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HomeMy WebLinkAboutBIL 535 Draft 03 1994-1996 t f ` �• � kY' OF HAWAII STATE OF HAWAII COUNTY BILL NO.535 (Draft 3 ) 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, as enacted in 1973 by Act 143, the legislature has found that there was a great need for the establishment and the preservation of public access to many areas in the State. The legislature also 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 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 public 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) 'Dedication' means the conveyance of land, including any improvements, fixtures and facilities appurtenant, or any interest therein, in fee simple or easement. (3) 'Director' means the Planning Director of the County of Hawaii. (4) 'Easement' means the grant of the right to use a strip of land for specific public purposes. (5) '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. (6) 'Mountain' means those lands situated above the 1,000-foot elevation above sea level. -2- (7) 'Multiple-family development' means buildings or structures containing more than two dwelling units on one lot. (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. Article 2. Administration Section . Application. (a) The provisions of this chapter shall apply to applications for all subdivisions and multiple-family developments on lots situated between shoreline and mountains and the nearest public coastal or belt highway, as the case may be. A subdivider or developer of 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 by right-of-way in fee or easement for public access from a public highway or public street to the following: (1) The land below the shoreline; and (2) Publicly owned areas in the mountains where there are existing facilities for hiking, hunting, fruit picking, ti-leaf sliding, other recreational purposes and where there are existing mountain trails. The location of publicly owned areas and trails shall be -3- Q determined by rules promulgated by the director in consultation with the state department of land and natural resources and the department of parks and recreation. Such rules shall include maps depicting the public-owned areas, recreational facilities and existing public mountain trails, as well as the coastal and belt highways determining the applicability of this chapter. (b) The location and frequency of public access shall be established by the director or the planning commission, as respectively authorized under Chapter 23 and 25 of the Hawaii County Code, subject to the provisions of Article 3 of this chapter. The director shall establish the preferred public access alignment with consideration of such factors as topography, approximate location along the nearest public street and configuration of the subdivision lots or development site. (c) Where the lands comprising a proposed subdivision or development do not span the entire distance between a public street and a shoreline or mountain area to which the County has determined by the director that public access is necessary, the director shall require dedication of those segments of the needed public accessway laying within the proposed subdivision or development. (d) A multiple-family development approved prior to the effective date of this chapter shall be subject to the provisions of this chapter when one or more dwelling units are added or proposed to be added thereto. Article 3. Requirements. Section . Subdivision and development of land. The following standards for public access shall apply: (a) Shoreline access. (1) for lands in the RS, RD, RM, V, CO, CN, and CV districts, the desired spacing of public accesses shall be from eight hundred to one thousand feet apart. -4- (2) for lands within the V district improved or proposed to be improved as a destination resort, the desired spacing shall be from one thousand to two thousand feet apart, provided that the commission may extend the spacing to a maximum of two thousand five hundred feet where deemed warranted by site conditions, the particular development plan, or when other special accommodations are provided the public with regard to public access, convenience and comfort. (3) for lands within the A districts, the desired spacing of public access shall be one thousand to one thousand five hundred feet apart for lands zoned A-1a, and one thousand five hundred to two thousand five hundred feet apart for all other zoned districts. (4) for lands in the 0 and U districts, the desired spacing shall be two thousand to two thousand five hundred feet apart. (5) a spacing of public access(es) further apart than as set forth in this section shall be approved by resolution of the county council. (b) Mountain Access. (1) for all zone districts, the desired spacing shall be determined by the director so as to provide reasonable means to access public trail sections and public facilities, respectively, as the case may be. (c) The location of public access in the vicinity of the subdivision or development, whether existing committed under agreements between landowners and the county, or planned pursuant to an officially adopted plan of the county or state, shall be considered by the director or planning commission, as appropriate, when establishing the required location and alignment of public access(es). Provided, that notwithstanding any officially adopted plan to acquire public access, no subdivision within an area lacking public access at the appropriate location or desired spacing shall be excused from the requirements of providing public access. -5- Section . Multiple-family development. All applications for multiple-family development building permits shall be reviewed by the director, in consultation with the director of parks and recreation and the chief engineer to determine the necessity of the public access requirement. (a) When it is determined by the director that adequate public access already exists or has been secured from the applicant, the director shall notify the applicant, the director of parks and recreation, and the chief engineer so that the building permit may be approved. Section . Width of Public Access. The public access shall have a minimum width of ten (10) feet. Article 4. Dedication of Access. Section . Subdivision of land. (a) Upon review of a subdivision application, when it is determined that public access must be provided, the subdivider shall file the executed deeds of dedication for conveyance of the public access, free and clear of all encumbrances with the director. (b) Prior to final subdivision approval, the dedication documents shall be reviewed and approved as to its form and content by the appropriate agencies. The planning director may thereafter grant approval to the subdivision in accordance with the subdivision rules and regulations of the county. (c) The public access shall be clearly designated on the final map of the subdivision in accordance with the subdivision rules 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 if the -6- developer elects to provide the access in fee simple. Easements shall be designated on the plot plan and specified in the final plan approval. (b) The developer shall file the executed deeds or grants of easement for dedication of the public access, free and clear of all encumbrances with the director. (c) Prior to final plan approval, the dedication documents shall be reviewed and approved as to its form and content by the appropriate agencies. (d) The public access 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. Provided that when a right-of-way is to be dedicated for public access by easement pursuant to Article 2, Section (c) of this chapter, the county shall not be obligated to maintain the public access until the entire length of the desired access has been acquired by the County. Article 5. 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 (30) days of the action complained of, with the board of appeals." -7- 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. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: Y. . COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: 339.10 -8-