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HomeMy WebLinkAbout2005-01-21 Planning Commission Agenda Rule NOTICE OF PUBLIC HEARINGS PLANNING COMMISSION COUNTY OF HAWAII NOTICE IS HEREBY GIVEN of public hearings to be conducted by the Planning Commission of the County of Hawaii in accordance with the provisions of Chapters 91 and 92, Hawaii Revised Statutes, Section 6-4.3 of the Charter of the County of Hawaii, and the Planning Commission’s Rules of Practice and Procedure. DATE:Friday, January 21, 2005 TIME:1:30 p.m. PLACE:King Kamehameha's Kona Beach Hotel, Kamakahonu Ballroom, 75-5660 Palani Road, Kailua-Kona, Hawaii The purpose of the public hearings is to afford all interested persons a reasonable opportunity to submit data, views, or arguments, orally or in writing, to the Planning Commission for consideration prior to the adoption of amendments to Rule 9 relating to Special Management Area. The amendments are being proposed to incorporate changes adopted by Act 169 and Act 76 of the 2001 and 2004 State Legislative Session, respectively, and for consistency with other applicable sections of Chapter 205A, Hawaii Revised Statutes. Minor housekeeping changes are also proposed. The rule also incorporates the consideration for native Hawaiian rights mandated by the court case of Public Access Shoreline Hawaii (“PASH”) v. Hawaii County Planning Commission and the case of Ka Pa’akai O Ka’Aina v. Land Use Commission. According to Rule 1 (General Rules) of the Planning Commission, a person desiring to submit oral or written testimony shall indicate her/his name; residence 1 address; and whether the testimony is on her/his behalf or as a representative of an organization or individual. If testimony is being submitted on behalf of an organization, documentation showing membership ratification should accompany the testimony. Written testimony shall be submitted with an original and nine copies prior to testifying. The Commission would appreciate timely submittal to the Planning Department at least one week prior to the hearing date to allow for mailing and thorough Commission review. The Chairperson pursuant to Rule 1 may limit testimony that is irrelevant or unduly repetitious. Besides certain housekeeping changes to Rule 9, the following amendments are proposed: (Note: Bracketed material to be deleted; new material underscored) 1.Section 9-4(8): Add definition of "cultural." "Cultural" pertains to traditional and customary practices and usage of resources to fulfill responsibilities and rights possessed and exercised by ahupuaa tenants who are descendants of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778. 2.Section 9-4(10)A(ii): Add the word "grubbing after "Grading." 3.Section 9-4(10)A(v): Add the word "demolition" after "reconstruction." 4.Section 9-4(10)B(iv): Add the word "underground" after "maintenance of." 5.Section 9-4(10)B(xv): Amend to read "Structural and non-structural improvements to existing single-family residences, [including additional dwelling units,] where otherwise permissible; and" 2 6.Section 9-4(10)D. Amend to read "Whenever the Director finds that any excluded use, activity, or operation [as excluded in paragraph B is or may become part of a larger project, the cumulative impact of which] may have a cumulative impact, or a significant adverse environment or ecological effect on the Special Management Area, that use, activity or operation shall be defined as 'development' for the purpose of [these Rules and Regulations] this rule." 7.Section 9-4(12): Amend definition as follows: "EIS" means an informational document prepared in compliance with Chapter 343, HRS, and the [Environmental Quality Commission's Rules and Regulations] the Hawaii Administrative Rules, Title II, Chapter 200 (Environmental Impact Statement Rules), and which discloses the environmental effects of a proposed action, effects of a proposed action on the economic [and] 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. 8.Section 9-4(15): Add definition of "Native Hawaiian Rights." "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. 9.Section 9-4(24): Amend definition to read as follows: 3 "Special Management Area Minor Permit" means an action by the Director authorizing development, the valuation of which is not in excess of $125,000 and which has no cumulative impact, or a substantial adverse environmental or ecological effect[, taking into account potential cumulative effects] on the Special Management Area. 10.Section 9-4(25): Amend definition to read as follows: "Special Management Area Use Permit: means an action by the Authority authorizing development, the valuation of which exceeds $125,000 or which may have a cumulative impact, or a substantial adverse environmental or ecological effect[, taking into account potential cumulative effects] on the Special Management Area. 11.Section 9-10 A: Amend as follows: The Department shall assess all uses, activities or operations proposed in the Special Management Area except in cases in which the applicant determines that the proposed use, activity or operation will: a) exceed $125,000 in valuation; or b) have a cumulative impact, or a significant adverse environmental or ecological effect on the Special Management Area. In this case, the assessment procedures may be waived and the applicant shall petition the Authority for a Special Management Area Use Permit pursuant to [Rule 9.11] Section 9-11. 12.Section 9-10 B: Amend as follows: For proposed uses, activities or operations [which] that are subject to an assessment, the applicant shall [be responsible for filing the following 4 with the Department:] submit to the Department a Special Management Area Assessment (SMAA) on a form prepared by the Department. The information on the SMAA form shall include, but not be limited, to the following: 13.Section 9-10 B 6 is replaced with the following: 6.A written description of the anticipated impacts of the proposed development on valued cultural, historical or natural resources on or in the vicinity of the property, to include: a.The identity and scope of valued cultural, historical, or natural resources in the area, including the extent to which traditional and customary native Hawaiian rights are exercised in the area; b.The extent to which those resources, including traditional and customary native Hawaiian rights, will be affected or impaired by the proposed action; and c.The feasible action, if any, to be taken to reasonably protect any valued cultural, historical or natural resources, including any existing traditional and customary native Hawaiian rights. 14.Section 9-10 B 9 (formerly 9-10 B 8) is amended as follows: A shoreline survey when the parcel abuts the shoreline, except [as may be waived by] that the Director may waive the submission of the survey when 5 the proposed development is clearly and unmistakably located on a shoreline parcel at a considerable distance from the shoreline. 15.Section 9-10 B 10 (new) is amended as follows: Identification of existing public access to and along the shoreline and whether the access is being used. 16.Section 9-10 D is amended as follows: The Director, within [twenty-one] thirty-five calendar days after the receipt of all filing requirements or within a longer period as may be agreed to by the applicant, shall notify the applicant in writing that: [a determination was made that the proposed use, activity or operation: 1.Does not constitute a development or is exempt from the definition of development; or 2.Requires a Special Management Area Minor Permit; or 3.Requires a Special Management Area Use Permit.] 1.The proposed use, activity or operation does not constitute a development or is exempt from the definition of development; or 2.A Special Management Area Minor Permit is being issued; or 3.A Special Management Area (Major) Use Permit is required. If the proposed use, activity, or operation is less than $125,000 in value and the Director fails to act within the [twenty-one] thirty-five calendar day period or within such longer period as may have been agreed to by the applicant, the proposed use, activity or operation 6 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 B through 9-11 D of this rule. 17.Section 9-10 G is amended as follows: The Director shall declare the proposed use, activity or operation exempt [from these Rules and Regulations] if it is found that the proposal is exempt under Section 9-4(10)B of this rule. 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 Special Management Area. 18.Section 9-10 I (new): SMA Short Form Assessment Application The Department may create a SMA short form assessment application for uses that may result in a determination that the proposed use is exempt, i.e., single family residence, minor grubbing, or accessory structures. The Department may allow the applicant to submit a short form assessment in lieu of a full assessment. The short form assessment application may include, but not be limited to the following information: 1.The tax map number for the property; 2.A plot plan of the property, drawn to scale, with all proposed and existing structures shown thereon; 3.Description of the proposed action, including the extent of land clearing, if any; 7 4.A statement of valuation; and 5.Description of any known historical sites, anchialine ponds, wetland, or sandy beach. In case of a single family residence, a Building Permit application could suffice as the short form assessment. The Director shall issue an exemption or require a full SMAA within ten working days of receipt of the short form assessment application or within a longer period as may be agreed to by the applicant. The Director may impose certain conditions with the exemption determination to assure that the proposed use, activity, or operation does not have a significant adverse effect on the SMA. If the Director does not issue an exemption or require a full SMAA, the applicant shall submit a full SMAA. 19.Section 9-11 A is amended as follows: An applicant who has received a determination that the proposed use, activity or operation does not conform to the requirements for a minor permit, or who has determined on its own that the proposed use, activity or operation will exceed $125,000 in valuation or will have a [substantial] cumulative impact, or a significant adverse environmental or ecological effect on the [environment] Special Management Area, shall apply to the Authority through the Director for a Special Management Area Use Permit. 20.Section 9-11 A 1: Change number of copies to "original and twenty copies." 8 21.Section 9-11 A 1 f (new): Amend as follows: A written description of the anticipated impacts of the proposed development on valued cultural, historical or natural resources on or in the vicinity of the property, to include: i.The identity and scope of valued cultural, historical or natural resources in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; ii.The extent to which those resources, including traditional and customary native Hawaiian rights, will be affected or impaired by the proposed action; and iii.The feasible action, if any, to be taken by the Authority to reasonably protect any valued cultural, historical or natural resources, including any existing traditional and customary native Hawaiian rights. 22.Section 9-11 A 1 i is amended as follows: A shoreline survey when the parcel abuts the shoreline, except [as may be waived by] 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; [and] 23.Section 9-11A 1 j is amended as follows (new): 9 Identification of existing public access to and along the shoreline and whether the access is being used ; and 24.Section 9-11 C 4 (new): 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. 25.Section 9-13 is amended as follows: [These Rules and Regulations] 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 [these Rules and Regulations] this rule, amendments thereto, or to the adoption of the 10 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. 26.Section 9-15 is amended as follows: A.Any person who violates any provision of this rule shall be liable for (1) a civil fine not to exceed [$10,000] $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 [$1,000] $10,000 a day for each day in which such violation persists. C.Any civil fine or other penalty provided under this rule may be imposed by the circuit court or by the Department after an opportunity for a hearing under chapter 91, HRS. 27.Section 9-20 A 2 is amended by increasing the filing fee to $250 for a Petition for the Adoption, Amendment or Repeal of Rule 9. Copies of the proposed amendments to Planning Commission Rule No. 9 relating to Special Management Area are also on file and open to inspection during office hours at the Planning Department, Aupuni Center, 101 Pauahi Street, Suite 3, Hilo, Hawaii and the West Hawaii Office of the Planning Department, 75-5706 Kuakini Highway, Kailua- Kona, Hawaii. 11 Any disabled person requiring special assistance or person requiring auxiliary aid and/or services to participate in the public hearings should contact the Planning Department at 961-8288 ten (10) working days prior to the hearing so that appropriate arrangements can be made. PLANNING COMMISSION Fred Galdones, Chairperson Hannah Springer, 1st Vice Chairperson C. Kimo Alameda, 2nd Vice Chairperson (Hawaii Tribune Herald:December 30, 2004) (West Hawaii Today: December 30, 2004) ((Honolulu Star Bulletin: December 30, 2004) (The Garden Island:December 30, 2004) (The Maui News:December 30, 2004) 12