HomeMy WebLinkAboutBIL 242 Draft 01 2014-2016WJpu
COUNTY OF HAWAII
Ott OF 14
ORDINANCE NO.
STATE OF HAWAII
BILL NO. 242
AN ORDINANCE AMENDING CHAPTER 16 OF THE HAWAII COUNTY CODE 1983
(2005 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO
IMPLEMENTING SUSTAINABILITY AND RESILIENCE PRINCIPLES FOR THE
LONG-TERM WELLBEING OF THE COUNTY AND ITS INHABITANTS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Chapter 16 of the Hawaii County Code 1983 (2005 Edition, as
amended), is amended by adding a new article to be appropriately designated and to read as
follows:
"Article _. Aloha `Aina: Sustainability Standards.
Division 1. Findings and Purpose, Authority, and Definitions.
Section 16-_ Findings and purpose.
The council is cognizant that the promotion of the sustainability of our island's natural
resources can be advanced on a case-by-case basis, or preferably by way of defined policies and
principles as set forth in this article.
As representative of an island community, the council is particularly sensitive to the
limitations of on -island and marine natural resources, and the urgent need to make difficult choices
to ensure the long-term viability of our economic, socio -cultural, and environmental well-being.
Likewise, the council is aware of the need to not only advance short-term public and private
economic gains, but on a day-to-day basis to take affirmative steps to prevent cumulative harmful
impacts to our environmental habitat, our cultural assets, and long-term economic vitality.
As mandated by the Hawaii Supreme Court in "In Re Iao Ground Water Management Area
High Level Source Water Use Permit Application" (August 15, 2012), in order to advance public
trust principles, in cases affecting land and water development and management, the government
decision-making body must identify 1) the scope of affected natural and cultural resources, 2) the
extent to which those resources may be adversely affected, and 3) reasonable alternatives and
feasible actions that can be undertaken to avoid, minimize, and mitigate the identified adverse
impacts.
By establishing decision-making standards to implement its affirmative public trust duty,
the council seeks to establish the County of Hawaii as a model of the interrelated goals of long-
term economic, environmental, and cultural sustainability for the benefit of our island, our state,
and our pacific region `ohana.
The County of Hawaii therefore intends to ensure that all decisions made by the County
that individually or cumulatively affect our natural and cultural resources are made in a manner
consistent with a high level of scrutiny, openness, deliberation, and foresight.
Section 16- —
Authority.
The authority to impose long-term sustainability standards is granted to counties by:
(1) The Hawaii Revised Statutes, section 46-1.5 "General powers and limitation of the
counties," specifically item (13), which provides:
"Each county shall have the power to enact ordinances deemed necessary
to protect health, life, and property, and to preserve the order and security
of the county and its inhabitants on any subject or matter not inconsistent
with, or tending to defeat, the intent of any state statute where the statute
does not disclose an express or implied intent that the statute shall be
exclusive or uniform throughout the State."
(2) The Hawaii County Charter section 13-29 "Conservation of Natural and Cultural
Resources," which provides:
"For the benefit of present and future generations, the county shall
conserve and protect Hawai`i's natural beauty and all natural and cultural
resources, including but not limited to land, water, air, minerals, energy
sources, wahi pana, surf spots, historic sites, and historic structures, and
shall promote the development and utilization of these resources in a
manner consistent with their conservation and in furtherance of the self-
sufficiency of the county. All public natural and cultural resources are
held in trust by the county for the benefit of the people."
(3) The Hawaii State Constitution, Article XI, Section 9, which provides:
"Each person has the right to a clean and healthful environment, as
defined by laws relating to environmental quality, including control of
pollution and conservation, protection and enhancement of natural
resources. Any person may enforce this right against any party, public or
private, through appropriate legal proceedings, subject to reasonable
limitations and regulation as provided by law."
Section 16-_ Definitions.
As used in this article, unless otherwise specified:
"`Auwai" means a man-made water channel predominately used for irrigation.
"Community development plan" means a County comprehensive plan for an area within
the County adopted by ordinance pursuant to section 15.1 of the general plan. Wherever used in
this article, such use shall be applicable only to those planning areas that have officially adopted a
community development plan, pursuant to section 16-2.
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"General plan" means the County of Hawaii general plan adopted as Ordinance No. 05-
25, and as thereafter amended pursuant to section 3-15 of the charter. The general plan is the
County's policy directive for the long-range comprehensive development of the island which
specifically includes the following mandate: "Inject long-range considerations into the
determination of short-range actions and implementation."
"Precautionary principle" means the element of the Public Trust Doctrine that establishes
a general duty to take precautionary action, and as implemented means that the government entity
in its trustee role has the duty to: (1) Identify and address reasonable alternatives in light of likely
positive and negative consequences and cumulative impacts; (2) Place the burden of proof on the
applicant that the resources listed in section 13-29 of the charter are not likely to be adversely
impacted; and (3) When the science and information is uncertain, favor caution for the benefit of
the island ecosystem and its cultural sense of place, for the long-term health and safety of the
environment and its people.
"Public trust duty" means the obligation of the State of Hawaii and its counties to take the
initiative in considering, protecting, and advancing public rights in the resource at every stage of
the planning and decision-making process. Specifically, the public trust compels the government
decision-making body to duly consider the cumulative impact of existing and proposed diversions
on trust purposes and to implement reasonable measures to mitigate this impact including the use
of alternative sources consistent with a global, long-term perspective.
"Resilience" means the ability of a system, built or natural, to survive and handle disruption
of the system, both in the face of acute crises and cumulative crises.
"Sector" means a subunit of the existing economic, environmental, or cultural systems, or
a combination thereof, carved out for purposes of sustainability and resilience analysis and
planning.
"Sustainability" means achieving the following: (1) Respect and protection for the culture,
character, beauty, and history of the Island of Hawaii; (2) Ensuring the proposed action will not
result in permanent damage to the environment and significant cultural assets; and (3) Meeting
the needs of the present economic, sociocultural, and environmental wellbeing without
compromising the ability of future generations to meet their own need.
"Water" means not only potable water, but also stream, reservoir, underground, `auwai,
and coastal waters.
Division 2. General Provisions.
Section 16-_ Applicability.
This article shall apply to all applications for approval, determinations, and advisory
recommendations under the jurisdiction of the planning department and the windward and leeward
planning commissions, including those matters requiring Council approval, regardless of whether
categorized as discretionary or ministerial. This article shall not apply to building, electrical, and
plumbing permits issued by the department of public works.
Section 16 -_Required sustainability determination.
In addition to applicable County, State and Federal laws, consistent with the public trust
duty, the County shall not approve any application applicable to this article, without an affirmative
finding of consistency with the goals of long-term environmental, cultural, and economic
wellbeing.
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Section 16 -_Required impact strategy action plan.
Prior to issuance of any approval, determination, or advisory recommendation applicable
to this article, the planning department shall issue an action plan for each such approval,
determination, or advisory recommendation which shall identify any impacted cultural and
environmental resources, identify the extent to which those resources are likely to be adversely
impacted in the short-term and in the long-term, and specify reasonable strategies to avoid,
minimize, and mitigate the identified adverse impacts.
Section 16- —
Sector by sector sustainability and resilience planning.
The department of research and development, in collaboration with the planning
department, shall engage in long-term proactive planning on a sector -by -sector basis promoting
sector resilience and resilience in such areas as water, energy, agriculture, roads and infrastructure,
public health, and emergency preparedness, taking into account the priorities and mandates in the
general plan, the relevant community development plan, and any other relevant baseline or
resource study.
Section 16-_ Enforcement.
This article may be enforced by any person or entity that has been adversely affected by
the County decision-making body or official, regardless of whether the adverse effect is economic,
cultural, or environmental, by way of filing a petition with the planning director. In the event of
an adverse decision by the planning director, the petitioner may appeal the director's decision to
the board of appeals, provided the petitioner has complied with the appeal procedures made
available by the planning department.
Division 3. Reports and Records.
Section 16 -_Annual sustainability and resilience report.
On an annual basis, beginning no later than July 1, 2017, the planning department shall
report to the council on the County's progress and challenges in implementing sustainability
planning.
Section 16- — Council sustainability and resilience review.
On an annual basis beginning no later than October 1, 2017, the council shall issue its
assessment of the County's sustainability and resilience efforts and shall make recommendations
to further advance those efforts.
Section 16-_ Records.
The planning department shall keep a record of all decisions and plans made pursuant to
this article. That record shall be available during normal business hours for review at both the
Kona and Hilo offices of the planning department."
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SECTION 2. If any provision of this ordinance, or the application thereof to any person
or circumstance is held invalid, such invalidity shall 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 declared to be severable.
SECTION 3. This ordinance shall take effect ninety days after approval.
INTRODUCED BY:
VvC�(
COINCII MBER, COUNTY OF I IAWAVI
Hawaii
Date of Introduction:
Date of I st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm. Vii