Laserfiche WebLink
6. Variances Under Chapter 23, Request 3. <br /> Variances Under Chapter 23, Request 3 asked"can a roadway subject to a properly <br /> granted variance from Sections 23-86 and 23-95 of the Hawai`i County Code be in full <br /> compliance with Chapter 23?" Ex. 105-2 at 14. The answer to this Request is Yes. Id. at 22. <br /> HCC § 23-14 prescribes the scope of permissible variances from the requirements of <br /> HCC Chapter 23,providing that: "Variances from the provisions of this chapter may be <br /> granted[.]" (Emphasis added). The reference to "the provisions of this chapter"in HCC § 23-14 <br /> broadly refers to all of HCC Chapter 23; it does not contain exceptions or exclusions for any <br /> provision of HCC Chapter 23, including HCC § 23-86 and HCC § 23-95. <br /> HCC § 23-14 contains only two general limitations or exceptions—it prohibits variances <br /> that "allow the introduction of a use not otherwise permitted within the district" or"primarily <br /> effectuate relief from applicable density limitations." HCC § 23-14. Under the "principle of <br /> expressio unius est exclusio alterius . . . the express inclusion of certain items in a statutory list <br /> implies the exclusion of others and of alternatives." Adams v. CDM Media USA, Inc., 135 <br /> Hawai`i 1, 18, 346 P.3d 70, 87 (2015). Thus, "when the legislature has created certain <br /> exceptions, 'it does not follow that courts have authority to create others.' The `proper <br /> inference' from a list of exceptions to a statute is that the legislature `considered the issue of <br /> exceptions and, in the end, limited the statute to the ones set forth.'" Id. at 18-19, 346 P.3d at 87- <br /> 88. When the County Council enacted HCC § 23-14, it necessarily considered what limitations <br /> or exceptions were to be placed on the Planning Director's authority to grant variances under <br /> HCC Chapter 23. The County Council elected to not create any limitations or exceptions for <br /> specific provisions, including HCC § 23-86 and HCC § 23-95. <br /> Thus, a roadway that has been properly granted a variance under HCC § 23-14, including <br /> a variance from HCC §§ 23-86 and 23-95, can still be in full compliance with HCC Chapter 23 <br /> 4881-6366-3335.6.051730-00058 18 <br />