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HomeMy WebLinkAboutBIL 535 Draft 01 1988-1992 f COUNTY OF HAWAII STATE OF HAWAII BILL NO. 535 ORDINANCE NO. AN ORDINANCE PROVIDING FOR PUBLIC ACCESS TO THE SHORELINE AND MOUNTAIN AREAS, BY ADDING A NEW CHAPTER TO THE HAWAII COUNTY CODE. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1 . A new Chapter is added to the Hawaii Coundy Code and shall read as follows : "CHAPTER Public Access "Article 1. General Provisions. Section Title. This chapter may be cited as the Public Access Code. Section . Findings and Purpose. The Council finds that miles of shorelines, coastal waters and mountain areas under the jurisdiction of the State of Hawaii are inaccessible to the general public due to the absence of public rights-of-way; that the absence of public rights-of-way is a contributing factor to mounting acts of hostility against owners of private shoreline properties and private mountain properties; that the population of the County is increasing while presently accessible beach, shoreline and mountain areas remain fixed; and that the absence of public access to the County' s shoreline and mountain areas constitutes an infringement upon the fundamental right of free movement in public space and access to and use of these coastal and mountain recreational areas . There is also the need to insure the preservation of our island' s heritage and the availability to the shorelines, conservation lands, inland trails and other limited resources for our future generations, that access to these coastal and mountain areas has been an essential historic element for food, transporting of goods and recreational purposes for many of our island' s ancestors . The purpose of this chapter is to guarantee the right of public access to the ocean, shorelines and mountain areas by requiring the dedication of land for such public rights-of-way by fee or easement as a condition precedent to final subdivision approval or development approval . Section . Statutory Authority. This chapter is enacted pursuant to the authority granted by Section 46-6 . 5, Hawaii Revised Statues as amended. Section . Definitions. For the purpose of this chapter, unless it is plainly evident from the context that a different meaning is intended, certain words used herein are defined as follows : (1) 'Approval ' means the final approval granted to a proposed subdivision or development where the actual division of land into smaller parcels is sought, provided that, where construction of a building or buildings is proposed with further subdividing an existing parcel of land, the term "approval" shall -2- refer to the issuance of the building permit . (2) 'County' means the County of Hawaii . The geographical limit shall include all that portion of the State of Hawaii commonly known as the island of Hawaii and all other islands in the State of Hawaii and the waters adjacent thereto not included in any other county. (3) 'Dedication' means the conveyance of land, including any improvements, fixtures and facilities appurtenant, or any interest therein, in fee simple or easement . (4) 'Development' means the planning, financing, acquisition of real and personal property, demolition of existing structures, clearance of real property, construction, reconstruction, alteration, or repairing of approaches, streets, sidewalks, utilities, and services, or other site improvements, or construction, repair, remodeling, extension, equipment, or furnishing of buildings or other structures, or any combination of the foregoing, of any housing project . It also includes any and all undertakings necessary therefor, and the acquisition of any housing, in whole or in part . (5) 'Director' means the Planning Director of the County of Hawaii . (6) 'Dwelling Unit' means one or more rooms designed for or containing or used as the complete facilities for the cooking, sleeping and living area of a single family only and occupied by no more than one family and containing a single kitchen as defined -3- in the Hawaii County Code. (7) 'Easement' means the grant of the right to use a strip of land for specific purpose. (8) 'Lot' means a building site or a parcel of land shown as a unit on an approved and recorded subdivision as defined in the Hawaii County Subdivision Control Code. (9) 'Public Access ' for pedestrian travel means a public right-of-way in fee or easement for pedestrian traffic and may also be used as a bikeway, utility easement or for restricted vehicular traffic. (10) 'Shoreline' means the upper reaches of the wash of the waves, other than storm or tidal waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or where there is no vegetation in the immediate vicinity, the upper limit of the debris left by the wash of the waves and pursuant to the authority of Chapter 205A, HRS, as amended. (11) 'Subdivision' for the purpose of this article, means any improved or unimproved land or lands divided or proposed to be divided for the purpose of disposition into two or more lots, parcels, units, or interests and also includes any land whether contiguous or not, if two or more lots are offered as part of a common promotional plan of advertising and sale. -4- Article 3 . Administration Section . Scope. In cases where adequate public access is not already provided, every subdivider or developer as a condition precedent to final approval of a subdivision or issuance of a building permit for a development shall dedicate land for public access by right-of-way in fee or easement for pedestrian travel from a public highway or public street to the following public places : (1) The land below the shoreline; and (2) The mountains where there are existing facilities for hiking, hunting, fruit picking, ti-leaf sliding and other recreational purposes, and where there are existing mountain trails . The provisions of this article shall apply to all subdivisions and to all developments . The provisions of this article shall apply to an existing developments approved prior to the effective date of this article when two or more dwelling units are added to the existing development . All subdivisions and developments affecting public access whether separated from the shoreline or mountain areas by intervening parcels, subdivisions, or developments, shall be subject to the provisions of this article. -5- Upon the acceptance of the dedication of land for a right-of-way in fee or easement by the County, the County shall thereafter assume the cost of improvements for and the maintenance of the public access . Article 4 . Requirements. Section . Location and alignment. The location and alignment shall be consistent with the intent and purpose of this chapter and shall implement the intent and purpose of the General Plan of the County of Hawaii . As a condition precedent to approval of a subdivision or development, the Director shall determine, upon consulting with the Director of the Department of Parks and Recreation, the Chief Engineer of the Department of Public Works, and the Department of Land and Natural Resources where access is being requested to lands under their jurisdiction, the location and alignment; and consider the topography; other existing access locations; lot layout; access connections; zoning and uses of the properties on and within the surrounding area; safety; traffic circulation; effect on the surrounding area; area wide traffic; destination and impacts on environmentally or ecologically sensitive areas . Section Subdivision of land. The Director shall determine the location and alignment of the public access for pedestrian travel on subdivision of land, upon consultation with -6- the appropriate governmental agencies affected by such public access . When it is determined that adequate access is not provided, the developer shall dedicate land for public access by right-of-way in fee or easement as a condition precedent to approval of the development . Section Width of Public Access. The minimum width of such public access shall be 10 feet except as otherwise approved by the Director upon consultation with the Director of Parks and Recreation and the Chief Engineer of the Department of Public Works . Article 5. Dedication of Access and Approval of Subdivision. Section . Subdivision of land. When it is determined that public access must be provided upon review of a subdivision or development application, the subdivider or developer shall file the necessary deeds of conveyance with the Planning Department or other governmental agency responsible for the maintenance and improvement of the public access . Upon written notification from the Director or other agency that the dedication documents have been reviewed and approved as to form and contents, the Director shall grant approval to the subdivision or development in accordance with the Subdivision Control Code of the County. The public access for pedestrian travel shall be clearly designated on the final map of the subdivision or development in accordance with the Subdivision Control Code. -7- Prior to final approval of the subdivision or development, the subdivider or developer shall file the executed deeds of dedication for conveyance of the public access, free and clear of all encumbrances . Conveyance shall be in conformity with all applicable statutes, ordinances and regulations . The subdivider or developer shall file the necessary deeds of conveyance with the Planning Department . Upon written notification from the Director that the dedication documents have been reviewed and approved as to form and content, the Director shall grant approval to the subdivision in accordance with the Subdivision Control Code. The subdivider or developer shall file the executed deeds of conveyance free and clear of all encumbrances upon approval of the subdivision or development . Upon acceptance of the dedication by the County, the Director shall notify the Building Superintendent for approval of the building permit . The right-of-way shall be clearly designated on the development plan. Article 6. Appeal Procedures. Section . Appeals. Action of the Director may be appealed in writing to the Board of Appeals in accordance with its rules . " -8- • . SECTION 2. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3 . This ordinance shall take effect upon its approval . INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawai Date of Introduction: January 22 , 1992 Date of 1st Reading Date of 2nd Reading Effective Date: -9-