HomeMy WebLinkAbout2006 Planning Commission Rules
COUNTY OF HAWAII
PLANNING COMMISSION
RULES OF PRACTICE AND PROCEDURE
TABLE OF CONTENTS
(Updated January 2006)
PAGE
RULE 1. GENERAL RULES
1-1 Authority.....................................................................................................................1-1
1-2 Purpose........................................................................................................................1-1
1-3 The Commission.........................................................................................................1-1
1-4 Meetings......................................................................................................................1-1
1-5 Public Records............................................................................................................1-4
1-6 Computation of Time..................................................................................................1-4
RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES
2-1Initiation of Rulemaking Proceedings........................................................................2-1
2-2Notice of Public Hearing............................................................................................2-1
2-3Conduct of Hearing.....................................................................................................2-2
2-4Action .........................................................................................................................2-2
2-5Emergency Rulemaking..............................................................................................2-2
2-6Filing of Rules............................................................................................................2-3
2-7Taking Effect of Rules................................................................................................2-3
2-8Publication of Rules....................................................................................................2-3
RULE 3. DECLARATORY RULINGS
3-1 Petitions for Declaratory Rulings...............................................................................3-1
3-2 Request for Public Hearing.........................................................................................3-1
3-3 Notice of Public Hearing............................................................................................3-1
3-4 Conduct of Hearing.....................................................................................................3-2
3-5 Action .........................................................................................................................3-2
3-6 Status of Orders..........................................................................................................3-2
RULE 4. CONTESTED CASE PROCEDURE
PART 1. General Provisions
4-1 Purpose........................................................................................................................4-1
4-2 Definitions..................................................................................................................4-1
4-3 Conflict with Other Time and Notice Requirements..................................................4-2
4-4 Service of Notices, Documents, and Other Papers.....................................................4-2
4-5 Presiding Officer.........................................................................................................4-2
4-6 Notice of Contested Case Hearing..............................................................................4-2
4-7 Prehearing Procedure....................................................................................................
4-3
4-8 Conference with Presiding Officer.............................................................................4-4
4-9Limiting Testimony....................................................................................................4-4
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4-10Removal from Proceeding..........................................................................................4-5
4-11 Order of Procedure .....................................................................................................4-5
4-12 Questions from Commission......................................................................................4-5
4-13 Cross-Examination .....................................................................................................4-5
4-14 Requests for Subpoenas .............................................................................................4-5
4-15 Consolidation ............................................................................................................4-6
4-16 Substitution of Parties................................................................................................4-6
4-17 Written Requests........................................................................................................4-6
4-18 Evidence .....................................................................................................................4-7
4-19 Briefs ........................................................................................................................4-8
4-20 Oral Arguments .........................................................................................................4-9
4-21 Public Testimony........................................................................................................4-9
4-22 Close of Hearing.........................................................................................................4-9
4-23 Examination of Evidence by Commission.................................................................4-9
4-24 Time Limit for Decision.............................................................................................4-9
4-25 Issuance of Decisions and Orders..............................................................................4-9
4-26 Service of Decisions and Orders...............................................................................4-10
4-27 Reconsideration of Decision and Order....................................................................4-10
4-28 Appeal from the Commission's Decision..................................................................4-10
PART 2. Post Hearing Procedure for Hearings Conducted by Hearing Officer
4-29 Recommendations of Hearing Officer.......................................................................4-10
4-30 Exceptions to Hearing Officer's Report and Recommendations...............................4-10
4-31 Support of Hearing Officer's Report and Recommendations....................................4-11
4-32 Oral Argument before the Commission....................................................................4-11
4-33 Commission Action ..................................................................................................4-11
4-34 Severability ................................................................................................................4-12
APPENDIX A (2 pages).........................................................................................................Att.
RULE 5. GENERAL PLAN AMENDMENTS
5-1 Authority....................................................................................................................5-1
5-2 Scope and Purpose......................................................................................................5-1
5-3 Definition....................................................................................................................5-1
5-4 Amendment Pursuant to Comprehensive Review......................................................5-2
5-5 Interim Amendments..................................................................................................5-3
RULE 6. SPECIAL PERMITS
6-1 Authority....................................................................................................................6-1
6-2 Standing to Submit a Petition for a Special Permit....................................................6-1
6-3 Petition and Content...................................................................................................6-1
6-4 Incomplete Application..............................................................................................6-2
6-4A Posting of Signs for Public Notification.....................................................................6-2
6-5 Public Hearing............................................................................................................6-3
6-6 Grounds for Special Permit........................................................................................6-3
6-7 Action ........................................................................................................................6-4
2
6-8 Amendments of Permit or Conditions........................................................................6-4
6-9Appeals.......................................................................................................................6-5
RULE 7. USE PERMITS
7-1 Authority.....................................................................................................................7-1
7-2 Definitions..................................................................................................................7-1
7-3 Application and Content.............................................................................................7-1
7-4 Incomplete Application...............................................................................................7-2
7-4A Posting of Signs for Public Notification.....................................................................7-2
7-5 Notice .........................................................................................................................7-3
7-6 Criteria for Granting a Use Permit..............................................................................7-4
7-7 Decision......................................................................................................................7-5
7-8 Concurrent Requests...................................................................................................7-5
7-9 Appeal .........................................................................................................................7-5
7-10 Revocation..................................................................................................................7-5
7-11 Contested Case............................................................................................................7-6
7-12 Severability.................................................................................................................7-6
RULE 8. SHORELINE SETBACK
8-1 Authority.....................................................................................................................8-1
8-2 Purpose........................................................................................................................8-1
8-3 Definitions..................................................................................................................8-1
8-4 Variance Application and Content..............................................................................8-2
8-4A Posting of Signs for Public Notification.....................................................................8-4
8-5 Incomplete Application...............................................................................................8-5
8-6 Compliance with Chapter 343, Hawaii Revised Statutes...........................................8-5
8-7 Public Hearing............................................................................................................8-5
8-8 Decision......................................................................................................................8-6
8-9 Waiver of Public Hearing and Action.........................................................................8-6
8-10 Criteria for Approval of a Variance............................................................................8-7
8-11 Amendments to a Variance.........................................................................................8-9
8-12 Administration and Enforcement...............................................................................8-10
8-13 Appeals......................................................................................................................8-10
8-14Severability................................................................................................................8-10
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority.....................................................................................................................9-1
9-2 Purpose........................................................................................................................9-1
9-3 Title .........................................................................................................................9-1
9-4 Definitions..................................................................................................................9-1
9-5 Special Management Area..........................................................................................9-5
9-6 Objectives and Policies of Chapter 205A, HRS.........................................................9-5
9-7 Special Management Area Guidelines........................................................................9-5
9-8 Permits Required for Development............................................................................9-6
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9-9 Authority of the Department in the Special Management Area.................................9-6
9-10 Assessment.................................................................................................................9-6
9-11 Special Management Area Use Permit Procedures...................................................9-10
9-12 Special Management Area Emergency Permits........................................................9-16
9-13 Exemptions ................................................................................................................9-17
9-14 Revocation.................................................................................................................9-17
9-15 Penalties.....................................................................................................................9-18
9-16 Complaint and Investigative Procedures...................................................................9-18
9-17 Administrative Fines.................................................................................................9-18
9-18 Injunction...................................................................................................................9-18
9-19 Hearing Officer..........................................................................................................9-18
9-20 Petition for the Adoption, Amendment or Repeal of Rule 9 Special
Management Area Rule of the County of Hawaii................................................9-19
9-21 Amendment of Special Management Area (SMA) Maps.........................................9-20
REPEALED
RULE 10 –
RULE 11. ZONING AMENDMENTS
11-1 Authority..................................................................................................................11-1
11-2 Definitions................................................................................................................11-1
11-3 Procedures for Processing Zoning Amendments.....................................................11-1
11-4Posting of Signs for Public Notification...................................................................11-3
RULE 12. GEOTHERMAL RESOURCE PERMITS
12-l Purpose and Authority..............................................................................................12-1
12-2 Definitions................................................................................................................12-1
12-3 Contents of Application............................................................................................12-1
12-4 Properly Filed Application.......................................................................................12-3
12-4A Posting of Signs for Public Notification...................................................................12-4
12-5 Hearing and Notification..........................................................................................12-4
l2-5-l Mediation..................................................................................................................12-5
12-6 Criteria for Issuance of Geothermal Resource Permit..............................................12-7
12-7 Action ......................................................................................................................12-8
12-8 Requirements Prior to Initiating Construction.........................................................12-8
12-9 Amendments of Permit and Conditions...................................................................12-9
12-10 Enforcement of Permit and Conditions....................................................................12-9
12-11 Penalties....................................................................................................................12-10
12-12Appeals.....................................................................................................................12-10
RULE 13. STATE LAND USE DISTRICT BOUNDARY AMENDMENT
13-1 Purpose and Authority..............................................................................................13-1
13-2 Standing to Submit Petition for State Land Use District Boundary Amendment....13-1
13-3 Contents of Petition..................................................................................................13-1
13-4 Incomplete Petition...................................................................................................13-2
13-4A Posting of Signs for Public Notification...................................................................13-2
13-5 Procedures for Reviewing and Processing of Petition.............................................13-2
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13-6 Standards for Review................................................................................................13-3
13-7 Notification of Decision............................................................................................13-4
13-8Consolidated Proceeding with Other Land Use Changes.........................................13-4
RULE 14. GEOTHERMAL ASSET FUND
14-1 Authority...................................................................................................................14-1
14-2 Purpose......................................................................................................................14-1
14-3 Definition..................................................................................................................14-1
14-4 General Procedures...................................................................................................14-1
14-5 Geothermal Asset Fund Claims Adjuster.................................................................14-2
14-6 Eligibility of Claims..................................................................................................14-2
14-7 Filing of Claims........................................................................................................14-3
14-8 Hearings....................................................................................................................14-3
14-9 Claims Adjuster's Recommendations.......................................................................14-4
14-10 Planning Commission Action...................................................................................14-5
14-11 Award of Compensation...........................................................................................14-6
14-12 Denial of Award of Compensation...........................................................................14-6
14-13 Appeal .......................................................................................................................14-6
14-14 When Rules are Silent...............................................................................................14-6
14-15 Petition for Adoption, Amendment or Repeal of Rules............................................14-6
14-16 Relocation.................................................................................................................14-7
14-17 Other Rights..............................................................................................................14-7
RULE 15. PROJECT DISTRICTS
15-1 Authority....................................................................................................................15-1
15-2 Purpose .......................................................................................................................15-1
15-3 Contents of Application and Requirements................................................................15-1
15-3A Posting of Signs for Public Notification.....................................................................15-1
15-4 Procedures for Reviewing and Processing Project Districts......................................15-2
15-5 Decision......................................................................................................................15-3
15-6 Criteria for Establishing a Project District.................................................................15-3
15-7 Amendments to Conditions and Standards................................................................15-3
15-8 Severability.................................................................................................................15-4
RULE 16. AGRICULTURAL PROJECT DISTRICTS
16-1 Authority...................................................................................................................16-1
16-2 Purpose......................................................................................................................16-1
16-3 Contents of Application and Requirements..............................................................16-1
16-3A Posting of Signs for Public Notification...................................................................16-1
16-4 Procedures for Reviewing and Processing Agricultural Project Districts................16-2
16-5 Decision....................................................................................................................16-3
5
16-6 Criteria for Establishing an Agricultural Project District........................................16-3
16-7 Amendments to Conditions and Standards..............................................................16-4
16-8 Severability...............................................................................................................16-4
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PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 1. GENERAL RULES
1-1 Authority
The rules hereinafter contained are established pursuant to the authority of sections 5-4.3
and 13-7 of the Charter of the County of Hawaii, and chapter 91, Hawaii Revised
Statutes.
1-2 Purpose
These rules govern the practice and procedure before the Planning Commission of the
County of Hawaii.
1-3 The Commission
(a) Office. The office of the Commission is at Hilo, Hawaii.
(b) Communications. Any communication to the Commission shall be addressed to
the Chairman, Planning Commission, County Building, 25 Aupuni Street, Hilo,
Hawaii, 96720, unless otherwise directed.
(c) Membership. The Commission consists of nine members appointed by the Mayor
and confirmed by the Council. In addition, the Chief Engineer of the Department
of Public Works and the Manager of the Department of Water Supply serve as
ex-officio members without voting privileges.
(d) Chairperson; Vice-chairperson. A chairperson and a vice-chairperson shall be
elected annually by the members of the Commission at the last regular meeting of
the Commission in December. The vice-chairperson shall perform all the duties
of the chairperson during the absence of the chairperson.
1-4 Meetings
The Commission may meet and exercise its powers in any part of the County of Hawaii.
Except as provided by law, all of its meetings are open to the public. The parliamentary
procedure to be utilized by the Commission in the conduct of its own meetings shall be
based on the Revised Edition of Robert’s Rules of Order.
(a) Regular Meetings. Regular meetings shall be held at least once a month in the
Councilroom, Hawaii County Building, unless otherwise specified by the
Commission.
(b) Special Meetings. Special meetings of the Commission for the transaction of its
business may be held at any time and place as scheduled by the Commission.
(c) Notice of Regular and Special Meetings.
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(1) The Commission shall give written public notice of any regular or special
meeting. The notice shall include an agenda which lists all of the items to
be considered at the forthcoming meeting, the date, time, and place of the
meeting.
(2) The Commission shall file the notice in the Office of the County Clerk and
in the Commission’s office for public inspection at least six calendar days
before the meeting. The notice shall also be posted at the site of the
meeting whenever feasible. The Commission shall not add items to the
agenda, once filed, without a two-thirds recorded vote of all members to
which the Commission is entitled; provided that no item shall be added to
the agenda in the manner provided herein, if it is of reasonably major
importance and action thereof by the Commission will affect a significant
number of persons.
(3) The Commission shall maintain a list of names and addresses of persons
who request notification of meetings and shall mail a copy of the agenda
to such persons at their last recorded address no later than the time the
agenda is filed under subsection (2).
(4) Notice of any special meeting shall be published in a newspaper of general
circulation in the County at least twenty-four hours in advance of the
meeting.
(d) Emergency Meetings; Notice. An emergency meeting is a meeting in which the
six calendar days notice requirement cannot be met. Such a meeting can only be
held if there is a written finding that there is imminent peril to the public health,
safety, or welfare and provided the following procedures are met:
(1) The Commission states in writing the reasons for its findings;
(2) Two-thirds of the members to which the Commission is entitled agree that
the findings are correct and an emergency exists;
(3) An emergency agenda and the findings are filed with the Office of the
County Clerk and in the Commission’s office; and
(4) Persons requesting notification pursuant to Rule 1-5(c)(3) are contacted by
mail or telephone as soon as practicable.
(5) A notice of the meeting shall be published in a newspaper of general
circulation in the County at least twenty-four hours prior to the meeting,
or if the requirement with respect to publication of notice cannot be met
because of insufficient time, the meeting notice shall be made by
broadcasting a minimum of three announcements in the English language
over an FCC licensed public radio station in the County or a television
station with local audience.
(e) Executive Meetings. The Commission may hold an executive meeting, closed to
the public, upon an affirmative vote, taken at an open meeting, of two-thirds of
the members present. The vote of each member on the question of holding a
meeting closed to the public and the reason for holding such a meeting shall be
recorded and entered into the minutes of the meeting. A meeting closed to the
public may be held only for one or more of the following purposes:
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(1) To consult with the Commission’s attorney;
(2) For any other specific purpose authorized by law.
(f) Chance Meetings. The rules governing meetings shall not apply to any chance
meeting, as defined by section 92-2, Hawaii Revised Statutes, at which matters
relating to official business are not discussed. No chance meeting or electronic
communication shall be used to circumvent the spirit or requirements of the
meeting provisions to make a decision or to deliberate toward a decision upon a
matter over which the Commission has supervision, control, jurisdiction, or
advisory power.
(g) Quorum. A majority (five) of all members to which the Commission is entitled
shall constitute a quorum to transact business.
(h) Minutes. The Commission shall keep written minutes of all meetings. Unless
otherwise required by law, neither a full transcript nor a recording of the meeting
is required, but the written minutes shall give a true reflection of the matters
discussed and the views of the participants. The minutes shall include, but need
not be limited to:
(1) The date, time, and place of the meeting;
(2) The members of the Commission recorded as either present or absent;
(3) The substance of all matters proposed, discussed, or decided, and a record,
by individual members, of any votes taken; and
(4) Any other information that any member of the Commission requests be
included or reflected in the minutes.
The minutes shall be public records and shall be available within thirty
days after the meeting except where such disclosure would be inconsistent
with section 92-5, Hawaii Revised Statutes, or section 13-20 of the
Charter; provided that minutes of executive meetings may be withheld so
long as their publication would defeat the lawful purpose of the executive
meeting, but no longer.
(i) Procedure for Testimony at Public Hearings. The following procedures shall be
followed when the applicant, the applicant’s representative, or members of the
public desire to testify during public hearings before the Commission:
(1) The person desiring to testify shall indicate his or her name and residence
address.
(2) The person testifying shall also indicate whether he or she is testifying on
his or her own behalf or as a representative of the petitioner or an
organization.
(3) An original and nine copies of all written testimony offered by any person
shall be submitted to the Commission prior to the time the person gives
such testimony.
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(4) The chairperson or vice-chairperson of the Commission may require any
person desiring to submit testimony, oral or written, to submit such
testimony under oath. The oath shall be administered by the chairperson
or vice-chairperson.
(5) The chairperson or vice-chairperson may limit testimony which is
irrelevant or unduly repetitious.
(j) Removal of Person from Meeting. The chairperson may remove any person or
persons who wilfully disrupts a meeting to prevent or compromise the conduct of
the meeting.
1-5 Public Records
The term “public records” shall have the same meaning as is defined in chapter 92,
Hawaii Revised Statutes, and shall include all maps, rules, written statements of policy or
interpretation formulated, adopted, or used by the Commission in its functions, all
decisions, orders, minutes of the Commission meetings and records of any proceeding on
file with the Commission, but shall not include records which invade the right of privacy
of an individual.
(a) Inspection of Public Records. All public records shall be available for inspection
by any person during established office hours unless public inspection of such
records is in violation of any other state, federal, or county law; provided that,
except where such records are open under any rule of court, the Corporation
Counsel or Prosecuting Attorney may determine which records may be withheld
from public inspection when such records pertain to the preparation of the
prosecution or defense of any action or proceeding to which the County is or may
be a party, or when such records do not relate to a matter in violation of law and
are deemed necessary for the protection of the character or reputation of any
person.
(b) Copies of Public Records. Copies of records printed or reproduced for persons
other than governmental agencies shall be given to any person, provided that the
fees or costs prescribed in the Code are paid.
(c) Denial of Inspection; Application to Circuit Court. Any person aggrieved by the
person having custody of any public record of the right to inspect the records or to
obtain copies of extracts thereof may apply to the circuit court for an order
directing the person having custody of the record to permit the inspection of or to
furnish copies or extracts of the public record. The court shall grant the order
after hearing, upon a finding that the denial was not for just and proper cause.
1-6 Computation of Time
In computing any period of time under these rules, by notice, or by any order or rule of
the Commission, the time begins with the day following the act, event, or default, and
includes the last day of the period unless it is a Saturday, Sunday, or legal holiday, in
which event the period runs until the end of the next day which is not a Saturday,
Sunday, or holiday.
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PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES
2-1 Initiation of Rulemaking Proceedings
(a) The Commission may, at any time, initiate proceedings for the adoption,
amendment, or repeal of any rule of the Commission. Procedures to be followed
in rulemaking shall be as set forth in these rules.
(b) Any interested person or agency may petition the Commission for the adoption,
amendment, or repeal of any rule of the Commission. Such petitions shall
contain:
(1) A non-refundable filing and processing fee of one hundred dollars;
(2) The name, address, telephone number, if available, and signature of the
petitioner;
(3) A draft or the substance of the proposed rule or amendment or a
designation of the provisions, the repeal of which is desired;
(4) A statement of the reasons in support of the proposed rule, amendment, or
repeal.
(c) The Commission shall, within thirty days after the filing of a petition for
rulemaking, either deny the petition or initiate public rulemaking proceedings.
(d) Any petition that fails in material respect to comply with the requirements of this
section or that fails to disclose sufficient reasons to justify the institution of
rulemaking proceedings shall be denied by the Commission. The Commission
shall notify the petitioner in writing of such denial, stating the reasons thereof.
Denial of the petition shall not operate to prevent the Commission from acting, on
its own motion, on any matter disclosed in the petition. Petitioner may seek
review of the denial through the Board.
(e) If the Commission determines that the petition is in order and that it discloses
sufficient reasons in support of the proposed rulemaking proceedings, the
Commission shall conduct rulemaking proceedings in accordance with section 2-2
of this rule.
2-2 Notice of Public Hearing
(a) When, pursuant to a petition therefor or upon its own initiation, the Commission
proposes to adopt, amend, or repeal a rule, a notice of proposed rulemaking shall
be published at least once in a newspaper of general circulation in the County,
and the notice shall also be mailed to all persons who have made timely written
requests for advance notice of the Commission’s rulemaking proceedings. The
2-1
notice shall be published at least twenty days prior to the date set for the public
hearing.
(b) A notice of the proposed adoption, amendment, or repeal of a rule shall include:
(1)A statement of the date, time, and place where the public hearing will be
held;
(2)Reference to the authority under which the adoption, amendment, or
repeal of a rule is proposed; and
(3) A statement of the substance of the proposed rule.
2-3 Conduct of Public Hearing
(a) The public hearing for the adoption, amendment, or repeal of any rule shall be
heard before the Commission and presided over by the chairperson or
vice-chairperson of the Commission or, in their absence, by another member
designated by the Commission. The hearing shall be conducted in such a way as
to afford all interested persons a reasonable opportunity to offer testimony with
respect to the matters specified in the notice of hearing and so as to obtain a clear
and orderly record.
(b) Any interested person will be afforded an opportunity to submit data, views, or
arguments, orally or in writing, that are relevant to the matters specified in the
notice of hearing. The period for filing written comments or recommendations
shall not extend beyond the hearing date, unless specified by the Commission.
(c) In every matter requiring a public hearing, the presiding officer shall take public
testimony at some point during the hearing. The presiding officer may limit
testimony which is unduly repetitious or lengthy.
(d) Unless otherwise specifically ordered by the Commission, testimony given at the
public hearing need not be reported verbatim. All supporting written statements,
maps, charts, tabulations, or similar data offered at the hearing, and which are
deemed by the Commission to be authentic and relevant, shall be received and
made a part of the record.
2-4 Action
The Commission shall consider all relevant comments and material of record before
taking final action in a rulemaking proceeding. Final action shall be taken within sixty
days after the close of the public hearing.
2-5 Emergency Rulemaking
If the Commission finds that an imminent peril to public health or safety requires
adoption, amendment, or repeal of a rule upon less than twenty days’ notice of hearing
and states in writing its reasons for such finding, it may proceed without prior notice or
hearing upon such abbreviated notice and hearing as it finds practicable to adopt an
emergency rule. The Commission shall make an emergency rule known to persons who
will be affected by it by publication at least once in a newspaper of general circulation in
the County.
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2-6 Filing of Rules
The Commission, upon adopting, amending, or repealing a rule and approval by the
Mayor, shall file certified copies of the rule with the County Clerk.
2-7 Taking Effect of Rules
Each rule adopted, amended, or repealed shall become effective ten days after filing with
the County Clerk. If a later effective date is required by statute or specified in the rule,
the later date shall be the effective date, provided that no rule shall specify an effective
date in excess of thirty days after the filing of the rule with the County Clerk. An
emergency rule shall become effective upon filing with the County Clerk for a period not
exceeding one hundred twenty days without renewal unless extended in compliance with
section 91-3(a), Hawaii Revised Statutes.
2-8 Publication of Rules
The Commission shall, as soon as practicable, compile, index, and publish all rules
adopted by the Commission and remaining in effect. Compilations shall be
supplemented as often as necessary and shall be reviewed at least once every ten years.
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PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 3. DECLARATORY RULINGS
3-1 Petitions for Declaratory Rulings
(a) On petition of an interested person, the Commission may issue a declaratory order
as to the applicability of any statutory provision, ordinance, or of any rule or order
of the Commission.
(b) Petition for a declaratory ruling shall contain:
(1) A non-refundable filing and processing fee of one hundred dollars;
(2) Name, address, telephone number, if available, and signature of each
petitioner;
(3) A designation of the specific provision, rule, or order in question, together
with a statement of the controversy or uncertainty involved;
(4) A statement of the petitioner’s position or contention; and
(5) A memorandum of authorities, containing a full discussion of reasons and
legal authorities in support of such position or contention.
(c) Within sixty days after the submission of a petition for declaratory ruling, the
Commission shall either deny the petition in writing, stating the reasons for such
denial or issue a declaratory order on the matters contained in the petition, or set
the matter for a public hearing, as provided in sections 3-2, 3-3 and 3-4 of these
rules.
3-2 Request for Public Hearing
The Commission, in its discretion, may order that a hearing be held on a declaratory
ruling petition. Any petitioner or party in interest who desires a hearing on a petition for
a declaratory ruling shall submit a written request for a hearing, setting forth in the
request the reasons why the matters alleged in the petition and the supporting material
submitted will not permit the fair and expeditious disposition of the petition and, to the
extent that such request for a hearing is dependent upon factual assertion, shall attach to
the request an affidavit establishing such facts. In the event a hearing is ordered by the
Commission, the hearing shall be conducted in accordance with section 3-4 of this rule.
3-3 Notice of Public Hearing
A notice of the declaratory ruling petition shall be published at least once in a newspaper
of general circulation in the County, and the notice shall also be mailed to all persons
who have made timely written requests for advance notice. The notice shall be published
at least ten days prior to the date set for the hearing.
3-1
3-4 Conduct of Hearing
(a) The public hearing for the declaratory ruling petition shall be heard before the
Commission and presided over by the chairperson or vice-chairperson or, in their
absence, by another member designated by the Commission. The hearing shall be
conducted in such a way as to afford all interested persons a reasonable
opportunity to offer testimony with respect to the matters specified in the notice
of hearing and so as to obtain a clear and orderly record.
(b) Any interested person will be afforded an opportunity to submit data, views, or
arguments, orally or in writing, that are relevant to the matters specified in the
notice of hearing. The period for filing written comments or recommendations
shall not extend beyond the hearing date, unless specified by the Commission.
(c) Unless otherwise specifically ordered by the Commission, testimony given at the
public hearing need not be reported verbatim. All supporting written statements,
maps, charts, tabulations, or similar data offered at the hearing, and which are
deemed by the Commission to be authentic and relevant, shall be received and
made a part of the record.
3-5 Action
The Commission shall consider all relevant comments and material of record before
taking final action on the declaratory ruling petition. Final action shall be taken within
sixty days after the close of the public hearing.
3-6 Status of Orders
An order disposing of a petition shall have the same status as other Commission orders.
An order shall be applicable only to the factual situation described in the petition or set
forth in the order. An order shall not be applicable to different factual situations or where
additional facts not considered in the order exist.
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PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 4. CONTESTED CASE PROCEDURE
PART 1. General Provisions.
4-1 Purpose
This rule governs contested case procedure before the Commission whenever it is
required by law; provided that any procedure in a contested case may be modified or
waived by stipulation of the parties, and informal disposition may be made of any
contested case by stipulation, agreed settlement, consent order, or default. This
procedure shall be used in all cases where the action of the Commission is the final action
of a County official or agency, prior to the opportunity for appeal to Circuit Court,
whenever it is required. It shall therefore be followed in all cases where State statutes
provide for direct appeal from the Commission to Circuit Court.
4-2 Definitions
As used in this rule, except as otherwise required by context:
(1) "Agency" means any agency, board, commission, department, or officer of the
county or state government.
(2) "Applicant" means any agency or person who applies to the Commission for a
permit upon which the Commission has jurisdiction to take final action.
(3) "Chairperson" means the chairperson of the Planning Commission of the County
of Hawaii.
(4) "Commission" means the Planning Commission of the County of Hawaii or the
Commission's duly authorized representative.
(5) "Contested case" means a proceeding in which the legal rights, duties, or
privileges of specific parties are required by law to be determined after an
opportunity for agency hearing.
(6) "Party" means any person or agency named or admitted as a party or properly
seeking and entitled as of right to be admitted as a party in a proceeding.
(7)"Person" means any individual, partnership, firm, association, trust, estate,
corporation, or other legal entity of any character other than an agency.
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4-3 Conflict with Other Time and Notice Requirements
In any case of conflict of time and notice requirements between this rule and any other
rule of the Commission, the provisions of this rule shall be applied.
4-4 Service of Notices, Documents, and Other Papers
(a) Upon Whom Served. All notices, documents, and other papers shall be served on
the Commission and all parties, except that where a party is represented, such
representative shall be served, rather than the party.
(b) Method of Service. Service shall be made by personal delivery, first-class mail,
or by other means authorized by law. If by mail, service shall be regarded as
complete upon the mailing of an item which is properly stamped and addressed.
(c) Additional Time after Service by Mail. Whenever a party has the right or is
required to do some act within a prescribed period after the service of a notice,
document, or paper upon that party by mail, two days shall be added to the
prescribed period.
4-5 Presiding Officer
(a) Person Presiding. The chairperson of the Commission, one of its members, or a
hearing officer duly appointed and designated, shall preside at the hearing.
(b) Powers. The presiding officer controls the course of hearings, administers oaths,
rules on questions of evidence, holds appropriate conferences before or during
hearings, rules upon all objections or motions which do not involve a final
determination of the proceeding, receives offers of proof, fixes the time for the
filing of briefs, disposes of any other matter that normally and properly arises in
the course of a hearing, and takes all other actions authorized by law that are
deemed necessary for the orderly and just conduct of a hearing.
(c) Continuance. The presiding officer may postpone or continue any hearing to
ensure the orderly and just conduct of a hearing.
4-6 Notice of Contested Case Hearing
(a) Unless otherwise provided by law, the notice of hearing will be served on all
parties and persons on the mailing list for this purpose at their last recorded
addresses within a reasonable time after the hearing date has been set. The notice
shall include a statement of:
(1) The date, time, place, and nature of hearing;
(2) The legal authority under which the hearing is to be held;
(3) The particular sections of the statutes and rules involved;
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(4) An explicit statement in plain language of the issues involved and the facts
alleged by the agency in support thereof; provided, that if the agency is
unable to state such issues and facts in detail at the time the notice is
served, the initial notice may be limited to a statement of the issues
involved, and thereafter upon application a bill of particulars shall be
furnished; and
(5) The fact that any party may retain counsel if he so desires.
(6) The fact that any interested party may move to intervene.
(b) The notice of the date, time, place, and nature of the hearing shall also be
published twice in two newspapers of general circulation in the county. Within
ten (10) days after the application has been filed, a notice shall appear in two
County newspapers of general circulation and a second notice, not less than ten
days prior to the hearing, shall appear in two County newspapers of general
circulation and shall also be filed at least six calendar days prior to the hearing
with the Office of the County Clerk.
(c) The applicant shall serve notice to surrounding property owners and lessees of
record pursuant to Section 25-2-4(a) and (b) of the Zoning Code. Such notice
shall also include a form developed by the Planning Department that outlines the
contested case procedure and who qualifies. In addition, the notice shall state that
you have a right to file a written request for a contested case procedure.
4-7 Prehearing Procedure
(a) In all proceedings where the Commission's action is directly appealable to Circuit
Court, the applicant and the Planning Director will be designated parties to the
action. Any other person seeking to intervene as a party shall file a written
request in a form as provided in Appendix A and accompanied by a filing fee of
$100 no later than seven (7) calendar days, prior to the Commission's first
meeting on the matter. If the request for intervention is withdrawn in writing
before the commencement of the hearing, the $100 filing fee shall be refunded to
the applicant.
(b) Upon receipt of a written request to intervene, the Commission, at the first
meeting on the matter, shall hold a hearing on the written request. If the movant
can demonstrate that:
1) His or her interest is clearly distinguishable from that of the general
public; or
2) Government agencies whose jurisdiction includes the land involved in the
subject request; or
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3) That they have some property interest in the land or lawfully reside on the
land; or
4) That even though they do not have an interest different than the public
generally, that the proposed action will cause them actual or threatened
injury in fact; or
5) Persons who are descendants of native Hawaiians who inhabited the
Hawaiian islands prior to 1778, who practiced those rights which were
customarily and traditionally exercised for subsistence, cultural or
religious purposes.
then they shall be admitted as parties. The Commission will grant or deny such
written request prior to any further action on the matter.
(c) Appeal from Denial. Any petitioner who has been denied standing as a party may
appeal such denial to the Circuit Court pursuant to Section 91-14, Hawaii Revised
Statutes.
(d) After establishing the parties to the proceeding, the Commission may either
proceed with the hearing, or upon written request by any party, and for good
cause, continue the matter to a more appropriate time and date.
(e) The Commission may join as a party any other person subject to service of
process if complete relief cannot be accorded among those already parties or that
person has an interest in the matter so that the action of the Commission may
impair or impede that person's ability to protect that interest or create a risk of
multiple or otherwise inconsistent actions. Should such an order of joinder be
issued, further proceedings will be suspended until a date not less than 20 days
from service of the order, so that the joined party might properly respond.
(f)Prior to proceeding further, the Commission may vote upon the motion of any
member, to refer the matter for further proceedings to either a hearings officer, or
to one or more members to act as hearings officer(s).
4-8 Conference with Presiding Officer
At any time during the proceedings, the Presiding Officer may hold a conference with the
parties for the purpose of formulating or simplifying the issues, arranging for the
exchange of proposed exhibits or proposed written testimony, setting of schedules,
exchanging names of witnesses, limiting the number of witnesses, and any other matter
that may expedite the orderly conduct and disposition of the proceeding.
4-9 Limiting Testimony
To avoid unnecessary cumulative evidence, the presiding officer may limit the number of
witnesses or the time for testimony upon a particular issue.
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4-10 Removal from Proceeding
Any person who wilfully disrupts a hearing to prevent or compromise the conduct of the
hearing shall be removed from the hearing room.
4-11 Order of Procedure
The applicant shall open and close. Other parties shall be heard in such order as the
presiding officer directs.
4-12 Questions from Commission
There shall be opportunity for the Commission, including its ex-officio members, to ask
questions of the parties' witnesses as may be required for a full and true disclosure of the
facts.
4-13 Cross-Examination
Each party shall have the right to conduct such cross-examination of the witnesses as may
be required for a full and true disclosure of the facts and shall have the right to submit
rebuttal evidence.
4-14 Requests for Subpoenas
(a) Subpoena of a Witness. Any request for the issuance of a subpoena, requiring the
attendance of a witness for the purpose of taking oral testimony before the
Commission, shall be in writing and shall state the reasons why the testimony of
the witness is believed to be material and relevant to the issues involved. Only a
party or a member of the Commission may request the issuance of a subpoena.
(b) Subpoena of Documents. Any request for the issuance of a subpoena for the
production of documents or records shall be in writing; shall state the name of the
person who is to produce such documents or records; shall specify the particular
document or record, or part thereof, desired to be produced; and shall state the
reasons why the production thereof is believed to be material and relevant to the
issues involved.
(c) Time for Filing. A request for the issuance of a subpoena under this section shall
be valid only if it is physically received by the Commission no later than five
working days before date of the hearing at which the subpoenaed witness is to
testify or documents are to be produced. The names of those for whom subpoenas
have been issued, and any returns of the service of said subpoenas, shall be
available upon request to the public at the office of the Planning Department.
(d) Who May Issue A Subpoena. A subpoena may be issued by the chairperson of
the Commission, the presiding officer, or a Commission member so authorized by
the Commission. No subpoena shall be issued unless the party requesting the
subpoena has complied with this section and gives the name and address of the
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desired witness. Signed and sealed blank subpoenas will not be issued to anyone.
The name and address of the witness shall be inserted in the original subpoena, a
copy of which shall be filed in the proceeding. The subpoena shall show at whose
instance the subpoena is issued.
(e) Fees and Mileage. Any witness summoned shall be paid the same fees and
mileage as are paid to witnesses in the circuit court of the State of Hawaii, and
such fees and mileage shall be paid by the party at whose request the witness
appears.
(f) Oath. Each witness shall be placed under oath or affirmation prior to testifying.
(g) Written Request to Quash. Any party may bring a written request to quash any
subpoena issued, pursuant to this section, prior to the next scheduled meeting of
the Commission. Any such written request may be granted if the subpoena is
unreasonable or oppressive or may be denied or denied upon condition that the
requestor of the subpoena advance the reasonable cost of producing any requested
book, paper, document or tangible thing.
4-15 Consolidation
The Commission, upon its own initiative or upon written request, may consolidate for
hearing or for other purposes, or may contemporaneously consider, two or more
proceedings which involve substantially the same parties or issues which are the same or
closely related if the Commission finds that such consolidation or contemporaneous
consideration will be conducive to the proper dispatch of its business and to the ends of
justice and will not unduly delay the proceedings.
4-16 Substitution of Parties
Upon written request and for good cause shown, the Commission may order the
substitution of a party, except that in the case of death of a party, substitution may be
ordered without the filing of a written request.
4-17 Written Requests
(a) Timing. Written requests may be made before, during, or after a hearing.
(b) Form; Contents. Any written request, other than one made during a hearing, shall
be made in writing to the Commission, shall state the relief sought, and shall be
accompanied by an affidavit or legal memorandum setting forth the grounds upon
which the written request is based.
(c) Service of Written Requests. The moving party shall serve a copy of all written
request papers on all other parties and shall file with the Commission the original
with proof of service.
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(d) Memorandum in Opposition. A memorandum in opposition or counter affidavit
shall be served on all parties and the original and proof of service shall be filed
with the Commission within seven days after being served with the written
request. The chairperson of the Commission may order the memorandum in
opposition to be filed earlier than the seven-day period.
(e) Waiver. Failure to serve or file a memorandum in opposition to a written request
and to appear at the hearing may be deemed a waiver of objection to the granting
or denial of the written request. A party who does not oppose the written request
shall notify the chairperson and opposing counsel or party promptly.
4-18 Evidence
(a) Form and Admissibility. The Commission shall not be bound by the rules relating
to the admission or rejection of evidence but may exercise its own discretion in
such matter with a view to do substantial justice.
(b) Ruling. The presiding officer shall rule on the admissibility of all evidence. Such
rulings may be reviewed by the Commission in determining the matter of the
merits.
(c) Objections and Exceptions. When objections are made to the admission or
exclusion of evidence, the grounds relied upon shall be stated briefly. Formal
exceptions to rulings are unnecessary and need not be taken. The presiding
officer shall exclude any evidence which is irrelevant, immaterial or unduly
repetitious or which would infringe upon any privilege recognized by law.
(d) Offer of Proof. An offer of proof for the record shall consist of a statement of the
substance of the evidence to which objection has been sustained.
(e) Prepared Testimony. With the approval of the presiding officer, a witness may
read into the record his testimony on direct examination. Before any prepared
testimony is read, unless excused by the presiding officer, the witness shall
deliver copies thereof to the presiding officer and all counsel or parties.
Admissibility shall be subject to the rules governing oral testimony. If the
presiding officer deems that substantial saving in time will result, a copy of the
prepared testimony may be received in evidence without reading, provided that
copies thereof shall have been served upon all parties and the Commission fifteen
days before the hearing or such prior service is waived, to permit proper
cross-examination of the witness on matters contained in the prepared testimony.
(f) Documentary Evidence. If relevant and material matter offered in evidence is
embraced in a document containing other matters, the party offering it shall
designate specifically the matter so offered. If other matter in the document
would unnecessarily encumber the record, the document will not be received in
evidence, but at the discretion of the presiding officer, the relevant and material
matter may be read into the record or copies thereof received as an exhibit. Other
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parties shall be afforded an opportunity to examine the document and to offer in
evidence other portions thereof believed material and relevant.
(g) Exhibits.
(1) Form; Size. Exhibits shall be legible and may be prepared on paper not
exceeding 8-1/2 x 11 inches in size or bound or folded to the respective
approximate size, where practical. Wherever practicable, sheets of each
exhibit shall be numbered and data and other figures shall be set forth in
tabular form.
(2) Copies. When exhibits are offered in evidence, the original and fifteen
copies shall be furnished to the presiding officer with a copy to each party
to the proceeding other than the Commission, unless such copies have
been previously furnished, or the presiding officer directs otherwise.
(h) Commission Records. If any matter contained in a document on file as a public
record with the Commission is offered in evidence, unless directed otherwise by
the presiding officer, such document need not be produced as an exhibit, but may
be received in evidence by reference, provided that the particular portions of such
document are specifically identified and are otherwise competent, relevant, and
material. If testimony in any proceeding, other than the one being heard, is
offered in evidence, a copy of the testimony shall be presented as an exhibit,
unless otherwise ordered by the presiding officer.
(i) Official Notice of Facts. Official notice may be taken of such matters as may be
judicially noticed by the courts of the State of Hawaii. Official notice may also be
taken of generally recognized technical or scientific facts within the
Commission's specialized knowledge when parties are given notice either before
or during the hearing of the material so noticed and afforded the opportunity to
contest the facts so noticed.
(j) Additional Evidence. At the hearing, the presiding officer may require the
production of further evidence upon any issue. Upon agreement of the parties, the
presiding officer may authorize the filing of specific documentary evidence as
part of the record within a fixed time after submission, reserving an exhibit
number therefor.
4-19 Briefs
The presiding officer may fix the time for the filing of briefs. Exhibits may be
reproduced in an appendix to a brief. A brief of more than twenty pages shall contain a
subject index and table of authorities. Requests for extension of time to file briefs must
be made to the Commission in writing, and a copy thereof served upon or mailed to the
other parties to the proceedings. Ordinarily, when a matter is to be submitted on
concurrent briefs, extensions will not be granted unless stipulation is filed with the
Commission.
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4-20 Oral Arguments
The Commission or the presiding officer may direct or permit the presentation of oral
argument with the applicant opening and concluding the argument. Not more than one
hour on each side of the proceeding will be allowed for argument without special leave of
the Commission.
4-21 Public Testimony
The Presiding Officer shall afford all interested persons an opportunity to present
testimony on the matter prior to the commencement of the hearing and prior to
proceedings on any subsequent day to which the proceeding is continued. The Presiding
Officer may reasonably limit such testimony as to time, and may exclude any testimony
that is irrelevant, immaterial or unduly repetitive.
4-22 Close of Hearing
At the end of the presentation of the evidence, submission of briefs and oral arguments, if
any, the Commission or the hearing officer shall close the hearing.
4-23 Examination of Evidence by Commission
Whenever Commission members who are to render the final decision have not heard and
examined all of the evidence, the decision, if adverse to a party to the proceedings, shall
not be made until a proposal for decision containing a statement of reasons and including
determination of each issue of fact or law necessary to the proposed decision has been
served upon the parties, and an opportunity has been afforded to each party adversely
affected to file exceptions and present argument to the Commission members who are to
render the decision, who shall personally consider the whole record or such portions
thereof as may be cited by the parties.
4-24 Time Limit for Decision
The Commission shall render its decision, order, or ruling within a period of not more
than ninety days after the close of the hearing, unless a longer period of time is agreed
upon by all parties.
4-25 Issuance of Decisions and Orders
Every decision and order adverse to a party to the proceeding, rendered by an agency in a
contested case, shall be in writing or stated in the record and shall be accompanied by
separate findings of fact and conclusions of law. If any party to the proceeding has filed
proposed findings of fact, the agency shall incorporate in its decision a ruling upon each
proposed finding so presented. The agency shall notify the parties to the proceeding by
delivering or mailing a certified copy of the decision and order and accompanying
findings and conclusions within a reasonable time to each party or to the party's attorney
of record. Every decision and order shall be prepared by the Presiding Officer.
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4-26 Service of Decisions and Orders
Decisions and orders shall be served by mailing certified copies thereof to the parties of
record. When service is not accomplished by mail, it may be effected by personal
delivery of a certified copy thereof. When a party to a proceeding has appeared by a
representative, service upon such representative of counsel shall be deemed to be service
upon the party.
4-27 Reconsideration of Decision and Order
The Commission shall not reconsider its action in any contested case hearing after the
effective date of its decision.
4-28 Appeal from the Commission's Decision
Any party may seek judicial review of the Commission's final decision in the manner set
forth in section 91-14, Hawaii Revised Statutes.
PART 2. Post Hearing Procedure for Hearings Conducted by Hearing Officer
4-29 Recommendations of Hearing Officer
(a) Submission of Recommendations. 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 therefore, and a recommended order and
submit the report of the case to the Commission.
(b) Contents of Record. The record shall include the petition, notice of hearing,
motions, rulings, orders, transcript of the hearing, stipulations, documentary
evidence, proposed findings, or other documents submitted by the parties,
objections to the conduct of the hearing and the report of the hearing officer and
all other matters placed in evidence.
(c) Service of Hearing Officer's Report. The hearing officer shall cause a copy of the
report to be served upon all parties to the proceedings.
4-30 Exceptions to Hearing Officer's Report and Recommendations
(a) File; Form; Copies; Time; Service. Within fifteen days after service of the report
and recommendations by the hearing officer, a party may file with the
Commission any exceptions to the report and a brief or statement in support
thereof with the Commission. A copy of the exceptions and brief or statement
shall be served upon each party to the proceeding.
(b) Contents of Exceptions. The exceptions shall include:
(1) The specific questions of procedure, fact, law, or policy to which
exceptions are taken.
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(2) That part of the hearing officer's report and recommended order to which
objections are made.
(3) All the grounds for exceptions to a ruling, finding, conclusion or
recommendation.
(c) Waiver of Exceptions. Any exceptions not specifically raised in writing by a
party are waived.
4-31 Support of Hearing Officer's Report and Recommendations
(a) File; Form; Copies; Time; Service. Within seven days after service of the
exceptions taken to the hearing officer's report, a party may file with the
Commission a brief or statement in support of the hearing officer's
recommendation. A copy of the brief or statement in support shall be served upon
each party to the proceeding.
(b) Contents of Support Brief or Statement. The supporting brief or statement shall
include:
(1) The specific points of procedure, fact, law, or policy to which exceptions
were taken.
(2) The facts and reasons why report and recommendations must be affirmed.
4-32 Oral Argument before the Commission
(a) Party's Request. If a party desires to argue orally before the Commission, a
written request with reasons therefor shall accompany the exceptions or the
support brief or statement filed, and the Commission may grant such request.
(b) Commission Direction. The Commission may direct oral argument on its own
motion.
4-33 Commission Action
(a) No Exceptions Filed. In the event no statement of exceptions is filed with the
Commission, the Commission may proceed to reverse, modify, or adopt the
recommendations of the hearing officer.
(b) Exceptions and Support Statements Filed. Upon the filing of the exceptions and
briefs or statements, the Commission may render its decision forthwith upon the
record; or if oral argument has been allowed, after oral argument; or may reopen
the docket and take further evidence or may make such other disposition of the
case that is necessary under the circumstances, provided that where additional
evidence is taken and has not been heard and examined by all of the Commission
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members who are to render a final decision, the Commission shall comply with
the procedure in section 4-23 of this rule.
4-34 Severability
In the event any portion of these rules is declared invalid, such invalidity shall not affect
other parts of these rules.
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PETITION FOR STANDING IN CONTESTED CASE HEARING
(Page 1 of 2)
NAME:
__________________________________________________________________
ADDRESS:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
PHONE NO.:
__________________________________________________________________
APPLICANT/
DOCKET NO.:
_________________________________________________________________
A.Is your interest in this matter clearly distinguishable from that of the general public?
Yes ___ No ___
If the answer is "yes", please explain:
__________________________________________________________________________
__________________________________________________________________________
____________________________________________________________________
If the answer is "no", please explain how the proposed action will nevertheless cause you
actual or threatened injury:
__________________________________________________________________________
__________________________________________________________________________
____________________________________________________________________
B.Are you a government agency whose jurisdiction includes the land involved in the subject
request?
Yes ___ No ___
If the answer is "yes", please explain the nature of the agency's jurisdiction:
__________________________________________________________________________
__________________________________________________________________________
____________________________________________________________________
C.Do you lawfully reside on or have some property interest in the land involved in the subject
request?
Yes ___ No ___
If the answer is "yes", please explain:
__________________________________________________________________________
__________________________________________________________________________
_______________________________________________________________________
APPENDIX A
PETITION FOR STANDING IN CONTESTED CASE HEARING
(Page 2 of 2)
D.Are you a person or persons descended from native Hawaiians who inhabited the
Hawaiian Islands prior to 1778, who practiced those rights which were customarily and
traditionally exercised for subsistence, cultural, or religious purposes?
Yes ___ No ___
If the answer is "yes", please submit any geneological evidence and historical evidence
showing the exercise of those rights to support the statement.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________
Petitioner’s Signature
STATE OF HAWAII )
) SS.
COUNTY OF HAWAII )
On this day of, 20___, before me personally appeared __________________,
to me known to be the person described in and who executed the foregoing instrument, and
acknowledged that he executed the same as his free act and deed.
_______________________________________
Notary Public, State of Hawaii
My commission expires: ___________________
APPENDIX A
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 5. GENERAL PLAN AMENDMENTS
5-1 Authority
This rule implements General Plan amendment procedures before the Planning
Commission as provided by Chapter 16, Hawaii County Code.
5-2 Scope and Purpose
The General Plan may be amended by changing its goals, policies, standards, zoning
acreage allocations, land use pattern allocation guide map, and other applicable sections
thereof, when the conditions or premises upon which the General Plan is based have
changed and when such an amendment would assure the coordinated development of the
County of Hawaii and the general welfare and prosperity of its people.
5-3 Definition
As used in these rules, except as otherwise recognized by context:
(a) “Comprehensive review” means a complete review of the General Plan conducted
by the Director at least once every ten years from the initial date of adoption of
the General Plan as well as all other subsequent ten-year reviews.
(b) “Commission” means the Planning Commission of the County of Hawaii.
(c) “Council” means the County Council of the County of Hawaii.
(d) “Director” means the Director of the Planning Department of the County of
Hawaii.
(e) “General Plan” means the County of Hawaii General Plan adopted as Ordinance
No. 439 in December 15, 1971, and all subsequent amendments thereof. It is the
policy document for the long-range comprehensive development of the island of
Hawaii.
(f) “Interim amendments” means amendments to the General Plan proposed by a
property owner, the general public, Council, or Director at any other time other
than during the comprehensive review period.
(g) “Property owner” means a person having an interest in title to the affected land
proposed for an amendment and includes the holder of a lease interest in the
affected land, where such lease interest is not due to expire until after ten years
following the date of the filing of the petition.
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5-4 Amendment Pursuant to Comprehensive Review
(a) Within forty-five days of a ten-year lapse from the date of adoption of the General
Plan, the Director shall, upon notification to the County Council, initiate the
comprehensive review of the General Plan. The scope of the review includes, but
is not limited to, the basic elements of the General Plan; goals, policies, standards
and courses of action of the various elements; land use designations of the land
use pattern allocation guide map; facilities map; and urban land use pattern
acreage and zoning acreage allocations.
(b) Upon completion of the review, the Director shall submit any proposed
amendment to the Commission.
(c) Within sixty days of receipt of the Director’s proposed amendment, the
Commission shall hold a public hearing.
The Commission, through the Planning Department, shall publish a notice of the
public hearing and its purpose in a newspaper of general circulation in the County
at least ten calendar days prior to the date of the hearing.
(d) During the hearing and based on public testimony received, the Commission may
request the Director to consider specific modification to any proposed amendment
or to initiate within sixty days any new proposed amendments.
(e) If the Director modifies a proposed amendment or initiates a new proposed
amendment upon the Commission's request, the Commission shall hold further
hearings on such matters, together with any proposed amendment originally
submitted.
(f) Within sixty days of the conclusion of the public hearing, the Commission shall
submit to the Council its comments and recommendation on any proposed
amendment initiated by the Director.
(g) The Council shall review the Commission’s recommendation and act on the
Director’s proposals.
(h) The Council shall request the Director to consider its specific modifications to
any proposed amendment or to initiate a new proposed amendment. Within sixty
days of the request, the Director shall forward to the Commission either a
recommendation for a denial, modification to a proposed amendment or shall
initiate the new proposed amendment.
(i) A public hearing on the proposed revisions and/or recommendation by the
Director shall be conducted by the Commission within sixty days of its receipt
from the Director. Within sixty days of the closing of the public hearing, the
Commission shall forward the Director's proposed modifications, amendments,
and recommendation together with its recommendations to the Council for action.
(j) Failure by the Commission or the Director to respond within the designated time
period shall not preclude the Council from acting on its proposed amendments.
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5-5 Interim Amendments
(a) General Public and Council. Members of the general public may propose and the
Council may propose or initiate amendments to the General Plan goals, policies
and standards. In addition, a property owner may propose an amendment to the
land use pattern allocation guide map covering land held by that property owner.
(1) Within sixty days of receipt of the Director’s recommendation on a
proposed amendment, the Commission shall hold a public hearing.
The Commission, through the Planning Department, shall publish a notice
of the public hearing and its purpose in a newspaper of general circulation
in the County at least ten calendar days prior to the date of the hearing.
(2) In the case of a proposal by a property owner, promptly after the
Commission’s fixing a date for the hearing, but not less than ten calendar
days prior to the date of the hearing, the petitioner shall mail a notice of
the hearing to all property owners within three hundred feet of the affected
property. Prior to the date of the hearing, the petitioner 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.
(A) The petitioner shall submit an additional one hundred dollars
publication fee for each hearing continued at the petitioner’s
request. The petitioner shall also notify the property owners
within three hundred feet of the affected property of the continued
hearing.
(3) Within sixty days after the close of the hearing, the Commission shall
forward its comments and recommendation to the Council.
(b) Director. The Director may initiate proposed amendments by transmitting it to
the Council through the Commission. The Commission shall process the
amendments in accordance with the procedures outlined under section 5-4 above,
except with regard to those provisions relating solely to the comprehensive
review.
5-3
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 6. SPECIAL PERMITS
6-1 Authority
This rule governs special permit procedures pursuant to authority conferred by chapter
205-6, Hawaii Revised Statutes, as amended.
6-2 Standing to Submit a Petition for a Special Permit
Any person who desires to use its land within a State Land Use agricultural or rural
district other than for an agricultural or rural use may petition the Commission for
permission to use its land in the manner desired.
6-3 Petition and Content
A petition for a Special Permit shall be filed with the Commission’s office and shall
include the following:
(a) Non-refundable filing and processing fee of one hundred dollars.
(b) Original and fifteen copies of:
(1) Application form;
(2) Description of the property in sufficient detail to determine its precise
location;
(3) A plot or site plan of the property, drawn to scale, with all existing and
proposed uses and/or structures shown thereon;
(4) Elevations of the proposed structures;
(5) A statement of the reasons for the granting of the Special Permit citing
how the proposed use would promote the effectiveness and objectives of
chapter 205, HRS, and why the proposal is an unusual and reasonable use
of the land. The following criteria shall also be addressed:
(A) Such use shall not be contrary to the objectives sought to be
accomplished by the Land Use Law and Regulations;
(B) The desired use shall not adversely affect surrounding properties;
(C) Such use shall not unreasonably burden public agencies to provide
roads and streets, sewers, water, drainage, school improvements,
and police and fire protection;
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(D) Unusual conditions, trends, and needs have arisen since the district
boundaries and regulations were established;
(E) The land upon which the proposed use is sought is unsuited for the
uses permitted within the district;
(F) The proposed use will not substantially alter or change the
essential character of the land and the present use; and
(G) The request will not be contrary to the General Plan and official
Community Development Plan and other documents such as
Design Plans.
(c) A copy of full-size site plan and/or elevations of the proposed structure, a
minimum of 2 feet by 3 feet in dimension, drawn to scale. The site plan should
include property lines, reference points (roadways, shoreline, etc.), and existing
and proposed structures and uses.
6-4 Incomplete Application
The Commission, through the Planning Department, shall neither accept nor process an
application which is incomplete as to form and content.
6-4A 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 planning department for additional
information; and
(6) The address and telephone number of the planning 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
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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
(2005 edition).
(d) The applicant shall file an affidavit with the planning 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.
6-5 Public Hearing
(a) The Commission shall conduct a public hearing within a period of ninety days
from the date of receipt of a properly filed petition.
(b) Promptly after the Commission’s fixing a date for the public hearing, the
petitioner shall mail a notice of the application and hearing to owners of interests
in properties within three hundred feet of the perimeter boundary of the affected
property and to owners of interests in other properties which the Planning
Commission may find to be directly affected by the proposed request. Such
notice shall state:
(1) Name of the petitioner;
(2) Precise location of the property involved;
(3) Nature of the proposed use; and
(4) Date, time, and place of the hearing.
(c) Prior to the date of the hearing, the petitioner shall file with the Commission, an
affidavit or other similar proof of mailing of said notice. The Commission shall
not conduct a hearing if this requirement has not been complied with.
(d) In addition to said notice and at least ten days prior to the date of the hearing, the
Commission shall publish notice of the hearing in a newspaper of general
circulation in the County which includes the information provided under section
6.5(b)(1-4) of this rule.
6-6 Grounds for Special Permit
The Commission shall not approve a Special Permit unless it is found that the proposed
use:
(a) Is an unusual and reasonable use of land situated within the Agricultural or Rural
District, whichever the case may be; and
(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii Revised
Statutes, as amended.
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The Commission shall also consider the criteria listed under section 6.3(b)(5)(A)
through (G).
6-7 Action
Within thirty days after the close of the hearing or within a longer period as may be
agreed to by the petitioner, the Commission shall:
(a) For a Special Permit involving less than fifteen acres of land, approve it by stating
the reasons and attaching appropriate performance conditions; or
(b) For a Special Permit involving fifteen or more acres of land, recommend approval
to the State Land Use Commission by stating the reasons and attaching
appropriate performance conditions; or
(c) Deny it by stating the reasons.
An application recommended for approval to the State Land Use Commission shall be
forwarded within sixty days after the decision is rendered by the Commission.
6-8 Amendments of Permit or Conditions
(a) The petitioner may apply to the Commission through the Planning Department for
an amendment to the permit or condition(s) imposed.
(b) In the case of time extensions, the petitioner 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; and
(3) The reasons for the request.
If the Commission is not able to act on a properly filed time extension request
prior to the expiration date, the use granted under the Special Permit may be
continued, unless the Commission specifically disallows the activity during the
interim period.
(c) In the case of additions, modifications, and/or deletions of conditions; or the
original permit granted, the petitioner shall set forth in writing:
(1) The affected condition;
(2) The specific amendment requested; and
(3) The reasons for the request.
(d) The petitioner shall also file a one hundred dollars publication fee, along with the
original and ten copies of the request.
(e) The hearing and notice procedures and action shall be the same as under sections
6-5 and 6-7 of this rule, provided further that the Commission shall conduct a
6-4
hearing within a period of sixty days from the date of receipt of a properly filed
petition, or within a longer period as may be agreed to by the Commission.
6-9 Appeals
The Commission’s decision is appealable to the Third Circuit Court.
6-5
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 7. USE PERMITS
7-1 Authority
This rule governs use permit procedures before the Planning Commission as required by
Chapter 25 (Zoning Code), Hawaii County Code 1996.
7-2 Definitions
As used in this rule, except as otherwise recognized by context:
(1) "Board" means the Board of Appeals of the County of Hawaii.
(2) "Commission" means the Planning Commission of the County of Hawaii.
(3) "Department" means the Planning Department of the County of Hawaii.
(4) "Director" means the Director of the Planning Department of the County of
Hawaii.
(5) "Plan Approval" means the review and approval of plans for new structures and
additions to existing structures, and certain uses in specified zoning districts in
order to assure that the intent and purpose of Chapter 25, Hawaii County Code
1996 are carried out.
7-3 Application and Content
An application for a use permit shall be filed with the Commission, through the
Department, and shall include:
(1) A non-refundable filing and processing fee of two hundred fifty dollars ($250).
(2) Original (signed) and twenty (20) copies of:
(A) Application form as approved by the Planning Commission;
(B) Detailed written description and background information as required on the
Use Permit Application form;
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(C) An analysis of how the request satisfies each of the following standards:
(i) The granting of the proposed use shall be consistent with the
general purpose of the zoning district, the intent and purpose of the
Zoning Code, and the County General Plan;
(ii) The granting of the proposed use shall not be materially detrimental
to the public welfare nor cause substantial, adverse impact to the
community's character or to surrounding properties; and
(iii) The granting of the proposed use shall not unreasonably burden
public agencies to provide roads and streets, sewer, water,
drainage, schools, police and fire protection and other related
infrastructure.
(D) Scale-drawn plot plan of the property showing property lines, all existing
and proposed structures, uses and improvements; and reference points
such as roadways, shoreline, etc.
(3) One full-size 2-foot by 3-foot scale-drawn plot plan for presentation purposes
which includes the information required under Section 7-3(2)(D) of this rule.
(4) A list of names, addresses and tax map key numbers of all owners and lessees of
record of surrounding properties who are required to receive notice in accordance
with Section 25-2-4 of the Zoning Code.
(5) The Commission may require the submission of a scaled model of the proposed
use and development of the property.
7-4 Incomplete Application
The Director, on behalf of the Commission, shall neither accept nor process an
application which is incomplete as to form and content.
7-4A 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;
7-2
(5) That the public may contact the planning department for additional
information; and
(6) The address and telephone number of the planning 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
(2005 edition).
(d) The applicant shall file an affidavit with the planning 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.
7-5 Notice
(a) Upon acceptance of a use permit application, the Commission, through the
Department, shall fix a date for the public hearing. The public hearing shall be
commenced no later than sixty days after the acceptance of a use permit
application by the Director.
(b) At least ten calendar days prior to the date of the public hearing, unless a longer
time period is required by either statute or charter provision, in which case, the
notice period provided by statute or charter provision shall apply, the Commission
shall publish a notice of the public hearing in at least two newspapers of general
circulation in the County which includes the following:
(1) Name of the applicant;
(2) The precise location of the property involved;
(3) Nature of the application and the proposed use of the property; and
(4) The date, time and place on which the public hearing will be held.
(c) The applicant shall serve notice on property owners and lessees of record of the
surrounding properties as follows:
7-3
(1) Within ten days after filing an application with the Commission, through
the Department, the applicant shall serve a first notice of the filing of the
application on the surrounding owners and lessees.
(2) Within ten days after receiving notice of the date of the public hearing and
not less than ten days prior to the scheduled date of the public hearing, the
applicant shall serve a second notice on the surrounding owners and
lessees.
(3) The notice shall include the following information:
(i) Name of the applicant;
(ii) Precise location of the property involved, including tax map key
identification, location map and site plan;
(iii)Nature of the application and the proposed use of the property;
(iv) Date on which the application was filed with the Commission; and
(v) Date, time and place that the scheduled public hearing will be held
to consider the application (to be included in the second notice).
(4) When the building site is located within the State Land Use Urban or
Rural District, notice shall be served to owners and lessees of record
within three hundred (300) feet of any point along the perimeter boundary
of the building site.
(5) When the building site is located within the State Land Use Agricultural
District, notice shall be served to owners and lessees of record within five
hundred (500) feet of any point along the perimeter boundary of the
building site. Except, if the surrounding properties are located within
either the State Land Use Urban or Rural District, notice shall be served to
owners and lessees of record within three hundred (300) feet of any point
along the perimeter boundary of the building site.
(d)Prior to the public hearing, the applicant shall submit to the Commission proof of
service or of good faith efforts to serve notice of the application on the designated
property owners and lessees. Such proof may consist of certified mail receipts,
affidavits, declarations, or the like. The failure of a property owner or lessee to
receive written notice, shall not invalidate any proceeding by the Commission,
provided that good faith efforts were made by the applicant to serve notice on the
affected property owner or lessee.
7-6 Criteria for Granting a Use Permit.
The Commission may approve a use permit upon finding that:
7-4
(a) The granting of the proposed use shall be consistent with the general purpose of
the zoning district, the intent and purpose of the Zoning Code, and the County
General Plan;
(b) The granting of the proposed use shall not be materially detrimental to the public
welfare nor cause substantial, adverse impact to the community's character or to
surrounding properties; and
(c) The granting of the proposed use shall not unreasonably burden public agencies to
provide roads and streets, sewer, water, drainage, schools, police and fire
protection and other related infrastructure.
7-7 Decision
(a) Within ninety days after acceptance of a use permit application, the Commission
shall either deny or approve the application. The Commission's decision shall be
accompanied by a statement of factual findings supporting the decision, together
with any conditions imposed upon a use permit approval.
(b) In approving any use permit application, the Commission may issue the approval
subject to conditions, including hours of daily operation and terms of the use
permit. The conditions imposed by the Commission shall bear a reasonable
relationship to the use permit granted.
(c) If the Commission fails to render a decision within the prescribed period, the
application shall be considered as being approved, provided that no written
objection to the use permit is received by the Commission.
7-8 Concurrent Requests
Concurrent requests may be acted upon by the Commission in conjunction with a use
permit application.
7-9 Appeal
Within thirty (30) calendar days after the date of the Commission's written decision, any
person aggrieved by the decision may appeal the Commission's action to the Board of
Appeals in accordance with Section 25-2-20 of the Zoning Code.
7-10 Revocation
(a) A use permit shall be revoked by the Commission at the request of any property
owner who holds the use permit sought to be revoked or at the request of any
other person with the property owner's consent upon the submission of a written
statement to the Commission verifying that the use approved under the use permit
issued has either not been established or has been abandoned.
(b) The Commission may revoke any use permit upon request of the Director if:
(1) There have been continual violations of the use permit; or
7-5
(2) The use authorized under the use permit is creating a threat to the health or
safety of the community; or
(3) The use authorized under the use permit has been abandoned for a
continuous period of two years.
(c) The proceeding to revoke a use permit, upon request of the Director, shall require
written notice to the property owner and to the person who has been issued the
permit prior to the Commission taking action to revoke the permit.
(d) A property owner or other person affected by the proposed revocation of a use
permit ordered by the Commission, may, within thirty (30) days after the mailing
of the Commission's order, appeal the Commission's action to the Board of
Appeals as provided by Section 5-6.3 of the County Charter and Sections 25-2-20
through 25-2-24 of the Zoning Code. An appeal to the Board of Appeals shall
stay the provisions of the Commission's revocation order pending the final
decision of the Board of Appeals.
7-11 Contested Case
A contested case, as defined in Chapter 91, Hawaii Revised Statute, shall not be held by
the Commission for any use permit application.
7-12 Severability
In the event any portion of this rule is declared invalid, such invalidity shall not affect
other parts of this rule.
7-6
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE NO. 8. SHORELINE SETBACK
8-1 Authority
Pursuant to authority conferred upon the Planning Commission by Chapter 205A, Hawaii
Revised Statutes, 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-43 and -46, Hawaii Revised Statutes.
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) "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.
(c) "Planning Commission" means the planning commission of the County of Hawaii.
8-1
(d) "Planning Department" means that agency of the County of Hawaii consisting of
the planning director and the necessary staff.
(e) "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.
(f) "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.
(g) "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.
(h) "Shoreline setback line" means that line established by the Planning Department
in accordance with the requirements of Planning Department Rule No. 11
regarding Shoreline Setback, running inland from and parallel to the certified
shoreline at a horizontal plane.
(i) "Structure" includes, but is not limited to, any portion of any building, pavement,
road, pipe, flume, utility line, fence, groin, wall, or revetment.
8-4 Variance Application and Content
(a) An application for a shoreline setback variance shall be filed with the Planning
Commission, through the Planning Department, and shall include:
(1) A non-refundable publication fee of two hundred dollars.
(2) Original and twenty copies of:
(A) Application form;
(B) Description of the property in sufficient detail, including the tax
map key identification, location map, and land area;
8-2
(C) Written description of the proposed project, including a statement
as to how the request complies with Section 8-10;
(D) An environmental assessment consistent with the requirements of
Chapter 343, Hawaii Revised Statutes, 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
(E) A site plan of the shoreline setback area, drawn to scale, showing:
(i) Existing natural and man-made features and conditions
within the shoreline setback area;
(ii) Existing natural and man-made features and conditions
along properties immediately adjacent to the shoreline
setback area and proposed improvements;
(iii) The certified shoreline;
(iv) The shoreline setback line;
(v) Contours at a minimum interval of five feet unless waived
by the Planning Commission;
(vi) Proposed development and improvements showing new
conditions.
(3) A copy of the certified shoreline survey map of the property.
(4) Detailed justification of the proposed project, which addresses the criteria
and conditions set forth in Section 8-10 of these rules.
(5) One minimum 2-foot by 3-foot presentation map which includes the
information required in Section 8-4(a)(2)(E) of these rules.
(6) A list of all properties by tax map key located within 300 feet of the
perimeter boundary of the property under consideration.
(7) Any other information required by the Planning Commission.
(b) A shoreline setback variance application, which was filed pursuant to this rule,
but was held in abeyance pending adoption of amendments to this rule, shall be
8-3
considered complete, provided the Planning Commission may ask for written
justification to address the newly adopted criteria set forth in this rule.
8-4A 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 planning department for additional
information; and
(6) The address and telephone number of the planning 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
(2005 edition).
(d) The applicant shall file an affidavit with the planning 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.
8-4
8-5 Incomplete Application
The Planning Commission, through the Planning 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.
8-6 Compliance with Chapter 343, Hawaii Revised Statutes
An environmental assessment, prepared in accordance with the requirements of
Chapter 343, Hawaii Revised Statutes (HRS) and Title 11, Chapter 200, Hawaii
Administrative Rules (HAR), shall accompany the filing of a shoreline setback variance
application with the Planning Commission. The Planning Department, on behalf of the
Planning 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 Planning Department has complied with the requirements of
Chapter 343, HRS and Title 11, Chapter 200, HAR.
8-7 Public Hearing
(a) Except as otherwise provided in this rule, the Planning Commission shall conduct
a public hearing within a period of ninety days from compliance with the
requirements of Chapter 343, HRS and Title 11, Chapter 200, HAR, or within a
longer period as may be agreed to by the applicant. In the case of a finding of no
significant impact (FONSI) and final environmental impact statements, the Office
of Environmental Quality Control 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 Planning
Commission shall publish a notice of the hearing in at least two daily newspapers
of general circulation in the county which includes the following:
(l) 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;
(4) Date, time, and place of the public hearing.
(c) Promptly after the Planning Commission's fixing a date for the hearing but not
less than fourteen 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
8-5
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 Planning 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) An additional two hundred dollar publication fee shall be submitted for each
hearing continued at the request of the applicant.
8-8 Decision
(a) Within sixty days after the conclusion of the hearing or within a longer period as
may be agreed to by the applicant, the Planning 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 original application, shall be accepted by the Planning
Commission for a period of one year from the effective date of the denial of the
original application; provided, however, that upon showing of a substantial
change of circumstances the Planning Commission may permit the filing of a new
application prior to the expiration of such a one year period.
8-9 Waiver of Public Hearing and Action
(a) The Planning Commission hereby delegates to the Planning 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 Planning Department to be
legally constructed, which costs more than $20,000; provided the structure
is at risk of immediate danger 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); or
8-6
(3) Maintenance, repair, reconstruction, and minor additions or alterations of
legal boating, maritime, or water sports recreational facilities, which result
in little or no interference with natural shoreline processes.
(b) An applicant who seeks processing under Section 8-9 shall make the request in
writing upon submittal of the variance application.
(c) The Planning Department may deny the public hearing waiver and the application
shall be heard and noticed by the Planning Commission in accordance with
Section 8-7 of these rules.
(d) The Planning Department shall promulgate rules to administer this Section 8-9.
8-10 Criteria for Approval of a Variance
(a) A variance may be granted for a structure or activity otherwise prohibited by
these rules if the Planning Commission finds in writing, based on the record, that
the proposed structure or activity is necessary for or ancillary to:
(l) Cultivation of crops;
(2) Aquaculture; or
(3) Landscaping.
(b) A variance may also be granted upon a finding that, based upon the record, the
proposed structure or activity meets one of the following standards of this
subsection:
(1) Shoreline-dependent Facility Standard.
A variance may be granted for an activity or structure that is necessary for
or ancillary to a shoreline-dependent facility or improvement, including
drainage facilities and boating, maritime or ocean sports recreational
facilities; provided that the proposal is the practicable alternative which
best conforms to the purpose of this rule.
(2) Public Interest Standard.
A variance may be granted for an activity or structure which is undertaken
by a public agency or by a public utility regulated under Chapter 269,
Hawaii Revised Statutes, or a private facility or improvement which is
undertaken by a private entity and is clearly in the public interest;
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provided that the proposal is the practicable alternative which best
conforms to the purpose of this rule.
(3) Hardship Standard.
(A) 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.
(B) Before granting a hardship variance, the Planning 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.
(C) If a structure is proposed to artificially fix the shoreline, the
Planning Commission must also determine that shoreline erosion is
likely to cause hardship if the structure is not allowed within the
shoreline setback area.
(D) Hardship shall not be determined as a result of zoning
amendments, planned unit development (PUD) permits, cluster
plan development (CPD) permits, or subdivision approvals after
June 16, 1989.
(c) 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;
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(4) To minimize risk of structures failing and becoming loose rocks or rubble
on public property; and
(5) To minimize adverse impacts on public views to, from, and along the
shoreline.
8-11 Amendments to a Variance
(a) The applicant may apply to the Planning Commission through the Planning
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 an original and twenty copies of 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 Planning 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;
(3) The reasons for the request; and
(4) Any other information required by the Planning Commission.
(d) Upon submitting a request as set forth in Section 8-11(b) or (c), with the
exception of administrative time extensions, the applicant shall also file a two
hundred dollar publication fee.
(e) The hearing and notice procedures and action shall be the same as under
Sections 8-7 and 8-8 of this rule, provided further that the Planning Commission
shall conduct a hearing within a period of ninety days from the date of receipt of a
properly filed request, or within a longer period as may be agreed to by the
applicant.
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8-12 Administration and Enforcement
The Planning Department is responsible for the processing of all variance applications in
accordance with the requirements of Sections 8-4 through 8-7 and 8-11 of this rule. The
Planning Department is also responsible for the enforcement of all conditions and
requirements associated with a variance issued in accordance with this rule.
8-13 Appeals
A decision of the Planning Commission is appealable to the Third Circuit Court.
8-14 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.
8-10
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority
Pursuant to authority conferred by Chapter 205A, Hawaii Revised Statutes, 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
Hawaii.”
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:
(1) “Agency” means any board, commission, department, or officer of a county
government or state government including the Authority.
(2) “Applicant” means any individual, organization, partnership, or corporation,
including any utility or agency of government who seeks permission or
authorization which the Director may grant under this rule.
(3) “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.
(4) “Authority” means the Planning Commission of the County of Hawaii.
(5) “Public Works Director” means the Director of the Department of Public Works
of the County of Hawaii.
(6) “County” means the County of Hawaii.
(7) “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.
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(8) “Cultural” pertains to traditional and customary practices and usage of resources
to fulfill responsibilities and rights possessed and exercised by ahupuaa tenants
who are descendants of Native Hawaiians who inhabited the Hawaiian Islands
prior to 1778.
(9) “Department” means the County of Hawaii Planning Department.
(10) “Development” means any of the following uses, activities, or operations on land
or in or under water within the Special Management Area:
A. “Development” includes the following:
(i) Placement or erection of any solid material or any gaseous, liquid,
solid, or thermal waste;
(ii) Grading, removing, dredging, mining, or extraction of any
materials;
(iii) Change in the density or intensity of use of land, including but not
limited to the division or subdivision of land;
(iv) Change in the intensity of use of water, ecology related thereto, or
of access thereto; and
(v) Construction, reconstruction, demolition, or alteration of the size
of any structure.
B. “Development” does not include the following uses, activities or
operations:
(i) Construction of a single-family residence that is not part of a larger
development;
(ii) Repair or maintenance of roads and highways within existing
rights-of-way;
(iii) Routine maintenance dredging of existing streams, channels, and
drainage ways;
(iv) 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;
(v) Zoning variances, except for height, density, parking, and
shoreline setback;
(vi) Repair, maintenance, or interior alterations to existing structures or
relating to existing uses;
(vii) Demolition or removal of structures, except those structures
located on any historic site as designated in national or state
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registers or those listed in the Historic Sites Element of the
General Plan;
(viii) 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;
(ix) Transfer of title of land;
(x) Creation or termination of easements, covenants, or other rights in
structures or land;
(xi) Subdivision of land into lots greater than twenty acres in size;
(xii) The amendment of the General Plan, State Land Use Boundary
amendments and changes of zone;
(xiii) 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;
(xiv) Installation of underground utility lines and appurtenant
aboveground fixtures less than four feet in height along existing
corridors;
(xv) Structural and non-structural improvements to existing single-
family residences, where otherwise permissible; and
(xvi) Non-structural improvements to existing commercial structures.
(xvii) Construction, installation, maintenance, repair, and replacement of
civil defense warning or signal devices and sirens.
C. Any proposed use, activity, or operation listed in paragraph B shall be
deemed to be “Development” until the Director has determined it to be
exempted from the definition of “development.”
D. 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.
(11) “Director” means the Planning Director or his authorized designee of the County
Planning Department.
(12) “EIS” means an informational document prepared in compliance with Chapter
343, HRS, and the Hawaii Administrative Rules, Title II, Chapter 200
(Environmental Impact Statement Rules). An EIS discloses the environmental
effects of a proposed action, effects of a proposed action on the economic welfare,
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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.
(13) “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.
(14) “General Plan” means the adopted General Plan of the County, and any
amendments thereto.
(15) “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.”
(16) “Owner” means all equitable and legal holders or lessees of real property.
Lessees shall present certification of approval from the legal owner.
(17) “Person” means and includes any individual, organization, partnership, or
corporation, including any utility and any agency of government.
(18) “Petitioner” means and includes any person who seeks permission or
authorization which the Authority may grant under this rule.
(19) “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.
(20) “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.
(21) “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 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.
(22) “Special Management Area” means the land extending inland from the shoreline
as delineated on the maps filed with the Authority as of June 8, 1977, or as
amended pursuant to Section 9-21.
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(23) “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 such
structures were previously found to be in compliance with requirements of the
Federal Flood Insurance Program.
(24) “Special Management Area Minor Permit” means an action by the Director
authorizing development, the valuation of which is not in excess of $125,000 and
which has no cumulative impact, or a substantial adverse environmental or
ecological effect on the Special Management Area.
(25)“Special Management Area Use Permit” means an action by the Authority
authorizing development, the valuation of which exceeds $125,000 or which may
have a cumulative impact, or a substantial adverse environmental or ecological
effect on the Special Management Area.
(26) “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.
(27) “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.
(28) “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 paragraph (10)A. above, the fair market value
of the development.
(29) “Vegetation Growth” means any plant, tree, shrub, grass, or groups, clusters or
patches of the same, naturally rooted and growing.
(30) “Artificial light” or "artificial lighting” means the light emanating from any fixed
human-made device.
(31) “Directly illuminate” means to illuminate through the use of a glowing element,
lamp, globe, or reflector of an artificial light source.
(32) “Ocean waters” means all waters seaward of the shoreline within the jurisdiction
of the State.
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
9-5
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 Authority, 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.
9-9 Authority of the Department in the Special Management Area
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.
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 $125,000 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 Authority 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 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
objectives.
4. An Environmental Assessment (EA) or Environmental Impact Statement
(EIS) if required under Chapter 343, HRS, or when required by the
Director.
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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. A 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
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filing under this section.
C. The Director shall assess the proposeduse, activity or operation upon the
applicant's compliance with Section 9-10B 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 adverse
effect established by Section 9-10 H of this rule.
D. The Director, within thirty-five 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:
1.The proposed use, activity or operation does not constitute a development
or is exempt from the definition of development; or
2.A Special Management Area Minor Permit is being issued; or
3.A Special Management Area (Major) Use Permit is required; or
4.Return an incomplete application with a written explanation or its
deficiencies.
If the proposed use, activity, or operation is less than $125,000 in value and the
Director fails to act within the thirty-five 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 E of this rule.
E. Where it is found that the proposed use, activity or operation is not in excess of
$125,000 in valuation; and will not have a cumulative impact, or a substantial
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 $125,000 or may have a substantial adverse effect on the Special Management
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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 of this rule.
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 9-4(10)B of this rule, and does not have a cumulative impact, or a
substantial 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 adverse effect on the Special Management Area.
H. Criteria of Substantial 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 adverse effect’ is determined by the specific circumstances of the
proposed use, activity or operation. In determining whether a proposal may have
a substantial 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
adverse effect on the environment when the proposed use, activity or operation:
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 affects the economic or social welfare and activities of the
community, County or State;
5. involves substantial secondary impacts, such as population changes and
effects on public facilities;
6. in itself has no substantial adverse effect but cumulatively has
considerable adverse effect upon the environment or involves a
commitment for larger actions;
7. substantially 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
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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 Application
The Department may create a SMA short form assessment application for uses
that may result in a determination that the proposed use is exempt, i.e., single
family residence, minor grubbing, or accessory structures. The Department may
allow the applicant to submit a short form assessment in lieu of a full assessment.
The short form assessment application 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;
3.Description of the proposed action, including the extent of land clearing, if
any;
4.A statement of valuation; and
5. Description of any known historical sites, anchialine ponds, wetland, or
sandy beach.
In case of a single family dwelling, a Building Permit application or application
for Plan Approval may suffice as the short form assessment.
The Director shall issue an exemption or require a full SMAA within ten working
days of receipt of the short form assessment application or within a longer period
as may be agreed to by 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. If the Director
does not issue an exemption or require a full SMAA, the applicant shall submit a
full SMAA.”
9-11 Special Management Area Use Permit Procedures
A. Compliance with Chapter 343, Hawaii Revised Statutes
If the action proposed requires compliance with Chapter 343, Hawaii Revised
Statutes, an environmental assessment or environmental impact statement shall
accompany the filing of a special management area use permit application. The
Planning Department, on behalf of the Planning Commission, shall be the
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accepting authority of all environmental assessments and/or environmental impact
statements, if appropriate, which are prepared in accordance with Chapter 343,
Hawaii Revised Statutes and this rule. A special management area use permit
application shall not be considered complete until such time as the requirements
of Chapter 343, Hawaii Revised Statutes and Title 11, Chapter 200, 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
$125,000 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 original and twenty copies of the completed application including the
following:
a. A tax 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;
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iv. Any probable adverse environmental effects which cannot
be avoided;
iv.Alternatives to the proposed action;
v.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;
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 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;
j. Identification and detailed information of existing public access to
and along he shoreline and whether the access is being used; and
k. Any other plans or information required by the Director.
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2. A plot plan of the property with the information required under paragraph
1.b. above that shall be a minimum of two (2) feet by three (3) feet or of
similar dimensions as may be agreed to by the Director.
3. 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.
4. 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.
5.Archaeological Resources (one of the following):
a.An archaeological inventory report 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 "no effect" letter from the DLNR – SHPD.
c.A copy of letter written by the applicant to the DLNR – SHPD
requesting a "no effect" letter, including supporting
documentation, to which DLNR – SHPD has not responded after
30 days.
6. Two hundred fifty dollars filing fee to cover publication and other
administration costs.
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 planning department for additional
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information; and
f. The address and telephone number of the planning 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.
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 (2005 edition).
4. The applicant shall file an affidavit with the planning 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 receipt and acceptance of a properly filed and completed application, the
Department shall place the application on the agenda of the Authority for its
consideration and action.
Promptly after the Authority’s 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 Authority, 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 Authority shall give public
notice of the time, date, and place of the hearing at least once statewide and 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.
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The hearing shall be conducted within a period of ninety calendar days from the
receipt of the properly filed application unless the ninety-day period is waived by
the applicant. 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 Planning 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 dollars publication 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 Authority may permit the proposed development only upon finding that:
1. The development will not have any substantial adverse environmental or
ecological effect except as such adverse effect is minimized to the extent
practicable and is clearly outweighed by public health, safety, or
compelling public interest;
2. The development is consistent with the objectives and policies and the
Special Management Area guidelines as provided by Chapter 205A, HRS;
and
3. The development is consistent with the General Plan, Zoning Code and
other applicable ordinances.
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;
b.The extent to which those resources, including traditional and
customary native Hawaiian rights, will be affected or impaired by
the proposed action; and
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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 a reasonable time, not to exceed thirty (30) calendar days after the
conclusion of the hearing, or within a period not less than ten (10) but not
more than forty-five (45) calendar days from the receipt of the hearing
officer’s report, or within a longer period as may be agreed to by the
applicant, the Authority shall render a decision. The decision, whether to
grant or to deny the application, shall require a majority vote of the total
membership of the Authority. In the event the Authority 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 Authority to defer action on the application.
A decision to defer action on the application shall require a majority vote
of the total membership of the Authority. In the event the Authority 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 the notice to the applicant’s
last known address.
3. Reconsideration: In the event an application is denied due to the
Authority’s failure to render a decision within the period prescribed by
paragraph F.1. above, the applicant may, within ten (10) 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 the Authority for its reconsideration at the next meeting.
In the event the Authority fails to render a decision by a majority vote of
its total membership at the next meeting, the application shall be
considered as denied.
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
original application, shall be accepted by the Authority through the
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Director for a period of two (2) years from the effective date of the denial
of the original application; provided, however, that upon showing of a
substantial change of circumstances the Authority may permit the filing of
a new application prior to the expiration of such a two (2) year period.
5. Judicial Review: Approval or denial of the application shall be final and
appealable to the Third Circuit Court of the State of Hawaii in accordance
with Chapter 91, HRS, as amended.
G. Amendments to a Special Management Area Use Permit or Conditions
1. Application: The applicant may apply to the Authority 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 dollars to cover publication and other administrative costs,
along with the original and twenty copies of the request.
2. Notice and Hearing: The hearing and notice procedures shall be the same
as under Section 9-11 D of this rule, provided further that the Authority
shall conduct a hearing within a period of forty-five calendar days from
the receipt of a properly filed application unless the forty-five day period
is waived by the applicant.
3. Decision and Order: The procedures shall be the same as provided for
under Section 9-11 F of this rule.
9-11.1Artificial 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)Subsection (a) shall not apply to:
9-17
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 (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.
9-11.2 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) Subsection (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
(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.
9-12 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
9-18
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 Authority 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.
9-13 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.
9-14 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.
(2) The Director submits a request if:
(a) There have been continual violations of the permit; or
(b) There have been noncompliance with the conditions of the permit.
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 Authority 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 Planning 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 E of this rule.
9-19
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
(30) 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
Hawaii Revised Statutes. 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.
9-15 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.
9-16 Complaint and Investigative Procedures
The Department shall adopt rules to establish procedures for investigating complaints and
alleged violations.
9-17 Administrative Fines
The Department is authorized to impose administrative fines in accordance with
established rules.
9-18 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.
9-19 Hearing Officer
A. The Authority 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 Authority as provided by this rule.
B. The notice and hearing requirements for hearings conducted by a hearing officer
9-20
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.
C. 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 Authority.
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 Authority and
to all persons involved in the proceedings.
D. 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.
E. Testimony Before the Authority:
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 Authority may grant such request.
2. The Authority may on its own motion re-open the hearing to allow the
taking of additional testimony and further evidence.
F. Authority Action:
1. In the event no statement of exception is filed, the Authority 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, the Authority shall render its decision pursuant to Rule 9.11 E.
9-21
9-20 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 Authority through the Director requesting the
adoption, amendment or repeal of any provision of this rule.
The petitioner shall be responsible for submitting the following to the Director:
1. The original and fifteen copies of 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. Two hundred fifty 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
9-11 C, provided further that the Authority shall conduct a minimum of two
public hearings 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 E.
9-21 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 Authority, 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 Authority, the general public
9-22
and the Office of State 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 Authority.
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 Authority 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 Authority 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 E.
B. Special Management Area Boundary Amendments Initiated by the General
Public:
1. Application:
Any person may apply to the Authority through the Director requesting
the amendment of the Special Management Area boundaries.
The applicant shall submit the following to the Department:
a. The original and twenty copies of 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 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. Two hundred fifty dollars filing fee to cover publication and other
administrative costs.
9-23
2. Notice and Hearing
The notice and hearing procedures shall be the same as stipulated under
Section 9-11 C of this rule.
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 9-21 A(3) of this
rule.
4. Decision and Order:
The procedures shall be the same as provided for in Section 9-11 E of this
rule.
9-24
2. Notice and Hearing
The notice and hearing procedures shall be the same as stipulated under
Section 9-11 C of this rule.
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 9-21 A(3) of this
rule.
4. Decision and Order:
The procedures shall be the same as provided for in Section 9-11 E of this
rule.
9-25
PLANNING COMMISSION
RULE 10
RELATING TO APPEALS
REPEALED
EFFECTIVE - JULY 20, 2000.
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 11. ZONING AMENDMENTS
11-1 Authority
This rule governs zoning amendment procedures before the Planning Commission as
required by Chapter 25 (Zoning Code), Hawaii County Code.
11-2 Definitions
As used in this rule, except as otherwise recognized by context:
(1) "Council" means the County Council of the County of Hawaii.
(2) "Commission" means the Planning Commission of the County of Hawaii.
(3) "Director" means the Director of the Planning Department of the County of
Hawaii.
(4) "Zoning Amendments" means changes to the boundaries of the zoning districts or
changes to any other provision of Chapter 25 (Zoning Code), Hawaii County
Code.
11-3 Procedures for Processing Zoning Amendments
(a) Public Hearing Notice
(1) The Commission shall publish notice of the public hearing in at least two
newspapers of general circulation in the County, at least ten (10) days
prior to the date of the hearing, unless a longer time period is required by
either statute or charter provision, in which case, the notice period
provided by statute or charter provision shall apply. The notice shall
specify the time, date and place of the hearing, its purpose and a
description of the property, if any, involved.
(2) The Commission may publish consolidated notices of any public hearings
to be held on the same date; provided that the consolidated notices state
specific information regarding the time, date and place, the purpose and a
description of the property involved in each matter.
(3)In the cases of amendments initiated by the Director and Council, the
Commission shall publish notice of the public hearing in accordance with
subsection (a)(1), except that when a proposed amendment involves a
specific parcel of land, notice shall be provided by the Commission as
follows:
(i) Notice by mail to surrounding owners and lessees of record shall
not be required for any amendment initiated by the Director or the
11-1
Council. In lieu of mailing written notice to surrounding owners
and lessees of record, the Commission shall publish notice of the
public hearing in at least two newspapers of general circulation in
the County, once a week for three consecutive weeks, with the last
notice to be at least ten (10) days prior to the hearing. The notice
shall specify the time, date and place of the hearing, its purpose and
a description of any property which may be involved.
(ii) No later than thirty (30) days prior to the public hearing, the
Commission shall provide notice by mail to owners of any
properties specifically subject to the proposed amendment.
(4) Prior to the public hearing, the applicant shall submit to the Commission
proof of service or of good faith efforts to serve notice of the application
on the designated property owners and lessees. Such proof may consist of
certified mail receipts, affidavits, declarations, or the like. The failure of a
property owner or lessee to receive written notice, shall not invalidate any
proceeding by the Commission, provided that good faith efforts were
made by the applicant to serve notice on the affected property owner or
lessee.
(b) Amendments initiated by property owners and other persons.
(1) The Commission shall hold at least one public hearing and shall provide
thirty (30) days notice of the date of the hearing to the applicant.
(2) Within ninety (90) days after receipt of the application from the Director,
unless a longer period is agreed to by the applicant, the Commission shall
transmit the proposed change of zone ordinance together with its
recommendations thereon through the Mayor to the Council. The
Commission shall recommend approval in whole or in part, with or
without modifications, or rejection of such application.In the event that
the Commission fails to act on the application within the ninety-day
period, the application shall be considered an unfavorable
recommendation by the Commission, and the application shall be
transmitted through the Mayor to the Council with such recommendation.
(c) Amendments initiated by the Director and Council.
(1) Any proposed amendment initiated by the Director shall be reviewed by
the Commission. The Director shall submit the justification and
recommendation on the amendment to the Commission.
(A) Upon receipt of a proposed amendment from the Director, the
Commission shall hold at least one public hearing.
(B) Within sixty (60) days after receipt of the amendment from the
Director, the Commission shall transmit the proposed amendment
together with its recommendation thereon through the Mayor to the
Council. The Commission shall recommend approval in whole or
in part, with or without modifications, or rejection of such
amendment. In the event that the Commission fails to act on the
amendment within the sixty-day period, such inaction shall be
considered as unfavorable recommendation by the Commission,
11-2
and the amendment shall then be submitted through the Mayor to
the Council with such recommendation.
(2) The Council shall refer any proposed Council-initiated amendment to
Chapter 25, Zoning Code, to the Director and the Commission with
requests for their respective comments and recommendations thereon,
prior to the first reading of any such amendment. The Director and the
Commission shall each submit comments and recommendations on the
proposed amendment to the Council within one hundred twenty (120) days
from the date that the amendment is transmitted by the Council.
(A) Within the one hundred twenty (120)-day review period, the
Director shall submit comments and any recommendations to both
the Commission and the Council. The Commission shall hold at
least one public hearing on the proposed amendment.
(B) The Commission shall transmit the proposed amendment together
with its recommendation thereon through the Mayor to the
Council. The Commission shall recommend approval in whole or
in part, with or without modifications, or rejection of such
amendment. In the event that the Commission fails to act on the
amendment within the one hundred twenty-day review period,
such inaction shall be considered as an unfavorable
recommendation by the Commission, and the amendment shall
then be submitted through the Mayor to the County Council with
such recommendation.
(C) After the one hundred twenty (120)-day review period has expired,
the Council may proceed to act on the proposed amendment as it
deems appropriate.
11-4Posting 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 planning department for additional
information; and
(6) The address and telephone number of the planning department.
11-3
(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 (2005
edition).
(d) The applicant shall file an affidavit with the planning 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.
11-4
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 12. GEOTHERMAL RESOURCE PERMITS
12-l Purpose and Authority
This rule governs geothermal resource permit procedures pursuant to authority conferred
by section 205-5.1, Hawaii Revised Statutes, as amended, upon the Planning Commission
to determine whether proposed geothermal development activities should be allowed.
The Planning Commission is the issuing authority for geothermal resource permits in
geothermal resource subzones located within Agricultural, Rural and Urban State Land
Use Districts in the County.
The Planning Commission’s approval of an application for a geothermal resource permit
shall not in any way abrogate nor supercede the provisions of Chapters 182 and 183,
HRS, and rules promulgated thereunder.
12-2 Definitions
As used herein, “geothermal development activities,” whether for research or
commercialization purposes, means exploration, development, or production of electrical
energy from geothermal resources, or as otherwise defined in Hawaii Revised Statutes,
Section 205-5.1.
12-3 Contents of Application
Any person who desires to conduct geothermal development activities on land that is
located within a geothermal resource subzone and located within either the Agricultural,
Rural or Urban State Land Use Districts shall apply to the Planning Commission for a
geothermal resource permit. An application for a geothermal resource permit shall be
filed in the Planning Department's office and shall include the following:
(a) Non-refundable filing and processing fee of one thousand dollars.
(b) Original and twenty-five copies of:
(1) Application form;
(2) Written and appropriate graphic descriptions of the property and the
proposed geothermal development activities including, but not limited to:
(A) A description of the property for which a permit is being requested
to include the property’s real property tax map key designation and
a description of the property’s location within the County.
(B) A written statement describing the scope of the planned activities
and presenting the applicant's reasons for requesting the permit.
12-1
(C) A preliminary plot or site plan of the property, drawn to scale,
showing all existing and proposed uses and locations of structures
including, but not limited to, drilling sites, wells, access roadways,
water sources, waste water collection and disposal systems, the
geothermal steam and/or brine collection and disposal systems,
power plant(s) and electrical power distribution systems.
(D) Preliminary elevation drawings of the proposed temporary and
permanent structures.
(E) The proposed locations and elevations and depths of all
superstructures and drilling rigs, bottom hole locations, casing
program, proposed well completion program, size and shape of
drilling sites, and location of all existing and proposed access
roads.
(F) Areas of potential temporary and/or permanent surface
disturbance, including, but not limited to, excavation and grading
sites, the location of camp sites, airstrips, and other support
facilities, excavation and borrow pits for roads and other
construction activities.
(G) A written description of the methods for disposing of well effluent
and other wastes.
(H) A geologist’s report on the site and surrounding area’s surface and
subsurface geology, nature and occurrence of known or potential
geological hazards and geothermal resources, surface and ground
water resources, topographic features of the land, and drainage
patterns.
(I) Pre-exploration meteorological, ambient air quality and noise level
measurements that demonstrate the potential effects on
surrounding properties through air quality and noise impact
analysis.
(J) A written description of the measures proposed to be taken for
protection of the environment, including, but not limited to, the
prevention and/or control of:
(i)Fires,
(ii)Soil erosion,
(iii)Surface and ground water contamination,
(iv) Damage to fish and wildlife or other natural resources,
(v) Air and noise emissions,
(vi)Hazards to public health and safety,
(vii)Socio-economic impact(s), and
12-2
(viii) Impact(s) on public infrastructure and services.
(K) Statement(s) addressing how the proposed development would
mitigate or reconcile:
(i) Any effects to residents or surrounding properties in the
areas of health, environment and socio-economic activities;
(ii) The burdening of public agencies to provide support
infrastructure such as roads, sewers, water, drainage,
school and related services and police and fire protection.
(L) Preliminary provisions and/or plans for the monitoring of
environmental effects such as noise and air and water quality
during each proposed phase of the project (exploration,
development and production) demonstrating how the applicant
intends to comply with this rule, the rules of the State’s
Department of Health, and the rules of the State Board of Land and
Natural Resources.
(M) A preliminary plan of action for emergency situations which may
threaten the health, safety, and welfare of employees and other
persons in the vicinity of the proposed project site including, but
not limited to, procedures to facilitate coordination with
appropriate Federal, State and County officials and the evacuation
of affected individuals.
(N) Preliminary timetable(s) and/or schedule(s) for each proposed
phase of the project.
(O) Method(s) of presenting timely progress reports to the Planning
Commission.
(P) Other pertinent information or data such as an archaeological
survey which the Planning Director may require to support the
application for the utilization of geothermal resources and the
protection of the environment.
(c) Graphic representations suitable for both staff analysis and public presentation,
including the depiction of the project boundaries, reference points (roadways,
shoreline, etc.), existing and proposed structures and appurtenances. Graphics for
public presentation shall be a minimum of 2 feet by 3 feet in dimension, drawn to
scale on a map or maps of 1:24,000 scale, or larger when required by the
Commission.
12-4 Properly Filed Application
Within twenty days of receipt of an application, the Planning Director shall review it to
determine if it is complete in that it includes the supporting data required pursuant to
Section l2.3 of this rule. An application that is determined to be complete shall be
officially accepted within twenty days of receipt of the application and the applicant shall
be so notified in writing.
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12-4A 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 planning department for additional
information; and
(6) The address and telephone number of the planning 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
(2005 edition).
(d) The applicant shall file an affidavit with the planning 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.
12-5 Hearing and Notification
(a) The Planning Director, on behalf of the Planning Commission, shall set a date for
a public hearing to be held within a period of ninety days from the date of official
acceptance of a properly filed and completed application.
(b) The Planning Commission shall conduct a public hearing. Upon appropriate
request for mediation from any party who submitted comment at the public
hearing, the Planning Commission shall order the requesting party or parties, the
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applicant and the appropriate agencies to submit to the mediation process outlined
in Section l2.5.l of this rule.
(c) Promptly after the Planning Director fixes a date for the public hearing and at
least 15 days before the date of the public hearing, the applicant shall mail a
notice of the hearing to owners of interests in properties, as shown on the current
real property tax rolls at the County Real Property Tax Office, within a minimum
of three hundred feet of the perimeter boundary of the property for which a permit
is being requested (or as determined by the Planning Director), and to other
interested persons or groups as may be determined by the Planning Director. The
applicant shall also make a reasonable attempt or best effort in notifying residents
within one thousand feet of the perimeter boundary of the property of the public
hearing. Such notice shall state:
(l) Name of the applicant;
(2) Precise location of the property involved;
(3) Nature of the proposed geothermal development activities; and
(4) Date, time, and place of the hearing.
(d) If the notification requirement set forth in section 12.5 (c) has not been met, the
Planning Commission shall not conduct a hearing and further action on the
application shall be deferred until the notification requirement is met.
(e) In addition to said notice and at least fifteen days prior to the date of the hearing,
the Planning Commission shall publish notice of the hearing in a newspaper of
general circulation in the County which includes the information provided under
section 12.5(c)(l-4) of this rule.
l2-5-l Mediation
(a) Persons Entitled to Request Mediation. Any person, including interested
government agencies, who submitted comment at the public hearing may, upon
appropriate request, seek mediation of issues raised by that person at the initial
public hearing. Upon receipt of an appropriate request, the Planning Commission
shall require the parties to participate in mediation. All appropriate requests for
mediation shall be consolidated in a single mediation conference. The Planning
Commission shall not be a party to the mediation, and shall not be permitted to
attend mediation conferences. The Planning Department may be a party to the
mediation if it makes an appropriate request.
(b) Requests for Mediation. A request for mediation shall be made in writing to the
Planning Commission, shall contain a brief statement of the issue or issues raised
by that person at the public hearing, and shall contain the name, address, phone
number and signature of the person requesting mediation.
(c) Time for Submission of Request. The original and ten (l0) copies of the request
for mediation shall be filed with the Planning Commission within five days after
the close of the initial public hearing and one copy of the request shall be served
on the applicant.
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(d) Appointment of a Mediator. Within five days after receipt of a timely request, the
Planning Commission shall appoint a qualified mediator. Appointment of the
mediator by the Planning Commission shall be final, except as provided in
Section l2.5.l(e).
(e) Qualifications of Mediator. No person shall serve as a mediator in any dispute in
which that person has any financial or personal interest in the result of the
mediation, except by the written consent of all parties to the mediation. Prior to
accepting an appointment, the prospective mediator shall disclose any
circumstances likely to create a presumption of bias or prevent the prompt
completion of the mediation. Upon receipt of such information, the Chairperson
shall either replace the mediator or immediately communicate the information to
the parties for their comments. In the event the parties are unable to agree as to
whether the mediator shall serve, or in the event the appointed mediator becomes
unable or unwilling to serve, the Chairperson will appoint another mediator. The
mediator shall not be an employee of any County agency or its staff.
(f) Notice of Mediation Conference. The applicant and any person submitting a
timely request for mediation shall be notified by the Planning Commission of the
date, time, and place of the first mediation conference by depositing such notice
in the mail to the return address stated in the application and in the request for
mediation. The notice shall be mailed no later than ten days before the start of the
mediation conference.
(g) Mediation Conference. The initial mediation session shall be held within 15 days
after the appointment of the mediator. The mediator shall fix the time and place
of each subsequent mediation session. The conference shall be held within the
County of Hawaii unless all parties and the mediator agree otherwise. The
mediation period shall not extend beyond thirty days after the initial mediation
session, except by order of the Planning Commission. Mediation shall be
confined to the issues raised at the public hearing by the respective party or
parties requesting mediation.
(h) Authority of Mediator. The mediator shall attempt to help the parties reach a
satisfactory resolution of their dispute, but shall not have authority to impose a
settlement upon the parties. The mediator may conduct joint and separate
meetings with the parties and make oral and written recommendations for
settlement.
(i) Privacy. Mediation sessions shall be private. The parties and their
representatives shall have the right to attend the joint mediation sessions. Other
persons may attend only with the permission of all parties to the mediation and
the consent of the mediator.
(j) Confidentiality. Confidential information disclosed to a mediator by any party in
the course of the mediation shall not be divulged by the mediator to anyone,
including other parties to the mediation. All records, reports, or other documents
received by a mediator while serving in such capacity shall be confidential. The
mediator shall not be compelled to divulge such records or to testify in regard to
the mediation in any administrative proceedings or judicial forum.
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(k) The parties shall maintain the confidentiality of the mediation and shall not rely
on, or introduce as evidence in any arbitral, judicial, administrative, or other
proceeding:
(i) views expressed or suggestions made by any other party with respect to a
possible settlement of any disputed issue;
(ii) statements or admissions made by any other party in the course of
mediation proceedings;
(iii) proposals made or views expressed by the mediator;
(iv)the fact that the other party had or had not indicated willingness to accept
a proposal for settlement made by the mediator.
(1) Stenographic Record. There shall be no stenographic record or electronic
recordation of the mediation process.
(m) Recommendation of Mediator. The mediator shall submit a written report
containing recommendations to the Planning Commission, based upon any
mediation agreement reached between the parties or stating that no agreement was
reached, for consideration by the Planning Commission in its final decision. The
written report of the mediator shall be filed with the Planning Commission and
served on all parties to the mediation within 10 days of the close of the mediation
conference.
(n) Second Public Hearing. If there is no mediation agreement, or if the mediation
agreement does not resolve all issues submitted for mediation, the Planning
Commission may, in its sole discretion, hold a second public hearing to receive
additional comment related to the unresolved mediation issues. The second
public hearing, if to be conducted, shall be held within thirty (30) days after
receipt of the mediator’s report. Within 10 days after the second public hearing,
the Planning Commission may receive additional written comment on the
unresolved mediation issues raised at the second public hearing by any party.
(o) If a second hearing is held, the Planning Commission shall consider the comments
raised at the second hearing before rendering its final decision. The Planning
Commission shall then determine whether a geothermal resource permit shall be
granted for geothermal development activities described in the application.
(p) Expenses. The parties shall each bear their respective costs, fees and expenses.
12-6 Criteria for Issuance of Geothermal Resource Permit
The Planning Commission shall grant a geothermal resource permit if it finds that the
applicant has demonstrated that:
(a) The proposed geothermal development activities would not have unreasonable
adverse health, environmental, or socio-economic effects on residents or
surrounding property; and
(b) The proposed geothermal development activities would not unreasonably burden
public agencies to provide roads and streets, sewers, water, drainage, school
improvements, and police and fire protection; and
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(c) There are reasonable measures available to mitigate the unreasonable adverse
effects or burdens referred to above.
12-7 Action
(a) Unless there is mutual agreement to extend the period of time for the Planning
Commission’s action, the Planning Commission shall take action on a properly
filed and complete application within six months (180 days) of the date a
complete application is filed; provided that the time limit may be extended by
agreement between the applicant and the Planning Commission.
(b) The Planning Commission’s action shall either:
(1) Grant the geothermal resource permit as requested by the applicant based
upon the satisfaction of criteria in section 12.6 above and stating the
reasons therefore, subject to performance, reporting and other appropriate
conditions imposed by the Commission.
(2) Grant the geothermal resource permit as may be modified from the
applicant’s request and stating the reasons therefore, subject to
performance, reporting, and other appropriate conditions imposed by the
Commission.
(3) Grant the geothermal resource permit in phases or increments dependent
upon the timely and progressive completion of a precedent phase or
increment and stating the reasons therefore, subject to performance,
reporting, and other appropriate conditions imposed by the Commission.
(4) Deny the geothermal resource permit and stating the reasons therefore.
(c) The Chairperson of the Commission shall issue official written notification to the
applicant of the Commission’s action including any performance, reporting, and
other appropriate conditions imposed by the Commission.
12-8 Requirements Prior to Initiating Construction
Prior to initiating construction of an approved project or any phase of an approved
project, the applicant shall submit the following to the Planning Director:
(a) Copies of approved permits and other applicable approvals for the project or any
phase of the project from other County, State or Federal agencies as applicable.
(b) Final plans or provisions for monitoring environmental effects of the project or
any phase of the project such as noise, air and water quality as may be required to
insure compliance with County rules and the rules of the State’s Department of
Health and Board of Land and Natural Resources, and other permit-issuing
agencies.
(c) A final plan of action to deal with emergency situations which may threaten the
health, safety, and welfare of the employees and other persons in the vicinity of
the proposed project site. The plan shall include procedures to facilitate
coordination with appropriate State and County officials and the evacuation of
affected individuals.
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(d) A final site plan and elevations of proposed temporary and/or permanent
structures for the project or any phase of the project.
12-9 Amendments of Permit and Conditions
(a) For any amendments to the geothermal resource permit or its conditions the
permittee shall set forth in writing:
(1) The specific amendment requested;
(2) The reasons for the request, including statements addressing the criteria
listed under section 12.6(1) through (3) of this rule; and
(3) Any other applicable information requested by the Planning Director.
(b) In the case of any amendment concerning a time extension to the permit or its
conditions, the permittee shall file the request not less than ninety days prior to
the deadline for performance of the condition, setting forth:
(1) The affected condition;
(2) The length of time requested; and
(3) The reasons for the request.
If either the Planning Director or the Planning Commission is not able to act on a
properly filed time extension request prior to the deadline for a time extension,
the geothermal development activities allowed by the Geothermal Resource
Permit may be continued by the Planning Director.
(c) All of the procedures set forth in sections 12.4 through 12.12 of this rule and the
procedures set forth in other applicable Planning Commission rules shall apply.
12-10 Enforcement of Permit and Conditions
(a) If the Planning Director determines that there is noncompliance with the
geothermal resource permit or its conditions, the Planning Director shall so inform
in writing the permittee and, if applicable, other appropriate County, State or
Federal agencies, setting forth the grounds of his determination. Upon receiving
notice of the determination of noncompliance, the permittee shall have five days to
provide a written response to the notice of determination of noncompliance.
(b) Notwithstanding any written response submitted by the permittee, if the Planning
Director affirms the determination of noncompliance, he shall so advise the
permittee in writing. The permittee shall have five days thereafter to correct the
noncompliance; provided that the Planning Director may allow a longer period
upon a finding of good cause, such as where circumstances beyond the
permittee’s control will prevent compliance within the five-day period.
(c) The permittee may request a hearing with the Planning Commission to amend the
permit, should compliance be impossible or impractical to meet.
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(d) If the permittee fails to correct the noncompliance within the required time
period, the Planning Director shall refer the matter with his recommendations to
the Planning Commission for further disposition, which may include, but is not
limited to, either the revocation or the modification of the permit.
(e) Notwithstanding any other provision of this section, pending a hearing by the
Planning Commission the Planning Director may immediately and temporarily
suspend the permit and operations allowed thereunder. Notice of a temporary
suspension shall be provided in writing or orally with subsequent written
confirmation within three days to the permittee and shall set forth the reasons for
the temporary suspension. The Planning Director may reactivate the permit upon
a subsequent finding of the permittee’s compliance with the permit condition.
Subject to the Planning Commission rules, the permittee may at any time request
a hearing before the Planning Commission for its review and action with regard to
the permit's temporary suspension or any subsequent refusal of the Planning
Director to reactivate the permit. Referrals by the Planning Director to the
Planning Commission and reviews by the Planning Commission of the Planning
Director’s action shall be heard at the Commission’s next meeting when the
matter can be placed on the Commission’s agenda.
12-11 Penalties
If a permittee, its successors or assigns do not comply with any provision of a permit or
its conditions issued under this Rule they may be subject to a civil fine not to exceed
those provided for by applicable statutes.
12-12 Appeals
(a) Any decision made by the Planning Commission pursuant to a public hearing or
hearings under this rule may be appealed directly on the record to the supreme
court for final decision and shall not be subject to a contested case hearing.
Sections 9l-l4(b) and (g), Hawaii Revised Statutes, as amended, shall govern the
appeal, notwithstanding the lack of a contested case hearing on the matter. The
Planning Commission shall provide a court reporter to produce a transcript of the
proceedings at all public hearings under this rule for purposes of an appeal.
(b) For the purposes of an appeal from a decision from a public hearing, the record
shall include:
(l) The application for the permit and all accompanying supporting
documents, including but not limited to; reports, studies, affidavits,
statements, and exhibits.
(2) Staff recommendations from County agencies submitted to the Planning
Commission in consideration of the application.
(3) Oral and written public testimony received at the public hearings.
(4) Written transcripts of the proceedings at the public hearings.
(5) The written recommendation received by the Planning Commission from
the mediator with any mediation agreement.
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(6) A statement of relevant matters officially noticed by the Planning
Commission and/or any of its members at the public hearings.
(7) The written decision of the Planning Commission issued in connection
with the application and public hearings.
(8) Other documents required by the Planning Commission.
12-11
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 13. STATE LAND USE DISTRICT BOUNDARY AMENDMENT
13-1 Purpose and Authority
This rule governs State Land Use district boundary amendment procedures pursuant to
authority conferred by Section 205-3.1 of the Hawaii Revised Statutes and Chapter 28 of
the Hawaii County Code, which allow the County to amend State Land Use district
boundaries for lands fifteen acres or less located in the State Land Use Urban, Rural, and
Agricultural districts. District boundary amendments to lands situated within the State
Land Use Conservation district, however, are not covered by this rule.
13-2 Standing to Submit Petition for State Land Use District Boundary Amendment
A petition for a change in district boundary may be filed by any department or agency of
the state or county, or by any person with a property interest in the land sought to be
reclassified. A petition may also be initiated by resolution of the County Council.
13-3 Contents of Petition
A petition for a State Land Use district boundary amendment shall be filed with the
Planning Department and shall include the following:
(a) Non-refundable filing and processing fee of two hundred dollars.
(b) Original and fifteen copies of:
(1) Application form;
(2) Description of the property in sufficient detail, including the tax map key
identification, map, and acreage;
(3) Preliminary site plan, drawn to scale, with all existing and proposed
structures and improvements shown thereon;
(4) The reclassification sought and the present use of the land; and
(5) Reasons for the requested change and a written description of the
proposed development.
(c) A minimum 2-foot by 3-foot presentation map which includes the information
required under Section 13-3(b)(3) of this rule.
13-1
13-4 Incomplete Petition
The Planning Department shall neither accept nor process a petition which is incomplete
as to form and content. An incomplete petition shall be returned to the applicant with a
written explanation of its deficiencies.
13-4A 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 planning department for additional
information; and
(6) The address and telephone number of the planning 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
(2005 edition).
(d) The applicant shall file an affidavit with the planning 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.
13-5 Procedures for Reviewing and Processing of Petition
(a) Planning Department
13-2
(1) Upon receipt of a complete petition, the Planning Department shall serve a
copy to the State Land Use Commission and the State Department of
Planning and Economic Development.
(2) Within ninety days of acceptance of a petition or such longer period as
may be agreed to by the petitioner, the Planning Department shall submit
its recommendation to the Planning Commission. The Planning
Department may recommend either the approval or denial of the proposed
amendment or approval subject to conditions which would further the
intent of the General Plan and other related ordinances and documents.
(b) Planning Commission
(1) Within sixty days of receipt of the Planning Department’s
recommendation, the Planning Commission shall conduct at least one
public hearing on the petition. The Planning Commission shall notify the
State Land Use Commission and the State Planning and Economic
Development of the time and place of the hearing and the proposed
amendment scheduled to be heard at the hearing.
(2) At least ten days prior to the public hearing, the Planning Commission
shall give notice of the proposed amendment by publishing it at least once
in a newspaper of general circulation in the County.
(3) In cases of property owner-initiated amendments, promptly after the
Planning Commission’s fixing a date for the hearing but not less than ten
days prior to the date of the hearing, the petitioner shall mail a notice of
the hearing to all property owners within three hundred feet of the affected
property. Prior to the date of the hearing, the petitioner shall file with the
Planning 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.
(4) The petitioner shall notify all property owners within three hundred feet of
the affected property of any subsequent hearing(s) continued at the
petitioner’s request.
(5) After the conclusion of the hearing, the Planning Commission shall
recommend either the approval or denial of the amendment to the County
Council stating its reasons for such decision, including appropriate
performance conditions in the case of an approval recommendation.
(6) Prior to the Planning Commission forwarding its report to the County
Council, the petitioner shall file with the Planning Department a map and
written description by metes and bounds of the property as certified by a
surveyor.
13-6 Standards for Review
In reviewing a district boundary amendment, consideration shall be given to the
provisions set forth in Section 205-2, Hawaii Revised Statutes, and the purpose of
Chapter 28, Hawaii County Code. Specifically, consideration shall be given to the
following:
13-3
(a) The extent to which the proposed reclassification conforms to the applicable
goals, policies, standards, and courses of action of the General Plan and
implementing ordinances, plans and documents. No amendment shall be
approved unless it conforms to the General Plan. However, a proposed
amendment may be combined with a request to amend the General Plan.
(b) The extent to which the proposed reclassification conforms to the applicable
district standards.
13-7 Notification of Decision
Within thirty days of the effective date of the district boundary amendment, the Planning
Department shall submit the decision and the description and map of the reclassified area
to the State Land Use Commission and the State Department of Planning and Economic
Development.
13-8 Consolidated Proceeding with Other Land Use Changes
A petition for a district boundary amendment may be submitted simultaneously with
other land use changes and applicable permits for consolidated review and processing,
including any hearings.
13-4
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 14. GEOTHERMAL ASSET FUND
14-1 Authority
Pursuant to the authority conferred upon the Planning Commission by Ordinance No. 95-
62 and 95-74, the rules and regulations hereinafter contained are hereby established and
shall apply to claims made against the Geothermal Asset Fund.
14-2 Purpose
The purpose of this rule is to allow the Planning Commission to authorize payment of
money from the Geothermal Asset Fund to claimant(s) whom the Planning Commission
finds has been adversely impacted by activities authorized or unauthorized by
Geothermal Resource Permit No. 2, issued by the County of Hawaii, and to authorize
payment for community approved geothermal impact mitigation projects within the
District of Puna. The Geothermal Asset Fund was created pursuant to Condition No. 51
of Geothermal Resource Permit No. 2, issued to Puna Geothermal Venture on October 3,
1989.
14-3 Definition
(a) "Hearing" means the taking of evidence concerning a claim for the purpose of
voting on a recommendation to the Planning Commission as to the granting or
denial of the claim.
(b) "Expert Witness" means any person whom the Planning Commission determines
to be an expert through knowledge, skill, experience, training or education to
provide scientific, technical, or other specialized knowledge that will assist in the
understanding of the evidence. In determining the issue of assistance, the
Planning Commission may consider the trustworthiness and validity of the
scientific technique or mode of analysis employed by the proposed expert.
14-4 General Procedures
All claims for release of monies from the Geothermal Asset Fund will be presented to
and reviewed by a Professional Claims Adjuster, who will then present its findings and
recommendations to the Planning Commission. The Planning Commission will review
these findings and then render a decision.
14-1
14-5 Geothermal Asset Fund Claims Adjuster
A professional claims adjuster will be selected by the Planning Commission after
receiving a list of names selected through requirements of the State Procurement Code.
Unless otherwise required by Statute, the claims adjuster will serve for a period of five
(5) years. In the event that five (5) years have passed and the life of the Geothermal
Asset Fund is extended, the Planning Commission may either ask for a new list of names
to choose another claims adjuster or extend the claims adjuster who previously served the
Planning Commission.
14-6 Eligibility of Claims
Claims for compensation from the Geothermal Asset Fund may be filed by any person or
organization who is adversely impacted under the activity of geothermal development
authorized or unauthorized under Geothermal Resource Permit No. 2, granted by the
County of Hawaii. Persons or organizations that have already been compensated for
damage claims due to a specific event through means other than this Geothermal Asset
Fund shall not be eligible to file claims for compensation for the same event against this
fund. Claims filed with the Planning Department prior to the adoption of the rule may be
reaffirmed through the filing of necessary information pursuant to this rule.
(a) Claims for community approved mitigation projects shall address the alleviation
or attenuation of the direct detrimental effects of geothermal operations carried
out pursuant to Geothermal Resource Permit No. 2.
(b) Claims for temporary relocation shall indicate dates and duration.
(c) Adverse impacts shall include physical injury, medical and health conditions,
business or economic loss, nuisance, or any other claim of adverse impact which
is able to be substantiated by evidence.
(d) Adverse impact claims may be supported by documents such as doctor's
affidavits, photographs, bills, invoices, other expert opinions or testimony, etc.
Documents shall be provided upon request.
(e) Claims will be acted upon with initial filing date setting the first come, first
served basis. Any claim received before the passing of this rule will need to be
resubmitted to follow the guidelines set forth in this rule.
(f) An action on the merits of a claim by the professional claims adjuster to
recommend approval or denial of a claim and subsequent Planning Commission
action to confirm or reject the claims adjuster's recommendation shall, after
exhaustion of the Planning Commission appeal process, become final and shall
bar any subsequent claim before the Planning Commission by the same
claimant(s) based upon the same facts.
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14-7 Filing of Claims
(a) All claims for compensation for adverse impact pursuant to this rule shall be filed
with the Hawaii County Planning Department, 25 Aupuni Street, Hilo, Hawaii
96720.
(b) Each claim shall include the following information:
(1) Name of claimant(s). When the claimant is an organization, the claimant
shall submit a list of officers, a membership list, and a copy of the
organization's by-laws.
(2) Address of claimant(s).
(3) Tax Map Key of claimant(s).
(4) Date of filing of claim.
(5) Description of the nature of the claim, including the way in which the
claimant(s) has been adversely impacted and the compensation sought.
(6) List of documents supporting the claim, showing evidence of adverse
impact.
(7) Fifteen (15) copies of the claim and all supporting documents.
(8) Notarized signature of the claimant(s) on the claim.
(c) The claim application and submitted evidence shall be a matter of public record
and copies shall be distributed to the Planning Commission members who will
hear the claim.
14-8 Hearings
(a) Scheduling of Hearing. Whenever an application is made for compensation, the
claims adjuster shall submit a recommendation to the Planning Commission
within ninety (90) days of the receipt of the application and all supporting
documents.
(b) Documents, Applications, Amendment, Dismissal. All papers, documents and
applications must be written, typewritten, or printed and signed in ink by the party
signing the same and must be legible. The signature of the person signing the
document or application constitutes a certification that they have read the
document, that to the best of their knowledge, information, and belief, every
statement contained in the document is true and no such statements are
misleading. If any document or application filed with the claims adjuster is not in
substantial conformity with the applicable rules as to the contents thereof, or is
14-3
otherwise insufficient, the claims adjuster may recommend to the Planning
Commission dismissal of such document or application or may require its
amendment. If amended, the document or application shall be effective as of the
date of the submittal of amendments.
(c) The claims adjuster shall recommend to the Planning Commission whether or not
the claim has merit and, if so, what amount of compensation. It shall be
forwarded to the Planning Commission within ninety (90) days of filing with the
claims adjuster. The Planning Commission may vote to pay the claimant(s) after
reviewing the supporting documents and the recommendation made by the claims
adjuster if it finds that:
(1) The claimant(s) has been adversely impacted by the activities authorized
or unauthorized by Geothermal Resource Permit No. 2, issued by the
County of Hawaii, and
(2) The amount of compensation to be granted is deemed by the Planning
Commission to be appropriate for the damage caused by the adverse
impact as a result of the activity permitted or not permitted by Geothermal
Resource Permit No. 2, issued by the County of Hawaii, or
(3) The proposal for a Puna community mitigation project will be for the
benefit of a majority of Puna residents most directly impacted by
geothermal development activities permitted or not permitted by
Geothermal Resource Permit No. 2, issued by the County of Hawaii.
(d) The Planning Commission may bring in expert witnesses to review the supporting
documents and recommendation made by the claims adjuster and then to assist it
in making the final decision on any claim. These may include a County Doctor or
other such experts as the Planning Commission shall deem necessary.
(e) Compensation shall be granted or denied by an affirmative vote of the majority of
the entire voting membership of the Planning Commission (five of the nine
members) or by default by the Planning Commission choosing not to consider the
claims adjuster's recommendation.
14-9 Claims Adjuster's Recommendations
The claims adjuster shall recommend to the Planning Commission its recommendation
based on the following determinations:
(a) Basis for the Determination that Adverse Impacts have occurred. Adverse
impacts will be assumed if any of the following are shown to be true.
(1) The geothermal development activities have had unreasonable adverse
health, environmental, or socio-economic effects on a resident(s) or
surrounding property(ies), or
14-4
(2) The geothermal development activities have unreasonably burdened
public agencies to provide roads and streets, sewers, water, drainage,
school improvements, and police and fire protection, or
(3) There are no reasonable measures available to mitigate the unreasonable
adverse effects or burdens referred to above.
(b) Basis for Recommendation to Grant Claim. The claims adjuster shall recommend
that a claim be granted if it finds that:
(1) The claimant(s) has been adversely impacted by the activities authorized
or unauthorized by Geothermal Resource Permit No. 2, issued by the
County of Hawaii, and
(2) The amount of compensation to be granted is appropriate for the damage
caused by the adverse impact resulting from the activity permitted or not
permitted by Geothermal Resource Permit No. 2, issued by the County of
Hawaii, or
(3) The proposal for a community approved Puna mitigation project will be
for the benefit of a majority of Puna residents most directly impacted by
geothermal development activities permitted or not permitted by
Geothermal Resource Permit No. 2, issued by the County of Hawaii.
These findings for recommendation to grant the claim shall be stated in writing
and a copy shall be given to the claimants.
(c) Basis for Recommendation to Deny a Claim. The claims adjuster shall
recommend that a claim be denied if it finds that:
(1) The claimant(s) has not been adversely impacted by the activities
authorized or unauthorized by Geothermal Resource Permit No. 2, issued
by the County of Hawaii, or
(2) The proposal for a Puna community mitigation project, would not be for
the benefit of a majority of Puna residents most directly impacted by the
geothermal development activities permitted or not permitted by
Geothermal Resource Permit No. 2, issued by the County of Hawaii.
These findings for recommendation of denial of the claim shall be stated in
writing and a copy shall be given to the claimant(s).
14-10 Planning Commission Action
(a) The Planning Commission shall review the findings and recommendation prior to
announcing the decision or the date when its decision will be announced. If the
14-5
Planning Commission does not make a decision on the claims adjuster's
recommendation within ninety (90) days from the close of the hearing, the claims
adjuster's recommendation becomes final.
(b) Reconsideration by Planning Commission. Any commissioner who voted with
the majority may move to reconsider a vote on a claim at the same meeting or the
next regular meeting. A decision shall not be reconsidered more than once.
14-11 Award of Compensation
Upon voting to award compensation to claimant(s), the Planning Commission shall
prepare a written, brief statement of the facts upon which the vote was decided, a finding
that the claimant(s) was adversely affected by the activity permitted or not permitted by
Geothermal Resource Permit No. 2, issued by the County of Hawaii, and a statement of
the amount of compensation.
14-12 Denial of Award of Compensation
Upon voting to deny an award of compensation to the claimant(s), the Planning
Commission shall prepare a written, brief statement of the facts upon which the vote was
decided, a finding that a claimant(s) was not adversely affected, that the proposed project
does not mitigate direct detrimental effects caused, or the proposed project will not be for
the benefit of a majority of Puna residents most directly affected by the activity permitted
or not permitted by Geothermal Resource Permit No. 2, issued by the County of Hawaii.
14-13 Appeal
The decision of the Planning Commission whether by vote or by default may be appealed
to the Board of Appeals by the claimant within thirty (30) days from the written receipt of
the decision of award or denial.
14-14 When Rules are Silent
The rules of parliamentary practice and procedure, as laid down by Robert's Rules of
Order, Revised, and where not inconsistent with this rule, shall govern the claims
adjuster.
14-15 Petition for Adoption, Amendment or Repeal of Rules
(a) Any interested person may petition the Planning Commission requesting the
adoption, amendment or repeal of any rules of the Geothermal Asset Fund rule.
(b) The petition shall be submitted in fifteen (15) copies and shall include:
(1) A statement of the nature of the petitioner's interest.
14-6
(2) A draft or the substance of the proposed rule or amendment or a
designation of the provisions sought to be repealed.
(3) An explicit statement of the reasons in support of the proposed rule,
amendment or repeal.
(c) The Planning Commission shall within sixty (60) days after the submission of the
petition either deny the petition in writing, stating its reasons for such denial, or
initiate proceedings in accordance with Chapter 91-3, Hawaii Revised Statutes,
for the adoption, amendment or repeal of the rule, as the case may be, and shall
have the community participation and input as stated in Condition No. 51 of
Geothermal Resource Permit No. 2.
14-16 Relocation
The Geothermal Asset Fund may be used for relocation and payment for adverse impacts.
14-17 Other Rights
Nothing in this rule shall be construed to deprive or deny any person any other rights or
recourse under law.
14-7
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 15. PROJECT DISTRICTS
15-1 Authority
This rule governs Project Districts (PD) before the Planning Commission as required by
Chapter 25 (Zoning Code), Hawaii County Code.
15-2 Purpose
The Project District development is intended to provide for a flexible and creative
planning approach rather than specific land use designations, for quality developments.
It will also allow for flexibility in location of specific uses and mixes of structural
alternatives. The planning approach would establish a continuity in land uses and
designs while providing for a comprehensive network of infrastructural facilities and
systems. A variety of uses as well as open space, parks and other project uses are
intended to be in accord with each individual project district objective. A Project District
is an amendment to Chapter 25, Zoning Code, Hawaii County Code, which changes the
district boundaries in accordance with the individual Project District.
15-3 Contents of Application and Requirements
An application for a Project District shall be filed with the Planning Commission,
through the Planning Department, on a form prescribed by the Planning Director. The
application shall conform to the requirements of Section 25-6-44 of Chapter 25, Zoning
Code. The Director shall review, accept and process an application which has been
determined complete as to form and content and as provided by Section 25-2-3 of
Chapter 25, Zoning Code.
15-3A 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;
15-1
(5) That the public may contact the planning department for additional
information; and
(6) The address and telephone number of the planning 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
(2005 edition).
(d) The applicant shall file an affidavit with the planning 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.
15-4 Procedures for Reviewing and Processing Project Districts
(a) Within one hundred twenty (120) days after a Project District application has
been accepted, the Director shall forward the application to the Commission,
together with a recommendation on the proposed Project District and a proposed
ordinance which establishes the Project District. The ordinance shall provide
Project District standards and conditions, including permitted land uses, accessory
uses, densities, heights, setbacks and variances from the requirements of Chapter
25 (Zoning Code) and Chapter 23 (Subdivision Control), if applicable, as
contained in the master conceptual plan for the Project District.
(b) The Commission shall hold at least one public hearing in the district in which the
proposed Project District is located. The Commission shall provide reasonable
notice of the date of the hearing to the applicant. The Commission shall also
publish notice of the hearing in accordance with the requirements of Section
25-2-5 of Chapter 25, Zoning Code.
(c) Within ten (10) days after receiving notice of the date of the public hearing, the
applicant shall serve notice of the hearing on surrounding property owners and
lessees of record as provided by Section 25-2-4 of Chapter 25, Zoning Code. The
applicant shall also serve notice on owners and lessees of record of interests in
other properties which the Commission may find to be directly affected by the
15-2
proposed Project District.
(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 25-2-4 of Chapter 25, Zoning Code.
15-5 Decision
Within ninety (90) days after receipt of the application from the Director, unless a longer
period is agreed to by the applicant, the Commission shall transmit the proposed Project
District ordinance together with its recommendation thereon to the County Council
through the Mayor for the Council's consideration and action. The Commission shall
recommend approval in whole or in part, with or without modifications, or rejection of
such proposal.
15-6 Criteria for Establishing a Project District
A Project District may be established as an amendment to Chapter 25, Zoning Code,
whenever the public necessity and convenience and the general welfare require that a
comprehensive planning approach for an area should be adopted in order to establish a
continuity in land uses and designs while providing a comprehensive network of
infrastructural facilities and systems. In addition, a Project District may only be
established if the proposed Project District:
(1) Is consistent with the intent and purpose of Chapter 25, Zoning Code, and the
General Plan; and
(2) Will not result in a substantial adverse impact upon the surrounding area,
community or region.
15-7 Amendments to Conditions and Standards
(a) Any amendment to the conditions and standards contained in a Project District
enabling ordinance shall be processed in the same manner as the Project District
enabling ordinance, unless the County Council in the ordinance authorizes the
amendments to be made by the Director.
(b) A request for any amendment to the Project District enabling ordinance shall be
submitted in writing to the Director, in lieu of the application required for a
Project District. The request shall be accompanied by a non-refundable filing fee
of two hundred fifty dollars ($250).
15-3
(1) The applicant shall submit an original and twenty (20) copies of the
written request, which includes:
(i) The affected section of the Project District enabling ordinance;
(ii) The specific amendment or length of time requested;
(iii) The reasons for the request; and
(iv) Any other information required by the Planning Commission.
(2) The notice and hearing procedures and decision shall be the same as under
Sections 15-4 and 15-5 of this rule, provided further that the Planning
Commission shall conduct a hearing within a period of ninety (90) days
from the date of receipt of a properly filed written request, unless a longer
period is agreed to by the applicant.
15-8 Severability
In the event any portion of this rule is declared invalid, such invalidity shall not affect
other parts of this rule.
15-4
PLANNING COMMISSION
COUNTY OF HAWAII
RULES OF PRACTICE AND PROCEDURE
RULE 16. AGRICULTURAL PROJECT DISTRICTS
16-1 Authority
This rule governs Agricultural Project Districts (APD) before the Planning Commission
as required by Chapter 25 (Zoning Code), Hawaii County Code.
16-2 Purpose
The Agricultural Project District development is intended to provide a flexible and
creative planning approach for developments within the agricultural zoning districts, in
lieu of specific land use designations. It will allow for flexibility in the location of
specific types of agricultural uses and variations in lot sizes. Under this planing
approach, opportunities will be provided for a mix of small scale agricultural activities
and associated residential uses, as well as larger agricultural projects. This district will
also provide a vehicle to satisfy the demand of a rural lifestyle on marginal agricultural
land, while decreasing the pressure to develop important agricultural land for this
purpose. The planning approach would establish a continuity in land uses and designs,
while providing for the needed infrastructural facilities and systems to support the
various types of agricultural developments. An Agricultural Project District is an
amendment to Chapter 25, Zoning Code, Hawaii County Code, which changes the district
boundaries in accordance with the individual Agricultural Project District.
16-3 Contents of Application and Requirements
An application for an Agricultural Project District shall be filed with the Planning
Commission, through the Planning Department, on a form prescribed by the Planning
Director. The application shall conform to the requirements of Section 25-6-54 of
Chapter 25, Zoning Code. The Director shall review, accept and process an application
which has been determined complete as to form and content and as provided by Section
25-2-3 of Chapter 25, Zoning Code.
16-3A 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:
16-1
(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 planning department for additional
information; and
(6) The address and telephone number of the planning 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
(2005 edition).
(d) The applicant shall file an affidavit with the planning 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.
16-4 Procedures for Reviewing and Processing Agricultural Project Districts
(a) Within one hundred twenty (120) days after an Agricultural Project District
application has been accepted, the Director shall forward the application to the
Commission, together with a recommendation on the proposed Agricultural
Project District and a proposed ordinance which establishes the Agricultural
Project District. The ordinance shall provide Agricultural Project District
standards and conditions, including permitted land uses, accessory uses, densities,
heights, setbacks and variances from the requirements of Chapter 25 (Zoning
16-2
Code) and Chapter 23 (Subdivision Control), if applicable, as contained in the
master conceptual plan for the Agricultural Project District.
(b) The Commission shall hold at least one public hearing in the Council district in
which the proposed Agricultural Project District is located. The Commission
shall provide reasonable notice of the date of the hearing to the applicant. The
Commission shall also publish notice of the hearing in accordance with the
requirements of Section 25-2-5 of Chapter 25, Zoning Code.
(c) Within ten (10) days after receiving notice of the date of the public hearing, the
applicant shall serve notice of the hearing on surrounding property owners and
lessees of record as provided by Section 25-2-4 of Chapter 25, Zoning Code. The
applicant shall also serve notice on owners and lessees of record of interests in
other properties which the Commission may find to be directly affected by the
proposed Agricultural Project District.
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16-5 Decision
Within ninety (90) days after receipt of the application from the Director, unless a longer
period is agreed to by the applicant, the Commission shall transmit the proposed
Agricultural Project District ordinance together with its recommendation thereon to the
County Council through the Mayor for the Council's consideration and action. The
Commission shall recommend approval in whole or in part, with or without
modifications, or rejection of such proposal.
16-6 Criteria for Establishing an Agricultural Project District
An Agricultural Project District may be established as an amendment to Chapter 25,
Zoning Code, whenever the public necessity and convenience and the general welfare
require that a comprehensive planning approach for an agricultural area should be
adopted in order to establish a continuity in land uses while providing the required
infrastructural facilities and systems. In addition, an Agricultural Project District may
only be established if the proposed Agricultural Project District:
(1) Is consistent with the intent and purpose of Chapter 25, Zoning Code, and the
General Plan; and
(2) Will not result in a substantial adverse impact upon the surrounding area,
community or region.
16-3
16-7 Amendments to Conditions and Standards
(a) Any amendment to the conditions and standards contained in an Agricultural
Project District enabling ordinance shall be processed in the same manner as the
Agricultural Project District enabling ordinance, unless the County Council in the
ordinance authorizes the amendments to be made by the Director.
(b) A request for any amendment to the Agricultural Project District enabling
ordinance shall be submitted in writing to the Director, in lieu of the application
required for an Agricultural Project District. The request shall be accompanied
by a non-refundable filing fee of two hundred fifty dollars ($250).
(1) The applicant shall submit an original and twenty (20) copies of the
written request, which includes:
(i) The affected section of the Agricultural Project District enabling
ordinance;
(ii) The specific amendment or length of time requested;
(iii) The reasons for the request; and
(iv) Any other information required by the Planning Commission.
(2) The notice and hearing procedures and decision shall be the same as under
Sections 16-4 and 16-5 of this rule, provided further that the Planning
Commission shall conduct a hearing within a period of ninety (90) days
from the date of receipt of a properly filed written request, unless a longer
period is agreed to by the applicant.
16-8 Severability
In the event any portion of this rule is declared invalid, such invalidity shall not affect
other parts of this rule.
16-4