SB336

SECTION 1. Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§46- Housing Accountability Act; housing development projects; emergency shelters; restrictions; fines. (a) This section shall be known and may be cited as the Housing Accountability Act.

(b) No county shall disapprove a housing development project or an emergency shelter, or condition approval in a manner that renders the development of a housing development project or emergency shelter infeasible, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following:

(1) The county has met or exceeded any affordable housing obligation to develop vacant lots, single-family residences, multi-family residences, or any other type of residence for sale or rent to individuals with a specified income range; provided that any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable laws, rules, or standards;

(2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development of the housing development project or emergency shelter financially infeasible; provided that inconsistency with applicable zoning ordinances or state land use classification shall not constitute a specific, adverse impact upon the public health or safety;

(3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development of the housing development project or emergency shelter financially infeasible;

(4) The housing development project or emergency shelter is proposed on land within an agricultural district or conservation district, pursuant to section 205-2, or does not have adequate water or wastewater facilities to serve the project; or

(5) The housing development project or emergency shelter is inconsistent with the applicable zoning ordinances, county general plan, and state land use classifications; provided that this paragraph shall not be used to disapprove or conditionally approve a housing development project or emergency shelter if:

(A) A change was made to the applicable zoning ordinances, county general plan, or state land use classification subsequent to the date the application was deemed complete;

(B) The county has failed to identify lands that can be developed for housing to provide for the county's share of the regional housing needs for all income levels and the housing development project is proposed for a site designated in the county general plan for residential uses, or commercial uses if residential uses are permitted or conditionally permitted within commercial designations. In any action in court, the burden of proof shall be on the county to show that its plan identifies adequate sites with appropriate zoning and development standards and with services and facilities to accommodate the county's share of the regional housing need; and

(C) The emergency shelter is proposed for a site designated in the county general plan for industrial, commercial, or multifamily residential uses and the county has failed to:

(i) Identify a zone where emergency shelters are allowed as a permitted use without a conditional use or other discretionary permit;

(ii) Demonstrate that the identified zone includes insufficient capacity to accommodate the need for an emergency shelter; or

(iii) Demonstrate that the identified zone cannot accommodate at least one emergency shelter.

(c) Nothing in this section shall be construed to prohibit a county from requiring the housing development project to comply with objective, quantifiable, and written development standards, conditions, and policies appropriate to, and consistent with, meeting the county's share of the regional housing need; provided that the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density allowed on the site and proposed by the development.

(d) Nothing in this section shall be construed to prohibit a county from requiring an emergency shelter project to comply with objective, quantifiable, and written development standards, conditions, and policies; provided that the development standards, conditions, and policies shall be applied by the county to facilitate and accommodate the development of the emergency shelter.

(e) This section does not prohibit a county from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter.

(f) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.

(g) If any county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the application is deemed complete, and the denial of the development or the imposition of conditions on the development is the subject of a court action that challenges the denial or the imposition of conditions, then the burden of proof shall be on the county to show that its decision is consistent with the findings as described in subsection (b).

(h) When a proposed housing development project complies with applicable, objective county general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the housing development project's application is determined to be complete, but the county proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the county shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that the following conditions exist:

(1) The housing development project would have a specific, adverse impact on public health or safety unless the housing development project is disapproved or approved upon the condition that the housing development project be developed at a lower density; and

(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact other than the disapproval of the housing development project or the approval of the housing development project upon the condition that it be developed at a lower density.

(i) If the county considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this part, the county shall provide the applicant with written documentation identifying the provision, and an explanation of the reason the county considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:

(1) Within thirty days of the date that the application for the housing development project is determined to be complete, if the housing development project contains one hundred fifty or fewer housing units; or

(2) Within sixty days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than one hundred fifty units.

(j) If the county fails to provide the required documentation pursuant to subsection (i), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.

(k) The applicant, a person who would be eligible to apply for residency in the housing development project or emergency shelter, or a housing organization may bring an action to enforce this section. If, in any action brought to enforce this section, a court finds that either the county, in violation of subsection (b), disapproved a housing development project or conditioned its approval in a manner rendering the development of the housing development project or an emergency shelter infeasible without making the findings required by this section or without making findings supported by a preponderance of the evidence, or the county, in violation of subsection (h), disapproved a housing development project complying with applicable, objective county general plan and zoning standards and criteria, or imposed a condition that the housing development project be developed at a lower density, without making the findings required by this section or without making findings supported by a preponderance of the evidence, the court shall issue an order or judgment compelling compliance with this section within sixty days, including but not limited to an order that the county take action on the housing development project or emergency shelter. The court may issue an order or judgment directing the county to approve the housing development project or emergency shelter if the court finds that the county acted in bad faith when it disapproved or conditionally approved the housing development project or emergency shelter in violation of this section. The court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney's fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this section.

(l) Upon a determination that the county has failed to comply with the order or judgment compelling compliance with this section within sixty days issued pursuant to subsection (k), the court shall impose fines on the county that has violated this section. The fine shall be in a minimum amount of $10,000 per housing unit in the housing development project on the date the application was deemed complete. Any fines collected pursuant to this section shall be deposited into the dwelling unit revolving fund created pursuant to section 201H‑191.

(m) If the court determines that its order or judgment has not been carried out within sixty days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled.

(n) For the purposes of this section:

"Housing development project" means a use consisting of any of the following:

(1) Residential units that are priced to be affordable to residents at or below one hundred per cent area medium income only;

(2) Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use; or

(3) Transitional housing or supportive housing.

"Housing organization" means a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low income households and have filed written or oral comments with the local agency prior to action on the housing development project.

"Lower density" includes any conditions that have the same effect or impact on the ability of the project to provide housing.

"Specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date an application was deemed complete."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. New statutory material is underscored.

SECTION 4 This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	336
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII