2024-10-04 Planning Director Pre-Hearing Brief (PL-BOA-2024-000104 & 105)

Home

84. Variance 10-027 does not affect an amendment to the Ordinances. As aptly stated in the Director's Declaratory Order, Neither Ordinance addresses any variance process. In accordance with HCC § 23-14, the Director may approve a variance from the Subdivision Code's requirements. Because such a variance only excuses performance under Chapter 23, Variance 10-027 cannot and does not effect an amendment of an existing ordinance. See Leone v. Cty. of Maui, 128 Hawaii 183, 193-96, 284 P.3d 956, 966-969 (Haw. Ct. App. 2012) (explaining a variance cannot amend a community plan); see also Earley v. Bd. of Adjustment of Cerro Gordo Cty., 955 N.W.2d 812, 817 (Iowa 2021) ("The board cannot amend or set aside the zoning ordinance under the guise of a variance."); Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz. App. 530, 535 (Ariz. Ct.App. 1974)("The Board cannot amend or repeal any zoning ordinance [through a variance] for this power belongs to the City Council."). Furthermore, a Chapter 23-variance cannot and does not: (a) extinguish the authority of the DPW to set standards for or make determinations regarding street construction standards; or (b) usurp Council's authority to accept or reject the dedication of public infrastructure subject to the DPW Director's approval. While the Director has the authority to issue variances from Chapter 23's requirements, those variances provide relief only from Chapter 23's requirements: they do not relieve Petitioner from the Ordinance's conditions. The DPW's Director has the authority to set standards for and make determinations regarding street construction, See HCC § 2-40, and the Council has authority over dedication of public infrastructure, including streets. See HCC§ 2-162.1(b). Id. at 394. This ruling by the Director does not constitute a sua sponte ruling. The Director has broad discretion in responding to a request for a declaratory ruling. 1250 asked about the effect of a properly granted variance on compliance with construction standards and dedication requirements contained in Chapter 23. See HCC§23-86 Requirements for Dedicable Streets and 23-95 Right- of-Way Improvement. The Director's explanation of the interplay between a properly granted variance and the applicability of Chapter 23 includes both brief historical context of the development of this Project and an evaluation of the effect a Chapter 23-variance may have on compliance with the Ordinances' construction and dedication requirements of Project roads. To the extent that this Board may determine that the Director's explanation was unnecessarily broad, this constitutes harmless error because the Director's response remains consistent with prior 19