§205-6 Special permit. (a) Subject to
this section, the county planning commission may permit certain unusual and
reasonable uses within agricultural and rural districts other than those for
which the district is classified. Any person who desires to use the person's
land within an agricultural or rural district other than for an agricultural or
rural use, as the case may be, may petition the planning commission of the
county within which the person's land is located for permission to use the
person's land in the manner desired. Each county may establish the appropriate
fee for processing the special permit petition. Copies of the special permit
petition shall be forwarded to the land use commission, the office of planning
and sustainable development, and the department of agriculture and biosecurity
for their review and comment.
(b) The planning commission, upon consultation
with the central coordinating agency, except in counties where the planning
commission is advisory only in which case the central coordinating agency,
shall establish by rule or regulation, the time within which the hearing and
action on petition for special permit shall occur. The county planning
commission shall notify the land use commission and such persons and agencies
that may have an interest in the subject matter of the time and place of the
hearing.
(c) The county planning commission may, under
such protective restrictions as may be deemed necessary, permit the desired
use, but only when the use would promote the effectiveness and objectives of
this chapter; provided that a use proposed for designated important
agricultural lands shall not conflict with any part of this chapter. A
decision in favor of the applicant shall require a majority vote of the total
membership of the county planning commission.
(d) Special permits for land the area of which
is greater than fifteen acres or for lands designated as important agricultural
lands shall be subject to approval by the land use commission. The land use
commission may impose additional restrictions as may be necessary or
appropriate in granting the approval, including the adherence to
representations made by the applicant.
(e) A copy of the decision, together with the
complete record of the proceeding before the county planning commission on all
special permit requests involving a land area greater than fifteen acres or for
lands designated as important agricultural lands, shall be transmitted to the
land use commission within sixty days after the decision is rendered.
Within forty-five days after receipt of the
complete record from the county planning commission, the land use commission
shall act to approve, approve with modification, or deny the petition. A
denial either by the county planning commission or by the land use commission,
or a modification by the land use commission, as the case may be, of the
desired use shall be appealable to the circuit court of the circuit in which
the land is situated and shall be made pursuant to the Hawaii rules of civil
procedure.
(f) Land uses substantially involving or
supporting educational ecotourism, related to the preservation of native
Hawaiian endangered, threatened, proposed, and candidate species, that are
allowed in an approved habitat conservation plan under section 195D-21 or safe
harbor agreement under section 195D-22, which are not identified as permissible
uses within the agricultural district under sections 205-2 and 205-4.5, may be
permitted in the agricultural district by special permit under this section, on
lands with soils classified by the land study bureau's detailed land
classification as overall (master) productivity rating class C, D, E, or U. [L
1963, c 205, pt of §2; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1; am L
1976, c 4, §2; am L 1978, c 166, §1; am L 1979, c 221, §1; gen ch 1985; am L
1998, c 237, §6; am L 2005, c 183, §5; am L 2021, c 153, §8; am L 2025, c 236, §17]
Rules of Court
Appeal to circuit court, see HRCP rule 72.
Attorney General Opinions
Special permits cannot be granted to authorize uses which
have effect of making boundary change or creating new district. Att. Gen. Op.
63-37.
Authority of land use commission to modify permit approved by
county commission discussed. Att. Gen. Op. 68-30.
Land use commission is not authorized to review county
planning commission's denial of request for modification of special permit.
Att. Gen. Op. 77-4.
Law Journals and Reviews
"Urban Type Residential Communities in the Guise of
Agricultural Subdivisions:" Addressing an Impermissible Use of Hawai`i's
Agricultural District. 25 UH L. Rev. 199 (2002).
Ala Loop and the Private Right of Action Under Hawai`i
Constitution Article XI, Section 9: Charting a Path Toward a Cohesive
Enforcement Scheme. 33 UH L. Rev. 367 (2010).
A Self-Executing Article XI, Section 9--The Door For a Bivens
Action for Environmental Rights? 34 UH L. Rev. 187 (2012).
Case Notes
Where plaintiffs alleged violations of Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA) and made other claims based on
county planning commission's denial of a special use permit sought under this
section: among other things, no Eleventh Amendment immunity for the county;
RLUIPA, assuming it was constitutional, did not facially invalidate Hawaii's
land use law; strict scrutiny test would apply in assessing county's past
actions in further proceedings in the case. 229 F. Supp. 2d 1056 (2002).
Former provision requiring that a public hearing on an
application for a special permit be held within one hundred twenty days was
directory not mandatory. 62 H. 666, 619 P.2d 95 (1980).
Validity of attaching conditions for approval of special
permit. 62 H. 666, 619 P.2d 95 (1980).
Recreational theme park on agricultural land was not "unusual
and reasonable use" which would qualify for special permit. 64 H. 265,
639 P.2d 1097 (1982).
"Communications equipment buildings" and "utility
lines" in §205-4.5(a)(7) do not encompass "telecommunications
antennas" or "transmission antennas" such as a cellular
telephone tower; public utility thus had to apply for a special permit under
this section to place the tower in a state agricultural district. 90 H. 384,
978 P.2d 822 (1999).
Where land use commission’s imposition of restrictive
condition - a termination date of July 31, 2012 for the deposit of municipal
solid waste at the Waimanalo Gulch Sanitary Landfill - in its approval of
special use permit was not supported by substantial evidence in the record,
condition could not stand; matter remanded to land use commission. 127 H. 5,
275 P.3d 809 (2012).
Appellee Kauai County planning commission's public trust duty
under article XI, §1 of the Hawaii constitution, coupled with the State's power
to create and delegate duties to the counties, established that appellee had a
duty to conserve and protect water resources in considering whether to issue a
special permit to appellant water bottling company. 130 H. 407 (App.), 312
P.3d 283 (2013).
Cited: 133 H. 141, 324 P.3d 951 (2014).
Notes of Decisions
Cnty. of Hawai'i v. Ala Loop Homeowners, 235 P.3d 1103 (Haw. 2010).
· cites it 166× “In summary, Ala Loop argued that *1108 a special permit was required for the charter school, pursuant to HRS § 205-6 (2001), county zoning laws, and Land Use Commission (LUC) rules, because the special permit requirements specifically involve a review of health and safety issues…”
Kauai Springs, Inc. v. Plan. Comm'n of the Cnty. of Kauai., 324 P.3d 951 (Haw. 2014).
· cites it 19× “In regard to the standards for the Special Permit, the circuit court similarly concluded that HRS § 205-6, county ordinances, and the Planning Commission Rules set forth the proper standard for issuing the permit and there was no indication in the Decision and Order or the…”
Save Sunset Beach Coalition v. City & Cnty. of Honolulu, 78 P.3d 1 (Haw. 2003).
· cites it 14× “In addition, the City maintains: (1) that it has “concurrent jurisdiction” with the State in agricultural districts; (2) it is empowered to enact any type of zoning as long as the zoning complies with the “long-range, comprehensive, general plan” requirement of HRS § 46-4; 28…”
Hale O Kaula Church v. Maui Plan. Comm'n, 229 F. Supp. 2d 1056 (D. Haw. 2002).
· cites it 22× “(“RLUIPA”) following the Maui County Planning Commission’s August 2001 denial of a Special Use Permit sought under Haw.Rev.Stat. § 205-6. Based upon the same denial, Plaintiffs also make claims for deprivations of federal civil rights (freedom of religion, speech, assembly,…”
Perry v. Plan. Comm'n of the Cnty. of Hawaii, 619 P.2d 95 (Haw. 1980).
· cites it 23× “Pursuant to HRS § 205-6, the planning commission’s decision, including its findings and special conditions, was then transmitted to the State Land Use Commission for further consideration.”
T-Mobile USA, Inc. v. Cnty. of Hawai'i Plan. Comm'n, 104 P.3d 930 (Haw. 2005).
· cites it 18× “The court accepts as fact that the HCPC's position will continue to be that an HRS § 205-6 Special Permit is required for each and every case in which VoiceStream intends to construct any cellular communications antenna in a Hawaii County state land use Agricultural District.”
Dep't of Env't Servs. v. Land Use Comm'n, 275 P.3d 809 (Haw. 2012).
· cites it 21× “Pursuant to HRS section 205-6 4 , an application for *7 an SUP in the City and County of Honolulu must first be approved by the Planning Commission of the City and County of Honolulu (“Planning Commission”).”
Neighborhood Bd. No. 24 v. State Land Use Comm'n, 639 P.2d 1097 (Haw. 1982).
· cites it 18× “Appellants, five organizations composed of residents of Waianae, Nanakuli and Maili, Oahu, challenge the granting of a special permit pursuant to HRS § 205-6 (1976) to appellee Oahu Corporation (“Oahu”) for construction of a major amusement park on 103 acres of land situated in…”
Curtis v. Bd. of Appeals, 978 P.2d 822 (Haw. 1999).
· cites it 12× “1998), 3 was- required to apply for a special permit under HRS § 205-6 (Supp.1998). 4 U.S. Cellular and the County asserted that a special permit was unnecessary because the terms “public, private and quasi-public utility lines” and “communication equipment buildings” in HRS §…”
Kauai Springs, Inc. v. Plan. Comm'n, 312 P.3d 283 (Haw. App. 2013).
· cites it 10× “HRS § 205-6 (Supp. 2012) delegates authority to the respective county planning commissions to promulgate procedures governing the issuance of Special Permits.”
Malama Maha'ulepu v. Land Use Comm'n, 790 P.2d 906 (Haw. 1990).
· cites it 9× “HRS § 205-6 (1985) and Hawaii State Land Use Commission (LUC) Rule 15-15-95 require automatic review by the LUC of a special permit granted for a parcel of land greater than 15 acres.”
— Haw. Rev. Stat. § 205-6(a) — 7 cases
Hale O Kaula Church v. Maui Plan. Comm'n, 229 F. Supp. 2d 1056 (D. Haw. 2002).
“(“RLUIPA”) following the Maui County Planning Commission’s August 2001 denial of a Special Use Permit sought under Haw.Rev.Stat. § 205-6. Based upon the same denial, Plaintiffs also make claims for deprivations of federal civil rights (freedom of religion, speech, assembly,…”
Dep't of Env't Servs. v. Land Use Comm'n, 275 P.3d 809 (Haw. 2012).
“Pursuant to HRS section 205-6 4 , an application for *7 an SUP in the City and County of Honolulu must first be approved by the Planning Commission of the City and County of Honolulu (“Planning Commission”).”
T-Mobile USA, Inc. v. Cnty. of Hawai'i Plan. Comm'n, 104 P.3d 930 (Haw. 2005).
“The court accepts as fact that the HCPC's position will continue to be that an HRS § 205-6 Special Permit is required for each and every case in which VoiceStream intends to construct any cellular communications antenna in a Hawaii County state land use Agricultural District.”
— Haw. Rev. Stat. § 205-6(b) — 4 cases
Cnty. of Hawai'i v. Ala Loop Homeowners, 235 P.3d 1103 (Haw. 2010).
“In summary, Ala Loop argued that *1108 a special permit was required for the charter school, pursuant to HRS § 205-6 (2001), county zoning laws, and Land Use Commission (LUC) rules, because the special permit requirements specifically involve a review of health and safety issues…”
— Haw. Rev. Stat. § 205-6(c) — 5 cases
Kauai Springs, Inc. v. Plan. Comm'n of the Cnty. of Kauai., 324 P.3d 951 (Haw. 2014).
“In regard to the standards for the Special Permit, the circuit court similarly concluded that HRS § 205-6, county ordinances, and the Planning Commission Rules set forth the proper standard for issuing the permit and there was no indication in the Decision and Order or the…”
Kauai Springs, Inc. v. Plan. Comm'n, 312 P.3d 283 (Haw. App. 2013).
“HRS § 205-6 (Supp. 2012) delegates authority to the respective county planning commissions to promulgate procedures governing the issuance of Special Permits.”
— Haw. Rev. Stat. § 205-6(d) — 4 cases
Dep't of Env't Servs. v. Land Use Comm'n, 275 P.3d 809 (Haw. 2012).
“Pursuant to HRS section 205-6 4 , an application for *7 an SUP in the City and County of Honolulu must first be approved by the Planning Commission of the City and County of Honolulu (“Planning Commission”).”
Hale O Kaula Church v. Maui Plan. Comm'n, 229 F. Supp. 2d 1056 (D. Haw. 2002).
“(“RLUIPA”) following the Maui County Planning Commission’s August 2001 denial of a Special Use Permit sought under Haw.Rev.Stat. § 205-6. Based upon the same denial, Plaintiffs also make claims for deprivations of federal civil rights (freedom of religion, speech, assembly,…”
— Haw. Rev. Stat. § 205-6(e) — 3 cases
Hale O Kaula Church v. Maui Plan. Comm'n, 229 F. Supp. 2d 1056 (D. Haw. 2002).
“(“RLUIPA”) following the Maui County Planning Commission’s August 2001 denial of a Special Use Permit sought under Haw.Rev.Stat. § 205-6. Based upon the same denial, Plaintiffs also make claims for deprivations of federal civil rights (freedom of religion, speech, assembly,…”
Dep't of Env't Servs. v. Land Use Comm'n, 275 P.3d 809 (Haw. 2012).
“Pursuant to HRS section 205-6 4 , an application for *7 an SUP in the City and County of Honolulu must first be approved by the Planning Commission of the City and County of Honolulu (“Planning Commission”).”
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