§15-15-91 Applicability. Conditions imposed bythe commission shall run with the land and shall bebinding upon the petitioner and each and everysubsequent owner, lessee, sub-lessee, transferee,grantee, assignee, or developer. [Elf i0/27/86; .comp8/16/97; am and comp 5/8/00; comp NOV 0ÿ2013 ]

73

(Auth: HRS §ÿ205-i, 205-7) (Imp: HRS §205-4)

15-15-92 Filing procedure for conditions imposedby the commission. (a) Within seven days of issuanceof the decision and order pursuant to section 15-15-83,the petitioner shall file a notice of imposition ofconditions, in a form prescribed by the executiveofficer, with the bureau of conveyances.

(b) All conditions imposed by the commission inits decision and order and conditions pursuant tosection 15-15-90(e), shall be recorded at the bureau ofconveyances and shall comply with the fol!owingprocedures:

(i) The document listing the conditions shall besubmitted to the commission for review andapproval by the executive officer prior tofiling with the bureau of conveyances;

(2) The petitioner shall record the conditions atthe bureau of conveyances within sixtydaysafter the receipt of the decision and orderrequiring the same. The timeframe forrecordation of the condition may be extendedpursuant to section 15-15-42;

(3) Evidence of recordation shall be by certifiedcopy under the signature of the registrar ofconveyances. The petitioner shall forward acertified copy to the commission; and

(4) Description of the land shall be sufficientlyaccurate to identify the land intended to beaffected. [Elf i0/27/86; am and comp8/16/97; am and comp 5/8/00; am and comp

N0V 0 22ÿ13 ] (iuth: HRS §§205-1,205-7) (Imp: HRS ÿ§91-2, 205-4)

§15-15-93 Enforcement of conditions,representations, or commitments. (a) Any party orinterested person may file a motion with the commissionrequesting an issuance of an order to show cause upon ashowing that there has been a failure to perform acondition, representation, or commitment on the part ofthe petitioner. The party or person shall also serve acopy of the motion for an order to show cause upon anyperson bound by the condition, representation, orcommitment. The motion for order to show cause shallstate:

(i) The interest of the movant;(2) The reasons for filing the motion;(3) A description and a map of the property

74

affected by the condition;(4) The condition ordered by the commission which

has not been performed or satisfied;(5) Concisely and with particularity the facts,

supported by an affidavit or declaration,giving rise to a belief that a conditionordered by the commission has not beenperformed or satisfied; and

(6) The specific relief requested°(b) Whenever the commission shall have reason to

believe that there has been a failure to performaccording to the conditions imposed, or therepresentations or commitments made by the petitioner,the commission shall issue and serve upon the party orperson bound by the conditions, representations, orcommitments, an order to show cause why the propertyshould not revert to its former land use classificationor be changed to a more appropriate classification.The commission shall serve the order to show cause inwriting by registered or certified mail with returnreceipt requested at least thirty days before thehearing. A copy shall be also sent to all parties inthe boundary amendment proceedings. The order to showcause shall include:

i) A statement of the date, time, place, andnature of the hearing;

2) A description and a map of the property to beaffected;

3) A statement of the legal authority underwhich the hearing is to be held;

4) The specific sections of the statutes, orrules, or both, involved; and

5) A statement that any party may retain counse!if the party so desires.

c) The commission shal! conduct a hearing on anorder to show cause in accordance with the requirementsof subchapter 7, where applicable° Any procedure in anord6r to show cause hearing may be modified or waivedby stipulation of the parties and informa! dispositionmay be made in any case by stipulation, agreedsettlement, consent order, or default.

(d) Post hearing procedures shall conformto subchapter 7 or subchapter 9. Decisions and ordersshall be issued in accordance with subchapter 7 orsubchapter 9.

(e) The commission shall amend its decision andorder to incorporate the order to show cause byincluding the reversion of the property to its formerland use classification or to a more appropriateclassification.

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(f) Fees for a motion for order to show cause willbe borne by the movant pursuant to section 15-15-45.1herein. However, should the motion for order to showcause be granted, any further fees for proceedingsarising from the motion shall be borne by the partyupon which the order to show cause has been issued.[Eff 10/27/86; am and comp 8/16/97; comp 5/8/00; am andcomp NOV 0 22013 ] (Auth: HRS §§205-1, 205-7)(Imp: HRS §§91-2, 205-4, 205-12, 205-17)

§15-15-94 Modification or deletion of conditionsor orders. (a) If a peffitioner, pursuant to thissubsection, desires to have a modification or deletionof a condition that was imposed by the commission, orimposed pursuant to section 15-15-90(e) or (f), ormodification of the commission's order, the petitionershall file a motion in accordance with section 15-15-70and serve a copy on all parties to the boundaryamendment proceeding in which the condition was imposedor in which the order was issued, and to any personthat may have a property interest in the subjectproperty as recorded in the county's real property taxrecords at the time that the motion is filed.

(b) For good cause shown, the commission may actto modify or delete any of the conditions imposed ormodify the commission's order.

(c) Any modification or deletion of conditions ormodifications to the commission's order shall followthe procedures set forth in subchapter ii. [Elf10/27/86; am and comp 8/16/97; am andcomp 5/8/00; am and comm ÿ0V 0 22013 ] (Auth:HRS §ÿ205-i, 205-7) (Imp: HRS §2@5-4)

SUBCHAPTER 12

SPECIAL PERMITS

15-15-95 Petition before county planningcommission. (a) Any person who desires to use landwithin an agricultural or rural district for other thana permissible agricultural or rural use may petitionthe county planning commission of the county withinwhich the land is located for a special permit to usethe land in the manner desired; provided that if theperson is not the owner or sole owner in fee simple ofthe land, the record shall include evidence that the

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person requesting the special permit has writtenauthorization of all fee simple owners to file thepetition, which authorization shall also include anacknowledgement that the owners and their successorsshall be bound by the special permit and itsconditions.

(b) Special permits for areas greater thanfifteen acres require approval of both the countyplanning commission and the commission. Specialpermits approved by the county planning commission andwhich require commission approval must be forwarded tothe commission within sixty days following the countyplanning commission's decision. The county shallassure that prior to the county hearing on the petitionfor special permit, copies of the special permitpetition are forwarded to the land use commission, thestate office of planning, and the department ofagriculture for their review and comment. The decisionof the county planning commission recommending approvalof the special permit, together with the completerecord, including maps, charts, other exhibits andother evidence, and the complete transcript of theproceeding before the county planning commission mustbe transmitted to the commission. Unless otherwiserequired by the commission, the planning commissionshall file with the commission an original, one papercopy of the complete record, together with anelectronic copy of the complete record. The number andformat of copies required under this section may bemodified by order of the commission.

(c) Certain "unusual and reasonable" uses withinagricultural and rural districts other than those forwhich the district is classified may be permitted. Thefollowing guidelines are established in determining an"unusual and reasonable use":

(! The use shall not be contrary to theobjectives sought to be accomplished bychapters 205 and 205A, HRS, and the rules ofthe commission;

(2 The proposed use would not adversely affectsurrounding property;

(3 The proposed use would not unreasonablyburden public agencies to provide roads andstreets, sewers, water drainage and schoolimprovements, and police and fire protection;

(4 Unusual conditions, trends, and needs havearisen since the district boundaries andrules were established; and

(5 The land upon which the proposed use issought is unsuited for the uses permitted

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within the district.(d) Petitions for issuance of a special permit shall

specify the proposed use and state concisely the natureof the petitioner's interest in the subject matter andthe reasons for seeking the-special permit, and shallinclude any facts, views, arguments, maps, plans, andrelevant data in support of the petition.

(e) The petitioner shall comply with all of the rulesof practice and procedure of the county planningcommission in which the subject property is located.

(f) The county planning commission may impose suchprotective conditions as it deems necessary in theissuance of a special permit. The county planningcommission shal! establish, among other conditions, areasonable time limit suited to establishing theparticular use proposed, and if appropriate, a timelimit for the duration of the proposed use, which shallbe a condition of the special permit; provided,however, that the commission for good cause shown, mayspecify or change the time period of the specialpermit. If the permitted use is not substantiallyestablished to the satisfaction of the county planningcommission within the specified time, it may revoke thepermit. The county planning commission, with theconcurrence of the commission, may extend the timelimit if itdeems that circumstances warrant thegranting of the extension. [Elf 10/27/86; am and comp8/16/97; comp 5/8/00; am and comp NOV 0 220{3] (Auth:HRS §§205-1, 205-7) (Imp: HRS ÿ205-6)

§15-15-95.1 Applicability of subchapter 5.Except as otherwise provided in this subchapter, theprocedural provisions of subchapter 5 shall apply topetitions for special permits. [Elf and comp NOV 0 2ÿ013] (Auth: HRS §§205-1, 205-7)

§15-15-96 Decision and order by the land usecommission. (a) Within forty-five days after receiptof the county planning commission's decision and thecomplete record of the proceeding before the countyplanning commission, as determined by the executiveofficer, the commission shall act to approve, approvewith modification, or deny the petition. Thecommission may impose additional restrictions as may benecessary or appropriate in granting the approval,including the adherence to representations made by thepetitioner. Upon determination by the commission, thepetition may be remanded to the county planning

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commission for further proceedings.(b) The commission shall not consider any

petition for specia! permit covering substantially thesame request for substantially the same land as hadpreviously been denied by the commission within oneyear of the date of the filing of the findings of fact,conclusions of law, and decision and order denying thepetition for special permit unless the petitionersubmits significant new data or additiona! reasonswhich substantially strengthen the petitioner'sposition, provided that in no event shall any newpetition be accepted within six months of the date ofthe filing of the findings of fact, conclusions of law,and decision and order. Additionally, the commissionshall not consider any petition for special permit forthe same request involving the same land that wasbefore the commission and withdrawn voluntarily by thepetitioner within one year of the date of thewithdrawal.

(c) A denial or modification of the specialpermit, as the case may be, of the proposed use shallbe appealable to the circuit court of the circuit inwhich the land is situated and shall be made pursuantto the Hawai'i rules of civil procedure.

(d) If a specia! permit is approved pursuant tosection 91-13.5, HRS, the provisions of section 15-15-82(e) and section 15-15-90(f) shall apply. JEff10/27/86; am and comb 8/16/97; am and comp 5/8/00; amand comp NOV 022013 ] (iuth: HRS §§91-13.5,205-1, 205-7) (Imp: HRS §§91-13.5, 205-6)

15-15-96.1 Modification of special permit. Anyrequest for modification of a special permit ormodification, release, or deletion of a conditionimposed on a special permit, whether imposed by thecounty planning commission or the commission, shallfirst be submitted to the appropriate county planningcommission and, for specia! permits for land greaterthan fifteen acres in size, the commission, forconsideration and decision.

The decision of the county planning commissionwith respect to modification of a special permit, ormodification, release or deletion of a condition to aspecia! permit shall comply with the requirements ofsection 15-15-95 and 15-15-96. [Elf and compNOV 0220|3 ] (Auth: HRS ÿ205-i, 205-7)

SUBCHAPTER 13

79

GOVERNMENT SPONSORED HOUSING PROJECTS

15-15-97 Procedure for processing petitions forhousing projects under section 201H-38, HRS. (a)Petitions for housing projects under section 201H-38,HRS, shall be processed according to the proceduresprovided in this section.

(b) Not less than sixty days prior to the filingof a petition, the petitioner shall:

(i) File an original, one paper copy,, and oneelectronic copy of a notice of intent to filea petition with the commission according to aformat provided bythe commission; the number and format ofcopies required under this section may bemodified by order of the commission;

(2) Publish the notice of intent at least once ina newspaper of genera! circulation in theState as well as in a county newspaper inwhich the subject property is situated. Thenotice of intent shall include:(A) The name and address of the petitioner

and the petitioner's property interestin the subject property;

(B) Proposed boundaryamendment;

(C) Tax map key;(D) Acreage;(E) Existing land use;(F) Brief description of the proposed

development or use;(G) The date that the petitioner shall file

its petition with the commission; and(H) Inform the public of the rights of

interested persons under section 205-4(e), HRS;

(3) Serve copies of the notice of intent to filea petition upon the director of the stateoffice of planning, the planning departmentof the county in which the subject propertyis situated, and persons with a propertyinterest in the subject property that isrecorded in the county's real property taxrecords. The notice of intent to file apetition shall also be sent to persons on amailing list provided by the chief clerk. Inproceedings related to 201H petitions, thepetitoner's notice of intent shal! also serveas the notice of hearing for the purposes of

8O

intervention;(4) File an original and one paper copy of an

affidavit of mailing the notices of intent tothe persons specified in paragraph (3); and

(5) File an affidavit of publication of thenotice of intent to file a petition incompliance with paragraph (2).

(c) Persons who may intervene upon timelyapplication include:

(i) All departments and agencies of the State andof the county in which the land is situated;and

(2) Al! persons who have a property interest inthe land, or who otherwise can demonstratethat they wil! be so directly and immediatelyaffected by the proposed change that theirinterest in the proceeding is clearlydistinguishable from that of the genera!public.

(d) All other persons may apply for leave tointervene, which shall be freely granted, provided thecommission or its hearings officer may deny anapplication to intervene when, in the commission's orhearing officer's discretion, it appears that:

(i) The position of the applicant forintervention is substantially the same as theposition of a party already admitted to theproceeding; and

(2) The admission of additional parties wil!render the proceedings inefficient andunmanageable.

(e) Petitions to intervene and become a partyshal! be in conformity with subchapter 5 and filed withthe commission. An origina! and one paper copy,together with one electronic copy of the petition forintervention with proof of service on all parties shallbe filed with the commission within fifteen days afterthe notice of intent to file a petition is publishedpursuant to section 15-15-97(b) (2)° Except for goodcause shown, late filing shall not be permitted.

(f) The petition for intervention shall makereference to the following:

(i) Nature of the proposed intervenor's statutoryor other right;

(2) Nature and extent of the proposedintervenor's interest, and if an abuttingproperty owner, the tax map key descriptionof the property; and

(3) Effect of any decision in the proceeding onthe proposed intervenor's interest.

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(g) If applicable, the petition shall also makereference to the fol!owing:

(i) Other means available whereby the proposedintervenor's interest may be protected;

(2) Extent the proposed intervenor's interest maybe represented by existing parties;

(3) Extent the proposed intervenor's interest inthe proceeding differs from that of the otherparties;

(4) Extent the proposed intervenor'sparticipation can assist in development of acomplete record;

(5) Extent the proposed intervenor'sparticipation will broaden the issues; and

(6) Extent the proposed intervenor's interventionwould serve the public interest.

(h) Petitions for intervention sh&ll beaccompanied by a filing fee of $50. The fee shall notapply to state and county agencies.

(i) The commission may conduct a pre-applicationmeeting with the petitioner and proposed parties to theproceeding for the purpose of determining informationrequirements, possible issues, proposed stipulations,and other matters which may assist in contributing to amore orderly hearing process.

(j) If the petitioner fails to file the petitionon the date stated in its notice of intent, thepetitioner shal! refile a notice of intent in themanner set forth in this section.

(k) The petitioner shall file a petition inconformance with subchapters 5 and 6 except that at thetime of filing, the petition shall include:

(i) A finding of no significant impact orapprovedenvironmental impact statement ifconservation district lands are involved;

(2) A proposed decision and order;(3) An affidavit that the petitioner has met with

interested community groups to discuss theproposed project;

(4) A clear description of the manner in whichpetitioner proposes to finance the proposeddevelopment, including a budget, a marketingplan, and a feasibility study; aid

(5) A certification from the Hawai'i housingfinance and development corporation or countyhousing agency that the petition involves asection] 201H-38, HRS, housing project.

(i) Petitions that fail to comply with therequirements set forth in subsections (b) and (k) shall

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be deemed defective and the date of filing of thepetition shal! be as of the date the defect is cured.

(m) The hearing on the application shall beconducted in accordance with subchapter 7, except thatthe time requirements for holding a hearing, statementof position, and decision making shall not apply.

(n) Notice of the hearing shall be published tothe extent provided by law.

(o) The commission shall approve or disapprove aboundary amendment within forty-five days after thepetition has been deemed a proper filing by theexecutive officer° If on the forty-sixth day thepetition is not disapproved, it shal! be deemedapproved by the commission, and the provisions ofsection 15-15-90(e) shall apply. JEff 3/20/87; am7/18/94; am and comp 8/16/97; am and comp 5/8/00; amand comp NOV 0 220ÿ ] (iuth: HRS §§201G-I18,205-1, 205-4, 205-7) (Imp: HRS ÿ205-4, 201G-i18)

15-15-97.1 REPEALED. [R 5/8/00]

§15-15-97.2 Fees. The petitioner will beresponsible for fees mursuant to section 15-15-45.1.[Elf and comp N0ÿ0 22013 ] (Auth: HRS §§205-1,205-4.1, 205-7) (Imp: HRS §§91-2, 92-21, 205-4.1)

SUBCHAPTER 14

DECLARATORY ORDERS

§15-15-98 Who may petition. (a) On petition ofany interested person, the commission may issue adeclaratory order as to the applicability of anystatutory provision or of any rule or order of thecommission to a specific factual situation.

(b) A farmer or landowner with lands qualifyingunder section 205-45, HRS, may file a petition fordeclaratory order to designate the lands as importantagricultural lands and shall file a petition thatconforms to the requirements of this section andsection 205-44 and 205-45, HRS.

(c) Notwithstanding the other provisions of thissubchapter, the commission, on its own motion or uponrequest but without notice of hearing, may issue adeclaratory order to terminate a controversy or toremove uncertainty. [Elf 10/27/86; comp 8/16/97; comp5/8/00; am and comp NOV 0 ÿ2013 ] (iuth: HRS§§91-8, 205-1, 205-7) (Imp: HRS §§91-2, 91-8)

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15-15-99 Petition for declaratory order; formand contents. The petition shall be submittedconsisting of one original, one paper copy, and oneelectronic copy, and shall conform to the formatrequirements of sections 15-15-38, 15-15-39, and 15-15-40, and shall contain:

(i) The name, address including zip code, andtelephone number of each petitioner;

(2) A statement of the petitioner's interest inthe subject matter, including the reasons forsubmission of the petition;

(3) A designation of the specific statutoryprovision, rule, or order in question,together with a complete statement of therelevant facts and a statement of the issuesraised or controversy or uncertaintyinvolved;

(4) A statement of the petitioner'sinterpretation of the statute, rule or orderor the petitioner's position or contentionwith respect thereto;

5) A memorandum of authorities, containing afull discussion of reasons and legalauthorities in support of such position orcontention. The commission may require thepetitioner to file additional data ormemoranda;

6) The names of any other potential parties;7) The signature of each petitioner; and8) A statement whether the petition for

declaratory ruling relates to any commissiondocket for district boundary amendment orspecia! permit, and if so, the docket numberand identification of all parties to thedocket. JEff 10/27/86; comp 8/16/97; comp5/8/00; am and comp NOV 0 2ÿ013 ](Auth: HRS ÿ91-8, 205-1, 205-7) (Imp: HRS§§91-2, 91-8)

15-15-i00 Consideration of petition fordeclaratory order. (a) The commission, within ninetydays after submission of a petition for declaratoryorder, shall:

(i) Deny the petition where:(A) The question is speculative or purely

hypothetical and does not involve anexisting situation or one which may

84

reasonably be expected to occur in thenear future; or

B) The petitioner's interest is not of thetype which confers sufficient standingto maintain an action in a court of law;or

C) The issuance of the declaratory ordermay adversely affect the interest of theState, the commission, or any of theofficers or employees in any litigationwhich is pending or may be reasonably beexpected to arise; or

D) The petitioner requests a ruling on astatutory provision not administered bythe commission or the matter is nototherwise within the jurisdiction of thecommission; or

(2) Issue a declaratory order on the matterscontained in the petition; or

(3) Set the petition for hearing before thecommission or a hearings officer inaccordance with this subchapter. Theprocedures set forth in subchapter 7 shal! beapplicable.

(b) If the matter is set for hearing, thecommission shall render its findings and decisionwithin one hundred and twenty days after the close ofthe hearing or, if post hearing briefs are filed,forty-five days after the last brief is filed, unless adifferent time period is stated at the hearing. [Elf10/27/86; am and comp 8/16/97; comp 5/8/00; am and comp

HOW 022Q13 ] (Auth: HRS §ÿ91-8, 205-ir 205-7)(Imp: HRS ÿ91-2, 91-8)

§15-15-101 Declaratory orders; dismissal ofpetition. The commission, without notice or hearing,may dismiss a petition for declaratory order that failsin material respect to comply with the requirements ofthis subchapter. The dismissal shall be in writing andstate the reasons therefor. JEff 10/27/86; am and comp8/16/97; c0mp 5/8/00; am and comp NOV 0 ÿ2013 ]

(Auth: HRS §§91-8, 205-1, 205-7) (Imp: HRS §ÿ91-2,91-8)

§15-15-102 REPEALED [RNOV 0ÿ2ÿ]ÿ]

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15-15-i03 Declaratory orders; request forhearing. The commission may, but shall not be requiredto, conduct a hearing on a petition for declaratoryorder. Any petitioner or party in interest who desiresa hearing on a petition for a declaratory order shallset forth in detail in the request the reasons why thematters alleged in the petition, together withsupporting affidavits or other written briefs ormemoranda of legal authorities, will not permit thefair and expeditious disposition of the petition, andto the extent that the request for a hearing isdependent upon factual assertion, shall accompany therequest by affidavit establishing those facts.[Elf 10/27/86; am and comp 8/16/97; comp5/8/00; am and comp NOVOÿ0ÿ3 ] (Auth: HRS

§ÿ91-8, 205-1, 205-7) (Imp:HÿS §ÿ91-2, 91-8)

15-15-i04 Applicability of declaratory order.An order disposing of a petition shall apply only tothe factual situation described in the petition or setforth in the order. It shall not be applicable todifferent fact situations or where additional facts notconsidered in the order exist. The order shall havethe same force and effect as other orders issued by thecommission. [Elf 10/27/86; am and comp 8/16/97; comp5/8/00; am and comp ÿSV 022013 ] (Auth:HRS §§91-8, 205-1, 205-7) (Imp: HRS §§91-2, 91-8)

15-15-104.1 Fees. The Petitioner shall beresponsible for fees pursuant to section 15-15-45.1herein. [Elf and comp NOV 0 22013 ] (Auth: HRS§205-i, 205-4.1, 205-7) (Imp: HRS §§91-2, 92-21, 205-

4.1

SUBCHAPTER 15

RULEMAKING PROCEDURES

@15-15-i05 Initiation of rulemaking proceedings.(a) The commission, at any time on its own

motion, may initiate proceedings for the adoption,amendment, or repeal of any rule of the commission.

(b) Any interested person may petition thecommission for the adoption, amendment, or repeal ofany rule of the commission. The petitioner shall fileand deliver one original, one paper copy and oneelectronic copy of the petition to the office of the

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commission.under this section may be modified by order of thecommission. Petitions for rulemaking filed with thecommission shall become matters of public record.10/27/86; comp 8/16/97; comp 5/8/00; am and comp

NOV 022ÿ]3 ] (iuth: HRS §§205-1, 205-7)(Imp: HRS ÿ§91-2, 91-6, 205-7)

The number and format of copies required

[Elf

§15-15-106 Rulemaking; form and contents ofpetition. Petitions for rulemaking need not be in anyspecial form but shal! conform to the requirements ofthis subchapter and shall contain:

i) The name, address (including zip code), andtelephone number of each petitioner;

2) A statement of the petitioner's interest inthe subject matter;

3) A statement of the reasons in support of theproposed rule, amendment, or repeal;

4) The authorization or relief sought;5) The citation of the statutory provision or

other authority under which Commissionauthorization or relief is sought;

6) A draft or the substance of the proposed ruleor amendment or a designation of theprovisions the repeal of which is desired;and

7) The signature of each petitioner.Any petition which does not conform to the foregoingrequirements may be rejected by the commission. Therejection shal! be in writing aid shall state thereasons therefor. [Elf 10/27/86; comp 8/16/97; am andcomp 5/8/00; am and comp NOV 0 2ÿ013 ] (iuth:HRS §§91-13.5, 205-1, 205-7) (Imp: HRS §91-13.5, 91-6,205-7)

§15-15-107 Rulemaking; action on petition. (a)Within sixty days after the filing of a petition forrulemaking, the commission shal! either deny thepetition in writing, stating its reasons for its denia!or initiate proceedings for the adoption, amendment, orrepeal of the rule, in accordance with section 91-3,HRS.

(b) Any petition that fails in material respectto comply with the requirements of this subchapter, orthat fails to disclose sufficient reasons to justifythe institution of public rulemaking proceedings shal!not be considered by the commission. The commissionshall notify the petitioner in writing of the denial,

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]081

stating the reasons therefor. Denial of a petitionshall not prevent the commission from acting on its ownmotion on any matter contained in the petition.

(c) If the commission determines that thepetition is in order and that it discloses sufficientreasons in support of the proposed rulemaking tojustify the institution of rulemaking proceedings, theprocedures to be followed shall be as set forth insections 15-15-108, 15-15-109, 15-15-110, and chapter92, HRS. [Eff 10/27/86; am andÿ9ÿp 8/16/97; comp5/8/00; am and comp NOV 02ÿUIÿ ] (Auth: HRS205-I, 205-7) (Imp: HRS §ÿ91-3, 91-6, 92-1, et seq.)

§15-15-107.1 Commission action. The commissionshall consider all statements, views, comments, anddocuments of record before taking final action in arulemaking proceeding. Unless otherwise provided bylaw, any decision rendered pursuant to this subchaptershal! not be subject to a motion for reconsideration orjudicial review. The adoption, amendment or repeal ofa rule is subject to approval of the governor andfiling with the lieutenant governor. [Elf and comp

NOV 022013 ] (Auth: HRS ÿ205-i, 205-7) (Imp:HRS §91-3)

15-15-i08 Rulemaking; notice of public hearing.(a) When, pursuant to a petition therefor or upon

its own motion, the commission proposes to adopt,amend, or repeal any rule, the notice of hearingshall be published pursuant to the requirements ofsections 1-28.5 and 91-3, HRS. The notice of hearingshall also be mailed to all persons or agencies whohave made timely written requests for advance notice ofthe commission's rulemaking proceedings at their lastrecorded address. The notice of hearing shall bepublished at least thirty days prior to the date setfor public hearing. The notice of hearing shall alsobe filed with the lieutenant governor's office.

(b) A notice of the proposed adoption, amendment,or repea! of a rule shall include:

(i A statement of the date, time, and placewhere the public hearing will be held;

2 Reference to the authority under which theadoption, amendment, or repeal of a rule isproposed; and

3 A statement of the substance of the proposedrules. [Eff 10/27/86; am and comp 8/16/97;am and comm 5/8/00; comp NOV 0 2ÿ813 ]

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i

(Auth: HRS §ÿ205-i, 205-7) (Imp: HRS ÿ@i-28.5, 91-3, 92-41)

§15-15-109 Rulemaking; conduct of public hearing°(a) The chairperson of the commission or, in the

chairperson's absence, another member designated by thecommission, or a duly appointed hearings officer shal!conduct the public hearing for the adoption, amendment,or repeal of the rules. The commission shall affordinterested persons a reasonable opportunity to offertestimony with respect to the matter specified in thenotice of hearing, in order to obtain a clear andorderly record. The presiding officer shal! haveauthority to administer oaths or affirmations and totake al! other actions necessary to the orderly conductof the hearing.

(b) Each such public hearing shall be held at thetime and place set in the notice of hearing but may atthat time and place be continued by the presidingofficer from day to day or adjourned to a later date orto a different place without notice other than theannouncement thereof at the hearing.

(c) At the commencement of the hearing, thepresiding officer shall read the notice of hearing andshall outline briefly the procedure to be followed.Testimony shal! then be received with respect to thematters specified in the notice of hearing in suchorder as the presiding officer shall prescribe.

(d) Each witness, before proceeding to testify,shall state the witness' name, address, and whom thewitness represents at the hearing, and shall give anyinformation respecting the witness' appearanceas the presiding officer may request. The presidingofficer shall confine the testimony to the matters forwhich the hearing has been called. In order to allowpersons to have an equal amount of time to testify, orto prevent cumulative unnecessary testimony, thepresiding officer may limit the amount of time fortestimony per individual or per issue. Every witnessmay be subject to questioning by the members of thecommission or by any other representative of thecommission. Questions by other than commission membersor staff shall be permitted only at the discretion ofthe presiding officer.

(e) All interested persons or agencies shall beafforded an opportunity to submit data, views, orarguments orally or in writing that are relevant to thematters specified in the notice of hearing. A personmay submit written comments, data, views, or argumentsten days after the close of the scheduled public

89

hearing date. An original and one paper copy and oneelectronic copy of written comments, recommendations,replies, or exhibits shall be submitted.

(f) Unless otherwise specifically ordered by thecommission, testimony given at the public hearing shallnot be reported verbatim. [Elf 10/27/86; am and comp8/16/97; comp 5/8/00; am and comp NOV 02ÿ01ÿ ](Auth: HRS ÿ205-i, 205-7) (Imp: HRS ÿ91-2ÿ 91-3)

§15-15-110 Emergency rulemaking. If thecommission finds that an imminent peril to publichealth or safety requires adoption, amendment, orrepeal of a rule upon less than thirty days notice ofhearing, and states in writing its reasons for thatfinding, it may adopt emergency rules pursuant tosection 91-3(b) and 91-4, HRS. [Eff 10/27/86; am andeomp 8/16/97; comp 5/8/00; am and comp NOV 0 22013 ](Auth: HRS ÿ205-i, 205-7) (Imp: HRS ÿ91-3, 91-4)

SUBCHAPTER 16

LAND USE DISTRICT BOUNDARIES

15-15-iii Land use district boundaries. (a)The boundaries of land use districts are shown on theland use district maps, entitled "Land Use DistrictBoundaries, dated December 20, 1974," as amended,maintained and under the custody of the commission.

(b) The official maps entitled "Land Use DistrictBoundaries, dated December 20, 1974," as amended, arelocated in the commission office. [Elf 10/27/86; amand comp 8/16/97; comp 5/8/00; comp NOV ÿiÿ ]

(Auth: HRS ÿ205-i, 205-7) (Imp: HRS ÿ205-i)

SUBCHAPTER 17

IMPORTANT AGRICULTURAL LAND DESIGNATION AND PROCEEDINGS

515-15-120 Criteria and procedure for theidentification of important agricultural lands. (a)The commission shall not approve a petition to haveland designated as important agricultura! land, eitherin whole or in part, unless the commission finds upon aclear preponderance of the evidence, that thedesignation is reasonable and consistent with the

9O

]OBI

policies of chapter 205 HRS and the provisions of thissubchapter 17.

(b) Any petition seeking to designate lands asimportant agricultural lands shall adhere to therequirements of subchapter 14 of this chapter. Apetition seeking to designate lands as importantagricultural lands and a reclassification of lands tourban, rural or conservation under section 205-45, HRS,or a credit for reclassification of lands to urban,rural or conservation, shall be set for hearing inaccordance with section 15-15-100. Any hearing set fordetermination of a petition for designation ofimportant agricultural lands under this section Shallbe held pursuant to the procedures and requirements setforth in section 205-4, HRS, and subchapters 7 and 14of this chapter. Petitions to intervene shall followthe procedures and requirements contained in section15-15-52o

(c) In review of any petition seeking, in part orin whole, to have lands classified as importantagricultura! lands, the commission shall specificallyconsider the following:

(i) Whether the land is currently used foragricultural production;

(2)

(3)

6)

5)

4)

The land's soil qualities and whether thegrowing conditions support agriculturalproduction of food, fiber, or fuel- andenergy-producing crops;

The land's classification or identificationunder agricultura! productivity ratingsystems, such as the agricultural lands ofimportance to the State of Hawai'i (ALISH)system adopted by the board of agriculture onJanuary 28, 1977;

If the land has been or is a type that hasbeen associated with traditional nativeHawaiian agricultural uses, such as tarocultivation, or unique agricultural crops anduses, such as coffee, vineyards, aquaculture,and energy production;

The land shall have sufficient quantities ofwater to support viable agriculturalproduction;

If the land's designation as importantagricultural lands will be consistent withgeneral, development, and community plans of

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(7)the county;

Land that contributes to maintaining acritica! land mass important to agriculturaloperating productivity; and

(8). Whether the land has, or is near, supportinfrastructure conducive to agriculturalproductivity, such as transportation tomarkets, water, or power.

(d) If a petition is limited solely to designationby a landowner of important agricultural lands, thecommission shall weigh the criteria set forth insection 15:15-120(c) against each other to meet theobjectives of section 205-42 HRS.

(e) The commission shall not accept any petitionto designate lands as important agricultural landscovering substantially the same request forsubstantially the same land as had previously beendenied by the commission within one year of the date offiling of findings of fact and conclusions of lawdenying the petition. [Elf and comp NOV 0 22013] (Auth: HRS §§205-i, 205-7, 205-45) (Imp: HRS ÿ205-44)

15-15-121 Petition by farmer or landowner.

(a) A farmer or landowner seeking to have landsdesignated important agricultural lands may file apetition for declaratory ruling with the commissionseeking to have its lands designated importantagricultural lands.

(b) The petition for declaratory ruling shall besubmitted in accordance with subchapter 14 and shallinclude:

(i) Tax map keys of the land to be designatedalong with verification and authorizationfrom the applicable landowners;

(2) Proof of qualification for designation undersection 15-15-120; and

(3) The current or planned agricultural use of thearea to be designated.

(c) The commission shall review the petition andthe accompanying submissions to evaluate thequalifications of the land for designation as importantagricultural lands in accordance with section 15-15-

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121.

(d) A petition for declaratory order seekingdesignation of lands as important agricultural landsshall only be granted if a two-thirds majority of thecommission finds, after its review and evaluation andbased upon a preponderance of the evidence, that thesubject lands qualify for designation as importantagricultural lands under this subchapter and sections205-44 and 205-45, HRS. If a petition fails to receivethe affirmative votes of two-thirds of thecommissioners, findings of fact, conclusions of law anda decision and order denying the petition shall befiled by the commission. [Elf and comp NOV 0 2201ÿ

] (Auth: HRS §§205-1, 205-7, 205-45) (Imp: HRS205-45)

§15-15-122 Petition by farmer or landowner fordesignation of important agricultura! land and urban,rural or conservation re-classification. (a) Alandowner may, within the same petition for declaratoryorder as described in subsection 15-15-121, requestthe reclassification of a portion of the land which isthe subject of the petition in the agricultura!district to the rura!, urban, or conservation district,or a combination thereof. The land sought to bereclassified as urban, rural or conservation shall:

(i Be within the same county as the land soughtto be designated as important agriculturallands;

(2 If the reclassification of the land isproposed to the urban district, thatreclassification to urban is consistent withthe relevant county genera! and community,development, or community deve!opment plans;and

(3 Be no more than fifteen percent of the totalacreage which is the subject of the petitionsuch that at least eighty-five per cent ofthe total acreage which is the subject of thepetition is sought to be designated asimportant agricultural land; and

(4) Meet all of the requirements of subchapter 8herein.

(b) In a petition for declaratory order under thissection seeking to designate lands importantagricultural lands in the agricultural district to therura!, conservation or urban district, the lands to bedesignated important agricultura! lands shall be deemed

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qualified for such designation only if the commissionreasonably finds that the lands meet the criteria ofsections 15-i15-120(c) (5) andÿ (c) (7).

(c) A petition for declaratory order under thissection shall be submitted in accordance withsubchapter 14 and be set for hearing in conformancewith the procedures set forth in subchapter 7, andshall include:

(i Tax map key numbers of the land to bedesignated as important agricultural landsand, if applicable, the land to bereclassified from the agricultural districtto the rural, urban, or conservationdistrict;

(2 Verification of ownership and/orauthorization from the applicable landowners;

(3 Proof of qualification for designation asimportant agricultural lands under thissubchapter;

(4) The current or planned agricultural use ofthe area sought to be designated as importantagricultural lands; and

(5) The current or planned use of the area soughtto be reclassified to the rural, urban, orconservation district.

(d) An application for a declaratory order todesignate important agricultural land in combinationwith the reclassification of agricultural land to therural, urban, or conservation district shall not bedeemed a proper filing until the petitioner hassubmitted a certification, issued by the statedepartment of agriculture as to the quality of the landwhich is the subject of the petition.

(e) In review of any petition seeking to havelands classified as important agricultura! lands incombination with a request to reclassify a portion ofthe agricultural land to the urban, rural orconservation designation, the commission shall reviewthe petition and the accompanying submissions inaccordance with this subchapter and section 205-44,HRS. The commission shall also specifically determine,by a preponderance of the evidence whether:

(i) The land is suitable for the reclassificationin accordance with subchapters 2 and 8; and

(2) If the reclassification of a portion the landis proposed to the urban district, thatreclassification to urban is consistent withthe relevant county general and community,development, or community development plan.

(f) Approval of a petition for designation of

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important agricultural lands in conjunction with apetition for urban, rural or conservationreclassification under this section shall requireapproval by a vote of a two-thirds majority of thecommissioners. The commission shall include reasonableconditions in its order.

(g) Should the commission find that either thedesignation of lands in the petition sought to beidentified as important agricultural lands or the landsidentified in the petition for reclassification tourban, rural, or conservation is not supported by apreponderance of the evidence and should not beapproved, the commission shall deny the petition in itsentirety. [Eff and comp NOV 0 22013 ] (Auth: HRS§§205-1, 205-7, 205-45) (Imp: HRS §205-45)

§15-15-123 Adherence to chapter 343 HRS. Apetition filed under this subsection, if applicable,shall adhere to the requirements of chapter 343, HRS.No petition under this subchapter will be deemedcomplete unless it has met the requirements of chapter343, HRS. [Eff and comp NOV 0 22013 ] (iuth: HRS§ÿ205-i, 205-7, 205-45)

§15-15-124 Private landowner credits in importantagricultura! land proceeding. (a) The commission shallallow a petitioner for an important agricultural landdesignation to reserve the right to designate lands forreclassification to urban, rura!, or conservation at afuture proceeding. The commission shal! not grant alandowner the right to reserve lands for futurereclassification greater than fifteen percent of thetotal acreage of land which is the subject of thepetition, total acreage being the land sought to bedesignated important agricultura! land plus the landsought to be reclassified urban, rura! or conservation.

(b) Where a petitioner submits a petition fordesignation of lands as important agricultural lands incombination with a request to reclassify lands urban,rura! or conservation and the commission grants thepetition under this subchapter, the petitioner may, ifspecifically requested in the petition, obtain creditsfor the difference between fifteen percent of thetota! amount of land requested to be reclassified asurban, rural and conservation and the amount of landset forth in the petition to be so reclassified, if theamount of land for reclassification to urban, rural orconservation set forth in the petition is less than

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fifteen percent of the total land subject to thepetition.

(c) In order to preserve the right to reclassifylands under this section at a future proceeding arequest for future credits must be specified in anypetition for designation of important agriculturallands or petition for designation of importantagricultural lands in conjunction with a request to re-classify lands to the urban, rural or conservationdistrict.

(d) If a petition fails to include a request forfuture credits under subsection (b) or (c), thepetitioner's right to such credits shall be waived andthe petitioner shall be barred from claiming thecredits at a future date.

(e) Credits held by a petitioner under thissection may only be applied to lands owned or held bythe petitioner in the same county as the landsdesignated important agricultural lands in the originalpetition giving rise to the credits are located.

(f) In order to utilize such credits to have landsreclassified under this section the petitioner must,prior to utilization of such credits and before thecredits are applied to any land to be reclassified,file a petition for declaratory order pursuant tosubchapters 5 and 14 and section 15-15-123.

(g) A petition for use of credit for re-classification of land granted under this section mustbe filed within ten years of the effective date of theoriginal order by which the credits were granted by thecommission. Unused credits shall expire and becomeunusable if not used within ten years from theeffective date the original order by which the creditswere granted by the commission.

(h) Credits issued under this section may only beused by the petitioner awarded the credits under theoriginal declaratory order granting the credits.Unused or unexhausted credits awarded under thissection may not be transferred to another person.

(i) If a petitioner files a request fordeclaratory order to utilize credits held pursuant tothis section the commission shal! not grant suchpetition unless:

(1) By a preponderance of the evidence presented,the land is suitable for reclassification inaccordance with sections 205-2 and 205-3.1,

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3081 ,

HRS ;

The reclassification is consistent with therelevant county general and, development, orcommunity development plans;By a preponderance of the evidence presented,the land sought to be reclassified issuitable for reclassification in accordancewith subchapters 2 and 8; andThe petitioner has met al! of therequirements of chapter 343 HRS with regardto the subject petition. [Elf and comp

NOV 0ÿ2013 ] (Auth: HRS §§205-1, 205-7, 205-45) (Imp: HRS §205-45)

§15-15-125 County identification of importantagricultural lands. (a) Receipt of recommendations andmaps from the planning department of a county undersection 205-48, HRS, shal! not be considered a petitionfor a declaratory order designating land within itsjurisdiction as important agricultural lands. Thecommission shall however, designate lands within therelevant county and adopt maps designating importantagricultural lands in such county within 365 days ofthe submission being deem@d complete pursuant tosubsection (b). Such time period for determination maybe extended for a period of up to one hundred andeighty days by order of the chairperson of thecommission. The form and content of thecounty recommendations shall conform to therequirements of sections 205-42, 205-43, 205-44, and205-47, HRS.

(b) The county making such recommendations todesignate land important agricultural lands shallprovide the commission a complete record of itsproceedings in support of its recommendation, includingevidence the county has specifically adhered to therequirements of section 205-47, HRS, including recordsevidencing that:

(i) Maps of potential lands to be considered fordesignation as important agricultural landshave been developed in consultation andcooperation with landowners, the statedepartment of agriculture, agriculturalinterest groups, including representativesfrom the Hawai'i farm bureau-federation andother agricultura! organizations, the United

97

States department of agriculture - naturalresources conservation service, the stateoffice of planning, and other groups asnecessary.

(2) Each county, through its planning department,has utilized an inclusive process for publicinvolvement in the identification ofpotentia! lands and the development of mapsof lands to be recommended as importantagricultural lands, including a series ofpublic meetings throughout the identificationand mapping process.

(3)

(4)

(5)

The county has taken notice of those landsalready designated important agriculturallands by the commission.

Upon identification of potential lands to berecommended to the county council aspotential important agricultural lands, eachcounty has taken reasonable action to notifyeach owner of those lands by mail or postednotice on the affected lands to inform themof the potential designation of their lands.

Evidence that the important agriculturallands mapping relates to, supports, and. isconsistent with the:

(6)

(A) Standards and criteria set forth insection 205-44, HRS, and this subchapterhave been met;

(B) County's adopted land use plans, asapplied to both the identification andexclusion of important agriculturallands from such designation;

(c) Comments received from governmentagencies and others identified insection 205-47(b), HRS;

D) Viability of existing agribusinesses;

E) Representations or position statementsof the owners whose lands are subject tothe potential designation; and

F) Any other relevant information.

The important agricultural lands maps havebeen adopted by the county council, byresolution.

(c) A submission by a county under this section

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shall not be deemed complete unless al! of the evidenceset forth in section 15-15-125(b) has been transmittedand accepted by the commission.

(d) Any hearing under this section shall adhere tothe procedures set forth in this subchapter andsubchapters 1 and 5, and shal! be conducted as arulemaking proceeding in accordance with section 15-15-109 and held in the relevant county.

(e) The commission may, under this section:

(i) Remand the matter back to the county forfurther review or clarification;

(2) Adopt the recommendations of the county inits entirety after receipt of the completerecord from the county pursuant to section15-15-126, and designate lands in such countyas important agricultura! lands; or

(3) Based on evidence presented, amend or revisethe county recommendation and proposal toexclude, or include, certain lands fromdesignation as important agricultura! lands°

(f) The county shall serve a file-stamped copy ofthe county report and maps submitted pursuant to apetition under this section on the state department ofagriculture and the state office of planning within onebusiness day of filing with the commission. The stateoffice of planning and state department of agricultureshall review the county submittal pursuant to section205-48, HRS, and provide comments to the commissionwithin forty-five days of the county filing beingdeemed complete.

(g) Approval of maps and a designation ofimportant agricultural lands under this section shallrequire the affirmative vote of two-thirds of thecommission. JEff and comp NOV 0 22013 ] (iuth: HRS55205-1, 205-7) (Imp: HRS 55205-47, 205-48, 205-49)

515-15-126 Criteria for designation of lands asimportant agricultura! lands pursuant to countyrecommendation. (a) In designating importantagricultural lands in the state, pursuant to therecommendations of individual counties, the commissionshall consider the extent to which:

(i) The proposed lands meet the standards andcriteria under section 205-44, HRS, andsection 15-15-120;

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(2) The proposed designation is necessary to meetthe objectives and policies for importantagricultural lands in sections 205-42 and205-43, HRS; and

(3) The commission has designated lands withinthe county as important agricultural lands,pursuant to this subchapter.

(b) Should the commission determine that morethan fifty percent of a landowners' landholdings,excluding lands held in the conservation district, arealready designated as important agricultural lands,pursuant to this subchapter, the commission shall notdesignate any additional lands of that landowner asimportant agricultural lands except by a petition fromthe landowner pursuant to this subchapter.

(c) The designation of lands as importantagricultural lands and the adoption of maps of thoselands pursuant to this section shall be based uponwritten findings of fact and conclusions of law, and ashowing by a preponderance of the evidence that thesubject lands meet the standards and criteria set forthin section 15-15-120.

(d) Designation of agricultural lands asimportant agricultural lands under this section shallbe by an affirmative vote of two-thirds of themembership to which the commission is entitled. If thepetition is not approved by a vote of two-thirdsmajority of the commission it shall be deemed denied.

[Elf and comm ÿ0V 0 22013 ] (iuth: HRS205-i, 205-7) (Imp: HRS §ÿ205-47, 205-49)

§15-15-127 Standards and criteria for thereclassification or rezoning of important agriculturallands. (a) Any land use district boundary amendment orchange in zoning involving important agricultural landsidentified pursuant to this subchapter shall beconsidered as, and meet the submittal requirements for,a district boundary amendment under this chapter.

(b) An application for a special permit involvingimportant agricultural lands shall include evidencethat the request has been referred to the statedepartment of agriculture and the state office ofplanning for review and comment and contain as part ofthe petition any comments or recommendations made byboth the state department of agriculture and the stateoffice of planning.

i00

}O8 1

(c) In addition to the criteria set forth insubchapter 8, any decision by the commission or countypursuant to this section shall specifically consider,and find by a preponderance of the evidence, that:

(i) The land to be reclassified is not criticalfor agriculture based on the amount ofsimilarly suited lands in the area and theState as a whole;

(2) The proposed district boundary amendment orzone change will not harm the productivity orviability of existing agricultural activityin the area, or adversely affect theviability of other agricultural activities oroperations that share infrastructure,processing, marketing, or other production-related costs or facilities with theagricultural activities on the land inquestion;

(3) The district boundary amendment or zonechange will not cause the fragmentation of orintrusion of nonagricultura! uses intolargely intact areas of lands identified bythe State as important agricultural landsthat create residual parcels of a size thatwould preclude viable agricultural use;

(4)

(5)

The public benefit to be derived from theproposed action is justified by a need foradditional lands for nonagriculturalpurposes;

[

The proposed district boundary amendment orzone change will not negatively impact theability or capacity of state and countyagencies to provide and support additionalagricultural infrastructure or services inthe area;

(6) The public benefit from the proposed districtboundary amendment or zone change outweighsthe benefits of retaining the land foragricultural purposes;

(7) The proposed action will have no significantimpact upon the viability of agriculturaloperations on adjacent agricultural lands;

(s) The decision-making criteria of subchapter 8governing decisions of the land usecommission on district boundary amendmentshave been met; and

i01

(9) The decision-making criteria adopted by eachcounty to govern decisions of countydecision-making authorities under thischapter have been met.

(d) The reclassification of lands designated asimportant agricultural shall be based upon writtenfindings of fact and conclusions of law pursuant tosubchapters 7 and ii.

(e) A reclassification of lands designated asimportant agricultural lands shall be by an affirmativevote of two-thirds of the membership to which thecommission is entitled.

(i) If the petition is not approved by a vote oftwo-thirds of the membership of thecommission, it shall be deemed denied.

(2) The commission shall not accept any petitionto designate lands as important agriculturallands covering substantially the same requestfor substantially the same land as hadpreviously been denied by the commissionwithin one year of the date of filing offindings of fact and conclusions of lawdenying the petition.

(f) The commission may, upon petition by thefarmer or landowner of lands designated as importantagricultural lands, remove all or a portion of thoseimportant agricultural lands from the "importantagricultural lands" designation if, after a hearingheld pursuant to subchapter 14, the commission findsupon a preponderance of the evidence that a sufficientsupply of water is no longer available to allowprofitable farming of the land due to governmentalactions, acts of God, or other causes beyond thefarmer's or landowner's reasonable control.

(g) The commission may only remove an importantagricultural land designation on lands originallydesignated as important agricultural lands pursuant toa declaratory order that both designated land asimportant agricultural lands and reclassified land asurban, rural or conservat±on, or a combination thereof,with the prior authorization of the legislature asexpressed by a two-thirds vote of each house oÿhelegislature voting separately. [Eff and compNUV U 22013

] (Auth: HRS ÿ§205-i, 205-7, 205-45) (Imp: HRS§205-50)

§15-15-128 Periodic review and amendment of102

)081

important agricultural lands maps. (a) Amendment ofthe maps of important agricultura! lands initiated bythe county shall be conducted in accordance withsection 15-15-109.

(b) In a county-initiated proceeding for anamendment of important agricultura! land maps anddesignation under section 15-15-128(a), the "importantagricultura! lands" designation shall be removed fromlands previously designated as important agriculturallands where the commission finds, by a preponderance ofthe evidence, that a sufficient supply of water is nolonger available to allow profitable farming of thelands due to governmental actions, acts of God, orother causes beyond the farmer or landowner'sreasonable control.

(c) The commission shall not remove the importantagricultural lands designation if the lands weredesignated important agricultural lands by declaratoryorder in combination with the reclassification of landin the agricultural district to the rural, conservationor urban district pursuant to section 205-45, HRS,unless the legislature provides prior authorization byadoption of a concurrent resolution in accordance withsection 205-45, HRS. [Elf and comp N0V 0 22013 ](Auth: HRS @§205-i, 205-7) (Imp: HRS §205-52)

SUBCHAPTER 18

PETITIONS FOR HAWAI'I HOUSING AUTHORITYRENTAL HOUSING PROJECTS

Repealed

§15-15-122 REPEALED. [R 8/16/97]

103

Amendments to and compilation of chapter 15,title 15, Hawaii Administrative Rules on the summarypage dated October 4, 2013 were adopted on October 4,2013, following public hearings held on September 5,i0, ii, 18, 24 and 25 2013 after public notice wasgiven in the Honolulu Star Advertiser, the Maui News,West Hawaii Today, the Hawaii Tribune Herald and TheGarden Isle on August 5, 2013.

They shall take effect ten days after filing withthe Office of the Lieutenant Governor

, / // / /

/ [ /, J L

RONALD I. HELLERChairperson

RICHARD LIMa Director, Department of Business,

Economic Development and Tourism

NEILGovernorState of Hawaii

APPROVED AS TO FORM:

DIANE ERICKSONDeputy Attorney General

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