HomeMy WebLinkAboutOrdinance 06-104COUNTY OF HAWAII
ORDINANCE NO.
STATE OF HAWAII
BILL NO. 246
06 104
Draft 5
AN ORDINANCE AMENDING CHAPTER 23, HAWAII COUNTY CODE 1983
(2005 EDITION, AS AMENDED), RELATING TO INFORMATION REQUIRED FOR
SUBMITTAL OF A SUBDIVISION APPLICATION, REVISIONS TO CERTAIN TIME AND
STREET REQUIREMENTS, AND MINOR "HOUSEKEEPING" CHANGES TO THE
SUBDIVISION CODE.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Purpose and Findings. A recent Hawaii Supreme Court decision
invalidates practices that the County planning department has followed for at least thirty years,
and forces the County to adopt changes in the subdivision code, or risk invalidating hundreds of
past and pending subdivision applications. The court decision, Leslie vs. Board of Appeals, held
that it was mandatory that some information be contained in subdivision applications, and upheld
a decision of the Third Circuit Court invalidating a subdivision that the County had approved
without the required information.
The subdivision code states that the initial application for a subdivision, the "preliminary
plat', is supposed to contain certain information. For many years, the practice has been to defer
some of this information to a later stage in the subdivision application, or to accept the
preliminary plat for further processing while asking the subdivider to supplement the
information. The most significant difference between past practice and the strict letter of the
Code is section 23- 66(7), which requires that the application contain a description of
"[i]mprovements to be made by the developer and the approximate time such improvements are
to be completed. Sufficient detail regarding proposed improvements shall be submitted so that
they may be checked for compliance with the objectives of these regulations, State laws and
other applicable County ordinances." The actual practice has been that the preliminary plat is
circulated to the department of public works and department of water supply, who then give a
general description of the standard of road and water system that must be installed. This is made
a requirement of the tentative approval of the subdivision. The subdivider then prepares detailed
construction plans which are reviewed before final approval. This is a more practical process,
because the purpose of the preliminary plat is to determine the general layout of the subdivision,
and detailed construction drawings depend upon the approval of the general layout. It does result
in roads and water systems that meet the requirements.
In addition, the Code calls for some information on the preliminary plat that the planning
department has readily available, such as "zoning on and adjacent to the tract." In an effort to be
user - friendly, the planning department will often accept preliminary plats for processing that do
not have such information, rather than reject them for highly technical reasons. The Supreme
Court decision, however, leaves no room for such practical considerations.
The decision creates a dilemma in that there are several hundred subdivision applications
pending at the planning department that do not conform to the strict letter of the Code in all
respects. Most of the tentative and final subdivision approvals given by the department for
several decades are based upon applications that have some defects according to the court
decision. The department also continues to receive applications from surveyors and engineers
who are submitting applications that would pass muster under the standards followed for many
years but are technically deficient.
The department cannot ignore the court's direction about how subdivision applications
shall be processed, and the issuance of further approvals based on applications that do not fully
conform is questionable. To require all pending subdivision applications to be re- submitted with
all of the information listed in the subdivision code will cause a tremendous amount of
unnecessary paperwork and duplication of effort by the County and by members of the public,
not to mention the expense and delay that would accompany that process.
The proposed amendments are intended to legitimate past applications received by the
department when the department has reviewed the applications and sent them on to other public
agencies for review. They validate past tentative and final subdivision approvals which may be
based upon applications and preliminary and final plats that are not in full technical conformance
with the current Code. They eliminate some requirements and standards that have not generally
been followed.
SECTION 2. Chapter 23, article 4, division 1, section 23 -58, Hawaii County Code 1983
(2005 Edition, as amended) is amended to read as follows:
"Section 23 -58. Application for subdivision; plat and plans submitted by subdivider.
(a) The subdivider shall submit a written application for subdivision, a preliminary plat,
[went glafts] and other supplementary material required to describe the nature and
objectives of the proposed subdivision, and shall submit eight copies, or more if requested by the
director, of the preliminary plat and other supplementary material to the director.
(b) All pertinent information on the preliminary plat shall be drawn to scale.
(c) Where the area to be subdivided contains only part of the tract owned or controlled
by the subdivider, the director may require a sketch of a tentative layout for streets in the
unsubdivided portion.
(d) Application for Resort Subdivision. The subdivider may file an application for resort
subdivision. An application for resort subdivision may either be filed under this section or under
any other provision of this chapter. If an application for subdivision is filed under this section, it
shall be clearly designated as such. Such application shall, in addition to all other information to
be submitted with the subdivision application, preliminary plat and other supplementary
material, include the following:
(1) A statement acknowledging that all improvements will not be approved for
dedication unless and until such improvements satisfy all of the requirements
for dedicable improvements.
(2) A description of the provisions made for permanent maintenance of the private
roadways within the proposed resort subdivision.
(3) A description of how subsequent owners of the property will be notified of the
private nature of the improvements and maintenance responsibilities."
SECTION 3. Chapter 23, article 4, division 1, Hawaii County Code, is amended by
adding a new section 23 -58B to read as follows:
"Section 23 -58B. Publication of notices.
The director shall publish, on a semi - monthly basis, a list of all applications accepted
under this section in at least two newspapers of general circulation in the County. The list shall
include the name of the property owner, the tax map key number(s) of the property, the land
area, the number of lots proposed, and any other information deemed useful by the director."
SECTION 4. Chapter 23, article 4, division 1, section 23 -61, Hawaii County Code
1983, (2005 Edition, as amended) is amended to read as follows:
"Section 23 -61. Review of plat.
[(a)] The director shall furnish one copy of the preliminary plat and supplemental
materials [within five days] after they are submitted by the subdivider, to the manager, the
director of public works, and [sanitary engineer] the State department of health, and when a
subdivision is adjacent to a State highway or proposed State highway, to the district engineer[.. -]
for their review and comment.
[(b) The above listed offieers shall review the prelifninafy plat with the difeeter.
SECTION 5. Chapter 23, article 4, division 1, section 23 -62, Hawaii County Code 1983
(2005 Edition, as amended) is amended to read as follows:
"Section 23 -62. Tentative approval of preliminary plat.
(a) Within forty -five days after submission of the preliminary plat, the director shall
review the plan and may give tentative approval of the preliminary plat as submitted or as
modified or may disapprove the preliminary plat, stating the reasons for disapproval in writing[ -.]
or shall defer action pending further review. Approval of the preliminary plat shall indicate the
director's directive to prepare detailed drawings on the plat submitted, provided there is no
substantial change in the plan of subdivision as shown on the preliminary plat and there is full
compliance with all requirements of this chapter. The action of the director with reference to any
attached documents describing any conditions shall be noted on two copies of the preliminary
plat. One copy shall be returned to the subdivider and the other retained by the director. At such
time the director shall stamp the above two preliminary plats:
"Subdivider authorized to prepare detailed drawings on plat as submitted
including corrections noted."
"Recordation with the Bureau of Conveyances, State of Hawaii, not authorized until
approved for record at a later date."
(b) If no action (approval, disapproval, modification, or deferral) is taken by the director
within forty -five days after submission of the preliminary plat, or such longer period as may have
been agreed upon in writing, the preliminary plat shall be deemed approved[, ro °°aa the difeeto
w l� a , of the l plat the faee the fee The approval shall be
orxaxx- ccx�or�cZxxc -a]�[ pro' rnr' vr- cnc�r°cr�rx'"xx�xr"xa.nfp'xuc upon ca °c .... ..... .�.
on condition that the subdivider construct roads to the standards required by this chapter, a water
system to the standards of the department of water supply, drainage meeting with the approval of
the department of public works under section 23 -92 that sewage disposal shall conform with
section 23 -85 if applicable and the requirements of the department of health and that the lot
11
sizes and dimensions must be adjusted to conform to the zoning code on the final plat. The
subdivider shall comply with the provisions of this chapter in order to receive final subdivision
approval.
(c) The director shall disapprove a preliminary plat or a subdivision map where the
subdivider has failed to comply with the provisions of chapter 25, [Zoning e.] zoning code.
(d) The subdivider shall complete all requirements specified as conditions for approval
of the preliminary plat (tentative approval) within three years of said approval. An extension of
not more than two years may be granted by the director upon timely written request of the
subdivider. At the end of said three year period or its approved extension, unless all said
conditions are completed, the approval of the preliminary plat shall expire and shall be of no
further force or effect, or shall be subject to the technical review of the applicable agencies for
compliance with current Code and rule requirements. This subsection shall be applied to all
subdivision applications which have received tentative subdivision approval and which have not
completed subdivision improvements, provided the three year period, and extension, if
applicable, shall be taken from December 4, 1992 and not from the date of preliminary plat
(tentative) approval.
(e) The director's deferral of a subdivision for further review under subsection (a)
constitutes an acceptance of the contents of the preliminary plat as submitted, and the director's
issuance of tentative and final subdivision approval is valid despite the failure of the preliminary
plat to include all of the information specified in sections 23 -63 to 23 -66, provided that there has
been actual compliance with the substantive requirements of this chapter and chapter 25, zoning
code. The director may require the subdivider to submit supplementary information prior to
tentative or final approval and may condition tentative or final approval on the submission of
such information and on the performance of conditions attached to the tentative approval."
SECTION 6. Chapter 23, article 4, division 2, Hawaii County Code 1983 (2005 Edition,
as amended) is amended to read as follows:
"Division 2. Contents of Preliminary Plat.
Section 23 -63. General information on preliminary plat.
The preliminary plat shall include the following general information:
(1) [Proposed name] Name of the subdivision, if proposed, which shall not
duplicate nor resemble the name of another subdivision in the County. The
proposed name shall be subject to approval by the director;
(2) Date, northpoint and scale of drawing;
(3) Tax key number and other information to sufficiently describe and define the
location and boundaries of the proposed subdivision according to the County
real property records [of the State t,,,, office];
(4) Names and addresses of the owner, subdivider, and engineer or surveyor who
prepared the plat;
(5) The approximate lot layout and the approximate dimension and area of each lot;
(6) Acreage of proposed subdivision and number of lots; and
(7) A title report issued by a licensed title company in the name of the owner of the
land, showing all parties whose consents are necessary and their interests in the
premises when required by the director.
Section 23 -64. Existing conditions shown on preliminary plat.
The preliminary plat shall include the following information on existing conditions[:],
unless waived or deferred by the director:
(1) Location, width and names of all existing or platted streets within or adjacent to
the tract, together with easements, other rights -of -way, and other important
features, such as corners, property boundary lines, and control of access lines
adjacent to State highways;
(2) When required by the director, contours at vertical intervals of five feet where
the slope is greater than ten percent. Elevations shall be marked on the contours
based on an established bench mark or other datum approved by the director of
public works. In addition, the contours as may be required by the manager, State
department of health, and director of public works shall be shown;
(3) The location and direction of all water courses and approximate location of
areas subject to inundation or storm water overflow;
(4) Existing uses of property, including but not limited to, location of all existing
structures, wells, cisterns, private sewage disposal systems, and utilities; and
(5) Zoning on and adjacent to the tract provided that if the information required by
subsection (3) is not shown, it shall be made a condition of tentative approval,
and tentative approval shall also require drainage improvements pursuant to
section 23 -92 or their equivalent.
Section 23 -65. Proposed plan of land partitioning on preliminary plat.
The preliminary plat plan shall include the following land partitioning information:
(1) Streets showing location, widths, [pfopesed approximate radii or
curves. The relationship of all streets to projected streets shown on the County
general plan, [er if there is no complete room), general plan, . eetea si feets
suggested by the director to assu fe adequate t f fQe eiroulat:en in the are
which may be shown on a vicinity map; J
(2) Existing and proposed easements, showing width and purpose;
(3) Lots, showing approximate dimensions, [minirtttffn proposed lot size and
proposed lot [and We& numbers; and
(4) Sites, if any, allocated for purposes other than single - family dwellings, or farm
dwellings.
Section 23 -66. Explanatory information on preliminary plat.
Unless waived or deferred by the director, [The]the preliminary plat shall include the
explanatory information[:] listed in this section. If [it] such information cannot be shown
practicably on the preliminary plat, it shall be submitted in separate statements accompanying the
preliminary plat:
(1) A vicinity map at a small scale, showing existing subdivided land ownerships
adjacent to the proposed subdivision, and showing how proposed streets may be
extended to connect with existing streets;
(2) Proposed deed restrictions in outline form if any;
(4)](3) Statement regarding water system to be installed, including source, quality
and quantity of water;
7
[(5)](4) Provisions for sewage disposal, conceptual drainage and flood control which
are proposed. The drainage map shall include the approximate location of areas
subject to inundation or storm water overflow and all areas covered by
waterways, including ditches, gullies, streams and drainage courses within or
abutting the subdivision; and
[(6)](5) Parcels of land proposed to be dedicated to public use, and the conditions of
such dedication, provided that if the information required in subsections (3) and
(4) is not shown, water supply, sewage disposal, and drainage shall be
determined by conditions of tentative approval. [--MA
(7) Tm....,..,am e..ta to he male by the developer and the approximate time a .eh
af4s a e to Len pleteA Suf eien4 detail f afding..«..posed
ents shall he submitted so that they may he eheeked for eemplianee
..ith objeetiyes of these .- gulations State laws and other applies Lle
County erdin a ]"
SECTION 7. Chapter 23, article 5, Hawaii County Code 1983 (2005 Edition, as
amended) is amended to read as follows:
"Article 5. Final Plat.
Section 23 -67. Time limit for completing final plat.
The final plat shall be prepared and completed within one year following the tentative
approval given on the preliminary plat by the director. If the final plat has not been filed within
this period, the tentative approval of the preliminary plat shall be deemed void. A time
extension, for good cause may be granted as provided under section 23 -72.
Section 23 -68. Drafting of final plat.
(a) In preparing the final plat, all engineering and surveying work shall be made by or
under the supervision of an engineer and surveyor, respectively.
(b) The scale and sheet size utilized on this drawing shall be the same as required under
section 23 -59, and dedication or other written material shall be submitted on supplemental
sheets.
(c) If the final plat, following approval by the director, is to be filed with the land court
for recordation, it shall comply with all requirements specified under the rules of the land court
for land court subdivisions.
Section 23 -69. Information required on final plat.
In addition to any other information required to be shown thereon under provisions of any
State statute or County ordinance the following information shall be shown on the final plat and
supplemental sheets:
(1) Date, northpoint and scale of drawing;
(2) Legal description of the tract boundaries;
(3) Names and addresses of the owner, subdivider, and engineer, or surveyor who
prepared the plat;
(34](4) Reference points of existing surveys identified, related to the plat by
distances and azimuths, and reference to a field book or map as follows:
(A) All stakes, monuments or other evidence found on the ground and used to
determine the boundaries of the subdivision;
(B) Adjoining corners of all adjoining subdivisions;
(C) Boundary lines and grants within and adjacent to the plat;
•
(B)](D) All other monuments found or established in making the survey of the
subdivision or required to be installed by provisions of this chapter;
[(3)](5) Tract boundary lines, right -of -way lines [and Penterl�aes] of streets: lot [and
Meek] lines with dimensions, azimuths [or defleetion angles] and radii, [area]
points of curvature and tangent [bearings] azimuths shall be shown;
[01(,66) The width of the portion of streets being dedicated, the width of any existing
right -of -way and the widths each side of the centerline. For streets and
curvature, all curve data shall be based on the street centerline and, in addition
to centerline dimensions, shall indicate thereon the central angle;
[(8)](7) All easements which shall be denoted by fine broken lines, clearly identified
and if already on record, its recorded reference; if any easement is not definitely
located on record, a statement of such easement. The widths of the easement
ass. .
information sufficient to definitely locate the easement with respect to the
subdivision shall be shown. If the easement is being dedicated by the map, it
shall be properly referenced in the owner's certificates of dedication;
[(i](8) Lot [and hlRpk] identification which shall be according to good engineering
practices;
[(4-0)](9) Land parcels to be dedicated for any purpose, public or private, to be
distinguished from lots intended for sale and their use indicated;
["](10) Minimum building setback lines, where not otherwise fixed by a building
code or County ordinance;
["](11) The following certificates which may be combined where appropriate:
(A) A certificate signed and acknowledged by all parties having any record
title interest in the land subdivided consenting to the preparation and
recording of the plat when required by the director.
(B) A certificate signed and acknowledged as above, when dedicating all
parcels of land shown on the final map and intended for any public use
except those parcels which are intended for the exclusive use of the lot
owners in the subdivision, their licensees, visitors, tenants and
servants.
(C) A certificate with the seal of and signed by the engineer or surveyor
responsible for the survey and final draft.
(D) All other certificates now or hereafter required by law;
[034](12) All control of access lines adjacent to State highways which shall be
denoted by the State highways division standard symbol of semicircles on
the control of access line.
Section 23 -70. Supplemental information with final plat.
The following data shall be submitted with the final plat:
(1) A complete title report issued by a licensed title company in the name of the owner of
the land, showing all parties whose consents are necessary and their interests in the
premises when required by the director;
(2) Five copies of any deed restrictions applicable to the subdivision;
(3) Written proof that all taxes and assessments on the tract are paid to date; and
10
(4) For nondedicable streets in a resort subdivision, the subdivider shall submit a
recordable document with the director which shall describe all nondedicable streets,
the ownership thereof and access rights thereon for all lots in the subdivision and the
maintenance rights and responsibilities [thefefa ] thereof. The document shall
contain statements as follows: that nondedicable streets within the resort subdivision
have not been built to the standards required for streets which are dedicable to the
County of Hawaii; that such streets will accordingly not be accepted for dedication
unless they are brought into compliance with the requirements for dedication as of the
time they are offered for dedication; and that the County is not responsible for
maintenance of such nondedicable streets. The document shall be in a form
acceptable to the director of public works and corporation counsel. For subdivided
land within the jurisdiction of the land court, such document shall be recorded with
the land court. For all other subdivided land, the document shall be recorded with the
State bureau of conveyances.
Section 23 -71. Subdivision not involving streets, drains, or utilities.
The preliminary plat may be approved by the director for recordation if:
(1) The preliminary plat meets all of the requirements of a final plat; and
(2) The subdivision involves no streets, drains, or utilities.
Section 23 -72. Filing of final plat.
(a) Within one year after tentative approval of the preliminary plat by the director, the
subdivider shall have the subdivision surveyed and shall prepare a final plat which conforms
with the preliminary plat as tentatively approved. The subdivider shall submit to the director
eight copies of the final plat, prepared in conformity with these regulations, together with four
additional copies of a general layout map, which was originally attached to the construction
drawings and specifications (where required) showing the location of lots, streets, water mains
and storm drainage systems.
(b) [if the ....1.diyider- applies in .fiting at least C «t. five ,7.,..s before the expiration a
the ene yeaf perioa ] For good cause, the director may grant to the subdivider an extension of
time within which [he] the subdivider may file the final plat.
(c) The time of filing the final plat means the time at which the final plat, together with
all required data, is received by the director. The director shall indicate the date of filing on all
copies of the final plat and accompanying data.
Section 23 -73. Technical review.
Within [€rye] thigy days after receipt of the final plat and other data, the director shall
submit copies of the final plat and other data to the director of public works, manager, [sanitary
engineer] State department of health and district engineer when the subdivision involves state
highways for review of the final plat with the director. The final plat shall be examined as to
whether it is substantially similar to the approved preliminary plat and whether it is technically
correct. The information on the final plat shall also be verified by entering upon the respective
subdivision where deemed necessary by the director. If there is a variance, the subdivider shall
be advised by the director of the changes or additions that must be made and given an
opportunity to make corrections. The director's submission of copies of the final plat to other
reviewers constitutes acceptance of the contents of the final plat, provided that the director may
request supplementary information, and may require the subdivider to correct errors prior to the
issuance of final subdivision approval, and after final approval pursuant to section 23- 74(c). The
director's issuance of final subdivision approval shall be valid despite the absence of technical
information as required by section 23 -69(1) and (3), or the absence of similar technical but non-
substantive information required by sections 23 -69 and 70.
Section 23 -74. Final approval of plat.
(a) When all the construction work is complete and is accepted in writing by the director
of public works, the subdivider may apply for approval of the subdivision map for recordation. If
the director disapproves the plat, the grounds for disapproval shall be filed in the records of the
planning department. No plat shall be disapproved by the director without giving the subdivider
[a hearing.] an opportunity to correct errors in the plat.
(b) Upon final approval, the director shall stamp three copies of the final plat:
"SUBDIVISION NUMBER APPROVED FOR RECORDATION
WITH THE BUREAU OF CONVEYANCES, STATE OF HAWAI`I."
The approval shall bear the signature of the director. The planning department shall then retain
one copy of the final plat, and forward one copy of the final plat to the [Mile] Count
property tax office, and one copy of the final plat to the subdivider. The approval of the final
12
plat by the director shall not be deemed to constitute or effect an acceptance by the County of the
dedication of any street or other easement shown on the plat.
(c) The approval for recordation of the final plat by the director shall not relieve the
subdivider of the responsibility for any error in the dimensions or other discrepancies. Such
errors or discrepancies shall be revised or corrected, upon request, to the satisfaction of the
director.
(d) Nondedicable Streets. In addition to all other requirements for approval of the final
plat herein, if the subdivision includes any nondedicable streets, the subdivider shall, prior to
final approval, deposit a duly recorded copy of the document described in section 23 -70(4) of
this chapter with the director.
Section 23 -75. Change after approval.
No change in a subdivision, or in the plan of a subdivision, already approved, may be
made without the approval of the director.
Section 23 -76. No conveyance of land prior to approval for recordation.
Land shall not be offered for sale, lease or rent in any subdivision, nor shall options or
agreements for the purchase, sale, leasing or rental of the land be made until approval for
recordation of the final plat is granted by the director.
Section 23 -77. Recordation of final plat.
After the director grants approval for recordation of the final plat, the subdivider may file
and record the plat.
Section 23 -78. Release of surety after final approval.
Upon completion of the improvements and utilities in a subdivision as required by this
chapter and certification thereof as provided by article 7 of this chapter, and after the subdivider
files one set of construction plans as actually modified to meet construction requirements with
the department of public works, State department of health and department of water supply (if
applicable), the department of public works, State department of health and the department of
water supply (if applicable), shall approve the performance and thereupon discharge the
subdivider and surety (in whole or in part according to the terms of the subdivider's agreement,
if any) from the obligation of any bonds and release to the subdivider any security posted by the
subdivider, or authorize and direct such discharge and release by the appropriate agency."
13
SECTION 8. Material to be repealed is bracketed and stricken. New material is
underscored. In printing this ordinance, the brackets, bracketed material and underscoring need
not be included.
SECTION 9. In the event that any portion of this ordinance is declared invalid, such
invalidity shall not affect other parts of this ordinance.
SECTION 10. This ordinance shall take effect upon its approval, and shall apply to all
subdivision applications, tentative subdivision approvals, and final subdivision approvals before
and after its effective date.
Hilo , Hawai`i
Date of Introduction: May 2,
Date of I" Reading: May 2,
Date of 2nd Reading: June 5,
Effective Date: July 3,
4t UMNCEt Corm 62
WTUnnl TCPT) RV
2006
2006
2006
14
Introduced By:
Date Introduced:
First Reading:
Published:
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo, Hawaii
Pete Hoffmann
May 2, 2006
May 2, 2006
May 12, 2006
REMARKS: May 17, 2006 - Postponed
(Bill 246, Draft 3 was circulated and postponed)
Second Reading: June 5, 2006
To Mayor: June 30, 2006
Returned:
July
3,
2006
Effective:
July
3,
2006
Published:
Julv
11,
2006
REMARKS:
(Draft 2)
kdbLdULL iJOA 11 J
AYES
NOES
ABS
EX
Arakaki
X i.
Higa
X
Hoffmann
X
Holschuh
X
Ikeda
X
Isbell
X
X
Jacobson
X
Pilago
X
Safarik
X
7
2
0
0
(Draft 5)
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
X
Higa
X
Hoffinann
X
Holschuh
X
Ikeda
X
Isbell
X
Jacobson
X
Pilago
X
Safarik
X
6
3
0
0
I DO HEREB Y CERTIFY that the foregoing BILL was adopted by the County Council published as
indicated above.
APPROVED AS TO
FgRfg�AND LEGAUTY: �J
� yJyv1'��- COUNCIL CHAIRMAN
DEPUTY CORPORATION COUNSEL /
COUNTY OF HAWAII
n�ro
7-3-o4, COUNTY CLERK
t
3 day
Jwkt 20 or;
Ki'Y OF HAWAII
Bill No.: 246 (Draft 5)
Reference: C- 762.77/PC -62
Ord No.: 6 104