HAR §15-15-85.1. Proposed decision

Upon receipt of the hearings officer's recommended decision, the commission may adopt it as its proposed decision, or may remand it to the hearings officer for any clarification or correction, or may modify or reject it and issue its own proposed decision. A copy of any proposed decision of the commission shall be served upon each party. [Elf and comp NOV 0 ÿ013 ] (iuth: HRS ÿ§205-i, 205-7) §15-15-86 Exceptions; extension of time; finality of proposed decision. (a) Within fourteen calendar days after the date of mailing or personal service of a copy of the commission's proposed decision, a party may file with the commission exceptions to any part thereof and request review by the commission. Such party shall serve copies of exceptions and briefs upon each party to the proceeding. (b) The exceptions shall: (i) Set forth specifically the questions of procedure, fact, law, or policy, to which exceptions are taken; (2) Identify that part of the proposed decision to which objections are made; (3) Designate by page citation the portions of the record relied upon and specify authorities relied upon to sustain each point; and (4) State al! the grounds for exceptions to a ruling, finding, or conclusion. Grounds not cited or specifically urged are waived. (c) Any party may apply for an extension of time 66 within which to file exceptions to the proposed decision by filing a written application setting forth the reason for the request. The application shal! be filed before the expiration of the period prescribed for the filing of exceptions. Upon good cause shown, the executive officer may extend the time for filing exceptions for an additional period not to exceed ten (i0) calendar days. (d) If no exceptions and request for review are filed within the time specified, the proposed decision shall become final, unless the commission, on its own motion, orders further proceedings to be held. [Eff 10/27/86; am and comp 8/16/97; comp 5/8/00; am and comp NOV 0 22013 ] (Auth: HRS §5205-1, 205-7) (Imp: HRS 5591-2, 91-11, 205-4) 515-15-87 Support of hearings officer's recommended decision. (a) Within seven days after service of the exceptions taken to the proposed decision, any party may file with the commission a brief opposing the exceptions. Such party shal! serve copies of the brief in support upon each party to the proceeding (b) The brief opposing exceptions shall: (i) Answer specifically the points of procedure, fact, law, or policy to which exceptions were taken; (2) State the facts and reasons why the proposed decision must be affirmed; and (3) Designate by page citation the portions of the record relied upon. JEff 10/27/86; am and comp 8/16/97; comp 5/8/00; am and comp 0V 0 22013 ] (Auth: HRS 55205-i, 205- 7) (Imp: HRS 5591-2, 91-11, 205-4) 515-15-88 Argument on exceptions. Upon the filing of exceptions by a party adversely affected by the proposed decision, the commission shal! grant such party an opportunity to present arguments to the commission. The executive officer, with direction from the chairperson, shall set the time and place of hearing of argument on exceptions and give written notice to the parties. [Elf 10/27/86; am and comp 8/16/97; comp 5/8/00; am and comp N0V 0 ÿ013 ] (iuth: HRS 55205-1, 205-7) (Imp: HRS ÿ591-i0, 91-11, 205-4) 67 3O8 1 imm 15-15-89 Final decision. (a) When exceptions have been filed to the commission's proposed decision, the commission, within forty-five days after the hearing on exceptions, shall render its final decision° In rendering its final decision, the commission shall consider the whole record or such portions thereof as may be cited by the parties and shall resolve al! questions of fact by what it deems to be the greater weight of the evidence thereon. The final decision shall contain findings of fact and conclusions of law upon which the decision is based. (b) After the commission has heard and examined all of the evidence, the commission, shall issue its decision within forty-five days after receiving the evidence, or filing of any memoranda or proposed findings of fact and conclusions of law upon which the decision is based. [Elf 10/27/86; am ÿd comm 8/16/97; comp 5/8/00; am and commNUV 0 2ÿIÿ ] (Auth: HRS §ÿ205-i, 205-7) (Imp: HRS ÿ91-2, 92-16) SUBCHAPTER ii CONDITIONS: FILING, ENFORCEMENT, MODIFICATION, DELETION 15-15-90 Imposition of conditions; generally. (a) In approving a petition for boundary amendment, the commission may impose conditions necessary to uphold the general intent and spirit of chapters 205, 205A, and 226, HRS, and to assure substantia! compliance with representations made by the petitioner in seeking the boundary amendment. (b) The commission may request the appropriate state or county agency to report periodically to the commission on the petitioner's compliance with the applicable conditions imposed by the commission. (c) The commission may require the petitioner to submit periodic reports indicating what progress has been made in complying with any conditions that may have been imposed by the commission. (d) The commission may require the petitioner to notify the commission of any intent to sell, lease, assign, place in trust, or otherwise voluntarily alter the ownership interests in the property covered by the approved petition. (e) If a boundary amendment petition filed pursuant to section 205-4, HRS, is approved pursuant to 68 section 91-13.5, HRS, or a petition filed pursuant to section 201H-38, HRS, is deemed approved on the forty- sixth day, the following mandatory conditions shal! apply: (i) Petitioner shall develop the land to which the boundary amendment applies in substantial compliance with the representations made to the commission. Failure to so develop the subject property may result in reversion of the subject property to its former land use district classification, or change it to a more appropriate land use district classification; (2 Petitioner shall provide notice to the commission of any intent to sell, lease, assign, place in trust, or otherwise voluntarily alter the ownership interests in the subject property prior to or during development of the subject property, excluding, however, individual !ot sales or lease in a residentia! or industria! development; (3 Petitioner shal! timely provide without any prior notice, annual reports to the commission, state office of planning, and the respective county planning department in connection with the status of the project proposed for the land to which the boundary amendment applies, and petitioner's progress in complying with the conditions imposed. The annual report shall be submitted in a form prescribed by the executive officer of the commission. The annual report shall consist of one origina!, one paper copy, and one electronic copy, and shall be due prior to or on the anniversary date of the approval of the petition; (4 The commission may fully or partially release the conditions provided herein as to all or any portion of the land to which the boundary amendment applies upon timely motion and upon the provision of adequate assurance by the petitioner of satisfaction of the conditions imposed; (5 Within seven days of the approva! date of the petition, the petitioner shall: (A) Record with the bureau of conveyances a statement that the land to which the boundary amendment applies is subject to conditions imposed herein by the 69 3081 i mm. commission; and (B) File a certified copy of such recorded statement with the commission; 6 Petitioner shall record the conditions imposed herein by the commission with the bureau of conveyances pursuant to section 15- 15-92; 7 Petitioner shall provide affordable housing opportunities for low, low-moderate, and moderate income residents of the State of Hawai'i to the satisfaction of the respective county in which the land to which the boundary amendment applies is located. The respective county shall consult with the Hawai'i housing finance and development corporation prior to its approval of the petitioner's affordable housing plan. The !ocation and distribution of the affordable housing or other provisions for affordable housing shall be under such terms as may be mutually agreeable between the petitioner and the respective county; 8 Provided that the proposed land uses include residential units, petitioner shall contribute to the development, funding, and construction of public schoo! facilities as determined by and to the satisfaction of the state department of education; 9) Petitioner shall participate in the funding and construction of adequate wastewater transmission and disposal facilities, on a fair-share basis, as determined by the respective county in which the land to which the boundary amendment applies is located, and the state department of health; i0) Petitioner shall prepare a traffic impact analysis report. The traffic impact analysis report shall identify the traffic impacts attributable to the proposed development and recommended proposed mitigation measures. The report should also reflect the latest planning efforts for transportation. The report shall be reviewed and approved by the state department of transportation, and the respective county transportation agency in which the land to which the boundary amendment applies is located. Based upon the report, the petitioner may be required to participate on a fair-share basis, in the funding and construction of loca! and 7O 3081 ii 12 13 14 15 regional transportation improvements and programs, including dedication of rights-of- way as determined by the state department of transportation and the respective county transportation agency in which the land to which the boundary amendment applies is located; Petitioner shal!, on a fair-share basis, fund and construct adequate civi! defense measures as determined by the state civil defense agency; Petitioner shall have an archaeological inventory survey conducted by a professiona! archaeologist. The findings shall be submitted to the state department of land and natural resources, state historic preservation division in report format for adequacy review and a copy shall be provided to the commission. The state historic preservation division shall verify in writing with a copy provided to the commission that the survey report is acceptable, that significance evaluations are acceptable, and that mitigation commitments are acceptable; If significant historic sites are present, the petitioner shall submit a detailed historic preservation mitigation plan for review by the state historic preservation division and a copy shall be provided to the commission. This plan may include preservation and archaeological data recovery subplans (detailed scopes of work). The state historic preservation division shall verify in writing with a copy provided to the commission that the plan has been successfully executed; Petitioner shal! stop work in the immediate vicinity should any previously unidentified burials, archaeological or historic sites such as artifacts, marine shell concentrations, charcoa! deposits, or stone platforms, pavings or walls be found. Subsequent work shall proceed upon an archaeological clearance from the state historic preservation division when it determines that mitigative measures have been implemented to its satisfaction; Petitioner shal! participate in an air quality monitoring program as specifiedÿ by the state department of health; 71 (16) Petitioner shall be responsible for implementing sound attenuation measures to bring noise levels from vehicular traffic in the affected properties down to a level of fifty-five decibels; (17) If the petition for a boundary amendment involves prime agricultural lands, petitioner shall be responsible for contributing to the protection of an equivalent amount of prime agricultural lands and related infrastructure via long-term agricultural conservation easements or other agriculturally-related assets as determined by and to the satisfaction of the state department of agriculture; (18) Petitioner shall notify all prospective buyers of property of the potential odor, noise, and dust pollution if there are any agricultural district lands surrounding the land to which the boundary amendment applies; (19) To the extent that the petition area is contiguous or adjacent to lands in the State land use agricultural district, any action that would interfere with or restrain farming operations on those lands is prohibited, provided the farming operations are conducted in a manner consistent with generally accepted agricultural and management practices. Petitioner shall notify all prospective developers or purchasers of all or any portion of the petition area or any interest in the petition area, and shall require its purchasers to provide subsequent notification to lessees or tenants that farming operations and practices on adjacent or contiguous land in the State land use agricultural district are protected under chapter 165, HRS, the Hawai'i Right to Farm Act. This notice shall be included in any disclosure required for the sale or transfer of al! or any portion of the petition area or any interest in the petition area; (20) Petitioner shall fund the design and construction of drainage improvements required as a result of the development of the land to which the boundary amendment applies to the satisfaction of the appropriate state and county agencies; (21) Petitioner shall cooperate with the state department of health and the respective 72 county to conform to the program goals and objectives of chapter 342G, HRS, and the respective county's approved integrated solid waste management plans in accordance with a schedule and timeframe satisfactory to the state department of health; (22) To the extent required by the state department of health, petitioner shall ensure that nearshore, offshore, and deep ocean waters remain in pristine condition; (23) Petitioner shall participate in the funding and construction of adequate water source, storage, and transmission facilities and improvements to accommodate the proposed uses. Water transmission facilities shall be coordinated and approved by appropriate state and county agencies. The county's water use and development plan shall be amended to reflect changes in water demand forecasts and in water development plans to supply the proposed uses; and (24) Petitioner shall preserve and protect any established gathering and access rights of native Hawaiians who have customarily and traditionally exercised subsistence, cultural, and religious practices on the land to which to the boundary amendment applies. (f) If a special permit filed pursuant to section 205-6, HRS, is approved pursuant to section91-13.5, HRS, the following mandatoryconditions shall apply: i) All conditions listed under subsection (e); 2) The proposed use shall be established within one year from the date that the special permit was approved pursuant to section 91- 13.5, HRS; and 3) The special permit shal! be valid for a period of five years from the approval date pursuant to section 91-13.5, HRS. [Elf 10/27/86; am and comp 8/16/97; am and comp 5/8/00; am and comp ÿ0<ÿ2ÿtÿ ] (Auth: HRS ÿ§91-13.5, 205-1, (Imp: HRS §ÿ91-13.5, 205-4)