HomeMy WebLinkAboutBIL 024 Draft 05 2024-2026AN ORDINANCE AMENDING CHAPTER 25, ARTICLES 1, 2, 4, 5, AND 7, OF THE HAWAI‘I COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATING TO TELECOMMUNICATION ANTENNAS AND TOWERS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI‘I:
SECTION 1. Findings and purpose. The purpose of these regulations is to provide a comprehensive set of standards for the development of telecommunications facilities. The regulations
contained herein are designed to protect and promote public safety and community welfare, while at the same time not unduly restricting the development of telecommunications facilities.
SECTION 2. Chapter 25, article 1, section 25-1-5, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended by amending the definition of “Telecommunications antenna” in
subsection (b) to read as follows:
““[Telecommunications] Telecommunication antenna” means an antenna, [tower] repeater, equipment, wireless or broadband-related infrastructure, and other accessory structures [for] used
to transmit and receive radio frequency (RF) [transmissions] signals for communication purposes, including those intended for specific users who must have special equipment for transmission
and/or reception. [Also included are broadcasting] This definition:
(1) Includes:
(A) Broadcasting facilities, such as low power television stations, regulated by the Federal [Communication] Communications Commission (FCC) under Title 47 of the Code of Federal Regulations,
[par.] part 74[, which includes low power television. Included are land-mobile];
(B) Land-mobile or two-way radio, and one-way radio paging service broadcasting[. Also included are independent]; and
(C) Independent receiving facilities which do not qualify as accessory uses[. Not included are portable, hand held]; and
(2) Does not include:
(A) Portable, handheld, and vehicular transceivers or radios; [industrial]
(B) Industrial, scientific, and medical equipment operating at frequencies designated for that purpose by the Federal Communications Commission (FCC); [marketed]
(C) Marketed consumer products, such as microwave ovens, citizens band radios, ham radios [and remote control toys;], or remote-controlled devices; [and facilities]
(D) Facilities solely for the [receiving] personal reception of these transmissions, [including individual] such as radio and television appliances[.]; and
(E) Small wireless facilities, as defined by the Hawaiʻi Revised Statutes, section 206N-1.”
SECTION 3. Chapter 25, article 1, section 25-1-5, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended by adding a new definition in subsection (b) to be appropriately
inserted and to read as follows:
““Telecommunication tower” or “tower” means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower, or other structure designed and primarily used to support
telecommunication antennas and any related equipment, shelters, or cabinets necessary for the operation of the antennas.”
SECTION 4. Chapter 25, article 2, division 6, section 25-2-61, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended by amending subsection (a) to read as follows:
“(a) The following uses shall be permitted within designated County zoning districts only if a use permit is obtained for the use from the commission:
(1) Bed and breakfast establishments in RS, RA, FA, and A districts, provided that the property is within the state land use urban district.
(2) Crematoriums, funeral homes, funeral services and mortuaries in RS, RD, RM, RCX, RA, FA, A and V districts.
(3) Churches, temples and synagogues, including meeting facilities for churches, temples, synagogues and other such institutions, in RS, RD, RM, RA, FA and A districts; provided that
a minimum building site area of ten thousand square feet is required within the RS, RD, RM, and RA districts.
(4) Day care centers in RS, RD, RM, RA, FA and A districts, provided that a minimum building site area of ten thousand square feet shall be required within the RS, RD, RM, and RA districts.
(5) Golf courses and related golf course uses including golf driving ranges, golf maintenance buildings, and golf club houses in the RS, RD, RM, RCX, RA, FA, A, V, CG, CV, and O districts,
provided that the property is within the state land use urban or rural district. Golf courses and golf driving ranges shall not be permitted within the state land use agricultural district
unless approved by the County before July 1, 2005.
(6) Group living facilities that exceed the criteria in subsection 25-1-5(b), paragraph (b) of the definition of “group living facility” in the RS, RD, RM, RCX, RA, FA, A, CN, CG, CV,
and V districts.
(7) Hospitals, sanitariums, old age, convalescent, nursing and rest homes in the RS, RD, RM, RCX, RA, FA, A, and V districts, provided that a minimum building site area of ten thousand
square feet shall be required within the RS,
RD, RM, RCX and RA districts.
(8) Major outdoor amusement and recreation facilities in RCX, RA, A, CN, CG, CV, MCX, ML, MG and O districts.
(9) Medical clinics in RS, RD, RM, RA, FA, and A districts.
(10) Schools in RS, RD, RM, RA, FA, A, V, MCX, ML, and MG districts, provided that a minimum building site area of ten thousand square feet shall be required within the RS, RD, RM, and
RA districts.
[(11) Telecommunication antennas and towers in RS, RD, RM, RCX, RA, FA, A, IA and O districts.]
[(12)] (11) Yacht harbors and boating facilities in the RS, RD, RM, RCX, RA, V, CG, CV, MCX, ML, MG and O districts.
[(13)] (12) Wind energy facilities in the O district; provided that the property is within the state land use agricultural district.
[(14)] (13) Other unusual and reasonable uses which are not specifically permitted in any zoning district with the approval of the director and the concurrence of the council by resolution.”
SECTION 5. Chapter 25, article 2, division 7, section 25-2-74, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended to read as follows:
“Section 25-2-74. Plan approval application requirements for
telecommunication antennas.
In addition to the application requirements for plan approval contained in section 25-2-72, an application for plan approval for a telecommunication antenna or tower shall contain a
submittal checklist consistent with this section and shall contain the following information:
(1) A plot plan showing the location on the building site of the proposed antenna or tower;
(2) Building plans for the tower, certified by a licensed structural engineer, verifying that the tower, [together with the initial antennas and other equipment proposed to be installed
thereon,] at full build out inclusive of all potential antennas and equipment, will have a hard survivability for sustained winds of one hundred miles per hour[;] or meet the requirements
set forth in the building code, whichever is greater;
(3) A statement from the applicant that the proposed use will not interfere with the County’s land mobile radio system and other public emergency communications systems;
[(3)] (4) A statement from the Federal Aviation Administration that the application has not been found to be a hazard to air navigation; [and]
[(4)] (5) A statement from the Federal Communications Commission that the application complies with the regulations of the Commission or a statement that no such compliance is necessary[.];
(6) Documentation demonstrating that the National Historic Preservation Act of 1966 Section 106 review has been completed;
(7) A report indicating whether the facility could be co-located elsewhere, which
shall include:
(A) Documentation of efforts to install, construct, or co-locate the proposed facility on or within:
(i) Existing towers or feasible antenna support structures;
(ii) Sites that do not adversely impact significant public views, such as beaches, shorelines, oceans, and natural areas;
(iii) Industrial or commercial zoning districts;
(iv) Locations that are not highly visible from adjacent roadways, public spaces, parks, schools, greenbelts, or other visually sensitive areas; and
(v) Areas unserved or underserved with respect to broadband access and infrastructure;
(B) A map showing the sites that have been investigated with a detailed analysis on how those sites are inadequate and how the site selected is the least obtrusive;
(C) Maps showing the coverage areas of existing towers within a two mile radius of the proposed tower;
(D) A letter from the nearby tower owners indicating the tower is not feasible for co-locating antennas;
(E) A statement that the wireless telecommunications provider commits to allow a minimum of two other wireless telecommunications providers to co-locate antennas on its proposed tower
facilities wherever structurally and technically feasible; and
(F) A statement providing the reason for the location, design, and height of the proposed tower or antennas;
(8) Documentation of proactive efforts made to notify, meet with, inform, and engage adjacent landowners and the affected community regarding the proposed use;
(9) Verification that the applicant has sent notification letters to all owners and lessees of record of properties of which any portion is within five hundred feet of any point along
the perimeter boundary of the building site for the proposed telecommunication installation; provided that the notification letters must:
(A) Describe the nature of the proposed installation, including its dimensions and location on the building site; and
(B) Provide the anticipated timeline for construction;
(10) Documentation demonstrating compliance with the Hawai‘i State Fire Code and Standard No. 76, relating to the fire protection of telecommunications facilities, of the National Fire
Protection Association, which documentation must be submitted to the Hawai‘i fire department;
(11) A maintenance plan detailing how the safety, functionality, and service of the proposed use will be maintained until the use is discontinued; and
(12) A visual impact analysis, which shall include:
(A) Mitigation measures to minimize the visual impacts of the tower, including a description of any vegetation to be used for such purposes;
(B) Before and after photo simulations from various locations and/or angles from which the public would typically view the site; and
(C) A map depicting where the photos were taken.
The visual impact analysis shall demonstrate that less intrusive sites are not available or do not provide the necessary communication coverage to provide the service. The director may
request the submission of additional materials, including but not limited to photo overlays, scaled models, renderings, or field mock-ups, to evaluate potential visual impacts. These
materials should address appropriate coloration, blending, and stealth design (e.g., monopine, monopalm) to harmonize the facility with the surrounding area.”
SECTION 6. Chapter 25, article 2, division 7, section 25-2-76, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended to read as follows:
“Section 25-2-76. Action on plan approval application.
(a) The director may issue plan approval subject to conditions or changes in the proposal which, in the director’s opinion, are necessary to carry out and further the purposes of this
chapter and the considerations contained in section 25-2-77.
(b) The director may only issue plan approval for a telecommunication antenna or tower if the proposed use meets all of the conditions contained in sections 25-2-77 and 25-4-12, and
if the applicant provides all verification required under section 25-2-74.
(c) The director may only issue plan approval for a temporary model home or real estate office if the proposed use meets all of the conditions in section 25-2-77 and 25-4-8.
(d) The director shall render a decision to either approve or deny a plan approval application, other than for an agricultural tourism facility [or], any special district with adopted
design guidelines and/or standards, or any telecommunication antenna or tower, within thirty days after acceptance of the application. If the director fails to render a decision within
the thirty-day period, the application shall be considered approved without further certification by the director. In addition, the following specific provisions shall apply:
(1) For an agricultural tourism facility, the department shall conduct a site inspection prior to issuing plan approval within sixty days after acceptance of the application. If the
director fails to render a decision within the sixty-day period, the application shall be considered approved without further certification by the director.
(2) For any plan approval application within a special district with adopted design guidelines and/or standards, the director shall render a decision to either approve or deny the plan
approval application within forty-five days after acceptance of the application. If the director fails to render a decision within the forty-five day period, the application shall be
considered approved without further certification by the director.
(3) For a telecommunication antenna or tower, the director shall render a decision to either approve or deny the plan approval application within sixty days after acceptance of the application,
in accordance with Hawaiʻi Revised Statutes, Chapter 46-89. If the director fails to render a decision within the time frame
specified by Hawaiʻi Revised Statutes, Chapter 46-89, the application shall be considered approved without further certification by the director.”
SECTION 7. Chapter 25, article 4, division 1, section 25-4-12, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended to read as follows:
“Section 25-4-12. Telecommunication antennas or towers.
(a) A telecommunication antenna or tower shall be permitted in [the V, CN, CG, CV, MCX, ML, MG and CDH] all zoning districts; provided that the antenna, tower, and its use are not hazardous
or dangerous to the surrounding area and the director has issued plan approval for such use. [A telecommunication antenna or tower may be permitted in the RS, RD, RM, RCX, RA, FA, A,
IA, and O districts if a use permit is obtained for such use. Where there is an existing telecommunication tower, co-location of additional antenna or equipment will be permitted provided
the director has issued plan approval for such use.] Co-location of antennas upon an existing privately owned tower and expansion of related support equipment within the project site
is permitted provided, the director issued plan approval or other relevant approval for the existing tower, base station, or other antenna support structure. The ground lease areas
of co-locating carriers must be adjacent to the existing ground lease area and not located within the open yard setback areas, and the co-location must not result in a ‘substantial
change’, as defined in Title 47 of the Code of Federal Regulations, section 1.6100. Co-location that results in a ‘substantial change’ to the tower height or ground lease area, as defined
by the Federal Communication Commission, requires issuance of a new plan approval.
[(b) The minimum setbacks for a telecommunication antenna and tower are as follows:
(1) Freestanding antennas and towers shall be set back from every property line a minimum of one foot for every five feet of antenna or tower height.
(2) Telecommunication antennas and towers supported by guy wires shall be set back from every property line a minimum of one foot for every one foot of antenna or tower height.]
(b) Telecommunication facilities developed by government agencies primarily to protect public health, safety, and welfare, including but not limited to facilities for police, fire, ambulance,
and other emergency dispatch services, shall be exempt from the telecommunication antenna and tower requirements provided in this chapter.
(c) The minimum lot size requirements for telecommunication towers are as follows:
(1) The minimum lot size for the placement of any telecommunication tower within the A, FA, IA and O zoning districts shall be five acres.
(2) The minimum lot size for the placement of any telecommunication tower within a RS, RD, RM and RA zoning districts shall be one acre.
(3) No minimum lot size shall be required for the placement of telecommunication towers within the V, CN, CG, CV, MCX, ML, MG and CDH zoning districts.
The minimum lot size may be reduced, upon finding that the issuance of a variance by the director will not result in adverse impacts, including but not limited
to noise, light, glare, visual, drainage, or other detrimental effects to adjacent properties.
(d) Except when located within the V, CN, CG, CV, MCX, ML, MG, or CDH districts, a telecommunication tower shall be set back from every property line by a distance not less than one
hundred and twenty percent of the tower height as measured from the ground level and not less than six hundred feet from any residence or school.
(e) Fencing and Safety Measures. Telecommunication towers must be enclosed by fencing a minimum of six feet in height, and towers must be equipped with an anti-climbing device.
[(c)] (f) The tower, together with the initial antennas or other equipment proposed to be installed thereon, shall [have a hard survivability for sustained winds of at least one hundred
miles per hour.]:
(1) Comply with the building code; and
(2) Where feasible, be equipped with:
(A) A redundant power supply capable of providing sufficient power for no less than twenty-four hours; and
(B) Secondary data transmission capabilities that can support mass notification messaging during a disaster.
(g) The telecommunication antennas and tower shall comply with all applicable rules, regulations and requirements of affected agencies, including the Federal Aviation Administration
and Federal Communications Commission. All exterior lighting, except safety beacons required by the FAA, shall be:
(1) Fully shielded so that the bulb is not visible from any point above the height of the bulb; and
(2) Turned off when human activity is not occurring in the lighted area.
(h) Should any state or federally listed or endangered species be found on the subject property, the applicant shall comply with all applicable requirements of Department of Land and
Natural Resources-Division of Forestry and Wildlife and/or the United States Fish and Wildlife Service.
(i) Within one hundred twenty days of the permanent abandonment of the tower, the applicant shall remove the tower and its antenna and accessory structures (including the equipment
building and the fence), down to, but not including the concrete foundation. The applicant shall immediately provide written notification to the director of the termination of the telecommunication
tower and related improvements and the removal of all structures.
(j) The director may require any conditions or changes in the location and design of telecommunication antennas and towers necessary to carry out the purposes of this chapter and the
natural beauty chapter of the general plan. These conditions or changes may include but not be limited to requiring stealth design (e.g., monopine, monopalm) in order to reduce visual
impacts to surrounding properties. If the proposed site is located within an area of natural beauty as designated by the general plan or is located along a roadway, bikeway, trail,
or park used by the public, the director may require an on-site or off-site relocation of the telecommunication tower to mitigate visual impacts.”
SECTION 8. Chapter 25, article 5, division 1, section 25-5-3, division 2, section 25-5-22, division 3, section 25-5-32, division 4, section 25-5-42, division 5, section 25-5-52, division
6, section 25-5-62, and division 7, section 25-5-72 of the Hawaiʻi County Code 1983 (2016 Edition, as amended) are amended by repealing each paragraph reading “Telecommunication antennas
and towers.” in the respective subsection (b) thereof and appropriately renumbering all subsequent paragraphs.
SECTION 9. Chapter 25, article 5, division 1, section 25-5-3, division 2, section 25-5-22, division 3, section 25-5-32, division 4, section 25-5-42, division 5, section 25-5-52, division
6, section 25-5-62, and division 7, section 25-5-72 of the Hawaiʻi County Code 1983 (2016 Edition, as amended) are amended by adding a paragraph to be appropriately inserted in the
respective subsections (a) thereof and to read “Telecommunication antenna and towers, as permitted under section 25-4-12.” and by appropriately renumbering all subsequent paragraphs.
SECTION 10. Chapter 25, article 5, division 8, section 25-5-82, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended to read as follows:
“Section 25-5-82. Permitted uses.
(a) The following uses shall be permitted in the IA district:
Agricultural parks.
Agricultural products processing, major and minor.
Agricultural tourism as permitted under section 25-4-15.
Apiaries.
Aquaculture.
Cemeteries, as permitted under chapter 6, article 1 of this Code.
Crop production.
Farm dwellings, as permitted under sections 25-5-87(b) and (c).
Forestry.
Livestock production, provided that piggeries, apiaries and pen feeding of livestock shall not be closer than one thousand feet to any major road or to any district other than the A
district on building sites approved by the State department of health and the director.
Public uses and structures which are necessary for agricultural practices.
(12) Telecommunication antennas and towers, as permitted under section 25-4-12.
[(12)] (13) Utility substations, as permitted under section 25-4-11.
[(b) The following uses may be permitted in the IA district, provided that a use permit is obtained for such use:
(1) Telecommunication antennas and towers.]
[(c)] (b) The following uses may be permitted in the IA districts, provided that a special permit is obtained for such use:
Crematoriums, funeral homes, funeral services, and mortuaries.
Churches, temples, or synagogues.
Community buildings as permitted under section 25-4-11.
Day care centers.
Hospitals.
Public uses and structures, other than those necessary for agricultural purposes, as permitted under section 25-4-11.
Uses other than those specifically listed in this section, which meet the standards for a special permit under chapter 205, Hawai‘i Revised Statutes.
[(d)] (c) In IA districts in areas with over thirty percent slope, in gullies, and where rough terrain discourages intensive agricultural uses, the director may approve any other uses
which are permitted in the RA, FA, or A districts.
[(e)] (d) Buildings and uses accessory to the uses permitted in this section shall also be permitted in the IA district.
[(f)] (e) No building site shall be established in the IA district which shall in any way restrict or limit the uses permitted under this section.”
SECTION 11. Chapter 25, article 5, division 16, section 25-5-162, of the Hawai‘i County Code 1983 (2016 Edition, as amended), is amended to read as follows:
“Section 25-5-162. Permitted uses.
(a) The following uses shall be permitted in the O district:
Aquaculture activities and facilities.
Apiaries.
Cemeteries and mausoleums, as permitted under chapter 6, article 1 of this Code.
Community buildings, as permitted under section 25-4-11.
Existing churches and temples of historical significance.
Forestry.
Game preserves.
Growing of plants provided such growth does not impair a view intended to be preserved in the O district.
Heiaus, historical areas, structures, and monuments.
Natural features, phenomena, and vistas as tourist attractions.
Private recreational uses involving no aboveground structure except dressing rooms and comfort stations.
Public parks.
Public uses and structures, as permitted under section 25-4-11.
(14) Telecommunication antennas and towers, as permitted under section 25-4-12.
[(14)] (15) Utility substations, as permitted under section 25-4-11.
(b) In addition to those uses permitted under subsection (a) above, the following uses may be permitted in the O district, provided that a use permit is issued for each use:
(1) Crematoriums, funeral homes, funeral services, and mortuaries.
(2) Golf courses, provided that the property is within the state land use urban or rural district. Golf courses and golf driving ranges shall not be permitted within the state land use
agricultural district unless approved by the County before July 1, 2005.
(3) Yacht harbors and boating facilities; provided that the use, in its entirety, is
compatible with the stated purpose of the O district.
(4) Wind energy facilities; provided that the property is within the state land use agricultural district.
[(5) Telecommunication antennas.]
(c) Uses considered directly accessory to the uses permitted in this section shall also be permitted in the O district.”
SECTION 12. Chapter 25, article 5, division 9, section 25-5-92, division 10, section 25-5-102, division 11, section 25-5-112, division 12, section 25-5-122, division 14, section 25-5-142,
division 15, section 25-5-152 and article 7, division 2, section 25-7-22 of the Hawaiʻi County Code 1983 (2016 Edition, as amended) is amended by striking “Telecommunication antennas,
as permitted under section 25-4-12.” and inserting “Telecommunication antennas and towers, as permitted under section 25-4-12.” in lieu thereof.
SECTION 13. Chapter 25, article 5, division 13, section 25-5-132 of the Hawaiʻi County Code 1983 (2016 Edition, as amended) is amended by striking “Telecommunications antennas, as permitted
under section 25-4-12.” and inserting “Telecommunication antennas and towers, as permitted under section 25-4-12.” in lieu thereof.
SECTION 14. Material to be repealed is bracketed and stricken. New material is underscored. In printing this ordinance, the brackets, bracketed and stricken material, and underscoring
need not be included.
SECTION 15. Severability. If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions
or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable.
SECTION 16. This ordinance shall take effect upon approval.
INTRODUCED BY:
_______________________________________
COUNCIL MEMBER, COUNTY OF HAWAI‘I
_______________, Hawai‘i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date: