HomeMy WebLinkAboutPD BACKGROUND & RECOMMENDATION REPORT (AMEND PC RULES 1-16 DUE TO ENERGOV) (reduced size)PDlnitiated-EnercovChanges.jwd -06/0921
COUNTY OF HAWAPI PLANNING DEPARTMENT
BACKGROUND AND RECOMMENDATION
INITIATOR: PLANNING DIRECTOR
AMENDMENTS TO PLANNING COMMISSION RULES
The Planning Director is initiating amendments to the Planning Commission Rules in
preparation for the EnerGov launch. These amendments are mainly relating to the intake
procedures and processing of applications submitted to the Planning Commissions for their
recommendation or final decision. Additionally, there are minor amendments that are non -
substantive housekeeping rule changes.
The launch of the proposed EnerGov system is scheduled for July 26, 2021. With the
implementation of this system, amendments are being initiated in the Subdivision and Zoning
Codes, as well as to the Planning Commission rules, Planning Department rules and the Board of
Appeal rules relating to intake procedures and the processing of applications received by the
Planning Department through the new EnerGov system.
For these Planning Commission rule amendments, the following amendments are being
proposed:
Adding new definitions for "copy or copies," "documents," "intervenvor," and
signature."
Reason for amendments: These added definitions will include references to
electronic media, including electronic mail, documents and signatures.
Additionally, the added definitions will bring consistency with the other rules
used within the Department, such as the Planning Department rules and the Board
of Appeals rules.
Removing references requiring the submittal of multiple copies of an application
as the public will be able to submit one copy of an application through the
Energov system.
Reason for amendments: With the new EnerGov system, there will no longer be
a need to submit multiple copies of applications or documents required in the
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rules. Once the original document is submitted into the EnerGov system, copies
can be distributed electronically through electronic mail to parties, agencies, etc.
Adding the ability for an applicant to submit an application or document using an
electronic signature.
Reason for amendments: Hawaii Revised Statutes, Section 489E allows for the
use of electronic signatures. Based on this allowance, electronic signatures are
being added as an option for submitting a signature on an application or
document.
Adding the ability for an applicant to submit an application or document through
electronic mail (email) instead of physically submitting through mail.
Reason for amendments: Hawai`i Revised Statutes, Section 489E allows for the
use of electronic records. Based on this allowance, electronic records are being
added as an option in place of a physical copy of an application or document.
Deleting the requirement to submit a certification of tax clearance will no longer
need to be provided by the applicant.
Reason for amendments: Currently, land use applications need to have a
certificate of tax clearance submitted as part of the application packet or the
application will be deemed defective. The proposed amendment will now have
Planning Department staff verify the applicant's real property tax payment status
on the County website. The Department will continue to not accept an application
when real property taxes for the property are delinquent, except as authorized by
the Director of Finance in certain situations, such as bankruptcy.
Amendments that are non -substantive housekeeping rule changes, such as
updating code or rule references.
Reason for amendments: There are some non -substantive changes that the
Planning Director is cleaning up for housekeeping purposes. One example is
change HAR 200 to HAR 200.1, which is the correct reference to the amended
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section of the Hawai`i Administrative Rules for EA's and EIS's. Another
example is under Planning Commission Rule 1-5(h) regarding the time that the
minutes shall be made available after the meeting. Currently it is 30 days, but
HRS 92-9 states that the minutes shall be made available to the public by posting
on the county's website within 40 days after the meeting.
These amendments are proposed to all Planning Commission Rules.
Planning Department Exhibit 1: Ramseyer Version with Highlights
Planning Department Exhibit 2: Ramseyer Version
Planning Department Exhibit 3: Clean Version
RECOMMENDATION
The Planning Director recommends that the Leeward and Windward Planning
Commissions adopt the proposed amendments for the impending administrative
implementation of the EnerGov system.
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COUNTY OF HAWAII
PLANNING
COMMISSION
RULES OF
PRACTICE AND
PROCEDURE
RULES 1-16
P:\wpwin601PC\PC Rules12021 Rule Changes and Minor Updates 1PC Rules index.docll" page
Planning Dept.
Exhibit 1
COUNTY OF HAWAII
PLANNING COMMISSION
RULES OF PRACTICE AND PROCEDURE
TABLE OF CONTENTS
RULE 1. GENERAL RULES
PAGE
1- 1 Authority 1-1
1-2 Purpose 1- 1
1-3 General Definitions 1- 1
1-4 The Commissions 1-2
1-5 Meetings 1-3
1-C, Public Records 1-6
1-7 Computation of Time 1-7
1-8 Severability 1-7
RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES
2-1 Initiation of Rulemaking Proceedings 2-1
2-2 Notice of Public Hearing 2- 2
2-3 Conduct of Public Hearing 2- 2
2-4 Action 2-3
2-5 Emergency Rulemaking 2-3
2-6 Filing of Rules 2-3
2-7 Taking Effect of Rules 2-3
2-8 Publication 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 3-2
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 Conflict with Other Time and Notice Requirements 4-1
4-3 Service of Notices, Documents, and Other Papers 4-1
4-4 Presiding Officer 4-1
1
4-5 Notice of Contested Case Hearing 4-2
4-6 Prehearing Procedure 4-3
4-7 Conference with Presiding Officer 4-5
4-8 Limiting Testimony 4-5
4-9 Removal from Proceeding 4-5
4-10 Order of Procedure 4-5
4-11 Questions from Commission 4-5
4-12 Cross -Examination 4-5
4-13 Requests for Subpoenas 4-6
4-14 Consolidation 4-7
4-15 Substitution of Parties 4-7
4-16 Written Requests 4-7
4-17 Evidence 4-8
4-18 Briefs 4-9
4-19 Oral Arguments 4- 10
4-20 Public Testimony 4-10
4-21 Close of Hearing 4-10
PART 2. Post Hearing Procedure for Hearings Conducted by Hearing Officer
4-22 Recommendations of Hearing Officer 4-10
4- 23 Exceptions to Hearing Officer's Report and Recommendations 4-11
4-24 Support of Hearing Officer's Report and Recommendations 4-11
PART 3 Commission Decision
4- 25 Examination of Evidence by Commission 4-12
4-26 Oral Argument before the Commission 4-12
4-27 Commission Action 4-12
4-28 Time Limit for Decision 4-12
4-29 Issuance of Decisions and Orders 4-13
4-30 Service of Decisions and Orders 4-13
4-31 Reconsideration of Decision and Order 4-13
4-32 Appeal from the Commission's Decision 4-13
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 5-1
5- 5 Interim Amendments 5- 2
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
2
6-4 Incomplete Application 6-2
6-5 Posting of Signs for Public Notification 6-2
6-6 Public Hearing 6-3
6-7 Grounds for Special Pcrmit 6-4
6-8 Decision 6-4
6-9 Amendments of Permit or Conditions 6-5
6-10 Appeals 6-5
6-11 Revocation 6-6
RULE 7. USE PERMITS
7-1 Authority 7-1
7-2 Application and Content 7-1
7-3 Incomplete Application 7-2
7-4 Posting of Signs for Public Notification • 7-2
7-5 Public Hearing 7-3
7-6 Criteria for Granting a Use Permit 7-5
7-7 Decision 7-5
7-8 Concurrent Requests 7-5
7-9 Amendments of Permit or Conditions 7-6
7-10 Appeals 7- 6
7-11 Revocation 7-7
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
8-5 Posting of Signs for Public Notification 8-4
8-6 Incomplete Application 8- 5
8-7 Compliance with Chapter 343, Hawaii Revised Statutes 8- 5
8-8 Public Hearing 8-5
8-9 Decision 8- 6
8-10 Waiver of Public Hearing and Action 8- 6
8- 11 Criteria for Approval of a Variance 8- 7
8-12 Amendments to a Variance 8- 9
8-13 Administration and Enforcement 8-10
8-14 Appeals 8-10
8-15 Revocation 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 9-6
9-6 Objectives and Policies of Chapter 205A, HRS 9-6
9-7 Special Management Area Guidelines 9-6
9-8 Permits Required for Development 9-7
9- 9 Authority of the Department in the Special Management Area 9-7
9-10 Assessment 9-7
9-11 Special Management Area Use Permit Procedures 9-12
9-12 Artificial Light on Shoreline and Ocean Waters 9-20
9-13 Prohibitions 9-20
9-14 Special Management Area Emergency Permits 9-21
9-15 Exemptions 9-22
9-16 Revocation 9-22
9-17 Penalties 9-23
9-18 Complaint and Investigative Procedures 9-23
9-19 Administrative Fines 9-23
9-20 Injunction 9-23
9-21 Hearing Officer 9-23
9-22 Petition for the Adoption, Amendment or Repeal of Rule 9 Special Management
Area Rule of the County of Hawai`i 9-25
9-23 Amendment of Special Management Area (SMA) Maps 9-26
RULE 10. ZONING AMENDMENTS
10-1 Authority 10-1
10-2 Procedures for Processing Zoning Amendments 10-1
10-3 Posting of Signs for Public Notification 10-4
RULE 11. GEOTHERMAL RESOURCE PERMITS
11-1 Purpose and Authority 11-1
11-2 Definitions 11-1
11-3 Contents of Application 11-1
11-4 Properly Filed Application 11-4
11- 5 Posting of Signs for Public Notification. 11-4
11-6 Hearing and Notification 11- 5
11-7 Mediation 11-6
11-8 Criteria for Issuance of Geothermal Resource Permit 11-9
11-9 Action 11-9
11-10 Requirements Prior to Initiating Construction 11-10
11- 11 Amendments of Permit and Conditions 11-10
11-12 Enforcement of Permit and Conditions 11- 11
11-13 Penalties 11-12
11-14 Appeals 11-12
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RULE 12. GEOTHERMAL ASSET FUND
12-1 Authority 12-1
12-2 Purpose 12-1
12-3 Definition 12-1
12-4 General Procedures 12-1
12-5 Geothermal Asset Fund Claims Adjuster 12-2
12-6 Eligibility of Claims 12-2
12-7 Filing of Claims 12-3
12-8 Hearings 12-3
12- 9 Claims Adjuster's Recommendations 12- 5
12-10 Commission Action 12-6
12-11 Award of Compensation 12-6
12-12 Denial of Award of Compensation 12-6
12-13 Appeal 12-6
12- 14 When Rules are Silent 12-7
12- 15 Petition for Adoption, Amendment or Repeal of Rules 12-7
12-16 Relocation 12-7
12-17 Other Rights 12-7
RULE 13. STATE LAND USE DISTRICT BOUNDARY AMENDMENT
13-1 Purpose and Authority 13-1
13-2 Standing to Submit Application for State Land Use District
Boundary Amendment 13-1
13-3 Contents of Application 13-1
13-4 Incomplete Application 13-2
13-5 Posting of Signs for Public Notification 13-2
13-6 Procedures for Reviewing and Processing of Application 13- 3
13-7 Standards for Review 13-4
13-8 Notification of Decision 13-4
13-9 Consolidated Proceeding with Other Land Use Changes 13-4
RULE 14. AGRICULTURAL PROJECT DISTRICTS
14-1 Authority 14-1
14- 2 Purpose 14-1
14-3 Contents of Application and Requirements 14-1
14-4 Posting of Signs for Public Notification 14-1
14-5 Procedures for Reviewing and Processing Agricultural Project
Districts 14-2
14-6 Decision 14-3
14-7 Criteria for Establishing an Agricultural Project District 14-3
14-8 Amendments to Conditions and Standards 14-4
5
RULE 15. PROJECT DISTRICTS
15-1 Authority 15-1
15-2 Purpose 15-1
15-3 Contents of Application and Requirements 15-1
15-4 Procedures for Reviewing and Processing Project Districts 15-1
15-5 Decision 15-2
15- 6 Criteria for Establishing a Project District 15-2
15- 7 Amendments to Conditions and Standards 15-3
RULE 16. PLANNED UNIT DEVELOPMENT (P.U.D.)
16-1 Authority 16-1
16-2 Purpose 16-1
16-3 Minimum land area required 16-1
16-4 Contents of Application for P.U.D Permits and Requirements 16-1
16-5 P.U.D. permit application and processing requirements located
within special districts with design guidelines and/or standards 16-3
16-6 Notice of filing and action on P.U.D. application and sign posting 16-4
16-7 Procedure for processing application when use not permitted in district 16-5
16-8 Actions by Commission on P.U. D. permit applications 16-6
16-9 Criteria for granting a P.U.D. permit 16-6
16- 10 Height exceptions authorized 16-7
16-11 Approvals issued under P.U.D. permit 16-8
16-12 Effect of P.U.D. permit on other zoning provisions 16-8
16-13 Time extensions and amendments 16-8
16- 14 Appeals 16-9
16-15 Revocation 16-9
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LEEWARD AND WINDWARD PLANNING COMMISSIONS
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 ,
Section 6-7.5 of the [2046] 2020 Charter of the County of Hawai`i, as
amended, and Chapter 91, Hawaii Revised Statutes.
1-2 Purpose
These rules govern the practice and procedure before Leeward and Windward
Planning Commissions of the County of Hawai`i.
1-3 General Definitions
a) "Agency" means any agency, board, commission, department, or
officer of the county or state government.
b) "Applicant" means any agency or person who applies to the
Commission for a land use application and/or permit.
c) "Chairperson" means the chairperson of the Leeward Planning
Commission or the Windward Planning Commission, or both.
d) "Commission" means either the Leeward Planning Commission or the
Windward Planning Commission.
e) "Joint Commission" means the combined membership of the Windward
Planning Commission and Leeward Planning Commission meeting
jointly.
f) "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.
g) Copy or copies" means both physical media or electronic media.
g)] Iji "Council" means the County Council.
1-1
1h)](1 "County" means the County of Hawaii.
i -}](D " Department" means the Planning Department.
t)](k) "Director" means the Planning Director.
1) "Document" means a form, letter, or other method of written
communication and includes electronic communication such as
electronic mail, etc.
k](m) "General Plan" means the Hawai`i County General Plan.
1)](n) "Hearings Officer" means a person or person duly designated and
authorized by the Commission to conduct proceedings on matters
within the jurisdiction of the Commission for purpose of taking
testimony and to report the findings and recommendations to the
Commission.
21 "Intervenor" means a person who petitions to intervene in a contested
case proceeding and is admitted as a party.
m-)]f"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.
n)](gZ"Person" means any individual, partnership, firm, association, trust,
estate, corporation, or other legal entity of any character other than an
agency.
o)]( "Presiding Officer" means any commissioner or a hearings officer duly
designated as such. Unless otherwise designated, the chairperson shall
be the presiding officer.
Signature" means either an original signature scanned into a format
prescribed by the Director or an electronic signature.
p)]( t) "Zoning Amendments" means changes to the boundaries of the zoning
district or changes to any other provision of Chapter 25 (Zoning Code),
Hawai`i County Code 1983[, as amended.] (2016 Edition, as amended).
1-4 The Commissions
a) Office. The office of the Commissions is at Hilo, Hawai`i.
b) Communications. Any communication to the Commissions shall be
addressed to the Chairperson, Leeward or Windward Planning
1-2
Commission, [101 Pauahi Street, Suite 3, Hilo, Hawai`i, 96720]and
submitted electronically to planning@hawaiicounty.gov, unless
otherwise directed.
c) Membership. Each Commission consists of seven members appointed
by the Mayor and confirmed by the Council. In addition, the Director of
the Department of Public Works and the Manager of the Department of
Water Supply or their designated representatives serve as ex -officio
members without voting privileges.
d) Chairperson; Vice -chairperson. The chairperson and vice -chairperson
shall be elected annually. The chairperson shall have the
responsibilities and duties prescribed in this rule. The vice -chairperson
shall perform all the duties of the chairperson during the absence of the
chairperson.
1-5 Meetings
The Commission may meet and exercise its powers in its respective
jurisdiction within the County. All Commission meetings are open to the
public, except as provided by law. The parliamentary procedure to be utilized
by the Commission in the conduct of its own meeting shall be based on the
current edition of Robert's Rules of Order.
a) Regular Meetings. Regular meetings shall be held at least once a month
in the Commission's jurisdiction, unless otherwise specified by law.
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.
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 meeting, and 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.
1-3
3) The Commission shall maintain a list of names and addresses of
persons who request notification of meetings and shall mail or
electronic mail, as elected by the requester., 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, electronic 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 the following purposes:
0
1) To consult with the Commission's attorney; and/or
2) For any other specific purpose authorized by law.
Joint Leeward and Windward Planning Commissions' Meetings. When
the Leeward and Windward Planning Commissions convene and meet
1-4
g)
jointly, the chairperson for that joint meeting shall be either the
chairperson of the Leeward Planning Commission or the chairperson of
the Windward Planning Commission, selected at that meeting by the
affirmative vote of a majority of the combined membership of the two
commissions. The chairperson not selected as the chairperson for the
joint meeting shall be the first vice chairperson of the joint meeting.
Quorum. A majority (four) of all members to which the Commission is
entitled shall constitute a quorum to transact business. For a joint
Leeward and Windward commission meeting, a majority of eight
members constitutes a quorum.
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;
The substance of all matters proposed, discussed, or decided,
and a record, by individual members, of any votes taken; and
i)
3)
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
forty days after the meeting except where such disclosure would
be inconsistent with Section 92-5, Hawai`i 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.
Procedure for Testimony at Public Hearings. Members of the public
desiring to testify shall register with the commission staff prior to the
convening of the meeting. Additionally, 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
address.
2) The person testifying shall indicate whether he or she is
testifying on their own behalf or as a representative of the
applicant or an organization.
3) An original [and -fifteen -copies] of all written testimony offered
1-5
by any person shall be submitted to the Commission prior to the
time the person gives such testimony.
4) The person testifying shall submit such oral testimony under
oath. That oath shall be administered by the chairperson or
chairperson's designee.
5) The chairperson or vice -chairperson may limit testimony which
is irrelevant, abusive, disruptive, or unduly repetitious.
6) The person testifying shall direct their remarks to the
Chairperson and not to any individual commission member,
staff member, or person in the audience.
7) All members of the public shall extend proper courtesy and
respect to one another and to all commission members and staff,
and all persons shall be addressed by their surnames. No
profanity or abusive remarks will be allowed at any time in any
meeting.
8) Any person who does not abide by these rules may be ruled out
of order by the Chairperson.
9) Nothing in these procedures shall diminish the responsibility or
the authority of the Chairperson to maintain order and decorum.
j) Removal of Person from Meeting. Any person who disrupts a meeting
which prevents or compromises the conduct of the meeting may be
removed from the meeting at the discretion of the Chairperson.
1-6 Public Records
The term "public records"
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 protected by law or which invades 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
1-6
any person.
b) Copies of Public Records. Copies of records printed or reproduced or
electronically produced for persons other than governmental agencies
shall be [given] provided 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 or electronic 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 electronic copies of 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.
1-7 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.
1-8 Severability
In the event any portion of the Rules of Practice and Procedure of the Leeward
and Windward Planning Commissions of the County of Hawai`i ("Rules of
Practice and Procedure") are declared invalid, such invalidity shall not affect
other parts of the Rules of Practice and Procedure.
1-7
RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES
2-1 Initiation of Rulemaking Proceedings
a) The Joint Commission may, at any time, initiate proceedings for the
adoption, amendment, or repeal of any rule of the Commissions.
Procedures to be followed in rulemaking shall be as set forth in these
rules.
b) Any interested person or agency may petition the Joint Commission for
the adoption, amendment, or repeal of any rule of the Commissions.
Such petitions shall contain:
1) A non-refundable filing and processing fee of five 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 Joint 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
Joint Commission. The Joint Commission shall notify the petitioner in
writing of such denial, stating the reasons thereof. Denial of the petition
shall not operate to prevent the Joint Commission from acting, on its
own motion, on any matter disclosed in the petition. Petitioner may
seek review of the denial through the Third Circuit Court.
e) If the Joint Commission determines that the petition is in order and that
it discloses sufficient reasons in support of the proposed rulemaking
proceedings, the Joint 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
Joint 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
2-1
b)
mailed] provided to all persons who have made timely written requests
for advance notice of the Joint Commission's rulemaking proceedings.
The notice shall be published at least thirty days prior to the date set for
the public hearing.
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 Joint Commission and presided over by the
chairperson or vice- chairperson of the Joint Commission or, in their
absence, by another member designated by the Joint 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 Joint 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 Joint 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 Joint
Commission to be authentic and relevant, shall be received and made a
part of the record.
2-4 Action
The Joint 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
2- 2
If the Joint Commission finds that an imminent peril to public health or safety
requires adoption, amendment, or repeal of a rule upon less than thirty 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 Joint
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.
2-6 Filing of Rules
The Joint 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),
Hawai`i Revised Statutes.
2-8 Publication of Rules
The Joint Commission shall, as soon as practicable, compile, index, and
publish all rules adopted by the Joint 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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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 two hundred
dollars ($200);
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 or electronically mailed, as elected by the requester, to all persons who
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have made timely written requests for advance notice. The notice shall be
published at least twenty days prior to the date set for the hearing.
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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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 Third 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 Third Circuit Court.
4-2 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.
4-3 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, certified or registered mail, electronic mail or by other
means [aud] as permitted 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.
4-4 Presiding Officer
a) Person Presiding. The chairperson of the Commission, one of its
members, or a hearings 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
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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.
4-5 Notice of Contested Case Hearing
a) Unless otherwise provided by law, the notice of hearing will be served
on all parties 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;
4) An explicit statement 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 so desired.
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 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 of Chapter 25, Hawai'i
County Code[-] 1983 (2016 Edition, as amended). 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.
4-2
4-6 Prehearing Procedure
a) In all proceedings where the Commission's action is directly appealable
to Third 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 on a form approved by the
Planning Director and accompanied by a filing fee of $200 no later than
seven calendar days, prior to the Commission's first meeting on the
matter. If the applicant files a request with the Commission for the
deferral or continuance of the hearing prior to the commencement of
the hearing, the next regularly scheduled meeting of the Commission
will then be considered the subsequent rescheduled hearing date. If the
request for intervention is withdrawn in writing before the
commencement of the hearing, the filing fee shall be refunded to the
person seeking standing to intervene.
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.
The petitioner shall be admitted as a party if it 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
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 practice those rights
which are customarily and traditionally exercised for
subsistence, cultural or religious purposes.
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 Third Circuit Court pursuant to
Section 91-14, Hawai`i Revised Statutes.
d) After establishing the parties to the proceeding, the Commission may
either proceed with the hearing, or continue the matter to a more
appropriate time and date.
e) The Commission may join as a party any other person subject to service
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f)
g)
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.
Multiple Intervenors. If more than one intervenor is admitted to a
contested case proceeding, the hearings officer and/or Commission may
require intervenors to assign responsibilities between themselves for the
examination and cross- examination of witnesses. The hearings officer
or Commission shall have the right to impose reasonable subject
matter, as well as time limitations on examination and cross-
examination of witnesses, whether or not parties are represented by
counsel.
Opposition to Intervention. If any party opposes the petition for
intervention, that party shall file, within five (5) days after being
served, his or her motion opposing the petition upon the Commission,
all other parties and the intervenor.
h) 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).
i) Mediation. All parties to a contested case proceeding shall participate,
in good faith, in one mediation conference, the length of which shall be
determined by the mediator. The mediation conference shall be held
within thirty days of the granting of an intervention by the Commission.
A mediator shall be selected jointly by the parties or appointed by the
Commission if the parties fail to agree. The mediator shall not be the
person appointed as the hearings officer for the contested case
proceeding. The cost of the mediation conference(s) shall be borne by
the Department. No agreement reached as a result of mediation shall
result in an improper delegation of powers of the Commission or
prevent the Commission from making the final decision in the matter.
4-7 Conference with Presiding Officer
At any time during the proceedings, the Presiding Officer may hold a
conference with the parties for the following purposes:
a) To determine the possibility of simplifying or eliminating the issues;
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b) To facilitate the stipulation to facts or findings by the parties;
c) To identify evidence which will be needed at the hearing;
d) To determine the validity of proposed evidence;
e) To determine the need for depositions or subpoenas;
f) To determine the relevance of findings in some other case to the case at
hand;
g) To determine the need for consolidation of cases or joint hearings; and
h) To determine any other matters which will reduce cost or save time or
otherwise aid in the expeditious disposition of the contested case.
4-8 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.
4-9 Removal from Proceeding
Any person who disrupts a hearing which prevents or compromises the
conduct of the hearing shall be removed from the hearing room.
4-10 Order of Procedure
The applicant shall open and close. Other parties shall be heard in such order
as the presiding officer directs.
4-11 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.
4-12 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.
4-13 Requests for Subpoenas
a) Subpoena of a Witness. Any request for the issuance of a subpoena,
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b)
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.
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 the 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 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
Hawai'i, and such fees and mileage shall be paid by the party at whose
request the witness appears.
0
g)
Oath. Each witness shall be placed under oath or affirmation prior to
testifying.
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.
4-14 Consolidation
4-6
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.
4-15 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.
4-16 Written Requests
a) Timing. Written requests shall be made at least ten days before the
hearing. Written requests may be made during the hearing but only for
good cause shown and at the discretion of the Presiding Officer.
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.
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.
4-17 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.
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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] provide 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 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
scanned
into a format prescribed by the Director. 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-
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
4-8
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.
4-18 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, electronically mailed 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.
4-19 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.
4-20 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.
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4-21 Close of Hearing
At the end of the presentation of the evidence, submission of briefs and oral
arguments, if any, the Commission or the hearings officer shall close the
hearing.
PART 2. Post Hearing Procedure for Hearings Conducted by Hearings Officer
4-22 Recommendations of Hearings Officer
a) Submission of Recommendations. Upon completion of taking of the
evidence, the hearings 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 hearings officer and all other matters placed in
evidence.
c) Service of Hearings Officer's Report. The hearings officer shall cause a
copy of the report to be served upon all parties to the proceedings.
4-23 Exceptions to Hearings Officer's Report and Recommendations
a) File; Form; Copies; Time; Service. Within fifteen days after service of
the report and recommendations by the hearings 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.
2) That part of the hearings 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.
4-10
4- 24 Support of Hearings Officer's Report and Recommendations
a) File; Form; Copies; Time; Service. Within seven days after service of
the exceptions taken to the hearings officer's report, a party may file
with the Commission a brief or statement in support of the hearings
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.
PART 3. Commission Decision
4-25 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.
4-26 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.
4-27 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 hearings officer.
4-11
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 members who are to render a final decision, the
Commission shall comply with the procedure in Section 4-25 of this
rule.
4-28 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.
4-29 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. The
agency shall notify the parties to the proceeding by [ ]
providing 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.
4-30 Service of Decisions and Orders
Decisions and orders shall be [served by mailing] provided 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.
4-31 Reconsideration of Decision and Order
The Commission shall not reconsider its action in any contested case hearing
after the effective date of its decision.
4-32 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, Hawai`i Revised Statutes.
4-12
RULE 5. GENERAL PLAN AMENDMENTS
5-1 Authority
This rule implements General Plan amendment procedures before the Planning
Commission as provided by Chapter 16, Hawai`i County Code 1983 (2016
Edition, as amended).
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) "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.
c) "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.
5-4 Amendment Pursuant to Comprehensive Review
a) 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.
5-1
c) The Commission shall conduct and complete its review on the proposed
amendments to the General Plan, and shall submit its
recommendations, within one hundred fifty days from the date of
receipt of the proposed amendments from the Director.
d) The Commission shall recommend approval of the proposed
amendments, in whole or in part, recommend changes, or recommend
the rejection of the proposal for changes to the General Plan.
e) If the Commission fails to act on a proposed amendment within the
required period, it shall be deemed a negative recommendation.
5- 5 Interim Amendments
a) Council -initiated
1) The Council may initiate interim amendments to the General Plan
at any time, except during the comprehensive review. The
Council may, by resolution, request the Director and the
Commission to review and make a recommendation on a
proposed amendment.
2) The Director shall have sixty days or a longer period, as may be
agreed to by the Council, to submit a recommendation on the
proposal to the Commission for review and recommendation.
3) The Commission shall consider the proposed amendment at no
less than two meetings, and shall make its recommendation on the
proposed amendment to the Council within sixty days from it
receipt of the Director's recommendation.
4) If the Commission fails to act within the required period, it shall
be deemed a negative recommendation.
b) Director -initiated
1) The Director may initiate an interim amendment to the General
Plan at any time other than during the comprehensive review. The
Director shall submit the proposed amendment to the Commission
for its review and recommendation.
2) The Commission shall conduct and complete its review on the
proposed amendments and shall submit its recommendations,
within one hundred twenty days from the date of receipt of the
proposed amendments.
5-2
3) If the Commission fails to act within the required period, it shall
be deemed a negative recommendation.
c) General Public
1) A member of the public may submit an application requesting the
Director to initiate an amendment to the General Plan at any time
except during the comprehensive review.
2) Should the Director initiate the amendment from the member of
the public, the amendment shall be processed according to
Section 5- 5 (b).
5-3
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 five hundred dollars.
b) Original [tet ] 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) Building elevations, if required, 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;
D) Unusual conditions, trends, and needs have arisen since
the district boundaries and regulations were established;
6-1
c)
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.
d) A certificate of clearance from the County Director of Finance stating
dethiquensies.]Prior to the acceptance of any application, all real
property taxes and other fees relating to the subject parcel or parcels
shall be paid and there shall be no outstanding delinquencies, except in
cases of bankruptcy or similar matters as authorized by the County
Director of Finance.
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.
6-5 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:
The nature of the application;
The proposed use of the property;
The size of the property;
The tax map key(s) of the property;
That the public may contact the planning department for
additional information; and
6-2
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[, amended.] (2016 Edition, as amended).
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- 6 Public Hearing
a) Upon acceptance of a Special Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The
public hearing shall commence no later than ninety days after the
acceptance of a Special Permit application by the Director, or within a
longer time period as agreed to by the applicant.
b) Promptly after the Commission's fixing a date for the public hearing,
the applicant shall mail a notice of the application and hearing to
owners of interests in properties within five 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 applicant;
2) Precise location of the property involved;
3) Nature of the proposed use; and
4) Date, time, and place of the hearing.
6-3
c) Prior to the date of the hearing, the applicant 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 6-6 ( b)(1-4) of this rule.
e) 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 6- 6 (b). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
6-7 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,
Hawai`i Revised Statutes, as amended.
The Commission shall also consider the criteria listed under section [6.3] 6-3
b)(5)(A) through (G).
6-8 Decision
Within sixty days after the close of the hearing, or within a longer time period
as agreed to by the applicant, the Commission shall:
a) For a Special Permit involving fifteen acres of land or less, approve it
by stating the reasons and attaching appropriate performance
conditions; or
b) For a Special Permit involving greater than fifteen 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.
6-9 Amendments of Permit or Conditions
6-4
a) The applicant 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 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; 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 applicant shall set forth in writing:
1) The affected condition;
2) The specific amendment requested; and
3) The reasons for the request.
d) The applicant shall also file a two hundred fifty dollar processing fee,
along with the original [an ] of the request.
e) The hearing and notice procedures and action shall be the same as
under Sections 6-5, 6-6 and 6-8 of this rule.
6-10 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
6-11 Revocation
a) A Special Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
6-5
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A Special Permit may be revoked by the Commission in the event that:
1) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the permit; or
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
2) The proceeding to revoke a Special 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.
6- 6
RULE 7. USE PERMITS
7-1 Authority
This rule governs Use Permit procedures before the Planning Commission as
required by Chapter 25 (Zoning Code), Hawai`i County Code 1983[, as -
amen ied.] (2016 Edition, as amended).
7- 2 Application and Content
An application for a Use Permit shall be filed with the Commission, through
the Department, and shall include:
a) A non-refundable filing and processing fee of five hundred dollars.
b) Original [ . . - - ! .. - ]of:
1) Application form;
2) Detailed written description and background intbrmation as
required on the Use Permit Application form;
An analysis of how the request satisfies each of the following
standards:
3)
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.
4) Plot plan of the property, drawn to scale, showing property
lines, all existing and proposed structures, uses and
improvements; and reference points such as roadways,
shoreline, etc.
7-1
c) [One full size 2 foot by 3 foot plot plan drawn to scale for presentation
2«.v4) ofthi rule
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.
Prior to the
acceptance of any application, all real property taxes and other fees
relating to the subject parcel or parcels shall be paid and there shall be
no outstanding delinquencies, except in cases of bankruptcy or similar
matters as authorized by the County Director of Finance.
7-3 Incomplete Application
The Director, on behalf of the Commission, shall neither accept nor process an
application which is incomplete as to form and content.
7-4 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:
b)
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 Department for additional
information; and
6) The address and telephone number of the Department.
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
7-2
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)
Hawai`i County Code 1983 [, as -amended.] (2016 Edition, as
amended)
d) The applicant shall file an affidavit with the 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 Public Hearing
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 commence no later than ninety days after the acceptance
of a Use Permit application by the Director, or within a longer time
period as agreed to by the applicant.
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:
1) Within ten days after filing an application with the Commission,
through the Department, the applicant shall serve a first notice
7-3
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:
A) Name of the applicant;
B) Precise location of the property involved, including tax
map key identification, location map and site plan;
C) Nature of the application and the proposed use of the
property;
D) Date on which the application was filed with the
Commission; and
E) 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 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 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 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- 4
e) 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 7-5 ( c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
7-6 Criteria for Granting a Use Permit.
The Commission may approve a Use Permit upon finding that:
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)
7- 7 Decision
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.
a) Within sixty days following the close of the public hearing(s), or within
a longer time period as agreed to by the applicant, 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.
b) In approving any use permit application, the Commission may issue the
approval subject to conditions, including but not limited to 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 contested case hearing pertaining to the use permit is pending
before the Commission.
7-8 Concurrent Requests
Concurrent requests may be acted upon by the Commission in conjunction
with a use permit application.
7-9 Amendments of Permit or Conditions
7-5
a) The applicant may apply to the Commission through the Department
for an amendment to the permit or condition(s) imposed.
b) 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; 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 Use
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 applicant shall set forth in writing:
1) The affected condition;
2) The specific amendment requested; and
3) The reasons for the request.
d) The applicant shall also file a two hundred fifty dollars processing fee,
along with the original [and twenty ^^pies] of the request.
e) The hearing and notice procedures and action shall be the same as
under Sections 7-4, 7-5 and 7-7 of this rule.
7- 10 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
7-11 Revocation
7-6
a) A Use Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A Use Permit may be revoked by the Commission in the event that:
1) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the permit; or
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
3)1(2)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.
7- 7
RULE 8. SHORELINE SETBACK
8-1 Authority
Pursuant to authority conferred upon the 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
Part III, 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 Chapter
23 (Subdivision Code), Hawaii County Code 1983 (2016 Edition, as
amended) and accepted by the Department.
8-1
c) "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.
d) "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.
e) "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.
f) "Shoreline setback line" means that line established by the Department
in accordance with the requirements of Department Rule No. 11
regarding Shoreline Setback, running inland from and parallel to the
certified shoreline at a horizontal plane.
g) 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
An application for a shoreline setback variance shall be filed with the
Commission, through the Department, and shall include:
a) A non-refundable filing and processing fee of five hundred
dollars.
b) Original [andenty-espies] of:
1) Application form;
2) Description of the property in sufficient detail, including
8-2
3)
the tax map key identification, location map, and land
area;
Written description of the proposed project, including a
statement as to how the request complies with Section 8-
11;
4) An environmental assessment or environmental impact
statement consistent with the requirements of Chapter
343, Hawai`i 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
5) A site plan of the shoreline setback area, drawn to scale,
showing:
A) Existing natural and man-made features and
conditions within the shoreline setback area;
B) Existing natural and man-made features and
conditions along properties immediately adjacent
to the shoreline setback area and proposed
improvements;
C) The certified shoreline;
D) The shoreline setback line;
E) Contours at a minimum interval of five feet
unless waived by the Commission;
F) Proposed development and improvements
showing new conditions.
c) A copy of the certified shoreline survey map of the property.
d) Detailed justification of the proposed project, which addresses
the criteria and conditions set forth in Section 8- 11.
8-3
1 A list of all properties by tax map key located within 300 feet of
the perimeter boundary of the property under consideration.
Prior to the acceptance of any
application, all real property taxes and other fees relating to the
subject parcel or parcels shall be paid and there shall be no
outstanding delinquencies, except in cases of bankruptcy or
similar matters as authorized by the County Director of Finance.
h-)](gAny other information required by the Commission.
8-5 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 Department for additional
information; and
6) The address and telephone number of the 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
8-4
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)
Hawai`i County Code 1983 [ended.] (2016 Edition, as
amended).
d) The applicant shall file an affidavit with the 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.
8-6 Incomplete Application
The Commission, through the 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.
8-7 Compliance with Chapter 343, Hawaii Revised Statutes
An environmental assessment or environmental impact statement, prepared in
accordance with the requirements of Chapter 343, Hawaii Revised Statutes
HRS) and Title 11, Chapter 200.1, Hawaii Administrative Rules (HAR), shall
accompany the filing of a shoreline setback variance application with the
Commission. The Department, on behalf of the 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 Department has complied with the requirements of Chapter
343, HRS and Title 11, Chapter 200.1, HAR.
8-8 Public Hearing
a) Except as otherwise provided in this rule, the Commission shall
conduct a public hearing within a period of ninety days from the date of
acceptance of a complete application, or within a longer time period as
agreed to by the applicant. Prior to acceptance of an application, the
applicant shall comply with the requirements of Chapter 343, HRS and
Title 11, Chapter 200.1, HAR. 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
8- 5
Commission shall publish a notice of the hearing in at least two daily
newspapers of general circulation in the county which includes the
following:
1) 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 Commission's fixing a date for the hearing but not
less than ten 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 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
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) 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 8- 8 (c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
8-9 Decision
a) Within sixty days following the close of the public hearing(s), or within
a longer time period as agreed to by the applicant, the 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 Commission for a period of one year from the effective
date of the denial of the original application; provided, however, that
8-6
upon showing of a substantial change of circumstances the Commission
may permit the filing of a new application prior to the expiration of
such a one year period.
8-10 Waiver of Public Hearing and Action
a) The Commission hereby delegates to the 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 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 Department, in consultation with
appropriate agencies (i.e. U.S. Army Corps of Engineers,
Department of Public Works); or
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.
3)
b) An applicant who seeks processing under Section 8-10 shall make the
request in writing upon submittal of the variance application.
c) The Department may deny the public hearing waiver and the
application shall be heard and noticed by the Commission in
accordance with Section 8-8.
d) The Department shall promulgate rules to administer Section 8-10.
8- 11 Criteria for Approval of a Variance
a) A variance may be granted for a structure or activity otherwise
prohibited by these rules if the Commission finds in writing, based on
the record, that the proposed structure or activity is necessary for or
ancillary to:
1) Cultivation of crops;
2) Aquaculture; or
8-7
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, Hawai'i Revised Statutes, or a private
facility or improvement which is undertaken by a private entity
and is clearly in the public interest; 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 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
8-8
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 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;
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.
8-12 Amendments to a Variance
a) The applicant may apply to the Commission through the 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 twentycopies]
of the written request, which includes:
1) The affected section of the variance or condition;
2) The specific amendment requested;
8-9
3) The reasons for the request; and
4) Any other information required by the 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:
The affected condition;
The length of time requested;
The reasons for the request; and
Any other information required by the Commission.
d) Upon submitting a request as set forth in Section 8-12 (b) or (c), with
the exception of administrative time extensions, the applicant shall also
file a two hundred fifty dollar processing fee.
e) The hearing and notice procedures and action shall be the same as
under Sections 8-5, 8-8 and 8-9.
8- 13 Administration and Enforcement
The Department is responsible for the processing of all variance applications
and is also responsible for the enforcement of all conditions and requirements
associated with a variance issued in accordance with this rule.
8-14 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
8- 15 Revocation
a) A Shoreline Setback Variance may be revoked by the Director in the
8-10
event that any property owner who holds the variance sought to be
revoked or any other person, with the property owner's consent,
submits a written statement to the Director verifying that the
development approved under the variance issued has either not been
established or has been abandoned.
b) A Shoreline Setback Variance may be revoked by the Commission in
the event that:
1) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the variance; or
B) The use authorized under the variance is creating a
threat to the health or safety of the community.
2) The proceeding to revoke a Shoreline Setback Variance, upon
request of the Director, shall require written notice to the
property owner and to the person who has been issued the
variance prior to the Commission taking action to revoke the
variance.
8- 11
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority
Pursuant to authority conferred by Chapter 205A, Hawai`i Revised Statutes,
the rule hereinafter contained is hereby established and shall apply to all lands
within the Special Management Area of the County of Hawai`i.
9- 2 Purpose
It is the State policy to preserve, protect, and where possible, to restore the
natural resources of the coastal zone of Hawai`i. 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 Hawai`i."
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:
a) "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.
b) "Public Works Director" means the Director of the Department of
Public Works of the County of Hawaii .
c) "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.
d) "Cultural" pertains to traditional and customary practices and usage of
resources to fulfill responsibilities and rights possessed and exercised
by ahupua`a tenants who are descendants of Native Hawaiians who
inhabited the Hawaiian Islands prior to 1778.
e) "Development" means any of the following uses, activities, or
operations on land or in or under water within the Special Management
Area:
1) "Development" includes the following:
9-1
A) Placement or erection of any solid material or any
gaseous, liquid, solid, or thermal waste;
B) Grading, removing, dredging, mining, or extraction of
any materials;
C) Change in the density or intensity of use of land,
including but not limited to the division or subdivision
of land;
D) Change in the intensity of use of water, ecology related
thereto, or of access thereto; and
E) Construction, reconstruction, demolition, or alteration of
the size of any structure.
2) "Development" does not include the following uses, activities
or operations:
A) Construction or reconstruction of a single-family
residence that is less than seven thousand five hundred
square feet of floor area and is not part of a larger
development. Floor area shall be the total area of all
floors of a building(s) associated with the single-family
residence, including a basement and accessory
structures, measured along the exterior walls of such
building(s). The floor area of a building(s), or portion
thereof, not provided with surrounding exterior walls
shall be the usable area under the horizontal projection
of the roof or floor above;
B) Repair or maintenance of roads and highways within
existing rights-of-way;
C) Routine maintenance dredging of existing streams,
channels, and drainage ways;
D) 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;
E) Zoning variances, except for height, density, parking,
and shoreline setback;
F) Repair, maintenance, or interior alterations to existing
structures or relating to existing uses;
G) Demolition or removal of structures, except those
structures located on any historic site as designated in
national or state registers or those listed in the Historic
Sites Element of the General Plan;
9-2
3)
H) 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;
I) Transfer of title of land;
J) Creation or termination of easements, covenants, or
other rights in structures or land;
K) Subdivision of land into lots greater than twenty acres in
size;
L) The amendment of the General Plan, State Land Use
Boundary amendments and changes of zone;
M) 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;
N) Installation of underground utility lines and appurtenant
aboveground fixtures less than four feet in height along
existing corridors;
0) Structural and non-structural improvements to existing
single- family residences, where otherwise permissible;
and
P) Non-structural improvements to existing commercial
structures.
Q) Construction, installation, maintenance, repair, and
replacement of civil. defense warning or signal devices
and sirens.
R) Plan, design, construct, operate, and maintain any lands
or facilities under the jurisdiction of the Division of
Boating and Ocean Recreation of the State Department
of Land and Natural Resources.
Any proposed use, activity, or operation listed in Section 9-
4(e)( 2) shall be deemed to be "Development" until the Director
has determined it to be exempted from the definition of
development."
4) Whenever the Director finds that any excluded use, activity, or
9-3
f)
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.
EIS" means an informational document prepared in compliance with
Chapter 343, HRS, and the Hawaii Administrative Rules, Title II,
Chapter 200.1 (Environmental Impact Statement Rules). An EIS
discloses the environmental effects of a proposed action, effects of a
proposed action on the economic welfare, 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.
g) "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.
h) "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
Hawai`i State Constitution, and in rulings of Hawaii case law."
i) "Owner" means all equitable and legal holders or lessees of real
property. Lessees shall present certification of approval from the legal
owner.
j) "Person" means and includes any individual, organization, partnership,
or corporation, including any utility and any agency of government.
k) "Petitioner" means and includes any person who seeks permission or
authorization which the Commission may grant under this rule.
1) "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.
m) 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
Hawai`i. 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.
n) "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.
9-4
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.
o) "Special Management Area" means the land extending inland from the
shoreline as delineated on the maps filed with the Commission as of
June 8, 1977, or as amended pursuant to Section 9-21.
p) "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.
q) Special Management Area Minor Permit" means an action by the
Director authorizing development, the valuation of which is not in
excess of $500,000 and which has no cumulative impact, or a
substantial adverse environmental or ecological effect on the Special
Management Area.
r) "Special Management Area Use Permit" means an action by the
Commission authorizing development, the valuation of which exceeds
500,000 or which may have a cumulative impact, or a substantial
adverse environmental or ecological effect on the Special Management
Area.
s) "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.
t) "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.
u) "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 9-
4(e)(1), the fair market value of the development.
v) "Vegetation Growth" means any plant, tree, shrub, grass, or groups,
clusters or patches of the same, naturally rooted and growing.
w) "Artificial light" or "artificial lighting" means the light emanating from
9-5
any fixed human -made device.
x) "Directly illuminate" means to illuminate through the use of a glowing
element, lamp, globe, or reflector of an artificial light source.
y) "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
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 Commission, 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.
c) Special Management Area Minor, Use or Emergency Permits or
exemptions validly issued by the Department or the Commission,
subsequent to any amendment to Chapter 205A, Hawai`i Revised
Statutes but preceding any supportive amendment to this rule shall
continue to be considered valid.
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.
9-6
To improve the efficiency of the Commission's review, approval and
permitting processes granted upon it by Chapter 205A-22, Hawaii Revised
Statutes and in accordance with Rule 9 herein, the Commission hereby
delegates to the Director the authority to process assessments, determinations
and conditions regarding exemptions, issue and enforce Special Management
Area Minor Permits and Special Management Area Emergency Permits, and to
administer, interpret, and enforce terms, scope and conditions set forth in
Special Management Area Use Permits issued by the Commission.
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
500,000 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 Commission 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 review and acceptance of the assessment application
shall follow the procedures pursuant to Section 25-2-3 (Review and
acceptance of applications) in Chapter 25, Hawaii County Code [-]
1983 (2016 Edition, as amended). 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.
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;
9-7
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:
7)
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.
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 current certified 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
9-8
Environmental Policy Act (NEPA) or under Chapter 343, HRS,
may constitute a valid filing under this section.
12) A fifty dollar ($50) filing fee.
c) The Director shall assess the proposed use, 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-
10H.
d) The Director, within sixty 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:
The proposed use, activity or operation does not constitute a
development or is exempt from the definition of development; or
A Special Management Area Minor Permit is being issued; or
A Special Management Area (Major) Use Permit is required.
If the proposed use, activity, or operation is less than $500,000 in value
and the Director fails to act within the sixty 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 (f) .
e) Where it is found that the proposed use, activity or operation is not in
excess of
500,000 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 Hawai`i 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
9- 9
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 $500,000 or may have a substantial adverse
effect WI the Special Management 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.
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 (e)(2), 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;
9- 10
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 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.
SMA Short Form Assessment
The Department may create a SMA short form assessment to be used
by the Department to assess uses that may result in a determination that
the proposed use is exempt, i. e., single family residence, minor
grubbing, or accessory structures. The short form assessment 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) Description of any known historical sites, anchialine ponds,
wetland, or sandy beach, and any other pertinent information.
In case of a single family dwelling, a Building Permit application may
suffice as the plot plan required under (2).
The Director may require a full SMAA if it is determined through the
short form assessment review that further information is needed from
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.
9-11
9-11 Special Management Area Use Permit Procedures
a) Compliance with Chapter 343, Hawai`i Revised Statutes
If the action proposed requires compliance with Chapter 343, Hawai`i
Revised Statutes, an environmental assessment or environmental
impact statement shall accompany the filing of a special management
area use permit application. The Department, on behalf of the
Commission, shall be the accepting authority of all environmental
assessments and/or environmental impact statements, if appropriate,
which are prepared in accordance with Chapter 343, Hawai`i 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, Hawai`i Revised Statutes and Title 11,
Chapter 200.1, Hawai`i 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 $500,000 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
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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;
iv) Any probable adverse environmental effects
which cannot be avoided;
v) Alternatives to the proposed action;
vi) 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 Hawai'ian rights are exercised
in the petition area;
ii) The extent to which those resources, including
traditional and customary native Hawai'ian
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
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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 current certified 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 the shoreline and whether the access
is being used; and
K) Any other plans or information required by the Director.
2) [ .. .. .-
Section 9 I 1 (b) (1) (B) that shall be a minimum of two feet by
three feet or of similar dimensions as may be agreed to by the
Director.
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)](3)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-)]E4,),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 —
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SHPD requesting a "no effect" letter, including
supporting documentation, to which DLNR — SHPD has
not responded after 30 days.
6)]0_Five hundred dollars filing fee to cover publication and other
administration costs.
73](6)[A certificate of clearance from the County Director of Finance
1 Prior to the acceptance of any
application, all real property taxes and other fees relating to the
subject parcel or parcels shall be paid and there shall be no
outstanding delinquencies, except in cases of bankruptcy or
similar matters as authorized by the County Director of Finance.
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 Department for
additional information; and
F) The address and telephone number of the 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
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visible from the more heavily traveled public road. The sign
shall, in all other respects, be in compliance with Chapter 3
Signs) Hawai`i County Code [Tas amended,] 1983 (2016
Edition, as amended).
4) The applicant shall file an affidavit with the 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 acceptance of an SMA Use Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The
public hearing shall commence no later than ninety days after the
acceptance of an SMA Use Permit application by the Director, or
within a longer time period as agreed to by the applicant.
Promptly after the Commission 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 Commission, 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 Commission 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. These aforementioned
notice requirements are not required for subsequent hearing dates upon
the same application.
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 Commission Rule 4 relating to
Contested Case Procedures, where applicable.
Any such hearing shall, whenever possible, be held jointly and
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concurrently with other applicable hearings for the proposed
development.
The applicant shall submit an additional two hundred fifty dollars
processing 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 Commission 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
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
9-17
conditions set by the Authority in accordance with the Special
Management Area guidelines as contained in Section 9-7.
Decision and Order
1) Within sixty days following the close of the public hearing(s),
or a longer time period as agreed to by the applicant, the
commission shall either deny or approve the application. The
decision, whether to grant or to deny the application, shall
require a majority vote of the total membership of the
Commission. In the event the Commission 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 Commission to defer action on
the application. A majority vote of the total membership of the
Commission is required if applicant requests to defer action on
the application. In the event the Commission 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 or
electronically mailing the notice to the applicant's last known
address.
3) Reconsideration: In the event an application is denied due to the
Commission's failure to render a decision within the period
prescribed by paragraph F.1. above, the applicant may, within
ten 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
Commission for its reconsideration at the next meeting. In the
event the Commission 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 Commission through the Director for a period of two
years from the effective date of the denial of the original
application; provided, however, that upon showing of a
substantial change of circumstances the Commission may
permit the filing of a new application prior to the expiration of
9- 18
such a two-year period.
5) Appeals:
A) Any decision of the Commission so made within the
context of this article shall be appealable to the Third
Circuit Court. The notice of appeal shall be filed in the
Third Circuit Court within thirty (30) days after the
person desiring to appeal is notified of the decision or
order, or of the action taken in a manner provided by
statute.
B) If a contested case hearing is held, a different appeal
option is available. Refer to Planning Commission Rule
4-32 for appeal procedures.
g) Amendments to a Special Management Area Use Permit or Conditions
1) Application: The applicant may apply to the Commission
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 (c) and (d).
3) Decision and Order: The procedures shall be the same as
provided for under Section 9-11 (f).
9-12 Artificial Light on Shoreline and Ocean Waters
9-19
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) Section 9-12 (a) shall not apply to:
1) A 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.
9-13 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) Section 9-13 (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
9-20
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.
9-14 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 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 Commission 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- 15 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.
9-16 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:
9-21
A) There has been noncompliance with the conditions of
the permit; or
B) The development authorized under the permit is creating
a threat to the health or safety of the community.
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
Commission 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 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 (f) of this rule.
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 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 Hawai`i 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.
9-17 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 [ehapter] Chapter 91, HRS.
9-18 Complaint and Investigative Procedures
The Department shall adopt rules to establish procedures for investigating
9-22
complaints and alleged violations.
9-19 Administrative Fines
The Department is authorized to impose administrative fines in accordance
with established rules.
9-20 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- 21 Hearing Officer
a) The Commission 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 Commission as
provided by this rule.
b) The notice and hearing requirements for hearings conducted by a
hearing officer 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.
b) 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 Commission.
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 Commission and to all persons involved in the
proceedings.
c) 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:
9-23
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.
d) Testimony Before the Commission:
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 Commission may grant such
request.
2) The Commission may on its own motion re -open the hearing to
allow the taking of additional testimony and further evidence.
e) Commission Action:
1) In the event no statement of exception is filed, the Commission
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, Commission shall render its decision pursuant
to Rule [944] 9-11 ( e).
9-22 Petition for the Adoption, Amendment or Repeal of Rule 9 Special
Management Area Rule of the County of Hawai`i
a) Petition
Any person may petition the Commission 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- ] 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
9-24
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) Five hundred 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 Commission shall conduct a
public hearing 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 (f).
9-25
9-23 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 Commission, 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
Commission, the general public and the State Office of
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 Commission.
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 Commission 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 Commission 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 (f).
b) Special Management Area Boundary Amendments Initiated by the
General Public:
1) Application:
Any person may apply to the Commission through the Director
requesting the amendment of the Special Management Area
boundaries.
9-26
The applicant shall submit the following to the Department:
A) The original [ ]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) Five hundred dollars filing fee to cover publication and
other administrative costs.
2) Notice and Hearing
The notice and hearing procedures shall be the same as
stipulated under Section 9-11 (c) and (d).
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).
4) Decision and Order:
The procedures shall be the same as provided for in Section 9-
11 (f).
9-27
RULE 10. ZONING AMENDMENTS
10-1 Authority
This rule governs zoning amendment procedures before the Planning
Commission as required by Chapter 25 (Zoning Code), Hawaii County Code[,-
es-amendeeh] 1983 (2016 Edition, as amended).
10-2 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 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:
A) Notice by mail to surrounding owners and lessees of
record shall not be required for any amendment initiated
by the Director or the 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 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.
B) No later than thirty days prior to the public hearing, the
Commission shall provide written notice [by -mail] to
owners of any properties specifically subject to the
proposed amendment.
10-1
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.
5) 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, as amended. An additional
two hundred fifty dollar processing fee shall be submitted by the
applicant for each hearing continued at the request of the
applicant.
b) Amendments initiated by property owners and other persons.
1) The Commission shall hold at least one public hearing and shall
provide thirty days' notice of the date of the hearing to the
applicant.
2) Within ninety days after receipt of the application from the
Director, unless a longer time 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 days after receipt of the amendment from
the Director, the Commission shall transmit the
10-2
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, 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 days
from the date that the amendment is transmitted by the Council.
A) Within the one hundred twenty -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 -day review period has
expired, the Council may proceed to act on the proposed
amendment as it deems appropriate.
10-3 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;
10-3
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 Department for additional
information; and
6) The address and telephone number of the 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[, as amended.] (2016 Edition, as amended).
d) The applicant shall file an affidavit with the 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.
10-4
RULE 11. GEOTHERMAL RESOURCE PERMITS
11-1 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
Commission to determine whether proposed geothermal development activities
should be allowed. The 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 Commission's approval of an application for a geothermal resource permit
shall not in any way abrogate nor supersede the provisions of Chapters 182 and
183, HRS, and rules promulgated thereunder.
11-2 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
Hawai`i Revised Statutes, Section 205-5.1.
11- 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
Commission for a geothermal resource permit. An application for a geothermal
resource permit shall be filed in the 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.
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)
J)
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.
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
11-2
resources,
v) Air and noise emissions,
vi) Hazards to public health and safety,
vii) Socio-economic impact(s), and
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.
0) Method(s) of presenting timely progress reports to the
Commission.
P) Other pertinent information or data such as an
archaeological survey which the Director may require to
support the application for the utilization of geothermal
resources and the protection of the environment.
11-3
c)
maps of 1:21,000 scale, or larger when required by the Commission.
dclingucncie ] Prior to the acceptance of any application, all real
property taxes and other fees relating to the subject parcel or parcels
shall be paid and there shall be no outstanding delinquencies, except in
cases of bankruptcy or similar matters as authorized by the County
Director of Finance.
11-4 Properly Filed Application
Within twenty days of receipt of an application, the Director shall review it to
determine if it is complete in that it includes the supporting data required
pursuant to Section [11.3.] 11- 3. 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.
11- 5 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 Department for additional
information; and
6) The address and telephone number of the 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.
11-4
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] Chapter
3 [(.. igns)] (Signs) Hawai'i County Code 1983 [(2005 edition)] (2016
Edition, as amended).
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.
11-6 Hearing and Notification
a) The Director, on behalf of the 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 Commission shall conduct a public hearing. Upon appropriate
request for mediation from any party who submitted comment at the
public hearing, the Commission shall order the requesting party or
parties, the applicant and the appropriate agencies to submit to the
mediation process outlined in Section 11-6.
c) Promptly after the Director fixes a date for the public hearing and at
least fifteen 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 Director), and to other interested persons or groups
as may be determined by the 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:
1)
2)
3)
Name of the applicant;
Precise location of the property involved;
Nature of the proposed geothermal development activities; and
11- 5
4) Date, time, and place of the hearing.
d) If the notification requirement set forth in section [4-14] 11- 5 (c) has
not been met, the 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 Commission shall publish notice of the hearing in a
newspaper of general circulation in the County which includes the
information provided under section 11-6 (c) (1) to (4).
f) 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 11-6(c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
11-7 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 Commission shall require the parties to
participate in mediation. All appropriate requests for mediation shall be
consolidated in a single mediation conference. The Commission shall
not be a party to the mediation, and shall not be permitted to attend
mediation conferences. The 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 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 [am ten copies] of the
request for mediation shall be filed with the Commission within five
days after the close of the initial public hearing and one copy of the
request shall be served on the applicant.
d) Appointment of a Mediator. Within five days after receipt of a timely
request, the Commission shall appoint a qualified mediator.
Appointment of the mediator by the Commission shall be final, except
as provided in Section 11-7 (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
11- 6
f)
g)
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.
Notice of Mediation Conference. The applicant and any person
submitting a timely request for mediation shall be notified in writing by
the 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 or by
electronic mail to the electronic mail address stated in the application
and in the request for mediation, which method shall be indicated in the
application or request for mediation. The notice shall be mailed no later
than ten days before the start of the mediation conference.
Mediation Conference. The initial mediation session shall be held
within fifteen 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 Hawai'i 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 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.
k) The parties shall maintain the confidentiality of the mediation and shall
not rely on, or introduce as evidence in any arbitral, judicial,
11- 7
administrative, or other proceeding:
1) views expressed or suggestions made by any other party with
respect to a possible settlement of any disputed issue;
2) statements or admissions made by any other party in the course
of mediation proceedings;
3)
4)
proposals made or views expressed by the mediator;
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 Commission, based upon any
mediation agreement reached between the parties or stating that no
agreement was reached, for consideration by the Commission in its
final decision. The written report of the mediator shall be filed with the
Commission and served on all parties to the mediation within ten 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 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 days after receipt of the mediator's report. Within
ten days after the second public hearing, the 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 Commission shall consider the
comments raised at the second hearing before rendering its final
decision. The 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.
11-8 Criteria for Issuance of Geothermal Resource Permit
The 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
11-8
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
c) There are reasonable measures available to mitigate the unreasonable
adverse effects or burdens referred to above.
11-9
11-9 Action
a) Unless there is mutual agreement to extend the period of time for the
Commission's action, the Commission shall take action on a properly
filed and complete application within one hundred eighty days of the
date a complete application is filed; provided that the time limit may be
extended by agreement between the applicant and the Commission.
b) The Commission's action shall either:
1) Grant the geothermal resource permit as requested by the
applicant based upon the satisfaction of criteria in section 11-8
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.
11-10 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 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.
11-10
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.
d) A final site plan and elevations of proposed temporary and/or
permanent structures for the project or any phase of the project.
11- 11 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 11- 8; and
Any other applicable information requested by the Director. 3)
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:
The affected condition;
The length of time requested; and
The reasons for the request.
If either the Director or the 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 Director.
c) All of the procedures set forth in this rule and the procedures set forth
in other applicable Commission rules shall apply.
11-12 Enforcement of Permit and Conditions
a) If the Director determines that there is noncompliance with the
geothermal resource permit or its conditions, Director shall so inform [in
writing] the permittee in writing 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
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 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 Commission to amend
the permit, should compliance be impossible or impractical to meet.
d) If the permittee fails to correct the noncompliance within the required
time period, the Director shall refer the matter with his
recommendations to the 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 Commission, the 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 Director
may reactivate the permit upon a subsequent finding of the permittee's
compliance with the permit condition. Subject to the Commission rules,
the permittee may at any time request a hearing before the Commission
for its review and action with regard to the permit's temporary
suspension or any subsequent refusal of the Director to reactivate the
permit. Referrals by the Director to the Commission and reviews by the
Commission of the Director's action shall be heard at the
Commission's next meeting when the matter can be placed on the
Commission's agenda.
11-13 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.
11-14 Appeals
a) Any decision made by the 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 subjectto a contested
case hearing. Sections 91-14 (b) and (g), Hawaii Revised Statutes, as
amended, shall govern the appeal, notwithstanding the lack of a
contested case hearing on the matter. The 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:
1) The application for the permit and all accompanying supporting
11-12
documents, including but not limited to; reports, studies,
affidavits, statements, and exhibits.
2) Staff recommendations from County agencies submitted to the
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 Commission from
the mediator with any mediation agreement.
6) A statement of relevant matters officially noticed by the
Commission and/or any of its members at the public hearings.
7) The written decision of the Commission issued in connection
with the application and public hearings.
8) Other documents required by the Commission.
11-13
RULE 12. GEOTHERMAL ASSET FUND
12-1 Authority
Pursuant to the authority conferred upon the Windward 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.
12-2 Purpose
The purpose of this rule is to allow the Windward Planning Commission to
authorize payment of money from the Geothermal Asset Fund to claimant(s)
whom the Commission finds has been adversely impacted by activities
authorized or unauthorized by Geothermal Resource Permit No. 2, issued by
the County of Hawai`i, 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. Since this rule relates to a condition of Geothermal Resource
Permit No. 2 issued for property within the Puna District, County of Hawai`i,
this rule is applicable only to the Windward Planning Commission.
12-3 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 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.
12-4 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 Commission. The Commission
will review these findings and then render a decision.
12- 5 Geothermal Asset Fund Claims Adjuster
A professional claims adjuster will be selected by the Commission after
receiving a list of names selected through requirements of the State
Procurement Code. Unless otherwise required by Statute, the claims adjuster
12-1
will serve for a period of five years. In the event that five years have passed
and the life of the Geothermal Asset Fund is extended, the Commission may
either ask for a new list of names to choose another claims adjuster or extend
the claims adjuster who previously served the Commission.
12-6 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 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 Commission
action to confirm or reject the claims adjuster's recommendation shall,
after exhaustion of the Commission appeal process, become final and
shall bar any subsequent claim before the Commission by the same
claimant(s) based upon the same facts.
12-7 Filing of Claims
a) All claims for compensation for adverse impact pursuant to this rule
shall be filed with the Hawaii County Planning Department[, 101
Pauahi Street, Suito 3, Hilo, Hawai`i 96720.] electronically to
planning a,hawaiicounty.gov, unless otherwise directed.
12-2
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) [Twenty copies of tho] 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 Commission
members who will hear the claim.
12-8 Hearings
a) Scheduling of Hearing. Whenever an application is made for
compensation, the claims adjuster shall submit a recommendation to the
Commission within ninety days of the receipt of the application and all
supporting documents.
b) Documents, Applications, Amendment, Dismissal. All papers,
documents and applications must be [ •
submitted electronically to planninga,hawaiicounty.gov, unless
otherwise directed. The signature or electronic 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
otherwise insufficient, the claims adjuster may recommend to the
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.
12-3
c) The claims adjuster shall recommend to the Commission whether or not
the claim has merit and, if so, what amount of compensation. It shall be
forwarded to the Commission within ninety days of filing with the
claims adjuster. The 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 Hawai`i, and
2) The amount of compensation to be granted is deemed by the
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 Hawai`i, 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 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
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 Commission or by
default by the Commission choosing not to consider the claims
adjuster's recommendation.
12-9 Claims Adjuster's Recommendations
The claims adjuster shall recommend to the 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
2) The geothermal development activities have unreasonably
burdened public agencies to provide roads and streets, sewers,
12- 4
3)
water, drainage, school improvements, and police and fire
protection, or
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).
12- 10 Commission Action
a) The Commission shall review the findings and recommendation prior
to announcing the decision or the date when its decision will be
announced. If the Commission does not make a decision on the claims
adjuster's recommendation within ninety days from the close of the
hearing, the claims adjuster's recommendation becomes final.
12-5
b) Reconsideration by 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.
12-11 Award of Compensation
Upon voting to award compensation to claimant(s), the 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.
12- 12 Denial of Award of Compensation
Upon voting to deny an award of compensation to the claimant(s), the
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 Hawai`i.
12-13 Appeal
a) Any decision of the Commission so made within the context of this rule
shall be appealable to the Third Circuit Court. The notice of appeal
shall be filed in the Third Circuit Court within thirty (30) days after the
person desiring to appeal is notified of the decision or order, or of the
action taken in a manner provided by statute.
b) If a contested case hearing is held a different appeal option if available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
12- 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.
12- 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 copies] and [shat-1]include:
12-6
1) A statement of the nature of the petitioner's interest.
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 Commission shall within sixty 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.
12-16 Relocation
The Geothermal Asset Fund may be used for relocation and payment for
adverse impacts.
12- 17 Other Rights
Nothing in this rule shall be construed to deprive or deny any person any other
rights or recourse under law.
12- 7
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 Hawai`i Revised
Statutes and Chapter 28 of the Hawai`i County Code[;] 1983 (2016 Edition, as
amended), 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 Application for State Land Use District Boundary
Amendment
An application 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. An application may also be
initiated by resolution of the Council.
13-3 Contents of Application
An application for a State Land Use district boundary amendment shall be filed
with the Department and shall include the following:
a) Non-refundable filing and processing fee of five hundred dollars.
b) Original [ ]of:
1) Application form;
2) Description of the property in sufficient detail, including the tax
map key identification, map, and acreage;
3)
c)
Ed)
4)
5)
Preliminary site plan, drawn to scale, with all existing and
proposed structures and improvements shown thereon;
The reclassification sought and the present use of the land; and
Reasons for the requested change and a written description of the
proposed development.
information required under Section 13 3(b)(3).]
A certificate of clearance from the County Director of Finance stating
13-1
delinquencies.]Prior to the acceptance of any application, all real
property taxes and other fees relating to the subject parcel or parcels
shall be paid and there shall be no outstanding delinquencies, except in
cases of bankruptcy or similar matters as authorized by the County
Director of Finance.
13-4 Incomplete Application
The Department shall neither accept nor process an application which is
incomplete as to form and content. An incomplete application shall be returned
to the applicant with a written explanation of its deficiencies.
13-5 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:
The nature of the application;
The proposed use of the property;
The size of the property;
The tax map key(s) of the property;
That the public may contact the Department for additional
information; and
6) The address and telephone number of the 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)
Hawai`i County Code 1983 [, as amended.] (2016 Edition, as
13-2
amended).
d) The applicant shall file an affidavit with the 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.
13-6 Procedures for Reviewing and Processing of Application
a) Department
1) Upon receipt of a complete application, the Department shall
serve a copy to the State Land Use Commission and the State
Department of Business, Economic Development and Tourism.
2) Within ninety days of acceptance of an application or such
longer period as may be agreed to by the applicant, the
Department shall submit its recommendation to the
Commission. The 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) Commission
1) Upon acceptance of a State Land Use Boundary Amendment
application, the Commission, through the Department, shall fix
a date for the public hearing. The public hearing shall
commence no later than ninety days after the acceptance of a
State Land Use Boundary Amendment application by the
Director, or within a longer time period as agreed to by the
applicant. The Commission shall notify the State Land Use
Commission and the State Business, Economic Development
and Tourism of the time and place of the hearing and the
application scheduled to be heard at the hearing.
At least ten days prior to the public hearing, the Commission
shall give notice of the proposed amendment by publishing it at
least once in a newspaper of general circulation in the County.
In cases of property owner -initiated amendments, promptly after
the Commission's fixing a date for the hearing but not less than
ten days prior to the date of the hearing, applicant 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
13-3
certified mail receipts, affidavits, or the like.
4) The applicant shall notify all property owners within three
hundred feet of the affected property of any subsequent
hearing(s) continued at the applicant's request. An additional
two hundred fifty dollar processing fee shall be submitted by the
applicant for each hearing continued at the request of the
applicant.
5) After the conclusion of the hearing, the Commission shall
recommend either the approval or denial of the amendment to
the Council stating its reasons for such decision, including
appropriate performance conditions in the case of an approval
recommendation.
6) Prior to the Commission forwarding its report to the Council,
the applicant shall file with the Department a map and written
description by metes and bounds of the property.
13- 7 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:
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.
13-8 Notification of Decision
Within thirty days of the effective date of the district boundary amendment, the
Department shall submit the decision and the description and map of the
reclassified area to the State Land Use Commission.
13-9 Consolidated Proceeding with Other Land Use Changes
An application 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
RULE 14. AGRICULTURAL PROJECT DISTRICTS
14-1 Authority
This rule governs Agricultural Project Districts (APD) before the Commission
as required by Chapter 25 (Zoning Code), Hawaii County Code [-] 1983 (2016
Edition, as amended).
14-2 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 planning 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 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.
14-3 Contents of Application and Requirements
An application for an Agricultural Project District shall be filed with the
Commission, through the Department, on a form prescribed by the Director.
The application shall conform to the requirements of Section 25-6-54 of
Chapter 25, Hawaii County 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, Hawai`i County
Code [-] 1983 (2016 Edition, as amended).
14-4 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;
14-1
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 Department for additional
information; and
6) The address and telephone number of the 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)
Hawai`i County Code 1983 [, amended.] (2016 Edition, as
amended).
d) The applicant shall file an affidavit with the 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.
14-5 Procedures for Reviewing and Processing Agricultural Project Districts
a) Within one hundred twenty 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
Code) and Chapter 23 (Subdivision Control), if applicable, as contained
14-2
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, Hawai`i County Code [-] 1983 (2016 Edition, as amended).
c) Within ten 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, Hawaii County Code [:] 1983 (2016 Edition, as amended). 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.
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, Hawai`i
County Code [:] 1983 (2016 Edition, as amended). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
14- 6 Decision
Within ninety 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 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.
14-7 Criteria for Establishing an Agricultural Project District
An Agricultural Project District may be established as an amendment to
Chapter 25, Hawaii County Code [;] 1983 (2016 Edition, as amended),
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 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:
14-3
a) Is consistent with the intent and purpose of Chapter 25, Hawai`i County
Code [;] 1983 (2016 Edition, as amended), and the General Plan; and
b) Will not result in a substantial adverse impact upon the surrounding
area, community or region.
14-8 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 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.
1) The applicant shall submit an original [ ]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 Commission.
2) The notice and hearing procedures and decision shall be the
same as under Section 14-4, 14-5 and 14-6 of this rule.
14-4
RULE 15. PROJECT DISTRICTS
15-1 Authority
This rule governs Project Districts (PD) before the Commission as required by
Chapter 25 (Zoning Code), Hawaii County Code 1983 (2016 Edition, as
amended).
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 [;] 1983 (2016
Edition, as amended), 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 Commission,
through the Department, on a form prescribed by the 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.
15-4 Procedures for Reviewing and Processing Project Districts
a) Within one hundred twenty 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.
15-1
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 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, Hawai`i County Code [7] 1983 (2016 Edition, as amended). 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 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, Hawai`i
County Code [-] 1983 (2016 Edition, as amended). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
15-5 Decision
Within ninety 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 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:
a) Is consistent with the intent and purpose of Chapter 25, Zoning Code,
and the General Plan; and
b) Will not result in a substantial adverse impact upon the surrounding
area, community or region.
15-2
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 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.
1) The applicant shall submit an original [and `went•. copies]of the
written request, which includes:
A) The affected section of the Project District enabling
ordinance;
B) The specific amendment or length of time requested;
C) The reasons for the request; and
D) Any other information required by the Commission.
2) The notice and hearing procedures and decision shall be the
same as under Sections 15-4 and 15-5 of this rule.
15-3
RULE 16. PLANNED UNIT DEVELOPMENT (P.U.D.)
16-1 Authority
This rule governs Planned Unit Developments (P.U.D.) before the Commission
as required by Chapter 25 (Zoning Code), Hawai`i County Code Eras-
amended,]
ras-
amended ] 1983 (2016 Edition, as amended).
16-2 Purpose
The purpose of P.U.D. is to encourage comprehensive site planning that is
compatible with the surrounding community and that adapts the design of
development to the land, by allowing diversification in the relationships of
various uses, buildings, structures, open spaces and yards, building heights,
and lot sizes in planned building groups, while still insuring that the intent of
Chapter 25, Hawai`i County Code [, mended,] 1983 (2016 Edition, as
amended), is observed.
16-3 Minimum land area required
The minimum land area required for a P.U.D. shall be two acres.
16-4 Contents of Application for P.U.D Permits and Requirements
An application for a P.U.D. permit shall be on a form prescribed for this
purpose by the Director on behalf of the Commission. An original [an€1-twent.fr
copies] of the application shall be accompanied by:
a) A filing fee of $500.
b) A written description of the proposed project, including the following
information:
1) Name of the applicant;
2) A description of the property in sufficient detail to determine
the precise location of the property involved;
3) A statement of objectives and reasons for the requested P.U.D.
permit including an analysis of how the request satisfies the
standards contained in section 16-9 of this rule;
4) A list of all requested deviations from the requirements of
16-1
Chapter 23 (Subdivisions) and Chapter 25 (Zoning), Hawai`i
County Code [, as-amer -] 1983 (2016 Edition, as amended).
5) A schedule for the timetable of the proposed development; and
6) An analysis of the relationship of the proposed development to
the General Plan and any applicable, adopted community
development plan, other adopted master plan, and if applicable,
any other adopted design guidelines and/or standards affecting
the project area.
c) A site plan, drawn to scale and fully dimensioned, comprising a general
development plan covering the entire area of the P.U.D. indicating
clearly the following information:
1) The uses, dimensions, and locations of all existing and proposed
structures;
2) Widths, alignments, and improvements of existing and proposed
streets and pedestrian and drainage ways, and existing access
and utility easements;
3) Any proposed subdivision of property for individual parcel sale;
4) Parking areas, both on- and off-street;
5) Public areas and uses; and
6) Landscaping and open spaces.
d) Architectural drawings for all buildings demonstrating the design and
character of the proposed buildings and uses. If the project area is
within a district established under section 16-5 of this rule for which
design guidelines and/or standards have been adopted that are
applicable to single-family dwellings, architectural drawings shall be
required for all buildings including single-family dwellings.
e) A visual depiction of all of the requested deviations from code called -
for in section 16-4 ( b) (4).
f) Any other information or plans deemed relevant by the Planning
Director to facilitate processing the application request.
g) A list of the names, addresses and tax map key numbers or all
surrounding owners and lessees of property interests in property within
16-2
the boundaries established by section 25- 2-4 of Chapter 25, Hawaii
County Code as amended. The Director, on behalf of the Commission,
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, Hawaii County Code [, mended ] 1983
2016 Edition, as amended).
16-5 P.U.D. permit application and processing requirements located within special
districts with design guidelines and/or standards
a) In addition to the application requirements for a P.U.D. contained in
section
16-4, an application for a P.U.D. in any special district established
under article 7 of Chapter 25, Hawai`i County Code, as amended, for
which design guidelines or standards have been adopted by the
Council, excluding any special district having adopted design
guidelines and/or standards established under Chapter 25, Hawaii
County Code [, „ended,] 1983 (2016 Edition, as amended), prior to
adoption of this rule, shall include:
1) Complete and accurate exterior elevations of all facades, drawn
at a scale adequate to show clearly the appearance of all
proposed buildings and structures;
2) A description of exterior siding, roofing and finish materials:
3) Exterior door and window specifications;
4) Description, location, and renderings for any exterior signage:
5) A streetscape rendering of the project site and adjacent
properties suitable for evaluating the immediate spatial
relationships. Photographic images may be substituted provided
those images are adequate to serve the same purpose; and
6) Other descriptive information as the director, on behalf of the
Commission, finds necessary to determine consistency of the
proposed project with the design guidelines and/or standards
adopted for the special district in which the project building site
is located.
b) The P.U.D. application and plans shall be subject to review and
comment by the design review committee established under the
respective special district section under article 7 of Chapter 25, Hawaii
County Code [, wended,] 1983 (2016 Edition, as amended), for
16-3
consistency with the adopted design guidelines and/or standards.
c) The director, on behalf of the Commission shall, within five days of
acceptance of a P.U.D. application, provide the respective design
review committee with a copy of the application and plans along with a
request for their review and comments on the consistency of the project
with the adopted design guidelines and/or standards.
d) The written recommendations and plans stamped "Reviewed by" with
the date and signature of the chair of the respective design review
committee affixed shall be submitted to the director on behalf of the
Commission within twenty-five calendar days of receipt by the design
review committee of the final plans for any approval of a P.U.D.
application.
e) Except as otherwise provided in Section 16-5, the director shall
withhold providing a recommendation to the Commission on any
P.U.D. application until having received the written recommendations
and stamped and signed plans from the chair of the respective design
review committee fix the application.
f)
g)
By written request to the director on behalf of the Commission, the
chair of the respective design review committee may request an
extension of time to complete the design review and to submit the
recommendations of the design review committee which the Director
on behalf of the Commission may grant only with the written approval
of the applicant for P.U.D.
In the event that no design review committee is established, or if the
design review committee, for whatever reason, fails to respond within
the time limit prescribed in subsection (d), the director shall provide
design review against the relevant design guidelines and/or standards as
adopted by the Council.
16-6 Notice of filing and action on P.U.D. application and sign posting
The applicant shall serve notice on property owners and lessees of record of
the surrounding properties as follows and as provided by section 25-2-4,
Chapter 25, Hawai`i County Code [, mended.] 1983 (2016 Edition, as
amended).
a) The applicant shall first serve notice of the filing of the application on
the surrounding owners and lessees within ten days after the Director
on behalf of the Commission has officially acknowledged receipt of the
application.
16-4
b) The applicant shall serve a second notice on the surrounding owners
and lessees of record 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 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
P.U.D. permit sought.
The notices shall include the following information:
1) Name of the applicant;
2) Precise location of the property involved, including tax map key
identification, location map and site plan;
3) Nature of the application and the proposed use of the property;
4) Date on which the application was filed with the Commission;
5) A form developed by the Planning Department that outlines the
contested case procedure and who qualifies (entitled "Petition
for Standing in Contested Case Hearing"). In addition, the
notice shall state that interested parties have a right to file a
written request for a contested case procedure;
6) A statement indicating that should the landowner or lessee
choose not to submit a written request for a contested case
procedure, they may express their support/opposition in writing
or by oral testimony at the Planning Commission public hearing
to be scheduled; and
7) Date, time and place that the scheduled public hearing will be
held to consider the application (to be included in the second
notice).
c) The applicant shall also post a sign for public notification on the
property as provided by section 25-2-12, Chapter 25, Hawaii County
Code [, Mended.] 1983 (2016 Edition, as amended).
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, Chapter 25, Hawai`i
County Code [, mended.] 1983 (2016 Edition, as amended). An
additional two hundred fifty dollar processing fee shall be submitted by
the applicant for each hearing continued at the request of the applicant.
16-5
16-7 Procedure for processing application when use not permitted in district
An application for a P.U.D. permit that proposes a use not permitted either
directly or as a conditional use within a district may be considered by the
Commission only if a separate application for a change of zone is filed
concurrently with or prior to the P.U.D. permit application. The P.U.D. permit
application and the change of zone application shall be considered
concurrently, and any P.U.D. approved by the Commission shall be effective
only when the change of zone ordinance becomes effective.
16-8 Actions by Commission on P.U.D. permit applications
a) Within ninety days after acceptance of a P.U.D. permit application or
within a longer time period as may be agreed to or requested by the
applicant, the Commission shall conduct a public hearing(s), and within
sixty days following the close of such public hearing(s), either deny or
approve the application, subject to conditions as imposed by the
Commission.
b) The conditions imposed by the Commission shall bear a reasonable
relationship to the P.U.D. permit issued, and to the approved uses and
plans of district standards; provided, however, that no improvements or
alterations off-site of the project shall be required as a condition of a
P.U.D. permit. The conditions may include, but are not limited to the
following:
1) Commencement and completion time frame for the project;
2) Boundary and density reallocations approved for the project,
which can include covenants or conservation easements to
preserve open space areas in perpetuity;
3) Uses that are prohibited or limited;
4) Specifications for the minimum development standards;
5) Specifications for street improvement and dedication;
6) Utilities to be furnished;
7) The extent and limitations upon the uses permitted; and
8) Compliance with representations made by the applicant.
16-6
c) If the Commission fails to render a decision within the prescribed sixty
day period, the application shall be considered as being approved,
provided that no written objection to the P.U.D. permit application is
received by the Commission.
16-9 Criteria for granting a P.U.D. permit
A P.U.D. permit may be granted by the Commission upon finding that:
a) The construction of the project can begin and be completed within a
reasonable period of time from the date of approval.
b) The proposed development substantially conforms to the General Plan,
any adopted community development plan or adopted master plan and,
if applicable, any adopted design guidelines and/or standards affecting
the project area.
c) Any residential or agricultural development shall constitute an
environment of sustained desirability and stability for the district that is
in harmony with the character of the surrounding area, that results in an
intensity of land use no higher than that otherwise specified for the
district, and that maintains the standards of open space at least as high
as that otherwise specified for the district in which the development
occurs.
d) Any commercial development shall not create traffic congestion which
exceeds that which would have been produced under conventional
development patterns, practices and standards in the district or interfere
with any projected public improvements, shall provide for proper
entrances and exits along with proper provisions for internal traffic and
parking, and be an attractive center which does not adversely impact
upon adjacent and surrounding existing or prospective developments.
e) Any industrial development shall be in conformity with desirable
performance standards and shall constitute an efficient and well
organized development with adequate provisions for freight service and
necessary storage, and shall not adversely impact upon adjacent and
surrounding existing or prospective development.
f) The development of a harmonious, integrated whole justifies
exceptions, if required, to the•normal requirements of Chapter 23 and
Chapter 25, Hawai`i County Code [, as amended,] 1983 (2016 Edition,
as amended), and the contemplated arrangements or use make it
desirable to apply regulations and requirements differing from those
ordinarily applicable under the district regulations.
16-7
16-8
16-10 Height exceptions authorized
a) A building approved under a P.U.D. permit may exceed the height limit
specified under the zoning district of the property and the height limits
under section 25-4-22; Chapter 25, Hawaii County Code [ras-
amended,] 1983 (2016 Edition, as amended), provided, that the
maximum height of the building shall not exceed seventy-five feet.
b) A building approved under a P.U.D. permit and situated within a
zoning district which exceeds the height limits specified under
subsection (a) may be permitted at the higher height limits prescribed
for that zoning district.
16-11 Approvals issued under P.U.D. permit
a) No separate or additional permit or use permit, pursuant to Chapter 25,
Hawaii County Code[, as -amended] 1983 (2016 Edition, as amended),
shall be required for any use approved under a P.U.D. permit, and any
use approved under a P.U.D. permit shall be considered to be in
compliance with the required procedures for obtaining a use permit.
b) Plan approval shall be considered issued when completed drawings are
approved under a P.U.D. permit, and no further action is required for
the issuance of plan approval under Chapter 25 (Zoning Code), Hawaii
County Code. Completed drawings shall include all of the detail and
requirements of plan approval as indicated in section 25-2-72, Hawai`i
County Code [ras-amei-] 1983 (2016 Edition, as amended).
16-12 Effect of P.U.D. permit on other zoning provisions
Any P.U.D. permit issued shall be subject to all of the conditions imposed in
the permit and shall be exempted from other provisions of Chapter 23 and
Chapter 25, Hawaii County Code [, mended,] 1983 (2016 Edition, as
amended), only to the extent specified in the permit.
16-13 Time extensions and amendments
a) A P.U.D. permit holder may apply to the Commission through the
Department for an amendment to a P.U.D. permit or to any condition or
conditions imposed therein.
b) In the case of time extensions, the P.U.D. permit holder shall file the
request not less than ninety days prior to the expiration date of the
16-9
applicable time condition or conditions setting forth:
1) The affected condition or conditions;
2) The length of time requested; and
3) The reasons for the request.
If the Commission fails to act on a properly filed time extension request
prior to the expiration date, the activity granted under P.U.D. permit
may be continued unless the Commission specifically disallows the
activity during the interim period.
c) In the case of an amendment to the P.U.D. permit or to any addition
modification, and/or deletion of conditions of the P.U.D. permit, the
P.U.D. permit holder shall set forth in writing:
1) The affected condition or conditions;
2) The specific amendment or amendments requested; and
3) The reasons for the request.
d) Any such request shall be accompanied by a $250 filing and processing
fee, along with the original [afiEl-twenty-sepies] of the request.
e) The hearing and notice procedures and action shall be the same as
under sections 16-6 and 16-8 of this rule.
16-14 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within 30 days after the
person desiring to appeal is notified of the decision or order, or of the
action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4- 32 for appeal procedures.
16-15 Revocation
a) A P.U.D. Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
16-10
person, with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A P.U.D. Permit may be revoked by the Commission in the event that:
1) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the permit; or
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
2) The proceeding to revoke a P.U.D. 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.
16-11
WINDWARD PLANNING COMMISSION
John R. Replogle, Chairman Date
LEEWARD PLANNING COMMISSION
Michael Vitousek, Chairman Date
Notice of Public Hearing:
Hawai`i Tribune -Herald: June 15, 2021
West Hawaii Today: June 15, 2021
Date and Place of Hearing: July 15, 2021
Based on the Governor's Twenty -First Proclamation Related to the COVID-19
Emergency dated June 7, 2021, this meeting was held online by interactive video
conference through Zoom. This is to prevent the spread of COVID-19 and to maintain
physical distancing.
APPROVED:
MAYOR, County of Hawai`i
Date:
APPROVED AS TO FORM:
Deputy Corporation Counsel
Date:
I hereby certify that the foregoing amendments and revisions to the Hawai`i County
Planning Commission Rules of Practice and Procedure was received and filed in my
office this day of , 2021.
County Clerk
COUNTY OF HAWAII
PLANNING
COMMISSION
RULES OF
PRACTICE AND
PROCEDURE
RULES 1-16
P'.wpwin60APCAPC Rules%2021 Rule Changes and Minor Updales VPC Rules index.docAI ° page
Planning Dept.
Exhibit Z
COUNTY OF HAWAPI
PLANNING COMMISSION
RULES OF PRACTICE AND PROCEDURE
TABLE OF CONTENTS
RULE 1. GENERAL RULES
PAGE
1- 1 Authority 1-1
1-2 Purpose 1- 1
1-3 General Definitions 1-1
1-4 The Commissions 1-2
1-5 Meetings 1-3
1-6 Public Records 1-6
1-7 Computation of Time 1-7
1-8 Severability 1-7
RULE 2. PETITION FOR ADOPTION AMENDMENT, OR REPEAL OF RULES
2-I Initiation of Rulemaking Proceedings 2-1
2- 2 Notice of Public Hearing 2- 2
2-3 Conduct of Public Hearing 2-2
2-4 Action 2-3
2-5 Emergency Rulemaking 2-3
2-6 Filing of Rules 2-3
2-7 Taking Effect of Rules 2-3
2-8 Publication 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 3-2
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 Conflict with Other Time and Notice Requirements 4-1
4-3 Service of Notices, Documents, and Other Papers 4-1
4-4 Presiding Officer 4-1
1
4-5 Notice of Contested Case Hearing 4-2
4-6 Prehearing Procedure 4-3
4-7 Conference with Presiding Officer 4-5
4-8 Limiting Testimony 4-5
4-9 Removal from Proceeding 4-5
4- 10 Order of Procedure 4-5
4-11 Questions from Commission 4-5
4-12 Cross -Examination 4-5
4-13 Requests for Subpoenas 4-6
4- 14 Consolidation 4-7
4-15 Substitution of Parties 4-7
4-16 Written Requests 4- 7
4-17 Evidence 4-8
4-18 Briefs 4-9
4-19 Oral Arguments 4- 10
4-20 Public Testimony 4-10
4-21 Close of Hearing 4- 10
PART 2. Post Hearing Procedure for Hearings Conducted by Hearing Officer
4-22 Recommendations of Hearing Officer 4-10
4-23 Exceptions to Hearing Officer's Report and Recommendations 4-11
4-24 Support of Hearing Officer's Report and Recommendations 4-11
PART 3. Commission Decision
4-25 Examination of Evidence by Commission 4-12
4-26 Oral Argument before the Commission 4-12
4-27 Commission Action 4-12
4-28 Time Limit for Decision 4-12
4-29 Issuance of Decisions and Orders 4-13
4-30 Service of Decisions and Orders 4-13
4-31 Reconsideration of Decision and Order 4-13
4-32 Appeal from the Commission's Decision 4-13
RULE 5. GENERAL PLAN AMENDMENTS
5-I Authority 5-1
5- 2 Scope and Purpose 5-1
5- 3 Definition 5-1
5-4 Amendment Pursuant to Comprehensive Review 5-1
5-5 Interim Amendments 5-2
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
2
6-4 Incomplete Application 6-2
6-5 Posting of Signs for Public Notification 6-2
6-6 Public Hearing 6-3
6-7 Grounds for Special Permit 6-4
6- 8 Decision 6-4
6- 9 Amendments of Permit or Conditions 6-5
6-10 Appeals 6-5
6-l1 Revocation 6-6
RULE 7. USE PERMITS
7-1 Authority 7-1
7-2 Application and Content 7-1
7-3 Incomplete Application 7-2
7-4 Posting of Signs for Public Notification 7- 2
7-5 Public Hearing 7- 3
7- 6 Criteria for Granting a Use Permit 7- 5
7-7 Decision 7- 5
7-8 Concurrent Requests 7-5
7- 9 Amendments of Permit or Conditions 7-6
7-10 Appeals 7-6
7- 11 Revocation 7-7
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
8-5 Posting of Signs for Public Notification 8-4
8-6 Incomplete Application 8-5
8-7 Compliance with Chapter 343, Hawai`i Revised Statutes 8-5
8-8 Public Hearing 8- 5
8-9 Decision 8-6
8-10 Waiver of Public Hearing and Action 8-6
8-11 Criteria for Approval of a Variance 8-7
8-12 Amendments to a Variance 8-9
8- 13 Administration and Enforcement 8-10
8-14 Appeals 8-10
8-15 Revocation 8-10
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority 9-1
9-2 Purpose 9-1
9-3 Title 9-I
9-4 Definitions 9-1
9-5 Special Management Area 9-6
9-6 Objectives and Policies of Chapter 205A, HRS 9-6
9- 7 Special Management Area Guidelines 9-6
9-8 Permits Required for Development 9- 7
9-9 Authority of the Department in the Special Management Area 9- 7
9-10 Assessment 9- 7
9- 11 Special Management Area Use Permit Procedures 9-12
9-12 Artificial Light on Shoreline and Ocean Waters 9-20
9- 13 Prohibitions 9-20
9-14 Special Management Area Emergency Permits 9-21
9-15 Exemptions 9-22
9-16 Revocation 9-22
9-17 Penalties 9-23
9-18 Complaint and Investigative Procedures 9-23
9-19 Administrative Fines 9-23
9-20 Injunction 9-23
9-21 Hearing Officer 9-23
9-22 Petition for the Adoption, Amendment or Repeal of Rule 9 Special Management
Arca Rule of the County of Hawai`i 9-25
9-23 Amendment of Special Management Area (SMA) Maps 9-26
RULE 10. ZONING AMENDMENTS
10-1 Authority 10-1
10- 2 Procedures for Processing Zoning Amendments 10-1
10-3 Posting of Signs for Public Notification 10-4
RULE 11. GEOTHERMAL RESOURCE PERMITS
11-1 Purpose and Authority 11-1
11- 2 Definitions 11-1
11-3 Contents of Application 11-1
I 1-4 Properly Filed Application 11-4
11-5 Posting of Signs for Public Notification 11-4
11- 6 Hearing and Notification 11- 5
11- 7 Mediation 11-6
11-8 Criteria for Issuance of Geothermal Resource Permit 11- 9
11-9 Action 11- 9
11-10 Requirements Prior to Initiating Construction 11-10
11- 11 Amendments of Permit and Conditions 11-10
11-12 Enforcement of Permit and Conditions 11-11
11-13 Penalties 11-12
11-14 Appeals 11-12
4
RULE 12. GEOTHERMAL ASSET FUND
12-1 Authority 12-1
12-2 Purpose 12-1
12-3 Definition 12-1
12-4 General Procedures 12-1
12-5 Geothermal Asset Fund Claims Adjuster 12-2
12-6 Eligibility of Claims 12-2
12-7 Filing of Claims 12-3
12-8 Hearings 12-3
12- 9 Claims Adjuster's Recommendations 12-5
12-10 Commission Action 12-6
12-11 Award of Compensation 12-6
12- 12 Denial of Award of Compensation 12-6
12-13 Appeal 12-6
12-14 When Rules are Silent 12-7
12- 15 Petition for Adoption, Amendment or Repeal of Rules 12-7
12-16 Relocation 12-7
12-17 Other Rights 12-7
RULE 13. STATE LAND USE DISTRICT BOUNDARY AMENDMENT
13-1 Purpose and Authority 13-1
13-2 Standing to Submit Application for State Land Use District
Boundary Amendment 13-1
13-3 Contents of Application 13-1
13-4 Incomplete Application 13- 2
13- 5 Posting of Signs for Public Notification 13-2
13-6 Procedures for Reviewing and Processing of Application 13-3
13-7 Standards for Review 13-4
13-8 Notification of Decision 13-4
13- 9 Consolidated Proceeding with Other Land Use Changes 13-4
RULE 14. AGRICULTURAL PROJECT DISTRICTS
14-1 Authority 14-1
14-2 Purpose 14-1
14-3 Contents of Application and Requirements 14-1
14-4 Posting of Signs for Public Notification 14-1
14-5 Procedures for Reviewing and Processing Agricultural Project
Districts 14-2
14-6 Decision 14-3
14-7 Criteria for Establishing an Agricultural Project District 14-3
14-8 Amendments to Conditions and Standards 14-4
5
RULE 15. PROJECT DISTRICTS
15-1 Authority 15-1
15-2 Purpose 15-1
15-3 Contents of Application and Requirements 15-1
15-4 Procedures for Reviewing and Processing Project Districts 15-1
15-5 Decision 15-2
15-6 Criteria for Establishing a Project District 15- 2
15-7 Amendments to Conditions and Standards 15-3
RULE 16. PLANNED UNIT DEVELOPMENT (P.U.D.)
16-1 Authority 16-1
16-2 Purpose 16-1
16-3 Minimum land area required 16-1
16-4 Contents of Application for P.U.D Permits and Requirements 16-1
16-5 P.U.D. permit application and processing requirements located
within special districts with design guidelines and/or standards 16-3
16-6 Notice of filing and action on P.U.D. application and sign posting 16-4
16-7 Procedure for processing application when use not permitted in district 16-5
16-8 Actions by Commission on P.U.D. permit applications 16-6
16-9 Criteria for granting a P.U.D. permit 16- 6
16-10 Height exceptions authorized 16-7
16-11 Approvals issued under P.U.D. permit 16-8
16- 12 Effect of P.U.D. permit on other zoning provisions 16-8
16- 13 Time extensions and amendments 16-8
16-14 Appeals 16-9
16-15 Revocation 16-9
P9wpwin60APCAPC Rulcs'¢02 I Rule Changes and Minor Updata`PC Rules index.doc
6
LEEWARD AND WINDWARD PLANNING COMMISSIONS
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
Section 6-7.5 of the [2046] 2020 Charter of the County of Hawai`i, as
amended, and Chapter 91, Hawaii Revised Statutes.
1-2 Purpose
These rules govern the practice and procedure before Leeward and Windward
Planning Commissions of the County of Hawaii.
1-3 General Definitions
a) Agency" means any agency, board, commission, department, or
officer of the county or state government.
b) "Applicant" means any agency or person who applies to the
Commission for a land use application and/or permit.
c) Chairperson" means the chairperson of the Leeward Planning
Commission or the Windward Planning Commission, or both.
d) "Commission" means either the Leeward Planning Commission or the
Windward Planning Commission.
e) Joint Commission" means the combined membership of the Windward
Planning Commission and Leeward Planning Commission meeting
jointly.
0 "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.
g) Copy or copies" means both physical media or electronic media.
g](h)"Council' means the County Council.
h)]Q "County" means the County of Hawai`i.
t)](j) "Department" means the Planning Department.
j)](k) "Director" means the Planning Director.
L11 "Document" means a form, letter, or other method of written
communication and includes electronic communication such as
electronic mail etc.
k)1(m) "General Plan" means the Hawai`i County General Plan.
y](n) "Hearings Officer" means a person or person duly designated and
authorized by the Commission to conduct proceedings on matters
within the jurisdiction of the Commission for purpose of taking
testimony and to report the findings and recommendations to the
Commission.
f) "Intervenor" means a person who petitions to intervene in a contested
case proceeding and is admitted as a party.
m)](p)"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.
n)](q)"Person" means any individual, partnership, firm, association, trust,
estate, corporation, or other legal entity of any character other than an
agency.
o)lin "Presiding Officer" means any commissioner or a hearings officer duly
designated as such. Unless otherwise designated, the chairperson shall
be the presiding officer.
Signature" means either an original signature scanned into a format
prescribed by the Director or an electronic signature.
p)1W "Zoning Amendments" means changes to the boundaries of the zoning
district or changes to any other provision of Chapter 25 (Zoning Code),
Hawai`i County Code 1983 [, as amended.] (2016 Edition as
amended).
1-4 The Commissions
a) Office. The office of the Commissions is at Hilo, Hawai`i.
b) Communications. Any communication to the Commissions shall be
1-2
c)
addressed to the Chairperson, Leeward or Windward Planning
Commission, [101 Pauahi Street, Suite 3, Hilo, Hawaii, 96720] and
submitted electronically to planningCa,hawaiicounty.aov, unless
otherwise directed.
Membership. Each Commission consists of seven members appointed
by the Mayor and confirmed by the Council. In addition, the Director of
the Department of Public Works and the Manager of the Department of
Water Supply or their designated representatives serve as ex -officio
members without voting privileges.
d) Chairperson; Vice -chairperson. The chairperson and vice -chairperson
shall be elected annually. The chairperson shall have the
responsibilities and duties prescribed in this rule. The vice -chairperson
shall perform all the duties of the chairperson during the absence of the
chairperson.
1-5 Meetings
The Commission may meet and exercise its powers in its respective
jurisdiction within the County. All Commission meetings are open to the
public, except as provided by law. The parliamentary procedure to be utilized
by the Commission in the conduct of its own meeting shall be based on the
current edition of Robert's Rules of Order.
a) Regular Meetings. Regular meetings shall be held at least once a month
in the Commission's jurisdiction, unless otherwise specified by law.
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.
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 meeting, and 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
1-3
3)
affect a significant number of persons.
The Commission shall maintain a list of names and addresses of
persons who request notification of meetings and shall mail or
electronic mail, as elected by the requester 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 arc correct and an emergency exists;
c)
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 ( e)( 3) are
contacted by mail electronic 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.
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 the following purposes:
1) To consult with the Commission's attorney; and/or
2) For any other specific purpose authorized by law.
f) Joint Leeward and Windward Planning Commissions' Meetings. When
1-4
the Leeward and Windward Planning Commissions convene and meet
jointly, the chairperson for that joint meeting shall be either the
chairperson of the Leeward Planning Commission or the chairperson of
the Windward Planning Commission, selected at that meeting by the
affirmative vote of a majority of the combined membership of the two
commissions. The chairperson not selected as the chairperson for the
joint meeting shall be the first vice chairperson of the joint meeting.
g) Quorum. A majority (four) of all members to which the Commission is
entitled shall constitute a quorum to transact business. For a joint
Leeward and Windward commission meeting, a majority of eight
members constitutes a quorum.
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;
The substance of all matters proposed, discussed, or decided,
and a record, by individual members, of any votes taken; and
i)
3)
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]forty days after the meeting except where such disclosure would
be inconsistent with Section 92-5, Hawai`i 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.
Procedure for Testimony at Public Hearings. Members of the public
desiring to testify shall register with the commission staff prior to the
convening of the meeting. Additionally, 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:
I) The person desiring to testify shall indicate his or her name and
address.
2) The person testifying shall indicate whether he or she is
testifying on their own behalfor as a representative of the
applicant or an organization.
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3) An original [and fifteen copie ] of all written testimony offered
by any person shall be submitted to the Commission prior to the
time the person gives such testimony.
4) The person testifying shall submit such oral testimony under
oath. That oath shall be administered by the chairperson or
chairperson's designee.
The chairperson or vice -chairperson may limit testimony which
is irrelevant, abusive, disruptive, or unduly repetitious.
5)
6) The person testifying shall direct their remarks to the
Chairperson and not to any individual commission member,
staff member, or person in the audience.
7)
8)
All members of the public shall extend proper courtesy and
respect to one another and to all commission members and staff
and all persons shall be addressed by their surnames. No
profanity or abusive remarks will be allowed at any time in any
meeting.
Any person who does not abide by these rules may be ruled out
of order by the Chairperson.
9) Nothing in these procedures shall diminish the responsibility or
the authority of the Chairperson to maintain order and decorum.
j) Removal of Person from Meeting. Any person who disrupts a meeting
which prevents or compromises the conduct of the meeting may be
removed from the meeting at the discretion of the Chairperson.
1-6 Public Records
The term "public records" [ hall har e the saint. meaning as is defined in
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 protected by law or which invades 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
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deemed necessary for the protection of the character or reputation of
any person.
b) Copies of Public Records. Copies of records printed or reproduced or
electronically produced for persons other than governmental agencies
shall be [given] provided 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 or electronic 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 electronic copies of 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.
1-7 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.
1-8 Severability
In the event any portion of the Rules of Practice and Procedure of the Leeward
and Windward Planning Commissions of the County of Hawaii ("Rules of
Practice and Procedure") are declared invalid, such invalidity shall not affect
other parts of the Rules of Practice and Procedure.
1-7
RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES
2-1 Initiation of Rulemaking Proceedings
a) The Joint Commission may, at any time, initiate proceedings for the
adoption, amendment, or repeal of any rule of the Commissions.
Procedures to be followed in rulemaking shall be as set forth in these
rules.
b) Any interested person or agency may petition the Joint Commission for
the adoption, amendment, or repeal of any rule of the Commissions.
Such petitions shall contain:
I) A non-refundable filing and processing fee of five 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 Joint 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
Joint Commission. The Joint Commission shall notify the petitioner in
writing of such denial, stating the reasons thereof. Denial of the petition
shall not operate to prevent the Joint Commission from acting, on its
own motion, on any matter disclosed in the petition. Petitioner may
seek review- of the denial through the Third Circuit Court.
e) If the Joint Commission determines that the petition is in order and that
it discloses sufficient reasons in support of the proposed rulemaking
proceedings, the Joint 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
Joint 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
2-
Mailed] provided to all persons who have made timely written requests
for advance notice of the Joint Commission's rulemaking proceedings.
The notice shall be published at least thirty 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:
I) 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
A statement of the substance of the proposed rule. 3)
2- 3 Conduct of Public Hearing
a) The public hearing for the adoption, amendment, or repeal of any rule
shall be heard before the Joint Commission and presided over by the
chairperson or vice- chairperson of the Joint Commission or, in their
absence, by another member designated by the Joint Commission. The
hearing shall he 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 Joint 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 Joint 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 Joint
Commission to be authentic and relevant, shall be received and made a
part of the record.
2-4 Action
The Joint 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
2-2
If the Joint Commission finds that an imminent peril to public health or safety
requires adoption, amendment, or repeal of a rule upon less than thirty 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 Joint
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.
2-6 Filing of Rules
The Joint 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 Joint Commission shall, as soon as practicable, compile, index, and
publish all rules adopted by the Joint Commission and remaining in effect.
Compilations shall be supplemented as often as necessary and shall be
reviewed at least once every ten years.
2-3
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:
I) A non-refundable filing and processing fee of two hundred
dollars ($200);
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 or electronically mailed as elected by the requester to all persons who
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have made timely written requests for advance notice. The notice shall be
published at least twenty days prior to the date set for the hearing.
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.
3-2
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 Third 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 Third Circuit Court.
4-2 Conflict with Other Timc 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.
4-3 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, certified or registered mail electronic mail or by other
means [authorized] as permitted 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.
4-4 Presiding Officer
a) Person Presiding. The chairperson of the Commission, one of its
members, or a hearings 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
4-1
c)
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.
Continuance. The presiding officer may postpone or continue any
hearing to ensure the orderly and just conduct of a hearing.
4-5 Notice of Contested Case Hearing
a) Unless otherwise provided by law, the notice of hearing will be served
on all parties 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;
4) An explicit statement 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 so desired.
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 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 of Chapter 25, Hawai'i
County Code[..-] 1983 (2016 Edition, as amended). 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.
4-2
4-6 Prehearing Procedure
a) In all proceedings where the Commission's action is directly appealable
to Third 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 on a form approved by the
Planning Director and accompanied by a filing fee of S200 no later than
seven calendar days, prior to the Commission's first meeting on the
matter. If the applicant files a request with the Commission for the
deferral or continuance of the hearing prior to the commencement of
the hearing, the next regularly scheduled meeting of the Commission
will then be considered the subsequent rescheduled hearing date. If the
request for intervention is withdrawn in writing before the
commencement of the hearing, the filing fee shall be refunded to the
person seeking standing to intervene.
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.
The petitioner shall be admitted as a party if it 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
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 practice those rights
which are customarily and traditionally exercised for
subsistence, cultural or religious purposes.
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 Third Circuit Court pursuant to
Section 91-14, Hawai`i Revised Statutes.
d) After establishing the parties to the proceeding, the Commission may
either proceed with the hearing, or continue the matter to a more
appropriate time and date.
e) The Commission may join as a party any other person subject to service
4-3
f)
g)
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.
Multiple Intervenors. If more than one intervenor is admitted to a
contested case proceeding, the hearings officer and/or Commission may
require intervenors to assign responsibilities between themselves for the
examination and cross- examination of witnesses. The hearings officer
or Commission shall have the right to impose reasonable subject
matter, as well as time limitations on examination and cross-
examination of witnesses, whether or not parties are represented by
counsel.
Opposition to Intervention. If any party opposes the petition for
intervention, that party shall file, within five (5) days after being
served, his or her motion opposing the petition upon the Commission,
all other parties and the intervenor.
h) 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).
i) Mediation. All parties to a contested case proceeding shall participate,
in good faith, in one mediation conference, the length of which shall be
determined by the mediator. The mediation conference shall be held
within thirty days of the granting of an intervention by the Commission.
A mediator shall be selected jointly by the parties or appointed by the
Commission if the parties fail to agree. The mediator shall not be the
person appointed as the hearings officer for the contested case
proceeding. The cost of the mediation conference(s) shall be borne by
the Department. No agreement reached as a result of mediation shall
result in an improper delegation of powers of the Commission or
prevent the Commission from making the final decision in the matter.
4-7 Conference with Presiding Officer
At any time during the proceedings, the Presiding Officer may hold a
conference with the parties for the following purposes:
a) To determine the possibility of simplifying or eliminating the issues;
4-4
b) To facilitate the stipulation to facts or findings by the parties;
c) To identify evidence which will be needed at the hearing;
d) To determine the validity of proposed evidence;
e) To determine the need for depositions or subpoenas;
0 To determine the relevance of findings in some other case to the case at
hand;
g) To determine the need for consolidation of cases or joint hearings; and
h) To determine any other matters which will reduce cost or save time or
otherwise aid in the expeditious disposition of the contested case.
4-8 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.
4-9 Removal from Proceeding
Any person who disrupts a hearing which prevents or compromises the
conduct of the hearing shall be removed from the hearing room.
4-10 Order of Procedure
The applicant shall open and close. Other parties shall be heard in such order
as the presiding officer directs.
4-11 Questions from Commission
There shall he 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.
4-12 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.
4-13 Requests for Subpoenas
a) Subpoena of a Witness. Any request for the issuance of a subpoena,
4-5
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 the date of the
hearing at which the subpoenaed witness is to testify or documents arc
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)
e)
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 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.
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
Hawai'i, and such fees and mileage shall be paid by the party at whose
request the witness appears.
Oath. Each witness shall be placed under oath or affirmation prior to
testifying.
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.
4-14 Consolidation
4-6
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.
4-15 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.
4-16 Written Requests
a) Timing. Written requests shall be made at least ten days before the
hearing. Written requests may be made during the hearing but only for
good cause shown and at the discretion of the Presiding Officer.
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.
e) 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.
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)
4-17 Evidence
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.
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.
4-7
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] provide 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.
0 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 parties shall be
afforded an opportunity to examine the document and to offer in
evidence other portions thereof believed material and relevant.
g) Exhibits.
I) Form; Size. Exhibits shall be legible and [may be prepared on
paper not exceeding 8 I /2 x 11 inches in size or bound or folded
to the respective appr ximate size, where practical.] scanned
into a format prescribed by the Director. 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 arc 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
4-8
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 Hawai`i. 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.
Q) 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.
4-18 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 electronically mailed 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.
4-19 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.
4-20 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.
4-9
4-21 Close of Hearing
At the end of the presentation of the evidence, submission of briefs and oral
arguments, if any, the Commission or the hearings officer shall close the
hearing.
PART 2. Post Hearing Procedure for Hearings Conducted by Hearings Officer
4-22 Recommendations of Hearings Officer
a) Submission of Recommendations. Upon completion of taking of the
evidence, the hearings 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 hearings officer and all other matters placed in
evidence.
c) Service of Hearings Officer's Report. The hearings officer shall cause a
copy of the report to he served upon all parties to the proceedings.
4-23 Excgptions to Hearings Officer's Report and Recommendations
a) File; Form; Copies; Time; Service. Within fifteen days after service of
the report and recommendations by the hearings 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:
c)
I) The specific questions of procedure, fact, law, or policy to
which exceptions are taken.
2) That part of the hearings officer's report and recommended
order to which objections are made.
3) All the grounds for exceptions to a ruling, finding, conclusion or
recommendation.
Waiver of Exceptions. Any exceptions not specifically raised in writing
by a party are waived.
4-10
4-24 Support of Hearings Officer's Report and Recommendations
a) File; Form; Copies; Time; Service. Within seven days after service of
the exceptions taken to the hearings officer's report, a party may file
with the Commission a brief or statement in support of the hearings
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:
I) 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.
PART 3. Commission Decision
4-25 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.
4-26 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.
4-27 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 hearings officer.
4-11
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 members who are to render a final decision, the
Commission shall comply with the procedure in Section 4-25 of this
rule.
4-28 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.
4-29 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. The
agency shall notify the parties to the proceeding by [delivering or mailing]
providing 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.
4-30 Service of Decisions and Orders
Decisions and orders shall be [served by mailing] provided 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.
4-31 Reconsideration of Decision and Order
The Commission shall not reconsider its action in any contested case hearing
after the effective date of its decision.
4-32 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.
4-12
RULE 5. GENERAL PLAN AMENDMENTS
5-I Authority
This rule implements General Plan amendment procedures before the Planning
Commission as provided by Chapter 16, Hawai`i County Code 1983 (2016
Edition, as amended).
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.
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.
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.
5-4 Amendment Pursuant to Comprehensive Review
a) 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.
5-I
c) The Commission shall conduct and complete its review on the proposed
amendments to the General Plan, and shall submit its
recommendations, within one hundred fifty days from the date of
receipt of the proposed amendments from the Director.
d) The Commission shall recommend approval of the proposed
amendments, in whole or in part, recommend changes, or recommend
the rejection of the proposal for changes to the General Plan.
e) If the Commission fails to act on a proposed amendment within the
required period, it shall be deemed a negative recommendation.
5-5 Interim Amendments
a) Council -initiated
1) The Council may initiate interim amendments to the General Plan
at any time, except during the comprehensive review. The
Council may, by resolution, request the Director and the
Commission to review and make a recommendation on a
proposed amendment.
2) The Director shall have sixty days or a longer period, as may be
agreed to by the Council, to submit a recommendation on the
proposal to the Commission for review and recommendation.
3) The Commission shall consider the proposed amendment at no
less than two meetings, and shall make its recommendation on the
proposed amendment to the Council within sixty days from it
receipt of the Director's recommendation.
4) If the Commission fails to act within the required period, it shall
be deemed a negative recommendation.
h) Director -initiated
1) The Director may initiate an interim amendment to the General
Plan at any time other than during the comprehensive review. The
Director shall submit the proposed amendment to the Commission
for its review and recommendation.
2) The Commission shall conduct and complete its review on the
proposed amendments and shall submit its recommendations,
within one hundred twenty days from the date of receipt of the
proposed amendments.
5-2
3) If the Commission fails to act within the required period, it shall
be deemed a negative recommendation.
c) General Public
1) A member of the public may submit an application requesting the
Director to initiate an amendment to the General Plan at any time
except during the comprehensive review.
2) Should the Director initiate the amendment from the member of
the public, the amendment shall be processed according to
Section 5-5 (b).
5- 3
RULE 6. SPECIAL PERMITS
6-I 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 five hundred dollars.
b) Original [and twenty copie] 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) Building elevations, if required, 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, FIRS, 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;
D) Unusual conditions, trends, and needs have arisen since
the district boundaries and regulations were established;
6-1
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
tructure(s), a minimum f 2 feet by 3 feet in dimensi n, drawn t
calc. The site plan sh uld include pr perty lines, reference p ints
roadways, shoreline, etc.), and existing and proposed structures and
uses.
d) A certificate of clearance from the County Director of Finance stating
that the real property taxes and all other fees relating to the subject
parcel(s) have been paid, and that there are n utstandind
deliequeneies]Prior to the acceptance of any application, all real
property taxes and other fees relating to the subject parcel or parcels
shall be paid and there shall be no outstanding delinquencies, except in
cases of bankruptcy or similar matters as authorized by the County
Director of Finance.
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.
6-5 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- 2
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 Codc 1983[, as -amended.] ( 2016 Edition, as amended).
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- 6 Public Hearing
a) Upon acceptance of a Special Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The
public hearing shall commence no later than ninety days after the
acceptance of a Special Permit application by the Director, or within a
longer time period as agreed to by the applicant.
b) Promptly after the Commission's fixing a date for the public hearing,
the applicant shall mail a notice of the application and hearing to
owners of interests in properties within five 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 applicant;
2) Precise location of the property involved;
3) Nature of the proposed use; and
4) Date, time, and place of the hearing.
6- 3
c) Prior to the date of the hearing, the applicant 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 6-6 (b)(l-4) of this rule.
e) 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 6- 6 (b). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
6-7 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.
The Commission shall also consider the criteria listed under section [64] 6- 3
b)(5)(A) through (G).
6-8 Decision
Within sixty days after the close of the hearing, or within a longer time period
as agreed to by the applicant, the Commission shall:
a) For a Special Permit involving fifteen acres of land or less, approve it
by stating the reasons and attaching appropriate performance
conditions; or
b) For a Special Permit involving greater than fifteen 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.
6-9 Amendments of Permit or Conditions
6-4
a) The applicant 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 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; 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 applicant shall set forth in writing:
1)
2)
3)
The affected condition;
The specific amendment requested; and
The reasons for the request.
d) The applicant shall also file a two hundred fifty dollar processing fee,
along with the original [and twenty copie.] of the request.
e) The hearing and notice procedures and action shall be the same as
under Sections 6- 5, 6-6 and 6-8 of this rule.
6-10 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
6-11 Revocation
a) A Special Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
6-5
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A Special Permit may be revoked by the Commission in the event that:
I) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the permit; or
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
2) The proceeding to revoke a Special 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.
6- 6
RULE 7. USE PERMITS
7-1 Authority
This rule governs Use Permit procedures before the Planning Commission as
required by Chapter 25 (Zoning Code), Hawai`i County Code 1983[as-
amended.] (2016 Edition as amended).
7- 2 Application and Content
An application for a Use Permit shall be filed with the Commission, through
the Department, and shall include:
a) A non-refundable filing and processing fee of five hundred dollars.
b) Original [(sigt c(4) and ttwenty (20) c pies ]of:
1) Application form;
2) Detailed written description and background information as
required on the Use Permit Application form;
An analysis of how the request satisfies each of the following
standards:
3)
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.
4) Plot plan of the property, drawn to scale, showing property
lines, all existing and proposed structures, uses and
improvements; and reference points such as roadways,
shoreline, etc.
7-1
c)
f43]
One full size 2 foot by 3 foot plot plan drawn to scale for presentation
purposes which includes the information required under Section 7
2( b)(1) of this rule.
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.
e)]( d)[A certificate of clearance from the County Director of Finance that the
rein property taxes and all other fees relating to the subject parcel have
Prior to the
acceptance of any application, all real property taxes and other fees
relating to the subject parcel or parcels shall be paid and there shall be
no outstanding delinquencies, except in cases of bankruptcy or similar
matters as authorized by the County Director of Finance.
7- 3 Incomplete Application
The Director, on behalf of the Commission, shall neither accept nor process an
application which is incomplete as to form and content.
7-4 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:
The nature of the application;
The proposed use of the property;
The size of the property;
The tax map key(s) of the property;
That the public may contact the Department for additional
information; and
6) The address and telephone number of the 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
7-2
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)
Hawai`i County Code 1983 [, as amended.] (2016 Edition as
amended).
d) The applicant shall file an affidavit with the 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 Public Hearing
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 commence no later than ninety days after the acceptance
of a Use Permit application by the Director, or within a longer time
period as agreed to by the applicant.
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:
c)
1)
2)
3)
Name of the applicant;
The precise location of the property involved;
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.
The applicant shall serve notice on property owners and lessees of
record of the surrounding properties as follows:
1) Within ten days after filing an application with the Commission,
through the Department, the applicant shall serve a first notice
7-3
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:
A) Name of the applicant;
B) Precise location of the property involved, including tax
map key identification, location map and site plan;
C) Nature of the application and the proposed use of the
property;
D) Date on which the application was filed with the
Commission; and
E) 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 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 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 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- 4
e) 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 7-5 (c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
7-6 Criteria for Granting a Use Permit.
The Commission may approve a Use Permit upon finding that:
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 sixty days following the close of the public hearing(s), or within
a longer time period as agreed to by the applicant, 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.
b) In approving any use permit application, the Commission may issue the
approval subject to conditions, including but not limited to 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 contested case hearing pertaining to the use permit is pending
before the Commission.
7- 8 Concurrent Requests
Concurrent requests may be acted upon by the Commission in conjunction
with a use permit application.
7-9 Amendments of Permit or Conditions
7-5
a) The applicant may apply to the Commission through the Department
for an amendment to the permit or condition(s) imposed.
b) 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:
I)
2)
3)
The affected condition;
The length of time requested; and
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 Usc
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 applicant shall set forth in writing:
1) The affected condition;
2) The specific amendment requested; and
3) The reasons for the request.
d) The applicant shall also file a two hundred fifty dollars processing fee,
along with the original [and twenty copied] of the request.
e)
7-10 Appeals
The hearing and notice procedures and action shall be the same as
under Sections 7-4, 7-5 and 7-7 of this rule.
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
7-11 Revocation
7-6
a) A Use Permit maybe revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A Use Permit may be revoked by the Commission in the event that:
I) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the permit; or
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
3)]( 2)Thc 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.
7-7
RULE 8. SHORELINE SETBACK
8-I Authority
Pursuant to authority conferred upon the 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
Part III, 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 arc
defined as follows:
a) "Activity" means any landscaping, excavating, grubbing, grading,
filling or stockpiling of earth materials, including sand, coral, coral
nibble, 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 Chapter
23 (Subdivision Code), Hawai`i County Code 1983 (2016 Edition as
amended) and accepted by the Department.
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c) 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.
d) "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.
e) "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.
f) "Shoreline setback line" means that line established by the Department
in accordance with the requirements of Department Rule No. 11
regarding Shoreline Setback, running inland from and parallel to the
certified shoreline at a horizontal plane.
g) 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
An application for a shoreline setback variance shall be filed with the
Commission, through the Department, and shall include:
a) A non-refundable filing and processing fee of five hundred
dollars.
b) Original [and twenty copie.] of:
I) Application form;
2) Description of the property in sufficient detail, including
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3)
the tax map key identification, location map, and land
arca;
Written description of the proposed project, including a
statement as to how the request complies with Section 8-
1l;
4) An environmental assessment or environmental impact
statement 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
5) A site plan of the shoreline setback arca, drawn to scale,
showing:
A) Existing natural and man-made features and
conditions within the shoreline setback arca;
B) Existing natural and man-made features and
conditions along properties immediately adjacent
to the shoreline setback area and proposed
improvements;
C) The certified shoreline;
D) The shoreline setback line;
E) Contours at a minimum interval of five feet
unless waived by the Commission;
F) Proposed development and improvements
showing new conditions.
c) A copy of the certified shoreline survey map of the property.
d) Detailed justification of the proposed project, which addresses
the criteria and conditions set forth in Section 8-11.
e) [One minimum o foot by 3 foot presentation map which
includes the information required in Section 8 1 (b)(5).
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ES] A list of all properties by tax map key located within 300 feet of
the perimeter boundary of the property under consideration.
Eg3](flrA e_rtifi cl °ranee from the County Director of Finance-
tating that the real property taxes and all ther fees relating to
the subject parcel(s) have been paid, and that there are not
Prior to the acceptance of any
application, all real property taxes and other fees relating to the
subject parcel or parcels shall be paid and there shall be no
outstanding delinquencies, except in cases of bankruptcy or
similar matters as authorized by the County Director of Finance.
h)]( g)Any other information required by the Commission.
8- 5 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:
The nature of the application;
The proposed use of the property;
The size of the property;
The tax map key(s) of the property;
That the public may contact the Department for additional
information; and
6) The address and telephone number of the 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
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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 [, as amended.] (2016 Edition as
amended).
d) The applicant shall file an affidavit with the 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.
8-6 Incomplete Application
The Commission, through the Department shall neither accept nor process all
application which is incomplete as to form and content. An incomplete
application shall be returned with a written explanation of its deficiencies.
8- 7 Compliance with Chapter 343, Hawaii Revised Statutes
An environmental assessment or environmental impact statement, prepared in
accordance with the requirements of Chapter 343, Hawaii Revised Statutes
HRS) and Title II, Chapter 200.1, Hawaii Administrative Rules (HAR), shall
accompany the filing of a shoreline setback variance application with the
Commission. The Department, on behalf of the 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 Department has complied with the requirements of Chapter
343, HRS and Title 11, Chapter 200.1, HAR.
8- 8 Public Hearing
a) Except as otherwise provided in this rule, the Commission shall
conduct a public hearing within a period of ninety days from the date of
acceptance of a complete application, or within a longer time period as
agreed to by the applicant. Prior to acceptance of an application, the
applicant shall comply with the requirements of Chapter 343, HRS and
Title 11, Chapter 200.1. HAR. 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
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Commission shall publish a notice of the hearing in at least two daily
newspapers of general circulation in the county which includes the
following:
I) 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 Commission's fixing a date for the hearing but not
less than ten 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 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
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) 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 8-8 (c). An additional two
hundred fifty dollar processing fee shall he submitted by the applicant
for each hearing continued at the request of the applicant.
8-9 Decision
a) Within sixty days following the close of the public hcaring(s), or within
a longer time period as agreed to by the applicant, the 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 Commission for a period of one year from the effective
date of the denial of the original application; provided, however, that
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upon showing of a substantial change of circumstances the Commission
may permit the filing of a new application prior to the expiration of
such a one year period.
8-10 Waiver of Public Hearing and Action
a) The Commission hereby delegates to the 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 Department to be
legally constructed, which costs more than S20,000; provided
the structure is at risk of immediate danger from shoreline
erosion as determined by the Department, in consultation with
appropriate agencies (i.e. U.S. Army Corps of Engineers,
Department of Public Works); or
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 8-10 shall make the
request in writing upon submittal of the variance application.
c) The Department may deny the public hearing waiver and the
application shall be heard and noticed by the Commission in
accordance with Section 8-8.
d) The Department shall promulgate rules to administer Section 8-10.
8-1 l Criteria for Approval of a Variance
a) A variance may be granted for a structure or activity otherwise
prohibited by these rules if the Commission finds in writing, based on
the record, that the proposed structure or activity is necessary for or
ancillary to:
I) Cultivation of crops;
2) Aquaculture; or
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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.
3)
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, Hawai'i Revised Statutes, or a private
facility or improvement which is undertaken by a private entity
and is clearly in the public interest; provided that the proposal is
the practicable alternative which best conforms to the purpose
of this rule.
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 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
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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 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:
I) 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;
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.
8-12 Amendments to a Variance
a) The applicant may apply to the Commission through the 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 -espies]
of the written request, which includes:
1) The affected section of the variance or condition;
2) The specific amendment requested;
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3) The reasons for the request; and
4) Any other information required by the 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:
The affected condition;
The length of time requested;
The reasons for the request; and
Any other information required by the Commission.
d) Upon submitting a request as set forth in Section 8-12 (b) or (c), with
the exception of administrative time extensions, the applicant shall also
file a two hundred fifty dollar processing fee.
c) The hearing and notice procedures and action shall be the same as
under Sections 8- 5, 8-8 and 8- 9.
8-13 Administration and Enforcement
The Department is responsible for the processing of all variance applications
and is also responsible for the enforcement of all conditions and requirements
associated with a variance issued in accordance with this rule.
8-14 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
8-15 Revocation
a) A Shoreline Setback Variance may be revoked by the Director in the
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event that any property owner who holds the variance sought to be
revoked or any other person, with the property owner's consent,
submits a written statement to the Director verifying that the
development approved under the variance issued has either not been
established or has been abandoned.
b) A Shoreline Setback Variance may be revoked by the Commission in
the event that:
I) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the variance; or
B) The use authorized under the variance is creating a
threat to the health or safety of the community.
2) The proceeding to revoke a Shoreline Setback Variance, upon
request of the Director, shall require written notice to the
property owner and to the person who has been issued the
variance prior to the Commission taking action to revoke the
variance.
8 -Il
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority
Pursuant to authority conferred by Chapter 205A, Hawai`i 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 Arca Rule of the County
of Hawai`i"
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:
a) "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.
b) "Public Works Director" means the Director of the Department of
Public Works of the County of Hawai`i .
c) "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.
d) "Cultural" pertains to traditional and customary practices and usage of
resources to fulfill responsibilities and rights possessed and exercised
by ahupua'a tenants who are descendants of Native Hawaiians who
inhabited the Hawaiian Islands prior to 1778.
c) Development" means any of the following uses, activities, or
operations on land or in or under water within the Special Management
Area:
1) "Development" includes the following:
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A) Placement or erection of any solid material or any
gaseous, liquid, solid, or thermal waste;
B) Grading, removing, dredging, mining, or extraction of
any materials;
C) Change in the density or intensity of use of land,
including but not limited to the division or subdivision
of land;
D) Change in the intensity of use of water, ecology related
thereto, or of access thereto; and
E) Construction, reconstruction, demolition, or alteration of
the size of any structure.
2) "Development" does not include the following uses, activities
or operations:
A) Construction or reconstruction of a single-family
residence that is less than seven thousand five hundred
square feet of floor area and is not part of a larger
development. Floor area shall be the total area of all
floors of a building(s) associated with the single-family
residence, including a basement and accessory
structures, measured along the exterior walls of such
building(s). The floor area of a building(s), or portion
thereof, not provided with surrounding exterior walls
shall be the usable area under the horizontal projection
of the roof or floor above;
B) Repair or maintenance of roads and highways within
existing rights-of-way;
C) Routine maintenance dredging of existing streams,
channels, and drainage ways;
D) 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;
E) Zoning variances, except for height, density, parking,
and shoreline setback;
F) Repair, maintenance, or interior alterations to existing
structures or relating to existing uses;
G) Demolition or removal of structures, except those
structures located on any historic site as designated in
national or state registers or those listed in the Historic
Sites Element of the General Plan;
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3)
H) 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;
I) Transfer of title of land;
1) Creation or termination of easements, covenants, or
other rights in structures or land;
K) Subdivision of land into lots greater than twenty acres in
size;
L) The amendment of the General Plan, State Land Use
Boundary amendments and changes of zone;
M) 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;
N) Installation of underground utility lines and appurtenant
aboveground fixtures less than four feet in height along
existing corridors;
0) Structural and non-structural improvements to existing
single- family residences, where otherwise permissible;
and
P) Non-structural improvements to existing commercial
structures.
Q) Construction, installation, maintenance, repair, and
replacement of civil defense warning or signal devices
and sirens.
R) Plan, design, construct, operate, and maintain any lands
or facilities under the jurisdiction of the Division of
Boating and Ocean Recreation of the State Department
of Land and Natural Resources.
Any proposed use, activity, or operation listed in Section 9-
4(e)(2) shall be deemed to be "Development" until the Director
has determined it to be exempted from the definition of
development."
4) Whenever the Director finds that any excluded use, activity, or
9- 3
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.
0 "EIS" means an informational document prepared in compliance with
Chapter 343, HRS, and the Hawaii Administrative Rules, Title II,
Chapter 200.1 (Environmental Impact Statement Rules). An EIS
discloses the environmental effects of a proposed action, effects of a
proposed action on the economic welfare, 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.
g) "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.
h) "Native Hawaiian Rights" means those rights defined in and protected
under HRS I -I, FIRS 7-1, HRS 174C-101, Article XII, Section 7 of the
Hawai`i State Constitution, and in rulings of Hawai`i case law."
i) "Owner" means all equitable and legal holders or lessees of real
property. Lessees shall present certification of approval from the legal
owner.
j) "Person" means and includes any individual, organization, partnership,
or corporation, including any utility and any agency of government.
k) "Petitioner" means and includes any person who seeks permission or
authorization which the Commission may grant under this rule.
1) "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.
m) "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
Hawai`i. 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.
n) 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.
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q)
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
aro 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.
Special Management Area" means the land extending inland from the
shoreline as delineated on the maps filed with the Commission as of
June 8, 1977, or as amended pursuant to Section 9-21.
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.
Special Management Area Minor Permit" means an action by the
Director authorizing development, the valuation of which is not in
excess of $500, 000 and which has no cumulative impact, or a
substantial adverse environmental or ecological effect on the Special
Management Arca.
r) "Special Management Area Use Permit' means an action by the
Commission authorizing development, the valuation of which exceeds
S500,000 or which may have a cumulative impact, or a substantial
adverse environmental or ecological effect on the Special Management
Area.
s) "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.
t) "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.
u) "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 9-
4(e)(1), the fair market value of the development.
v) "Vegetation Growth" means any plant, tree, shrub, grass, or groups,
clusters or patches of the same, naturally rooted and growing.
w) "Artificial light" or "artificial lighting" means the light emanating from
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any fixed human -made device.
x) "Directly illuminate" means to illuminate through the use of a glowing
clement, lamp, globe, or reflector of an artificial light source.
y) 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 205k HRS
a) The objectives and policies of the coastal zone management program
shall be those set forth in Section 205A-2, FIRS, 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, FIRS,
as amended, shall be used by the Commission, as appropriate, for the review of
developments proposed in the Special Management Arca.
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.
h) 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.
c) Special Management Area Minor, Use or Emergency Permits or
exemptions validly issued by the Department or the Commission,
subsequent to any amendment to Chapter 205A, Hawaii Revised
Statutes but preceding any supportive amendment to this rule shall
continue to be considered valid.
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- 6
To improve the efficiency of the Commission's review, approval and
permitting processes granted upon it by Chapter 205A-22, Hawaii Revised
Statutes and in accordance with Rule 9 herein, the Commission hereby
delegates to the Director the authority to process assessments, determinations
and conditions regarding exemptions, issue and enforce Special Management
Area Minor Permits and Special Management Arca Emergency Permits, and to
administer, interpret, and enforce terms, scope and conditions set forth in
Special Management Area Use Permits issued by the Commission.
9-10 Assessment
a) The Department shall assess all uses, activities or operations proposed
in the Special Management Arca except in cases in which the applicant
determines that the proposed use, activity or operation will: a) exceed
500,000 in valuation; orb) have a cumulative impact, or a significant
adverse environmental or ecological effect on the Special Management
Arca. In this case, the assessment procedures may be waived and the
applicant shall petition the Commission fir 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 aSpecial
Management Area Assessment (SMAA) on a form prepared by the
Department. The review and acceptance of the assessment application
shall follow the procedures pursuant to Section 25-2-3 (Review and
acceptance of applications) in Chapter 25, Hawaii County Code [7]
1983 (2016 Edition, as amended). 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.
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;
9-7
C) The probable impact of the proposed action on the
environment;
ID) 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:
7)
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.
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 current certified 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
9-8
Environmental Policy Act (NEPA) or under Chapter 343, HRS,
may constitute a valid filing under this section.
12) A fifty dollar ($50) filing fee.
c) The Director shall assess the proposed use, activity or operation upon
the applicant's compliance with Section 9-10B based on the following
criteria:
I) 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-
IOH.
d) The Director, within sixty calendar days after the receipt of all filing
requirements or within a longer period as may he agreed to by the
applicant, shall notify the applicant in writing that:
The proposed use, activity or operation does not constitute a
development or is exempt from the definition of development; or
A Special Management Area Minor Permit is being issued; or
A Special Management Area (Major) Use Permit is required.
If the proposed use, activity, or operation is less than $500,000 in value
and the Director fails to act within the sixty 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 (f) .
c) Where it is found that the proposed use, activity or operation is not in
excess of
S500,000 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 Hawai`i County Code, the Director shall issue a _
Special Management Area Minor Permit.
I) 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
9- 9
and Tourism.
t) 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 S500,000 or may have a substantial adverse
effect on the Special Management 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.
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 (e)(2), 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:
I) 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;
9-10
i)
involves substantial secondary impacts, such as population
changes and effects on public facilities;
in itself has no substantial adverse effect but cumulatively has
considerable adverse effect upon the environment or involves a
commitment for larger actions;
substantially affects a rare, threatened, or endangered species of
animal or plant, or its habitat;
detrimentally affects air or water quality or ambient noise
levels;
affects an environmentally sensitive area, such as flood plain,
tsunami 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.
SMA Short Form Assessment
The Department may create a SMA short form assessment to be used
by the Department to assess uses that may result in a determination that
the proposed use is exempt, i.e., single family residence, minor
grubbing, or accessory structures. The short form assessment may
include, but not be limited to the following information:
I) 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) Description of any known historical sites, anchialine ponds,
wetland, or sandy beach, and any other pertinent information.
In case of a single family dwelling, a Building Permit application may
suffice as the plot plan required under (2).
The Director may require a full SMAA if it is determined through the
short form assessment review that further information is needed from
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.
911
9-11 Special Management Area Use Permit Procedures
a) Compliance with Chapter 343, Hawai`i Revised Statutes
If the action proposed requires compliance with Chapter 343, Hawai`i
Revised Statutes, an environmental assessment or environmental
impact statement shall accompany the filing of a special management
area use permit application. The Department, on behalf of the
Commission, shall be the accepting authority of all environmental
assessments and/or environmental impact statements, if appropriate,
which are prepared in accordance with Chapter 343, Hawai`i 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, Hawai`i Revised Statutes and Title 11,
Chapter 200.1, Hawai`i 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 $500,000 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:
I) The original [and twenty copiej 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
detennination 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
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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
arca;
iii) The probable impact of the proposed action on
the environment;
iv) Any probable adverse environmental effects
which cannot be avoided;
v) Alternatives to the proposed action;
vi) 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:
0)
i)
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 Hawai'ian rights are exercised
in the petition area;
The extent to which those resources, including
traditional and customary native Hawai'ian
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.
A written statement discussing the proposed
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development in relationship to the objectives and
policies as provided by Chapter 205A, FIRS;
H) A statement of the valuation of the proposed use,
activity or operation;
1) A current certified 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;
Identification and detailed information of existing public
access to and along the shoreline and whether the access
is being used; and
K) Any other plans or information required by the Director.
2) [A plot plan of the property with the information required under
etion 9 1 1 (b) (I) (B) that shall be a minimum of two Lott by
three foci or f similar dimensions as may be agreed t 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)]( 3)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)1(4)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 —
9-14
SHPD requesting a "no effect" letter, including
supporting documentation, to which DLNR — SHPD has
not responded after 30 days.
6)](5)Five hundred dollars filing fee to cover publication and other
administration costs.
7)](6)[A certificate of clearance from the County Director of Finance
the subject parcel(s) have been paid, and that there are not
outstanding delinquencies.] Prior to the acceptance of any
application, all real property taxes and other fees relating to the
subject parcel or parcels shall be paid and there shall be no
outstanding delinquencies, except in cases of bankruptcy or
similar matters as authorized by the County Director of Finance.
c) Posting of Signs for Public Notification
I) 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;
6) 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 Department for
additional information; and
F) The address and telephone number of the Department.
2) The sign shall remain posted until the application has been
granted, denied, or withdrawn. The applicant shall remove the
sign promptly atter 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
9-15
visible from the more heavily traveled public road. The sign
shall, in all other respects, be in compliance with Chapter 3
Signs) Hawai`i County Code [—as amended.] 1983 (2016
Edition, as amended).
4) The applicant shall file an affidavit with the 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 acceptance of an SMA Use Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The
public hearing shall commence no later than ninety days after the
acceptance of an SMA Use Permit application by the Director, or
within a longer time period as agreed to by the applicant.
Promptly after the Commission 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 Commission, 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 Commission 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. These aforementioned
notice requirements are not required for subsequent hearing dates upon
the same application.
At the hearing, all interested persons shall be afforded an opportunity to
be heard. The proceedings shall comply with the requirements of
Chapter 91, FIRS, as amended, and 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
9-16
e)
development.
The applicant shall submit an additional two hundred fifty dollars
processing 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.
Grounds for Approval of Special Management Area Use Permits:
The Commission 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
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
9-17
0
Management Area guidelines as contained in Section 9-7.
Decision and Order
1) Within sixty days following the close of the public hearing(s),
or a longer time period as agreed to by the applicant, the
commission shall either deny or approve the application. The
decision, whether to grant or to deny the application, shall
require a majority vote of the total membership of the
Commission. In the event the Commission 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 Commission to defer action on
the application. A majority vote of the total membership of the
Commission is required if applicant requests to defer action on
the application. In the event the Commission 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 or
electronically mailing the notice to the applicant's last known
address
3) Reconsideration: In the event an application is denied due to the
Commission's failure to render a decision within the period
prescribed by paragraph F.1. above, the applicant may, within
ten 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
Commission for its reconsideration at the next meeting. In the
event the Commission 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 Commission through the Director for a period of two
years from the effective date of the denial of the original
application; provided, however, that upon showing of a
substantial change of circumstances the Commission may
permit the filing of a new application prior to the expiration of
such a two-year period.
9-18
g)
5) Appeals:
A) Any decision of the Commission so made within the
context of this article shall be appealable to the Third
Circuit Court. The notice of appeal shall be filed in the
Third Circuit Court within thirty (30) days after the
person desiring to appeal is notified of the decision or
order, or of the action taken in a manner provided by
statute.
B) If a contested case hearing is held, a different appeal
option is available. Refer to Planning Commission Rule
4-32 for appeal procedures.
Amendments to a Special Management Area Use Permit or Conditions
1) Application: The applicant may apply to the Commission
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 he 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 copied]
of the request.
2) Notice and Hearing: The hearing and notice procedures shall be
the same as under Section 9- 11 (c) and ( d).
3) Decision and Order: The procedures shall be the same as
provided for under Section 9-11 (0.
9- 12 Artificial Light on Shoreline and Ocean Waters
9-19
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) Section 9-12 (a) shall not apply to:
1) A 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.
9-13 Prohibitions
a) No special management area use permit or special management area
minor pernit 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) Section 9-13 (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 arca 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,
9-20
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.
9-14 Special Management Arca 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 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 Commission 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.
9-15 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.
9-16 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 has been noncompliance with the conditions of
the permit; or
9- 21
B) The development authorized under the permit is creating
a threat to the health or safety of the community.
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
Commission 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 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 (f) of this rule.
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 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.
9-17 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.
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] Chapter 91 HRS.
c)
9-18 Complaint and Investigative Procedures
The Department shall adopt rules to establish procedures for investigating
complaints and alleged violations.
9-22
9-19 Administrative Fines
The Department is authorized to impose administrative fines in accordance
with established rules.
9-20 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- 21 Hearing Officer
a) The Commission 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 Commission as
provided by this rule.
b) The notice and hearing requirements for hearings conducted by a
hearing officer 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.
b) Post hearing procedures for hearings conducted by a hearing officer:
c)
I) 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 Commission.
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.
Within forty-five calendar days after the conclusion of the
hearing, the hearing officer shall complete the report and submit
it to the Commission and to all persons involved in the
proceedings.
3)
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
9-23
to which exceptions are taken;
B) Identity 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 thc ruling,
finding, conclusion, or recommendation.
d) Testimony Before the Commission:
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 Commission may grant such
request.
2) The Commission may on its own motion re -open the hearing to
allow the taking of additional testimony and further evidence.
e) Commission Action:
1) In the event no statement of exception is filed, the Commission
may proceed to reverse, modify or adopt the recommendation of
the hearing officer.
2) Upon the submittal of exceptions and thc taking of further
evidence, if any, Commission shall render its decision pursuant
to Rule [9.11] 9-11 (e).
9-22 Petition for the Adoption, Amendment or Repeal of Rule 9 Special
Management Area Rule of the County of Hawai`i
a) Petition
Any person may petition the Commission 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 [en es] 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
9-24
change with Chapter 205A, HRS, Relating to Coastal
Zone Management, and other applicable State and
County Ordinances or regulations including the General
Plan.
2) Five hundred 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 Commission shall conduct a
public hearing 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 (f).
9-25
9-23 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 Commission, 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
Commission, the general public and the State Office of
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 Commission.
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 Commission 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 Commission 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 (0.
b) Special Management Area Boundary Amendments Initiated by the
General Public:
1) Application:
Any person may apply to the Commission through the Director
requesting the amendment of the Special Management Area
boundaries.
9-26
The applicant shall submit the following to the Department:
A) The original [and- w; cc]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) Five hundred dollars filing fee to cover publication and
other administrative costs.
2) Notice and Hearing
The notice and hearing procedures shall be the same as
stipulated under Section 9-11 (c) and (d).
3) Grounds for Approval of Special Management Arca 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).
4) Decision and Order:
The procedures shall be the same as provided for in Section 9-
11 (t).
9-27
RULE 10. ZONING AMENDMENTS
10-1 Authority
This rule governs zoning amendment procedures before the Planning
Commission as required by Chapter 25 (Zoning Code), Hawai`i County Code[,—
as amended.] 1983 (2016 Edition, as amended).
10-2 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 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 noticc 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:
A) Notice by mail to surrounding owners and lessees of
record shall not be required for any amendment initiated
by the Director or the 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 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.
B) No later than thirty days prior to the public hearing, the
Commission shall provide written notice [ by -mail] to
owners of any properties specifically subject to the
proposed amendment.
10-1
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.
5) For each hearing continued at the request of the applicant, the
applicant shall serve notice of thc hearing on surrounding
property owners and lessees of record as provided by Section
25-2-4 of Chapter 25, Zoning Code, as amended. An additional
two hundred fifty dollar processing fee shall be submitted by the
applicant for each hearing continued at the request of the
applicant.
b) Amendments initiated by property owners and other persons.
1) The Commission shall hold at least one public hearing and shall
provide thirty days' notice of the date of the hearing to the
applicant.
c)
2) Within ninety days after receipt of the application from the
Director, unless a longer time 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 thc Council with such
recommendation.
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 days after receipt of the amendment from
the Director, the Commission shall transmit the
10-2
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, 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
amendmcnt. The Director and the Commission shall each
submit comments and recommendations on the proposed
amendment to the Council within one hundred twenty days
from the date that the amendment is transmitted by the Council.
A) Within the one hundred twenty -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 he 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 -day review period has
expired, the Council may proceed to act on the proposed
amendment as it deems appropriate.
10-3 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;
10-3
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 Department for additional
information; and
6) The address and telephone number of the 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) Hawai`i County
Code 1983[, as -amended.] (2016 Edition as amended).
d) The applicant shall file an affidavit with the 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.
10-4
RULE 11. GEOTHERMAL RESOURCE PERMITS
11-1 Purpose and Authority
This rule governs geothermal resource permit procedures pursuant to authority
conferred by section 205-5.1, Hawai`i Revised Statutes, as amended, upon the
Commission to determine whether proposed geothermal development activities
should be allowed. The 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 Commission's approval of an application for a geothermal resource permit
shall not in any way abrogate nor supersede the provisions of Chapters 182 and
183, HRS, and rules promulgated thereunder.
11-2 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
Hawai`i Revised Statutes, Section 205-5.1.
11-3 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
Commission for a geothermal resource permit. An application for a geothermal
resource permit shall be filed in the Department's office and shall include the
following:
a) Non-refundable filing and processing fee of one thousand dollars.
b) Original [and twenty five copie. ] 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.
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.
11) 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.
1) 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.
1) 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
11-2
resources,
v) Air and noise emissions,
vi) Hazards to public health and safety,
vii) Socio-economic impact(s), and
viii) Impact(s) on public infrastructure and services.
K) Statement(s) addressing how the proposed development
would mitigate or reconcile:
1) 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.
0) Method(s) of presenting timely progress reports to the
Commission.
P) Other pertinent information or data such as an
archaeological survey which the Director may require to
support the application for the utilization of geothermal
resources and the protection of the environment.
1-3
c) [Graphic representations suitable f r b th staff analysis and public
presentati n, including the depiction f the pr ject b undaries,
reference points (roadways, .,horeline, etc.), existing and propo„ed
maps f 1:21,000 scale, r larger when required by the C mmissi n.
d)] [A certificate of clearance from the County Director of Finance stating
that the real property taxes and all other fees relating to the subject
delinquencies.] Prior to the acceptance of any application, all real
property taxes and other fees relating to the subject parcel or parcels
shall be paid and there shall be no outstanding delinquencies, except in
cases of bankruptcy or similar matters as authorized by the County
Director of Finance.
11-4 Properly Filed Application
Within twenty days of receipt of an application, the Director shall review it to
determine if it is complete in that it includes the supporting data required
pursuant to Section [11.3.] 11-3. 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.
11- 5 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:
b)
The nature of the application;
The proposed use of the property;
The size of the property;
The tax map key(s) of the property;
That the public may contact the Department for additional
information; and
6) The address and telephone number of the Department.
The sign shall remain posted until the application has been granted,
denied, or withdrawn. The applicant shall remove the sign promptly
after such action.
11-4
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] Chapter
3 [(signs)] (Signs) Hawai'i County Code 1983 [0005 edition)] (2016
Edition, as amended).
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.
11-6 Hearing and Notification
a) The Director, on behalf of the 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 Commission shall conduct a public hearing. Upon appropriate
request for mediation from any party who submitted comment at the
public hearing, the Commission shall order the requesting party or
parties, the applicant and the appropriate agencies to submit to the
mediation process outlined in Section 11-6.
c) Promptly after the Director fixes a date for the public hearing and at
least fifteen 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
detennined by the Director), and to other interested persons or groups
as may be determined by the 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:
1) Name of the applicant;
2) Precise location of the property involved;
3) Nature of the proposed geothermal development activities; and
11-5
4) Date, time, and place of the hearing.
d) If the notification requirement set forth in section [11.5] 11 5 (c) has
not been met, the 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 Commission shall publish notice of the hearing in a
newspaper of general circulation in the County which includes the
information provided under section 11-6 (c) (1) to (4).
f) 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 11-6(c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
11-7 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 Commission shall require the parties to
participate in mediation. All appropriate requests for mediation shall be
consolidated in a single mediation conference. The Commission shall
not be a party to the mediation, and shall not be permitted to attend
mediation conferences. The 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 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 copie ] of the
request for mediation shall be filed with the Commission within five
days after the close of the initial public hearing and one copy of the
request shall be served on the applicant.
d) Appointment of a Mediator. Within five days after receipt of a timely
request, the Commission shall appoint a qualified mediator.
Appointment of the mediator by the Commission shall be final, except
as provided in Section 11-7 (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
e)
1I-6
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 in writing by
the 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 or by
electronic mail to the electronic mail address stated in the application
and in the request for mediation which method shall be indicated in the
application or 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 fifteen 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 Hawai'i 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 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.
Q) 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.
k) The parties shall maintain the confidentiality of the mediation and shall
not rely on, or introduce as evidence in any arbitral, judicial,
II -7
1)
administrative, or other proceeding:
1) views expressed or suggestions made by any other party with
respect to a possible settlement of any disputed issue;
2) statements or admissions made by any other party in the course
of mediation proceedings;
3) proposals made or views expressed by the mediator;
4) the fact that the other party had or had not indicated willingness
to accept a proposal for settlement made by the mediator.
Stenographic Record. There shall be no stenographic record or
electronic recordation of the mediation process.
ni) Recommendation of Mediator. The mediator shall submit a written
report containing recommendations to the Commission, based upon any
mediation agreement reached between the parties or stating that no
agreement was reached, for consideration by the Commission in its
final decision. The written report of the mediator shall be filed with the
Commission and served on all parties to the mediation within ten 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 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 days after receipt of the mediator's report. Within
ten days after the second public hearing, the Commission may receive
additional written comment on the unresolved mediation issues raised
at the second public hearing by any party.
o) If a second ]rearing is held, the Commission shall consider the
comments raised at the second hearing before rendering its final
decision. The 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.
11-8 Criteria for Issuance of Geothermal Resource Permit
The 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
11-8
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
c) There are reasonable measures available to mitigate the unreasonable
adverse effects or burdens referred to above.
Il -9
1l-9 Action
a) Unless there is mutual agreement to extend the period of time for the
Commission's action, the Commission shall take action on a properly
filed and complete application within one hundred eighty days of the
date a complete application is filed; provided that the time limit may he
extended by agreement between the applicant and the Commission.
b) The Commission's action shall either:
11) Grant the geothermal resource permit as requested by the
applicant based upon the satisfaction of criteria in section 11-8
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 geothennal 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
perfonnance, reporting, and other appropriate conditions imposed by
the Commission.
11-10 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 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.
11-10
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.
d) A final site plan and elevations of proposed temporary and/or
permanent structures for the project or any phase of the project.
11-11 Amendments of Permit and Conditions
a) For any amendments to the geothermal resource permit or its conditions
the permittee shall set forth in writing:
I) The specific amendment requested;
2) The reasons for the request, including statements addressing the
criteria listed under section 11-8; and
3) Any other applicable information requested by the 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:
c)
I) The affected condition;
2) The length of time requested; and
3) The reasons for the request.
If either the Director or the 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 Director.
All of the procedures set forth in this rule and the procedures set forth
in other applicable Commission rules shall apply.
11-12 Enforcement of Permit and Conditions
a) If the Director determines that there is noncompliance with the
geothermal resource permit or its conditions, Director shall so inform [in
writinb] the permittee in writing 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
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 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 Commission to amend
the permit, should compliance be impossible or impractical to meet.
d) If the permittee fails to correct the noncompliance within the required
time period, the Director shall refer the matter with his
recommendations to the Commission for further disposition, which
may include, but is not limited to, either the revocation or the
modification of the permit.
c) Notwithstanding any other provision of this section, pending a hearing
by the Commission, the 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 Director
may reactivate the permit upon a subsequent finding of the permittee's
compliance with the permit condition. Subject to the Commission rules,
the permittee may at any time request a hearing before the Commission
for its review and action with regard to the permit's temporary
suspension or any subsequent refusal of the Director to reactivate the
permit. Referrals by the Director to the Commission and reviews by the
Commission of the Director's action shall be hcard at the
Commission's next meeting when the matter can be placed on the
Commission's agenda.
11-13 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.
11-14 Appeals
a) Any decision made by the 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 91-14 (b) and (g), Hawaii Revised Statutes, as
amended, shall govern the appeal, notwithstanding the lack of a
contested case hearing on the matter. The 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:
1) The application for the penult and all accompanying supporting
11-12
documents, including but not limited to; reports, studies,
affidavits, statements, and exhibits.
2) Staff recommendations from County agencies submitted to the
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 Commission from
the mediator with any mediation agreement.
6) A statement of relevant matters officially noticed by the
Commission and/or any of' its members at the public hearings.
7) The written decision of the Commission issued in connection
with the application and public hearings.
8) Other documents required by the Commission.
11-13
RULE 12. GEOTHERMAL ASSET FUND
12-1 Authority
Pursuant to the authority conferred upon the Windward 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.
12-2 Purpose
The purpose of this rule is to allow the Windward Planning Commission to
authorize payment of money from the Geothermal Asset Fund to claimant(s)
whom the Commission finds has been adversely impacted by activities
authorized or unauthorized by Geothermal Resource Permit No. 2, issued by
the County of Hawai i, 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. Since this rule relates to a condition of Geothermal Resource
Permit No. 2 issued for property within the Puna District, County of Hawai`i,
this rule is applicable only to the Windward Planning Commission.
12-3 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 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.
12-4 General Procedures
All claims for release of monies from the Geothennal Asset Fund will be
presented to and reviewed by a Professional Claims Adjuster, who will then
present its findings and recommendations to the Commission. The Commission
will review these findings and then render a decision.
12-5 Geothermal Asset Fund Claims Adjuster
A professional claims adjuster will be selected by the Commission after
receiving a list of names selected through requirements of the State
Procurement Codc. Unless otherwise required by Statute, the claims adjuster
12-1
will serve for a period of five years. In the event that five years have passed
and the life of the Geothermal Asset Fund is extended, the Commission may
either ask for a new list of names to choose another claims adjuster or extend
the claims adjuster who previously served the Commission.
12-6 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 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, ctc. Documents shall be provided upon request.
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.
e)
0 An action on the merits of a claim by the professional claims adjuster to
recommend approval or denial of a claim and subsequent Commission
action to confirm or reject the claims adjuster's recommendation shall,
after exhaustion of the Commission appeal process, become final and
shall bar any subsequent claim before the Commission by the same
claimant(s) based upon the same facts.
12-7 Filing of Claims
a) All claims for compensation for adverse impact pursuant to this rule
shall be filed with the Hawaii County Planning Department[, 101
Pauahi Street, Suite 3, Hilo, Hawai`i 96720.] electronically to
planning(rthawaiicounty.gov unless otherwise directed.
12-2
b) Each claim shall include the following information:
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.
Address of claimant(s).
Tax Map Key of claimant(s).
Date of filing of claim.
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.
Twenty copies of the] The claim and all supporting documents.
Notarized signature of the claimant(s) on the claim.
7)
8)
c) The claim application and submitted evidence shall be a matter of
public record and copies shall be distributed to the Commission
members who will hear the claim.
12-8 Hearings
a) Scheduling of Hearing. Whenever an application is made for
compensation, the claims adjuster shall submit a recommendation to the
Commission within ninety days of the receipt of the application and all
supporting documents.
b) Documents, Applications, Amendment, Dismissal. All papers,
documents and applications must be [
and signed in ink by the party signing the same and must be legible]
submitted electronically to planningt7a,hawaiicounty.gov unless
otherwise directed. The signature or electronic 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
otherwise insufficient, the claims adjuster may recommend to the
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.
12-3
c) The claims adjuster shall recommend to the Commission whether or not
the claim has merit and, if so, what amount of compensation. It shall be
forwarded to the Commission within ninety days of filing with the
claims adjuster. The 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 Rcsource Permit No.
2, issued by the County of Hawai`i, and
2) The amount of compensation to be granted is deemed by the
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 Hawai`i, 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 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
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 Commission or by
default by the Commission choosing not to consider the claims
adjuster's recommendation.
12-9 Claims Adjuster's Recommendations
The claims adjuster shall recommend to the 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
2) The geothermal development activities have unreasonably
burdened public agencies to provide roads and streets, sewers,
12-4
3)
water, drainage, school improvements, and police and fire
protection, or
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:
c)
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 Hawai`i, 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 Hawai`i, 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 Hawai`i.
These findings for recommendation to grant the claim shall be stated in
writing and a copy shall be given to the claimants.
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 Hawai`i, 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).
12- 10 Commission Action
a) The Commission shall review the findings and recommendation prior
to announcing the decision or the date when its decision will be
announced. If the Commission does not make a decision on the claims
adjuster's recommendation within ninety days from the close of the
hearing, the claims adjuster's recommendation becomes final.
12-5
b) Reconsideration by 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.
12-11 Award of Compensation
Upon voting to award compensation to claimant(s), the 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 Hawai`i, and a statement of the amount of compensation.
12- 12 Denial of Award of Compensation
Upon voting to deny an award of compensation to the claimant(s), the
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 Hawai`i.
12-13 Appeal
a) Any decision of the Commission so made within the context of this rule
shall be appealable to the Third Circuit Court. The notice of appeal
shall be filed in the Third Circuit Court within thirty (30) days after the
person desiring to appeal is notified of the decision or order, or of the
action taken in a manner provided by statute.
b) if a contested case hearing is held a different appeal option if available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
12-14 When Rules arc 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.
12-15 Petition for Adoption Amendment or Repeal of Rules
a) Any interested person may petition the Planning Connnission
requesting the adoption, amendment or repeal of any rules of the
Geothermal Asset Fund rule.
b) The petition shall be submitted [in fifteen copie,.] and [shall]include:
12-6
1) A statement of the nature of the petitioner's interest.
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 Commission shall within sixty 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.
12-16 Relocation
The Geothermal Asset Fund may be used for relocation and payment for
adverse impacts.
12-17 Other Rights
Nothing in this rule shall be construed to deprive or deny any person any other
rights or recourse under law.
12-7
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 Hawai`i County Code[,] 1983 (2016 Edition as
amended) 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 Application for State Land Use District Boundary
Amendment
An application 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. An application may also be
initiated by resolution of the Council.
13-3 Contents of Application
An application for a State Land Use district boundary amendment shall be filed
with the Department and shall include the following:
a) Non-refundable filing and processing fee of five hundred dollars.
b) Original [andie Jof:
1) Application form;
2) Description of the property in sufficient detail, including the tax
snap key identification, map, and acreage;
Preliminary site plan, drawn to scale, with all existing and
proposed structures and improvements shown thereon;
The reclassification sought and the present use of the land; and
Reasons for the requested change and a written description of the
proposed development.
3)
4)
5)
c) [A minimum 2 foot by 3 foot presentation map which includes the
information required under Section 13 3(b)(3).]
E4)
13-1
parcel(s) have been paid, and that there arc not utstanding
delinqueneiesdPrior to the acceptance of any application, all real
property taxes and other fees relating to the subject parcel or parcels
shall bepaid and there shall be no outstanding delinquencies, except in
cases of bankruptcy or similar matters as authorized by the County
Director of Finance.
13-4 Incomplete Application
The Department shall neither accept nor process an application which is
incomplete as to form and content. An incomplete application shall be returned
to the applicant with a written explanation of its deficiencies.
13-5 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 Department for additional
information; and
6) The address and telephone number of the Department.
b) The sign shall remain posted until the application has been granted,
denied, or withdrawn. The applicant shall reprove 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 [, as amended.] (2016 Edition as
13-2
amended).
d) The applicant shall file an affidavit with the 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.
13-6 Procedures for Reviewing and Processing of Application
a) Department
1) Upon receipt of a complete application, the Department shall
serve a copy to the State Land Use Commission and the State
Department of Business, Economic Development and Tourism.
2) Within ninety days of acceptance of an application or such
longer period as may he agreed to by the applicant, the
Department shall submit its recommendation to the
Commission. The 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) Commission
1) Upon acceptance of a State Land Use Boundary Amendment
application, the Commission, through the Department, shall fix
a date for the public hearing. The public hearing shall
commence no later than ninety days after the acceptance of a
State Land Use Boundary Amendment application by the
Director, or within a longer time period as agreed to by the
applicant. The Commission shall notify the State Land Use
Commission and the State Business, Economic Development
and Tourism of the time and place of the hearing and the
application scheduled to be heard at the hearing.
At least ten days prior to the public hearing, the Commission
shall give notice of the proposed amendment by publishing it at
least once in a newspaper of general circulation in the County.
In cases of property owner -initiated amendments, promptly after
the Commission's fixing a date for the hearing but not less than
ten days prior to the date of the hearing, applicant 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
13-3
certified mail receipts, affidavits, or the like.
4) The applicant shall notify all property owners within three
hundred feet of the affected property of any subsequent
hearing(s) continued at the applicant's request. An additional
two hundred fifty dollar processing fee shall be submitted by the
applicant for each hearing continued at the request of the
applicant.
5) After the conclusion of the hearing, the Commission shall
recommend either the approval or denial of the amendment to
the Council stating its reasons for such decision, including
appropriate performance conditions in the case of an approval
recommendation.
6) Prior to the Commission forwarding its report to the Council,
the applicant shall file with the Department a map and written
description by metes and bounds of the property.
13-7 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:
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- 8 Notification of Decision
Within thirty days of the effective date of the district boundary amendment, the
Department shall submit the decision and the description and map of the
reclassified area to the State Land Use Commission.
13-9 Consolidated Proceeding with Other Land Use Changes
An application 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
RULE 14. AGRICULTURAL PROJECT DISTRICTS
14-1 Authority
This rule governs Agricultural Project Districts (APD) before the Commission
as required by Chapter 25 (Zoning Code), Hawai`i County Code [-] 1983 (2016
Edition, as amended).
14-2 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 planning 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 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, Hawai`i County Code, which
changes the district boundaries in accordance with the individual Agricultural
Project District.
14-3 Contents of Application and Requirements
An application for an Agricultural Project District shall be filed with the
Commission, through the Department, on a form prescribed by the Director.
The application shall conform to the requirements of Section 25-6- 54 of
Chapter 25, Hawai`i County 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, Hawai`i County
Code [-] 1983 (2016 Edition, as amended).
14-4 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;
14-1
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 Department for additional
information; and
6) The address and telephone number of the 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.
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 he 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 [, as amended.] ( 2016 Edition, as
amended).
c)
d) The applicant shall file an affidavit with the 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.
14-5 Procedures for Reviewing and Processing Agricultural Project Districts
a) Within one hundred twenty 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
14-2
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, Hawaii County Code [-] 1983 (2016 Edition, as amended).
c) Within ten 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, Hawaii County Code [7] 1983 (2016 Edition, as amended). 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.
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, Hawai`i
County Code [r] 1983 (2016 Edition, as amended). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
14-6 Decision
Within ninety 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 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.
14-7 Criteria for Establishing an Agricultural Project District
An Agricultural Project District may be established as an amendment to
Chapter 25, Hawaii County Code [-] 1983 (2016 Edition, as amended)
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 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:
14-3
a) Is consistcnt with the intent and purpose of Chapter 25, Hawai`i County
Code [,] 1983 (2016 Edition, as amended) and the General Plan; and
b) Will not result in a substantial adverse impact upon the surrounding
area, community or region.
14-8 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 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.
1) The applicant shall submit an original [and twenty copie„ ]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 Commission.
2) The notice and hearing procedures and decision shall be the
same as under Section 14-4, 14-5 and 14-6 of this rule.
14- 4
RULE 15. PROJECT DISTRICTS
15-1 Authority
This rule governs Project Districts (PD) before the Commission as required by
Chapter 25 (Zoning Code), Hawaii County Code 1983 (2016 Edition as
amended).
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, Hawai`i County Codc [1 1983 (2016
Edition, as amended) 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 Commission,
through the Department, on a form prescribed by the 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.
15-4 Procedures for Reviewing and Processing Protect Districts
a) Within one hundred twenty 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
Codc) and Chapter 23 (Subdivision Control), if applicable, as contained
in the master conceptual plan for the Project District.
15-1
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 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, Hawai`i County Code [-] 1983 (2016 Edition, as amended). 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 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, Hawai`i
County Code [-] 1983 (2016 Edition, as amended). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
15-5 Decision
Within ninety 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 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:
a) Is consistent with the intent and purpose of Chapter 25, Zoning Code,
and the General Plan; and
b) Will not result in a substantial adverse impact upon the surrounding
arca, community or region.
15- 2
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 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.
1) The applicant shall submit an original [ nd ies]of the
written request, which includes:
A) The affected section of the Project District enabling
ordinance;
B) The specific amendment or length of time requested;
C) The reasons for the request; and
D) Any other information required by the Commission.
2) The notice and hearing procedures and decision shall be the
same as under Sections 15-4 and 15- 5 of this rule.
15-3
RULE 16. PLANNED UNIT DEVELOPMENT (P.U.D.)
16-1 Authority
This rule governs Planned Unit Developments (P.U.D.) before the Commission
as required by Chapter 25 (Zoning Code), Hawai`i County Code [ras -
amended.] 1983 (2016 Edition, as amended).
16-2 Purpose
The purpose of P.U.D. is to encourage comprehensive site planning that is
compatible with the surrounding community and that adapts the design of
development to the land, by allowing diversification in the relationships of
various uses, buildings, structures, open spaces and yards, building heights,
and lot sizes in planned building groups, while still insuring that the intent of
Chapter 25, Hawai`i County Code [, as amended,] 1983 (2016 Edition as
amended) is observed.
16-3 Minimum land area required
The minimum land area required for a P.U.D. shall be two acres.
16-4 Contents of Application for P.U.D Permits and Requirements
An application for a P.U.D. permit shall be on a form prescribed for this
purpose by the Director on behalf of the Commission. An original [and twenty
copie„] of the application shall be accompanied by:
a) A filing fee of $500.
b) A written description of the proposed project, including the folio ng
information:
1) Name of the applicant;
2) A description of the property in sufficient detail to determine
the precise location of the property involved;
3) A statement of objectives and reasons for the requested P.U.D.
permit including an analysis of how the request satisfies the
standards contained in section 16-9 of this rule;
4) A list of all requested deviations from the requirements of
Chapter 23 (Subdivisions) and Chapter 25 (Zoning), Hawai`i
16-1
c)
5)
County Code [, as amended.] 1983 (2016 Edition, as amended).
A schedule for the timetable of the proposed development; and
6) An analysis of the relationship of the proposed development to
the General Plan and any applicable, adopted community
development plan, other adopted master plan, and if applicable,
any other adopted design guidelines and/or standards affecting
the project area.
A site plan, drawn to scale and fully dimensioned, comprising a general
development plan covering the entire area of the P.U.D. indicating
clearly the following information:
1) The uses, dimensions, and locations of all existing and proposed
structures;
2) Widths, alignments, and improvements of existing and proposed
streets and pedestrian and drainage ways, and existing access
and utility casements;
3) Any proposed subdivision of property for individual parcel sale;
4) Parking areas, both on- and off-street;
5) Public areas and uses; and
6) Landscaping and open spaces.
d) Architectural drawings for all buildings demonstrating the design and
character of the proposed buildings and uses. If the project area is
within a district established under section 16-5 of this rule for which
design guidelines and/or standards have been adopted that are
applicable to single-family dwellings, architectural drawings shall be
required for all buildings including single-family dwellings.
A visual depiction of all of the requested deviations from code called
for in section 16-4 ( b) ( 4).
Any other information or plans deemed relevant by the Planning
Director to facilitate processing the application request.
A list of the names, addresses and tax map key numbers or all
surrounding owners and lessees of property interests in property within
the boundaries established by section 25-2- 4 of Chapter 25, flawai`i
County Code as amended. The Director, on behalf of the Commission,
16-2
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, Hawai`i County Code [, as amended.] 1983
2016 Edition, as amended).
16-5 P.U.D. permit application and processing requirements located within special
districts with design guidelines and/or standards
a) In addition to the application requirements for a P.U. D. contained in
section
16-4, an application for a P.U.D. in any special district established
under article 7 of Chapter 25, Hawai`i County Code, as amended, for
which design guidelines or standards have been adopted by the
Council, excluding any special district having adopted design
guidelines and/or standards established under Chapter 25, Hawai`i
County Code [, as amended ] 1983 (2016 Edition, as amended) prior to
adoption of this rule, shall include:
1) Complete and accurate exterior elevations of all facades, drawn
at a scale adequate to show clearly the appearance of all
proposed buildings and structures;
2) A description of exterior siding, roofing and finish materials:
3) Exterior door and window specifications;
4) Description, location, and renderings for any exterior signage:
5) A streetscape rendering of the project site and adjacent
properties suitable for evaluating the immediate spatial
relationships. Photographic images may be substituted provided
those images are adequate to serve the same purpose; and
6) Other descriptive information as the director, on behalf of the
Commission, finds necessary to determine consistency of the
proposed project with the design guidelines and/or standards
adopted for the special district in which the project building site
is located.
b) The P.U.D. application and plans shall be subject to review and
comment by the design review committee established under the
respective special district section under article 7 of Chapter 25, Hawai`i
County Code [, as amended,] 1983 (2016 Edition, as amended) for
consistency with the adopted design guidelines and/or standards.
c) The director, on behalf of the Commission shall, within five days of
16-3
acceptance of a P.U.D. application, provide the respective design
review committee with a copy of the application and plans along with a
request for their review and comments on the consistency of the project
with the adopted design guidelines and/or standards.
d) The written recommendations and plans stamped "Reviewed by" with
the date and signature of the chair of the respective design review
committee affixed shall be submitted to the director on behalf of the
Commission within twenty-five calendar days of receipt by the design
review committee of the final plans for any approval of a P.U. D.
application.
e) Except as otherwise provided in Section 16-5, the director shall
withhold providing a recommendation to the Commission on any
P.U.D. application until having received the written recommendations
and stamped and signed plans from the chair of the respective design
review committee fix the application.
f) By written request to the director on behalf of the Commission, the
chair of the respective design review committee may request an
extension of time to complete the design review and to submit the
recommendations of the design review committee which the Director
on behalf of the Commission may grant only with the written approval
of the applicant for P.U. D.
g) In the event that no design review committee is established, or if the
design review committee, for whatever reason, fails to respond within
the time limit prescribed in subsection (d), the director shall provide
design review against the relevant design guidelines and/or standards as
adopted by the Council.
16-6 Notice of filing and action on P.U.D. application and sign posting
The applicant shall serve notice on property owners and lessees of record of
the surrounding properties as follows and as provided by section 25-2-4,
Chapter 25, Hawai`i County Code [, as amended.] 1983 (2016 Edition as
amended).
a) The applicant shall first serve notice of the filing of the application on
the surrounding owners and lessees within ten days atter the Director
on behalf of the Commission has officially acknowledged receipt of the
application.
The applicant shall serve a second notice on the surrounding owners
and lessees of record 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 also serve notice on
owners and lessees of record of interests in other properties which the
16-4
Commission may find to be directly affected by the
P.U.D. permit sought.
The notices shall include the following information:
1) Name of the applicant;
2) Precise location of the property involved, including tax map key
identification, location map and site plan;
3) Nature of the application and the proposed use of the property;
4) Date on which the application was filed with the Commission;
5) A form developed by the Planning Department that outlines the
contested case procedure and who qualifies (entitled `Petition
for Standing in Contested Case Hearing"). In addition, the
notice shall state that interested parties have a right to file a
written request for a contested case procedure;
6) A statement indicating that should the landowner or lessee
choose not to submit a written request for a contested case
procedure, they may express their support/opposition in writing
or by oral testimony at the Planning Commission public hearing
to be scheduled; and
7) Date, time and place that the scheduled public hearing will be
held to consider the application (to be included in the second
notice).
c) The applicant shall also post a sign for public notification on the
property as provided by section 25-2-12, Chapter 25, Hawai`i County
Code [, as amended.] 1983 (2016 Edition as amended).
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, Chapter 25, Hawai`i
County Code [, as amended.] 1983 (2016 Edition, as amended). An
additional two hundred fifty dollar processing fee shall be submitted by
the applicant for each hearing continued at the request of the applicant.
16-7 Procedure for processing application when use not permitted in district
An application for a P.U.D. permit that proposes a use not permitted either
directly or as a conditional use within a district may be considered by the
Commission only if a separate application for a change of zone is filed
16-5
concurrently with or prior to the P.U.D. permit application. The P.U.D. permit
application and the change of zone application shall be considered
concurrently, and any P.U.D. approved by the Commission shall be effective
only when the change of zone ordinance becomes effective.
16-8 Actions by Commission on P.U.D. permit applications
a) Within ninety days after acceptance of a P.U.D. permit application or
within a longer time period as may be agreed to or requested by the
applicant, the Commission shall conduct a public hearing(s), and within
sixty days following the close of such public hearing(s), either deny or
approve the application, subject to conditions as imposed by the
Commission.
b) The conditions imposed by the Commission shall bear a reasonable
relationship to the P.U.D. permit issued, and to the approved uses and
plans of district standards; provided, however, that no improvements or
alterations off-site of the project shall be required as a condition of a
P.U.D. permit. The conditions may include, but are not limited to the
following:
e)
1) Commencement and completion time frame for the project;
2) Boundary and density reallocations approved for the project,
which can include covenants or conservation easements to
preserve open space areas in perpetuity;
Uses that are prohibited or limited;
Specifications for the minimum development standards;
Specifications for street improvement and dedication;
Utilities to be furnished;
The extent and limitations upon the uses permitted; and
Compliance with representations made by the applicant.
if the Commission fails to render a decision within the prescribed sixty
day period, the application shall be considered as being approved,
provided that no written objection to the P.U.D. permit application is
received by the Commission.
16-9 Criteria for granting a P.U.D. permit
16-6
A P.U.D. permit may be granted by the Commission upon finding that:
a) The construction of the project can begin and be completed within a
reasonable period of time from the date of approval.
b) The proposed development substantially conforms to the General Plan,
any adopted community development plan or adopted master plan and,
if applicable, any adopted design guidelines and/or standards affecting
the project arca.
c) Any residential or agricultural development shall constitute an
environment of sustained desirability and stability for the district that is
in harmony with the character of the surrounding area, that results in an
intensity of land use no higher than that otherwise specified for the
district, and that maintains the standards of open space at least as high
as that otherwise specified for the district in which the development
occurs.
d) Any commercial development shall not create traffic congestion which
exceeds that which would have been produced under conventional
development patterns, practices and standards in the district or interfere
with any projected public improvements, shall provide for proper
entrances and exits along with proper provisions for intemal traffic and
parking, and be an attractive center which does not adversely impact
upon adjacent and surrounding existing or prospective developments.
e) Any industrial development shall be in conformity with desirable
perfonnance standards and shall constitute an efficient and well
organized development with adequate provisions for freight service and
necessary storage, and shall not adversely impact upon adjacent and
surrounding existing or prospective development.
t) The development ofa harmonious, integrated whole justifies
exceptions, if required, to the normal requirements of Chapter 23 and
Chapter 25, Hawai`i County Code [, as amcnd..ded,] 1983 (2016 Edition
as amended) and the contemplated arrangements or use make it
desirable to apply regulations and requirements differing from those
ordinarily applicable under the district regulations.
16- 10 Height exceptions authorized
a) A building approved under a P.U.D. permit may exceed the height limit
specified under the zoning district of the property and the height limits
under section 25-4-22; Chapter 25, Hawai`i County Code [, as
amended,] 1983 (2016 Edition as amended) provided, that the
maximum height of the building shall not exceed seventy-five feet.
16-7
b) A building approved under a P.U.D. permit and situated within a
zoning district which exceeds the height limits specified under
subsection (a) may be permitted at the higher height limits prescribed
for that zoning district.
16-11 Approvals issued under P.U.D. permit
a) No separate or additional permit or use permit, pursuant to Chapter 25,
Hawaii County Code[, as amended,] 1983 (2016 Edition, as amended)
shall be required for any use approved under a P.U.D. permit, and any
use approved under a P.U. D. permit shall be considered to be in
compliance with the required procedures for obtaining a use permit.
h) Plan approval shall he considered issued when completed drawings are
approved under a P.U. D. permit, and no further action is required for
the issuance of plan approval under Chapter 25 (Zoning Code), Hawaii
County Code. Completed drawings shall include all of the detail and
requirements of plan approval as indicated in section 25-2- 72, Hawaii
County Code [, as amended.] 1983 (2016 Edition, as amended).
16- 12 Effect of P.U.D. permit on other zoning provisions
Any P.U.D. permit issued shall be subject to all of the conditions imposed in
the permit and shall be exempted from other provisions of Chapter 23 and
Chapter 25, Hawaii County Code [, as-an.ended ] 1983 (2016 Edition, as
amended) only to the extent specified in the permit.
16-13 Time extensions and amendments
a) A P.U.D. permit holder may apply to the Commission through the
Department for an amendment to a P.U.D. permit or to any condition or
conditions imposed therein.
b) In the case of time extensions, the P.U. D. permit holder shall file the
request not less than ninety days prior to the expiration date of the
applicable time condition or conditions setting forth:.
1) The affected condition or conditions:
2) The length of time requested; and
3) The reasons for the request.
If the Commission fails to act on a properly filed time extension request
I6-8
prior to the expiration date, the activity granted under P.U. D. permit
may be continued unless the Commission specifically disallows the
activity during the interim period.
c) In the case of an amendment to the P.U.D. permit or to any addition
modification, and/or deletion of conditions of the P.U.D. permit, the
P.U.D. permit holder shall set forth in writing:
1) The affected condition or conditions;
2) The specific amendment or amendments requested; and
3) The reasons for the request.
Any such request shall be accompanied by a $250 filing and processing
fee, along with the ori6inal [a.-'] of the request.
The hearing and notice procedures and action shall be the same as
under sections 16-6 and 16-8 of this rule.
16- 14 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within 30 days after the
person desiring to appeal is notified of the decision or order, or of the
action takcn in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
16-15 Revocation
a) A P.U.D. Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A P.U.D. Permit may be revoked by the Commission in the event that:
1) The Director requests the revocation if:
A). There has been noncompliance with the conditions of
the permit; or
16-9
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
2) The proceeding to revoke a P.U.D. 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.
16- 10
WINDWARD PLANNING COMMISSION
John R. Replogle, Chairman Date
LEEWARD PLANNING COMMISSION
Michael Vitousek, Chairman Date
Notice of Public Hearing:
Hawai`i Tribune -Herald: June 15, 2021
West Hawai`i Today: June 15, 2021
Date and Place of Hearing: July 15, 2021
Based on the Governor's Twenty -First Proclamation Related to the COVID-19
Emergency dated June 7, 2021, this meeting was held online by interactive video
conference through Zoom. This is to prevent the spread of COV ID -19 and to maintain
physical distancing.
APPROVED:
MAYOR, County of Hawaii
Date:
APPROVED AS TO FORM:
Deputy Corporation Counsel
Date:
I hereby certify that the foregoing amendments and revisions to the Hawai`i County
Planning Commission Rules of Practice and Procedure was received and filed in my
office this day of • , 2021.
County Clerk
COUNTY OF HAWAI `I
PLANNING
COMMISSION
RULES OF
PRACTICE AND
PROCEDURE
RULES 1-16
PSwpwin60APCPC Ruleg2021 Rule Changes and Minor Updates\PC Rules index dosAI"page
Planning Dept.
Exhibit, b
COUNTY OF HAWAPI
PLANNING COMMISSION
RULES OF PRACTICE AND PROCEDURE
TABLE OF CONTENTS
RULE 1. GENERAL RULES
PAGE
1-1 Authority 1- 1
1-2 Purpose 1-1
1-3 General Definitions 1- 1
1-4 The Commissions 1-2
1-5 Meetings 1-3
1-6 Public Records 1-6
1-7 Computation of Time 1-7
1-8 Severability 1-7
RULE 2. PETITION FOR ADOPTION, AMENDMENT OR REPEAL OF RULES
2-1 Initiation of Rulemaking Proceedings 2-1
2-2 Notice of Public Hearing 2-2
2-3 Conduct of Public Hearing 2-2
2-4 Action 2-3
3-5 Emergency Rulemaking 2-3
2-6 Filing of Rules 2-3
2-7 Taking Effect of Rules 2-3
2-8 Publication 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- 2
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 Conflict with Other Time and Notice Requirements 4-1
4-3 Service of Notices, Documents, and Other Papers 4-1
4-4 Presiding Officer 4-1
4-5 Notice of Contested Case Hearing 4-2
4-6 Prehearing Procedure 4-3
4-7 Conference with Presiding Officer 4-5
4-8 Limiting Testimony 4-5
4-9 Removal from Proceeding 4-5
4-10 Order of Procedure 4-5
4-11 Questions from Commission 4-5
4-12 Cross -Examination 4-5
4-13 Requests for Subpoenas 4-6
4-14 Consolidation 4-7
4-15 Substitution of Parties 4-7
4-16 Written Requests 4-9
4-17 Evidence 4-8
4-18 Briefs 4-9
4-19 Oral Arguments 4-10
4- 20 Public Testimony 4-10
4-21 Close of Hearing 4-10
PART 2. Post Hearing Procedure for Hearings Conducted by Hearing Officer
4-22 Recommendations of Hearing Officer 4-10
4-23 Exceptions to Hearing Officer's Report and Recommendations 4-11
4-24 Support of Hearing Officer's Report and Recommendations 4-11
PART 3. Commission Decision
4-25 Examination of Evidence by Commission 4-12
4-26 Oral Argument before the Commission 4-12
4-27 Commission Action 4-12
4-28 Time Limit for Decision 4-12
4-29 Issuance of Decisions and Orders 4-13
4-30 Service of Decisions and Orders 4-13
4-31 Reconsideration of Decision and Order 4-13
4-32 Appeal from the Commission's Decision 4-13
RULE 5. GENERAL PLAN AMENDMENTS
5-1 Authority 5-1
5-2 Scope and Purpose 5-1
5- 3 Definition 5-I
5-4 Amendment Pursuant to Comprehensive Review 5-I
5- 5 Interim Amendments 9-2
RULE 6. SPECIAL PERMITS
6-I Authority 6-1
6-2 Standing to Submit a Petition for a Special Permit 6-1
6- 3 Petition and Content 6-1
2
6-4 Incomplete Application 6- 2
6-5 Posting of Signs for Public Notification 6- 2
6-6 Public Hearing 6-3
6- 7 Grounds for Special Permit 6-4
6-8 Decision 6-4
6-9 Amendments of Permit or Conditions 6-5
6-10 Appeals 6- 5
6- 11 Revocation 6-6
RULE 7. USE PERMITS
7-I Authority 7-1
7- 2 Application and Content 9-1
7-3 Incomplete Application 7-2
7-4 Posting of Signs for Public Notification 7- 2
7-5 Public Hearing 7- 3
7- 6 Criteria for Granting a Use Permit 7- 5
7-7 Decision 9- 5
7-8 Concurrent Requests 7- 5
7- 9 Amendments of Permit or Conditions 7-6
7-10 Appeals 7- 6
7-11 Revocation 7- 7
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- 5 Posting of Signs for Public Notification 8-4
8- 6 Incomplete Application 8- 5
8- 7 Compliance with Chapter 343, Hawai`i Revised Statutes 8- 5
8- 8 Public Hearing 8- 5
8- 9 Decision 8- 6
8-10 Waiver of Public Hearing and Action 8- 6
8-11 Criteria for Approval of a Variance 8- 7
8-12 Amendments to a Variance 8-9
8-13 Administration and Enforcement 8-10
8-14 Appeals 8-10
8-15 Revocation 8-10
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority 9.1
9-2 Purpose 9-1
3
9-3 Title 9-1
9-4 Definitions 9-1
9-5 Special Management Area 9-6
9-6 Objectives and Policies of Chapter 205A, HRS 9- 6
9-7 Special Management Area Guidelines 9-6
9- 8 Permits Required for Development 9-7
9-9 Authority of the Department in the Special Management Area 9- 7
9-10 Assessment 9-7
9-11 Special Management Area Use Pennit Procedures 9- 12
9-12 Artificial Light on Shoreline and Ocean Waters 9-20
9-13 Prohibitions 9-20
9-14 Special Management Area Emergency Permits 9-21
9-15 Exemptions 9-22
9-16 Revocation 9-22
9-17 Penalties 9-23
9-18 Complaint and Investigative Procedures 9-23
9-19 Administrative Fines 9-23
9- 20 Injunction 9-23
9-21 Hearing Officer 9-23
9-22 Petition for the Adoption, Amendment or Repeal of Rule 9 Special Management
Area Rule of the County of Hawai`i 9-25
9-23 Amendment of Special Management Arca (SMA) Maps 9-26
RULE 10. ZONING AMENDMENTS
10-1 Authority 10-1
10-2 Procedures for Processing Zoning Amendments 10-1
10-3 Posting of Signs for Public Notification 10-4
RULE 11. GEOTHERMAL RESOURCE PERMITS
11-1 Purpose and Authority 11-1
11-2 Definitions 11-1
11- 3 Contents of Application 11-1
11-4 Properly Filed Application 11-4
11- 5 Posting of Signs for Public Notification 11-4
11-6 Hearing and Notification 11-5
11-7 Mediation 11- 6
11-8 Criteria for Issuance of Geothermal Resource Permit 11-9
11-9 Action 11-9
11-10 Requirements Prior to Initiating Construction 11-10
11-11 Amendments of Permit and Conditions 11-10
11-12 Enforcement of Permit and Conditions 11- 11
11-13 Penalties 11-12
11-14 Appeals 11-12
4
RULE 12. GEOTHERMAL ASSET FUND
12-1 Authority 12-1
12-2 Purpose 12-1
12-3 Definition 12-1
12-4 General Procedures 12-1
12-5 Geothermal Asset Fund Claims Adjuster 12-2
12-6 Eligibility of Claims 12-2
12-7 Filing of Claims 12-3
12-8 Hearings 12-3
12-9 Claims Adjuster's Recommendations 12-5
12-10 Commission Action 12-6
12-11 Award of Compensation 12-6
12- 12 Denial of Award of Compensation 12-6
12-13 Appeal 12-6
12-14 When Rules arc Silent - 12-7
12-15 Petition for Adoption, Amendment or Repeal of Rules 12-7
12-16 Relocation 12- 7
12-17 Other Rights 12-7
RULE 13. STATE LAND USE DISTRICT BOUNDARY AMENDMENT
13-1 Purpose and Authority 13-1
13- 2 Standing to Submit Application for State Land Use District
Boundary Amendment 13-1
13-3 Contents of Application 13-I
13-4 Incomplete Application 13-2
13-5 Posting of Signs for Public Notification 13-2
13- 6 Procedures for Reviewing and Processing of Application 13-3
13- 7 Standards for Review 13-4
13-8 Notification of Decision 13-4
13-9 Consolidated Proceeding with Other Land Use Changes 13-4
RULE 14. AGRICULTURAL PROJECT DISTRICTS
14-1 Authority 14-1
14-2 Purpose 14-1
14-3 Contents of Application and Requirements 14-1
14-4 Posting of Signs for Public Notification 14-1
14-5 Procedures for Reviewing and Processing Agricultural Project
Districts 14-2
14-6 Decision 14-3
14-7 Criteria for Establishing an Agricultural Project District 14-3
14-8 Amendments to Conditions and Standards 14-4
5
RULE 15. PROJECT DISTRICTS
15-1 Authority 15-1
15-2 Purpose 15-1
15-3 Contents of Application and Requirements 15-1
15-4 Procedures for Reviewing and Processing Project Districts 15-I
15-5 Decision 15-2
15-6 Criteria for Establishing a Project District 15-2
15-7 Amendments to Conditions and Standards 15-3
RULE 16. PLANNED UNIT DEVELOPMENT (P.U. D.1
16-1 Authority 16-1
16-2 Purpose 16-1
16-3 Minimum land area required 16-1
16-4 Contents of Application for P.U.D Permits and Requirements 16-1
16-5 P.U.D. permit application and processing requirements located
within special districts with design guidelines and/or standards 16-3
16-6 Notice of filing and action on P.U.D. application and sign posting 16-4
16-7 Procedure for processing application when use not permitted in district 16-5
16-8 Actions by Commission on P.U.D. permit applications 16-6
16-9 Criteria for granting a P.U.D. permit 16-6
16-10 Height exceptions authorized 16-7
16-11 Approvals issued under P.U.D. permit 16-8
16- 12 Effect of P.U.D. permit on other zoning provisions 16-8
16-13 Time extensions and amendments 16-8
16-14 Appeals 16-9
16-15 Revocation 16-9
Piwpwin602PC.PC Rules'202I Rule Chances and Minor UPdales'PC Rules index_dnu
6
LEEWARD AND WINDWARD PLANNING COMMISSIONS
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
Section 6-7. 5 of the 2020 Charter of the County of Hawai`i, as amended, and
Chapter 91, Hawaii Revised Statutes.
1-2 Purpose
These rules govern the practice and procedure before Leeward and Windward
Planning Commissions of the County of Hawaii.
1-3 General Definitions
a) Agency" means any agency, board, commission, department, or
officer of the county or state government.
b) "Applicant" means any agency or person who applies to the
Commission for a land use application and/or permit.
c) "Chairperson" means the chairperson of the Leeward Planning
Commission or the Windward Planning Commission, or both.
d) "Commission" means either the Leeward Planning Commission or the
Windward Planning Commission.
e) "Joint Commission" means the combined membership of the Windward
Planning Commission and Leeward Planning Commission meeting
jointly.
0 "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.
g) "Copy or copies" means both physical media or electronic media.
h) "Council" means the County Council.
i) "County" means the County of Hawai`i.
m)
Department" means the Planning Department.
Director" means the Planning Director.
Document" means a form, letter, or other method of written
communication and includes electronic communication such as
electronic mail, etc.
General Plan" means the Hawaii County General Plan.
n) "Hearings Officer" means a person or person duly designated and
authorized by the Commission to conduct proceedings on matters
within the jurisdiction of the Commission for purpose of taking
testimony and to report the findings and recommendations to the
Commission.
9)
Intervenor" means a person who petitions to intervene in a contested
case proceeding and is admitted as a party.
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.
Person" means any individual, partnership, firm, association, trust,
estate, corporation, or other legal entity of any character other than an
agency.
r) "Presiding Officer" means any commissioner or a hearings officer duly
designated as such. Unless otherwise designated, the chairperson shall
be the presiding officer.
s) "Signature" means either an original signature scanned into a format
prescribed by the Director or an electronic signature.
t) "Zoning Amendments" means changes to the boundaries of the zoning
district or changes to any other provision of Chapter 25 (Zoning Code),
Hawaii County Code 1983 (2016 Edition, as amended).
1-4 The Commissions
a) Office. The office of the Commissions is at Hilo, Hawaii.
b) Communications. Any communication to the Commissions shall be
addressed to the Chairperson, Leeward or Windward Planning
Commission, and submitted electronically to
planning@hawaiicounty.gov, unless otherwise directed.
1-2
c) Membership. Each Commission consists of seven members appointed
by the Mayor and confirmed by the Council. In addition, the Director of
the Department of Public Works and the Manager of the Department of
Water Supply or their designated representatives serve as ex -officio
members without voting privileges.
d) Chairperson; Vice -chairperson. The chairperson and vice -chairperson
shall be elected annually. The chairperson shall have the
responsibilities and duties prescribed in this rule. The vice -chairperson
shall perform all the duties of the chairperson during the absence of the
chairperson.
1-5 Meetings
The Commission may meet and exercise its powers in its respective
jurisdiction within the County. All Commission meetings are open to the
public, except as provided by law. The parliamentary procedure to be utilized
by the Commission in the conduct of its own meeting shall be based on the
current edition of Robert's Rules of Order.
a) Regular Meetings. Regular meetings shall be held at least once a month
in the Commission's jurisdiction, unless otherwise specified by law.
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.
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 meeting, and 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
1-3
persons who request notification of meetings and shall mail or
electronic mail, as elected by the requester, 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:
c)
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;
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, electronic mail or telephone as soon as
practicable.
3)
5) A notice of the meeting shall he 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.
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 the following purposes:
I) To consult with the Commission's attorney; and/or
2) For any other specific purpose authorized by law.
1-4
f) Joint Leeward and Windward Planning Commissions' Meetings. When
the Leeward and Windward Planning Commissions convene and meet
jointly, the chairperson for that joint meeting shall be either the
chairperson of the Leeward Planning Commission or the chairperson of
the Windward Planning Commission, selected at that meeting by the
affirmative vote of a majority of the combined membership of the two
commissions. The chairperson not selected as the chairperson for the
joint meeting shall be the first vice chairperson of the joint meeting.
g) Quorum. A majority (four) of all members to which the Commission is
entitled shall constitute a quorum to transact business. For ajoint
Leeward and Windward commission meeting, a majority of eight
members constitutes a quorum.
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:
I) The date, time, and place of the meeting;
2) The members of the Commission recorded as either present or
absent;
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.
i)
3)
The minutes shall be public records and shall be available within forty
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.
Procedure for Testimony at Public Hearings. Members of the public
desiring to testify shall register with the commission staff prior to the
convening of the meeting. Additionally, the following procedures shall
he followed when the applicant, the applicant's representative, or
members of the public desire to testify during public hearings before
the Commission:
I) The person desiring to testify shall indicate his or her name and
address.
1-5
2)
3)
The person testifying shall indicate whether he or she is
testifying on their own behalf or as a representative of the
applicant or an organization.
An original of all written testimony offered by any person shall
be submitted to the Commission prior to the time the person
gives such testimony.
4) The person testifying shall submit such oral testimony under
oath. That oath shall be administered by the chairperson or
chairperson's designee.
5) The chairperson or vice -chairperson may limit testimony which
is irrelevant, abusive, disruptive, or unduly repetitious.
6) The person testifying shall direct their remarks to the
Chairperson and not to any individual commission member,
staff member, or person in the audience.
All members of the public shall extend proper courtesy and
respect to one another and to all commission members and staff,
and all persons shall be addressed by their surnames. No
profanity or abusive remarks will be allowed at any time in any
meeting.
7)
8)
9)
Any person who does not abide by these rules may be ruled out
of order by the Chairperson.
Nothing in these procedures shall diminish the responsibility or
the authority of the Chairperson to maintain order and decorum.
Q) Removal of Person from Meeting. Any person who disrupts a meeting
which prevents or compromises the conduct of the meeting may be
removed from the meeting at the discretion of the Chairperson.
1-6 Public Records
The ten "public records" 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 protected by law or which invades 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
1-6
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 maybe 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 or
electronically produced for persons other than governmental agencies
shall be provided 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 or electronic 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 electronic copies of 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.
1-7 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.
1-8 Severability
In the event any portion of the Rules of Practice and Procedure of the Leeward
and Windward Planning Commissions of the County of Hawaii ("Rules of
Practice and Procedure") are declared invalid, such invalidity shall not affect
other parts of the Rules of Practice and Procedure.
1-7
RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES
2-I Initiation of Rulemaking Proceedings
a) The Joint Commission may, at any time, initiate proceedings for the
adoption, amendment, or repeal of any rule of the Commissions.
Procedures to be followed in rulemaking shall be as set forth in these
rules.
b) Any interested person or agency may petition the Joint Commission for
the adoption, amendment, or repeal of any rule of the Commissions.
Such petitions shall contain:
c)
1) A non-refundable filing and processing fee of five 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.
The Joint 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
Joint Commission. The Joint Commission shall notify the petitioner in
writing of such denial, stating the reasons thereof Denial of the petition
shall not operate to prevent the Joint Commission from acting, on its
own motion, on any matter disclosed in the petition. Petitioner may
seek review of the denial through the Third Circuit Court.
e) If the Joint Commission determines that the petition is in order and that
it discloses sufficient reasons in support of the proposed rulemaking
proceedings, the Joint Commission shall conduct rulemaking
proceedings in accordance with Section 2- 2 of this rule.
2-I
2-2 Notice of Public Hearing
a) When, pursuant to a petition therefor or upon its own initiation, the
Joint 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
provided to all persons who have made timely written requests for
advance notice of the Joint Commission's rulemaking proceedings. The
notice shall be published at least thirty days prior to the date set for the
public hearing.
A notice of the proposed adoption, amendment, or repeal of a rule shall
include:
b)
I) 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 Joint Commission and presided over by the
chairperson or vice- chairperson of the Joint Commission or, in their
absence, by another member designated by the Joint 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 Joint Commission.
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 Joint Commission,
testimony given at the public hearing need not be reported verbatim.
All supporting written statements, maps, charts, tabulations, or similar
c)
2-2
data offered at the hearing, and which are deemed by the Joint
Commission to be authentic and relevant, shall be received and made a
part of the record.
2-4 Action
The Joint 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 Joint Commission finds that an imminent peril to public health or safety
requires adoption, amendment, or repeal of a rule upon less than thirty 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 Joint
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.
2-6 Filing of Rules
The Joint 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),
Hawai`i Revised Statutes.
2-8 Publication of Rules
The Joint Commission shall, as soon as practicable, compile, index, and
publish all rules adopted by the Joint Commission and remaining in effect.
Compilations shall be supplemented as often as necessary and shall be
reviewed at least once every ten years.
2-3
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:
I) A non-refundable filing and processing fee of two hundred
dollars (S200);
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- I
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 or electronically mailed, as elected by the requester, to all persons who
have made timely written requests for advance notice. The notice shall be
published at least twenty days prior to the date set for the hearing.
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 arc 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 he
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.
3-2
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 Third 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 Third Circuit Court.
4-2 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.
4-3 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, certified or registered mail, electronic mail or by other
means as permitted 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.
4-4 Presiding Officer
a) Person Presiding. The chairperson of the Commission, one of its
members, or a hearings officer duly appointed and designated, shall
preside at the hearing.
b) Powers. The presiding officer controls the course of hearings,
4-1
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 arc 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.
4-5 Notice of Contested Case Hearing
a) Unless otherwise provided by law, the notice of hearing will be served
on all parties 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;
4) An explicit statement 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 so desired.
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 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 of Chapter 25, Hawai'i
County Code 1983 (2016 Edition, as amended). 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
4-2
state that you have a right to file a written request for a contested case
procedure.
4-6 Prehearing Procedure
a) In all proceedings where the Commission's action is directly appealable
to Third 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 on a form approved by the
Planning Director and accompanied by a filing fee of $200 no later than
seven calendar days, prior to the Commission's first meeting on the
matter. If the applicant files a request with the Commission for the
deferral or continuance of the hearing prior to the commencement of
the hearing, the next regularly scheduled meeting of the Commission
will then be considered the subsequent rescheduled hearing date. If the
request for intervention is withdrawn in writing before the
commencement of the hearing, the filing fee shall be refunded to the
person seeking standing to intervene.
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.
The petitioner shall be admitted as a party if it 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
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 practice those rights
which are customarily and traditionally exercised for
subsistence, cultural or religious purposes.
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
4-3
party may appeal such denial to the Third 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 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 he 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.
Multiple Intervenors. If more than one intervenor is admitted to a
contested case proceeding, the hearings officer and/or Commission may
require intervenors to assign responsibilities between themselves for the
examination and cross- examination of witnesses. The hearings officer
or Commission shall have the right to impose reasonable subject matter,
as well as time limitations on examination and cross-examination of
witnesses, whether or not parties arc represented by counsel.
0
g) Opposition to Intervention. If any party opposes the petition for
intervention, that party shall file, within five (5) days after being
served, his or her motion opposing the petition upon the Commission,
all other parties and the intervenor.
h) 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).
i) Mediation. All parties to a contested case proceeding shall participate,
in good faith, in one mediation conference, the length of which shall be
determined by the mediator. The mediation conference shall be held
within thirty days of the granting of an intervention by the Commission.
A mediator shall be selected jointly by the parties or appointed by the
Commission if the parties fail to agree. The mediator shall not be the
person appointed as the hearings officer for the contested case
proceeding. The cost of the mediation conference(s) shall be borne by
the Department. No agreement reached as a result of mediation shall
result in an improper delegation of powers of the Commission or
prevent the Commission from making the final decision in the matter.
4-4
4-7 Conference with Presiding Officer
At any time during the proceedings, the Presiding Officer may hold a
conference with the parties for the following purposes:
a) To determine the possibility of simplifying or eliminating the issues;
b) To facilitate the stipulation to facts or findings by the parties;
c) To identify evidence which will be needed at the hearing;
d) To determine the validity of proposed evidence;
e) To determine the need for depositions or subpoenas;
f) To determine the relevance of findings in some other case to the case at
hand;
g) To determine the need for consolidation of cases or joint hearings; and
h) To determine any other matters which will reduce cost or save time or
otherwise aid in the expeditious disposition of the contested case.
4-8 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.
4-9 Removal from Proceeding
Any person who disrupts a hearing which prevents or compromises the
conduct of the hearing shall be removed from the hearing room.
4-10 Order of Procedure
The applicant shall open and close. Other parties shall be heard in such order
as the presiding officer directs.
4-11 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.
4-12 Cross -Examination
Each party shall have the right to conduct such cross-examination of the
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witnesses as may be required for a full and true disclosure of the facts and shall
have the right to submit rebuttal evidence.
4-13 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 received by the Commission no later
than five working days before the 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 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 arc paid to witnesses in the circuit court of the State of
Hawai'i, 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
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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.
4-14 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.
4-15 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- 16 Written Requests
a) Timing. Written requests shall be made at least ten days before the
hearing. Written requests may be made during the hearing but only for
good cause shown and at the discretion of the Presiding Officer.
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.
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.
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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.
4-17 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.
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.
c)
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 rcad, unless excused by the presiding
officer, the witness shall provide 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.
t) 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
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presiding officer, the relevant and material matter maybe read into the
record or copies thereof received as an exhibit. Other parties shall be
afforded an opportunity to examine the document and to offer in
evidence other portions thereof believed material and relevant.
g) Exhibits.
h)
i)
1) Form; Size. Exhibits shall be legible and scanned into a format
prescribed by the Director. 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 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.
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 arc 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.
Official Notice of Facts. Official notice may be taken of such matters as
may be judicially noticed by the courts of the State of Hawai`i. 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.
4-18 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
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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, electronically mailed 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.
4-19 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.
4-20 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.
4-21 Close of Hearing
At the end of the presentation of the evidence, submission of briefs and oral
arguments, if any, the Commission or the hearings officer shall close the
hearing.
PART 2. Post Hearing Procedure for Hearings Conducted by
Hearings Officer
4-22 Recommendations of Hearings Officer
a) Submission of Recommendations. Upon completion of taking of the
evidence, the hearings 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 hearings officer and all other matters placed in
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evidence.
c) Service of Hearings Officer's Report. The hearings officer shall cause a
copy of the report to be served upon all parties to the proceedings.
4-23 Exceptions to Hearings Officer's Report and Recommendations
a) File; Form; Copies; Time; Service. Within fifteen days after service of
the report and recommendations by the hearings 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:
I) The specific questions of procedure, fact, law, or policy to
which exceptions are taken.
2) That part of the hearings officer's report and recommended
order to which objections arc 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.
4-24 Support of Hearings Officer's Report and Recommendations
a) File; Form; Copies; Time; Service. Within seven days after service of
the exceptions taken to the hearings officer's report, a party may file
with the Commission a brief or statement in support of the hearings
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:
I) 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 -ll
PART 3. Commission Decision
4-25 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 he 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- 26 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.
4-27 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 hearings 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 members who are to render a final decision, the
Commission shall comply with the procedure in Section 4-25 of this
rule.
4-28 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.
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4-29 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. The
agency shall notify the parties to the proceeding by providing 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.
4-30 Service of Decisions and Orders
Decisions and orders shall be provided 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.
4-31 Reconsideration of Decision and Order
The Commission shall not reconsider its action in any contested case hearing
after the effective date of its decision.
4-32 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.
4-13
RULE 5. GENERAL PLAN AMENDMENTS
5-1 Authority
This rule implements General Plan amendment procedures before the Planning
Commission as provided by Chapter 16, Hawai`i County Code 1983 (2016
Edition, as amended).
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) "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.
c) "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.
5-4 Amendment Pursuant to Comprehensive Review
a) 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.
5-I
b) Upon completion of the review, the Director shall submit any proposed
amendment to the Commission.
c) The Commission shall conduct and complete its review on the proposed
amendments to the General Plan, and shall submit its
recommendations, within one hundred fifty days from the date of
receipt of the proposed amendments from the Director.
d) The Commission shall recommend approval of the proposed
amendments, in whole or in part, recommend changes, or recommend
the rejection of the proposal for changes to the General Plan.
e) If the Commission fails to act on a proposed amendment within the
required period, it shall be deemed a negative recommendation.
5- 5 Interim Amendments
a) Council -initiated
I) The Council may initiate interim amendments to the General Plan
at any time, except during the comprehensive review. The
Council may, by resolution, request the Director and the
Commission to review and make a recommendation on a
proposed amendment.
2) The Director shall have sixty days or a longer period, as may be
agreed to by the Council, to submit a recommendation on the
proposal to the Commission for review and recommendation.
3) The Commission shall consider the proposed amendment at no
less than two meetings, and shall make its recommendation on the
proposed amendment to the Council within sixty days from it
receipt of the Director's recommendation.
4) If the Commission fails to act within the required period, it shall
be deemed a negative recommendation.
b) Director -initiated
I) The Director may initiate an interim amendment to the General
Plan at any time other than during the comprehensive review. The
Director shall submit the proposed amendment to the Commission
for its review and recommendation.
2) The Commission shall conduct and complete its review on the
5-2
3)
proposed amendments and shall submit its recommendations,
within one hundred twenty days from the date of receipt of the
proposed amendments.
If the Commission fails to act within the required period, it shall
be deemed a negative recommendation.
c) General Public
1) A member of the public may submit an application requesting the
Director to initiate an amendment to the General Plan at any time
except during the comprehensive review.
2) Should the Director initiate the amendment from the member of
the public, the amendment shall be processed according to
Section 5- 5 (b).
5-3
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 five hundred dollars.
b) Original 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) Building elevations, if required, 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;
6-1
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) Prior to the acceptance of any application, all real property taxes and
other fees relating to the subject parcel or parcels shall be paid and
there shall be no outstanding delinquencies, except in cases of
bankruptcy or similar matters as authorized by the County Director of
Finance.
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- 5 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,
6-2
c)
denied, or withdrawn. The applicant shall remove the sign promptly
after such action.
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)
Hawai`i County Code 1983 (2016 Edition, as amended).
d) The applicant shall tile 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.
6-6 Public Hearing
a) Upon acceptance of a Special Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The
public hearing shall commence no later than ninety days after the
acceptance of a Special Permit application by the Director, or within a
longer time period as agreed to by the applicant.
b) Promptly after the Commission's fixing a date for the public hearing,
the applicant shall mail a notice of the application and hearing to
owners of interests in properties within five 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 applicant;
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 applicant 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
6- 3
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 6-6 (b)(1-4) of this rule.
e) 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 6-6 (b). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
6-7 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,
Hawai`i Revised Statutes, as amended.
The Commission shall also consider the criteria listed under section 6- 3
b)(5)(A) through (G).
6- 8 Decision
Within sixty days after the close of the hearing, or within a longer time period
as agreed to by the applicant, the Commission shall:
a) For a Special Permit involving fifteen acres of land or less, approve it
by stating the reasons and attaching appropriate performance
conditions; or
b) For a Special Permit involving greater than fifteen 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.
6-4
6-9 Amendments of Permit or Conditions
a) The applicant 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 applicant shall file the request not
less than ninety days prior to the expiration date of the time conditions,
setting forth:
The affected condition;
The length of time requested; and
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 applicant shall set forth in writing:
1) The affected condition;
2) The specific amendment requested; and
3) The reasons for the request.
d) The applicant shall also file a two hundred fifty dollar processing fee,
along with the original of the request.
e)
6-10 Appeals
The hearing and notice procedures and action shall be the same as
under Sections 6- 5, 6- 6 and 6- 8 of this rule.
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
6-5
6-11 Revocation
a) A Special Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A Special Permit maybe revoked by the Commission in the event that:
1) The Director requests the revocation if
A) There has been noncompliance with the conditions of
the permit; or
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
2) The proceeding to revoke a Special 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.
6-6
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 1983 (2016
Edition, as amended).
7-2 Application and Content
An application for a Use Permit shall be filed with the Commission, through
the Department, and shall include:
a) A non-refundable filing and processing fee of five hundred dollars.
b) Original of
I) Application form;
2) Detailed written description and background information as
required on the Use Permit Application form,
3) An analysis of how the request satisfies each of the following
standards:
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.
4) Plot plan of the property, drawn to scale, showing property
lines, all existing and proposed structures, uses and
improvements; and reference points such as roadways,
shoreline, etc.
7-1
c) 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.
d) Prior to the acceptance of any application, all real property taxes and
other fees relating to the subject parcel or parcels shall be paid and
there shall be no outstanding delinquencies, except in cases of
bankruptcy or similar matters as authorized by the County Director of
Finance.
7-3 Incomplete Application
The Director, on behalf of the Commission, shall neither accept nor process an
application which is incomplete as to form and content.
7-4 Posting of Signs fir 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:
I) 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 Department for additional
information; and
6) The address and telephone number of the 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.
e) 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
7- 2
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)
Hawai`i County Code 1983 (2016 Edition, as amended).
d) The applicant shall file an affidavit with the 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 Public Hearing
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 commence no later than ninety days after the acceptance
of a Use Permit application by the Director, or within a longer time
period as agreed to by the applicant.
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:
c)
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.
The applicant shall serve notice on property owners and lessees of
record of the surrounding properties as follows:
I) 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
7-3
3)
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.
The notice shall include the following information:
A) Name of the applicant;
B) Precise location of the property involved, including tax
map key identification, location map and site plan;
C) Nature of the application and the proposed use of the
property;
D) Date on which the application was filed with the
Commission; and
E) 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 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 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 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.
e) For each hearing continued at the request of the applicant, the applicant
7-4
shall serve notice of the hearing on surrounding property owners and
lessees of record as provided by Section 7- 5 (c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
7-6 Criteria for Granting a Use Permit.
The Commission may approve a Use Permit upon finding that:
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 sixty days following the close of the public hearing(s), or within
a longer time period as agreed to by the applicant, 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.
b) In approving any use permit application, the Commission may issue the
approval subject to conditions, including but not limited to 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 contested case hearing pertaining to the use permit is pending
before the Commission.
7-8 Concurrent Requests
Concurrent requests may be acted upon by the Commission in conjunction
with a use permit application.
7-5
7-9 Amendments of Permit or Conditions
a) The applicant may apply to the Commission through the Department
for an amendment to the permit or condition(s) imposed.
b) 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:
c)
The affected condition;
The length of time requested; and
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 Use
Permit may be continued, unless the Commission specifically disallows
the activity during the interim period.
In the case of additions, modifications, and/or deletions of conditions;
or the original permit granted, the applicant shall set forth in writing:
I) The affected condition;
2) The specific amendment requested; and
3) The reasons for the request.
d) The applicant shall also file a two hundred fifty dollars processing fee,
along with the original of the request.
e) The hearing and notice procedures and action shall be the same as
under Sections 7-4, 7-5 and 7-7 of this rule.
7-10 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
7- 6
7-11 Revocation
a) A Use Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A Use Permit may be revoked by the Commission in the event that:
I) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the permit; or
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
2) 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.
7- 7
RULE 8. SHORELINE SETBACK
8-I Authority
Pursuant to authority conferred upon the 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 arc 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 arc 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
Part HI, 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.
h) "Lot" means a parcel, tract, or area of land established by subdivision
or as otherwise lawfully established prior to the adoption of the Chapter
23 (Subdivision Code), Hawai`i County Code 1983 (2016 Edition, as
amended) and accepted by the Department.
c) "Practicable alternative" means an alternative to the proposed project
8-1
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.
d) "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.
e) 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.
0 "Shoreline setback line" means that line established by the Department
in accordance with the requirements of Department Rule No. 11
regarding Shoreline Setback, running inland from and parallel to the
certified shoreline at a horizontal plane.
g) 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
An application for a shoreline setback variance shall be filed with the
Commission, through the Department, and shall include:
a) A non-refundable filing and processing fee of five hundred
dollars.
b) Original of:
I) Application form;
2) Description of the property in sufficient detail, including
the tax map key identification, location map, and land
area;
8-2
3) Written description of the proposed project, including a
statement as to how the request complies with Section 8-
11;
4) An environmental assessment or environmental impact
statement consistent with the requirements of Chapter
343, Hawai`i 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
5) A site plan of the shoreline setback area, drawn to scale,
showing:
A) Existing natural and man-made features and
conditions within the shoreline setback area;
B) Existing natural and man-made features and
conditions along properties immediately adjacent
to the shoreline setback area and proposed
improvements;
C) The certified shoreline;
D) The shoreline setback line;
E) Contours at a minimum interval of five feet
unless waived by the Commission;
F) Proposed development and improvements
showing new conditions.
c) A copy of the certified shoreline survey map of the property.
d) Detailed justification of the proposed project, which addresses
the criteria and conditions set forth in Section 8- 11.
c) A list of all properties by tax map key located within 300 feet of
the perimeter boundary of the property under consideration.
f) Prior to the acceptance of any application, all real property taxes
and other fees relating to the subject parcel or parcels shall be
paid and there shall be no outstanding delinquencies, except in
8-3
8)
cases of bankruptcy or similar matters as authorized by the
County Director of Finance.
Any other infonnation required by the Commission.
8-5 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 Department for additional
information; and
6) The address and telephone number of the 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 arca, 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 (2016 Edition, as amended).
d) The applicant shall file an affidavit with the 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
8-6 Incomplete Application
The Commission, through the 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- 7 Compliance with Chapter 343 Hawaii Revised Statutes
An environmental assessment or environmental impact statement, prepared in
accordance with the requirements of Chapter 343, Hawaii Revised Statutes
HRS) and Title 11, Chapter 200.1, Hawaii Administrative Rules (HAR), shall
accompany the filing of a shoreline setback variance application with the
Commission. The Department, on behalf of the 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 Department has complied with the requirements of Chapter
343, HRS and Title 11, Chapter 200.1, HAR.
8- 8 Public Hearing
a) Except as otherwise provided in this rule, the Commission shall
conduct a public hearing within a period of ninety days from the date of
acceptance of a complete application, or within a longer time period as
agreed to by the applicant. Prior to acceptance of an application, the
applicant shall comply with the requirements of Chapter 343, HRS and
Title 11, Chapter 200.1, HAR. 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
Commission shall publish a notice of the hearing in at least two daily
newspapers of general circulation in the county which includes the
following:
I) 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 Commission's fixing a date for the hearing but not
8-5
less than ten 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 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
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) 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 8-8 (c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
8- 9 Decision
a) Within sixty days following the close of the public hearing(s), or within
a longer time period as agreed to by the applicant, the 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 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 Commission
may permit the filing of a new application prior to the expiration of
such a one year period.
8-10 Waiver of Public Hearing and Action
a) The Commission hereby delegates to the Department the authority to
waive a public hearing and to take action on a variance application for:
I) Stabilization of shoreline erosion by moving sand entirely on
public lands;
2) Protection of a structure determined by the Department to be
legally constructed, which costs more than $20,000; provided
8-6
3)
the structure is at risk of immediate danger from shoreline
erosion as determined by the Department, in consultation with
appropriate agencies (i.e. U.S. Army Corps of Engineers,
Department of Public Works); or
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 8-10 shall make the
request in writing upon submittal of the variance application.
c) The Department may deny the public hearing waiver and the
application shall be heard and noticed by the Commission in
accordance with Section 8-8.
d) The Department shall promulgate rules to administer Section 8-10.
8- 11 Criteria for Approval of a Variance
a) A variance may be granted for a structure or activity otherwise
prohibited by these rules if the Commission finds in writing, based on
the record, that the proposed structure or activity is necessary for or
ancillary to:
I) 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.
8-7
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, Hawai'i Revised Statutes, or a private
facility or improvement which is undertaken by a private entity
and is clearly in the public interest; 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 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 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.
8-8
c) No variance shall be granted unless appropriate conditions are imposed
as applicable:
1) To comply with Chapters 10 and 27 of the Hawai`i 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;
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.
8-12 Amendments to a Variance
a) The applicant may apply to the Commission through the 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 topic. ]
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 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
8-9
4) Any other information required by the Commission.
d) Upon submitting a request as set forth in Section 8-12 (b) or (c), with
the exception of administrative time extensions, the applicant shall also
file a two hundred fifty dollar processing fee.
e) The hearing and notice procedures and action shall be the same as
under Sections 8- 5, 8- 8 and 8-9.
8- 13 Administration and Enforcement
The Department is responsible for the processing of all variance applications
and is also responsible for the enforcement of all conditions and requirements
associated with a variance issued in accordance with this rule.
8-14 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within thirty (30) days
after the person desiring to appeal is notified of the decision or order, or
of the action taken in a manner provided by statute.
b) If a contested case hearing is held a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
8-15 Revocation
a) A Shoreline Setback Variance may be revoked by the Director in the
event that any property owner who holds the variance sought to be
revoked or any other person, with the property owner's consent,
submits a written statement to the Director verifying that the
development approved under the variance issued has either not been
established or has been abandoned.
b) A Shoreline Setback Variance may be revoked by the Commission in
the event that:
I) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the variance; or
B) The use authorized under the variance is creating a
8-10
threat to the health or safety of the community.
2) The proceeding to revoke a Shoreline Setback Variance, upon
request of the Director, shall require written notice to the
property owner and to the person who has been issued the
variance prior to the Commission taking action to revoke the
variance.
8-lI
RULE 9. SPECIAL MANAGEMENT AREA
9-1 Authority
Pursuant to authority conferred by Chapter 205A, Hawai`i Revised Statutes,
the rule hereinafter contained is hereby established and shall apply to all lands
within the Special Management Area of the County of Hawai`i.
9-2 Purpose
It is the State policy to preserve, protect, and where possible, to restore the
natural resources of the coastal zone of Hawai`i. 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 Hawai`i."
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 arc
defined as follows:
a) 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.
b) "Public Works Director" means the Director of the Department of
Public Works of the County of Hawai`i .
c) "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.
d) "Cultural" pertains to traditional and customary practices and usage of
resources to fulfill responsibilities and rights possessed and exercised
by ahupua`a tenants who are descendants of Native Hawaiians who
inhabited the Hawaiian Islands prior to 1778.
Development" means any of the following uses, activities, or
operations on land or in or under water within the Special Management
e)
9-1
Area
1) "Development" includes the following:
A) Placement or erection of any solid material or any
gaseous, liquid, solid, or thermal waste;
B) Grading, removing, dredging, mining, or extraction of
any materials;
C) Change in the density or intensity of use of land,
including but not limited to the division or subdivision
of land;
D) Change in the intensity of use of water, ecology related
thereto, or of access thereto; and
E) Construction, reconstruction, demolition, or alteration of
the size of any structure.
2) "Development" docs not include the following uses, activities
or operations:
A) Construction or reconstruction of a single-family
residence that is less than seven thousand five hundred
square feet of floor area and is not part of a larger
development. Floor area shall be the total area of all
floors of a building(s) associated with the single-family
residence, including a basement and accessory
structures, measured along the exterior walls of such
building(s). The floor area of a building(s), or portion
thereof, not provided with surrounding exterior walls
shall be the usable area under the horizontal projection
of the roof or floor above;
B) Repair or maintenance of roads and highways within
existing rights-of-way;
C) Routine maintenance dredging of existing streams,
channels, and drainage ways;
D) 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;
E) Zoning variances, except for height, density, parking,
and shoreline setback;
9- 2
Repair, maintenance, or interior alterations to existing
structures or relating to existing uses;
Demolition or removal of structures, except those
structures located on any historic site as designated in
national or state registers or those listed in the Historic
Sites Element of the General Plan;
H) 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;
1) Transfer of title of land;
J) Creation or termination of easements, covenants, or
other rights in structures or land; "
K) Subdivision of land into lots greater than twenty acres in
size;
L) The amendment of the General Plan, State Land Use
Boundary amendments and changes of zone;
M) 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;
N) Installation of underground utility lines and appurtenant
aboveground fixtures less than four feet in height along
existing corridors;
Structural and non-structural improvements to existing
single- family residences, where otherwise permissible;
and
Non-structural improvements to existing commercial
structures.
Construction, installation, maintenance, repair, and
replacement of civil defense warning or signal devices
and sirens.
R) Plan, design, construct, operate, and maintain any lands
9-3
3)
or facilities under the jurisdiction of the Division of
Boating and Ocean Recreation of the State Department
of Land and Natural Resources.
Any proposed use, activity, or operation listed in Section 9-4
e)( 2) shall be deemed to be "Development" until the Director
has determined it to be exempted from the definition of
development."
4) 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.
0 "EIS" means an informational document prepared in compliance with
Chapter 343, HRS, and the Hawaii Administrative Rules, Title II,
Chapter 200.1 (Environmental Impact Statement Rules). An EIS
discloses the environmental effects of a proposed action, effects of a
proposed action on the economic welfare, 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.
g) 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.
h) "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."
Owner" means all equitable and legal holders or lessees of real
property. Lessees shall present certification of approval from the legal
owner.
i)
j) "Person" means and includes any individual, organization, partnership,
or corporation, including any utility and any agency of government.
k) "Petitioner" means and includes any person who seeks permission or
authorization which the Commission may grant under this rule.
I) "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
9-4
m)
of the waves.
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
Hawai`i. 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.
n) "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.
o) "Special Management Area" means the land extending inland from the
shoreline as delineated on the maps filed with the Commission as of
June 8, 1977, or as amended pursuant to Section 9-21.
p)
q)
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.
Special Management Area Minor Permit" means an action by the
Director authorizing development, the valuation of which is not in
excess of S500,000 and which has no cumulative impact, or a
substantial adverse environmental or ecological effect on the Special
Management Area.
r) "Special Management Area Use Permit" means an action by the
Commission authorizing development, the valuation of which exceeds
500,000 or which may have a cumulative impact, or a substantial
adverse environmental or ecological effect on the Special Management
Arca.
9-5
s)
t)
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.
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.
u) "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 9-
4 (e)(1), the fair market value of the development.
v) `Vegetation Growth" means any plant, tree, shrub, grass, or groups,
clusters or patches of the same, naturally rooted and growing.
w) "Artificial light" or "artificial lighting" means the light emanating from
any fixed human -made device.
x) "Directly illuminate" means to illuminate through the use of a glowing
element, lamp, globe, or reflector of an artificial light source.
y) "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 maybe 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
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 Arca guidelines set forth in Section 205A-26, HRS,
as amended, shall be used by the Commission, as appropriate, for the review of
developments proposed in the Special Management Area.
9-6
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.
c) Special Management Area Minor, Use or Emergency Permits or
exemptions validly issued by the Department or the Commission,
subsequent to any amendment to Chapter 205A, Hawai`i Revised
Statutes but preceding any supportive amendment to this rule shall
continue to be considered valid.
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.
To improve the efficiency of the Commission's review, approval and
permitting processes granted upon it by Chapter 205A-22, Hawai`i Revised
Statutes and in accordance with Rule 9 herein, the Commission hereby
delegates to the Director the authority to process assessments, determinations
and conditions regarding exemptions, issue and enforce Special Management
Area Minor Permits and Special Management Area Emergency Pennits, and to
administer, interpret, and enforce terms, scope and conditions set forth in
Special Management Area Use Permits issued by the Commission.
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
500,000 in valuation; orb) 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 Commission 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 review and acceptance of the assessment application
shall follow the procedures pursuant to Section 25-2-3 (Review and
acceptance of applications) in Chapter 25, Hawai`i County Code 1983
9-7
2016 Edition, as amended). 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.
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
9-8
7)
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.
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 current certified 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.
I I) 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 filing under this section.
12) A fifty dollar (S50) filing fee.
c) The Director shall assess the proposed use, 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-
IOH.
d) The Director, within sixty 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:
9-9
The proposed use, activity or operation does not constitute a
development or is exempt from the definition of development; or
A Special Management Area Minor Permit is being issued; or
A Special Management Area (Major) Use Permit is required.
If the proposed use, activity, or operation is less than $500,000 in value
and the Director fails to act within the sixty 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 (f) .
e) Where it is found that the proposed use, activity or operation is not in
excess of
500,000 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 $500,000 or may have a substantial adverse
effect on the Special Management 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.
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 (e)( 2), 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.
9-10
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:
I) 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-tcmr 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)
8)
9)
substantially affects a rare, threatened, or endangered species of
animal or plant, or its habitat;
detrimentally affects air or water quality or ambient noise
levels;
affects an environmentally sensitive area, such as flood plain,
tsunami zone, erosion -prone area, geologically hazardous land,
estuary, fresh water or coastal water; or
9-11
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
The Department may create a SMA short form assessment to be used
by the Department to assess uses that may result in a determination that
the proposed use is exempt, i.e., single family residence, minor
grubbing, or accessory structures. The short form assessment 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) Description of any known historical sites, anchialine ponds,
wetland, or sandy beach, and any other pertinent information.
In case of a single family dwelling, a Building Permit application may
suffice as the plot plan required under (2).
The Director may require a full SMAA if it is determined through the
short form assessment review that further information is needed from
the applicant. The Director may impose certain conditions with the
exemption determination to assure that the proposed use, activity, or
operation docs not have a significant adverse effect on the SMA.
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 Department, on behalf of the
Commission, shall be the 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 pennit
application shall not be considered complete until such time as the
requirements of Chapter 343, Hawaii Revised Statutes and Title 11,
Chapter 200.1, Hawaii Administrative Rules, if applicable, have been
9- 12
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 $ 500,000 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:
I) The original 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;
iv) Any probable adverse environmental effects
which cannot be avoided;
9-13
v) Alternatives to the proposed action;
vi) 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:
0)
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 Hawai'ian rights are exercised
in the petition arca;
ii) The extent to which those resources, including
traditional and customary native Hawai'ian
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.
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 current certified 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;
f) Identification and detailed information of existing public
9-14
access to and along the shoreline and whether the access
is being used; and
K) Any other plans or information required by the Director.
2) 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.
3) 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.
4) 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.
5_1 Five hundred dollars filing fee to cover publication and other
administration costs.
5) Prior to the acceptance of any application, all real property taxes
and other fees relating to the subject parcel or parcels shall be
paid and there shall be no outstanding delinquencies, except in
cases of bankruptcy or similar matters as authorized by the
County Director of Finance.
c) Posting of Signs for Public Notification
I) 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:
9-15
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 Department for
additional information; and
F) The address and telephone number of the 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 (2016 Edition, as amended).
4) The applicant shall file an affidavit with the 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 acceptance of an SMA Use Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The
public hearing shall commence no later than ninety days after the
acceptance of an SMA Use Permit application by the Director, or
within a longer time period as agreed to by the applicant.
Promptly after the Commission fixing a date for the hearing, the
applicant shall mail a notice of the hearing setting forth the time, date,
9-16
e)
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 Commission, 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 Commission 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. These aforementioned
notice requirements are not required for subsequent hearing dates upon
the same application.
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 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
processing 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.
Grounds for Approval of Special Management Area Use Permits:
The Commission may permit the proposed development only upon
finding that:
l 1.1 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
9-17
f)
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
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.
Decision and Order
1) Within sixty days following the close of the public hearing(s),
or a longer time period as agreed to by the applicant, the
commission shall either deny or approve the application. The
decision, whether to grant or to dcny the application, shall
require a majority vote of the total membership of the
Commission. In the event the Commission 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 Commission to defer action on
the application. A majority vote of the total membership of the
Commission is required if applicant requests to defer action on
the application. In the event the Commission 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 or
9-18
g)
3)
electronically mailing the notice to the applicant's last known
address.
Reconsideration: In the event an application is denied due to the
Commission's failure to render a decision within the period
prescribed by paragraph F.1. above, the applicant may, within
ten 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
Commission for its reconsideration at the next meeting. In the
event the Commission 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 Commission through the Director for a period of two
years from the effective date of the denial of the original
application; provided, however, that upon showing of a
substantial change of circumstances the Commission may
permit the filing of a new application prior to the expiration of
such a two-year period.
5) Appeals:
A) Any decision of the Commission so made within the
context of this article shall be appealable to the Third
Circuit Court. The notice of appeal shall be filed in the
Third Circuit Court within thirty (30) days after the
person desiring to appeal is notified of the decision or
order, or of the action taken in a manner provided by
statute.
B) If a contested case hearing is held, a different appeal
option is available. Refer to Planning Commission Rule
4-32 for appeal procedures.
Amendments to a Special Management Area Use Permit or Conditions
I) Application: The applicant may apply to the Commission
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
9-19
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 [- :eG]
of the request.
2) Notice and Hearing: The hearing and notice procedures shall be
the same as under Section 9-11 (c) and (d).
3) Decision and Order: The procedures shall he the same as
provided for under Section 9-11 (0.
9-12 Artificial 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) Section 9-12 (a) shall not apply to:
I) A 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- 13 Prohibitions
a) No special management area use permit or special management area
minor permit shall be granted for structures that allow artificial light
9-20
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) Section 9- 13 (a) shall not apply to special management area use permits
for structures with:
l) 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.
9-14 Special Management Area Emergency Permits
a) A Special Management Arca 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 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 Commission 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.
9-21
9-15 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.
9-16 Revocation
a) A Special Management Area Use Permit may be revoked by the
Commission in the event that:
I) 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 has been noncompliance with the conditions of
the permit; or
B) The development authorized under the permit is creating
a threat to the health or safety of the community.
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
Commission 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 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 (f) of this rule.
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 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 Hawai`i Revised Statutes. An appeal to
9-22
e)
the Third Circuit Court shall stay the provisions of the Commission's
revocation order pending the final decision of the Third Circuit Court.
The Department is authorized to adopt rules to establish procedures for
revocation of a Special Management Area Minor Permit.
9-17 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
SI 0,000 a day for each day in which such violation persists.
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, FIRS.
c)
9-I8 Complaint and Investigative Procedures
The Department shall adopt rules to establish procedures for investigating
complaints and alleged violations.
9-19 Administrative Fines
The Department is authorized to impose administrative fines in accordance
with established rules.
9-20 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.
9-21 Hearing Officer
a) The Commission 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 Commission as
provided by this rule.
b) The notice and hearing requirements for hearings conducted by a
hearing officer 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.
9-23
b) 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 Commission.
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 Commission and to all persons involved in the
proceedings.
c) 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.
d) Testimony Before the Commission:
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 Commission may grant such
request.
2) The Commission may on its own motion re -open the hearing to
allow the taking of additional testimony and further evidence.
9-24
e) Commission Action:
I) In the event no statement of exception is filed, the Commission
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, Commission shall render its decision pursuant
to Rule 9-11 (e).
9-22 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 Commission 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 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) Five hundred 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 Commission shall conduct a
public hearing within a period of ninety calendar days from the receipt
of a properly filed petition.
9-25
c) Decision and Order
The procedures shall be the same as under Section 9-11 (1).
9-23 Amendment of Special Management Area (SMA) Maps
a) Amendments initiated by the Director:
I) Initiation:
A) The Director may at any time initiate amendments to the
Special Management Area Boundaries.
B) The Commission, 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
Commission, the general public and the State Office of
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 Commission.
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 Commission 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 Commission 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 (f).
b) Special Management Area Boundary Amendments Initiated by the
General Public:
9-26
1) Application:
Any person may apply to the Commission through the Director
requesting the amendment of the Special Management Area
boundaries.
The applicant shall submit the following to the Department:
A) The original 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) Five hundred dollars filing fee to cover publication and
other administrative costs.
2) Notice and Hearing
The notice and hearing procedures shall be the same as
stipulated under Section 9-11 (c) and (d).
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).
4) Decision and Order:
The procedures shall be the same as provided for in Section 9-
11 (f).
9-27
RULE 10. ZONING AMENDMENTS
10-1 Authority
This rule governs zoning amendment procedures before the Planning
Commission as required by Chapter 25 (Zoning Code), Hawaii County Code
1983 (2016 Edition, as amended).
10- 2 Procedures for Processing Zoning Amendments
a) Public Hearing Notice
I) The Commission shall publish notice of the public hearing in at
least two newspapers of general circulation in the County, at
least ten 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 he provided by the Commission as follows:
A) Notice by mail to surrounding owners and lessees of
record shall not be required for any amendment initiated
by the Director or the 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 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.
10-I
B) No later than thirty days prior to the public hearing, the
Commission shall provide written notice 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.
5) 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, as amended. An additional
two hundred fifty dollar processing fee shall be submitted by the
applicant for each hearing continued at the request of the
applicant.
b) Amendments initiated by property owners and other persons.
1) The Commission shall hold at least one public hearing and shall
provide thirty days' notice of the date of the hearing to the
applicant.
2) Within ninety days after receipt of the application from the
Director, unless a longer time 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
I 0-2
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 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, 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 Codc, 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 days
from the date that the amendment is transmitted by the Council.
A) Within the one hundred twenty -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.
10-3
C) After the one hundred twenty -day review period has
expired, the Council may proceed to act on the proposed
amendment as it deems appropriate.
10-3 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 Department for additional
information; and
6) The address and telephone number of the 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, he in compliance with Chapter 3 (Signs) Hawaii County
Code 1983 (2016 Edition, as amended).
d) The applicant shall file an affidavit with the 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.
10-4
RULE 11. GEOTHERMAL RESOURCE PERMITS
11-1 Purpose and Authority
This rule governs geothermal resource permit procedures pursuant to authority
conferred by section 205-5.1, Hawai`i Revised Statutes, as amended, upon the
Commission to determine whether proposed geothermal development activities
should be allowed. The 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 Commission's approval of an application for a geothermal resource permit
shall not in any way abrogate nor supersede the provisions of Chapters 182 and
183, HRS, and rules promulgated thereunder.
11-2 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.
11-3 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
Commission for a geothermal resource permit. An application for a geothermal
resource permit shall be filed in the Department's office and shall include the
following:
a) Non-refundable filing and processing fee of one thousand dollars.
b) Original 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.
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.
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.
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:
1)
J)
11-2
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
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 timetables) and/or schedule(s) for each
proposed phase of the project.
I1-3
0) Method(s) of presenting timely progress reports to the
Commission.
P) Other pertinent information or data such as an
archaeological survey which the Director may require to
support the application for the utilization of geothermal
resources and the protection of the environment.
c) Prior to the acceptance of any application, all real property taxes and
other fees relating to the subject parcel or parcels shall be paid and
there shall be no outstanding delinquencies, except in cascs of
bankruptcy or similar matters as authorized by the County Director of
Finance.
11-4 Properly Filed Application
Within twenty days of receipt of an application, the Director shall review it to
determine if it is complete in that it includes the supporting data required
pursuant to Section 11-3. An application that is determined to be complete
shall be officially accepted within twenty days of receipt of the application and
the applicant shall he so notified in writing.
11- 5 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:
The nature of the application;
The proposed use of the property;
The size of the property;
The tax map key(s) of the property;
That the public may contact the Department for additional
information; and
6) The address and telephone number of the 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.
11-4
c) Notwithstanding any other provisions of law, the sign shall be not less
than nine square feet and not more than twelve square fcet 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)
Hawai'i County Code 1983 (2016 Edition, as amended).
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,
deified, or withdrawn. A photograph of the sign in place shall
accompany the affidavit.
11-6 Hearing and Notification
a) The Director, on behalf of the 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 Commission shall conduct a public hearing. Upon appropriate
request for mediation from any party who submitted comment at the
public hearing, the Commission shall order the requesting party or
parties, the applicant and the appropriate agencies to submit to the
mediation process outlined in Section 11-6.
c) Promptly after the Director fixes a date for the public hearing and at
least fifteen 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 currcnt 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 Director), and to other interested persons or groups
as may be determined by thc Director. The applicant shall also make a
reasonable attempt or best effort in notifying residents within one
thousand feet of thc perimeter boundary of the property of the public
hearing. Such notice shall state:
I) Name of the applicant;
2) Precise location of the property involved;
11-5
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 11- 5 (c) has not been
met, the Commission shall not conduct a hearing and further action on
the application shall be deferred until the notification requirement is
met.
e)
t)
In addition to said notice and at least fifteen 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 11-6 (c) (1) to (4).
For cach 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 11-6(c). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
11-7 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 Commission shall require the parties to
participate in mediation. All appropriate requests for mediation shall be
consolidated in a single mediation conference. The Commission shall
not be a party to the mediation, and shall not be permitted to attend
mediation conferences. The 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 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 of the request for
mediation shall be filed with the Commission within five days after the
close of the initial public hearing and one copy of the request shall be
served on the applicant.
d) Appointment of a Mediator. Within five days after receipt of a timely
request, the Commission shall appoint a qualified mediator.
Appointment of the mediator by the Commission shall be final, except
11-6
e)
as provided in Section 11-7 (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 infonnation, 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 he an employee of
any County agency or its staff.
t) Notice of Mediation Conference. The applicant and any person
submitting a timely request for mediation shall be notified in writing by
the 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 or by
electronic mail to the electronic mail address stated in the application
and in the request for mediation, which method shall be indicated in the
application or 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 fifteen 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 Hawai'i 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 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
1 1-7
parties to the mcdiation 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.
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:
1) views expressed or suggestions made by any other party with
respect to a possible settlement of any disputed issue;
2) statements or admissions made by any other party in the course
of mediation proceedings;
3) proposals made or views expressed by the mediator;
4) 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 Commission, based upon any
mediation agreement reached between the parties or stating that no
agreement was reached, for consideration by the Commission in its
final decision. The written report of the mediator shall be filed with the
Commission and served on all parties to the mediation within ten 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 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 days after receipt of the mediator's report. Within
ten days after the second public hearing, the Commission may receive
additional written comment on the unresolved mediation issues raised
at the second public hearing by any party.
11-8
0)
p)
If a second hearing is held, the Commission shall consider the
comments raised at the second hearing before rendering its final
decision. The Commission shall then determine whether a geothermal
resource permit shall be granted for geothermal development activities
described in the application.
Expenses. The parties shall each bear their respective costs, fees and
expenses.
11-8 Criteria for Issuance of Geothermal Resource Permit
The 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
c) There are reasonable measures available to mitigate the unreasonable
adverse effects or burdens referred to above.
11-9 Action
a) Unless there is mutual agreement to extend the period of time for the
Commission's action, the Commission shall take action on a properly
filed and complete application within one hundred eighty days of the
date a complete application is filed; provided that the time limit may be
extended by agreement between the applicant and the Commission.
b) The Commission's action shall either:
1) Grant the geothermal resource permit as requested by the
applicant based upon the satisfaction of criteria in section 11-8
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
11-9
c)
3)
imposed by the Commission.
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.
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.
11-10 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 Director:
a) Copies of approved pennits 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.
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.
c)
d) A final site plan and elevations of proposed temporary and/or
permanent structures for the project or any phase of the project.
1I -II Amendments of Pennit and Conditions
a) For any amendments to the geothermal resource permit or its conditions
the pennittee shall set forth in writing:
The specific amendment requested;
The reasons for the request, including statements addressing the
II -l0
criteria listed under section 11-8; and
3) Any other applicable information requested by the 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:
c)
1) The affected condition;
2) The length of time requested; and
3) The reasons for the request.
If either the Director or the 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 Director.
All of the procedures set forth in this rule and the procedures set forth
in other applicable Commission rules shall apply.
11-12 Enforcement of Permit and Conditions
a) If the Director determines that there is noncompliance with the
geothermal resource permit or its conditions, Director shall so inform [it+
writin_] the permittee in writing 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 pennittee shall have five days to provide a written
response to the notice of determination of noncompliance.
b) Notwithstanding any written response submitted by the pennittee, if the
Director affirms the determination of noncompliance, he shall so advise
the pennittee in writing. The permittee shall have five days thereafter to
correct the noncompliance; provided that the 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 Commission to amend
the permit, should compliance be impossible or impractical to meet.
d) If the permittee fails to correct the noncompliance within the required
time period, the Director shall refer the matter with his
recommendations to the 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 Commission, the 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 Director
may reactivate the permit upon a subsequent finding of the permittee's
compliance with the permit condition. Subject to the Commission rules,
the permittee may at any time request a hearing before the Commission
for its review and action with regard to the permit's temporary
suspension or any subsequent refusal of the Director to reactivate the
permit. Referrals by the Director to the Commission and reviews by the
Commission of the Director's action shall be heard at the
Commission's next meeting when the matter can he placed on the
Commission's agenda.
11-13 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.
11-14 Appeals
a) Any decision madc by the 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
cast hearing. Sections 91-14 (b) and (g), Hawaii Revised Statutes, as
amended, shall govern the appeal, notwithstanding the lack of a
contested case ]rearing on the matter. The 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:
1) 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
Commission in consideration of the application.
3) Oral and written public testimony received at the public
11-12
hearings.
4) Written transcripts of the proceedings at the public hearings.
5) The written recommendation received by the Commission from
the mediator with any mediation agreement.
6) A statement of relevant matters officially noticed by the
Commission and/or any of its members at the public hearings.
7) The written decision of the Commission issued in connection
with the application and public hearings.
8) Other documents required by the Commission.
11-13
RULE 12. GEOTHERMAL ASSET FUND
12-1 Authority
Pursuant to the authority conferred upon the Windward 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 Assct Fund.
12-2 Purpose
The purpose of this rule is to allow the Windward Planning Commission to
authorize payment of money from the Geothermal Asset Fund to claimant(s)
whom the 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. Since this rule relates to a condition of Geothermal Resource
Permit No. 2 issued for property within the Puna District, County of Hawaii,
this rule is applicable only to the Windward Planning Commission.
12-3 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 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.
12-4 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 Commission. The Commission
will review these findings and then render a decision.
12-1
12-5 Geothermal Asset Fund Claims Adjuster
A professional claims adjuster will be selected by the 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 years. In the event that five years have passed
and the life of the Geothermal Asset Fund is extended, the Commission may
either ask for a new list of names to choose another claims adjuster or extend
the claims adjuster who previously served the Commission.
12-6 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 Hawai` i. 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 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.
t) An action on the merits of a claim by the professional claims adjuster to
recommend approval or denial of a claim and subsequent Commission
action to confirm or reject the claims adjuster's recommendation shall,
after exhaustion of the Commission appeal process, become final and
shall bar any subsequent claim before the Commission by the same
12-2
claimant(s) based upon the same facts.
12-7 Filing of Claims
a) All claims for compensation for adverse impact pursuant to this rule
shall be filed with the Hawaii County Planning electronically to
planning@hawaiicounty.gov, unless otherwise directed.
b) Each claim shall include the following information:
c)
12-8 Hearings
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 elaimant(s).
3)
4)
5)
Tax Map Key of claimant(s).
Date of filing of claim.
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)
8)
The claim and all supporting documents.
Notarized signature of the claimant(s) on the claim.
The claim application and submitted evidence shall be a matter of
public record and copies shall be distributed to the Commission
members who will hear the claim.
a) Scheduling of Hearing. Whenever an application is made for
compensation, the claims adjuster shall submit a recommendation to the
Commission within ninety days of the receipt of the application and all
supporting documents.
b) Documents, Applications, Amendment. Dismissal. All papers,
documents and applications must be submitted electronically to
planning@hawaiicounty.gov, unless otherwise directed. The signature
or electronic signature of the person signing the document or
application constitutes a certification that they have read the document,
12-3
c)
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 otherwise insufficient, the claims adjuster
may recommend to the 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.
The claims adjuster shall recommend to the Commission whether or not
the claim has merit and, if so, what amount of compensation. It shall be
forwarded to the Commission within ninety days of filing with the
claims adjuster. The 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 Geothennal Resource Permit No.
2, issued by the County of Hawai`i, and
2) The amount of compensation to be granted is deemed by the
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 Hawai`i, 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 Hawai `i.
d) The 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
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 Commission or by
default by the Commission choosing not to consider the claims
adjuster's recommendation.
12-4
12-9 Claims Adjuster's Recommendations
The claims adjuster shall recommend to the 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
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:
c)
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.
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
12-5
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 Hawai`i.
These findings for recommendation of denial of the claim shall be
stated in writing and a copy shall be given to the claimant(s).
12-10 Commission Action
a) The Commission shall review the findings and recommendation prior
to announcing the decision or the date when its decision will be
announced. If the Commission does not make a decision on the claims
adjuster's recommendation within ninety days from the close of the
hearing, the claims adjuster's recommendation becomes final.
b) Reconsideration by 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.
12-11 Award of Compensation
Upon voting to award compensation to claimant(s), the 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 Hawai`i, and a statement of the amount of compensation.
12-12 Denial of Award of Compensation
Upon voting to deny an award of compensation to the claimant(s), the
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.
12-13 Apeal
a) Any decision of the Commission so made within the context of this rule
shall be appealable to the Third Circuit Court. The notice of appeal
shall be filed in the Third Circuit Court within thirty (30) days after the
12-6
person desiring to appeal is notified of the decision or order, or of the
action taken in a manner provided by statute.
b) If a contested case hearing is held a different appeal option if available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
12- 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 govem
the claims adjuster.
12- 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 and include:
c)
1)
2)
A statement of the nature of the petitioner's interest.
A draft or the substance of the proposed rule or amendment or a
designation of the provisions sought to be repealed.
13) An explicit statement of the reasons in support of the proposed
rule, amendment or repeal.
The Commission shall within sixty 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,
Hawai`i 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.
12-16 Relocation
The Geothermal Asset Fund may be used for relocation and payment for
adverse impacts.
12- 17 Other Rights
Nothing in this rule shall be construed to deprive or deny any person any other
rights or recourse under law.
12-7
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 1983 (2016 Edition, as
amended), 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 Application for State Land Use District Boundary
Amendment
An application 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. An application may also be
initiated by resolution of the Council.
13-3 Contents of Application
An application for a State Land Use district boundary amendment shall be filed
with the Department and shall include the following:
a) Non-refundable filing and processing fee of five hundred dollars.
b) Original 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) Prior to the acceptance of any application, all real property taxes and
other fees relating to the subject parcel or parcels shall be paid and
there shall be no outstanding delinquencies, except in cases of
13-1
bankruptcy or similar matters as authorized by the County Director of
Finance.
13-4 Incomplete Application
The Department shall neither accept nor process an application which is
incomplete as to form and content. An incomplete application shall be returned
to the applicant with a written explanation of its deficiencies.
13- 5 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:
I) 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 Department for additional
information; and
6) The address and telephone number of the 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 pennitted 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)
Hawai`i County Code 1983 (2016 Edition, as amended).
d) The applicant shall file an affidavit with the Department not more than
five days after posting the sign stating that a sign has been posted in
13-2
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- 6 Procedures for Reviewing and Processing of Application
a) Department
1) Upon receipt of a complete application, the Department shall
serve a copy to the State Land Use Commission and the State
Department of Business, Economic Development and Tourism.
2) Within ninety days of acceptance of an application or such
longer period as may be agreed to by the applicant, the
Department shall submit its recommendation to the
Commission. The 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) Commission
1) Upon acceptance of a State Land Use Boundary Amendment
application, the Commission, through the Department, shall fix
a date for the public hearing. The public hearing shall
commence no later than ninety days after the acceptance of a
State Land Use Boundary Amendment application by the
Director, or within a longer time period as agreed to by the
applicant. The Commission shall notify the State Land Use
Commission and the State Business, Economic Development
and Tourism of the time and place of the hearing and the
application scheduled to be heard at the hearing.
2) At least ten days prior to the public hearing, the Commission
shall give notice of the proposed amendment by publishing it at
least once in a newspaper of general circulation in the County.
In cases of property owner -initiated amendments, promptly after
the Commission's fixing a date for the hearing but not less than
ten days prior to the date of the hearing, applicant 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
3)
13- 3
certified mail receipts, affidavits, or the like.
4) The applicant shall notify all property owners within three
hundred feet of the affected property of any subsequent
hearing(s) continued at the applicant's request. An additional
two hundred fifty dollar processing fee shall be submitted by the
applicant for each hearing continued at the request of the
applicant.
5) After the conclusion of the hearing, the Commission shall
recommend either the approval or denial of the amendment to
the Council stating its reasons for such decision, including
appropriate performance conditions in the case of an approval
recommendation.
6) Prior to the Commission forwarding its report to the Council,
the applicant shall file with the Department a map and written
description by metes and bounds of the property.
13- 7 Standards for Review
In reviewing a district boundary amendment, consideration shall be given to
the provisions set forth in Section 205-2, Hawai`i Revised Statutes, and the
purpose of Chapter 28, Hawai'i County Code. Specifically, consideration shall
be given to the following:
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.
h) The extent to which the proposed reclassification conforms to the
applicable district standards.
13- 8 Notification of Decision
Within thirty days of the effective date of the district boundary amendment, the
Department shall submit the decision and the description and map of the
reclassified area to the State Land Use Commission.
13- 9 Consolidated Proceeding with Other Land Use Changes
An application 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
RULE 14. AGRICULTURAL PROJECT DISTRICTS
14-1 Authority
This rule govems Agricultural Project Districts (APD) before the Commission
as required by Chapter 25 (Zoning Code), Hawai`i County Code 1983 (2016
Edition, as amended).
14-2 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 planning 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 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, Hawai`i County Code, which
changes the district boundaries in accordance with the individual Agricultural
Project District.
14-3 Contents of Application and Requirements
An application for an Agricultural Project District shall be filed with the
Commission, through the Department, on a form prescribed by the Director.
The application shall conform to the requirements of Section 25-6-54 of
Chapter 25, Hawai`i County 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, Hawai`i County
Code 1983 (2016 Edition, as amended).
14-4 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;
14-1
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 Department for additional
infonnation; and
6) The address and telephone number of the 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)
Hawai`i County Code 1983 (2016 Edition, as amended).
d) The applicant shall file an affidavit with the 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.
14-5 Procedures for Reviewing and Processing Agricultural Project Districts
a) Within one hundred twenty 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
Code) and Chapter 23 (Subdivision Control), if applicable, as contained
in the master conceptual plan for the Agricultural Project District.
14-2
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, Hawai`i County Code 1983 (2016 Edition, as amended).
c) Within ten 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, Hawai`i County Code 1983 (2016 Edition, as amended). 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.
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, Hawai`i
County Code 1983 (2016 Edition, as amended). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
14-6 Decision
Within ninety 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 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.
14-7 Criteria for Establishing an Agricultural Project District
An Agricultural Project District may be established as an amendment to
Chapter 25, Hawai`i County Code 1983 (2016 Edition, as amended), 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 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:
a) Is consistent with the intent and purpose of Chapter 25, Hawai`i County
Code (2016 Edition, as amended), and the General Plan; and
b) Will not result in a substantial adverse impact upon the surrounding
14-3
area, community or region.
14-8 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 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.
1) The applicant shall submit an original 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 Commission.
2) The notice and hearing procedures and decision shall be the
same as under Section 14-4, 14-5 and 14-6 of this rule.
14-4
RULE 15. PROJECT DISTRICTS
15-1 Authority
This rule governs Project Districts (PD) before the Commission as required by
Chapter 25 (Zoning Code), Hawai`i County Code 1983 (2016 Edition, as
amendcd).
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, Hawai`i County Code 1983 (2016
Edition, as amended), 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 Commission,
through the Department, on a form prescribed by the 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.
15-4 Procedures for Reviewing and Processing Project Districts
a) Within one hundred twenty 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
15-1
c)
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.
Within ten 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, Hawaii County Code 1983 (2016 Edition, as amended). 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 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, Hawaii
County Code 1983 (2016 Edition, as amended). An additional two
hundred fifty dollar processing fcc shall be submitted by the applicant
for each hearing continued at the request of the applicant.
15-5 Decision
Within ninety 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 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:
a) Is consistent with the intent and purpose of Chapter 25, Zoning Code,
and the General Plan; and
b) Will not result in a substantial adverse impact upon the surrounding
area, community or region.
15-2
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 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.
1) The applicant shall submit an original of the written request,
which includes:
A) The affected section of the Project District enabling
ordinance;
B) The specific amendment or length of time requested;
C) The reasons for the request; and
D) Any other information required by the Commission.
2) The notice and hearing procedures and decision shall be the
same as under Sections 15-4 and 15-5 of this rule.
15-3
RULE 16. PLANNED UNIT DEVELOPMENT (P.U.D.)
16-1 Authority
This rule governs Planned Unit Developments (P.U.D.) before the Commission
as required by Chapter 25 (Zoning Code), Hawai`i County Code 1983 (2016
Edition, as amended).
16-2 Purpose
The purpose of P.U. D. is to encourage comprehensive site planning that is
compatible with the surrounding community and that adapts the design of
development to the land, by allowing diversification in the relationships of
various uses, buildings, structures, open spaces and yards, building heights,
and lot sizes in planned building groups, while still insuring that the intent of
Chapter 25, Hawai`i County Code 1983 (2016 Edition, as amended), is
observed.
16-3 Minimum land area required
The minimum land area required for a P.U.D. shall be two acres.
16-4 Contents of Application for P.U.D Permits and Requirements
An application for a P.U.D. permit shall be on a form prescribed for this
purpose by the Director on behalf of the Commission. An original of the
application shall be accompanied by:
a) A filing fee of $500.
b) A written description of the proposed project, including the following
information:
1) Name of the applicant
2) A description of the property in sufficient detail to determine
the precise location of the property involved;
3) A statement of objectives and reasons for the requested P.U.D.
permit including an analysis of how the request satisfies the
standards contained in section 16-9 of this rule;
4) A list of all requested deviations from the requirements of
Chapter 23 (Subdivisions) and Chapter 25 (Zoning), Hawai`i
County Code 1983 (2016 Edition, as amended).
16-1
5) A schedule for the timetable of the proposed development; and
6) An analysis of the relationship of the proposed development to
the General Plan and any applicable, adopted community
development plan, other adopted master plan, and if applicable,
any other adopted design guidelines and/or standards affecting
thc project area.
c) A site plan, drawn to scale and fully dimensioned, comprising a general
development plan covering the entire area of the P.U.D. indicating
clearly the following information:
1) The uses, dimensions, and locations of all existing and proposed
structures;
2) Widths, alignments, and improvements of existing and proposed
streets and pedestrian and drainage ways, and existing access
and utility casements;
3) Any proposed subdivision of property for individual parcel sale;
4) Parking areas, both on- and off-street;
5) Public areas and uses; and
6) Landscaping and open spaces.
d) Architectural drawings for all buildings demonstrating the design and
character of the proposed buildings and uses. If the project area is
within a district established under section 16-5 of this rule for which
design guidelines and/or standards have been adopted that are
applicable to single-family dwellings, architectural drawings shall be
required for all buildings including single-family dwellings.
e) A visual depiction of all of the requested deviations from code called
for in section 16-4 ( b) (4).
0) Any other information or plans deemed relevant by the Planning
Director to facilitate processing the application request.
g) A list of the names, addresses and tax map key numbers or all
surrounding owners and lessees of property interests in property within
thc boundaries established by section 25-2-4 of Chapter 25, Hawai`i
County Code as amended. The Director, on behalf of the Commission,
shall review, accept and process an application which has been
16-2
determined complete as to form and content and as provided by Section
25-2-3 of Chapter 25, Hawaii County Code 1983 (2016 Edition, as
amended).
16-5 P.U.D. permit application and processing requirements located within special
districts with design guidelines and/or standards
a) In addition to the application requirements for a P.U.D. contained in
section
16-4, an application for a P.U.D. in any special district established
under article 7 of Chapter 25, Hawaii County Code, as amended, for
which design guidelines or standards have been adopted by the
Council, excluding any special district having adopted design
guidelines and/or standards established under Chapter 25, Hawai`i
County Code 1983 (2016 Edition, as amended), prior to adoption of
this rule, shall include:
1) Complete and accurate exterior elevations of all facades, drawn
at a scale adequate to show clearly the appearance of all
proposed buildings and structures;
2) A description of exterior siding, roofing and finish materials:
3) Exterior door and window specifications;
4) Description, location, and renderings for any exterior signage:
5) A streetscape rendering of the project site and adjacent
properties suitable for evaluating the immediate spatial
relationships. Photographic images may be substituted provided
those images are adequate to serve the same purpose; and
6) Other descriptive information as the director, on behalf of the
Commission, finds necessary to determine consistency of the
proposed project with the design guidelines and/or standards
adopted for the special district in which the project building site
is located.
b) The P.U.D. application and plans shall be subject to review and
comment by the design review committee established under the
respective special district section under article 7 of Chapter 25, Hawaii
County Code 1983 (2016 Edition, as amended), for consistency with
the adopted design guidelines and/or standards.
c) The director, on behalf of the Commission shall, within five days of
acceptance of a P.U.D. application, provide the respective design
16-3
review committee with a copy of the application and plans along with a
request for their review and comments on the consistency of the project
with the adopted design guidelines and/or standards.
d) The written recommendations and plans stamped "Reviewed by" with
the date and signature of the chair of the respective design review
committee affixed shall be submitted to the director on behalf of the
Commission within twenty-five calendar days of receipt by the design
review committee of the final plans for any approval of a P.U.D.
application.
e)
f)
g)
Except as otherwise provided in Section 16-5, the director shall
withhold providing a recommendation to the Commission on any
P.U.D. application until having received the written recommendations
and stamped and signed plans from the chair of the respective design
review committee fix the application.
By written request to the director on behalf of the Commission, the
chair of the respective design review committee may request an
extension of time to complete the design review and to submit the
recommendations of the design review committee which the Director
on behalf of the Commission may grant only with the written approval
of the applicant for P.U.D.
In the event that no design review committee is established, or if the
design review committee, for whatever reason, fails to respond within
the time limit prescribed in subsection (d), the director shall provide
design review against the relevant design guidelines and/or standards as
adopted by the Council.
16-6 Notice of filing and action on P.U.D. application and sign posting
The applicant shall serve notice on property owners and lessees of record of
the surrounding properties as follows and as provided by section 25-2-4,
Chapter 25, Hawai`i County Code 1983 (2016 Edition, as amended).
a) The applicant shall first serve notice of the filing of the application on
the surrounding owners and lessees within ten days after the Director
on behalf of the Commission has officially acknowledged receipt of the
application.
b) The applicant shall serve a second notice on the surrounding owners
and lessees of record 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 also serve notice on
owners and lessees of record of interests in other properties which the
16-4
c)
Commission may find to be directly affected by the
P.U.D. permit sought.
The notices shall include the following information:
1) Name of the applicant;
2) Precise location of the property involved, including tax map key
identification, location map and site plan;
3) Nature of the application and the proposed use of the property;
4) Date on which the application was filed with the Commission;
5) A form developed by the Planning Department that outlines the
contested case procedure and who qualifies (entitled "Petition
for Standing in Contested Case Hearing"). In addition, the
notice shall state that interested parties have a right to file a
written request for a contested case procedure;
6) A statement indicating that should the landowner or lessee
choose not to submit a written request for a contested case
procedure, they may express their support/opposition in writing
or by oral testimony at the Planning Commission public hearing
to be scheduled; and
7) Date, time and place that the scheduled public hearing will be
held to consider the application (to be included in the second
notice).
The applicant shall also post a sign for public notification on the
property as provided by section 25-2-12, Chapter 25, Hawai`i County
Code 1983 (2016 Edition, as amended).
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, Chapter 25, Hawaii
County Code 1983 (2016 Edition, as amended). An additional two
hundred fifty dollar processing fee shall be submitted by the applicant
for each hearing continued at the request of the applicant.
16-7 Procedure for processing application when use not permitted in district
An application for a P.U.D. permit that proposes a use not permitted either
directly or as a conditional use within a district may be considered by the
Commission only if a separate application for a change of zone is filed
16-5
concurrently with or prior to the P.U.D. permit application. The P.U.D. permit
application and the change of zone application shall be considered
concurrently, and any P.U.D. approved by the Commission shall be effective
only when the change of zone ordinance becomes effective.
16- 8 Actions by Commission on P.U.D. permit applications
a) Within ninety days after acceptance of a P.U.D. permit application or
within a longer time period as may be agreed to or requested by the
applicant, the Commission shall conduct a public hearing(s), and within
sixty days following the close of such public hearing(s), either deny or
approve the application, subject to conditions as imposed by the
Commission.
b) The conditions imposed by the Commission shall bear a reasonable
relationship to the P.U. D. permit issued, and to the approved uses and
plans of district standards; provided, however, that no improvements or
alterations off-site of the project shall be required as a condition of a
P.U.D. permit. The conditions may include, but are not limited to the
following:
1) Commencement and completion time frame for the project;
2) Boundary and density reallocations approved for the project,
which can include covenants or conservation easements to
preserve open space areas in perpetuity;
Uses that arc prohibited or limited;
Specifications for the minimum development standards;
Specifications for street improvement and dedication;
Utilities to be fumished;
The extent and limitations upon the uses permitted; and
Compliance with representations made by the applicant.
c) if the Commission fails to render a decision within the prescribed sixty
day period, the application shall be considered as being approved,
provided that no written objection to the P.U.D. permit application is
received by the Commission.
16-6
16-9 Criteria for granting a P.U.D. permit
A P.U.D. permit may be granted by the Commission upon finding that:
a) The construction of the project can begin and be completed within a
reasonable period of time from the date of approval.
b) The proposed development substantially conforms to the General Plan,
any adopted community development plan or adopted master plan and,
if applicable, any adopted design guidelines and/or standards affecting
the project area.
c) Any residential or agricultural development shall constitute an
environment of sustained desirability and stability for the district that is
in harmony with the character of the surrounding area, that results in an
intensity of land use no higher than that otherwise specified for the
district, and that maintains the standards of open space at least as high
as that otherwise specified for the district in which the development
occurs.
d) Any commercial development shall not create traffic congestion which
exceeds that which would have been produced under conventional
development patterns, practices and standards in the district or interfere
with any projected public improvements, shall provide for proper
entrances and exits along with proper provisions for internal traffic and
parking, and be an attractive center which docs not adversely impact
upon adjacent and surrounding existing or prospective developments.
c) Any industrial development shall be in conformity with desirable
performance standards and shall constitute an efficient and well
organized development with adequate provisions for freight service and
necessary storage, and shall not adversely impact upon adjacent and
surrounding existing or prospective development.
0 The development of a harmonious, integrated whole justifies
exceptions, if required, to the normal requirements of Chapter 23 and
Chapter 25, Hawai`i County Code 1983 (2016 Edition, as amended),
and the contemplated arrangements or use make it desirable to apply
regulations and requirements differing from those ordinarily applicable
under the district regulations.
16-10 Height exceptions authorized
a) A building approved under a P.U.D. permit may exceed the height limit
specified under the zoning district of the property and the height limits
under section 25-4-22; Chapter 25, Hawaii County Code 1983 (2016
16-7
Edition, as amended), provided, that the maximum height of the
building shall not exceed seventy-five feet.
b) A building approved under a P.U.D. permit and situated within a
zoning district which exceeds the height limits specified under
subsection (a) may be permitted at the higher height limits prescribed
for that zoning district.
16-11 Approvals issued under P.U.D. permit
a) No separate or additional permit or use permit, pursuant to Chapter 25,
Hawaii County Code 1983 (2016 Edition, as amended), shall be
required for any use approved under a P.U.D. permit, and any use
approved under a P.U.D. permit shall be considered to be in compliance
with the required procedures for obtaining a use permit.
b) Plan approval shall be considered issued when completed drawings are
approved under a P.U.D. pennit, and no further action is required for
the issuance of plan approval under Chapter 25 (Zoning Code), Hawai`i
County Code. Completed drawings shall include all of the detail and
requirements of plan approval as indicated in section 25-2-72, Hawai`i
County Code 1983 (2016 Edition, as amended).
16-12 Effect of P.U.D. permit on other zoning provisions
Any P.U. D. pennit issued shall be subject to all of the conditions imposed in
the pennit and shall be exempted from other provisions of Chapter 23 and
Chapter 25, Hawai i County Code 1983 (2016 Edition, as amended), only to
the extent specified in the pennit.
16- 13 Time extensions and amendments
a) A P.U.D. permit holder may apply to the Commission through the
Department for an amendment to a P. U.D. permit or to any condition or
conditions imposed therein.
b) In the case of time extensions, the P.U.D. permit holder shall file the
request not less than ninety days prior to the expiration date of the
applicable time condition or conditions setting forth:
1) The affected condition or conditions;
2) The length of time requested; and
3) The reasons for the request.
16-8
c)
If the Commission fails to act on a properly filed time extension request
prior to the expiration date, the activity granted under P.U.D. permit
may be continued unless the Commission specifically disallows the
activity during the interim period.
In the case of an amendment to the P.U.D. permit or to any addition
modification, and/or deletion of conditions of the P.U.D. permit, the
P.U.D. permit holder shall set forth in writing:
1) The affected condition or conditions;
2) The specific amendment or amendments requested; and
3) The reasons for the request.
d) Any such request shall be accompanied by a $250 filing and processing
fee, along with the original of the request.
e) The hearing and notice procedures and action shall be the same as
under sections 16-6 and 16-8 of this rule.
16- 14 Appeals
a) Any decision of the Commission so made within the context of this
article shall be appealable to the Third Circuit Court. The notice of
appeal shall be filed in the Third Circuit Court within 30 days after the
person desiring to appeal is notified of the decision or order, or of the
action taken in a manner provided by statute.
b) If a contested case hearing is held, a different appeal option is available.
Refer to Planning Commission Rule 4-32 for appeal procedures.
16-15 Revocation
a) A P.U.D. Permit may be revoked by the Director in the event that any
property owner who holds the permit sought to be revoked or any other
person, with the property owner's consent, submits a written statement
to the Director verifying that the development approved under the
permit issued has either not been established or has been abandoned.
b) A P.U.D. Permit may be revoked by the Commission in the event that:
1) The Director requests the revocation if:
A) There has been noncompliance with the conditions of
the permit; or
16-9
B) The use authorized under the permit is creating a threat
to the health or safety of the community.
2) The proceeding to revoke a P.U.D. 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.
16- 10
WINDWARD PLANNING COMMISSION
John R. Replogle, Chairman Date
LEEWARD PLANNING COMMISSION
Michael Vitousek, Chairman Date
Notice of Public Hearing:
Hawaii Tribune -Herald: June 15, 2021
West Hawaii Today: June 15, 2021
Date and Place of Hearing: July 15, 2021
Based on the Governor's Twenty -First Proclamation Related to the COV ID -19
Emcrgency dated June 7, 2021, this meeting was held online by interactive video
conference through Zoom. This is to prevent the spread of COVID-19 and to maintain
physical distancing.
APPROVED:
MAYOR, County of Hawaii
Date:
APPROVED AS TO FORM:
Deputy Corporation Counsel
Date:
I hereby certify that the foregoing amendments and revisions to the Hawaii County
Planning Commission Rules of Practice and Procedure was received and filed in my
office this day of , 2021.
County Clerk