2024-05-28 PL-BOA-2024-000105 1250 Order Exhibits COMBINED_v1

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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 Hawai`i 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). To the extent that the Ordinances require the dedication of the Makai Haleki`i Extension and the Connector Road to the County, subject to the DPW Director's approval, and said roadways remain privately held, such obligations remain unsatisfied and the Petitioner has not met its obligations under the Ordinances. 12