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HomeMy WebLinkAboutBIL 0901 Draft 01 1980-1984w'ORDINANCE Intr. By: YAMASf.jP Retef` Re: Amend oning Ordinance - Establish a Transfer of Development Refer: C-1008/pC Rights System MB No. Bill 901: Amends Chapter 8 (Zoning Code) of the Hawaii County Code to amend Article 1, Section 3 and to add a new article relating to the establishment and transfer of development rights. PC - 11/12/82 Bill No. 901 COUNTY OF HAWAII - STATE OF HAWAII ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 8 (ZONING CODE) OF THE HAWAII COUNTY CODE TO AMEND ARTICLE 1, SECTION 3 AND TO ADD A NEW ARTICLE RELATING TO THE ESTABLISHMENT AND TRANSFER OF DEVELOPMENT RIGHTS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. The purpose of this Ordinance is to establish a system for the transfer of development rights. SECTION 2. Chapter 8, Article 1, Section 3 of the Hawaii County Code is amended by adding the following subsections: "Section 3.305 DEVELOPMENT POTENTIAL. The maximum floor area assigned to a parcel of land pursuant to this Article and to Chapter 8 of the Hawaii County Zoning Code. "Section 3.306 DEVELOPMENT RIGHTS. The rights expressed in terms of floor area that a person has to build to the development potential of his parcel of land. "Section 3.57 GRANTING DISTRICT. Designated land(s) from which development rights can be transferred or removed. "Section 3.145 OPTIONAL DENSITY PERMIT. A legal document recording the allowances and provisions that are or can be placed on the receiving property at the time of approval., "Section 3.16 PRESERVATION EASEMENT. A legal document recording all restrictions and encumbrances placed on the granting property at the time of approval. "Section 3.168 RECEIVING DISTRICT. Designated land(s) to which development rights can be transferred or attached. "Section 3.190 TRANSFER OF DEVELOPMENT RIGHTS. A system in which a transfer in fee simple or reciprocity of some or all transferable development rights on a parcel of landby its owner is conveyed and attached to another parcel of land and may then be used in conjunction with developing such a parcel. "Section 3.191 TRANSFERABLE DEVELOPMENT RIGHTS. Development rights which have not at the time of transfer been used for an existing structure on the granting land. P • SECTION 3. Chapter 8 of the Hawaii County Code adding a new article.to read as follows: is amended by "Article 29 A System for the E-stablishment and Transfer of Development Rights "Section 1. POLICY AND INTENT. The County Council finds and declares that the movements and shifts.of population and the changes in residential, commercial, industrial, agricultural and resort customs and use threaten the disappearance ofuland and places of unique historic, cultural, agricultural scenic and aesthetic values. The attraction of development to lands offering unequaled physical resources is inevitable. While,the preservation and continued utilization of such lands are necessary and desirable to sound community planning and to the welfare 'of the residents of Hawaii County, i•ts availability and the economics have become 'increasingly disproportionate. The County Council also finds that the natural desire of the citizens of this County to preserve agricultural,,. historic and scenic lands and open space should be balanced against the natural rights of landowners as contained under Article V of the U. S. Bill of Rights (the Fifth Amendment to the U. S. Constitution), which states that "no person shall ... be deprived.of life, liberty or property, without due process of law, nor shall private property be taken for public use without just compensation." While there exists need to preserve desirable lands against development, this need must be properly balanced with the rights' of private landowners to a just compensation or method of due process with which to recover payment for the loss of development rights. In addition, the General Plan is designed to'secure (1) a fair balance between the public interest through such things as, the most economic and efficient use of municipal services and utilities and the interests of individual landowners, and (2) an economically, socially and environmentally sound ',balance between developed and open land. It is then in the public interest, to relocate potential development from particular "granting" districts -requiring limitation of densiti.es where environmental or land use impacts could be severe to particular "receiving" districts requiring increased density limits where those impacts can be minimized. The purpose of this Article is to set 'up a system which recognizes and accomplishes the above. "Section 2. ENABLING LEGISLATION. Section 46-4, Hawaii Revised Statutes, grants extensive zoning authority to the counties. The Statute states that zoning must be consistent with a general plan and lists the kinds and nature of regulation grantedrto the counties. In addition, it authorizes the counties to enact "other such regulations.as may be deemed by the boards or•city;!council as necessary and proper to permit and encourage orderly.development of land resources within their jurisdictions." 46-4(a).(12), H. R. S. -2- The legislature further declares that "(t)he 'powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in ;accord with a long range; comprehensive, general plan, and to insure the greatest .benefit for the State as a whole." Section 46-4(a), H. R. S. "Section 3. CRITERIA FOR ESTABLISHING GRANTING DISTRICTS. Lands within granting districts must fulfill ;'one of the following objectives: 1. To preserve and maintain prime agricultural lands as classified by Agricultural Lands of Importance to the State'�of Hawaii (ALISH) and lands with soil classified by the Land Study Bureau's Detailed Landw Classification as Overall (Master) Productivity Rating C1a'ss.A or B. Those lands that are under the pressures of urbanization and development shall receive preferential t!reatment. 2. To protect and perpetuate historical and, cultural landmarks which represent elements of the County's; past. 3. To safeguard the public from potential natural hazard areas which arehighly susceptible to flooding;;, erosion, volcanic activity and tsunami inundation. 4. To protect the natural resource base such as air, water, soil and plants which support endemic plant and animal life and shall;include areas of vital scientific, geologic and oceanographic, climatologicai and ecological interest. 5. To provide scenic vistas and open space areas for the social, environmental, and economic well; -being of the County of,'Hawaii and its residents. 6. To protect' and enhance the integrity of ,'areas endowed with natural beauty. "Section 4. PROCEDURES FOR ESTABLISHING DISTRICTS. Within one (1) ''year from the effective date df adoptidn of this ordinance, the Planning Commission shall recommend to the County Councila list of granting and receiving districts which are identified by locational description -and specific tax map key, numbers. Parcels within the. 'districts .shall be c'!Pntlguous;. A variance request shall not circumvent or 'undermine the established intent ;,.of a granting or receiving,,dis':trict. The Planning Commission shall give notice to pr.operty owners affected in the granting and receiving lands.. Ati.least two public hearings will be heild to afford the interested. p.a'rti,es an opportunity to be heard. A landowner may petition the Commission for inclusion of his property within the granting or receiving districts. The Commission may act favorably on the petition if the land in 'question does perpetuate the purpbses set forth in Section 3. . -3- A landowner who is in disagreement with his parcel being included within a.granting or receiving district .;may petition the Commission for a reclassification. The Commission may act favorably upon such petitions only in the most extreme and unusual cases in keeping with the General Plan or public policy stated herein. Upon receipt of the list of granting and receiving districts from the Planning Commission, the Council may adopt the list with no changes. The Council may modify and approve the'list following a public hearing on any proposed amendments. "Section 5. CHANGE OF ZONING DISTRICTS. A change of zone district which reduces density or limits the existing zoned use ;'shall be subject to the appropriate provisions of this Article and of Article 1, Chapter 8 of the Zoning Code. In addition to,the procedural requirements of Chapter 8, Article 1, Section"6.02 or 6.03, an application f:or a change of zoning district shall include: 1. A description of the subject property outlining how the property fulfills the TDR criteria setforth in Section 3. 2. A calculation of the square feet available for transfer shall be made as follows:` Basic maximum allowable floor area that could be built for buildings on'subject parcel under existing district regulations if it were undeveloped; LESS - Basic maximum allowable floor areathat could be built for buildings on subject parcel under proposed zoning change if it were undeveloped. EQUALS= Maximum amount that may be transferred to one or more receiving parcels. Upon approval of a change of zone request bythe Council, the County shall grant'an Optional Density,Permit and issue a Preservation Easement which must be recorded against the granting subject property in the manner set_ forth in Section -6., .A plan to attach the development rights transferred with the issuance of the'Optional Development Permit to a,receiving district established under Section 4 or to a parcel having: the same zoning designation not established under Section 4 shall be permitted following at least one public hearing and _approval by the Planning Commission. Upon Planning Commission .approval, the receiving parcel shall record the conditions granted by the Optional Density Permit in. the manner set forth in Section 6. "Section 6. SALE OF DEVELOPMENT RIGHTS. The right of an owner to develop his parcel t'o its full development potential when that right is vested,"shall be deemed to be an interest in real property and may be transferable in accordance with this Article. A person who possesses development -4= rights within a granting district may transfer all or a portion of such rights to another owner of land within a receiving district. The United States, the State or the County or any affiliated agency shall have the same rights to purchase and transfer development rights. It shall be unlawful for any owner, at any time, to transfer development rights,except by written instrument in form sui.table.for recording and recorded,in the Bureau of Conveyances (or for'filing and filed in the office of the assistant registrar.of the land court of the State if either parcel of land affected is registered in the land court), which instrument shall name the Grantor and the Grantee, shall describe the.granting land and th.e' receiving land, shall state any restrictions subject to the transfer, is made subject, and shall be free and ;clear of all liens and encumbrances except for such reservations and, -for liens and encumbrances where the owners and holders thereof consent to the transfer as and for the lien of real property taxes and assessments. The owners and holders of liens or encumbrances may by written instrument joined in by the owners of the granting land and the receiving land, specify whether the lien or encumbrance shall remain with the granting land or be transferred to the receiving land and such consent shall be effective according to its terms, provided it is recorded or filed with the instrument of transfer. The lien of real property taxes and assessments shall be apportioned as of the effectiveness of the transfer with a portion thereof, exclusive of any: portion attributable to structures on the granting land, being transferred to the receiving land. The portion transferred shall be. in the ratio that the development rights transferred bear to all development rights in the granting land prior to the transfer. "Section 7. TRANSFER OF'DEVELOPMENT RIGHTS SYSTEM. The maximum floor area permitted on the granting property may be transferred and built on another receiving property, resulting in a higher density than that for which the receiving,'property is zoned. This process, which allows development rights from one property to be determined and transferred to a second property is called Transfer of Development Rights (TDR). The participation of a property owner in TDR,shall be on a voluntary basis and shall be subject to approval by't.he county through the issuance of an Optional Density Permit/Preservation Easement in conjunction with a Planned Development Permit, Planned Unit Development, Plan Approval or other appropriate means. The petitioners.of the land within. the granting -and receiving districts shall submit: 1. Affidavits of joint consent describing the financial arrangements regarding the payment for Development Rights and agreeing to jointly file for an Optional Density Permit/Preservation Easement. 2. A description of the granting property outlining how the subject property fulfills the TDR criteria set forth in. Section 3. -5- 3. A calculation of the square feet available for transfer shall be made as follows: Computation: Basic maximum allowable floor area that could be built for buildings on subject parcel under existing district regulations if it were undeveloped; LESS - Total floor area of all buildings on subject parcel. EQUALS= Maximum amount that may be transferred to one or more receiving parcels. 4. A description of the receiving property outlining the availability of support services and infrastructure for development. Upon Optional Density Permit approval, a Preservation Easement must be recorded against the granting property which reflects conditions of approval and any other restrictions. "Section 8. The County Council may amend the list of granting or receiving districts as conditions change which affect land use public welfare and TDR marketability. Initiating procedures shall be in the manner set forth in Section 4. "Section 9. The Planning Director shall promulgate rules and regulations to implement this Chapter." SECTION 4. In the event any portion .of this ordinance is declared invalid, such invalidity shall not affect other parts of this ordinance. SECTION 5. This ordinance shall take effect upon its approval.. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of Adoption: Effective Date: