HomeMy WebLinkAboutRevised PD Background and Recommendation Amendments to Planning Commission Rule 8 and 9 PDInitiatedS S VRule 8&SMARu1e9.doc-4/28/23
COUNTY OF HAWAI`I PLANNING DEPARTMENT
BACKGROUND AND RECOMMENDATION
INITIATOR: PLANNING DIRECTOR
AMENDMENTS TO PLANNING COMMISSION RULE 8 (SSV)AND RULE 9 (SMA)
SUPPLEMENTAL INFORMATION
At the Joint Planning Commission meeting held on April 20, 2023, the Windward and
Leeward Planning Commission reviewed the rule amendments recommended by the Planning
Director and requested further changes to Planning Commission Rule 8 regarding the Shoreline
Setback(SSV) and Planning Commission Rule 9 regarding the Special Management Area
(SMA).
Based on this feedback, the Planning Director is recommending amendments to the rules
to address the Commission's concerns. The changes shown in Planning Department Exhibit 2
and Planning Department Exhibit 4 removes a proposed provision to allow for a waiver of a
public hearing provided no person or agency has requested a public hearing within twenty-five
calendar days; changes shown in Planning Department Exhibit 2 removes the word"sand"
from shoreline hardening along beaches. Furthermore, the changes shown in Planning
Department Exhibit 3 are to address the Commission's request for Archaeological Resources
requirements for Special Management Area applications. Lastly, the Planning Director is also
taking this time to correct grammatical errors that were found in the previous Planning Director's
recommendation report.
Note that material to be deleted is bracketed and struck-out while added material has been
underscored. Additionally, material that is added from Act 16 is yellow color-coded, other HRS
changes are green color-coded, and the Director recommended changes are blue color-coded.
PLANNING DEPARTMENT EXHIBITS:
• Planning Department Exhibit 1-Act 16
• Planning Department Exhibit 2-Draft Amendments to Commission Rule 8
• Planning Department Exhibit 3-Draft Amendments to Commission Rule 9
• Planning Department Exhibit 4-Draft Amendments to Department Rule 11
-1-
1. Prior to Act 16, HRS 205A-43.5(a)(3) was amended to add the provision below. To
address concerns raised by the Joint Planning Commission, this provision will not be
added to Section 8-10(a)(3) of Commission Rule 8 and Section 11-11(a)(3) of
Department Rule 11. Therefore, other structures or activities (other than structures and
activities listed in Planning Department Rule 11-7)will need to go before the Planning
Commission at a public hearing in order to secure a Shoreline Setback Variance:
"Other structures or activities;provided that no person or agency has requested a
public hearing within twenty-five calendar days after public notice of the
application; or"
2. Act 16 amended HRS 205A-46(1)(a)(9)which restricted activities for private facilities
from artificially fixing the shoreline and restricted the granting of a variance for shoreline
hardening structures in areas with sand beaches, unless the granting of such variances is
clearly demonstrated to be in the interest of the general public. To address the concerns
raised by the Joint Planning Commission to remove the word sand from beaches found
under Rule 8-11(d)(2) Criteria for Approval of a Variance, Hardship Standard, the
Planning Director is proposing the following amendment to Rule 8-11(d)(2) as shown
below:
(2) Private facilities or improvements that may artificially fix the shoreline;
provided that the Commission may consider hardship to the applicant if
the facilities or improvements are not allowed within the shoreline area;
provided further that a variance to artificially fix the shoreline shall not be
granted in areas with beaches or where artificially fixing the shoreline may
interfere with existing recreational and waterline activities unless the
granting of the variance is clearly demonstrated to be in the interest of the
general public.
3. The Planning Director is also proposing to amend Rule 9-11(b)(4) to address concerns
raised by the Joint Planning Commission as shown:
(a) Rule 9-11(b)(4) Archaeological Resources Requirements when submitting an
-2-
application:
(4) Archaeological Resources (one of the following):
(A) An archaeological inventory report or assessment prepared by a
licensed archaeologist containing significance assessments, effect
determinations, and proposed mitigation commitments. The report
should be completed pursuant to Department of Land and Natural
Resources—State Historic Preservation Division (DLNR-SHPD)
rules.
(B) A prior "no-effect" letter from the DLNR-SHPD for the subject
propeM.
(C) [
doetimentcation,, to which DI=NR cuPP has ,,. responded after✓0
] A letter and location map for the Planning Department to
submit to DLNR-SHPD claiming _no significant cant historic sites are
likely. t�present. The letter must present supportive evidence
documenting the proposed land altering activities (including the
affected area and depth of disturbance) and documenting the likely
nature and depth of historic properties that may have once existed
in the area.
Attached is a copy of the proposed amendments to Planning Commission Rule No. 8 and
9 that contains revisions that will bring these rules in line with the Joint Planning Commission's
concerns and the recent amendments to the State's Coastal Zone Management laws, upon which
the County's SMA laws are based.
-3-
ACT 16
ACT 16 S.B. NO. 2060
A Bill for an Act Relating to Coastal Zone Management.
Be It Enacted by the Legislature of the State of Hawaii.-
SECTION 1. The legislature finds that the coastal zone management
program was established pursuant to Act 188, Session Laws of Hawaii 1977. The
Act declared that it is state policy to:
Planning Dept.
Exhibit 255
ACT 16
(1) Protect, preserve, and where desirable, restore or improve the qual-
ity of coastal scenic and open space resources;
(2) Protect valuable coastal ecosystems from disruption and minimize
adverse impacts on all coastal ecosystems;
(3) Reduce hazards to life and property from tsunami, storm waves,
stream flooding, erosion, and subsidence; and
(4) Improve the development review process, communication, and
public participation in the management of coastal resources and
hazards.
The legislature also finds that a 2012 collaborative study by the United
States Geological Survey and the University of Hawaii indicates that seventy per
cent of beaches in Hawaii are undergoing a trend of chronic sand loss and shore-
line retreat. Further, more than thirteen miles of beach in the State have been
completely lost to erosion fronting seawalls and revetments. The Hawaii sea level
rise vulnerability and adaptation report, accepted in 2017 by the Hawaii climate
change mitigation and adaptation commission, finds that with just 1.1 feet of
sea level rise, many more miles of beach could be lost to erosion if widespread
shoreline armoring is allowed. This could mean a loss of five miles of beach on
Kauai, seven miles of beach on Oahu, and eight miles of beach on Maui. Based
on its findings, the report recommends enabling beaches to persist with sea level
rise and suggests integrating sea level rise considerations into Hawaii's laws re-
garding coastal zone management.
The legislature further finds that the convergence of dense development
along shorelines, increasing landward migration of shoreline due to sea level
rise and other human and natural impacts, and extensive beach loss fronting
shoreline armoring necessitates revision of existing policies and regulations. Re-
vision of these existing policies and regulations would both protect beaches and
other coastal environments from further degradation and reduce the exposure
of shorefront communities to increasing erosion and flooding hazards caused
by sea level rise.
The legislature also finds that a recent study by the University of Hawaii
coastal geology group identified several primary causes for the State's failure to
meet coastal zone management policy objectives. Specifically, the study found
that current policies, ordinances, and practices allow for:
(1) The hardening of shorelines through a hardship variance that is
granted based upon demonstrated hardship brought on by coastal
erosion. When granted, these hardship variances set into motion a
cycle of shoreline armoring that causes "flanking", or amplified ero-
sion, on properties adjacent to armored shorelines. This continuous
cycle of hardening and flanking can extend along an entire beach
and, in a section of northeast Oahu, approximately forty-five per
cent of observed shoreline hardening was implemented in response
to adjacent hardening. This cycle,caused by a combination of beach
erosion and coastal policy, has resulted in the narrowing and even
elimination of beaches to the extent that they can no longer be used
for public recreation or cultural practice; and
(2) Renovation and expansion of single-family homes in erosion and
flood-prone coastal areas, thereby extending building lifetimes in-
definitely and allowing for virtually complete coverage of coastal
parcels by these structures. The average building surface area in-
creased by twenty per cent following the establishment of the State's
coastal zone management program and, combined with sea level
rise, this development increases the likelihood of mass structural
failure and deposit of debris on public beaches.
256
ACT 16
The purpose of this Act is to strengthen coastal zone management policy
by amending chapter 205A, Hawaii Revised Statutes, to protect state beaches
and to reduce residential exposure to coastal hazards.
SECTION 2. Section 205A-1, Hawaii Revised Statutes, is amended by
adding three new definitions to be appropriately inserted and to read as follows:
""Authority"means the county planning commission, except in counties
where the county planning commission is advisory only, in which case "author-
ity" means the county council or such body as the council may by ordinance
designate. The authority may, as appropriate, delegate the responsibility for ad-
ministering this chapter.
"Beach" means a coastal landform primarily composed of sand from
eroded rock, coral, or shell material, or any combination thereof, that is estab-
lished and shaped by wave action and tidal processes. "Beach" includes sand
deposits in nearshore submerged areas, or sand dunes or upland beach deposits
landward of the shoreline, that provide benefits for public use and recreation,for
coastal ecosystems, and as a natural buffer against coastal hazards.
"Coastal hazards" means any tsunami, hurricane, wind, wave, storm
surges,. gh tide, flooding, erosion, sea level rise, subsidence, or point and non-
point source pollution."
SECTION 3. Section 205A-2, Hawaii Revised Statutes, is amended by
amending subsections (b) and (c) to read as follows:
"(b) Objectives.
(1) Recreational resources;
(A) Provide coastal recreational opportunities accessible to the
public.
(2) Historic resources;
(A) Protect, preserve, and, where desirable, restore those natural
and manmade historic and prehistoric resources in the coastal
zone management area that are significant in Hawaiian and
American history and culture.
(3) Scenic and open space resources;
(A) Protect, preserve, and, where desirable, restore or improve the
quality of coastal scenic and open space resources.
(4) Coastal ecosystems;
(A) Protect valuable coastal ecosystems, including reefs, beaches,
and coastal dunes, from disruption and minimize adverse im-
pacts on all coastal ecosystems.
(5) Economic uses;
(A) Provide public or private facilities and improvements impor-
tant to the State's economy in suitable locations.
(6) Coastal hazards;
(A) Reduce hazard to life and property from [tsunami, storm
coastal hazards.
(7) Managing development;
(A) Improve the development review process, communication, and
public participation in the management of coastal resources
and hazards.
(8) Public participation;
(A) Stimulate public awareness, education, and participation in
coastal management.
(9) Beach and coastal dune protection;
257
ACT 16
(A) Protect beaches and coastal dunes for [publie].-
Cij
Public use and recreation[...],-
ii The benefit of coastal ecosystems*, and
iii Use as natural buffers against coastal hazards; and
Coordinate and fund beach management and protection.
(10) Marine and coastal resources;
(A) Promote the protection, use, and development of marine and
coastal resources to assure their sustainability.
(c) Policies.
(1) Recreational resources;
(A) Improve coordination and funding of coastal recreational
planning and management; and
(B) Provide adequate, accessible, and diverse recreational opportu-
nities in the coastal zone management area by:
(i) Protecting coastal resources uniquely suited for recre-
ational activities that cannot be provided in other areas;
(ii) Requiring [replaeemenfl restoration of coastal resources
[having] that have significant recreational and ecosystem
value,, including[;] but not limited to coral reefs, surfing
sites, fishponds, [ ] sand beaches, and coastal dunes
when [sue] these resources will be unavoidably dam-
aged by development; or requiring [ ] monetary
compensation to the State for recreation when [r-eplaee-
ment] restoration is not feasible or desirable;
(iii) Providing and managing adequate public access, consis-
tent with conservation of natural resources, to and along
shorelines with recreational value;
(iv) Providing an adequate supply of shoreline parks and oth-
er recreational facilities suitable for public recreation;
(v) Ensuring public recreational uses of county, state, and
federally owned or controlled shoreline lands and waters
having recreational value consistent with public safety
standards and conservation of natural resources;
(vi) Adopting water quality standards and regulating point
and nonpoint sources of pollution to protect, and where
feasible, restore the recreational value of coastal waters;
(vii) Developing new shoreline recreational opportunities,
where appropriate, such as artificial lagoons, artificial
beaches, and artificial reefs for surfing and fishing; and
(viii) Encouraging reasonable dedication of shoreline areas
with recreational value for public use as part of discre-
tionary approvals or permits by the land use commission,
board of land and natural resources, and county authori-
ties; and crediting [sueh] that dedication against the re-
quirements of section 46-6;
(2) Historic resources;
(A) Identify and analyze significant archaeological resources;
(B) Maximize information retention through preservation of re-
mains and artifacts or salvage operations; and
(C) Support state goals for protection, restoration, interpretation,
and display of historic resources;
(3) Scenic and open space resources;
(A) Identify valued scenic resources in the coastal zone manage-
ment area;
258
ACT 16
(B) Ensure that new developments are compatible with their visual
environment by designing and locating [sue] those develop-
ments to minimize the alteration of natural landforms and ex-
isting public views to and along the shoreline;
(C) Preserve, maintain, and, where desirable, improve and restore
shoreline open space and scenic resources; and
(D) Encourage those developments that are not coastal dependent
to locate in inland areas;
(4) Coastal ecosystems;
(A) Exercise an overall conservation ethic, and practice steward-
ship in the protection, use, and development of marine and
coastal resources;
(B) Improve the technical basis for natural resource management;
(C) Preserve valuable coastal ecosystems[, including reefs-,] of sig-
nificant biological or economic importance[;], includingreefs,
beaches, and dunes;
(D) Minimize disruption or degradation of coastal water ecosys-
tems by effective regulation of stream diversions, channeliza-
tion, and similar land and water uses, recognizing competing
water needs; and
(E) Promote water quantity and quality planning and manage-
ment practices that reflect the tolerance of fresh water and
marine ecosystems and maintain and enhance water quality
through the development and implementation of point and
nonpoint source water pollution control measures;
(5) Economic uses;
(A) Concentrate coastal dependent development in appropriate
areas;
(B) Ensure that coastal dependent development [sue as har-
and '��r�
] and coastal related development [sueh as visitor it
a„str-y f,,,,;rt;os and energy generating f'iieilities,] are located,
designed, and constructed to minimize exposure to coastal
hazards and adverse social, visual, and environmental impacts
in the coastal zone management area; and
(C) Direct the location and expansion of coastal[dependent deve
epmen ] development to areas [presently] designated and used
for [stte , developments] that development and permit reason-
able long-term growth at [sue] those areas, and permit coastal
[dot] development outside of [may] designated ar-
eas when:
(i) Use of [presently] designated locations is not feasible;
(ii) Adverse environmental effects and risks from coastal
hazards are minimized; and
(iii) The development is important to the State's economy;
(6) Coastal hazards;
(A) Develop and communicate adequate information about[ster-m
�� flood, � „1,den. n point a�wave, �, , e�o;�� �,
point olio ] the risks of coastal hazards;
(B) Control development, including planning and zoning control,
in areas subject to [stern wave, tsttnafni, reed erosio�r-
r ease, wind, subs aeneo and point and r rt s ,,.ee pel_
lution] coastal hazards;
(C) Ensure that developments comply with requirements of the
[Federal] National Flood Insurance Program; and
259
ACT 16
(D) Prevent coastal flooding from inland projects;
(7) Managing development;
(A) Use, implement, and enforce existing law effectively to the
maximum extent possible in managing present and future
coastal zone development;
(B) Facilitate timely processing of applications for development
permits and resolve overlapping or conflicting permit require-
ments; and
(C) Communicate the potential short and long-term impacts of
proposed significant coastal developments early in their life
cycle and in terms understandable to the public to facilitate
public participation in the planning and review process;
(8) Public participation;
(A) Promote public involvement in coastal zone management
processes;
(B) Disseminate information on coastal management issues by
means of educational materials, published reports, staff con-
tact, and public workshops for persons and organizations
concerned with coastal issues, developments, and government
activities; and
(C) Organize workshops,policy dialogues, and site-specific media-
tions to respond to coastal issues and conflicts;
(9) Beach protection;
(A) Locate new structures inland from the shoreline setback to con-
serve open space, minimize interference with natural shoreline
processes, and minimize loss of improvements due to erosion;
(B) Prohibit construction of private [ ] shoreline
hardening structures [seaward of the shoreline, e ept
they r-estAt in impr-oved etie and engmeut}ens-tom
or-osion at the sites and do not], including seawalls and revet-
ments, at sites having sand beaches and at sites where shoreline
hardening structures interfere with existing recreational and
waterline activities;
(C) Minimize the construction of public [ ]
shoreline hardening structures [seaward of the sher-elfin ], in-
cluding seawalls and revetments, at sites having sand beaches
and at sites where shoreline hardening structures interfere with
existing recreational and waterline activities;
Minimize .grading of and damage to coastal dunes;
[4))] LE) Prohibit private property owners from creating a public
nuisance by inducing or cultivating the private property own-
er's vegetation in a beach transit corridor; and
[W4] to Prohibit private property owners from creating a public
nuisance by allowing the private property owner's unmain-
tained vegetation to interfere or encroach upon a beach transit
corridor; and
(10) Marine and coastal resources;
(A) Ensure that the use and development of marine and coastal
resources are ecologically and environmentally sound and eco-
nomically beneficial;
(B) Coordinate the management of marine and coastal resources
and activities to improve effectiveness and efficiency;
260
ACT 16
(C) Assert and articulate the interests of the State as a partner with
federal agencies in the sound management of ocean resources
within the United States exclusive economic zone;
(D) Promote research, study, and understanding of ocean and
coastal processes, impacts of climate change and sea level rise,
marine life, and other ocean resources to acquire and inven-
tory information necessary to understand how [ ] coastal
development activities relate to and impact [ ] ocean and
coastal resources; and
(E) Encourage research and development of new, innovative tech-
nologies for exploring, using, or protecting marine and coastal
resources."
SECTION 4. Section 205A-22, Hawaii Revised Statutes, is amended as
follows:
1. By amending the definition of "department"to read:
""Department" means the planning department [in] of the counties of
Kauai, Maui, and Hawaii and the department of planning and permitting [in]
of the city and county of Honolulu, or other appropriate agency as designated
by the county councils."
2. By amending the definition of "development" to read:
""Development"means any of the uses, activities, or operations on land
or in or under water within a special management area that are included below:
(1) Placement or erection of any solid material or any gaseous, liquid,
solid, or thermal waste;
(2) Grading,removing,dredging,mining,or extraction of any materials;
(3) Change in the density or intensity of use of land, including but not
limited to the division or subdivision of land;
(4) Change in the intensity of use of water, ecology related thereto, or
of access thereto; and
(5) Construction, reconstruction, [aem�] or alteration of the size
of any structure.
"Development" does not include the following:
(1) Construction or reconstruction of a single-family residence that is
less than seven thousand five hundred square feet of floor area, is
not situated on a shoreline parcel or a parcel that is impacted by
waves, storm surges, gh tide, or shoreline erosion, and is not part
of a larger development;
(2) Repair or maintenance of roads and highways within existing
rights-of-way;
(3) Routine maintenance dredging of existing streams, channels, and
drainage ways;
(4) Repair and maintenance of underground utility lines, including but
not limited to water, sewer, power, and telephone and minor ap-
purtenant structures such as pad mounted transformers and sewer
pump stations;
(5) Zoning variances, except for height, density, parking, and shoreline
setback;
(6) Repair, maintenance, or interior alterations to existing structures;
(7) Demolition or removal of structures,except those structures located
on any historic site as designated in national or state registers;
(8) Use of any land for the purpose of cultivating, planting, growing,
and harvesting plants, crops, trees, and other agricultural, horticul-
261
ACT 16
tural, or forestry products or animal husbandry, or aquaculture or
mariculture of plants or animals, or other agricultural purposes;
(9) Transfer of title to land;
(10) Creation or termination of easements, covenants, or other rights in
(' 'l
structures or land;
[(� Final 1 s b.,l; 'Va1• pf-evided that ; eettlities that may att
map, ttnlesrs the feEt6rtakes spcEiAe aetieft, a speeialicgefRe t
area use permit if required, shall �-ec€ssed concurr-en n
an eation for- tentative ivzrdiSiv" 1 after- tent 424] tUl Subdivision of land into lots greater than twenty acres in size;
[{ }] (12) Subdivision of a parcel of land into four or fewer parcels when
no associated construction activities are proposed; provided that
any land that is so subdivided shall not thereafter qualify for this
exception with respect to any subsequent subdivision of any of the
resulting parcels;
[444] (13) Installation of underground utility lines and appurtenant
aboveground fixtures less than four feet in height along existing
corridors;
[{ }] (14) Structural and nonstructural improvements to existing single-
family residences, where otherwise permissible;
[464] (15) Nonstructural improvements to existing commercial or non-
commercial structures; and
[{7)] (16) Construction, installation, maintenance, repair, and replace-
ment of emergency management warning or signal devices and
sirens;
provided that whenever the authority finds that any excluded use, activity, or
operation may have a cumulative impact, or a significant environmental or eco-
logical effect on a special management area, that use, activity, or operation shall
be defined as "development"for the purpose of this part."
3. By amending the definition of "special management area emergen-
cy permit" to read:
""Special management area emergency permit" means an action by the
authority authorizing development in cases of emergency requiring immediate
action to prevent substantial physical harm to persons or property or to allow
the reconstruction of structures damaged by natural hazards to their original
form; provided that [such] those structures were previously found to be in com-
pliance with requirements of the [Federal] National Flood Insurance Program."
4. By repealing the definition of "authority".
["' „tb,O f t y",f,2ffflS the e0tHit` f4ffflg iSSIOR, eX6ef)t ill e0tHfitieS
ity" means the eounty eior- stteh body s the eettneil m by of-dinane-e
designate. The auther-ity
delegate the responsibility for-
ter-i g this P t "]
> >
SECTION 5. Section 205A-26, Hawaii Revised Statutes, is amended to
read as follows:
"§205A-26 Special management area guidelines. In implementing this
part, the authority shall adopt the following guidelines for the review of devel-
opments proposed in the special management area:
262
ACT 16
(1) All development in the special management area shall be subject
to reasonable terms and conditions set by the authority in order to
ensure:
(A) Adequate access, by dedication or other means, to publicly
owned or used beaches, recreation areas, and natural reserves
is provided to the extent consistent with sound conservation
principles;
(B) Adequate and properly located public recreation areas and
wildlife preserves are reserved;
(C) Provisions are made for solid and liquid waste treatment, dis-
position, and management [whie ] that will minimize adverse
effects upon special management area resources; and
(D) Alterations to existing land forms and vegetation,except crops,
and construction of structures shall cause minimum adverse
effect to water resources, beaches, coastal dunes, and scenic
and recreational amenities and [minimum danger- ^ mini-
mize impacts from floods, wind damage, storm surge, land-
slides, erosion, sea level rise, siltation, or failure in the event of
earthquake.
(2) No development shall be approved unless the authority has first
found:
(A) That the development will not have any[substantial] significant
adverse environmental or ecological effect, except as [sueh]any
adverse effect is minimized to the extent practicable and clearly
outweighed by public health, safety, or compelling public in-
terests. [ ] Those adverse effects shall include[;] but not be
limited to[;] the potential cumulative impact of individual de-
velopments, each [one] of which taken [in] by itself might not
have a [substantial] significant adverse effect, and the elimina-
tion of planning options;
(B) That the development is consistent with the objectives, poli-
cies, and special management area guidelines of this chapter
and any guidelines enacted by the legislature; and
(C) That the development is consistent with the county general
plan, community plan, and zoning[]; provided that a
finding of consistency [does] shall not preclude concurrent
processing where a general plan, community plan, or zoning
amendment may also be required.
(3) The authority shall seek to minimize, where reasonable:
(A) Dredging, filling or otherwise altering any bay, estuary, salt
marsh, river mouth, slough or lagoon;
(B) Any development [whie ] that would reduce the size of any
beach or other area usable for public recreation,
(C) Any development [whie ] that would reduce or impose restric-
tions upon public access to tidal and submerged lands,beaches,
portions of rivers and streams within the special management
areas and the mean high tide line where there is no beach;
(D) Any development [whie ] that would substantially interfere
with or detract from the line of sight toward the sea from the
state highway nearest the coast; and
(E) Any development [which] that would adversely affect water
quality, existing areas of open water free of visible structures,
existing and potential fisheries and fishing grounds, wildlife
habitats, or potential or existing agricultural uses of land."
263
ACT 16
SECTION 6. Section 205A-29, Hawaii Revised Statutes,is amended by
amending subsection (a) to read as follows:
"(a) The authority in each county, upon consultation with the central
coordinating agency, shall adopt rules under chapter 91 setting the special man-
agement area use permit application procedures, conditions under which hear-
ings must be held, and the time periods within which the hearing and action for
special management area use permits shall occur. The authority shall provide for
adequate notice to individuals whose property rights may be adversely affected
and to persons who have requested in writing to be notified of special manage-
ment area use permit hearings or applications. The authority shall also provide
public notice [statewide] that is, at a minimum, circulated throughout the county
at least twenty days in advance of the hearing. The authority may require a rea-
sonable filing fee which shall be used for the purposes set forth herein.
Any rule adopted by the authority shall be consistent with the objectives,
policies, and special management area guidelines provided in this chapter. Ac-
tion on the special management permit shall be final unless otherwise mandated
by court order."
SECTION 7. Section 205A-41, Hawaii Revised Statutes,is amended by
adding a new definition to be appropriately inserted and to read as follows:
""Department"means the planning department of the counties of Kauai,
Maui, and Hawaii and the department of planning and permitting of the city
and county of Honolulu, or other appropriate agency as designated by the coun-
ty councils."
SECTION 8. Section 205A-43, Hawaii Revised Statutes,is amended by
amending subsection (a) to read as follows:
"(a) Setbacks along shorelines are established of not less than [may
feet and not m er-e than] forty feet inland from the shoreline. The department
shall adopt rules pursuant to chapter 91, and shall enforce the shoreline setbacks
and rules pertaining thereto."
SECTION 9. Section 205A-43.5, Hawaii Revised Statutes, is amended
by amending subsection (a) to read as follows:
"(a) Prior to action on a variance application, the authority shall hold a
public hearing under chapter 91. By adoption of rules under chapter 91, the au-
thority may delegate responsibility to the department. Public and private notice,
including reasonable notice to abutting property owners and persons who have
requested this notice, shall be provided,but a public hearing may be waived prior
to action on a variance application for:
(1) Stabilization of shoreline erosion by the moving of sand entirely on
public lands;
(2) Protection of a legal structure [,weir,m er-e than $20 nnn;] or pub-
lic facility, including any facility owned by a public utility that is
regulated pursuant to chapter 269, that does not fix the shoreline,
under an emergency authorization issued by the authority;provided
that the structure or public facility is at risk of immediate damage
from shoreline erosion[;] and the authorization does not exceed
three years;
(3) Other structures or activities;provided that no person or agency has
requested a public hearing within twenty-five calendar days after
public notice of the application; or
(4) Maintenance, repair, reconstruction, and minor additions or al-
terations of legal boating, maritime, or watersports recreational
264
ACT 16
facilities, [whie ] that result in little or no interference with natural
shoreline processes."
SECTION 10. Section 205A-44, Hawaii Revised Statutes, is amended
by amending subsection (b) to read as follows:
"(b) Except as provided in this section, structures are prohibited in the
shoreline area without a variance pursuant to this part. Structures in the shore-
line area shall not need a variance if:
(1) They were completed prior to June 22, 1970;
(2) They received either a building permit, board approval, or shoreline
setback variance prior to June 16, 1989;
(3) They are outside the shoreline area when they receive either a build-
ing permit or board approval;
(4) They are necessary for or ancillary to continuation of existing agri-
culture or aquaculture in the shoreline area on June 16, 1989;
(5) They are minor structures permitted under rules adopted by the de-
partment which do not affect beach processes or artificially fix the
shoreline and do not interfere with public access or public views to
and along the shoreline; or
(6) Work being done consists of maintenance, repair, [reeenstr-tiet e„,]
and minor additions or alterations of legal boating, maritime,
or watersports recreational facilities, which are publicly owned,
and which result in little or no interference with natural shoreline
processes;
provided that permitted structures may be repaired, but shall not be enlarged,,
rebuilt, or replaced within the shoreline area without a variance."
SECTION 11. Section 205A-46, Hawaii Revised Statutes, is amended
as follows:
1. By amending subsection (a) to read:
"(a) A variance may be granted for a structure or activity otherwise pro-
hibited in this part if the authority finds in writing, based on the record pre-
sented, that the proposed structure or activity is necessary for or ancillary to:
(1) Cultivation of crops;
(2) Aquaculture;
(3) Landscaping; provided that the authority finds that the proposed
structure or activity will not adversely affect beach processes and
will not artificially fix the shoreline;
(4) Drainage;
(5) Boating, maritime, or watersports recreational facilities;
(6) Facilities or improvements by public agencies or public utilities reg-
ulated under chapter 269;
(7) Private facilities or improvements that are clearly in the public
interest;
(8) Private facilities or improvements [which] that will [der-] not
adversely affect beach processes [ne ], result in flanking shoreline
erosion, or artificially fix the shoreline; provided that the authority
[also finds th ] may consider any hardship that will result to the ap-
plicant if the facilities or improvements are not allowed within the
shoreline area;
(9) Private facilities or improvements that may artificially fix the shore-
line; provided that the authority [also finds that s a+:e in e
likely to ,,,, may consider hardship to the applicant if the facili-
ties or improvements are not allowed within the shoreline area[
265
ACT 16
the fft4h0fity iIRPOWS e8fiditiefiS vProrrrvrt air�' SCruccccre Scc^Wc^crc�
of the existing shoreline unless ;t ; eleaFl in the p b.lie;fill-o,-est;
� or]s
provided further that a variance to artificially fix the shoreline shall
not be granted in areas with sand beaches or where artificially fixing
the shoreline may interfere with existing recreational and waterline
activities unless the .granting of the variance is clearly demonstrated
to be in the interest of the general public; or
(10) Moving of sand from one location seaward of the shoreline to an-
other location seaward of the shoreline; provided that the author-
ity also finds that moving of sand will not adversely affect beach
processes, will not diminish the size of a public beach, and will be
necessary to stabilize an eroding shoreline."
2. By amending subsection (c) to read:
"(c) No variance shall be granted unless appropriate conditions are
imposed:
(1) To maintain safe lateral access to and along the shoreline or ad-
equately compensate for its loss;
(2) To minimize risk of adverse impacts on beach processes;
(3) To minimize risk of structures failing and becoming loose rocks,
sharp or otherwise dangerous debris, or rubble on public property;
and
(4) To minimize adverse impacts on public views to, from, and along
the shoreline."
SECTION 12. Section 205A-62, Hawaii Revised Statutes, is amended
to read as follows:
"§205A-62 Duties and responsibilities of the lead agency. The lead
agency shall have the following duties and responsibilities:
(1) Coordinate overall implementation of the plan, giving special con-
sideration to the plan's priority recommendations;
(2) Review and periodically update the plan;
(3) Coordinate the development of state agency work plans to imple-
ment the ocean resources management plan. The work plans shall
be revised on a biennial basis and coordinated with the budget
process. State agencies with responsibilities relating to marine and
coastal zone management include but are not limited to:
(A) The department of agriculture;
(B) The department of business, economic development, and
tourism;
(C) The department of defense;
W) The department of education;
[4))] LE) The department of health;
[{E4] (F) The department of land and natural resources;
[{-)] LG) The department of public safety;
[W.r)] LW The department of transportation; and
[44)] W The University of Hawaii;
(4) Ensure that state agency work plans are closely coordinated with the
work plans of relevant federal and county agencies;
(5) Analyze, resolve conflicts between, and prioritize, in cooperation
with relevant agencies and as part of the work plan development
process, the sector-specific recommendations included in the plan;
(6) Coordinate exclusive economic zone and other marine-related is-
sues with state and county agencies;
266
ACT 16
(7) Provide technical assistance to the agencies on policy and issue-
related matters regarding marine and coastal resources management;
(8) Coordinate marine and coastal education activities; and
(9) Adopt rules pursuant to chapter 91 to carry out the purposes of this
part."
SECTION 13. This Act does not affect rights and duties that matured,
penalties that were incurred, and proceedings that were begun before its effective
date.
SECTION 14. Statutory material to be repealed is bracketed and
stricken. New statutory material is underscored.
SECTION 15. This Act shall take effect upon its approval.
(Approved September 15,2020.)
267
RULE 8. SHORELINE SETBACK VARIANCE
8-1 Authority
Pursuant to authority conferred upon the Commission by Chapter 205A, Hawaii
Revised Statutes HRS , as amended, the rules hereinafter contained are hereby
established and shall apply to all lands within the shoreline setback area.
8-2 Purpose
The growing population and expanding development have brought about numerous
cases of encroachment of structures upon the shoreline and within the nearby
shoreline areas. Many of these structures have disturbed the natural shoreline
processes and caused erosion of the shoreline. Concrete masses along the shoreline
are contrary to the policy for the preservation of the natural shoreline and the open
space.Unrestricted removal of sand, coral,rocks, etc.,for commercial uses can only
deteriorate the shoreline and remove it from public use and enjoyment. Moreover,
the Hawaiian Islands are subject to tsunamis and high waves which endanger
residential dwellings and other structures which are built too close to the shoreline.
For these reasons, it is in the public interest to establish shoreline setbacks and to
regulate the use and activities within the shoreline setbacks. The purpose of this
rule is to establish authority, criteria and procedures for the review of all activities
or structures proposed within the shoreline setback area which requires a Shoreline
Setback Variance in accordance with the requirements of this rule and Chapter
205A Part III, [Tr.,.,,.,:, Revised St4utes]HRS.
8-3 Definitions
For the purpose of these rules, unless it is plainly evident from the context that a
different meaning is intended, certain words and phrases used herein are defined as
follows:
(a) "Activity" means any landscaping, excavating, grubbing, grading,
filling or stockpiling of earth materials, including sand, coral, coral
rubble, rocks, soil, or marine deposits.
(b) "Authority" means the county planning commission. The authority
may, as appropriate, delegate the responsibility for administering
this rule, as stated in this rule.
(c) "Beach"means a coastal landform primarily composed of sand from
eroded rock, coral, or shell material, or any combination thereof,that
is established and shaped by wave action and tidal processes.
"Beach" includes sand deposits in nearshore submerged areas, or
sand dunes or upland beach deposits landward of the shoreline, that
provide benefits for public use and recreation, for coastal
8-1 Planning Dept.
Exhibit 2
ecosystems, and as a natural buffer against coastal hazards.
(d) "Coastal hazards" means any tsunami, hurricane, wind,wave, storm
surges, high tide, flooding, erosion, sea level rise, subsidence, or
point and nonpoint source pollution.
(e) "Department" means the planning department of the County of
Hawai`i.
[(b)](f "Lot" means a parcel, tract, or area of land established by
subdivision or as otherwise lawfully established prior to the
adoption of the Chapter 23 (Subdivision Code), Hawaii County
Code 1983 (2016 Edition, as amended) and accepted by the
Department.
[(c}](g) "Practicable alternative" means an alternative to the proposed
project which is available and capable of being done, taking into
consideration existing technology and logistics, and which would
accomplish the basic purposes of the project while avoiding or
having less adverse impact on the shoreline area.
[(A)]o "Shoreline"means the upper reaches of the wash of the waves, other
than storm and seismic waves, at high tide during the season of the
year in which the highest wash of the waves occurs, usually
evidenced by the edge of vegetation growth, or the upper limit of
debris left by the wash of the waves, which has been certified by the
Board of Land and Natural Resources in accordance with its rules.
[(e)]Q "Shoreline setback area" shall include all of the land area between
the shoreline and the shoreline setback line, provided that if the
highest annual wash of the waves is fixed or significantly affected
by a structure that has not received all permits and approvals
required by law or if any part of any structure in violation of this
rule extends seaward of the shoreline, then the term "shoreline
setback area" shall include the entire structure.
[(4)]W "Shoreline setback line" means that line established by the
Department in accordance with the requirements of Department
Rule No. 11 regarding Shoreline Setback, running inland from and
parallel to the certified shoreline at a horizontal plane.
[(g)]o "Structure" includes, but is not limited to, any portion of any
building,pavement,road,pipe,flume,utility line,fence,groin,wall,
or revetment.
8-2
8-4 Variance Application and Content
An application for a shoreline setback variance shall be filed with the Commission,
through the Department, and shall include:
(a) A non-refundable filing and processing fee of five hundred $500 dollars.
(1) Application form;
(2) Description of the property in sufficient detail,including the tax map
key identification, location map, and land area;
(3) Written description of the proposed project,including a statement as
to how the request complies with the criteria within Section 8-11;
(4) An environmental assessment or environmental impact statement
consistent with the requirements of Chapter 343, [14awa R,.,:se
St4utes]HRS, which may include, but not be limited to, flood
hazard engineering studies of subject property and project's impact
analysis on adjacent properties, an archaeological survey, floral and
faunal surveys, photographs, existing and proposed contours; and
(5) A site plan of the shoreline setback area, drawn to scale, showing:
(A) Existing natural and man-made features and
conditions within the shoreline setback area;
(B) Existing natural and man-made features and
conditions along properties immediately adjacent to
the shoreline setback area and proposed
improvements;
(C) The certified shoreline;
(D) The shoreline setback line;
(E) Contours at a minimum interval of five feet unless
waived by the Commission;
(F) Proposed development and improvements showing
new conditions.
[(O]fb,)A copy of the certified shoreline survey map of the property.
8-3
[(,d)]Cc)Detailed justification of the proposed project, which addresses the criteria
and conditions set forth in Section 8-11.
[(O]fd)A list of all properties by tax map key located within 300 feet of the
perimeter boundary of the property under consideration.
[{4)]Ce)Prior to the acceptance of any application, all real property taxes and other
fees relating to the subject parcel or parcels shall be paid and there shall be
no outstanding delinquencies, except in cases of bankruptcy or similar
matters as authorized by the County Director of Finance.
[(g4]LQ Any other information required by the Commission.
8-5 Posting of Signs for Public Notification
(a) Within ten days of being notified of the acceptance of an application, the
applicant shall post a sign on the subject property notifying the public of the
following:
(1) The nature of the application;
(2) The proposed use of the property;
(3) The size of the property;
(4) The tax map key(s) of the property;
(5) That the public may contact the Department for additional
information; and
(6) The address and telephone number of the Department.
(b) The sign shall remain posted until the application has been granted, denied,
or withdrawn. The applicant shall remove the sign promptly after such action.
(c) Notwithstanding any other provisions of law, the sign shall be not less than
nine square feet and not more than twelve square feet in area, with letters not
less than one inch high. No pictures, drawings, or promotional materials shall
be permitted on the sign. The sign shall be posted at or near the property
boundary adjacent to a public road bordering the property and shall be readable
from said public road. If more than one public road borders the property, the
applicant shall post the sign to be visible from the more heavily traveled public
road. The sign shall, in all other respects, be in compliance with Chapter 3
(Signs)Hawaii County Code 1983 (2016 Edition, as amended).
(d) The applicant shall file an affidavit with the Department not more than five
8-4
days after posting the sign stating that a sign has been posted in compliance
with this section, and that the applicant and its agents will not remove the sign
until the application has been granted, denied, or withdrawn. A photograph of
the sign in place shall accompany the affidavit.
8-6 Incomplete Application
The Commission, through the Department shall neither accept nor process an
application which is incomplete as to form and content. An incomplete application
shall be returned with a written explanation of its deficiencies.
8-7 Compliance with Chapter 343, Hawaii Revised Statutes
An environmental assessment or environmental impact statement, prepared in
accordance with the requirements of Chapter 343, [Ha ai'i Revised Stodtt�s
(HRS)]HRS and Title 11, Chapter 200.1, Hawaii Administrative Rules (HAR), shall
accompany the filing of a shoreline setback variance application with the Commission.
The Department, on behalf of the Commission, shall be the accepting agency of all
environmental assessments and/or environmental impact statements, if appropriate,
which are prepared in accordance with this rule. A shoreline setback variance
application shall not be considered complete until such time the Department has
complied with the requirements of Chapter 343,HRS and Title 11, Chapter 200.1,HAR.
8-8 Public Hearing
(a) Except as otherwise provided in this rule, the Commission shall conduct a
public hearing within a period of ninety days from the date of acceptance of
a complete application, or within a longer time period as agreed to by the
applicant. Prior to acceptance of an application, the applicant shall comply
with the requirements of Chapter 343, HRS and Title 11, Chapter 200.1,
HAR. In the case of a finding of no significant impact (FONSI) and final
environmental impact statements, the [
Central Buneta]Office of Planning and Sustainable Development,
Environmental Review Program Periodic Bulletin publication date will be
used as compliance.For exemptions, the date of determination will be used.
(b) At least twenty days prior to the date of the public hearing, the Commission
shall publish a notice of the hearing in at least two daily newspapers of
general circulation in the county which includes the following:
(1) Name of the applicant;
(2) The location of the property involved, including its physical
address and tax map key number;
(3) Nature of the variance sought;
8-5
(4) Date, time, and place of the public hearing.
(c) Promptly after the Commission's fixing a date for the hearing but not less
than ten days prior to the date of the hearing,the applicant shall mail a notice
of the hearing to all property owners within three hundred feet of the
affected property. Reasonable notice shall also be provided to those persons
who have requested such notification of the applicant. Prior to the date of
the hearing, the applicant shall file with the Commission proof of service or
of good faith efforts to serve notice of the application on the designated
property owners. Such proof may consist of certified mail receipts,
affidavits, or the like. However, any failure to mail or to receive the written
notice shall not invalidate the proceedings.
(d) For each hearing continued at the request of the applicant,the applicant shall
serve notice of the hearing on surrounding property owners and lessees of
record as provided by Section 8-8(c). An additional two hundred fifty
$250 dollar processing fee shall be submitted by the applicant for each
hearing continued at the request of the applicant.
8-9 Decision
(a) Within sixty days following the close of the public hearing(s), or within a
longer time period as agreed to by the applicant, the Commission shall
render a decision to approve or deny the application.
(b) Notice of the decision shall be promptly given to the applicant by delivery
thereof.
(c) Whenever an application for a variance has been denied, no new application
for the same or similar development, covering all or any portion of the
property involved in the application, shall be accepted by the Commission
for a period of one year from the effective date of the denial of the
application; provided, however, that upon showing of a substantial change
of circumstances the Commission may permit the filing of a new application
prior to the expiration of such a one year period.
8-10 Waiver of Public Hearing and Action
(a) The Commission hereby delegates to the Department the authority to waive
a public hearing and to take action on a variance application for:
(1) Stabilization of shoreline erosion by moving sand entirely on public
lands;
(2) Protection of a structure determined by the Department to be legally
8-6
constructed, [whieh oosts more than $20 000;] a legal structure or
public facility, including any facility owned by a public utility that
is regulated pursuant to Chapter 269, HRS that does not fix the
shoreline,under an emergency authorization issued by the authority;
provided that the structure or public facility is at risk of immediate
damage from shoreline erosion as determined by the Department, in
consultation with appropriate agencies (i.e., U.S. Army Corps of
Engineers,Department of Public Works)[ l and the authorization
does not exceed three years,
(3) Maintenance, repair, reconstruction, and minor additions or
alterations of legal boating, maritime, or watersports recreational
facilities, [whieh]that result in little or no interference with natural
shoreline processes.
(b) An applicant who seeks processing under Section 8-10 shall make the
request in writing upon submittal of the variance application.
(c) The Department may deny the public hearing waiver and the application
shall be heard and noticed by the Commission in accordance with Section 8-
8.
(d) The Department may waive a public hearing and take action on a variance
application for the uses and activities in Section 8-10(a) after public and
private notice, including reasonable notice to abutting property owners and
persons who have requested this notice, is provided.
Ce) A variance may be granted for a structure or activity otherwise prohibited
by Planning Department Rule 11 (Shoreline Setback) and Chapter 205A,
HRS if the Department finds in writing, based on the record, that the
proposed structure or activity meets the criteria in Section 8-11.
8-11 Criteria for Approval of a Variance
(a) A variance may be granted for a structure or activity otherwise prohibited
by [these Pdles]Planning Department Rule 11 (Shoreline Setback) and
Chapter 205A,HRS if the Commission finds in writing,based on the record,
that the proposed structure or activity is necessary for or ancillary to:
(1) Cultivation of crops;
(2) Aquaculture; [ef]
(3) pin provided th Mheprm
8-7
structure or activity will not adversely affect beach processes, will
not impede public access, and will not artificially fix the shoreline.
[(b) A�vft ise be gr-anted tipen a finding that, based tipen the r-eeer-d,
the pr-apA-q-,-...d qs�.-Pulrvttuwe or- meets fie of the following standar-d
this s4seaiaw
A-v-ar-iinigTirrrcccrrvr-arrirvtivrcy--vr stm cttH�-crrc'jt is
E)e0afi spai4s 0
prsac4i6able-alter-fiatiye w'h ieh best cafifar-ms to the ose�c-of this
f u4e-
(2) Publie rater�t St
rr�imnir grime .a for- �;�fS*, ietur- hi
tecrrvr-airiiv trot i=wiir T3
z
l;;l Theme t- 11-11 tafi
r 1
e; and
8-8
r-elates to health and safe�.
(G) if a reposed to at4ifi all , fi�E the sher-elincihc
likely to eatise hardship if the stmetur-e is not allowed within
the shoreline seth ek .,
eltister- plan development (GPD) pefmits, or- subdivision
•]
(b) Shoreline-dependent Facility StandarM
A variance may also be granted,provided that the proposal is the practicable
alternative which best conforms to the purpose of this rule, and upon a
finding that, based upon the record, the proposed structure or activity is
necessary for or ancillary to:
(1) Drainage,
(2) Boating, maritime, or watersports recreational facilities,
(3) Moving of sand from one location seaward of the shoreline to
another location seaward of the shoreline, provided that the
authority also finds that moving of sand will not adversely affect
beach processes, will not diminish the size of a public beach, and
will be necessary to stabilize an eroding shoreline.
(c) Public Interest Standard.
A variance may also be granted,provided that the proposal is the practicable
alternative which best conforms to the purpose of this rule, and upon a
finding that, based upon the record, the proposed structure or activity is
necessary for or ancillary to:
(1) Facilities or improvements by public agencies or public utilities
regulated under Chapter 269, HRS,
(2) Private facilities or improvements that are clearly in the public
interest.
(d) Hardship Standard.
(A) A variance may also be granted, provided that the proposal is the
practicable alternative which best conforms to the purpose of this
8-9
rule, and upon a finding that, based upon the record, the proposed
structure or activity is necessary for or ancillary to:
(1) Private facilities or improvements that will not adversely
affect beach processes, result in flanking shoreline erosion, or
artificially fix the shoreline, provided that the Commission may
consider any hardship that will result to the applicant if the facilities
or improvements are not allowed within the shoreline area,
(2) Private facilities or improvements that may artificially fix
the shoreline, provided that the Commission may consider hardship
to the applicant if the facilities or improvements are not allowed
within the shoreline area, provided further that a variance to
artificially fix the shoreline shall not be granted in areas with
beaches or where artifcially fixing the shoreline may interfere with
existing recreational and waterline activities unless the granting of
the variance is clearly demonstrated to be in the interest of the
general public.
(B) A structure or activity may be granted a variance upon grounds of
hardship only if:
(i) The applicant would be deprived of reasonable use
of the land if required to comply fully with this rule,
and
(ii) The request is due to unique circumstances and does
not draw into question the reasonableness of this
rule, and
(iii) The request is the practicable alternative which best
conforms to the purpose of this rule.
(C) Before granting a hardship variance, the Commission must
determine that the request is a reasonable use of the land. The
determination of the reasonableness of the use of land shall consider
factors such as shoreline conditions, erosion, surf and flood
condition, and the geography of the lot as it relates to health and
safety.
(D) If a structure is proposed to artificially fix the shoreline, the
Commission must also determine that shoreline erosion is likely to
cause hardship if the structure is not allowed within the shoreline
setback area.
(E) Hardship shall not be determined as a result of zoning amendments,
8-10
planned unit development(PUD)permits, cluster plan development
(CPD) permits, or subdivision approvals after June 16, 1989.
[(O]Le)No variance shall be granted unless appropriate conditions are imposed as
applicable:
(1) To comply with Chapters 10 and 27 of the Hawaii County Code
relating to Erosion and Sedimentation Control and Flood Control,
respectively;
(2) To maintain safe lateral access along the shoreline or adequately
substitute for its loss;
(3) To minimize risk of adverse impacts on beach processes;
(4) To minimize risk of structures failing and becoming loose rocks,_
sharp or otherwise dangerous debris, or rubble on public property;
and
(5) To minimize adverse impacts on public views to, from, and along
the shoreline.
8-12 Amendments to a Variance
(a) The applicant may apply to the Commission through the Department for an
amendment to the variance.
(b) In the case of additions, modifications, and/or deletions to the variance or
conditions, the applicant shall submit the written request, which includes:
(1) The affected section of the variance or condition;
(2) The specific amendment requested;
(3) The reasons for the request; and
(4) Any other information required by the Commission.
(c) In the case of time extensions, the applicant shall file the request not less
than ninety days prior to the expiration date of the time conditions, setting
forth:
(1) The affected condition;
(2) The length of time requested;
8-11
(3) The reasons for the request; and
(4) Any other information required by the Commission.
(d) Upon submitting a request as set forth in Section 8-12(b) or (c), with the
exception of administrative time extensions, the applicant shall also file a
two hundred fifty $250 dollar processing fee.
(e) The hearing and notice procedures and action shall be the same as under
Sections 8-5, 8-8, and 8-9.
8-13 Administration and Enforcement
The Department is responsible for the processing of all variance applications and is
also responsible for the enforcement of all conditions and requirements associated
with a variance issued in accordance with this rule.
8-14 Appeals
(a) Any decision of the Commission so made within the context of this article
shall be appealable to the Third Circuit Court. The notice of appeal shall be
filed in the Third Circuit Court within thirty (30) days after the person
desiring to appeal is notified of the decision or order, or of the action taken
in a manner provided by statute.
(b) If a contested case hearing is held a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
8-15 Revocation
(a) A Shoreline Setback Variance may be revoked by the Director in the event
that any property owner who holds the variance sought to be revoked or any
other person,with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the variance
issued has either not been established or has been abandoned.
(b) A Shoreline Setback Variance may be revoked by the Commission in the
event that:
(1) The Director requests the revocation if:
(A) There has been noncompliance with the conditions of the
variance; or
(B) The use authorized under the variance is creating a threat to
the health or safety of the community.
8-12
(2) The proceeding to revoke a Shoreline Setback Variance, upon
request of the Director, shall require written notice to the property
owner and to the person who has been issued the variance prior to
the Commission taking action to revoke the variance.
8-13
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority
Pursuant to authority conferred by Chapter 205A,Hawaii Revised Statutes HRS
the rule hereinafter contained is hereby established and shall apply to all lands
within the Special Management Area of the County of Hawaii.
9-2 Purpose
It is the State policy to preserve, protect, and where possible, to restore the natural
resources of the coastal zone of Hawaii. Therefore, special controls on
development within the area along the shoreline are necessary to avoid permanent
loss of valuable resources and the foreclosure of management options, and to insure
that adequate public access is provided to public-owned or used beaches,recreation
areas, and natural reserves, by dedication or other means.
9-3 Title
This rule shall be known as the "Special Management Area Rule of the County of
Hawai`i."
9-4 Definitions
For the purpose of this rule, unless it is plainly evident from the content that a
different meaning is intended, certain words and phrases used herein are defined as
follows:
Ca) "Artificial light" or"artificial lighting" means the light emanating from any
fixed human-made device.
[(a)](b)"Assessment" means an evaluation by the Department of a proposed use,
activity, or operation to determine whether a Special Management Area Use
Permit is required.
(c) "Authority" means the county planning commission. The authority may, as
appropriate, delegate the responsibility for administering this rule, as stated
in this rule.
[(b) "Publie Wa-ks D -eetarmeanS the reeter� Depa mefit of
(d) "Beach"means a coastal landform primarily composed of sand from eroded
rock, coral, or shell material, or any combination thereof, that is established
and shaped by wave action and tidal processes. "Beach" includes sand
deposits in nearshore submerged areas, or sand dunes or upland beach
9-1 Planning Dept.
Exhibit 3
deposits landward of the shoreline, that provide benefits for public use and
recreation, for coastal ecosystems, and as a natural buffer against coastal
hazards.
(e) "Coastal hazards" means any tsunami, hurricane, wind,wave, storm surges,
high tide,flooding, erosion, sea level rise, subsidence, or point and nonpoint
source pollution.
[(O]ff "Crops" means agricultural produce or part(s) of plants or trees cultivated for
commercial or personal use including but not limited to the raising of livestock.
[(d)]_u "Cultural" pertains to traditional and customary practices and usage of
resources to fulfill responsibilities and rights possessed and exercised by
ahupua`a tenants who are descendants of Native Hawaiians who inhabited the
Hawaiian Islands prior to 1778.
"Department" means the planning department of Hawaii County.
[{e}]Q "Development" means any of the following uses, activities, or operations on land
or in or under water within the Special Management Area:
(1) "Development" includes the following:
(A) Placement or erection of any solid material or any gaseous,
liquid, solid, or thermal waste;
(B) Grading, removing, dredging, mining, or extraction of any
materials;
(C) Change in the density or intensity of use of land, including
but not limited to the division or subdivision of land;
(D) Change in the intensity of use of water, ecology related
thereto, or of access thereto; and
(E) Construction, reconstruction, [dem n,] or alteration of
the size of any structure.
(2) "Development" does not include the following uses, activities or
operations:
(A) Construction or reconstruction of a single-family residence
that is less than seven thousand five hundred (7,500) square
feet of floor area, is not situated on a shoreline parcel or a
parcel that is impacted by waves, storm surges, high tide, or
9-2
shoreline erosion, and is not part of a larger development.
Floor area shall be the total area of all floors of a building(s)
associated with the single-family residence, including a
basement and accessory structures, measured along the
exterior walls of such building(s). The floor area of a
building(s), or portion thereof, not provided with
surrounding exterior walls shall be the usable area under the
horizontal projection of the roof or floor above;
(B) Repair or maintenance of roads and highways within
existing rights-of-way;
(C) Routine maintenance dredging of existing streams, channels,
and drainage ways;
(D) Repair and maintenance of utility lines, including but not
limited to water, sewer, power, and telephone and minor
appurtenant structures such as pad mounted transformers
and sewer pump stations;
(E) Zoning variances, except for height, density, parking, and
shoreline setback;
(F) Repair, maintenance, or interior alterations to existing
structures or relating to existing uses;
(G) Demolition or removal of structures, except those structures
located on any historic site as designated in national or state
registers or those listed in the Historic Sites Element of the
General Plan;
(H) Use of any land for the purpose of cultivating, planting,
growing, and harvesting plants, crops, trees, and other
agricultural, horticultural, or forestry products or animal
husbandry, or aquaculture or mariculture of plants or
animals, or other agricultural purposes;
(I) Transfer of title of land;
(J) Creation or termination of easements, covenants, or other
rights in structures or land;
(K) Subdivision of land into lots greater than twenty acres in
size;
(L) The amendment of the General Plan, State Land Use
9-3
Boundary amendments and changes of zone;
(M) Subdivision of a parcel of land into four or fewer parcels
when no associated construction activities are proposed,
provided that any such land which is so subdivided shall not
thereafter qualify for this exception with respect to any
subsequent subdivision of any of the resulting parcels;
(N) Installation of underground utility lines and appurtenant
aboveground fixtures less than four feet in height along
existing corridors;
(0) Structural and non-structural improvements to existing
single-family residences, where otherwise permissible;
[ ]
(P) Non-structural improvements to existing commercial or
non-commercial structures;
(Q) Construction, installation, maintenance, repair, and
replacement of civil defense warning or signal devices and
sirens[-]; and
(R) Plan, design, construct, operate, and maintain any lands or
facilities under the jurisdiction of the Division of Boating
and Ocean Recreation of the State Department of Land and
Natural Resources.
(3) Any proposed use, activity, or operation listed in Section [3-
4(e)(2)]94 i 2 shall be deemed to be "Development" until the
Director has determined it to be exempted from the definition of
"development."
(4) Whenever the Director finds that any excluded use, activity, or
operation may have a cumulative impact, or a significant adverse
environmental or ecological effect on the Special Management
Area, that use, activity, or operation shall be defined as
"development" for the purpose of this rule.
"Direct illuminate" means to illuminate through the use of a glowing
element, lamp, globe, or reflector of an artificial light source.
[{#)] "EIS" means an informational document prepared in compliance with
Chapter 343, HRS, and the Hawaii Administrative Rules, Title II, Chapter
200.1 (Environmental Impact Statement Rules). An EIS discloses the
environmental effects of a proposed action, effects of a proposed action on
9-4
the economic welfare, social welfare, and cultural practices of the
community and State, effects of economic activities arising out of the
proposed action, measures proposed to minimize adverse effects and
alternatives to the action and their environmental effects.
[{g&D "Estuary" means that part of a river or stream or other body of water having
unimpaired connection with the open sea, where the seawater is measurably
diluted with fresh water derived from land drainage.
[(h)]Lm) "Native Hawaiian Rights" means those rights defined in and protected
under HRS 1-1, HRS 7-1, HRS 174C-101, Article XII, Section 7 of the
Hawaii State Constitution, and in rulings of Hawaii case law."
Ln) "Ocean waters" means all waters seaward of the shoreline within the
jurisdiction of the State.
[(�)]Lo) "Owner" means all equitable and legal holders or lessees of real property.
Lessees shall present certification of approval from the legal owner.
[�j}] "Person" means and includes any individual, organization, partnership, or
corporation, including any utility and any agency of government.
[{k] "Petitioner" means and includes any person who seeks permission or
authorization which the Commission may grant under this rule.
(r) "Public Works Director" means Director of the Department of Public
Works of the County of Hawaii.
[{4}]U "Shoreline"means the upper reaches of the wash of waves, other than storm
and seismic waves, at high tide during the season of the year in which
the highest wash of the waves occurs, usually evidenced by the edge of
vegetation growth, or the upper limit of debris left by the wash of the waves.
[{fn}]W "Shoreline Survey" means the actual field location of the shoreline in
accordance with the definition herein along with the existing property lines
which shall be located and platted by instrument surveys and the property
corners or appropriate references thereof along the shoreline be marked on
the ground by a registered land surveyor in the State of Hawaii. Such
survey maps developed by the registered land surveyor shall bear the
surveyor's signature and date of field survey and the confirming signature
of the Chairman of the Board of Land and Natural Resources.
[(-n)]Lu) "Single-Family Residence" means a detached building designed for and/or
used as the complete facility for cooking, sleeping and living area of a single
family only and occupied by no more than one family. Single family
residences may include uses or structures normally considered accessory to
9-5
the single family facilities provided that any such uses or structures are
situated on the same lot or building site and are in compliance with all
requirements of any county or state regulation, statute, or ordinance. A
single family shall include all persons living in a dwelling related by blood,
marriage or by adoption or a group comprised of not more than five persons
not related by blood, marriage or by adoption.
[{a�] "Special Management Area" means the land extending inland from the
shoreline as delineated on the maps filed with the Commission as of June 8,
1977, or as amended pursuant to Section 9-21.
[{p�] "Special Management Area Emergency Permit" means an action by the
Director authorizing development in cases of emergency requiring
immediate action to prevent substantial harm to persons or property or to
allow the reconstruction of structures damaged by natural hazards to their
original form, provided that [stte#]those structures were previously found
to be in compliance with requirements of the []National Flood
Insurance Program.
[{ ] "Special Management Area Minor Permit" means an action by the Director
authorizing development, the valuation of which is not in excess of
$500,000 and which has no cumulative impact, or a substantial adverse
environmental or ecological effect on the Special Management Area.
[{ }] "Special Management Area Use Permit" means an action by the
Commission authorizing development, the valuation of which exceeds
$500,000 or which may have a cumulative impact, or a substantial adverse
environmental or ecological effect on the Special Management Area.
[{�}] "Structure" means and includes, but is not limited to, any building, road,
pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power
transmission and distribution line.
[{ }] as "Use"means any purpose for which a structure or a tract of land is designed,
arranged, intended, maintained or occupied or any activity, occupation,
business, or operation carried on or intended to be carried on in any structure
or on a tract of land.
[(u] bib) "Valuation" shall be determined by the Director and means the estimated
cost to replace the structure, in kind, based on current replacement costs, or
in the case of other developments, as defined in [9-4(e)(1) 94(i)(1), the
fair market value of the development.
[{-,�)] cc "Vegetation Growth" means any plant,tree, shrub, grass, or groups, clusters
or patches of the same, naturally rooted and growing.
9-6
[{"} "AFfifieiallighf' or"ai4ifieial lighting" nears the light emanating ftom any
element, lamp, globe, er�efleeter�eial light
{ "Oeean waters" fneans all waters seaward f the shor-eli e within the
]
9-5 Special Management Area
Special Management Area of the County shall be as delineated on such maps filed
with the Authority as of June 8, 1977, or as may be amended pursuant to Section
9-21, and shall be the official Special Management Area to be administered and
enforced under this rule.
9-6 Objectives and Policies of Chapter 205A, HRS
(a) The objectives and policies of the coastal zone management program shall
be those set forth in Section 205A-2, HRS, as amended.
(b) The Commission shall implement these objectives and policies, as
appropriate.
9-7 Special Management Area Guidelines
The Special Management Area guidelines set forth in Section 205A-26, HRS, as
amended, shall be used by the Commission, as appropriate, for the review of
developments proposed in the Special Management Area.
9-8 Permits Required for Development
(a) No development shall be allowed within the Special Management Area
without obtaining a permit in accordance with this rule.
(b) No State or County Agency authorized to issue permits within the Special
Management Area shall authorize any development unless approval is first
received in accordance with this rule.
(c) Special Management Area Minor,Use or Emergency Permits or exemptions
validly issued by the Department or the Commission, subsequent to any
amendment to Chapter 205A, [Ha^'� Revised Statutea]HRS but
preceding any supportive amendment to this rule shall continue to be
considered valid.
9-9 Authority of the Department in the Special Management Area
9-7
All development within the Special Management Area shall be administered
through the Department under this rule pursuant to the objectives and policies and
the Special Management Area guidelines as provided by Chapter 205A, HRS.
To improve the efficiency of the Commission's review, approval and permitting
processes granted upon it by Chapter 205A-22, [14awa Revised Sta es]HRS and
in accordance with Rule 9 herein, the Commission hereby delegates to the Director
the authority to process assessments, determinations and conditions regarding
exemptions, issue and enforce Special Management Area Minor Permits and
Special Management Area Emergency Permits, and to administer, interpret, and
enforce terms, scope and conditions set forth in Special Management Area Use
Permits issued by the Commission.
9-10 Assessment
(a) The Department shall assess all uses, activities or operations proposed in
the Special Management Area except in cases in which the applicant
determines that the proposed use, activity or operation will: a) exceed
$500,000 in valuation; or b) have a cumulative impact, or a significant
adverse environmental or ecological effect on the Special Management
Area. In this case, the assessment procedures may be waived and the
applicant shall petition the Commission for a Special Management Area
Use Permit pursuant to Section 9-11.
(b) For proposed uses, activities or operations that are subject to an assessment,
the applicant shall submit to the Department a Special Management Area
Assessment (SMAA) on a form prepared by the Department. The review
and acceptance of the assessment application shall follow the procedures
pursuant to Section 25-2-3 (Review and acceptance of applications) in
Chapter 25, Hawai`i County Code 1983 (2016 Edition, as amended). The
information on the SMAA form shall include, but not be limited to, the
following:
(1) The tax map number for the property.
(2) A plot plan of the property, drawn to scale, with all proposed and
existing structures shown thereon and any other information
necessary to a proper determination relative to the specific request.
(3) A written description of the proposed project and a statement of
obj ectives.
(4) An Environmental Assessment (EA) or Environmental Impact
Statement (EIS) if required under Chapter 343, HRS, or when
required by the Director.
9-8
(5) A written description of the anticipated impacts of the proposed
uses, activities or operations on the Special Management Area
including but not limited to:
(A) Description of environmental setting;
(B) The relationship of the proposed action to land use plans,
policies, and control of the affected area;
(C) The probable impact of the proposed action on the
environment;
(D) Any probable adverse environmental effects which cannot
be avoided;
(E) Alternatives to the proposed action;
(F) Mitigating measures proposed to minimize impact; and
(G) Any irreversible and irretrievable commitment of resources.
(6) A written description of the anticipated impacts of the proposed
development on valued cultural, historical or natural resources on or
in the vicinity of the property, to include:
(A) The identity and scope of valued cultural, historical, or
natural resources in the area, including the extent to which
traditional and customary native Hawaiian rights are
exercised in the area;
(B) The extent to which those resources, including traditional
and customary native Hawaiian rights, will be affected or
impaired by the proposed action; and
(C) The feasible action, if any, to be taken to reasonably protect
any valued cultural, historical or natural resources, including
any existing traditional and customary native Hawaiian
rights.
(7) A written statement discussing the proposed use, activity or
operation in relation to the objectives and policies as provided by
Chapter 205A, HRS.
(8) A statement of the valuation of the proposed use, activity or
operation.
9-9
(9) A current certified shoreline survey when the parcel abuts the
shoreline, except that the Director may waive the submission of the
survey when the proposed development is clearly and unmistakably
located on a shoreline parcel at a considerable distance from the
shoreline.
(10) Identification and detailed information of existing public access to
and along the shoreline and whether the access is being used.
(11) Any other plans or information required by the Director. An EIS that
has been declared adequate under the National Environmental
Policy Act (NEPA) or under Chapter 343, HRS, may constitute a
valid filing under this section.
(12) A fifty dollar($50)filing fee.
(c) The Director shall assess the proposed use, activity or operation upon the
applicant's compliance with Section 9-1013 based on the following criteria:
(1) The valuation of the proposed use, activity or operation.
(2) The potential effects and significance of each specific circumstance
of the use, activity or operation, according to the criteria of
[substantial]significant adverse effect established by Section 9-1 OR
(d) The Director, within sixty calendar days after the receipt of all filing
requirements or within a longer period as may be agreed to by the applicant,
shall notify the applicant in writing that:
The proposed use, activity or operation does not constitute a development
or is exempt from the definition of development; or
A Special Management Area Minor Permit is being issued; or
A Special Management Area (Major)Use Permit is required.
If the proposed use, activity, or operation is less than $500,000 in value and
the Director fails to act within the sixty calendar day period or within such
longer period as may have been agreed to by the applicant, the proposed
use, activity or operation shall be forwarded to the Commission for its
consideration. The notice and hearing procedures and action shall be the
same as under Section 9-11(c)through 9-11(f).
(e) Where it is found that the proposed use, activity or operation is not in excess
of $500,000 in valuation; and will not have a cumulative impact, or a
9-10
[substantial]significant adverse effect on the Special Management Area,
and after review by the Public Works Director for compliance with Chapter
27, Flood Control, of the Hawaii County Code, the Director shall issue a
Special Management Area Minor Permit.
(1) The issuance of such minor permit shall be subject to any reasonable
terms or conditions.
(2) A copy of the Special Management Area Minor Permit issued shall
be filed with the Commission and the Office of Planning of the State
Department of Business, Economic Development and Tourism.
(f) The Director shall declare that a Special Management Area Use Permit is
required if it is found that the proposed use, activity or operation has a
valuation in excess of $500,000 or may have a [substantial]significant
adverse effect on the Special Management Area. Should a determination be
made that the proposed use, activity or operation requires a Special
Management Area Use Permit, the applicant shall submit such application
in accordance with Section 9-11.
(g) The Director shall declare the proposed use, activity or operation exempt
from the definition of development if it is found that the proposal falls in
any category under Section 94[(e)](h)(2), and does not have a cumulative
impact, or a [substantial]significant adverse environmental or ecological
effect on the Special Management Area. The Director may impose certain
conditions with the exemption determination to assure that the proposed
use, activity, or operation does not have a [substantial]significant adverse
effect on the Special Management Area.
(h) Criteria of[Substantial]Significant Adverse Effect
In considering the significance of potential environmental effects, the
Director shall consider the sum of those effects that adversely affect the
quality of the environment and shall evaluate the overall and cumulative
effects of the action.
A '[substantial]significant adverse effect' is determined by the specific
circumstances of the proposed use, activity or operation. In determining
whether a proposal may have a [substantial]significant adverse effect on the
environment, the Director shall consider every phase of a proposed action
and expected consequences, either primary or secondary, or the cumulative
as well as the short or long-term effect of the proposal. The Director should
bear in mind that in most instances, the following factors of a proposal,
although not limited to same, may constitute a [substantial]significant
adverse effect on the environment when the proposed use, activity or
operation:
9-11
(1) involves an irrevocable commitment to loss or destruction of any
natural or cultural resource, including but not limited to, historic
sites and view planes outlined in the General Plan or other adopted
plans;
(2) curtails the range of beneficial uses of the environment;
(3) conflicts with the long-term environmental policies or goals of the
General Plan or the State Plan;
(4) [substantially]significantly affects the economic or social welfare
and activities of the community, County or State;
(5) involves [substantial]significant secondary impacts, such as
population changes and effects on public facilities;
(6) in itself has no [substantial]significant adverse effect but
cumulatively has considerable adverse effect upon the environment
or involves a commitment for larger actions;
(7) [substantially]significantly affects a rare, threatened, or endangered
species of animal or plant, or its habitat;
(8) detrimentally affects air or water quality or ambient noise levels;
(9) affects an environmentally sensitive area, such as flood plain,
tsunami zone, erosion-prone area, geologically hazardous land,
estuary, fresh water or coastal water; or
(10) is contrary to the objectives and policies of the Coastal Zone
Management Program and the Special Management Area
Guidelines of Chapter 205A, HRS.
(i) SMA Short Form Assessment
The Department may create a SMA short form assessment to be used by the
Department to assess uses that may result in a determination that the
proposed use is exempt, i.e., single family residence, minor grubbing, or
accessory structures. The short form assessment may include, but not be
limited to the following information:
(1) The tax map number for the property;
(2) A plot plan of the property, drawn to scale, with all proposed and
existing structures shown thereon;
9-12
(3) Description of the proposed action, including the extent of land
clearing, if any;
(4) Description of any known historical sites, anchialine ponds,
wetland, or sandy beach, and any other pertinent information.
In case of a single family dwelling, a Building Permit application may
suffice as the plot plan required under(2).
The Director may require a full SMAA if it is determined through the short
form assessment review that further information is needed from the
applicant. The Director may impose certain conditions with the exemption
determination to assure that the proposed use, activity, or operation does not
have a significant adverse effect on the SMA.
9-11 Special Management Area Use Permit Procedures
(a) Compliance with Chapter 343, [14.,., ai' Revised c*4utes]HRS
If the action proposed requires compliance with Chapter 343, [
Revised Statutes]HRS, an environmental assessment or environmental
impact statement shall accompany the filing of a special management area
use permit application. The Department, on behalf of the Commission, shall
be the accepting authority of all environmental assessments and/or
environmental impact statements, if appropriate, which are prepared in
accordance with Chapter 343, [u,,.. a Re.�ised Stat tes]HRS and this rule.
A special management area use permit application shall not be considered
complete until such time as the requirements of Chapter 343, [
Revised Stat tes]HRS and Title 11, Chapter 200.1, Hawaii Administrative
Rules, if applicable, have been complied with.
(b) Application
An applicant who has received a determination that the proposed use,
activity or operation does not conform to the requirements for a minor
permit, or who has determined on its own that the proposed use, activity or
operation will exceed $500,000 in valuation or will have a cumulative
impact, or a significant adverse environmental or ecological effect on the
Special Management Area, shall apply to the Authority through the Director
for a Special Management Area Use Permit.
The applicant shall submit the following to the Director:
(1) The completed application including the following:
9-13
(A) A tax map key description of the property;
(B) A plot plan of the property, drawn to scale, with all existing
and proposed structures shown thereon and any other
information necessary to make a proper determination of the
impacts relative to the specific request;
(C) A written description of the proposed project and statement
of the objectives;
(D) An EA or EIS if required under Chapter 343, HRS, or when
required by the Director;
(E) A written description of the anticipated impacts of the
proposed development on the Special Management Area,
including but not limited to:
(i) Description of environmental setting;
(ii) The relationship of the proposed action to land use
plans, policies, and control of the affected area;
(iii) The probable impact of the proposed action on the
environment;
(iv) Any probable adverse environmental effects which
cannot be avoided;
(v) Alternatives to the proposed action;
(vi) Mitigating measures proposed to minimize impact;
and
(vii) Any irreversible and irretrievable commitment of
resources.
(F) A written description of the anticipated impacts of the
proposed development on valued cultural, historical or
natural resources on or in the vicinity of the property, to
include:
(i) The identity and scope of valued cultural, historical
or natural resources in the petition area,including the
extent to which traditional and customary native
Hawaiian rights are exercised in the petition area;
9-14
(ii) The extent to which those resources, including
traditional and customary native Hawaiian rights,
will be affected or impaired by the proposed action;
and
(iii) The feasible action, if any, to be taken by the
Authority to reasonably protect any valued cultural,
historical or natural resources,including any existing
traditional and customary native Hawaiian rights.
(G) A written statement discussing the proposed development in
relationship to the objectives and policies as provided by
Chapter 205A, HRS;
(H) A statement of the valuation of the proposed use, activity or
operation;
(I) A current certified shoreline survey when the parcel abuts
the shoreline, except that the Director may waive the
submission of the survey when the proposed development is
clearly and unmistakably located on a shoreline parcel at a
considerable distance from the shoreline;
Q) Identification and detailed information of existing public
access to and along the shoreline and whether the access is
being used; and
(K) Any other plans or information required by the Director.
(2) In the case of an applicant whose proposed development has been
assessed, any information as to the areas of critical concern
delineated by the Director.
(3) In the case where a multi-unit residential structure, containing more
than ten units is proposed, the Director may require the applicant to
submit a scale model or three-dimensional rendering of the proposed
development and related improvements.
(4) Archaeological Resources (one of the following):
(A) An archaeological inventory report or assesslent prepar�
by a licensed archaeologist containing significance
assessments, effect determinations, and proposed mitigation
commitments. The report should be completed pursuant to
Department of Land and Natural Resources — State Historic
Preservation Division (DLNR-SHPD) rules.
9-15
(B) A prior "no-effect" letter from the DLNR-SHPD for the
subject property.
(C) [Asepy- Of lette. ...rtt— by the applieantte the D ,.
Teq„esti a "ne e€feet" letter�eludi
doetimentation, to whieh Db-m. v curer, has not
after- 3 0 d ] A letter and location map for the Planning
Department to submit to DLNR-SHPD claiming no
significant historic sites are likely to be present. The letter
must present supportive evidence documenting the proposed
land altering activities(including the affected area and depth
of disturbance) and documenting the likely nature and depth
of historic properties that may have once existed in the area.
(5) Five hundred $500 dollars filing fee to cover publication and other
administration costs.
[(�)]06 Prior to the acceptance of any application, all real property taxes and
other fees relating to the subject parcel or parcels shall be paid and
there shall be no outstanding delinquencies, except in cases of
bankruptcy or similar matters as authorized by the County Director
of Finance.
(c) Posting of Signs for Public Notification
(1) Within ten days of being notified of the acceptance of an application,
the applicant shall post a sign on the subject property notifying the
public of the following:
(A) The nature of the application;
(B) The proposed use of the property;
(C) The size of the property;
(D) The tax map key(s) of the property;
(E) That the public may contact the Department for additional
information; and
(F) The address and telephone number of the Department.
(2) The sign shall remain posted until the application has been granted,
denied, or withdrawn. The applicant shall remove the sign promptly
after such action.
9-16
(3) Notwithstanding any other provisions of law, the sign shall be not
less than nine square feet and not more than twelve square feet in
area, with letters not less than one inch high. No pictures, drawings,
or promotional materials shall be permitted on the sign. The sign
shall be posted at or near the property boundary adjacent to a public
road bordering the property and shall be readable from said public
road. If more than one public road borders the property,the applicant
shall post the sign to be visible from the more heavily traveled public
road. The sign shall, in all other respects, be in compliance with
Chapter 3 (Signs) Hawaii County Code 1983 (2016 Edition, as
amended).
(4) The applicant shall file an affidavit with the Department not more
than five days after posting the sign stating that a sign has been
posted in compliance with this section, and that the applicant and its
agents will not remove the sign until the application has been
granted, denied, or withdrawn. A photograph of the sign in place
shall accompany the affidavit.
(d) Hearings
Upon acceptance of an SMA Use Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The public
hearing shall commence no later than ninety days after the acceptance of an
SMA Use Permit application by the Director, or within a longer time period
as agreed to by the applicant.
Promptly after the Commission fixing a date for the hearing, the applicant
shall mail a notice of the hearing setting forth the time, date, and place of
the hearing to the owners of properties, lessees, and others with a recorded
possessory interest in property within three hundred feet of the perimeter
boundary of the affected property and to any other person or agency that
has made a written request to the Department for advance notice of the
hearing, not less than twenty calendar days prior to the date set for the
hearing. Prior to the date of the hearing, the applicant shall file with the
Commission, through the Director, an affidavit or other similar proof of
mailing of said notice. In addition to said notice and at least twenty calendar
days prior to the date of the hearing, the Commission shall give public
notice of the time, date, and place of the hearing at least [ene=. statewi =
fti+d] once in the County. Any failure to mail or to receive the public notice
shall not invalidate the proceedings, provided further that the proceedings
conform to the requirements of Chapter 91, HRS, as amended. These
aforementioned notice requirements are not required for subsequent hearing
dates upon the same application.
9-17
At the hearing, all interested persons shall be afforded an opportunity to be
heard. The proceedings shall comply with the requirements of Chapter 91,
HRS, as amended, and Commission Rule 4 relating to Contested Case
Procedures, where applicable.
Any such hearing shall,whenever possible,be held jointly and concurrently
with other applicable hearings for the proposed development.
The applicant shall submit an additional two hundred fifty $250 dollars
processing fee for each hearing continued at the request of the applicant.
The applicant shall also notify all owners of properties, lessees, and other
recorded possessory interests in the property within three hundred feet of
the perimeter boundary of the affected property of the continued hearing.
(e) Grounds for Approval of Special Management Area Use Permits:
The Commission may permit the proposed development only upon finding
that:
(1) The development will not have any [substantial]significant adverse
environmental or ecological effect except as [seeh]anny adverse
effect is minimized to the extent practicable and is clearly
outweighed by public health, safety, or compelling public interest[;]_
Those adverse effects shall include, but not be limited to, the
potential cumulative impact of individual developments, each of
which taken by itself might not have a significant adverse effect, and
the elimination of planning options,
(2) The development is consistent with the objectives and policies and
the Special Management Area guidelines as provided by Chapter
205A, HRS;
(3) The development is consistent with the [Genefal]general [Wan]plan,
community plan, [Zening]zoning [C—le]code and other applicable
ordinances, provided that a finding of consistency shall not preclude
concurrent processing where a general plan, community plan, or
zoning amendment may also be required.
(4) The development will, to the extent feasible, reasonably protect
native Hawaiian rights if they are found to exist, including specific
factual findings regarding:
(A) The identity and scope of valued cultural, historical or
natural resources in the petition area, including the extent to
which traditional and customary native Hawaiian rights are
exercised in the petition area;
9-18
(B) The extent to which those resources, including traditional
and customary native Hawaiian rights, will be affected or
impaired by the proposed action; and
(C) The feasible action, if any, to be taken by the Authority to
reasonably protect any valued cultural, historical or natural
resources, including any existing traditional and customary
native Hawaiian rights.
Any development permitted shall be subject to reasonable terms and
conditions set by the Authority in accordance with the Special Management
Area guidelines as contained in Section 9-7.
(f) Decision and Order
(1) Within sixty days following the close of the public hearing(s), or a
longer time period as agreed to by the applicant, the commission
shall either deny or approve the application. The decision, whether
to grant or to deny the application, shall require a majority vote of
the total membership of the Commission. In the event the
Commission fails to render a decision to approve or deny within the
prescribed time limit, the request shall be considered denied.
The applicant may request the Commission to defer action on the
application. A majority vote of the total membership of the
Commission is required if applicant requests to defer action on the
application. In the event the Commission fails to render a decision
to defer action within the prescribed time limit, the request shall be
considered denied.
(2) Notice of Decision: Notice of the decision shall be promptly given
to the applicant by delivery thereof or by mailing or electronically
mailing the notice to the applicant's last known address.
(3) Reconsideration: In the event an application is denied due to the
Commission's failure to render a decision within the period
prescribed by [p g h ]Section 9-11(fl(1) above, the
applicant may, within ten calendar days after receipt of notice of the
denial, request reconsideration of that decision. Upon such request,
the Department shall place the application on the agenda of
Commission for its reconsideration at the next meeting. In the event
the Commission fails to render a decision by a majority vote of its
total membership at the next meeting, the application shall be
considered as denied.
9-19
(4) Refiling: Whenever an application for a Special Management Area
Use Permit has been denied, no new application for the same or
similar development, covering all or any portion of the property
involved in the application, shall be accepted by the Commission
through the Director for a period of two years from the effective date
of the denial of the application; provided, however, that upon
showing of a substantial change of circumstances the Commission
may permit the filing of a new application prior to the expiration of
such a two-year period.
(5) Appeals:
(A) Any decision of the Commission so made within the context
of this article shall be appealable to the Third Circuit Court.
The notice of appeal shall be filed in the Third Circuit Court
within thirty (30) days after the person desiring to appeal is
notified of the decision or order, or of the action taken in a
manner provided by statute.
(B) If a contested case hearing is held, a different appeal option
is available. Refer to Planning Commission Rule 4-32 for
appeal procedures.
(g) Amendments to a Special Management Area Use Permit or Conditions
(1) Application: The applicant may apply to the Commission through
the Director for an amendment to the permit or condition(s)imposed
by the Special Management Area Use Permit.
In the case of time extensions,the applicant shall set forth in writing:
(a) the length of time requested; and (b) the reasons for the time
extension.
In the case of additions, modifications, and/or deletions of
conditions,the applicant shall file the request not less than sixty days
prior to the expiration date of the time conditions, setting forth: (a)
the condition to be amended; and (b)the reasons thereof.
The applicant shall also deposit with the Department the sum of two
hundred fifty $250 dollars to cover publication and other
administrative costs, along with the request.
(2) Notice and Hearing: The hearing and notice procedures shall be the
same as under Section 9-11(c) and (d).
(3) Decision and Order: The procedures shall be the same as provided
9-20
for under Section 9-11(f).
9-12 Artificial Light on Shoreline and Ocean Waters
(a) Artificial light from floodlights, uplights, or spotlights used for decorative
or aesthetic purposes is prohibited when the light(1)directly illuminates the
shoreline and ocean waters; or (2) is directed to travel across property
boundaries toward the shoreline and ocean waters.
(b) Section 9-12(a) shall not apply to:
(1) A outdoor lighting fixture that is located on the grounds of a
hotel/hotel-condo, provided that (A) the outdoor lighting fixture is
located underwater or is directed downward and illuminates a
limited area of no more than thirty feet into the shoreline and ocean
waters; or (B) the outdoor lighting fixture is the only practicable
means of ensuring the safety and security of guests, visitors, and
employees; and
(2) Artificial lighting provided by a government agency or its
authorized users for government operations, security, government
agency or its authorized users shall make reasonable efforts to
properly position or shield lights to minimize adverse impacts.
9-13 Prohibitions
(a) No special management area use permit or special management area minor
permit shall be granted for structures that allow artificial light from
floodlights, uplights, or spotlights used for decorative or aesthetic purpose
when the light:
(1) Directly illuminates the shoreline and ocean waters; or
(2) Is directed to travel across property boundaries toward the shoreline
and ocean waters.
(b) Section 9-13(a) shall not apply to special management area use permits for
structures with:
(1) An outdoor lighting fixture that is located on the grounds of a
hotel/hotel-condo; provided that
(A) The outdoor lighting fixture is located underwater or is
directed downward and illuminates a limited area of no more
than thirty feet into the shoreline and ocean waters; or
9-21
(B) The outdoor lighting fixture is the only practicable means of
ensuring the safety and security of guests, visitors, and
employees; and
(2) Artificial lighting provided by a government agency or its
authorized users for government operations, security, public safety,
or navigational needs; provided that a government agency or its
authorized users shall make reasonable efforts to properly position
or shield lights to minimize adverse impacts.
9-14 Special Management Area Emergency Permits
(a) A Special Management Area Emergency Permit may be issued for
emergency repairs to existing public utilities including but not limited to
water, sewer, gas and electric transmission lines and highways, or similar
emergencies which may otherwise not be exempt from the Special
Management Area permit requirements. Upon finding that an emergency
exists and requires immediate action, the Director shall issue a Special
Management Area Emergency Permit subject to reasonable terms and
conditions including an expiration date. Such permits shall be filed with the
Commission in writing.
(b) In cases of imminent substantial harm to public health, safety, or welfare in
the County, including declared states of emergency by the Governor, the
Mayor may waive the requirements of obtaining a permit pursuant to these
Rules and Regulations.
9-15 Exemptions
This rule shall not apply to proposed developments within the Special Management
Area for which final approval, or in the case of subdivisions, for which preliminary
subdivision approval, was issued prior to the adoption of this rule, amendments
thereto, or to the adoption of the Special Management Area Maps. SMA Use Permit
applications filed prior to the adoption of amendments to this rule shall be exempted
from any new procedures.
9-16 Revocation
(a) A Special Management Area Use Permit may be revoked by the
Commission in the event that:
(1) Any property owner who holds the permit sought to be revoked or
at the request of any other person, with the property owner's
consent, submits a written statement to the Commission verifying
that the development approved under the permit issued has either
not been established or has been abandoned.
9-22
(2) The Director submits a request if:
(A) There has been noncompliance with the conditions of the
permit; or
(B) The development authorized under the permit is creating a
threat to the health or safety of the community.
(b) Notice and Hearing: The Director shall provide written notice to the
property owner and/or to the person who has been issued the permit prior to
the Commission taking action to revoke the permit. The Commission shall
conduct a hearing within a period of ninety calendar days from the receipt
of the request by the applicant or Director. At the hearing, all interested
persons shall be afforded an opportunity to be heard. The proceedings shall
comply with the requirements of Chapter 91, HRS, as amended, and
Commission Rule 4 relating to Contested Case Procedures, where
applicable.
(c) Decision and Order: The procedures shall be the same as provided under
Section 9-11(f) of this rule.
(d) A property owner or other person affected by the revocation of a Special
Management Area Use Permit ordered by the Commission, may, within
thirty days after the date of the Commission's written order, appeal the
Commission's action to the Third Circuit Court as provided by Chapter 91
of the [14a-wai'i Revised Stat tes]HRS. An appeal to the Third Circuit Court
shall stay the provisions of the Commission's revocation order pending the
final decision of the Third Circuit Court.
(e) The Department is authorized to adopt rules to establish procedures for
revocation of a Special Management Area Minor Permit.
9-17 Penalties
(a) Any person who violates any provision or this rule shall be liable for (1) a
civil fine not to exceed $100,000; or(2)for the cost of returning the affected
environment or ecology within the Special Management Area to the
condition existing before the violation.
(b) In addition to any other penalties, any person who is violating any provision
of this rule shall be liable for a civil fine not to exceed $10,000 a day for
each day in which such violation persists.
(c) Any civil fine or other penalty provided under this rule may be imposed by
the circuit court or by the Department after an opportunity for a hearing
under Chapter 91, HRS.
9-23
9-18 Complaint and Investigative Procedures
The Department shall adopt rules to establish procedures for investigating
complaints and alleged violations.
9-19 Administrative Fines
The Department is authorized to impose administrative fines in accordance with
established rules.
9-20 Injunction
Any person violating any provision of this rule may be enjoined by the circuit
court of the State by mandatory or restraining order necessary or proper to
effectuate the purposes of this rule in a suit brought by the County.
9-21 Hearing Officer
(a) The Commission may authorize a hearing officer to conduct a hearing for
the purpose of taking testimony and to report his/her findings of facts and
conclusions of law with his/her recommendation to the Authority on
proceedings under the jurisdiction of the Commission as provided by this
rule.
(b) The notice and hearing requirements for hearings conducted by a hearing
officer shall be same as provided under Sections 9-11(c), 9-20 (b), 9-21 (a)
(2), or 9-21 (b)(2), as may be applicable.
[(b)]Lc)Post hearing procedures for hearings conducted by a hearing officer:
(1) Recommendation of hearing officer: Upon completion of taking of
the evidence the hearing officer shall prepare a report setting forth
findings of fact, conclusions of law, and the reasons therefor, and a
recommended order and submit the report of the case to the
Commission.
(2) Contents of the record: The record shall include the petition,
transcripts of the hearing, stipulations, documentary evidence,
proposed findings, or other documents submitted by the persons
involved, objections to conduct of the hearing and the report of the
hearing officer and all other matters placed into evidence.
(3) Within forty-five calendar days after the conclusion of the hearing,
the hearing officer shall complete the report and submit it to the
Commission and to all persons involved in the proceedings.
9-24
[(O]Cd)Exceptions to the Hearing Officer's Report and Recommendation:
(1) Within ten working days after receipt of the report and
recommendation by the hearing officer, a person involved in the
proceedings may submit to the Authority his exceptions to the
report and his reasons in support thereof.
(2) The exception shall:
(A) Set forth specifically the procedure, fact, law or policy to
which exceptions are taken;
(B) Identify the part of the hearing officer's report and
recommended order to which objections are made; and
(C) State specifically the reasons for exceptions to the ruling,
finding, conclusion, or recommendation.
[(,d)]Le)Testimony Before the Commission:
(1) If a person involved in the proceedings desires to testify before the
Authority, a written request with reasons therefor shall accompany
the exceptions and the Commission may grant such request.
(2) The Commission may on its own motion re-open the hearing to
allow the taking of additional testimony and further evidence.
[(O](f Commission Action:
(1) In the event no statement of exception is filed, the Commission
may proceed to reverse, modify or adopt the recommendation of
the hearing officer.
(2) Upon the submittal of exceptions and the taking of further
evidence, if any, Commission shall render its decision pursuant to
Rule 9-11(e).
9-22 Petition for the Adoption, Amendment or Repeal of Rule 9 Special Management
Area Rule of the County of Hawaii
(a) Petition
Any person may petition the Commission through the Director requesting
the adoption, amendment or repeal of any provision of this rule.
9-25
The petitioner shall be responsible for submitting the following to the
Director:
(1) The completed petition including:
(A) A statement of the nature of the petitioner's interest.
(B) A draft of the substance of the proposed rule or amendment
or a designation of the provisions sought to be repealed.
(C) An explicit statement of the reasons in support of the
proposed rule, amendment or repeal. Said reasons shall
include a discussion of the relationship of the proposed
change with Chapter 205A, HRS, Relating to Coastal Zone
Management, and other applicable State and County
Ordinances or regulations including the General Plan.
(2) Five hundred $500 dollars filing fee to cover publication and other
administrative costs.
(b) Notice and Hearing
The notice and hearing procedures shall be the same as stipulated under
Section 9-1 l(c)and d ,provided further that the Commission shall conduct
a public hearing within a period of ninety calendar days from the receipt of
a properly filed petition.
(c) Decision and Order
The procedures shall be the same as under Section 9-11(f).
9-23 Amendment of Special Management Area(SMA)Maps
(a) Amendments initiated by the Director:
(1) Initiation:
(A) The Director may at any time initiate amendments to the
Special Management Area Boundaries.
(B) The Commission, by a two-thirds (2/3) vote of its total
membership, may direct the Director to initiate amendments
to the Special Management Area boundaries.
(C) The Director shall give notice of his intent to amend the
Special Management Area boundaries to the Commission,
9-26
the general public and the State Office of Planning, stating
the initiation date and estimated completion date of review.
The Director, upon completion of his review, shall submit
the proposed amendments to the Commission.
(2) Notice and Hearing:
The notice and hearing procedures shall be the same as stipulated
under Section 9-11(c) of this rule, provided further that the
Commission shall conduct a hearing within a period of sixty
calendar days from the submittal of the proposed amendments by
the Director.
(3) Grounds for Approval of Special Management Area Boundary
Amendments:
The Commission may amend the Special Management Area
boundaries only upon finding that the amendments will further the
objectives and policies as provided by Chapter 205A,HRS, and will
be consistent with the General Plan and other applicable ordinances.
(4) Decision and Order:
The procedures shall be the same as under Section 9-11(f).
(b) Special Management Area Boundary Amendments Initiated by the
General Public:
(1) Application:
Any person may apply to the Commission through the Director
requesting the amendment of the Special Management Area
boundaries.
The applicant shall submit the following to the Department:
(A) The completed application including the following:
(i) A statement of the nature of the applicant's interest.
(ii) A description of the properties involved in sufficient
detail to determine the precise location.
(iii) An explicit statement of the reasons in support of the
request including a discussion of how the
amendment will further the Special Management
9-27
Area objectives and policies as well as be consistent
with the General Plan and other applicable
ordinances.
(iv) A statement discussing the proposed use of the parcel
and any other information necessary to render a
proper decision relating to the specific request.
(B) Five hundred $500 dollars filing fee to cover publication
and other administrative costs.
(2) Notice and Hearing
The notice and hearing procedures shall be the same as stipulated
under Section 9-11(c) and (d).
(3) Grounds for Approval of Special Management Area Boundary
Amendments:
The Grounds for approval of Special Management Area boundary
amendments shall be the same as provided for in Section [3-
2 1(a)(3)] 9-11(e).
(4) Decision and Order:
The procedures shall be the same as provided for in Section 9-11(f).
9-28
PLANNING DEPARTMENT
COUNTY OF HAWAI`I
RULES OF PRACTICE AND PROCEDURE
RULE II. SHORELINE SETBACK
11-1 Authority
Pursuant to the authority conferred upon the Planning Department by §205A[-
43-]Part III, Hawaii Revised Statutes HRS , the rules hereinafter contained are
established and shall apply to lands within the shoreline setback area.
11-2 Purpose
The growing population and expanding development have brought about numerous
cases of encroachment of structures upon the shoreline and within the nearby
shoreline areas. Many of these structures have disturbed the natural shoreline
processes and caused erosion of the shoreline. Concrete masses along the shoreline
are contrary to the policy for the preservation of the natural shoreline and the open
space. Unrestricted removal of sand, coral, rocks, etc., for commercial uses can
only deteriorate the shoreline and remove it from public use and enjoyment.
Moreover, the Hawaiian Islands are subject to tsunamis and high waves which
endanger residential dwellings and other structures which are built too close to the
shoreline. For these reasons, it is in the public interest to establish shoreline
setbacks and to regulate the use and activities within the shoreline setbacks. The
purpose of this rule is to establish authority, criteria and procedures for the
establishment and enforcement of the shoreline setback line and shoreline setback
area and for the review of all activities or structures proposed within the shoreline
setback area in accordance with the requirements of this rule and Chapter 205A-
[43 thpd 44]Part III [Hawai'i Revised Stat tes]HRS.
11-3 Definitions
(a) "Activity"means any landscaping, excavating, grubbing, grading,filling or
stockpiling of earth materials, including sand, coral, coral rubble, rocks,
soil, or marine deposits.
[(b) "Avefage lot depth" eans the fneasufement obtained by adding the enh
of the two sides f a i t whieh are ator-near-right angles with the shoreline
of the makai side of the i t t ., point i the ee to-of the ri, „k side of the
a-yeFage Wt depth, additional lengths ", , be ,it lazed in the-ea4etklation.
(SE wnr --pl F 40]
(b) "Beach"means a coastal landform primarily composed of sand from eroded
rock, coral, or shell material, or any combination thereof, that is established
Planning Depi.
Planning Department Rules of Practice&Procedure Exhibit 4 11-1
and shaped by wave action and tidal processes. "Beach" includes sand
deposits in nearshore submerged areas, or sand dunes or upland beach
deposits landward of the shoreline, that provide benefits for public use and
recreation, for coastal ecosystems, and as a natural buffer against coastal
hazards.
(c) "Buildable area" means the area of a lot excluding the shoreline setback,
required yards, and flag stems (poles).
(d) "Coastal hazards" means any tsunami,hurricane,wind,wave, storm surges,
high tide,flooding, erosion, sea level rise, subsidence, or point and nonpoint
source pollution.
[(-d)]Le)"Lot" means a parcel, tract, or area of land established by subdivision or as
otherwise lawfully established prior to the adoption of the Subdivision
Control Code and accepted by the Planning Department.
[(O] f�' "Minor structure" shall not alter the existing grade of the shoreline setback
area and shall be limited to landscape features(i.e.,benches, chairs,borders,
wooden trellis, bird feeders, signs, safety improvements, etc.); walkways
for access; and sprinkler systems.
[{4)](g)"Minor activity" means an activity that does not alter the existing grade of
the shoreline setback area and may include activities such as landscaping
and minor clearing (grubbing) of vegetation.
[(g)]fh)"Planning Commission" means the planning commission of the County of
Hawai`i.
[{ ]Q "Planning Department" means that agency of the County of Hawaii
consisting of the planning director and the necessary staff.
(i) "Rebuild" means the reconstruction of a lawfully existing structure when
the reconstruction is valued by a licensed professional engineer or architect
at more than fifty percent of the replacement cost of the structure.
(k) "Repair" means the fixing, renovation, improvement, or restoration of any
part of a lawfully existing structure, but not the entire structure, solely for
the purpose of its maintenance and which does not result in an addition to,
or enlargement or expansion of, the lawfully existing structure. "Repair"
includes, but is not limited to alteration of floors, roofs, walls, or the
supporting structure of a building or the rearrangement of any of its
component parts.
[(�)](U "Shoreline" means the upper reaches of the wash of the waves, other than
storm and seismic waves, at high tide during the season of the year in which
Planning Department Rules of Practice&Procedure 11-2
the highest wash of the waves occurs, usually evidenced by the edge of
vegetation growth, or the upper limit of debris left by the vegetation growth,
or the upper limit of debris left by the wash of the waves, which has been
certified by the Board of Land and Natural Resources in accordance with
its rules.
[{4](m) "Shoreline setback area" shall include all of the land area between the
shoreline and the shoreline setback line, provided that if the highest annual
wash of the waves is fixed or significantly affected by a structure that has
not received all permits and approvals required by law or if any part of any
structure in violation of this rule extends seaward of the shoreline, then the
term "shoreline setback area" shall include the entire structure.
[(k-)]Cn) "Shoreline setback line" means that line established by the Planning
Department running inland from and parallel to the certified shoreline at a
horizontal plane.
[(4)]Co) "Structure" includes, but is not limited to, any portion of any building,
pavement, road, pipe, flume, utility line, fence, groin, wall, or revetment.
[(n+)](p) "Vegetation" means any plant, tree, shrub, grass, or groups, clusters or
patches of the same, naturally rooted and growing.
11-4 Shoreline Certification, Exceptions and Waivers
(a) The shoreline is certified by the chairperson of the Board of Land and Natural
Resources pursuant to its adopted [Pyles] Hawaii Administrative Rules (HAR).
No determination of a shoreline shall be valid for a period longer than twelve
months, except where the shoreline is fixed by man-made structures, which have
been approved by appropriate government agencies and for which engineering
drawings exist to locate the interface between the shoreline and structure; in
which case the certified shoreline survey shall be valid so long as the man-made
structure remains intact and unaltered.
(b) For the purpose of establishing the shoreline setback line, the Planning
Department may, in consultation with the Department of Land and Natural
Resources, require the certified shoreline survey to extend a minimum 40
feet laterally beyond the affected property's shoreline frontage in cases
where the inland reaches of an adjacent property's shoreline frontage affect
the determination of the shoreline setback area.
(c) The Planning Department may waive the certification requirement in cases
where there may be special or unusual physical circumstances or conditions
of the land or where a structure or activity is proposed at a considerable
distance inland. Setback lines shall be conservatively, but reasonably
established. The Planning Department may require a survey map of the
subject area depicting physical and geographical conditions to assist in
Planning Department Rules of Practice&Procedure 11-3
making a determination.
11-5 Establishment of Shoreline Setback Lines
[(a) E-�Eeept as atheFwise pr-evided in this seetion, all lots whieh abut the shoreline
shall ha-ve a ffliniffitiffi sliefeline sethaek line ef" f�et (SEE EXAMPLE B).
ieepfiens
(,�!at wv neh was er-eate (final subd ..; ;,, ,! or- legal le�er
r-eear-d as deter-mined by the Planning Depai4fnef4) prior-to the date of
adeptien ef this ftile shall have a ffliniffluffi shefeline sethaek line ef
(a) When the a-,�er-age let depth ef a par-eel is ene htindr-ed feet er-
loss (SEE EXA4 -P E G�,
(b) When the buildable afea ef the pafeel is fedueed te less than
fifes, p t .f the par-eel after- ., ,,1yifi.the feet sL oreline
(SEE EXAMPLE D) ]
(a) The minimum shoreline setback line shall not be less than forty (40)feet inland
from the shoreline.
11-6 Structures and Activities Prohibited within the Shoreline Setback Area
(a) The mining or taking of sand, dead coral or coral rubble,rocks, soil or other
beach or marine de osits from the shoreline setback area
; and
(b) All structures and activities which do not qualify under section 11-7(a)
through (c).
(c) A ARM setback variance may be granted for a structure or activity
otherwise prohibited in this rule if it is necessary and ancillary to the uses
and activities listed in Planning Commission Rule 8 (Shoreline Setback
Variance, Section 8-11.
11-7 Structures or Activities Permitted within the Shoreline Setback Area
(a) The following structures or activities may be permitted within the shoreline
setback area provided written clearance is secured from the Planning
Department:
(1) The mining or taking of sand, dead coral or coral rubble, rocks, scW
or other beach or marine deposits (such as driftwood, shells, beach
glass, Mass floats, or seaweed)from the shoreline setback area, [not
n eC Eeess of one g"lgccllon per-32r-s6npe reasonable, seff l
Planning Department Rules of Practice&Procedure 11-4
(2) The clearing of sand, dead coral or coral rubble, rocks, soil or other
beach or marine deposits from existing drainage pipes and canals
and from the mouths of streams, including clearing for the purposes
under Section 46-11.5, [14aw^'�Revised Statut ]HRS, provided
that the sand removed shall be placed on adjacent areas unless such
placement would result in significant turbidity;
(3) The cleaning of the shoreline setback area for state or county
maintenance purposes, including the clearing for purposes under
Section 46-12, [Ha-wa'�Revise'' Statut ]HRS; provided that the
sand removed shall be placed on adjacent areas unless the placement
would result in significant turbidity;
(4) A minor structure or activity approved in accordance with Section 11-8;
(5) A structure or activity permitted through the issuance of a shoreline
setback variance from the Planning Commission;
(6) Structures which were completed by or activities which commenced
prior to June 22, 1970;
(7) The structure or activity received a building permit, Board of Land
and Natural Resources' approval, Special Management Area Use
Permit/approval and/or a shoreline setback variance prior to June
16, 1989;
(8) Structures and activities necessary for or ancillary to continuation
of existing agriculture or aquaculture activity in the shoreline
setback area prior to June 16, 1989;
(9) Work being done consists of maintenance, repair, [,- *Pde6OI ,]
and minor additions to or alterations of legal, publicly owned
boating, maritime, or water sports recreational facilities, which are
publicly owned, and which result in little or no interference with
natural shoreline processes;
(10) The structure or activity was determined by the Planning
Department to be outside the shoreline setback area when it received
legal approval(s) (i.e., a building permit, Special Management Area
Use Permit or board of land and natural resources approval).
(11) tice- y law or
as permitted by the Planning Department pursuant to article XII,
section 7, of the Hawaii State Constitution.
Planning Department Rules of Practice&Procedure 11-5
(12) For the response to a public emergency or a state or local disaster
when an emergency proclamation has been issued by the Mayor or
Governor-
(b) Structures or activities that qualify under section 11-7 (a)(6) through (10)
may be repaired in conformance with plans approved by the Planning
Department, but shall not be enlarged, rebuilt, or replaced within the
shoreline area without a shoreline setback variance.
(c) Structures or activities that qualify under section 11-7(a)(6) through (10)
may be routinely maintained.
11-8 Determination of Minor Structure and Minor Activity
A minor structure or activity proposed in the shoreline setback area shall not need
a shoreline setback variance if the Planning Department determines that it would
not affect beach processes or artificially fix the shoreline and would not interfere
with public access or public views to and along the shoreline.
(a) A request for a minor structure or activity determination shall be submitted
to the Planning Department and shall be accompanied by applicable
information to assist in the determination, which could include but not be
limited to a certified shoreline survey, construction plans, a list of proposed
plants and their growth at maturation, existing and finished contours,
photographs of the shoreline setback area, an environmental assessment,
written reasons addressing the criteria set forth in Section 11-8 and other
information required by the Planning Department.
(b) Minor structures and activities shall be completed within one year from the
date of the Planning Department's minor structure or activity determination
or from the approval date of the last discretionary permit, whichever is last.
11-9 Shoreline Setback Variance Application
An application for a shoreline setback variance shall be filed with the Planning
Commission in accordance with its rule of practice and procedure. The Planning
Department shall review the variance application and plans of all applicants who
propose any structure, activity, or facility that would be prohibited without a
variance pursuant to this rule. The Planning Department may require that the plans
be supplemented by accurately mapped data and photographs showing natural
conditions and topography relating to all existing and proposed structures and
activities.
11-10 Compliance with Environmental Impact Statement Regulations (Chapter
343, HRS)
An environmental assessment, prepared in accordance with the requirements of
Chapter 343, [ ]HRS and Title 11, Chapter 200.1
Planning Department Rules of Practice&Procedure 11-6
Hawaii Administrative Rules (HAR), shall accompany the filing of a shoreline
setback variance application with the Planning Commission. The Planning
Department shall be the approving agency of all environmental assessments
prepared in accordance with this rule. A shoreline setback variance application
shall not be considered complete until such time the Planning Department has
complied with the requirements of Chapter 343, HRS and Title 11, Chapter 200.1
HAR.
11-11 Waiver of Public Hearing and Action
(a) The Planning Department may waive a public hearing and take action on a
variance application for the following, provided public and private notice,
including reasonable notice to abutting property owners and persons who
have requested this notice, shall be provided:
(1) Stabilization of shoreline erosion by moving sand entirely on public
lands;
(2) Protection of a[
be legally eanstmet2cr=which easts more than Q 000;llegal
structure or public facility, including any facility owned by a public
utility that is regulatedpursuant to Chapter 269, HRS that does not
fix the shoreline, under an emergency authorization issued by the
authority; provided that the structure or public facility is at risk of
immediate [ ger] damage from shoreline erosion as determined
by the Planning Department, in consultation with appropriate
agencies (i.e., U.S. Army Corps of Engineers, Department of Public
Works)[;] and the authorization does not exceed three years.
(3) Maintenance, repair, reconstruction, and minor additions or
alterations of legal boating, maritime, or watersports recreational
facilities, [whieh] that result in little or no interference with natural
shoreline processes.
(b) An applicant who seeks processing under Section 11-11 shall make the
request in writing upon submittal of the variance application.
(c) The Planning Department may deny the public hearing waiver in which
case the variance application shall be heard and noticed by the Planning
Commission in accordance with its rule of practice and procedure.
11-12 Enforcement
(a) The Planning Department shall enforce this rule.
Any s2iLlcture or activity prohibited within the shoreline setback area that
has not received appropriate approvals or a shoreline setback variance or
that has not complied with conditions of said variance shall be removed or
Planning Department Rules of Practice&Procedure 11-7
corrected. No other st
16yarianQiM
(c) Where the shoreline is affected by [a manmade] an artificial structure that has
not been authorized with government agency permits required by law,_and if any
part of the structure is on private property, then for purposes of enforcement of
this rule, the structure shall be construed to be entirely within the shoreline
setback area.
(d) The 7uthority of the board of land and natural resources to determine the
shoreline and enforce rules established under Chapter 183C, HRS shall not be
diminished by an artificial structure in violation of this rule.
11-13 General Enforcement Procedures
(a) Issuance of Notice of Violation and Order.
The landowner and/or the alleged violator shall be notified by the Planning
Department by certified or registered mail or by personal service of any
alleged violation of this rule, any permit issued pursuant thereto, or any
condition of a shoreline setback variance. The Notice of Violation and
Order shall include, but not be limited to, the specific section of the rule
which has been violated; the nature of the violation; and the remedy(ies)
available. The Notice of Violation and Order may also require that the
violative activity cease and desist; that a civil fine be paid not to exceed
$10,000 per violation; and that a civil fine be paid not to exceed $1,000 per
day for each day in which the violation persists.
The Notice of Violation and Order shall advise the person that the Order
shall become final thirty days after the date of its receipt, unless written
request for a negotiated settlement or a hearing before the Board of Appeals
is mailed or delivered to the department within said thirty days.
(b) Negotiated Settlement
If the violator seeks a negotiated settlement with the Planning Department,
but waives the right to a hearing, the Planning Department, in consultation
with the Office of the Corporation Counsel, shall be authorized to enter into
a settlement agreement with the landowner or, if appropriate, the violator,
which will cure the violation, set the fine, and allow for inspection by the
Planning Department.
(c) Right to Hearing
A request for hearing shall be considered timely if a written request is
delivered to the Planning Department within said thirty days. Upon receipt
of a request for a hearing, the Planning Department shall specify a time and
Planning Department Rules of Practice&Procedure 11-8
place for the person subj ect to the order to appear and be heard. The hearing
shall be conducted by the Board of Appeals in accordance with the
provisions of Chapter 91, [14.,., ai' Revised St4ut ]HRS and its rules of
practice and procedure.
(d) Judicial Enforcement of Order
The Planning Department, in consultation with the Office of the
Corporation Counsel, may institute a civil action in any court of competent
jurisdiction for the enforcement of any settlement agreement or order issued
pursuant to this section.
Nothing in this section shall prohibit the Planning Department, through the
Office of the Corporation Counsel, from filing an order or motion directly
with the Court in the event that public health and safety may be at risk.
11-14 Penalties
(a) Any person who violates any provision of this rule shall be liable for an
initial civil fine not to exceed $10,000 per violation and a maximum daily
fine of$1,000 until the violation is corrected. A civil fine may be imposed
by the department after an opportunity for a hearing under Chapter 91,
[Hawaii Revised Stat tes]HRS, unless said hearing is otherwise waived.
(b) In specifying the amount of the civil and daily fines,the Planning Department
shall consider the following:
(1) The nature and degree of the violation;
(2) Whether there are multiple violations; and
(3) Whether it is a repeated violation.
(c) A shoreline setback variance application filed with the Planning
Commission sub- sequent to an applicant's having completed the structure
or activity, or having been cited for the activity or construction without
having obtained said variance, shall not stay any order to pay civil fines.
11-15 Appeals
An administrative decision of the Planning Department shall be appealable to the
Board of Appeals in accordance with its rules of practice and procedure.
11-16 Severability
If any portion of this rule, or its application to any person or circumstance, shall be
held unconstitutional or invalid, the remainder of this rule and the application of
such portion to other persons or circumstance shall not be affected thereby.
Planning Department Rules of Practice&Procedure 11-9
Cross-reference:
Rule 8. SHORELINE SETBACK VARIANCE, Planning Commission Rules of Practice&
Procedure
Planning Department Rules of Practice&Procedure 11-10