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HomeMy WebLinkAboutBIL 079 Draft 01 1998-2000 COUNTY OF HAWAII STATE OF HAWAII BILL NO. 79 ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 25 OF THE HAWAII COUNTY CODE AS AMENDED, RELATING TO ZONING, BY CONFORMING ITS AMENDMENTS TO THE HAWAII COUNTY CHARTER. SECTION 1. Purpose. On July 15, 1998, the Hawaii County Council passed Ordinance No. 98-83, which proposed amendments to §§5-4.2, 5-4.3 and 5-6.3 of the Hawaii County Charter (1991). As the ordinance stated, two of the purposes of the proposed amendments were: - To eliminate the Planning Commission from the appeals process. - To have the Boazd of Appeals hear and determine appeals from final decisions of the planning director and the chief engineer regazding matters within their respective jurisdiction, and to insure that no appeals from the Planning Commission are heazd and determined by the Boazd of Appeals. The voters approved this charter amendment on November 3, 1998. The purpose of this bill is to bring Chapter 25 of the Hawaii County Code into conformity with the new charter amendments. SECTION 2. Chapter 25, Article 2, Division 2 of the Hawaii County Code is amended by adding a new section to be appropriately numbered and to read as follows: Section 25-2- .Further anneal rig ts. All actions of the board of appeals are final except that. within thirty days of the date of he bo rd' written decicion any person aggrieved by the decision of the board of anvealc may anneal sech action to Third Circuit CoLrt pnrsnant to Chanter 91 of the Hawaii Revised Statutes. SECTION 3. Chapter 25, Article 2, Division 2, Section 25-2-20 "Persons who may appeal; procedure" is amended to read as follows: Section 25-2-20. Persons who may appeal; procedure. (a) Any person aggrieved by the decision of the director [or the commission] in the administration or application of this chapter, [except for decisions regarding variance applications and decisions which aze directly appealable to the circuit courts under state law], may, within thirty days after the date of the (director or commission's] director's written decision, appeal the decision to the board of appeals. (b) [Any person aggrieved by the decision of the director or the commission regarding a variance application, may appeal such decision in accordance with the provisions of sections 25-2-55 through 25-2-57 of this chapter. (c)] A person is aggrieved by a decision of the director [or the commission] if: (1) The person has an interest in the subject matter of the decision that is so directly and immediately affected, that the person's interest is clearly distinguishable from that of the general public; and (2) The person is or will be adversely affected by the decision. [(d)]js42 An appeal shall be in writing, in the form prescribed by the boazd of appeals, and shall specify the person's interest in the subject matter of the appeal and the grounds of the appeal. Any such appeal shall be accompanied by a filing fee of $250. The person appealing a decision of the director [or commission] shall provide a copy of the appeal to the director [or commission, as appropriate,] and to the owners of the affected property and shall provide the board of appeals with the proof of service. [(e)] ~ The appellant, the owners of the affected property, and the director [or the commission, as appropriate,] shall be parties to an appeal. Other persons may be admitted as parties to an appeal, as permitted by the board of appeals. SECTION 4. Chapter 25, Article 2, Division 2, Section 25-2-23, "Standard of review" is amended to read as follows: Section 25-2-23. Standard of review. -2- The board of appeals may affirm the decision of the director [or the commission], or it may reverse or modify the decision or remand the decision with appropriate instructions if based upon the preponderance of evidence the board finds that: (1) The director [or commission, as appropriate,] erred in its decision; or (2) The decision violated this chapter or other applicable law; or (3) The decision was azbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. SECTION 5. Chapter 25, Article 2, Division 2, Section 25-2-55, "Review of director's action by non-applicant" is repealed. [Section 25-2-55. Review of director's action by nonapplicant. (a) If the director grants a variance over the timely written objection submitted by an interested party, the interested party may request the commission's review of the director's action. For purposes of this section, an "interested party" means a person who: (1) has a property interest in the subject property; or (2) owns or is the recorded lessee of property within the boundazies established by section 25-2-4; or (3) can otherwise demonstrate to the satisfaction of the commission that such person will be so directly and immediately affected by the proposed vaziance that the person's interest in the action is clearly distinguishable from that of the general public. The request by an interested party must be made in writing within fifteen days after notice of the director's decision, and shall contain a statement of the grounds of the objection. The request shall be accompanied by a nonrefundable filing fee of $250. (b) (1) The commission shall accept a request for review of the director's action only if the request is submitted in writing by an interested party within the time period prescribed by subsection (a) above. The commission shall consider the request at a regulazly scheduled meeting of the commission, at which time the applicant and the person who requested such review shall have an opportunity to be heard. (2) Within forty-five days after the receipt of a request for review, the commission shall determine either that the director granted the variance properly or that sufficient cause exists for a public hearing on the matter. -3- (3) If the commission fails to tnake such determination within the prescribed time, the director's action shall be considered as having been affumed. (c) If the commission determines that a public heazing is necessary, it shall promptly schedule the public heazing at which time the applicant, any interested party, and members of the general public shall have the opportunity to be heard on the application. A contested case hearing, as defined in chapter 91, Hawaii Revised Statutes, shall not be held by the commission on any variance application. (d) Within ten days after receiving notice of the date of the public hearing, the interested party shall serve notice of the heazing on the applicant and on surrounding owners and lessees of record as provided by section 25-2-4. The interested party 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 variance sought. (e) The commission shall provide notice by publication of the public hearing in accordance with the provisions of this chapter. (fj Within ninety days of its decision to hold a public hearing on the matter, or within a longer period as may be agreed to by the applicant, the commission shall either deny the variance application or approve it subject to conditions, stating the factual findings supporting the variance denial or approval. If the commission fails to render a decision within the prescribed time, the director's action shall be considered as having been affirmed.] SECTION 6. Chapter 25, Article 2, Division 5, is amended by adding a new section to read as follows: Section 25-2- 0poeals ~ if the director denies a vaziance anplication. such decision is final except. Lhat. within thirty days after the date of the written decision. the apnlicant may ~gpeal such action to the boazd of an en als" pursuant to the rules of practi~nd giocedure of the boazd of anneals. ~ Anv person aeerieved by the decision of the director in the issuance of a vaziance decision may~ppeal the director's action to the board of anneals. in accordance with this chapter. within thirty days after the date of the director's written decision. -4- SECTION 7. Chapter 25, Article 2, Division 5, Section 25-2-56, "Appeal of director's action by applicant" is repealed. [Section 25-2-56. Appeal of director's action by applicant. (a) If the director denies a vaziance application, such decision is final except that, within thirty days after the date of the written decision, the applicant may appeal such action to the commission. (b) An appeal by an applicant to the commission shall be submitted in writing to the commission on a form prescribed by the commission and shall be accompanied by: (1) A nonrefundable filing fee of $250; and (2) Ten copies of a statement of the specific grounds for the appeal. (c) The commission shall provide notice by publication of the public hearing in accordance with the provisions of this chapter. (d) The commission shall provide written notice of the public hearing, at least ten days prior to the hearing, to persons who had submitted timely objections to the variance application before the director's action. (e) The commission shall conduct a public hearing within a period of sixty days from the date the written appeal is accepted by the commission, unless that period is waived by the applicant. A contested case hearing, as defined under chapter 91, Hawaii Revised Statutes, shall not be held by the commission on any vaziance appeal. (f) Within ninety days after acceptance of an applicant's vaziance appeal, or within such longer period as may be agreed to by the applicant, the commission shall affirm, modify, or reverse the director's action. (g) All actions of the commission shall contain a statement of legal and factual bases for its decision in accordance with the criteria contained in section 25-2- 51 of this chapter. (h) A decision to affirm, modify, or reverse the director's action shall require a majority vote of the total membership of the commission. If the commission fails to render a decision to affirm, modify, or reverse the director's action -5- within the prescribed period, the director's action shall be considered as having been affirmed.] SECTION 8. Chapter 25, Article 2, Division 5, Section 25-2-57, "Further appeal rights," is repealed. [Section 25-2-57. Further appeal rights. All actions of the commission are final except that, within thirty days after the date of the written decision, any person aggrieved by the decision of the commission, may appeal such action to the board of appeals in accordance with this chapter.] SECTION 9. Chapter 25, Article 2, Division 6, Section 25-2-63, "Procedure for use permit" is amended to read as follows: Section 25-2-63. Procedure for use permit. (a) Upon acceptance of a use permit application, the commission shall fix a date for a public hearing. The public hearing shall be commenced no later than sixty days after the acceptance of a use permit application by the director. [A contested case, as defined in chapter 91, Hawaii Revised Statutes, shall not be held by the commission for any use permit application.] (b) The applicant shall serve notice of the use permit application on surrounding owners and lessees of record as provided by section 25-2-4. The applicant shall also serve notice on owners and lessees of record interests in other properties which the commission may find to be directly affected by the use permit sought. (c) Prior to the public hearing, the commission shall publish notice of the public hearing in accordance with the requirements of this chapter. SECTION 10. Chapter 25, Article 2, Division 6, Section 25-2-66, "Appeal of a use permit decision" is amended to read as follows: Section 25-2-66. Appeal of a use permit decision. Within thirty 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 this chapter] Third Circuit Court pursuant to Chanter 91 of the Hawaii Revised Statutes. -6- SECTION 11. Chapter 25, Article 2, Division 6, Section 25-2-67(d), "Revocation of a use permit" is amended to read as follows: Section 25-2-67. Revocation of a use permit. (d) A property owner or other person affected by the proposed revocation of a use permit ordered by the commission, may, within thirty days after 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 this chapter. 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] Third Circuit Conrt pursuant to Chanter 91 of he Hawaii Revised Statutes. SECTION 12. Chapter 25, Article 6, Division 1, Section 25-6-7, "Review of director's action by non-applicant" is repealed: [Section 25-6-7. Review of director's action by nonapplicant. (a) If the director grants a P.U.D. permit over the timely written objection submitted by an interested party, the interested party may request the commission's review of the director's action. For purposes of this section, an "interested party" means a person who (1) has a property interest in the subject property; or (2) owns or is the recorded lessee of property within the boundaries established by section 25-2-4; or (3) can otherwise demonstrate to the satisfaction of the commission that such person will be so directly and immediately affected by the proposed P.U.D. permit that the person's interest in the action is clearly distinguishable from that of the general public. The request by an interested party must be made in writing within fifteen days after notice of the director's decision, and shall contain a statement of the grounds of the objection. The request shall be accompanied by a nonrefundable filing fee of $250. (b) The commission shall accept a request for review of the director's action only if the request is submitted in writing by an interested person within the time period prescribed by subsection (a) above. The commission shall consider the request at a regularly scheduled meeting of the commission, at which time the applicant and the person who requested such review shall have an opportunity to be heard. Within forty-five days after the receipt of a request for review, the commission shall determine either that the director granted the P.U.D. permit properly or that sufficient cause exists for a public hearing on the matter. If the -7- commission fails to make such determination within the prescribed time, the director's action shall be considered as having been affirmed. (c) If the commission determines that a public heazing is necessary, it shall promptly schedule the public hearing at which time the applicant, any interested party and members of the general public shall have the opportunity to be heard on the application. A contested case heazing, as defined in chapter 91, Hawaii Revised Statutes, shall not be held by the commission on any P.U.D. permit application. (d) Within ten days after receiving notice of the date of the public hearing, the interested party shall serve notice of the heazing on the applicant and on surrounding owners and lessees of record as provided by section 25-2-4. The interested party shall also serve notice on owners and lessees of record of interests in other properties which the commission may fmd to be directly affected by the P.U.D. permit sought. (e) The commission shall provide notice by publication of the public heazing in accordance with the provisions of this chapter. (fj Within ninety days of its decision to hold a public hearing on the matter, or within a longer period as may be agreed to by the applicant, the commission shall either deny the P.U.D. application or approve it subject to conditions, stating the factual findings supporting the P.U.D. approval or denial. If the commission fails to render a decision within the prescribed time, the director's action shall be considered as having been affirmed.] SECTION 13. Chapter 25, Article 6 of the Hawaii County Code is amended by adding a new section to read as follows: Section 25-6 Anneals ~ If the director denies a P.U.D. permit. such decision is final except that. within the days after the date of the written decision. the anplicant may anneal such action to the board of anpeals. pursuant to the rules of practice and procedure of the board of anneals. ~ Anv _p re son aggrieved by the decision of the director in the issuance of a p•U.D. permit decision may~ppeal the director's action to the board of anpeals. in accordance with this chanter. within Lhitty days after th_e date of tb_e director's written decision. -8- SECTION 14. Chapter 25, Article 6, Division 1, Section 25-6-8, "Appeal of director's action by applicant" is repealed. [Section 25-6-8. Appeal of director's action by applicant. (a) If the director denies a P.U.D. permit application, such decision is fmal except that, within thirty days after the date of the written decision, the applicant may appeal such action to the commission. (b) An appeal by an applicant to the commission shall be submitted in writing to the commission on a form prescribed by the commission and shall be accompanied by: (1) A nonrefundable filing fee of $250; and (2) Ten copies of a statement of the specific grounds for the appeal. (c) The commission shall provide notice by publication of the public hearing in accordance with the provisions of this chapter. (d) The commission shall provide written notice of the public hearing, at least ten days prior to the hearing, to persons who had submitted timely objections to the P.U.D. permit application before the director's action. (e) The commission shall conduct a public hearing within a period of sixty days from the date the written appeal is accepted by the commission, unless that period is waived by the applicant. A contested case hearing, as defined under chapter 91, Hawaii Revised Statutes, shall not be held by the commission on any P.U.D. permit appeal. (f) Within ninety days after acceptance of an applicant's P.U.D. permit appeal, or within such longer period as may be agreed to by the applicant, the commission shall affirm, modify, or reverse the director's action. (g) All actions of the commission shall contain a statement of legal and factual bases for its decision in accordance with the criteria contained in section 25-6-10. (h) A decision to affirm, modify, or reverse the d'irector's action shall require a majority vote of the total membership of the commission. If the commission fails to render a decision to affirm, modify, or reverse the director's action -9- within the prescribed period, the director's action shall be considered as having been affirmed.] SECTION 15. Chapter 25, Article 6, Division 1, Section 25-6-9, "Further appeal rights" is repealed. [Section 25-6-9. Further appeal rights. All actions of the commission are final except that, within thirty days after the date of the written decision, any person aggrieved by the decision of the commission, may appeal such action to the boazd of appeals in accordance with this chapter.] SECTION 16. 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 17. If any provision of this ordinance, or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect the other provision or applications which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. -10- SECTION 18. This ordinance shall take effect on upon its approval. INTRODUCED BY: ~ ~ 'L~ ?ee~l""GV~ COU LMEMB R, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: REFERENCE, Comm. 280 APPROVED AS TO FORM AND LEGALITY: CORPORATION COUNSEL DATED: -I1-