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HomeMy WebLinkAboutORD 1982-762 1980-1984BILL NO. 808 (REVISED) COUNTY OF HAWAII m STATE OF HAWAII 3 ORDINANCE NO. ~ ~ ._ AN ORDINANCE AMENDING CHAPTER 8 (ZONING CODE) OF THE HAWAII COUNTY CODE, AS AMENDED, RELATING TO ADMINISTRATIVE PROCEDURES FOR VARIANCES. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 7, Article 1, Chapter 8 of the Hawaii County Code is amended to read as follows: "Sec. 7 VARIANCES [The Planning Commission may grant "variances" from the provisions of the Chapter provided that no variances shall be granted to allow a use not otherwise permitted within the district.] Variances from the provisions of this Chapter maw be granted; provided that a variance shall not allow the introduction of a use not otherwise permitted within the district; and r,~ ovided further that a variance shall not primarily effectuate relief from applicable density limitations." SECTION 2. Section 7.01, Article 1, Chapter 8 of the Hawaii County Code is amended to read as follows: "Section 7.01 GROUNDS FOR VARIANCES. [No "variance" may be granted unless the Planning Commission finds the following: A. That there are special or unusual circumstances applying to the subject property or building which do not generally apply to surrounding property or improvements in the same district. B. That said special or unusual circumstances exist either to a degree which deprives the owner or applicant of substantial property rights which would otherwise be available, or to a degree which obviously interferes with the best use or manner or development of the subject property. C. That the granting of the "variance" shall not constitute a grant of personal ar special privilege inconsistent with the limitations upon other properties under identical district classification. D. That the granting of the "variance" shall not be inconsistent with the general purpose of the district or the intent and purpose of this Chapter will not militate against the County General Plan and shall not be materially detrimental to the public welfare or injurious to improvements or property rights related to property in the near vicinity. E. That the evidences to support the decision shall be recorded specifically.] " No variance m~ be granted unless it is found that: A. There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial pro~.ert~ rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; and 2 B. There are no other reasonable alternatives that would resolve the difficulty; and [C. The degree of deviation .f_rom the applicable requirement(s) is not substantial; and] [D.] C. The variance shall be consistent with the general purpose of the district, the intent and purpose of this chapter, and the County General Plan and will not be materially detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties." SECTION 3. Section 7.02, Article 1, Chapter 8 of the Hawaii County Code is amended to read as follows: "Sec. 7.02 APPLICATIONS FOR VARIF_NCES. Application for a [']variance['] shall be on a form prescribed for this purpose by the [Planning Commission] Director and. shall be accompanied bv: A. Filing fee of One Hundred Dollars ($100) [.]~ B. A. description of 'the property in sufficient detail to determine the precise location of the property involved[.]; C. A plot plan of the property, drawn to scale, with all proposed. structures shown thereon; [and anv other information necessary relative to the specific request.] D. A list of the names and addresses of all owners of property interests in property that is within three hundred (300) feet of the perimeter boundary of the applicant's nrope_r_ty; and - 3 - E. Ate' other 1~ ans or information required b,~ the Director." SECTION 4. Section 7.03, Article 1, Chapter 8 of the Hawaii County Code is amended to read as follows: "Sec. 7.03 PROCEDURE FOR VARIANCES. [The Planning Commission shall, within sixty (60) days after the filing of the property application or within such longer period as may be agreed to by the applicant, consider the application at a preliminary hearing. If the Commission, at said hearing, determines that the application does not meet the requirements for the granting of a variance as set forth in Charter Section 5-4.3(g), the Commission shall issue an order denying the application and shall refund the filing fee. If, however, there is probable cause to believe that said requirements may possibly be met, the Commission shall schedule the application for a public hearing at which time the applicant and all other interested persons shall be afforded the opportunity to be heard. A. The Planning Commission shall, within thirty (30) days after said preliminary hearing or within such longer period as may be found to be in the best public interest, consider the application at a public hearing. B. Notice of the public hearing and its purposes shall be published at least twice in a newspaper of general circulation in the County, once at least ten (10) days prior to the date of said public hearing and the second at least two (2) days prior to said hearing. - 4 - C. In lieu of a published notice in a newspaper, the Planning Commission may, by policy, require that every recorded property owner, or leaseholder, or property within three hundred .(300) feet of the subject parcel be notified of said public hearing and its purpose by mail which shall be postmarked at least ten (10} days prior to the date of said hearing. D. Under the latter procedure, the proceedings and action shall not be nullified if some owners or leaseholders fail to receive such notice.] A. Notice to Owners of Property Interests. Upon recei t and acceptance of a properly filed and completed a~~lication, the Department shall fix a date for the Director's consideration of the a~~lication. Within three (3) working days after receiving notice of such date, the applicant shall serve notice of the application on owners of interests in ~ro~erties within three hundred (300) feet of the perimeter boundary of the applicant's property and to owners of interests in other ~ro~erties which the Director m~.find to be directly affected ~ the variance sought. Such notice shall state: (1) The name of the applicant; (2) The precise location of the property involved; (3) The nature of the use sou ht and the proposed accompanying structures, if an ; (4) The date on which the Director will consider the a~lication; and 5 a (5) That such date is the deadline for the Director's actual receipt of written comments on the application. Prior to the deadline for written comment,. the applicant shall submit to the Director rp oof of service or of good faith efforts to serve notice of the a~.~lication on the designated property owners. Such roof m~ consist of certifi'ed' mail receipts, affidavits, or the like. B. Notice ~ Publication. At least ten (10) calendar dais prior to the date of the Director's consideration of the application, the Director shall publish, in a newspaper of general circulation, notice of the ap~.lication and the date ~ which written comments must be in the actual receipt of the Director." SECTION 5. Section 7.04, Article 1, Chapter 8 of the Hawaii County Code is amended. to read as follows: "sec. 7.04 ACTIONS ON VARIANCES. The [Planning Commission] Director shall, within [a reasonable time after a duly held public hearing or hearings] sixty (60) dais after the filin of a r~ oper a~~lication or within a longer e~ riod as m~ be agreed to ~ the a~~licant, deny [, approve, or defer] the application or approve it subject to conditions. [A.] The conditions imposed by the [Planning Commission] Director shall bear a reasonable relationship to the ["]variance["] granted [and shall be oriented in the direction of achieving a substantial equivalent or alternative to the regulation from which the variance is sought]. All actions shall contain a statement of the factual findings supporting the decision. _ 6 [B.] If the [Planning Commission] Director fails to act [, without just cause,] within [a reasonable time, the Director shall certify such application as approved and shall so notify the applicant) the prescribed period, the application shall be considered as having been denied. Such denial is appealable pursuant to Section 7.06 of this Article." SECTION 6. Section 7.05, Article 1, Chapter 8 of the Hawaii County Code is amended to read as follows: "Sec. 7.05 [APPEALS FROM ACTIONS ON VARIANCES] REVIEW OF DIRECTOR'S ACTION (NON-APPLICANT). [Action of the Planning Commission shall be final but in case the applicant is dissatisfied with the Commission's decision, he may within thirty (30) days after such action is taken, appeal said decision in writing to the Board of Appeals. A. Said appeal shall be accompanied by a non-refundable fee of ten dollars ($10.00). B. Said appeal shall set forth the basis of such appeal and shall specifically detail the manner in which it is alleged that the Planning Commission has erred in making its determination. C. The Board of Appeals shall, within sixty (60) days after the filing of a proper appeal or within such longer period as may be agreed to by the appellant, consider said appeal. D. Within a reasonable time after considering the appeal, the Board of Appeals shall affirm. modify, or reverse the action from which the appeal was taken.] a 7 - A. Request for review. If the Director grants a variance over the timely written objection submitted an "interested party," which means a person: (1) who has a property interest in the subject ~ro~erty; (2) who owns property within three hundred (300) feet of the subject property; or (3) who can otherwise demonstrate to the satisfaction of the Planning Commission that such person will be so directly and immediately affected the proposed variance that its interest in the action is clearly distinguishable from that of the general public, then that interested a~ rty m~ request the Planning Commission's review of the Director's action. Such request must be made within ten (10) working days after notice of the Director's decision and shall be in writing, containing a statement of its grounds. B. Procedure for review. (1) The Planning Commission shall consider a request for review of the Director's action, at which time the applicant and the e~ rson who requested such review shall have an opportunity to be heard. (2) Within fortX-five (45) days after the receipt of a request for review, the Planning Commission shall determine either that the Director granted the variance properly or that sufficient cause exists for a up blic hearing on the matter. - $ (3) Tf the Planning Commission fails to make such .determination within 'the prescribed time, the Director's action shall be considered as havin~c been affirmed. C. Notice and hearing. (1) If the Planning Commission determines that a up blic hearing is necessary, it shall ~rom~tly schedule the public. hearing at which time the applicant and members of the general up blic shall have the opportunity to be heard on the application. (2) Notice of the up blic hearing and its purposes shall be provided ~ the Planning Commission to owners of interests in pro~ert~ within three hundred (300) feet of the perimeter of of the subject property ~ mail postmarked at least ten (10) calendar days rp for to the date of the hearing. (3) The Planning Commission's proceedings and action shall not be void should such an owner of a pro~ert~ interest fail to receive actual notice of the public hearing. (4) Notice of the u~ blic hearing and its ~ur~oses shall be published in a newspaper of general circulation in the County at least ten (10) days rp for to the date of the u~ blic hearing. D. Actions on review. (1) Within sixty (60) days of its decision to a 9 hold a ublic hearing on the matter, or within a longer ep riod as m be agreed to ~ the applicant, the Planning Commission shall deny the application or a~~rove it subject to conditions, stating the factual findings s~~ortinc~ the variance. (2) If the Planning Commission fails to render a decision within the prescribed time, the Director's action shall be considered as having been affirmed." SECTION 7. Article 1, Chapter 8, of the Hawaii County Code is amended by adding a new section, to be designated as "Section 7.06" and to read as follows: "Sec. 7.06 APPEAL OF DIRECTOR'S ACTION (BY APPLICANT) A. If the Director denies the application, such decision is final except that, within ten (10) working dais after notice of the decision, the a~~licant mom' a~~eal such action to the Planning Commission. B. Form and filing. An appeal ~ an applicant to the Planning Commission shall be submitted in writing to the Department on a form prescribed the Planning Commission and shall be accompanied (1) Anon-refundable filing fee of one hundred dollars ($100.00) ; and (2) Ten (10) codes of a statement of the specific grounds for the appeal. - 10- C. Notice and Hearing. (1) Notice of the u~ blic hearing and its purposes shall be published in a newspaper of general circulation in the County at least ten (10) calendar dais prior to the date of the hearing. In addition and pursuant to the same notice period, the Department shall grovide written notice to persons who had submitted timel objections before the Director's action. (2) The Planning Commission shall conduct a public hearing within a e~ riod of ninety (90) days from the date of receipt of a properly filed ~~eal, unless that ep riod is waived the aellant. D. Actions on Appeals. (1) Within sixty (60) dais after the close of the u~ blic hearing or within such longer ep riod as m~ be agreed to ~ the want, the Planning Commission shall affirm, modify, or reverse the Director's action. (2) All actions of the Planning Commission shall contain a statement of legal and factual bases for its decision in accordance with the criteria contained in section 7.01 of this rra-;.,lo (3) A decision to affirm, modify, or reverse the Director's action shall require a majority vote of the total membership of the Planning 11 m Commission. A decision to defer action on the a peal shall. re wire a majority vote of the Planning Commission members present at the time of the motion for deferral. If the- Planning Commission fails to render a decision to affirm, modify, or reverse the Director's action within the prescribed period, the Director's action shall be considered as having been affirmed." SECTION 8. Article 1, Chapter 8, of the Hawaii County Code is amended to add a new section, to be designated as "Section 7.07" and to read as follows: "Sec. 7.07 FURTHER APPEAL RIGHTS. A. All actions of the Planning Commission are final exce t that, within ten (10) workin days after notice of action, the applicant or an "interested a~ rt~„ (as defined in section 7.05 of this article) in the proceeding before the Planning Commission, m~ appeal such action to the Board of A~~eals in accordance with its rules. B. All actions of the Board of Aeals are final exce t that they are appealable to the Third Circuit Court in accordance with Chapter 91 of Hawaii Revised SECTION 9. Material to be repealed is bracketed. New material is underscored. In printing this ordinance, the brackets, bracketed material and underscoring need not be included. - 12 - SECTION 10. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 11. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUN OF HAWAII Date of Introduction: February 17, 1982 Date of Adoption: Effective Date: March 3, 1982 March 15, 1982 - 13 Hilo, Hawaii Date: r~epruary l~, 17u~ FIRST READING AYES NOES A/E Dahlberg X De Luz X Domingo X Fuj ii X Hale X Kawahara X Lai X Schutte X Chr. Yamashiro X 9 0 0 Publication Date: Hilo, Hawaii Date: march 3, 1982 SECOND & FINAL READING AYES NOES A/E Dahlberg X De Luz X Domingo X Fuj i i X Hale X Kawahara X Lai X Schutte X Chr. Yamashiro X 9 0 0 Publication Date: MAR ~ 3 1 We do hereby cert~.fy that the foregoing BILL was adopted by the County Council and published as indicated above. g', ~ + r - ~. a e-~-~~ -w - ~ M;".. Date ------------------------------------•---., Mayor County of Hawaii Bill No. 808 (REVLSED) Reference: PC-92 M.B. No. .. Ord. No . ~ - ~. ~ ~ , County Cler