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HomeMy WebLinkAboutBIL 535 Draft 04 1994-1996 COUNTY OF HAWAII STATE OF HAWAII BILL NO. 535 (Draft 4 ) 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. (7) 'Multiple-family development' means buildings or structures containing more than [two] six dwelling units on one lot. -2- (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) 'Public mountain area' means lands publicly owned or privately owned subject to written grants of easements allowing public access and use.1 (10) 'Public Shoreline area' means lands fronting a shoreline which are publicly owned or privately owned subject to written grants of easements allowing public access and use. (11) 'Public street' and 'public highway' means a publicly-owned street or highway or a privately-owned street or highway over which rights of public use or access have been granted and duly accepted by the state or county.3 (12) 'Recreational activity' includes, but is not limited to, hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, water skiing, and viewing or enjoying historical, archaeological, scenic or scientific sites, but excludes commercial activity. [(9)](13) '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)](14) '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] six 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 generally between(i) shoreline [and mountains] or mountain areas and [the nearest] (ii) public [coastal or belt highway] streets and highways, as -3- the case may be. The director shall determine the applicability of this chapter to particular lots and building sites in conjunction with determining the location and frequency of public accesses as set forth in sub-section(c) of this section. 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] Public shoreline areas and the land below the shoreline; and (2) [Publicly owned areas in the mountains] Public mountain areas where there are existing facilities for hiking, hunting, fruit picking, ti-leaf sliding, other recreational purposes and where there are existing public mountain trails. (b) The location of[publicly owned] such public shoreline and mountain areas and shoreline, coastal and mountain trails shall be 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 and shall be established by rule pursuant to chapter 91, Hawaii Revised Statutes. The director shall solicit such information from such agencies upon adoption of this ordinance and from time to time thereafter. 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] and the approximate location of the public trails, and may provide for supplementation of listed areas and trails upon publication of notice in lieu of rule amendment. Provided,that the rules shall be amended not less than every five years to incorporate any supplemental changes made since prior rule adoption and to allow public comments on practices and procedures established under such rules.' [(b)](c) 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, -4- approximate location along the nearest public street and configuration of the subdivision lots or development site. [(c)](d) 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)](e) [A] Except as provided in sub-section(f) hereinbelow, 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. CO, The provisions of this chapter shall not apply to subdivisions or multiple-family developments sanctioned, approved or permitted by a development agreement pursuant to the Development Agreement Code, a change of zone ordinance, or a valid Special Management Area (SMA) permit issued prior to the effective date of this ordinance when: (1) such agreement, ordinance or SMA permit includes requirements for the dedication of public access to the shoreline,provision of related improvements or a cash payment in lieu thereof;or (2) the director determines that the provisions of the agreement, ordinance or SMA permit, together with one or more related agreements, zoning ordinances or SMA permits covering adjacent lands, was intended by the council or the commission, respectively, to comprise an integrated shoreline access system for the lands subject to such related agreements, ordinances or SMA permits; and (3) the permittee is in compliance with the terms of such SMA permit. Provided, this exception shall not apply to any application to amend a SMA permit to allow an increased number of dwelling units or more than a nominal increase in commercial or resort activities, as the director shall determine. When applying the standards of this chapter to -5- . applications for amendment or replacement of a valid SMA permit which are not excepted herefrom, the director and the commission shall take into account any prior, appurtenant dedications or contributions of land, improvements or cash for public access or shoreline area improvements. 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. (2) [for lands within the V district improved or proposed to be improved as a destination resort] for lands within a Destination Resort Community or a Major, Intermediate or Minor Resort Area as defined in the General Plan and determined by the director, regardless of the zone district designation(s), 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-1 a, 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) The desired spacing shall not be applicable along sections of shoreline where the director has determined that(i)the shoreline is inaccessible by land approach due to extremely hazardous or impassable conditions, such as steep cliffs or other dangerously unstable -6- • terrain where no practical remedy is feasible, and (ii) no public coastal trail exists inland of such intervening hazardous or impassable lands and which leads to an accessible shoreline or public shoreline area within five thousand feet of the subdivision or development. Prior to making a determination of inaccessibility effective,the director shall publish a notice entitled, "Determination of Inaccessible Shoreline Area(s)," in two county newspapers of general circulation, and copies of such notice shall be concurrently provided to the clerk of the county council and the state Office of Environmental Quality Control. The determination shall be effective not less than thirty (30) days after the initial date of newspaper publication, although the director may make a provisional, non-binding determination for the purposes of granting preliminary subdivision or development plan approvals. [(5)1(6) 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. (2) Provided, no access shall be established to state-owned land which is not designated by rule pursuant to Article 2, Section (b) of this chapter, or with regard to state- owned lands designated thereunder, no access shall be established without the approval of the state department of land and natural resources. For lands designated pursuant to Article 2, Section (b) of this chapter, the director may make a provisional determination of the necessity of public access and the alignment therefor, but such provisional determination shall expire and be void unless the director has made final determination, with the final approval of the state department of land and natural resources within one hundred eighty (180) days thereafter. (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 -7- 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. 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. -8- 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 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. Use of Public Accesses. Section . Regulation of use. The director of the department of parks and recreation shall promulgate rules regulating the use of public accesses. Such rules may restrict the hours or days of use, as the director may determine, and may require the issuance of a permit from the department or a contracted permitting agent for public use in rural areas where the director has determined that site conditions or lack of supervision necessitates special education, direction or -9- . control of public users. Provided, that no permitting agent shall be contracted for a minimum term exceeding one year.-6- Section ear.-Section . Abuse of a public access. A person commits the offense of abuse of a public access if the person: (a) engages in commercial activity within or upon a public access, or (b) uses a public access for transit to and from a recreational activity. For purpose of this section, a "person"means an individual, corporation, trust, estate, partnership, association or any other legal entity, and "commercial activity" means the solicitation of a person for the sale or rental of goods or services or any transaction whereby a person receives any benefit or a promise to receive a benefit by providing goods or services to another person. Section . Penalties. Any person who violates this chapter shall, upon conviction, be subject to a fine not exceeding $500. The continuance of any such violation shall be deemed a new violation for each day of such violation. Article I5]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 (30) 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. -10- SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: REFERENCE. COMM, 3 3 9. 19 -11- 1. As public use easements are beginning to be created in mountain areas as conditions of development approvals, a similar "public use" provision should be include for mountain areas. 2. It would be appropriate to provide access to publicly owned or used lands fronting the actual "shoreline," as defined her and in state law, and in the mountains. As a shoreline example, state or county-owned coastal parks sometime include sustantial lengths of shoreline frontage which, when the definition of"shoreline" is applied, are inascessible. Another example is the and oceanfront easement areas to be provide by Chalon International at their Mahukona project, Oceanside 1250 at Hokukano Villages; this is private land along which the extensive lengths of shoreline could be adjudged "inacessible" yet the coastal land just inland of impassable cliff- like separators is legally (to become) open as public park or conservation land. They use of the term, "public shoreline area" is useful in the proposed section regarding the director's determination of accessibility in a particular coastal area. 3. To clarify intent and eliminate unnecessary applicability of this chapter, a definition of "public" is proposed to be applied to privately-owned streets and highways (in the which "Application" section of Article 2, Administration); this would make it clear that lands do no (generally) lay between such "public-use" roads and targeted shoreline and mountain areas are not covered by this chapter. For example, most of our "destination resort areas" are serviced by privately owned arterials and streets, and most of those roadways are open to the public. Accordingly, with this clarification and other wording proposed to be added to the "Application" section of Article 2,the private roads open to public use in those resort(and other) areas would be construed as public for purposes fo this chapter, and the lands which are not between such publicly used streets and targeted shoreline (or mountain) areas would not be subject to this chapter. 4. Periodic supplementation of the record of public accesses will be required as a result of coastal developments providing public or publicly usable lands as conditions of development approvals. 5. The name of this agency has changed and needs to be corrected here. The purpose of providing public notice is twofold: (1)to generally inform the public, and (2) more importantly, to be sure there are no actual or feasible public accessways to the shoreline withinof the 5000-foot range running from either side of the subdivision or development; members public may be aware of conditions unknown to the director or applicant. 6. This section foresees that in some rural areas, it may be most practical for the director to rict simply contract with an adjacent property owner for the permitting function, according to strict, written permitting standards. -12-