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HomeMy WebLinkAboutRES 094 Draft 01 1992-1994:. OFFICE INFORMATION ONLY Meeting: Hawaii County Council meeting - 09/08/93 Action: Close file - Ayes: Councilmembers Arakaki, De Lima, Domingo, Rosehill and Chairman Schutte - 5. Noes: Councilmembers Bonk-Abramson, Childs, Hale and Rath - 4. Re: Resolution 94-93;C-549 COUNTY OF HAWAtt_ "STATE OF HAWAII RESOLUTION N0. ~~ 93 TRANSMITTING FOR CONSIDERATION BY THE HAWAII STATE ASSOCIATION OF COUNTIES (HSAC) A BILL RELATING TO GEOTHERMAL RESOURCES FOR INCLUSION IN THE 1993 HSAC LEGISLATIVE PACKAGE. WHEREAS, the Hawaii State Association of Counties (HSAC) is in the process of formulating a legislative package for presentation to the 1993 Legislature; and WHEREAS, the HSAC Special Committee on Geothermal Energy convened on November 21, 1991 and found that there was a need for greater statutorily-authorized county control over allowing geothermal development by necessary county zoning changes being a condition precedent to geothermal use, rather than by merely allowing the overlay of State geothermal sources subzones over any land use district. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, that it transmit and does transmit for consideration by HSAC the attached draft bill relating to geothermal resources for inclusion in the 1993 HSAC legislative package, which bill in summary would: 1) Allow the State Board of Land and Natural Resources to designate a geothermal resource within the urban, rural or agricultural district only when permitted under county general plan and zoning ordinances; and 2) Make geothermal development activities within a subzone in the urban, rural or agricultural district subject to county general plan and zoning ordinances; and 3) Repeal the procedures mandated upon a county when considering the approval of geothermal development activities in the urban, rural or agricultural district. BE IT FINALLY RESOLVED that the Clerk be directed and is directed to transmit this Resolution to the President of Hawaii State Association of Counties, Goro Hokama. Dated at Hilo, Hawaii this day of 1993. INTRODUCED BY: ~C COUNCILMEMBER, COUNTY OF HAWAII COUNTY COUNCIL County of Hawaii Hilo, Hawaii I hereby certify that the foregoing RESOLUTION was by the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on , ATTEST: COUNTY CLERK CHAIRMAN & PRESIDING OFFICER ROLL CALL VOTE AYES NOES ABS EX Reference C-549/PC RESOLUTION NO. `9'~ A BITS. FOR AN ACS pRA~rT RELATING TO GEOTHERMAL RESOIIRCES. BE IT ENACTED HY THE LBGISLATURB OF '1'SE STATE OF HAWAII: SECTION 1. Sactioa 205-5.1, Hawaii Revised Statutes, is amended to read as follows: "S~pc. 205-5.1 Geotbermal resouroe subsoaes. (a) Geothermal resource subzonea may be designated within the urban, rural, and agricultural[, and conservation land use] districts established under section 205-2[.] when permitted under county general plan and zoning ordinances. ..Geothermal resource subzones may be designated within the conservation district without regard to county general plan or zoning ordinances. Only those areas designated as geothermal resource subzones may be utilized for geothermal development activities is addition to those uses permitted in each load use district under this chapter. [Geothermal development activities may be permitted within Lzban, rural, agricultural, and conservation land use districts in accordance with this chapter. "Geothermal development activities" means the exploration, development, or production of electrical energy from geothermal resources and direct use applications of geothermal resources; provided that within the urban, rural, and agricultural land use districts, direct use -1- applications of geothermal resources are permitted both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2 if such direct use applications are in conformance with all other applicable state and county land use regulations and are in conformance with this chapter. (b)] The board of land and natural resources shall have the :responsibility for designating areas as geothermal resource subzones as provided under section 205-5.2; axcspt that the total area within as agricultural district which is the subject of a geothermal mining lease approved by the board of lead and natural resources, any part or all of which area is the subject of a special use permit issued by the county for geothermal development activities, oa or before flay 25, 1984, is designated as a geothermal resource subzoae for the duration of the lease. The designation of geothermal resource subzoaes shall be governed exclusively by this section and section 205-5.2, except as provided therein. The board shall adopt, amend, or repeal rules related to its authority to designate (and regulate the use of] geothermal resource subzones in the meaner provided under chapter 91. The authority of the board to designate geothermal resource subzones shall be an exception to those provisions of this chapter [and of section 46-4] authorizing the land use .commission [and the counties] to establish and modify land use districts and to regulate uses therein. The provisions of this section shall i not abrogate nor supersede the provisions of chapters 182 and ~ -2- 183. (b) Geothermal development activities may be permitted within a geothermal resource subzone in the urban. rural. agricultural, or conservation district in accordance with this section. "Geothermal development activities" mean the exploration, development, or production of electrical enerav from geothermal resources and direct use applicatioas of geothermal resources. (c) The use of an area for geothermal development activities within a geothermal resource subzone shall be governed by the board within the conservation district aad[, except as herein provided,] by [state] this chapter and county [statutes,] general plan and zoning ordinances[, aad roles aot inconsistent herewith] within agricultural, rural, aad urbaa districts[, except that no land use commission approval or special use permit procedures under section 205-6 shall be required for the use of such subzones. In the absende of provisions in the county general plan and zoniaq ordiaances specifically relating to the use and location of geothermal development activities in an agricultural, rural, or urban district, the appropriate county authority may issue a geothermal resource permit to.allow geothermal development activities. "Appropriate county authority" means the county planning commission ualess-some-other agency or body is designated by ordinance of the county council. Such uses as are permitted by county general plan and zoning ordinances, by the appropriate county authority, shall be deemed -3- to be reasonable and to promote the effectiveness and objectives of this chapter]. Chapters 177, 178, 182, 183, 205A, 226, 342, and 343 shall apply as appropriate[. If provisions in the county general plan and zoning ordinances specifically relate to the use and location of geothermal development activities in an agricultural, rural, or urban district, the provisioas.shall require the appropriate county authority to conduct a public ' hearing on any application for a geothermal resource permit to determine whether the use is is conformity with the criteria specified in subsection (e) for granting geothermal resource permits; provided that within the urban, rural, and agricultural land use districts, direct use applications of geothermal resources are permitted without nay application for a geothermal resource permit both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2 if such direct use applications are is conformance with all other applicable state and county 7(aad use regulations and are in conformance with this chapter.] to geothermal development activities. A county in its oeneral plan and zoainc ordinances. may permit geothermal development activities within a aeothezmal resource subzone in the urban rural, or aoricultural district. When so permitted by countv.veaeral plan and zoning ordinances. the geothermal development activities shall be deemed permitted uses and reasonable under this chapter. [(d)l ~ Zf geothermal development activities are proposed -4- within a conservation district, with an application with all required data, the board of land and natural resources shall conduct a public hearing and, upon appropriate request for mediation, from any Party who submitted comment at the public hearing, the board shall [appoint a mediator within five days.] arrange a mediation conference. Requests for mediation shall be received by the board within five days after the close of the public hearing. within five da s thereafter the board shall appoint a mediator._who shall not be a member of the board or its staff. 11nv person submitting an appropriate request for mediation shall be notified by the board of the date time and fllace of the mediation conference. The board shall mail the notice to the retvta address stated on the request for mediation ao later than ten davs before the start of the mediation conference. The conference shall be held on the island were the public hearing was held. The board shall requireithe parties to participate is mediation. [The mediator shall not be a member of the board or its staff.] The mediation period shall not extend beyond thirty days after the date mediation started, except by order of the board. Mediation shall be confined to the issues raised at the public hearing by the party,Fequestinq mediation. The mediator [will] shall submit a written recommendation to the board, based upon any mediation agreement reached between the parties for consideration by the board in its final decision. If there is no mediation agreement, the board may have a -5- second public hearing to receive additional comment related to the mediation issues. Within ten days after the second public hearing, the board may receive additional written comment on the issues raised at the second public hearing from any party. The .board shall consider the comments raised at the second hearing before rendering its final decision. The board shall then determine whethez, pursuant to board rules, a conservation district use permit shall be graatad to authorize the geothermal development activities desczibad is the application. The board shall grant a conservation district use permit if it fiada that the applicant has demonstrated that: (1) The desired uses would not have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding Property; and (2) The desired uses would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, and police and fire protection; or (3) There are reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to above. A decision shall be made by the board within six months of the date a complete application was filed; provided that the time limit may be extended by agreement between the applicant and the board. [(e) If geothermal development activities are proposed within agricultural, rural, or urban districts and such proposed -6- activities are not permitted uses pursuant to county general plan and zoning ordinances, then after receipt of a properly filed and completed application, including all required supporting data, the appropriate county authority shall conduct a public hearing. Upon appropriate request for mediation from any party who submitted comment at the public hearing, the county authority shall appoint a mediator within five days. The county authority shall require the parties to participate is mediation. The mediator shall not be an employee of any county agency or its staff.~.The mediation period shall aot extend beyond thirty days after mediation started, except by order of the county authority. Mediation shall be confined to the lssuea raised at the public hearing by the party requesting msdiatioa. The mediator will submit a wzittea recommendation to the county authority, based upon any mediation agreement reached between the parties for consideration by the county authority 1n its final decision. If there is no mediation agreement, the county authority may have a second public heariaq to receive additional comment related to the mediation issues. Within ten days after the second public hearing, the couaty authority may receive additional writtea comment on the issues raised at the second public hearing from any party. The county authority shall consider the commeats raised at the second hearing before rendering its final decision. The county authority shall then determine whether a geothermal resource permit shall be granted to authorize the geothermal -7- development activities described in the application. The appropriate county authority shall grant a geothermal resource permit if it finds that applicant has demonstrated that: (1) The desired uses would not have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property; (2) The desired uses would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; and (3) That there are reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to above. Unless there is a mutual agreement to extend, a decision shall be made on the application by the appropriate county authority within six months of the date a complete application was filed; provided that the~time limit may be extended by agreement between the applicant and the appropriate county authority. (f) Requests for mediation shall be received by the board or county authority within five days after the close of the initial public hearing. Within five days thereaftez, the board or county authority shall appoint a mediator. Any person submitting an appropriate request for mediation shall be notified by the board or county authority of the date, time, and place of the mediation conference by depositing such notice in the mail to -8- the return address stated on the request for mediation. The notice shall be mailed no later than ten days before the start of the mediation conference. The conference shall be held on the island where the public hearing is held. (g)] Any decision made by [an appropriate county authority or] the board pursuant to a public hearing or hearings undez this section may be appealed directly on the record to the supreme court for final decision and shall not be subject to a contested case hearing. Sections 91-14(b) and (q) shall govern the appeal, notwithatandinQ the lack of contested case hearing on the matter. The [appropriate county authority or the] board shall provide a court reporter to produce a transcript of the proceedings at all public hearings under this section for purposes of as appeal. [(h)] ~ For the purposes of an appeal from a decision from a public hearing[,] under subsection (e). the record shall include: (1) The application for the permit and all accompanying supporting documeat~, including but not limited to: reports, studies, affidavits, statements, and exhibits. (2) Staff recommendations submitted to the members of the agency in consideration of the application. (3) Oral and written public testimony received at the public hearings. (4) written tzanscripts of the proceedings at the public hearings. (5) The written recommendation received by the agency from the mediator with any mediation agreement. -9- (6) A statement of relevant matters noticed by the agency members at the public hearings. (7) The written decision of the agency issued in connection with the application and public hearings. (8) Other documents required by the board [or county authority]." SECTION 2. Section 205-5.2, Hawaii Revised Statutes, is amended to read as follows: "Sec. 205-5.2 Designation of areas as ~*w~„~.i resource subzoaes. (a) Beginning in 1983, the board of land and natural resources shall conduct a county-by-county assessment of areas with geothermal potential for the purpose of designating geothermal resource subzones. This assessment shall be revised or updated at the discretion of the board, but at least once each five years beginning in 1988 Any property owner [or]t person with an interest is real property, or county wishing to have an area designated as a geothermal resource subzoae may submit a petition for a geothermal resource subzoae designation in the form and manner established by rules [and regulations] adopted by the board. An environmental impact statement as defined under chapter 343 shall not be required for the assessment of,_areas under this section. (b) The board's assessment of each potential geothezmal resource subzone area shall examine factors to include, but not -10- be limited to: (1) The area's potential for the production of geothermal energy; (2) ,The prospects for the utilization of geothermal energy in the area; (3) The geologic hazards that potential geothermal projects would eacouater; (4) Social and environmental impacts (5) The compatibility of geothermal development and potential related industries with present uses of surrounding load and those uses permitted wader the general play [or load use policies] and zoning ordinances of the county in which the area is located; (6) The potential acoaomic benefits to be derived from geothermal development and potential related industries; and (7) The compatibility of geothermal development and potential related industries with the uses permitted under sections 183-41 and 205-2, where the area falls within a conservation district. Zn addition, the board shall consider, if applicable, objectives, policies and guidelines set forth is part I of chapter 205A, and the provisions of chapter 226. -- - (c) Methods of assessing the factors in subsection (b) shall be left to the discretion of the board and may be based on currently available public information. -11- (d) After the board has completed a county-by-county assessment of all areas with geothermal potential or after any subsequent update or review, the board shall compare all areas showing geothermal potential within each county, and shall propose areas for potential designation as geothermal resource subzones based upon a preliminary finding that the areas are those sites which best demonstrate as acceptable balance [between] amonc the factors set forth is subsection (b). Once such a proposal is made, the board shall conduct public hearings pursuant to this subsection, aotwithstaadinq any contrary provision related ,to public hearing procedures. Contested case procedures are not applicable to these hearings. (1) Hearings shall be held at locations which are in close proximity to those areas proposed for designation. A public notice of hearing, including a description of the proposed areas, as invitation for public comment, and a statement of~the date, time, and place where persons may be heard shall be published and mailed no less thaw twenty days before the hearing. The notice shall be published oa three separate days in a newspaper of general circulation statewide and in the county in which the hearing is to be held. Copies of the notice shall be mailed to the department of - business, econcanic development, and tourism, to the planning commission and planning department of the county in which the proposed areas are located, and to -12- all owners of record of real estate within, and within one thousand feet of, the area being proposed for designation as a geothermal resource subzane. The notification shall be mailed to the owners and addresses as shown on the current real property tax rolls at the county real property tax office. Upon such action, the requireseat for notification of owners of laced is completed. Por the purposes of this subsection, notice to one coowaer shall be sufficient notice to all coowaers. (2) The hearing shall be held before the board, and the authority to conduct hearings shall not be delegated to any agent or representative of the board. All persons and agencies shall be afforded the opportunity to submit data, views, and arguments either orally or is writing. The department of business, economic development, and tourism aced the county planning department shall be permitted to appear at every hearing and make recommendations concerning each proposal by the board. (3) At the close of the hearing, the board may designate areas as geothermal. resource subzones or announce the date on which it will render its decision. The board may designate areas as geothermal resource subzones only upon finding [that]_ That the areas are those sites which best -13- demonstrate an acceptable balance [between) among the factors set forth in subsection (b)[•I: and (B That the designation is not prohibited by any provision of this section or section 205-5.1. •Upon request, the board shall issue a concise statement of its findings and the principal reasons for its decision to daaignate a particular area. (e) The designation of anY geothermal resource subzone may be withdrawn by the board of land and natural resources after proceedings coaductad pursuant to chapter 91. The board shall withdraw a designation under authority of this subsection only upon finding by a pzepondaraaee of the evidence that the area is ao longer suited for dasigaatioa; provided that the designation shall not be withdrawn for area is which active exploration, development, production or distribution of electrical energy from geothermal sources or direct use applications of geothermal resources are taking place. ~ The designation of a geothermal resource subsone in an urban rural or agricultural land use districts shall terminate upon amendment of the counri general plan and zoning ordinances to prohibit geothermal development activities is that subzone. The termination shall take effect on the effective date of the amendment and shall not require withdrawal of the designation by the board Any geothermal deyelopment activities operating lawfully 1n a subzone prior to termination of the designation shall be a nonconforming use and subiect to the county general -14- plan and zoning ordinance provisions concerning nonconforming uses. ((f)] ,(g~ This [Act] section and section 205-5.1 shall not apply to any active exploration, development or production of electrical energy from geothermal sources or direct use applications of geothermal resources taking place on June 14, 1983, provided that any expansion of such activities shall be carried out in compliaacs wlth its provisions." SECTION 3. Section 205-5.3, Hawaii Revised Statutes, is amended to read as follows: "Sac. 205-5.3 8xploratory we1L. [Notwithstaadiaq sectioa 205-5.1(a), (d), and (e), or enY other provisioa of law, any] exploratory well drilled for scientific purposes or to determine the economic viability of a geothermal resource[.] eaY be permitted outside of a designated geothermal resource subzone, (regardless of land use classification,) provided that the activity is limited to exploration only. All applicable state and county laws ordinances, rules, permits, and approvals shall be required to drill such exploratory wells which shall not be exempt from the requirements of the environmental impact statement law, chapter 343." SECTION 4. Statutory material to be repealed is bracketed. New material is underscored. -15- SECTION 5. This Act shall take effect upon its approval. INTRODUCID BY• -16- HELE~*E H. HALE Councilwoman COLI,'~jTY COU,~[CIL. C.ounro of Hauvu - ' Huuvu Courrtv Budding 25 AuFum Strcct Hdo. Hawmr 96120 August 11, 1993 MEMORANDUM TO: SPENCER K. SCHUTTE, CHAIR, HAWAII COUNTY COUNCIL FROM: HELENE H. HALE, COUNCILWOMAN /~~~"//~_~~- RE: ATTACHED RESOLUTION REGARDING GEOTHERMAL Please have the attached resolution regarding geothermal to the appropriate committee for consideration. Thank you. Attachment ,L.e s ~ ~ COMM. NO. ~,~ Toe PO