HomeMy WebLinkAboutORD 1982-763 1980-1984BILL NO. 809
REVISED
COUNTY OF HAWAII - STATE OF HAWAII
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ORDINANCE N0.
AN ORDINANCE A~'~IENDING CHAPTER 9 (SUBDIVISION CONTROL 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 5, Article 1, Chapter 9 of the
Hawaii County Code is amended to read as follows:
"Sec. 5 VARIANCES.
[Application for a variance from provisions of this
Chapter by a subdivider shall state the facts relied upon
by the petitioner. Such petition shall be filed with the
preliminary plat of the subdivision. Grounds for granting
a variance shall be in accordance with the County Charter.]
Variances from the provisions of this Chapter mad.
be granted; provided that a variance shall not allow the
introduction of a use not otherwise permitted within the
district; and provided further that a variance shall not
primarily effectuate relief from applicable density limitations."
SECTION 2. Article 1, Chapter 9 of the Hawaii County
Code is amended to add a new section to be designated as
"Sec. 5.01" and to read as follows:
"Sec. 5.01 GROUNDS FOR VARIANCES.
No variance m_~ be granted unless it is found that:
A. There are s~ cial or unusual circumstances applying
to the subject real property which exist either
to a degree which derives the owner or applicant
of substantial property 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
B. There are no other reasonable alternatives that
would. resolve the difficulty; and
[C. The degree of deviation from the applicable
requirement(s) is not substantial; and]
[D.] C. The variance will 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. Article 1, Chapter 9 of the Hawaii County
Code is amended to add a new section to be designated as
"Sec, 5.02" and to read as follows:
"Sec. 5.02 APPLICATIONS FOR VARIANCES.
Application for a variance shall be on a form. prescribed
for this purpose by the Director and shall be accompanied by:
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 st.ructlires shown thereon;
D. A list of the names and addresses of all owners and
property interests in propert~~ that is within
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three hundred .(300) feet of the perimeter boundary
of the ~~licant' s ~~ertX; and
E. A-~ other lp ans or information required
the Director."
SECTION 4. Article 1, Chapter 9 of the Hawaii County
Code is amended to add a new section to be designated as
"Sec. 5.03" and to read as follows:
"Sec. 5.03 PROCEDURE FOR VARIANCES.
A. Notice to Owners of Pro~er~ Interests. Upon
recut and acceptance of a properly filed and completed
application, the Department shall fix a date for the
Director's consideration of the ~~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 properties within three hundred (300) feet
of the perimeter boundary of the applicant's ~ropert~ and to
owners of interests in other properties 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 sought and the proposed
accompanying structures, if an ;
(4) The date on which the Director will consider the
implication; and
(S) That such date is the deadline for the Director's
actual receipt of written comments on the
application.
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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 application on the designated
pro~ert~r owners. Such proof m~ consist of certified mail
receipts, affidavits, or the like.
B. Notice ~ Publication.
At least ten (10) calendar days 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 application and the date ~ which written comments
must be in the actual receipt of the Director."
SECTION 5. Article 1, Chapter 9 of the Hawaii County
Code is amended to add a new section to be designated
as "Sec. 5.04" and to read as follows:
"Sec. 5.04 ACTIONS ON VARIANCES.
The Director shall, within sixty (60) days after the
filin of a rp oiler application or within a longer ep riod as
m~ be a-~ to ~ the applicant, deny the application
or approve it subject to conditions. The conditions imposed
the Director shall bear a reasonable relationship to
the variance granted. All actions shall contain a statement
of the factual findings s~~orting the decision.
If the Director fails to act within the prescribed
erg iod, the application shall be considered as having been
denied. Such denial is appealable pursuant to Section 5.06
of this Article."
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SECTION 6. Article 1, Chapter 9 of the Hawaii County
Code is amended to add a new section to be designated as
"Sec. 5.05" and to read as follows:
"Sec. 5.05 REVIEW OF DIRECTOR'S ACfiION (NON-APPLICANT).
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 ~ro~ertX interest in the subject
property;
(2) who owns property within three hundred .(3'0'0)
feet of the subject ~ropert~; 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 distinc~uishab.le from
that of the general public,
then that interested party 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 Direc:tor'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 revieva shall- have an
opportunity to be heard.
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(2) Within forty-fi.ve (45) dais after the receipt
o~ a re:q.uest for review, the Planning
Commission shall determine either that the
Director granted the variance properly
or that sufficient cause exists for a
u~ blic hearing on the matter.
(3) If the Planning Commission fails to make
such determination within the prescribed
time, the Director`s action shall be
considered as having been affirmed.
C. Notice and hearing.
(1) If the Planning Commission determines that
a u~ blic hearing is necessary, it shall
promptly schedule the public hearing at which
time the applicant and members of the general
public shall have the opportunity to be
heard on the a~~lication.
(2) Notice of the u~ blic hearing and its purposes
shall be provided ~ the Planning Commission
to owners of interests in property within
three hundred (300) feet of the perimeter of
the subject property ~ mail postmarked at
least ten (10) calendar dais 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 property interest fail to receive actual
notice of the u~blic hearing.
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(4) Notice of the public hearin~c. and its purposes
shall be published in a newspaper of general
circulation in the Co, unty at least ten (10)
days rior to the date of the ublic hearing.
D. Actions on review.
(1) Within sixth (60) days of its decision to
hold a public hearing on the matter, or
within a longer ep riod as m~ be agreed
to ~ the a~~licant, the Planning Commission
shall deny the application or approve it
subject to the conditions, stating
the factual findings su~gorting 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 9 of the Hawaii County
Code is amended by adding a new section to be designated as
"Sec. 5.06" and to read as follows:
"Sec. 5.06 APPEAL OF DIRECTOR'S ACTION (BY APPLICANT)
A. If the Director denies the a~~lication, such
decision is final exC~t that, within ten (10)
working days after notice of the decision, the
applicant m~ a~~eal such action to the Planning
Commission .
B. Form and filing. An meal ~ an a~~licant
to the Planning Commission shall be submitted in
writing to the Department on a form prescribed
the Planning Commission and shall be accompanied
b~
(1) Anon-refundable filing fee of one hundred
dollars ($100.00); and
(2) Ten (10) copies of a statement of the
specific grounds for the appeal.
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 days r~ for to the date of the hearin .
In addition and pursuant to the same notice
period, the Department shall provide written
notice to persons who had submitted timely
objections before the Director's action.
(2) The Planning Commission shall conduct a
up blic hearing within a e~iod of ninety (90)
dais from the date of receipt of a ~ro~erl~
filed a~~eal, unless that period is waived
the appellant.
D. Actions on A,~eals.
(1) Within sixty (60) days after the close
of the u~ blic hearing or within such longer
e~riod as m~ be agreed to ~ the appellant,
the Planning Commission shall affirm, modify,
or reverse the Director's action.
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(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 5.01 of this
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(3) A decision to affirm, modify, or reverse the
Director's action shall require a majority
vote of the total membership of the Planning
Commission. A decision to defer action on
the appeal shall require a ma~'orit~ 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
havin been affirmed."
SECTION 8. Article 1, Chapter 9 of the Hawaii County
Code is amended by adding a new section to be designated as
"sec. 5.07" and to read as follows:
"Sec. 5.07 FURTHER APPEAL RIGHTS.
A. All actions of the Planning Commission are final
ex that, within ten (10) working dais after notice
of action, the applicant or an "interested part" (as
defined in section 5.05 of this article) in the
proceeding before the Planning Commission, maw a~~eal
such action to the Board of Appeals in accordance
with its rules.
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B. All actions of the Board of Appeals are final exceJ~t
that they are- appealable to the Third Cixcuit Court
in accordance with Chapter 91 of Hawaii Revised
Statutes."
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.
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:
s a
COUNCIE MEMBER, C U TY OF HAWAII
Date of Introduction: February 17, 1982
Date of Adoption: March 3, 1982
Effective Date: March 15, 1982
10
Hilo, Hawaii
liaue: r'epruary li, lyu~
FIRST READING
AYES- NOES A/E
Dahlberg X
De Luz X
Domingo X
Fujii
x
Hale X
Kawahara X
Lai X
S chutte X
Chr. Yamashiro X
9 0 0
Publication Date:
Hilo, Hawaii
Date: March 3_ lAR2
SECOND & FINAL READING
AYES NOES A/E
Dah lbe rg 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: ~~ ~ ~
We do hereby certify that the foregoing BILL was adopted by the
County Council and published as indicated above.
R . , w_a.3
E'•;- ,
I CC F .. '. ~ ~_
CO~~iviY _~ ,., ,,,.~
Date ------------------------ - -------•-----_..._r.,.
May®r., County of Hawa
Bill No. 809 (REVISED)
Reference: PC°92
M.B. No.
Ord. No. ::~