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HomeMy WebLinkAboutBIL 535 Draft 02 1994-1996 COUNTY OF HAWAII STATE OF HAWAII BILL NO.535 (Draft 2) 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 . Findings and Purpose. Through its findings, by Act 143, the legislature has found 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 the issuance of a building permit for a multiple-family development. SECTION 2. A new chapter is added to the Hawaii County 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 . Statutory Authority. This chapter is enacted pursuant to the authority granted by Section 46-6.5, Hawaii Revised Statutes, as amended. Section . Definitions. (a) 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 where the actual division of land into smaller parcels is sought, provided that, where construction of a building or buildings for a multiple-family development is proposed without further subdividing an existing parcel of land, the term "approval" shall 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) 'Director' means the Planning Director of the County of Hawaii. (5) 'Easement' means the grant of the right to use a strip of land for specific purpose. (6) '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. -2- (7) 'Multiple-family development' means a building or structure containing more than two dwelling units. (8) '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. (9) 'Shoreline' means the upper reaches of the wash of the waves, other than storm or seismic 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, or the upper limit of the debris left by the wash of the waves, pursuant to Chapter 205A, HRS, as may be further amended. (10) 'Subdivision' for the purpose of this chapter, 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. Article 2. Administration Section . Scope. (a) In cases where it has been found by the county through council resolution that the public by legislative act, prescriptive right, implied dedication, custom, as part of the public trust, or by any other accepted legal means, has obtained a right-of-way, a subdivider or developer for a multiple-family development, shall as a condition precedent to final approval of a subdivision or issuance of a building permit for a multiple-family development, 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: (1) The land below the shoreline; and (2) The areas in the mountains where there are existing facilities for hiking, -3- hunting, fruit picking, ti-leaf sliding, other recreational purposes and where there are existing mountain trails. Section . Application. The provisions of this chapter shall apply to all subdivisions or multiple-family development, affecting public access whether separated from the shoreline or mountain areas by intervening parcels, subdivisions, or developments. An existing multiple-family development approved prior to the effective date of this chapter when six or more dwelling units are added to the existing multiple-family development, shall be subject to the provisions of this chapter. Article 3. Requirements. Section . Location and alignment. The location and alignment of the right-of-way may be changed, with the consent of the director, to better conform to the layout of the development or to improve the utilization of the access. Section . Subdivision of land. The director shall determine the location and alignment of the public access for pedestrian travel on the subdivision of land, upon consulting with the director of the department of parks and recreation, the chief engineer of the department of public works, and other governmental agencies affected by such public access. Section . Multiple-family development. All multiple-family development building permits along or affecting public access near the shoreline or mountain areas shall be reviewed by the director, in consultation with the director of parks and recreation and other governmental agencies affected by such public access. (a) When it is determined by the director, in consultation with the director of parks and recreation and other governmental agencies affected by such public access that adequate public access is already present, the director shall notify the building superintendent so that the building permit may be approved. -4- (b) The developer shall dedicate land for public access by right-of-way in fee or easement as a condition precedent to approval of the building permit when it is determined that public access is not provided. Section . Width of Public Access. The minimum width of such public access shall be ten (10) feet. Article 4. Dedication of Access and Approval of Subdivision. Section . Subdivision of land. (a) When it is determined that public access must be provided upon review of a subdivision application, the subdivider shall file the necessary deeds of conveyance with the director or other governmental agency responsible for the maintenance and improvement of the public access. (b) Upon written notification from affected agencies that the dedication documents have been reviewed and approved as to form and contents, the director shall grant approval to the subdivision in accordance with the subdivision rules and regulations of the county. (c) The public access for pedestrian travel shall be clearly designated on the final map of the subdivision in accordance with the subdivision rules and regulations. (d) Within thirty (30) days upon approval of the subdivision, the subdivider shall file to the county the executed deeds of dedication for conveyance of the public access, free and clear of all encumbrances. Failure to file this document within the 30-day period, or such extension as may be granted by the director, shall void the subdivision approval. Conveyance shall be in conformity with all applicable statutes, ordinances and regulations. Section . Multiple-family development. (a) When it is determined that public access must be provided upon review of a multiple-family development, the developer shall file a subdivision application to create the public access right-of-way in accordance with the subdivision rules and regulations. -5- (b) The developer, who as subdivider, shall file the necessary deeds of conveyance with the director or other governmental agency responsible for the maintenance and improvement of the public access. (c) Upon written notification from the affected agencies 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 rules and regulations of the county. (d) The public access for pedestrian travel shall be clearly designated on the final map of the subdivision in accordance with the subdivision rules and regulations. (e) The 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 multiple-family development plan. Section . 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, unless the subdivider or developer agrees to assume such cost and maintenance. Article 6. Appeal Procedures. Section . Any person aggrieved by any action taken by the director in the administration of this chapter may file an appeal within thirty (3 0) days of the action complained of, with the board of appeals." SECTION 3. 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. -6- SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII TD/CES Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: REFERENCE: Comm: 339. 04 -7-