COM 0687.078 2004-2006 - Laserfiche WebLink

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June 1, 2006 Board of Directors Page 7 not required to be completed before the issuance of certificates of occupancy for Hiluhilu's Palamanui project. LEGAL ANALYSIS Ordinance 93-45, a Zoning Code amendment, required that an 80-foot wide right-of-way and its improvements be to Queen Kaahumanu Highway if and when any development occurred within the existing conservation district portion of the Palamanui project. The record shows that Malsalei Drive was built as a minor road with a 50-foot wide right-of-way and, therefore, is not in compliance with the Zoning Code. Furthermore, Malcalei Drive is not in compliance with the road construction requirements of the Subdivision Code. Nor was any variance granted to permit construction of Malcalei Drive as a 50-foot- wide minor road with 18% maximum grades. The County faces potential liability for negligent design and maintenance of Malcalei Drive if it accepts dedication of the road. Malcalri t7,;ve+. TA in woLtior± Of The Z-~ninQ Code Ordinance 93-45 was an amendment to the Zoning Code. The road construction conditions contained in Ordinance 93-45 therefore became a part of the Zoning Code upon the approval of the ordinance. Two methods for deleting the road requirements from the ordinance would be a further amendment to the ordinance or a variance from it. See Zoning Code, Sections 25-2-40 through 25-2- 45 (amendments) and Sections 25-2-50 through 25-2-58 (variance). Amendments to the Zoning Code are obtained by filing an application that includes detailed information about the property that is the subject of the application. Notice of the application must be provided to surrounding landowners, At least one public hearing is to be held on the application. Zoning Code, Sectioa 25-2-42. An applicant for a variance must show that there are special or unusual circumstances applying to the real property, that there are no other reasonable alternatives, and that the variance would be consistent with the general purpose of the district, the code, the County general plan, and not be detrimental to the public welfare. Zoniag Code, Section 25-2-52. Notice of the application must be provided to affected landowners. Zoning Code, Section 25-2-53. Neither the amendment or variance procedure appears to have been used with respect to the construction of Malcalei Drive. Rather, Nansay and the Planning Department exchanged correspondence that purported to change the road requirements. The correspondence did not constitute an amendment to or variance from the Zoning Code. Malralei Drive therefore appears to have been 613197.1.8334-1