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HomeMy WebLinkAboutPlanning Department Rules - Amended February 23, 2024COUNTY OF HAWAII PLANNING DEPARTMENT RULES OF PRACTICE AND PROCEDURE TABLE OF CONTENTS RULE 1. GENERAL RULES 1-1 Authority 1-2 Purpose 1-3 Definitions 1-4 Office 1-5 Communications 1-6 The Department 1-7 The Director 1-8 Public Records 1-9 Computation of Time RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES 2-1 Initiation of Rulemaking Procedures 2-2 Notice of Public Hearing 2-3 Conduct of Public Hearing 2-4 Action 2-5 Emergency Rulemaking 2-6 Filing of Rules 2-7 Taking Effect of Rules 2-8 Publication of Rules RULE 3. DECLARATORY RULINGS 3-1 Petitions for Declaratory Rulings 3-2 Request for Public Hearing 3-3 Notice of Public Hearing 3-4 Conduct of Hearing 3-5 Action 3-6 Status of Order RULE 4. GENERAL PLAN AMENDMENTS 4-1 Authority 4-2 Scope and Purpose of Amendments 4-3 Amendment Pursuant to Comprehensive Review 4-4 Interim Amendments to General Public and Property Owners 4-5 Council -Initiated Interim Amendments 4-6 Director -Initiated Interim Amendments RULE 5. ZONING AMENDMENTS 5-1 Authority 5-2 Amendments Proposed by Property Owners 5-3 Amendments Initiated by the Council and Director RULE 6. VARIANCES 6-1 Authority 6-2 Scope 6-3 Petition and Content 6-4 Incomplete Application 6-5 Notice 6-6 Grounds for Variances 6-7 Decision 6-8 Amendment of Conditions 6-9 Appeal RULE 7. PLANNED UNIT DEVELOPMENT 7-1 Authority 7-2 Purpose 7-3 Minimum Area Requirement 7-4 Petition, Form and Content 7-5 Incomplete Application 7-6 Notice 7-7 Grounds for PUD 7-8 Decision 7-9 Time Extensions 7-10 Other Amendment to Conditions 7-11 Appeals RULE 8. NONSIGNIFICANT ZONING CHANGES 8-1 Purpose and Authority 8-2 Definition 8-3 Request for Determination 8-4 Surrounding Property Owners' Notification 8-5 Criteria for Determination 8-6 Planning Director's Determination RULE 9. PROVISIONS FOR ENFORCEMENT OF ZONING CODE AND SPECIAL MANAGEMENT AREA 9-1 Authority and Purpose 9-2 Complaint and Investigative Procedures 9-3 Issuance of Order 9-4 Time Period for Compliance 9-5 Zoning Code Penalties 9-6 SMA Penalties 9-7 Civil Action 9-8 Property Liens 9-9 Other Legal Remedies RULE 10. GEOTHERMAL RELOCATION PROGRAM 10-1 Authority 10-2 Purpose 10-3 Criteria to Qualify for Geothermal Relocation Program 10-4 Procedures for the Purchase of the Affected Dwellings and Properties 10-5 Notification to Department of Finance 10-6 Creation of a Geothermal Royalty Fund 10-7 Expenditures from Geothermal Royalty Fund 10-8 Severability RULE 11. SHORELINE SETBACK 11-1 Authority 11-2 Purpose 11-3 Definitions 11-4 Shoreline Certification, Exceptions and Waivers 11-5 Minimum Shoreline Setback Line 11-6 Structures and Activities Prohibited within the Shoreline Setback Area 11-7 Structures or Activities Permitted within the Shoreline Setback Area 11-8 Determination of Minor Structure and Minor Activity 11-9 Shoreline Setback Variance Application 11-10 Compliance with Environmental Impact Statement Regulations (Chapter 343, HRS) 11-11 Waive of Public Hearing and Action 11-12 Enforcement 11-13 General Enforcement Procedures 11-14 Penalties 11-15 Appeals 11-16 Severability RULE 12. `OHANA DWELLING UNITS 12-1 Authority 12-2 Purpose 12-3 Definitions 12-4 General Provisions 12-5 Eligibility 12-6 Non -applicability 12-7 Designation of the `Ohana Dwelling Unit 12-8 Requirements for Height, Building Site Area (Lot size) and Off -Street Parking 12-9 Other Requirements 12-10 Variances 12-11 Petition and Content 12-12 Incomplete Application 12-13 Agencies Review 12-14 Decision 12-15 Appeal of Decision 12-16 Building Permit 12-17 Non -transferability 12-18 Prohibition of Advertising, Sales, Transfers 12-19 Revocations 12-20 Pending Applications RULE 13. FARM DWELLINGS 13-1 Authority 13-2 Purpose 13-3 Definitions 13-4 General Provisions 13-5 Petition for a Farm Dwelling Agreement 13-6 Agencies Review 13-7 Decision on Farm Dwelling Agreement 13-8 Contents of Farm Dwelling Agreement 13-9 Appeal of Decision RULE 14. COUNTY ENVIRONMENTAL REPORTS 14-1 Authority 14-2 Purpose 14-3 Definitions 14-4 General Provisions 14-5 County Environmental Report - Content and Requirements 14-6 Public Notification of County Environmental Reports 14-7 Public Review of County Environmental Reports RULE 15. rROJECT DISTRICTS 15-1 Authority 15-2 Purpose 15-3 Minimum Land Area Required 15-4 Permitted Uses 15-5 Application and Requirements 15-6 Review and Approval of Site Plans 15-7 Review Criteria and Conditions of Approval 15-8 Construction in Conformity with Approved Site Plans 15-9 Plan Approval Issued by Approval of Site Plans 15-10 Amendments 15-11 Appeal of Director's Action on Project District Site Plans RULE 16. AGRICULTURAL PROJECT DISTRICTS 16-1 Authority 16-2 Purpose 16-3 Minimum Land Area Required 16-4 Permitted Uses; Overall Density 16-5 Application and Requirements 16-6 Review and Approval of Site Plans 16-7 Review Criteria and Conditions of Approval 16-8 Construction in Conformity with Approved Site Plans 16-9 Plan Approval Issued by Approval of Site Plans 16-10 Amendments 16-11 Appeal of Director's Action on Project District Site Plans RULE 17. LANDSCAPING REQUIREMENTS 17-1 Authority and Applicability 17-2 Purpose 17-3 Definitions 17-4 Submittal Requirements 17-5 Review and Approval Procedure 17-6 Landscape Standards 17-7 Plant Material and Installation Standards 17-8 Maintenance Standards; Irrigation Requirements RULE 18. DE MINIMIS STRUCTURE POSITION DISCREPANCY 18-1 Authority 18-2 Purpose and Findings 18-3 Definition 18-4 Procedure for Recognizing a De Minimis Structure Position Discrepancy 18-5 Review by Director 18-6 Grounds for Approval or Denial 18-7 Recognition of De Minimis Structure Position Discrepancy 18-8 Disclosure 18-9 Appeals RULE 19. PRE-EXISTING LOTS BASED UPON LEASES 19-1 Purpose 19-2 Authority 19-3 Definition 19-4 Requirements for Pre-existing Lots Based Upon Leases 19-5 Proof 19-6 Applicability RULE 20. CONSOLIDATION AND RESUBDIVISION 20-1 Purpose 20-2 Authority 20-3 Definitions 20-4 Use of Certain Pre-existing Lots in Consolidation and Resubdivision 20-5 Applicability RULE 21. PUBLIC ACCESS USAGE 21-1 Authority 21-2 Purpose 21-3 Definitions 21-4 Applicability 21-5 Use of Public Access 21-6 Activities Prohibited Within the Public Access 21-7 Access By Permit 21-8 Public Access Where Motorized Vehicles are Allowed 21-9 Conflicts Between Transportation Modes 21-10 Enforcement 21-11 Appeal 21-12 Conflicting Rules RULE 22. WATER VARIANCE 22-1 Purpose and Authority 22-2 Findings 22-3 Eligibility 22-4 Minimum Rainfall 22-5 Maximum Number of Lots 22-6 Exceptions for Large Lot Subdivisions 22-7 No Further Subdivision by Water Variance Allowed 22-8 Water Tanks Required 22-9 Support for Future Water Improvements Required RULE 23. SHORT-TERM VACATION RENTALS 23-1 Authority 23-2 Purpose 23-3 Definitions 23-4 Zoning Districts 23-5 Standards 23-6 Within Permitted Zoning Districts 23-7 Outside of Permitted Zoning Districts 23-8 General Provisions 23-9 Incomplete STVR Registration Form/NUC Application 23-10 Decision 23-11 STVR Registration 23-12 Nonconforming Use Certificate 23-13 Nonconforming Use Certificate Renewal 23-14 Appeals 23-15 Amendments 23-16 Enforcement APPENDIX A PLANNING DEPARTMENT RULES (EXISTING) Rule 1. General Rules Adopted: June 20, 1984 Amended: July 26, 2021 Rule 2. Petition for Adoption, Amendment or Repeal of Rules Adopted: June 20, 1984 Amended: July 26, 2021 Rule 3. Declaratory Rulings Adopted: June 20, 1984 Amended: July 26, 2021 Rule 4. General Plan Amendments Adopted: June 20, 1984 Amended: July 26, 2021 Rule 5. Zoning Amendments Adopted: June 20, 1984 Amended: July 26, 2021 Rule 6. Variances Adopted: June 20, 1984 Amended: July 26, 2021 Rule 7. Planned Unit Development Adopted: June 20, 1984 Amended: July 26, 2021 Rule 8. Nonsignificant Zoning Changes Adopted: July 28, 1993 Amended: July 26, 2021 Rule 9. Provisions for Enforcement of Zoning Code and Special Management Area Adopted: June 3, 1996 Amended: July 26, 2021 Rule 10. Geothermal Relocation Program Adopted: July 8, 1996 Amended: July 26, 2021 Rule 11. Shoreline Setback Adopted: January 19, 1997 Amended: February 23, 2024 Rule 12. ʻOhana Dwelling Units Adopted: August 19, 1996 Amended: July 26, 2021 APPENDIX A PLANNING DEPARTMENT RULES (EXISTING) Rule 13. Farm Dwellings Adopted: April 4, 1977 Amended: July 26, 2021 Rule 14. County Environmental Reports Adopted: April 14, 1997 Amended: July 26, 2021 Rule 15. Project Dictricts Adopted: May 4, 1998 Amended: July 26, 2021 Rule 16. Agricultural Project Districts Adopted: May 4, 1998 Amended: July 26, 2021 Rule 17. Landscaping Requirements Adopted: August 15, 1998 Amended: July 26, 2021 Rule 18. De Minimis Structure Position Discrepancy Adopted: April 6, 2002 Amended: July 26, 2021 Rule 19. Pre-existing Lots Based Upon Leases Adopted: March 28, 2002 Amended: July 26, 2021 Rule 20. Consolidation and Resubdivision Adopted: May 24, 2002 Amended: July 26, 2021 Rule 21. Public Access Usage Adopted: January 18, 2005 Amended: July 26, 2021 Rule 22. Water Variance Adopted: February 15, 2006 Amended: July 26, 2021 Rule 23. Short-Term Vacation Rentals Adopted: April 9, 2019 Amended: July 26, 2021 1-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 1. GENERAL RULES 1-1 Authority The rules hereinafter contained are established pursuant to the authority of Section 5-4.2 and Section 13-7 of the Charter of the County of Hawaiʻi, and Chapter 91, Hawaii Revised Statutes. 1-2 Purpose These rules govern the practice and procedure before the Planning Department of the County of Hawaiʻi and its Planning Director. 1-3 Definitions As used in these rules, except as otherwise recognized by context: (1) "Board" means the Board of Appeals of the County of Hawaiʻi. (2) "Commission" means the Planning Commission of the County of Hawaiʻi. (3) "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 other subsequent ten-year reviews. (4) "Council" means the County Council of the County of Hawaiʻi. (5) “Copy or copies” means both physical media or electronic media. (6) Department" means the Planning Department of the County of Hawaiʻi. (7) "Director" means the Director of the Planning Department of the County of Hawaiʻi. (8) “Document” means a form, letter, or other method of written communication and includes electronic communication such as electronic mail, etc. (9) Environmental assessment" means a written evaluation to determine whether an action may have a significant environmental effect. (10) "Environmental impact statement" means an information document 1-2 Planning Department Rules of Practice & Procedure prepared in compliance with Chapter 343, Hawaiʻi Revised Statutes, and the Environmental Quality Commission's Rules and Regulations, and which discloses the environmental effects of a proposed action, effects of a proposed action on the economic and social welfare 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 (11) "General Plan" means the County of Hawaiʻi General Plan adopted as Ordinance No. 439 on December 15, 1971, and all subsequent amendments thereof, codified as Chapter 16, Hawaiʻi County Code 1983 (2016 Edition, as amended). It is the policy document for the long-range comprehensive development of the island of Hawaiʻi. (12) "Interim amendments" means amendments to the General Plan proposed by a property owner, the general public, Council or Director at any time other than during the comprehensive review period. (13) “Intervenor” means a person who petitions to intervene in a contested case proceeding and is admitted as a party. (14) "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. (15) "Public Records" means any written or printed report, book or paper, map or plan of the Department, which is the property thereof, and in or on which an entry has been made or is required to be made by law, or which the Department has received or required to receive for filing but shall not include records which invade the right of privacy of an individual. (16) “Signature” means either an original signature scanned into a format prescribed by the Director or an electronic signature. (17) "Variance" means a deviation from a specific requirement of Chapter 25 (Zoning Code), and Chapter 23 (Subdivision Control Code). (18) "Zoning amendments" means changes to the boundaries of the zoning districts or changes to any other provisions of Chapter 25. 1-4 Office The office of the Department is at Hilo and Kona, Hawaiʻi. 1-5 Communications Any communication to the Planning Department shall be addressed to the Planning Director, Planning Department, submitted electronically to 1-3 Planning Department Rules of Practice & Procedure planning@hawaiicounty.gov unless otherwise directed. 1-6 The Department The Department consists of the Director, the Commission, and the necessary staff. 1-7 The Director The Director is the administrative head of the Department and shall: (1) Serve as the chief planning officer of the County and the technical advisor to the Mayor, Commission, and Council on all planning and related matters. (2) Prepare a general plan and other implementation documents, i.e., community development plans, area improvement plans, and amendments thereto to guide the development of the county. (3) Prepare proposed zoning and subdivision ordinances, zoning maps and regulations and any amendments or modifications thereto. (4) Review the lists of proposed capital improvements contemplated by agencies and executive agencies of the county and recommend the order of their priority. (5) Be charged with the administration of the subdivision and zoning ordinances and regulations adopted thereunder. (6) Be charged with the approval of proposed subdivision plans which are in conformity with the subdivision ordinance and regulations. (7) Receive, process, and recommend to the Commission appropriate action regarding rezoning applications, special exceptions, and other similar requests. (8) Be charged with the approval of variances as provided by law. (9) Exercise all the powers and perform all the duties of the Director and the administrator of the Commission as authorized by law or ordinance and exercise such other powers and perform such other duties as shall be required or delegated by the Mayor, Commission, or Council. (10) Provide administrative-support services to the Board. 1-8 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, 1-4 Planning Department Rules of Practice & Procedure 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 with- held 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 any person. Copies of records printed or reproduced for persons other than governmental agencies shall be given to any person, provided that the fees or costs prescribed in the Hawaiʻi County Code are paid. 1-9 Computation of Time In computing any period of time under these rules, by notice, or by any order or rule of the Department, 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. 2-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES 2-1 Initiation of Rulemaking Procedures (a) The Director may, at any time, initiate proceedings for the adoption, amendment, or repeal of any rule of the Department. Procedures to be followed in rulemaking shall be as set forth in these rules. (b) Any interested person may petition the Director for the adoption, amendment, or repeal of any rule of the Department. Such petitions shall contain: (1) A non-refundable filing and processing fee of one hundred dollars; (2) The name, address, telephone number, if available, and signature or electronic 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 Director 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 Director. The Director shall notify the petitioner in writing of such denial, stating the reasons thereof. Denial of the petition shall not operate to prevent the Director from acting, on this own motion, on any matter disclosed in the petition. Petitioner may seek review of the denial through the Board. (e) If the Director determines that the petition is in order and that it discloses sufficient reasons in support of the proposed rulemaking proceedings, the Director shall conduct rulemaking proceedings in accordance with Section 2-2 of this rule. 2-2 Planning Department Rules of Practice & Procedure 2-2 Notice of Public Hearing (a) When, pursuant to a petition therefor or upon his own initiation, the Director 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 mailed or electronically mailed to all persons who have made timely written requests for advance notice of the Department'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: (1) The date, time, and place where the public hearing will be held and where interested persons may be heard on the proposed rule adoption, amendment, or repeal; (2) A statement of the topic of the proposed rule adoption, amendment, or repeal or a general description of the subjects involved; (3) A statement that a copy of the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed will be mailed or electronically mailed to any interested person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where and how the requests may be made; and (4) A statement of when, where, and during what times the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed may be reviewed in person. 2-3 Conduct of Public Hearing (a) The public hearing for the adoption, amendment, or repeal or any rule shall be presided over by the Director or his authorized representative. 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. The presiding officer shall have authority to administer oaths or affirmations and to take all other actions necessary for the orderly conduct of the hearing. (b) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Testimony shall then be received with respect to the matters specified in the notice of hearing in such order as the presiding officer shall prescribe. 2-3 Planning Department Rules of Practice & Procedure (c) 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 presiding officer. (d) Unless otherwise specifically ordered by the presiding officer, 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 presiding officer to be authentic and relevant, shall be received and made a part of the record. 2-4 Action The Director 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 Director finds that an imminent peril to the public health, safety, or morals, to livestock and poultry health, or to natural resources 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 or upon such abbreviated notice and hearing, including posting the abbreviated notice and hearing on the Internet, as it finds practicable to adopt an emergency rule to be effective for a period of not longer than one hundred twenty days without renewal. 2-6 Filing of Rules The Director, 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 adopted pursuant to Section 91-3(b) Hawaiʻi Revised Statutes (HRS) shall become effective upon filing with the County Clerk, for a period of not longer than one hundred twenty days without renewal unless extended in compliance with Section 91-3(b) HRS if the Director finds that immediate adoption of the rule is necessary because of imminent peril to the public health, safety, or morals, or to natural resources. The Director's finding and brief statement of the reasons therefor shall be incorporated in the rule as filed. The Director shall make an emergency rule adopted pursuant to Section 91-3(b) HRS known to persons who will be affected by it by publication at least once in a newspaper of general circulation in the State for state 2-4 Planning Department Rules of Practice & Procedure agencies and in the county for county agencies within five days from the date of filing of the rule; and An emergency rule adopted pursuant to Section 91-3(c) HRS shall become effective upon filing with the County Clerk, and shall be effective until no later than adjournment sine die of the next regular legislative session following adoption of the emergency rule. The Director's finding and brief statement of the reasons therefor shall be incorporated in the rule as filed. The Director shall make an emergency rule adopted pursuant to Section 91-3(c) HRS known to persons who will be affected by it by publication at least once in a newspaper of general circulation in the State for state agencies and in the county for county agencies within five days from the date of filing of the rule. 2-8 Publication of Rules The Director shall, as soon as practicable, compile, index, and publish all rules adopted by the Director and remaining in effect. Compilations shall be supplemented as often as necessary and shall be reviewed at least once every ten years. 3-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 3. DECLARATORY RULINGS 3-1 Petitions for Declaratory Rulings (a) On petition of an interested person, the Director may issue a declaratory order as to the applicability of any statutory provision, ordinance, or of any rule or order of the Director or the Department. (b) Petition for a declaratory ruling shall contain: (1) A non-refundable filing and processing fee of one hundred dollars; (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; and (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 Director 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 Director, in his 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 Director, the hearing shall be conducted in accordance with Section 3-3 of this rule. 3-2 Planning Department Rules of Practice & Procedure 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 to all persons who have made timely written requests for advance notice. The notice shall be published at least ten 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 presided over by the Director or his authorized representative. 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. The presiding officer shall have authority to administer oaths or affirmations and to take all other actions necessary for the orderly conduct of the hearing. (b) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Testimony shall then be received with respect to the matters specified in the notice of hearing in such order as the presiding officer shall prescribe. (c) 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 presiding officer. (d) Unless otherwise specifically ordered by the presiding officer, 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 presiding officer to be authentic and relevant, shall be received and made a part of the record. 3-5 Action The Director 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 Director or Department 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. 4-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 4. GENERAL PLAN AMENDMENTS 4-1 Authority This rules governs General Plan Amendment procedures before the Director pursuant to Ordinance Nos. 89-142 and 90-17,Chapter 16, Hawaiʻi County Code 1983 (2016 Edition, as amended). 4-2 Scope and Purpose of Amendments 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 an amendment would assure the coordinated development of the County and the general welfare and prosperity of its people. 4-3 Amendment Pursuant to Comprehensive Review (a) Within forty-five days of a ten-year lapse from the date of adoption of the General Plan, the Planning Director shall upon notification to the County Council, initiate the comprehensive review of the General Plan. (b) The scope of the comprehensive review shall include, but not be limited to the following: (1) Basic elements of General Plan. (2) Goals, policies, standards and courses of actions of the various elements. (3) Land use designations of the land use pattern allocation guide (LUPAG) map. (4) Facilities map. (5) Urban land use pattern acreage and zoning acreage allocations. (c) The Director shall give notice of the comprehensive review to the County Council, Planning Commission and the general public by filing a notice in a newspaper of general circulation within the County. The notice shall state, but not be limited to the following: (1) Purpose; 4-2 Planning Department Rules of Practice & Procedure (2) Scope: (3) The ability for the public and County Council to provide input to the Planning Director within 45 days after the date of the notification. (d) Upon receipt of suggestions from the public, the Planning Director shall review the General Plan, including the suggestions for change. Within 90 days, the Planning Director may propose draft amendments, and shall give notification of the amendments to the County Council and the public. (e) Within 30 days of notification of proposed amendments, the Planning Director shall conduct a public workshop on the proposed amendments prior to submitting it to the Planning Commission, and shall allow the public an opportunity to provide comments on the proposed amendments through an additional 30 day period. (f) Within 30 days of the completion of the public review period, the Planning Director shall initiate and forward proposed amendments to the Planning Commission for its review and recommendation. (g) Within sixty days of receipt of the Planning Director's proposed amendments, the Planning Commission shall hold a public hearing on the proposed amendments. During the hearing and based on public testimony received, the Planning Commission may request the Planning Director to consider specific modification to any proposed amendment or to initiate within sixty days any new proposed amendment. If the Planning Director modifies a proposed amendment or initiates a new proposed amendment upon the Planning Commission's request, the Planning Commission shall hold further hearing on such matters, together with any proposed amendment originally submitted. Within sixty days of the conclusion of the public hearing, the Planning Commission shall submit to the Council its comments and recommendation on any proposed amendment initiated by the Planning Director. (h) The County Council shall review the Planning Commission's recommendation and act on the Planning Directors' proposals. The County Council shall request the Planning Director to consider its specific modifications to any proposed amendment or to initiate a new proposed amendment. Within 60 days of the request, the Planning Director shall forward to the Planning Commission either a recommendation for a denial, modification to a proposed amendment or shall initiate the new proposed amendment. (i) A public hearing on the proposed revisions and/or recommendations by the Planning Director shall be conducted by the Planning Commission within 60 days of its receipt from the Planning Director. Within 60 days of the closing of the public hearing, the Planning Commission shall forward the Director's 4-3 Planning Department Rules of Practice & Procedure proposed modifications, amendments, and recommendation together with its recommendations to the County Council. (j) Failure by the Planning Director or the Planning Commission to respond within the designated time period shall not preclude the Council from acting on its pro- posed amendments. (k) During the comprehensive General Plan review, the Planning Director may defer action to any interim amendment petition to amend the General Plan and on any request to study a proposed General Plan amendment submitted by the County Council. However, any deferral by the Planning Director shall not extend beyond a period of one year and, in any case, shall not extend beyond the completion date of the comprehensive review. 4-4 Interim Amendments by General Public and Property Owners (a) Members of the general public may propose amendments to the General Plan goals, policies and standards by filing a written petition with the Planning Director. (b) In addition, a property owner may propose an amendment to the land use pattern allocation guide map covering land held by that property owner. For this purpose, "property owner" means a person having an interest in title to the affected land. It also includes the holder of a lease interest in the affected land, which such lease interest is not due to expire until after ten years following the date of the petition. (c) A petition to amend the General Plan shall be filed with the Director and shall include: (1) A non-refundable filing and processing fee of one hundred dollars. (2) Original of: (A) Application form; (B) Statement of the nature of the petitioner's interest; (C) Draft of the language of the proposed amendment; (D) Environmental assessment; (E) Statement of the reasons for granting the proposed change, supported by written, documented analysis of the General Plan and using all pertinent elements upon which the General Plan is based; and 4-4 Planning Department Rules of Practice & Procedure (F) Graphs, plot plan, and other supportive information. (3) In the case of a petition by a lessee, a letter of authorization from the owner of the affected property if not held in fee by the petitioner. (d) The Director shall neither accept nor process an application which is incomplete as to form and content. (e) Upon receipt of a completed petition, the Director shall prepare an environmental assessment in accordance with the requirements of Chapter 343, Hawaii Revised Statutes and the regulations of the Environmental Quality Commission. Upon compliance of the entire procedures of chapter 343, HRS, and the regulations of the Environmental Quality Commission, the Director shall officially accept the petition as being complete and properly filed. (f) Upon acceptance of the properly filed and completed petition, the Director shall have one hundred eighty days in which to study the petition and take one of the following actions: (1) Recommend the approval of the petition stating the reasons for such approval; or (2) Recommend the denial of the petition stating the reasons for such denial. (g) In the case where the Director recommends denial of a petition, if the Council does not act to consider the petition upon a two-thirds vote of its entire membership within thirty days upon receipt of the Commission's recommendation, the Director shall certify the petition to be officially denied. (h) If a petition is officially denied, the same or a substantially similar petition may not be submitted for consideration within one year following such denial, unless the petitioner submits significant new data or additional reasons which the Director may find to be a sufficient basis for the petition to be considered. 4-5 Council Initiated Interim Amendments (a) The Council may, by resolution, request the Director to conduct a study to determine the feasibility of a proposed amendment. (b) Upon receipt of the resolution, the Director shall have one hundred eighty days or a longer period, as may be agreed to by the Council, to submit a completed feasibility study to the Council. (c) Upon receipt of the feasibility study, the Council has sixty days to review and act on the study. The Council may, by resolution, direct the Director to initiate the proposed amendment. 4-5 Planning Department Rules of Practice & Procedure (d) The Director shall initiate and transmit the proposed amendment, with his recommendation, to the Council through the Commission. (e) If the Council does not direct the Director to initiate the proposed amendment, the same or substantially similar proposal may not be considered within one year following the end of the Council's sixty-day review. 4-6 Director-Initiated Interim Amendments The Director may initiate proposed amendments to the General Plan in accordance with the following procedures: (a) The Director shall provide notice of the proposed amendment to the Commission, Council and the general public. The notice shall state: (1) A description of the proposed amendment; (2) The ability for the public and Council to provide their input to the Director within 45 days after the date of the notification. (b) The Director, upon completion of the review, shall submit the proposed amendment to the Council through the Commission. 5-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 5. ZONING AMENDMENTS 5-1 Authority This rule governs zoning amendments before the Director pursuant to Section 6-7.2 of the County Charter and Chapter 25 (Zoning Code), Hawaii County Code 1983 (2016 Edition, as amended). 5-2 Amendments Proposed by Property Owners (a) A petition for a zoning amendment shall be filed with the Director and shall include: (1) A non-refundable filing and processing fee of one hundred dollars. (2) Original of: (A) Application form; (B) A description of the property in sufficient detail to determine its precise location; (C) A plot or site plan of the property, drawn to scale, with all existing and proposed uses and/or structures shown thereon; (D) A statement as to how the zoning amendment would be consistent with applicable goals, policies, standards and courses of action of the General Plan and adopted community development plans and area improvement plans; and (E) Environmental assessment for amendments involving the construction of hotel and/or condominium developments. (3) A copy of the appropriate questionnaire. (A) The Director shall neither accept nor process an application which is incomplete as to form and content. (B) Within two hundred forty days after the filing and official receipt of a properly completed application or such longer period as may be agreed to by the petitioner, the Director shall 5-2 Planning Department Rules of Practice & Procedure act upon the application to deny it or recommend its approval to the Council, through the Commission. In the event that action is not taken by the director within the time prescribed, the application shall be certified as being denied. (C) In the event the Director recommends approval of the application, the application shall be forwarded to the Council with the approval of the Mayor through the Commission. The Director may recommend appropriate conditions of approval which would further the intent of chapter 25, the General Plan, and other related ordinances and documents. (D) In the event the Director denies the application, the petitioner may appeal the Director's decision in writing to the Commission. 5-3 Amendments Initiated by the Council and Director (a) Any amendment initiated by the Council or by the Director shall be prepared by the Director. (b) The Director shall study the proposed amendment and shall submit a recommendation to the Commission for its review and recommendation to the Council. Cross-reference: Article 2, Division 4, Amendments., Zoning Code Rule 11. ZONING AMENDMENTS, Planning Commission Rules of Practice & Procedure 6-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 6. VARIANCES 6-1 Authority This rule governs variance procedures before the Director pursuant to Section 6-7.2 of the County Charter and Chapters 25 (Zoning Code) and 23 (Subdivision Control Code), Hawaiʻi County Code 1983 (2016 Edition, as amended). 6-2 Scope Variances from the provisions of Chapters 23 and 25 may be granted by the Director; provided that a variance shall not allow the introduction of a use not otherwise permitted within a zoned district; and provided further that a variance shall not primarily effectuate relief from applicable density limitations. 6-3 Petition and Content A petition for a variance shall be filed with the Director and shall include: (1) A non-refundable filing and processing fee of one hundred dollars. (2) Original of: (a) Application form; (b) A statement of the variance sought; (c) A statement of the reasons for the granting of the variance utilizing the criteria established under Section 6-6 of this rule; (d) A description of the property in sufficient detail to determine the precise location of the property involved; and (e) A plot plan, drawn to scale, with all existing and proposed structures or improvements shown thereon. (3) Written approval of the landowner if petitioner is not the same. (4) A list of the names and addresses of all owners of property interest in property within three hundred feet of the perimeter of the property involved. 6-2 Planning Department Rules of Practice & Procedure 6-4 Incomplete Application The Director shall neither accept nor process an application which is incomplete as to form and content. 6-5 Notice (a) Upon receipt and acceptance of a properly filed and completed application, the Director shall fix a date for consideration of the application. (b) At least ten calendar days prior to the date of the Director's consideration of the application, the Director shall publish a notice of the application in a newspaper of general circulation in the County which includes the following: (1) Name of the petitioner; (2) The precise location of the property involved; (3) Nature of the use being sought and the proposed accompanying structures, if any; (4) Date on which the Director will consider the application; and (5) That such date is the deadline for the Director's actual receipt of written comments on the application. (c) Within three working days after receiving notice of the date that the Director will be considering the application, the petitioner shall serve notice of the application on owners of interests in properties within three hundred feet of the perimeter boundary of the property involved and to owners of interests in other properties which the Director may find to be directly affected by the variance sought. Such notice shall include all of the information as stated under Section 6-5 (b) of this rule. (d) Prior to the deadline for written comment, the petitioner shall submit to the Director 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. 6-6 Grounds for Variances The Director shall not approve a variance unless it is found that: (1) There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or petitioner of substantial property rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; 6-3 Planning Department Rules of Practice & Procedure (2) There are no other reasonable alternatives that would resolve the difficulty; and (3) The variance shall be consistent with the general purpose of the district, the intent and purpose of the affected chapters and the General Plan, and will not be materially detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties. 6-7 Decision (a) Within sixty days after the filing of a proper application or within a longer period as may be agreed to by the petitioner, the Director shall deny the application or approve it subject to conditions. The conditions imposed by the Director shall bear a reasonable relationship to the variance granted. (b) All actions shall contain a statement of the factual findings supporting the decision. (c) If the Director fails to act within the prescribed period, the application shall be considered as having been denied. 6-8 Amendment of Conditions (a) The petitioner may apply with the Director for an amendment to the condition(s) imposed by a variance permit. (b) The petitioner shall set forth in writing: (1) The affected condition; (2) The specific amendment requested; and (3) The reasons for the request. (c) Within forty-five days from the date of receipt of the request for an amendment, the Director shall either approve or deny the request. (d) If the Director fails to act within the prescribed period, the request shall be considered as having been denied. 6-9 Appeal The Director's decision is appealable to the Planning Commission. Cross-reference: Article 2, Division 5, Variances., Zoning Code 7-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 7. PLANNED UNIT DEVELOPMENT 7-1 Authority This rule governs Planned Unit Development (PUD) procedures before the Director pursuant toArticle 21, Chapter 25 Zoning Code, Hawaiʻi County Code 1983 (2016 Edition, as amended). 7-2 Purpose The purpose of PUD is to encourage comprehensive site-planning production of optimum adaptation of development to the land by allowing diversification in the relationship 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 is observed. 7-3 Minimum Area Requirement The minimum area of a PUD shall be ten acres. 7-4 Petition, Form and Content (a) A petition for a PUD shall be filed with the Director and shall be accompanied by a non-refundable filing and processing fee of one hundred dollars. (b) The petitioner shall include the original of: (1) The application form; (2) A written description of the proposed project including, but not limited to: (A) A statement of objectives and reasons for the request. (B) Any request for deviations or variances from the requirements of Chapter 25 (Zoning Code) and Chapter 23 (Subdivision Control Code); (C) A schedule of development timetable; (D) How the proposed development substantially conforms to the General Plan; 7-2 Planning Department Rules of Practice & Procedure (E) If applicable, how the proposed residential development will constitute an environment of sustained desirability and stability, will be in harmony with the character of the surrounding neighborhood, and will result in an intensity of land utilization no higher than and standards of open space at least as high as permitted or as otherwise specified for the zoned district in which this development occurs; (F) If applicable, how the proposed commercial development will not create any traffic congestion; not interfere with any projected improvements; provide for proper entrances and exits along with proper provisions for internal traffic and parking; and be an attractive center with no adverse effect upon the adjacent and surrounding existing or prospective development; (G) If applicable, how the proposed industrial development will be in conformity with desirable performance standards; constitute an efficient and well organized development with adequate provisions for freight service and necessary storage; and have no adverse effects upon adjacent and surrounding existing or prospective development; and (H) How the development of a harmonious, integrated whole justifies exceptions, if required, to the normal requirements of Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended), and that the contemplated arrangements or use make it desirable to apply regulations and requirements differing from those ordinarily applicable under the district regulations. (3) Drawings and plans comprising a general development plan covering the entire area of the PUD and including, where applicable: uses, dimensions and locations of proposed structures; widths, alignments and improvements of proposed streets, pedestrian and drainage ways; how the property could be divided for individual parcel sale; parking areas; public uses; and land­ scaping and open spaces; and (4) Architectural drawings for all buildings other than single family dwellings, demonstrating the design and character of the proposed buildings and uses. (c) For a request which includes additional building height, the petition shall also include sketches and drawings establishing a view plane from the upper side of the site, line of sight from the site property lines, desirable backdrop of the building site and an absolute maximum building height. The components and regulations are as follows: 7-3 Planning Department Rules of Practice & Procedure Concept Component Regulation Mauka View Plane A The building does not penetrate a horizontal plane fifty- five feet above the lowest natural elevation point along the frontage or rear lot line, which ever is higher. Side Yard Lines of Sight B The building does not penetrate the thirty degree angle inclined envelopes measured from the horizontal, the vertex of which angles are located along the side lot lines. Building Backdrop C The building height does not exceed the sum of fifty- five feet plus one-half of the difference in the elevation between the frontage and rear lot line of the parcel. This last quantity to be computed by utilizing the difference between the lowest elevation on the frontage and the highest elevation on the rear lot line or vice versa, whichever difference is higher. Absolute Maximum Height D The height of the building may exceed the district height limitations up to a maximum building height of seventy- five feet or six stories. To get the additional height, the site must provide a lower backdrop for the building. Thus, between the lower and upper property lines, there must be a substantial change in elevation. Buildings on flat sites would be limited to three stories or forty-five feet. Buildings on sites with limited change with a variance would be limited to four stories or fifty-five feet or within such limitation provided by ordinance, whichever is more restrictive. On sloping terrain, some additional height could be allowed provided the building is set down from the upper property line and in from the side property lines. The procedure grants the most additional height (up to the maximum) for large sites with a substantial change in elevation from lower to upper property lines and where the building is located well down on the site and in from the side property lines. (d) The petition shall include the written approval of the land owner if petitioner is not the same. 7-5 Incomplete Application The Director shall neither accept nor process an application which is incomplete as to form and content. 7-6 Notice (a) Upon receipt and acceptance of a properly filed and completed application, 7-4 Planning Department Rules of Practice & Procedure the Director shall fix a date for consideration of the application. (b) At least ten calendar days prior to the date of the Director's consideration of the application, the Director shall publish a notice of the application in a newspaper of general circulation in the County which includes the following: (1) Name of the petitioner; (2) The precise location of the property involved; (3) Nature of the request; (4) Date on which the Director will consider the application; and (5) That such date is the deadline for the Director's actual receipt of written comments on the application. (c) Within three working days after receiving notice of the date that the Director will be considering the application, the petitioner shall serve notice of the application on owners of interests in properties within three hundred feet of the perimeter boundary of the property involved and to owners of interests in other properties which the Director may find to be directly affected by the request sought. Such notice shall include all of the information as stated under section 7-6 (b) of this rule. (d) Prior to the deadline for written comment, the petitioner shall submit to the Director 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. 7-7 Grounds for PUD (a) In order to approve a PUD, the Director shall find the following: (1) Construction on the project shall begin within a reasonable period of time from the date of full approval and shall be completed within a reasonable period of time; (2) The proposed development substantially conforms to the County General Plan. (3) All residential development shall constitute an environment of sustained desirability and stability; shall be in harmony with the character of the sur­ rounding neighborhood; and shall result in an intensity of land utilization no higher than, and standards of open space at least as high as permitted or as otherwise specified for the district in which this development occurs; 7-5 Planning Department Rules of Practice & Procedure (4) All commercial development shall create no traffic congestion, shall not interfere with any projected improvements, shall provide for proper entrances and exits along with proper provisions for internal traffic and parking, and shall be an attractive center with no adverse effect upon the adjacent and surrounding existing or prospective development; (5) All 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 that such development shall have no adverse effects upon adjacent and surrounding existing or prospective development; (6) The development of a harmonious, integrated whole justifies exceptions, if required, to the normal requirements of Chapter 25, and that the contemplated arrangements or use make it desirable to apply regulations and requirements differing from those ordinarily applicable under the district regulations; and (7) In reviewing additional building height, the underlying concept is to evaluate a building's relative conspicuousness to the natural terrain of its site. The review of request for additional height shall be as spelled out in Section 7-4 (c) of this rule. (b) No PUD shall be considered that proposes a use that is not permitted either directly or as a conditionally permitted use within the zoned district. 7-8 Decision (a) Within sixty days after the filing of a proper application or within a longer period as may be agreed to by the petitioner, the Director shall deny the application or approve it subject to conditions. The conditions imposed by the Director shall bear a reasonable relationship to the request granted. (b) All actions shall contain a statement of the factual findings supporting the decision. (c) Application for an approval of a PUD, wherein variances from the standard regulations are approved, shall be deemed to be in compliance with all the necessary procedures for securing or granting a variance. (d) Partial approval may be given where architectural plans and drawings have not been submitted with the original application but no building permit shall be issued nor any construction commence unless and until said drawings have been considered and approved by the Director and full approval of the PUD secured. 7-6 Planning Department Rules of Practice & Procedure (e) Where completed drawings are considered, approval of a PUD shall be deemed to be and include plan approval as provided for in Article 20 of Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended). (f) If the Director fails to act within the prescribed period, the application shall be considered as having been denied. 7-9 Time Extension (a) The petitioner may apply with the Director for extensions of time limitations imposed with the PUD approval not less than sixty days prior to the expiration date by submitting: (1) A non-refundable filing and processing fee of one hundred dollars; and (2) A written statement setting forth the affected portion of the PUD permit; the length of time requested; and the reasons for the time extension. (b) Within forty-five days after receipt of such a request or a longer time as may be agreed to by the petitioner, the Director shall conduct a public hearing. At least ten days prior to the date of the hearing, the Director shall publish a notice of the public hearing in a newspaper of general circulation in the County. (c) Within thirty days after the conclusion of the public hearing or within such longer period as may be agreed to by the petitioner, the Director shall approve or deny the request. If the request is approved, the Director may impose additional conditions as required. If the Director fails to act within the prescribed period, the request shall be considered as having been denied. 7-10 Other Amendment to Conditions (a) The petitioner may apply with the Director for an addition, modification, and/or deletion of a condition, other than a time condition, by setting forth in writing the affected condition, what the request is for, and the reasons for the request. (b) Within forty-five days from the date of receipt of the request or a longer time as may be agreed to by the petitioner, the Director shall either approve or deny the request. (c) If the Director fails to act within the prescribed time, the request shall be considered as having been denied. 7-7 Planning Department Rules of Practice & Procedure 7-11 Appeals The Director's decision is appealable to the Board of Appeals. Cross-reference: Article 6, Division I Planned Unit Development (P.U.D.), Zoning Code 8-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 8. NONSIGNIFICANT ZONING CHANGES 8-1 Purpose and Authority The purpose of this rule is to allow nonsignificant zoning changes to be approved administratively by the Planning Director as provided in Section 25-18.1, Division 3, Article 1, Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended). 8-2 Definition As used in this rule, except as otherwise recognized by context: "Nonsignificant zoning change" shall mean a zoning change which does not result in an increase or decrease in any zoning designation affecting more than five per­ cent or one acre of any parcel of property, whichever is less, and which is in compliance with the General Plan and development plan designations of the property. 8-3 Request for Determination Written request for a determination for a nonsignificant zoning change shall be filed with the Planning Director and shall include: (a) A description of the property in sufficient detail, including a location map and Tax Map Key identification, to determine its precise location; (b) A statement as to the purpose of the request and why this request qualifies as a nonsignificant zoning change; (c) A legal description of the property in map and written form by metes and bounds as certified by a surveyor. If available, a copy of the AutoCAD disk shall be submitted; and (d) Calculation showing amount of land area to be changed in terms of percentage of the parcel. (The area requested for zoning change shall not exceed more than five percent or one acre of any parcel of the property, whichever is less.) 8-4 Surrounding Property Owners' Notification Upon filing for a determination for a nonsignificant zoning change with the Planning Director, the applicant shall simultaneously notify the surrounding property owners within three hundred feet of the perimeter boundary of the property that such request has been filed with the Planning Director. A copy of such notice and a list of the names 8-2 Planning Department Rules of Practice & Procedure and addresses of the surrounding property owners shall be submitted to the Planning Director within one week from the date of submission of the written request to the Planning Director. 8-5 Criteria for Determination The Director may administratively grant nonsignificant zoning changes which: (a) Does not result in a substantial increase or decrease in any zoning designations; (b) Does not affect more than five percent or one acre of any parcel of property, whichever is less; (c) Does not result in a substantial change in the density of the zoned area; and (d) Is in compliance with the General Plan and development plan designations of the property. 8-6 Planning Director's Determination (a) Within thirty days of receipt of the request, the Planning Director shall notify the applicant of the determination as to whether the request is a nonsignificant zoning change. (b) Should a determination be made that the request is a nonsignificant zoning change, the Director shall then notify the applicant and the County Council of the decision. (c) Should a determination be made that the request does not qualify as a nonsignificant zoning change, the Director shall then notify the applicant of the decision. The Director shall also inform the applicant that in order to pursue the matter further, a change of zone application in accordance with Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended), and Rule 5 (Zoning Amendments) of the Planning Department's Rules of Practice and Procedure may be filed with the Planning Department." (d) The Director's decision is appealable to the Board of Appeals. SEVERABILITY In the event any portion of these rules is declared invalid, such invalidity shall not affect other parts of these rules. Cross-reference: Section 25-2-45, Hawaiʻi County Code (Zoning Code) 9-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 9. PROVISIONS FOR ENFORCEMENT OF ZONING CODE AND SPECIAL MANAGEMENT AREA 9-1. Authority and Purpose Pursuant to authority conferred by Subsection 46-1.5, Hawaiʻi Revised Statutes, the purpose of this rule is to establish a procedure and provisions for the enforcement of Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended), and the Special Management Area (SMA), as defined in Chapter 205A, Hawaiʻi Revised Statutes and the Planning Commissions Rule 9. 9-2. Complaint and Investigative Procedures (a) Complaints shall be recorded on a complaint form prepared by the Planning Department. The complaint form shall include, but not be limited to, the following information: (1) Name and address of complainant. All information and records acquired by the Planning Department under this part shall be confidential. The information shall be available only to authorized persons in the Department and, such other persons or agencies as the Corporation Counsel shall authorize, under such restrictions as the Corporation Counsel shall prescribe, or by court order; (2) Nature of complaint; (3) Name and address of alleged violator; (4) Tax Map Key of alleged violation; (5) Date of complaint; and (6) Any other information deemed necessary by the Planning Department. (b) All complaints shall be given to the Inspector. Anonymous complaints will not be investigated by the Inspector and/or other Planning Department personnel assigned. (c) The Inspector and/or other Planning Department personnel assigned shall conduct an initial investigation report which shall be recorded on a form prepared by the Planning Department. (d) Should the investigation reveal that no violation exists on the property; the 9-2 Planning Department Rules of Practice & Procedure Director shall notify the complainant of the determination. (e) If a violation has occurred, the Director shall issue a Notice of Violation and Order to the violator. 9-3. Issuance of Order (a) The Director shall have the Notice of Violation and Order served by personal service or by certified mail on the violator, and/or all affected parties, which may include the fee owner, leaseholder, sublease holder or other assignee, tenant, contractor, mortgage holder, and other persons responsible for the violation or with an interest in the property. The Notice of Violation and Order shall include the following information: (1) Date of notice; (2) Name and address of the person(s) noticed; (3) Section number(s) of the statute, ordinance, rule, permit, or other regulation which has been violated; (4) Nature and description of the violation; (5) Location of the property on which the violation occurred, including tax map key identification; (6) Date and time of the documented violation; (7) A description of the evidence observed to support the alleged violation; (8) A cease and desist order; (9) Fine assessed for the violation; (10) Fine due date and method of payment; (11) All remedies associated with the violation; (12) Remedial action required within a maximum of sixty calendar days from the date of receipt of the Notice of Violation and Order to avoid daily fines; and (13) Amount of the daily fines for non-compliance (b) The Notice of Violation and Order shall state separately each violation, the fine assessed for each violation the date and method of payment of the fine, and all potential remedies associated with each violation. The Notice of violation and Order shall also state what corrective action is necessary, the date by which such 9-3 Planning Department Rules of Practice & Procedure action must be completed to avoid daily fines, and the amount of the daily fines for non-compliance. (c) The violator shall be advised that the Notice of Violation and Order shall become final thirty days after the person's receipt, unless the Director's action is appealed to the Board of Appeals. (d) Within thirty days after the person's receipt of the Notice of Violation and Order, any person adversely affected by the Notice of Violation and Order may appeal the Notice of Violation and order to the Board of Appeals as provided by Section 6-9.2 of the County Charter and Sections 25-2-20 thru 25, Division 2, Article 2 of Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended). An appeal to the Board of Appeals shall not stay the provisions of the order pending the final decision of the Board of Appeals. 9-4. Time Period for Compliance (a) When specifying the corrective action to be taken, the director may allow the violator up to sixty calendar days in which to correct the violation. (b) The deadline set for the correction of the violation may be modified in consideration of the following: (1) The type and degree of the violation, whether it is a recurrent violation, and the number of violations cited in the order. (2) Potential threat to human health and safety. (3) The complexity of the corrective action required. (4) Any other circumstances beyond the control of the violator. 9-5. Zoning Code Penalties (a) Resolution of a violation includes correction of the violation and payment of civil fines not to exceed $500. In specifying the amount of the fine, the director shall consider the following: ' (1) The nature and degree of the violation. (2) Whether the violation involves a threat to public health and safety. (3) Whether there are multiple violations. (4) Whether it is a repeated violation. (b) Daily fines not to exceed $500 per day shall be assessed for each day in which the violation remains uncorrected in accordance with the following schedule. (1) Initial violation: $100 per day 9-4 Planning Department Rules of Practice & Procedure (2) First repeated violation: $200 per day (3) Second repeated violation: $300 per day (4) Third repeated violation: $400 per day (5) Forth and subsequent repeated Violation: $500 per day (c) The fine assessed by the order is payable whether or not the correction of the violation is completed before or after the order becomes final. (d) When a violation is not corrected by the deadline set by the order, the Director may assess additional fines to a maximum of $500 for each day that the violation remains uncorrected in accordance with the following schedule: DAILEY FINES FIRST AFTER AFTER AFTER FOR VIOLATION 3MOS. 3RDMO. 6THMO. 9THMO. Initial violation $100 $200 $300 $500 First recurrence $200 $300 $400 $500 Second recurrence $300 $400 $500 Third recurrence $400 $500 Forth and subsequent recurrences will be assessed $500 per day of additional daily fines from the date that the violation was to cease as set forth in the order. (e) Any civil fine provided under this rule may be imposed by the circuit court or the Director after an opportunity for a hearing under Chapter 91, HRS. 9-6. SMA Penalties (a) Any person who violates any provision of Planning Commission Rule 9 shall be liable for a civil fine not to exceed $100,000. (b) In addition to any other penalties, any person who violates any provision of Planning Commission Rule 9 shall be liable for a civil fine not to exceed $10,000 a day for each day the violation persists. (c) Any civil fine provided under this rule may be imposed by the circuit court or the Director after an opportunity for a hearing under Chapter 19, HRS. 9-7. Civil Action The Director may institute a civil action in any court of competent jurisdiction for the enforcement of any Notice of Violation and Order issued. Where the civil action has been instituted to enforce the assessed fines imposed by said Order, the Director need only show that the Notice of Violation and Order were served, that an assessed fine was imposed, the amount of the assessed fine imposed and that the fine imposed has not 9-5 Planning Department Rules of Practice & Procedure been paid. 9-8. Property Liens (a) Annually, on September 1, the director shall file with the State of Hawaii, Bureau of Conveyances, liens on all properties which have been the subject of fines levied which remained unpaid for one year or more after final adjudication and the expiration of the time for any further appeal. (b) Fines assessed shall constitute a lien upon the property upon the filing of said lien with the Bureau of Conveyances. This lien shall be considered, for purposed of priority, to be the equivalent of liens which arise pursuant to the provisions of Chapter 19 of the Hawaiʻi County Code 1983 (2016 Edition, as amended). 9-9. Other Legal Remedies The Director may refer violations to the prosecutor's office for criminal prosecution or pursue any other legal means to correct violation. SEVERABILITY In the event any portion of these rules is declared invalid, such invalidity shall not affect other parts of these rules. Cross-reference: Article 2, Division 3, Violations, Penalties, Enforcement, Zoning Code Planning Commission Rule 9 10-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 10. GEOTHERMAL RELOCATION PROGRAM 10-1 Authority Pursuant to the authority conferred upon the Planning Department by Ordinance No. 96 2, the rules and regulations hereinafter contained are established to provide for the establishment of a geothermal relocation program and geothermal royalty fund. 10-2 Purpose The purpose of this rule is to authorize the Planning Department to establish a geothermal program for the relocation of owner-occupants residing near the Puna Geothermal Venture facility. 10-3 Criteria to Qualify for Geothermal Relocation Program The geothermal relocation program shall initially apply only to owner-occupants and the highest priority shall be given to those individuals who: (a) Reside within a one (1) mile radius of the Puna Geothermal Venture facility; (b) Purchased their dwelling unit before October 3, 1989 or received a building permit for the dwelling unit before that date and final inspection for the dwelling has been completed by the Department of Public Works, Building Division; and (c) Express a desire to relocate. In the event that funds are initially insufficient to purchase all of the dwellings and proper­ ties, those located closest to the PGV facility shall be purchased first. 10-4 Procedures for the Purchase of the Affected Dwellings and Properties (a) The Planning Director may solicit the assistance of a qualified real estate appraiser and/or real estate broker to assist in implementing the procedures for the relocation of the affected owner-occupants, including the negotiation for the purchase of the affected dwellings and properties. (b) The real estate appraiser and/or real estate broker shall, on behalf of the Planning Director, do the following: (1) Contact all affected owner-occupants by certified mail as to whether they would be interested in relocating and selling their respective 10-2 Planning Department Rules of Practice & Procedure dwellings and properties to the County. (2) Upon receipt of the notice, the owner-occupants shall have sixty (60) days in which to respond in writing of their desire to be relocated. (3) Within sixty (60) days of receipt of the owner-occupants' response, the real estate appraiser and/or real estate broker shall negotiate a purchase price with the affected owner-occupants. The purchase of the affected properties shall be at a rate of not more than one hundred thirty percent (130%) of the assessed value, as determined by the Real Property Tax Division of the Department of Finance. (4) The real estate appraiser and/or real estate broker shall then present to the Planning Director the negotiated purchase price for approval. (5) The real estate appraiser and/or real estate broker may work with the escrow company to effectuate the purchase of the properties, including a title search and the preparation of a property description as necessary. 10-5 Notification to Department of Finance Upon successful negotiation of a purchase price with the owner-occupant and upon receipt of a deed, the Planning Director shall notify the Finance Director that disbursement from the Geothermal Royalty Fund may be made to purchase the affected dwelling and property. The Planning Director shall pay the funds to the owner-occupant upon receipt of title to the property. 10-6 Creation of a Geothermal Royalty Fund The geothermal relocation program shall be funded with proceeds from the following sources: (a) Geothermal royalties received from the State of Hawaiʻi Department of Land and Natural Resources; (b) Proceeds from the sale of properties purchased under this program; and (c) Rental fees from any of the properties purchased under this program. 10-7 Expenditures from Geothermal Royalty Fund The proceeds from the fund shall be used for the necessary expenses in administering and carrying out the purposes of the geothermal relocation program. Expenditures relating to the geothermal relocation program include, but are not limited to: (a) The costs of any necessary appraisals required under the geothermal relocation program; 10-3 Planning Department Rules of Practice & Procedure (b) The payment of necessary fees and expenses; (c) The costs for the purchase of an affected dwelling and property; and (d) The costs necessary to dispose of or rent an affected dwelling and property. 10-8 Severability If any portion of this rule, or its application to any person or circumstance, shall be held unconstitutional or invalid, the remainder of this rule and the application of such portion to other persons or circumstances shall not be affected thereby. PLANNING DEPARTMENT COUNTY OF HAWAI`I RULES OF PRACTICE AND PROCEDURE RULE 11. SHORELINE SETBACK 11-1 Authority Pursuant to the authority conferred upon the Planning Department by §205A Part III, Hawaii Revised Statutes (HRS), the rules hereinafter contained are established and shall apply to lands within the shoreline setback area. 11-2 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 establishment and enforcement of the shoreline setback line and shoreline setback area and for the review of all activities or structures proposed within the shoreline setback area in accordance with the requirements of this rule and Chapter 205A- Part III, HRS. 11-3 Definitions 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) "Beach" means a coastal landform primarily composed of sand from eroded rock, coral, or shell material, or any combination thereof, that is established and shaped by wave action and tidal processes. "Beach" includes sand deposits in nearshore submerged areas, or sand dunes or upland beach deposits landward of the shoreline, that provide benefits for public use and recreation, for coastal ecosystems, and as a natural buffer against coastal hazards. c) "Buildable area" means the area of a lot excluding the shoreline setback, required yards, and flag stems (poles). Planning Department Rules ofPractice & Procedure 11-1 d) "Coastal hazards" means any tsunami, hurricane, wind, wave, storm surges, high tide, flooding, erosion, sea level rise, subsidence, or point and nonpoint source pollution. e) "Lot" means a parcel, tract, or area of land established by subdivision or as otherwise lawfully established prior to the adoption of the Subdivision Control Code and accepted by the Planning Department. f) g) Minor structure" shall not alter the existing grade of the shoreline setback area and shall be limited to landscape features (i.e., benches, chairs, borders, wooden trellis, bird feeders, signs, safety improvements, etc.); walkways for access; and sprinkler systems. Minor activity" means an activity that does not alter the existing grade of the shoreline setback area and may include activities such as landscaping and minor clearing (grubbing) of vegetation. h) "Planning Commission" means the planning commission of the County of Hawai`i. i) "Planning Department" means that agency of the County of Hawai`i consisting of the planning director and the necessary staff. j) "Rebuild" means the reconstruction of a lawfully existing structure when the reconstruction is valued by a licensed professional engineer or architect at more than fifty percent of the replacement cost of the structure. k) "Repair" means the fixing, renovation, improvement, or restoration of any part of a lawfully existing structure, but not the entire structure, solely for the purpose of its maintenance and which does not result in an addition to, or enlargement or expansion of, the lawfully existing structure. "Repair" includes, but is not limited to alteration of floors, roofs, walls, or the supporting structure of a building or the rearrangement of any of its component parts. 1) 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 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. m) "Shoreline setback area" shall include all of the land area between the shoreline and the shoreline setback line, provided that if the highest annual Planning Department Rules of Practice & Procedure 11-2 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. n) "Shoreline setback line" means that line established by the Planning Department running inland from and parallel to the certified shoreline at a horizontal plane. o) "Structure" includes, but is not limited to, any portion of any building, pavement, road, pipe, flume, utility line, fence, groin, wall, or revetment. p) "Vegetation" means any plant, tree, shrub, grass, or groups, clusters or patches of the same, naturally rooted and growing. 11-4 Shoreline Certification, Exceptions and Waivers a) The shoreline is certified by the chairperson of the Board of Land and Natural Resources pursuant to its adopted Hawaii Administrative Rules (HAR). No determination of a shoreline shall be valid for a period longer than twelve months, except where the shoreline is fixed by man-made structures, which have been approved by appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and structure; in which case the certified shoreline survey shall be valid so long as the man-made structure remains intact and unaltered. b) For the purpose of establishing the shoreline setback line, the Planning Department may, in consultation with the Department of Land and Natural Resources, require the certified shoreline survey to extend a minimum 40 feet laterally beyond the affected property's shoreline frontage in cases where the inland reaches of an adjacent property's shoreline frontage affect the determination of the shoreline setback area. c) The Planning Department may waive the certification requirement in cases where there may be special or unusual physical circumstances or conditions of the land or where a structure or activity is proposed at a considerable distance inland. Setback lines shall be conservatively, but reasonably established. The Planning Department may require a survey map of the subject area depicting physical and geographical conditions to assist in making a determination. 11-5 Minimum Shoreline Setback Line a) The minimum shoreline setback line shall not be less than forty (40) feet inland from the shoreline. 11-6 Structures and Activities Prohibited within the Shoreline Setback Area a) The mining or taking of sand, dead coral or coral rubble, rocks, soil or other Planning Department Rules ofPractice & Procedure 11-3 beach or marine deposits from the shoreline setback area; and b) All structures and activities which do not qualify under section 11-7(a) through (c). c) A shoreline setback variance may be granted for a structure or activity otherwise prohibited in this rule if it is necessary and ancillary to the uses and activities listed in Planning Commission Rule 8 (Shoreline Setback Variance, Section 8-11. 11-7 Structures or Activities Permitted within the Shoreline Setback Area a) The following structures or activities may be permitted within the shoreline setback area provided written clearance is secured from the Planning Department: 1) The mining or taking of sand, dead coral or coral rubble, rocks, soil or other beach or marine deposits from the shoreline setback area; 2) The clearing of sand, dead coral or coral rubble, rocks, soil or other beach or marine deposits from existing drainage pipes and canals and from the mouths of streams, including clearing for the purposes under Section 46-11.5, HRS, provided that the sand removed shall be placed on adjacent areas unless such placement would result in significant turbidity; 3) The cleaning of the shoreline setback area for state or county maintenance purposes, including the clearing for purposes under Section 46-12, HRS; provided that the sand removed shall be placed on adjacent areas unless the placement would result in significant turbidity; 4) A minor structure or activity approved in accordance with Section 11-8; 5) A structure or activity permitted through the issuance of a shoreline setback variance from the Planning Commission; 6) Structures which were completed by or activities which commenced prior to June 22, 1970; 7) The structure or activity received a building permit, Board of Land and Natural Resources' approval, Special Management Area Use Permit/approval and/or a shoreline setback variance prior to June 16, 1989; 8) Structures and activities necessary for or ancillary to continuation of existing agriculture or aquaculture activity in the shoreline Planning Department Rules ofPractice & Procedure 11-4 9) setback area prior to June 16, 1989; Work being done consists of maintenance, repair, and minor additions to or alterations of legal, publicly owned boating, maritime, or water sports recreational facilities, which are publicly owned, and which result in little or no interference with natural shoreline processes; 10) The structure or activity was determined by the Planning Department to be outside the shoreline setback area when it received legal approval(s) (i.e., a building permit, Special Management Area Use Permit or board of land and natural resources approval). 11) The exercise of traditional cultural practices as authorized by law or as permitted by the Planning Department pursuant to article XII, section 7, of the Hawaii State Constitution. 12) For the response to a public emergency or a state or local disaster when an emergency proclamation has been issued by the Mayor or Governor. b) Structures or activities that qualify under section 11-7 (a)(6) through (10) may be repaired in conformance with plans approved by the Planning Department, but shall not be enlarged, rebuilt, or replaced within the shoreline area without a shoreline setback variance. c) Structures or activities that qualify under section 11-7(a)(6) through (10) may be routinely maintained. 11-8 Determination of Minor Structure and Minor Activity A minor structure or activity proposed in the shoreline setback area shall not need a shoreline setback variance if the Planning Department determines that it would not affect beach processes or artificially fix the shoreline and would not interfere with public access or public views to and along the shoreline. a) A request for a minor structure or activity determination shall be submitted to the Planning Department and shall be accompanied by applicable information to assist in the determination, which could include but not be limited to a certified shoreline survey, construction plans, a list of proposed plants and their growth at maturation, existing and finished contours, photographs of the shoreline setback area, an environmental assessment, written reasons addressing the criteria set forth in Section 11-8 and other information required by the Planning Department. b) Minor structures and activities shall be completed within one year from the date of the Planning Department's minor structure or activity determination Planning Department Rules ofPractice & Procedure 11-5 or from the approval date of the last discretionary permit, whichever is last. 11-9 Shoreline Setback Variance Application An application for a shoreline setback variance shall be filed with the Planning Commission in accordance with its rule of practice and procedure. The Planning Department shall review the variance application and plans of all applicants who propose any structure, activity, or facility that would be prohibited without a variance pursuant to this rule. The Planning Department may require that the plans be supplemented by accurately mapped data and photographs showing natural conditions and topography relating to all existing and proposed structures and activities. 11-10 Compliance with Environmental Impact Statement Regulations (Chapter 343, HRS) An environmental assessment, prepared in accordance with the requirements of Chapter 343, HRS and Title 11, Chapter 200.1 Hawaii Administrative Rules HAR), shall accompany the filing of a shoreline setback variance application with the Planning Commission. The Planning Department shall be the approving agency of all environmental assessments prepared in accordance with this rule. A shoreline setback variance application shall not be considered complete until such time the Planning Department has complied with the requirements of Chapter 343, HRS and Title 11, Chapter 200.1 HAR. 11-11 Waiver of Public Hearing and Action a) The Planning Department may waive a public hearing and take action on a variance application for the following provided the Department finds in writing, based on the record, that the proposed structure or activity meets the criteria for granting a variance, and public and private notice is provided, including reasonable notice to abutting property owners and persons who have requested this notice: 1) Stabilization of shoreline erosion by moving sand entirely on public lands; 2) Protection of a legal structure or public facility, including any facility owned by a public utility that is regulated pursuant to Chapter 269, HRS that does not fix the shoreline, under an emergency authorization issued by the authority; provided that the structure or public facility is at risk of immediate damage from shoreline erosion as determined by the Planning Department, in consultation with appropriate agencies (i.e., U.S. Army Corps of Engineers, Department of Public Works) and the authorization does not exceed three years; 3) Maintenance, repair, reconstruction, and minor additions or alterations of legal boating, maritime, or watersports recreational Planning Department Rules ofPractice & Procedure 11-6 facilities, that result in little or no interference with natural shoreline processes. b) An applicant who seeks processing under Section 11-11 shall make the request in writing upon submittal of the variance application. c) The Planning Department may deny the public hearing waiver in which case the variance application shall be heard and noticed by the Planning Commission in accordance with its rule of practice and procedure. 11-12 Enforcement a) The Planning Department shall enforce this rule. b) Any structure or activity prohibited within the shoreline setback area that has not received appropriate approvals or a shoreline setback variance or that has not complied with conditions of said variance shall be removed or corrected. No other state or county permit or approval shall be construed as a variance. c) Where the shoreline is affected by an artificial structure that has not been authorized with government agency permits required by law and if any part of the structure is on private property, then for purposes of enforcement of this rule, the structure shall be construed to be entirely within the shoreline setback area. d) The authority of the board of land and natural resources to determine the shoreline and enforce rules established under Chapter 183C, HRS shall not be diminished by an artificial structure in violation of this rule. 11-13 General Enforcement Procedures a) Issuance of Notice of Violation and Order. The landowner and/or the alleged violator shall be notified by the Planning Department by certified or registered mail or by personal service of any alleged violation of this rule, any permit issued pursuant thereto, or any condition of a shoreline setback variance. The Notice of Violation and Order shall include, but not be limited to, the specific section of the rule which has been violated; the nature of the violation; and the remedy(ies) available. The Notice of Violation and Order may also require that the violative activity cease and desist; that a civil fine be paid not to exceed 10,000 per violation; and that a civil fine be paid not to exceed $1,000 per day for each day in which the violation persists. The Notice of Violation and Order shall advise the person that the Order shall become final thirty days after the date of its receipt, unless written request for a negotiated settlement or a hearing before the Board of Appeals is mailed or delivered to the department within said thirty days. Planning Department Rules of Practice do Procedure 11-7 b) Negotiated Settlement If the violator seeks a negotiated settlement with the Planning Department, but waives the right to a hearing, the Planning Department, in consultation with the Office of the Corporation Counsel, shall be authorized to enter into a settlement agreement with the landowner or, if appropriate, the violator, which will cure the violation, set the fine, and allow for inspection by the Planning Department. c) Right to Hearing A request for hearing shall be considered timely if a written request is delivered to the Planning Department within said thirty days. Upon receipt of a request for a hearing, the Planning Department shall specify a time and place for the person subject to the order to appear and be heard. The hearing shall be conducted by the Board of Appeals in accordance with the provisions of Chapter 91, HRS and its rules of practice and procedure. d) Judicial Enforcement of Order The Planning Department, in consultation with the Office of the Corporation Counsel, may institute a civil action in any court of competent jurisdiction for the enforcement of any settlement agreement or order issued pursuant to this section. Nothing in this section shall prohibit the Planning Department, through the Office of the Corporation Counsel, from filing an order or motion directly with the Court in the event that public health and safety may be at risk. 11-14 Penalties a) Any person who violates any provision of this rule shall be liable for an initial civil fine not to exceed $10,000 per violation and a maximum daily fine of $1,000 until the violation is corrected. A civil fine may be imposed by the department after an opportunity for a hearing under Chapter 91, HRS, unless said hearing is otherwise waived. b) In specifying the amount of the civil and daily fines, the Planning Department shall consider the following: 1) 2) 3) The nature and degree of the violation; Whether there are multiple violations; and Whether it is a repeated violation. Planning Department Rules ofPractice & Procedure 11-8 c) A shoreline setback variance application filed with the Planning Commission sub- sequent to an applicant's having completed the structure or activity, or having been cited for the activity or construction without having obtained said variance, shall not stay any order to pay civil fines. 11-15 Appeals An administrative decision of the Planning Department shall be appealable to the Board of Appeals in accordance with its rules of practice and procedure. 11-16 Severability If any portion of this rule, or its application to any person or circumstance, shall be held unconstitutional or invalid, the remainder of this rule and the application of such portion to other persons or circumstance shall not be affected thereby. Cross-reference: Rule 8. SHORELINE SETBACK VARIANCE, Planning Commission Rules of Practice & Procedure Planning Department Rules ofPractice & Procedure 11-9 PLANNING DEPARTMENT Zendo Kern, Director Date Notice of Public Hearing: Hawai`i Tribune Herald: November 13, 2023 West Hawai`i Today: November 13, 2023 Date and Place of Public Hearing: December 14, 2023 West Hawaii Civic Center, Planning Department, Building A 75-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii Interactive Conference Technology (ICT) Remotely APPROVED AS TO FOM AND LEGALITY: Depu orporation ounsel Date: ? Felg yy APPROVED: MAYOR, County of Ha Date: c,9 —/2 —Z4 I hereby certify that the foregoing amendments and revisions to the Hawai`i County Planning Delent Rules of Practice and Procedure was received and filed in my Office this " An day of February , 2024. 12-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 12. ʻOHANA DWELLING UNITS 12-1 Authority Pursuant to the authority conferred upon the Planning Department by Ordinance No. 96 47, the rules hereinafter contained are established to regulate ʻohana dwelling units. 12-2 Purpose] The purpose of this rule is to establish procedures for the processing of an ʻohana dwelling unit permit. 12-3 Definitions As used in this rule, except as otherwise recognized by context: (a) "Applicant" means a person having an ownership interest in a lot. (b) "Legal lot of record" means a lot created in accordance with Chapter 23 (Subdivision Code), Hawaiʻi County Code 1983 (2016 Edition, as amended), and all previous codes and ordinances relating to the creation of subdivisions within the County of Hawaiʻi. A legal lot of record also includes a pre-existing lot created prior to the adoption of any codes and ordinances relating to subdivisions. (c) "ʻOhana dwelling unit" means a second dwelling unit permitted to be built as a separate or an attached unit on a lot situated within the County zoned Single Family Residential (RS), Unplanned (U), Residential and Agricultural (RA), and Agricultural (A) districts. (d) "Titleholder" means a person, corporation, association, partnership, trust or other entity having ownership or title interest to a lot. 12-4 General Provisions An ʻohana dwelling unit may be permitted in the County zoned Single Family Residential (RS) district, Unplanned (U) district, Residential and Agricultural (RA) district, and Agricultural (A) district; provided that: (a) The lot on which the ʻohana dwelling unit is to be constructed is a legal lot of record. (b) An ʻohana dwelling unit constructed on a lot which is classified Agricultural 12-2 Planning Department Rules of Practice & Procedure by the State Land Use Commission shall be subject to agricultural requirements for farm dwellings as defined in Section 205-4.5, Hawaiʻi Revised Statutes. (c) All applicable county requirements, not inconsistent with the provisions of Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended), are met. These include, but are not limited to requirements relating to, building height, yards (setbacks), and parking. (d) The following public facilities are adequate to serve the ʻohana dwelling unit: (1) Sewage disposal system. A lot on which an ʻohana dwelling unit is proposed shall be served by a public or private sewage disposal system meeting with the requirements of the County Department of Public Works or the State Department of Health, respectively. (2) Potable water supply. A lot on which an ʻohana dwelling unit is proposed shall be served by an approved public or private water system meeting with the requirements of the County Department of Water Supply. An ʻohana dwelling unit that is not served by an approved water system may be permitted to use a water catchment system in an area which receives an annual rainfall of at least eighty inches (The University of Hawaii Water Resources Research Center construction guideline of eighty inches of annual rainfall for catchment systems is being used for this purpose). In the event that an annual rainfall requirement is adopted in a future amendment to the Hawaiʻi County Code 1983 (2016 Edition, as amended), then the annual rainfall as reflected in the code amendment shall be used for this purpose. The requirements of the State Department of Health and the Department of Water Supply must also be met. (3) Fire protection. A lot on which an ʻohana dwelling unit would be permitted shall be served by adequate fire protection measures meeting with the requirements of the Fire Department. (4) Streets. A lot on which an ʻohana dwelling unit would be permitted shall gain access to a public or private street meeting with the requirements of the Department of Public Works. 12-5 Eligibility (a) No application for an ʻohana dwelling unit permit shall be accepted by the Planning Director prior to the completion of all improvements required for final subdivision approval for any lot established by a subdivision under the provisions of Chapter 23 of the Hawaiʻi County Code 1983 (2016 Edition, as amended). For purposes of this section, "completion" shall mean actual construction of the subdivision improvements has been completed to the 12-3 Planning Department Rules of Practice & Procedure satisfaction of the Chief Engineer of the Department of Public Works. (b) No more than one ʻohana dwelling unit permit application may be active for any one applicant at any time. Any applicant who has previously obtained a permit for an ʻohana dwelling unit in the County of Hawaiʻi shall not be eligible to apply for a subsequent permit for another ʻohana dwelling unit on a different lot until two years has elapsed from the date on which the prior permitted ʻohana dwelling unit was completed to the satisfaction of the Chief Engineer. For purposes of this section, each titleholder and person named in the application shall be construed as an applicant or permittee. The Planning Director shall maintain and keep readily available for public reference a current list of applicants and permittee for ʻohana dwelling units, including the dates of application and approval or denial. 12-6 Non-applicability The provisions of this rule shall not apply to: (a) A lot within the State Land Use Conservation district. (b) A lot developed under an affordable housing project approved by the State Housing Finance and Development Corporation (HFDC) and/or the County Housing Agency which has been granted per-emption from the requirements of the Hawaiʻi County Code 1983 (2016 Edition, as amended). (c) A lot developed as a Planned Unit Development (P.U.D.) or a Cluster Plan Development (C.P.D.). (d) A lot where more than one dwelling unit is permitted in the zoned district or is permissible in the Single Family Residential (RS) district. No ʻohana dwelling unit shall be permitted on the same lot with a two-family or multi- family dwelling, a family care home, a public or private care facility, or a single family dwelling with transient accommodations. (e) A lot and improvements thereon which received any variance from the provisions of Chapter 23 and Chapter 25, Hawaiʻi County Code, as amended. (f) A lot on which the construction of an ʻohana dwelling unit or a second dwelling unit is specifically prohibited by a change of zone ordinance. 12-7 Designation of the ʻOhana Dwelling Unit (a) Regardless of the size of a lot, no more than one ʻohana dwelling unit shall be per- mitted on the same lot with the first single family dwelling unit. (b) The Planning Director may designate an existing single family dwelling unit as the ʻohana dwelling unit in order to allow the permitting of a new single 12-4 Planning Department Rules of Practice & Procedure family dwelling unit when such existing single family dwelling unit is the only dwelling unit on the lot. 12-8 Requirements for Height, Building Site Area (Lot size), Yard (Setback) and Off Street Parking (a) Maximum height limitation. A detached ʻohana dwelling unit shall not exceed a maximum height limit of twenty-five feet regardless of the maximum height limitation of the zoned district. (b) Minimum building site area (lot size). A lot on which an ʻohana dwelling unit is proposed shall have a minimum building site area (lot size) of 10,000 square feet. (c) Minimum yard (setback). The minimum front, rear and side yard requirements for a detached ʻohana dwelling unit shall be as stipulated in the appropriate zoned district plus an additional five feet from all property lines. (d) Off-street parking. An ʻohana dwelling unit shall be provided with a minimum of two off-street parking spaces which comply with the requirements of Section 25-7 (a), Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended). 12-9 Other Requirements (a) Theʻohana dwelling unit and single family unit may be constructed as a duplex. (b) If a lot contains an existing guest house, an ʻohana dwelling unit shall not be permitted. However, an existing guest house may be converted into an ʻohana dwelling unit in accordance with the requirements of Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended), and this rule. 12-10 Variances (a) No variance from the requirements of Chapter 23 and Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended), shall be granted to permit the construction or placement of an ʻohana dwelling unit. (b) An ʻohana dwelling unit shall not be permitted on a lot which has been the subject of a previously granted variance from any provision of Chapter 23 and Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended). 12-11 Petition and Content An application for an ʻohana dwelling unit permit shall be filed with the Planning Director and shall include: (a) A non-refundable filing fee of twenty-five dollars; 12-5 Planning Department Rules of Practice & Procedure (b) Original of: (1) Application form; (2) Plot plan, drawn to scale, showing: (i) All property boundaries; (ii) Proposed ʻohana dwelling unit, including yard (setback) requirements from property lines; (iii) Existing and proposed structures, including detached garages and water catchment system; (iv) Two additional parking spaces for the proposed ʻohana dwelling unit; (v) Existing and proposed driveway; and (vi) Location of private sewage disposal system. (3) Elevations of the ʻohana dwelling unit, drawn to scale. (c) A notarized affidavit stating that the applicant is a titleholder of the affected property. (d) A notarized affidavit stating that provisions of any restriction, covenant or other land use restrictions applicable to the lot by way of a deed or lease or other provision do not prohibit the construction or placement of an ʻohana dwelling unit or a second dwelling unit. (e) A copy of the notice of the application sent to all parties listed in the application who did not execute the application as a titleholder, owners of properties within three hundred feet of the perimeter boundary of the lot, and any known association of such property owners, informing them that an application for an ʻohana dwelling unit permit has been made. Proof of service or of good faith efforts to serve notice of the application shall also be submitted. Such proof may consist of certified mail receipts, affidavits, or the like. The list of names, addresses, and tax map key of those individuals notified shall also be submitted. 12-12 Incomplete Application The Planning Director 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. A written determination as to whether or not the application is complete or incomplete shall be made within 12-6 Planning Department Rules of Practice & Procedure fifteen days upon receipt of the application. 12-13 Agencies Review Upon acceptance of a completed application, the Planning Director shall forward it to the following agencies for review and comment on the adequacy of the infrastructure to accommodate the ʻohana dwelling unit: (a) Department of Public Works (sewage disposal system and streets); (b) Department of Water Supply (water); (c) Fire Department (fire protection); and (d) State Department of Health (sewage disposal system and water). 12-14 Decision The Planning Director shall render a decision (approve or deny) on the application for an ʻohana dwelling unit permit after thirty days but not more than sixty days after receipt of a completed application. If a decision is not rendered within the sixty day period, the application shall be deemed approved. The Planning Director may attach appropriate performance conditions on an approved ʻohana dwelling unit permit. 12-15 Appeal of Decision The approval or disapproval of the ʻohana dwelling unit by the Planning Director may be appealed to the Board of Appeals in accordance with its rules. 12-16 Building Permit (a) A building permit for the construction of an ʻohana dwelling unit shall be secured within one year from the date of issuance of the ʻohana dwelling unit permit. A one time 30-day time extension to obtain the building permit may be granted by the Planning Director. A written time extension request shall be filed with the Planning Director not less than forty-five days prior to the expiration date of the ʻohana dwelling unit permit. The Planning Director shall render a decision on the time extension request prior to the expiration date of the permit. (b) The applicant shall not be able to obtain further extensions beyond the initial 30-day time extension. Further, such failure to conform to the time requirement shall not because to petition the Planning Director, Board of Appeals or any other governmental body for relief from the time requirement. 12-17 Non-transferability A permit for the ʻohana dwelling unit shall be personal to the applicant until construction of the ʻohana dwelling unit has been completed. The permit shall not be transferable or assignable to any other person prior to its completion. 12-7 Planning Department Rules of Practice & Procedure 12-18 Prohibition of Advertising, Sales, Transfers No person shall advertise or represent to the public that a permit to construct an ʻohana dwelling unit is transferable with the sale of the property on which the permit has been granted. 12-19 Revocations (a) The Planning Director may initiate proceedings to revoke the permit for an ʻohana dwelling unit in the event that: (1) The applicant intentionally misrepresents a material fact in the application or its attachments. (2) The applicant transfers or attempts to transfer an ʻohana dwelling unit permit issued by the Planning Director prior to completion of the construction of the ʻohana dwelling unit. (3) The applicant does not secure a building permit for the construction of an ʻohana dwelling unit by the one year time period or 30-day time extension, if granted. (4) The building permit is canceled by the Department of Public Works, Building Division. (b) A written notice of revocation shall be made to the applicant by registered or certified mail with return written receipt. (c) In the event that an ʻohana dwelling unit is constructed contrary to the provisions of this rule and Ordinance No. 96 47, with or without a permit therefor having been issued, it shall be considered unlawful and a public nuisance and action or proceedings for abatement, removal and enjoinment of the unlawful ʻohana dwelling unit shall immediately commence. 12-20 Pending Applications (a) Any permit issued for an ʻohana dwelling unit prior to May 2, 1996 but for which no building permit has been obtained shall be void one year from that date or on the expiration date of the dwelling approval, whichever occurs first. (b) All pending applications for ʻohana dwelling unit permits filed prior to May 2, 1996 shall be processed in accordance with Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended), and the procedures set forth in this rule, with the exception of the filing fee. The Planning Director may require the applicant to submit additional information to comply with Chapter 25 and this rule. 12-8 Planning Department Rules of Practice & Procedure Cross-reference: Article 6, Division 3, ʻOhana Dwellings, Zoning Code 13-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 13. FARM DWELLINGS 13-1 Authority Pursuant to the authority conferred upon the Planning Director by Ordinance No. 96 160, the rules hereinafter contained are established to regulate farm dwellings. 13-2 Purpose The purpose of this rule is to establish procedures for the processing of farm dwellings. 13-3 Definitions As used in this rule, except as otherwise recognized by context: (a) “Farm” means land used for the purpose of agricultural, livestock, poultry, or aquatic production. (b) “Farm dwelling” means a single family dwelling located on or used in connection with a farm, or if the agricultural activity provides income to the family occupying the dwelling. 13-4 General Provisions (a) A farm dwelling may be permitted in the County zoned Family Agricultural (FA), Agricultural (A), and Intensive Agricultural (IA) districts. Prior to approving the building permit for a first farm dwelling within the State Land Use Agricultural district, the Planning Director shall provide a Farm Dwelling Notice to the land- owner. The Farm Dwelling Notice shall include: (1) A statement that Chapter 205, Hawaiʻi Revised Statutes, does not authorize residential dwellings as a permitted use in the State Land Use Agricultural district unless the dwelling is related to an agricultural activity or is a farm dwelling. A farm dwelling as defined in Section 205-4.5, Chapter 205, HRS, means a single family dwelling located on and used in connection with a farm, including clusters of single family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling. (2) Information regarding the penalty for violation of Section 205-4.5, 13-2 Planning Department Rules of Practice & Procedure HRS. (b) A farm dwelling notice is not required for property within the State Land Use Urban or Rural district. (c) Additional farm dwellings may be permitted in the County zoned FA, A and IA districts provided that a farm dwelling agreement, on a form prepared by the Planning Director, is executed between the owner or the lessee of the affected building site and the County. The lessee shall have a lease on the building site with a term exceeding one year from the date of the farm dwelling agreement. 13-5 Petition for a Farm Dwelling Agreement The following shall be provided by the landowner or lessee in applying for a farm dwelling agreement: (a) A notarized affidavit that the additional dwelling(s) shall be used for farm- related purposes. (b) Name and address of the landowner or lessee, if the latter has a lease on the building site with a term exceeding one year from the date of the farm dwelling agreement. (c) Written authorization of the landowner if the request is filed by the lessee. (d) The landowner or lessee shall submit an agricultural development and use pro­ gram, farm plan, or other evidence of the applicant's continual agricultural productivity or farming operation within the County. Such plan shall also show how the farm dwelling(s) will be utilized for farm-related purposes. To verify the applicant's engagement in any agricultural productivity or farming operation, the following evidences may be submitted: (1) State of Hawaiʻi Department of Taxation's Gross Income License. (2) Approved agricultural dedication from the County of Hawaiʻi Department of Finance, Real Property Tax Division. (3) Receipts of income received from sale of agricultural products. 13-6 Agencies Review The Planning Director may forward the agricultural development and use program, farm plan, or other evidence of the applicant's continual agricultural productivity or farming operation within the County to cooperating agencies (i.e., County of Hawaiʻi Department of Research and Development, Department of Finance's Real Property Tax Division, University of Hawaii College of Tropical Agriculture & Human Resources' Cooperative Extension Service, State Department of Agriculture, 13-3 Planning Department Rules of Practice & Procedure Department of Water Supply, and U.S.D.A, Natural Resources Conservation Service) for review and comment. Should the agencies not provide any response, the Planning Director may still proceed with making a decision. 13-7 Decision on Farm Dwelling Agreement The Planning Director shall render a decision (approve or deny) on the farm dwelling agreement petition within sixty days of receipt of the request, unless a longer period of time is agreed upon by the applicant. If the decision is not rendered within the specified period, the petition shall be deemed denied. 13-8 Contents of Farm Dwelling Agreement At a minimum, the farm dwelling agreement issued by the Planning Director shall include the following: (a) Name and address of the landowner or lessee. The landowner's authorization is required if the farm dwelling agreement is filed by a lessee. (b) Tax Map Key identification. (c) State Land Use district classification and County zoning district. (d) Conditions requiring that: (1) The farm dwelling shall be used to provide shelter to person(s) involved in the agricultural or farm-related activity on the building site. Family members who are not engaged in agricultural or farm- related activity are allowed to reside in the farm dwelling. (2) The agreement shall run with the land and apply to all persons who may now or in the future use or occupy the farm dwelling. (3) The landowner or lessee shall record the approved Farm Dwelling Agreement with the State of Hawaiʻi, Bureau of Conveyances and/or with the Land Court System within thirty days from the date of receipt of approval of the Farm Dwelling Agreement. A copy of the recorded Farm Dwelling Agreement shall be submitted to the Planning Director prior to approval of the building permit. 13-9 Appeal of Decision The approval or disapproval of the farm dwelling agreement by the Planning Director may be appealed to the Board of Appeals in accordance with its rules. Cross-reference: Section 25-5-77. Other regulations., Zoning Code 14-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 14. COUNTY ENVIRONMENTAL REPORTS 14-1 Authority Pursuant to the authority conferred upon the Planning Director by Ordinance No. 96 160, the rules hereinafter contained relate to County Environmental Reports. 14-2 Purpose The purpose of this rule is to establish procedures for filing County Environmental Reports, including the content and requirements for preparing a County Environmental Report. 14-3 Definitions As used in this rule, except as otherwise recognized by context: (a) "County Environmental Report" means an informational document filed with applications for a Change of Zone, Project District (PD) Development, or an Agricultural Project District (APD) Development on a form prescribed by the Planning Director in accordance with rules adopted pursuant to Chapter 91, Hawaiʻi Revised Statutes. (b) "Environmental Assessment" means a written evaluation prepared in compliance with Chapter 343, Hawaiʻi Revised Statutes, to ensure that environmental concerns are given appropriate consideration and to determine whether an action may have a significant environmental effect. (c) "Environmental Impact Statement" means an informational document prepared in compliance with Chapter 343, Hawaiʻi Revised Statutes, which discloses the environmental effects of a proposed action, effects of a proposed action on the eco­ nomic and social welfare of the community and State, effects of the economic activities arising out of the proposed action, measures proposed to minimize adverse effects, and alternatives to the action and their environmental effects. 14-4 General Provisions (a) Except as otherwise provided herein, a County Environmental Report and required number of copies shall be submitted with the applications for a Change of Zone, Project District (PD), or an Agricultural Project District (APD). A County Environmental Report shall not be required where either an Environmental Impact Statement or an Environmental Assessment and 14-2 Planning Department Rules of Practice & Procedure finding of no significant impact have been prepared and issued in compliance with Chapter 343, Hawaiʻi Revised Statutes, as amended. (b) The term "County Environmental Report" does not include an Environmental Impact Statement prepared in compliance with Chapter 343, Hawaiʻi Revised Statutes. 14-5 County Environmental Report - Content and Requirements A County Environmental Report is required pursuant to Sections 25-2-42 (a)(5), 25-6-44 (a)(8), and 25-6-54 (a)(8), Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended). A County Environmental Report shall contain the following on a form prepared by the Planning Director: (a) Description of the physical, social, historical, economic, and natural resource con­ sequences of the proposed action; (b) Alternatives to the proposed action; (c) Environmental effects which cannot be avoided should the proposal be implemented; (d) Relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; (e) Any irreversible and irretrievable commitments of natural resources which would be involved in the proposed action; and (f) An analysis of the proposed action. 14-6 Public Notification of County Environmental Reports (a) The Planning Department shall inform the public that a County Environmental Report has been filed through the publication of notices in at least two newspapers of general circulation in the county. The notice may be combined with the semi- monthly publications of all applications received pursuant to the Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended). A copy of the notice shall be made available to any person upon request. (b) The Planning Department shall also maintain a mailing list for any individual desiring notification of any CER filed. 14-7 Public Review of County Environmental Reports (a) Copies of the County Environmental Report shall be available for public review and inspection at the Planning Department with the applications for a Change of Zone, Project District (PD), or an Agricultural Project District (APD). 14-3 Planning Department Rules of Practice & Procedure (b) Public comments on the County Environmental Report may be submitted either to the Planning Director during the application review period or to the Planning Commission prior to or during its public hearing on the application. (c) The public comments on the County Environmental Report shall be made a part of the record of the applications for a Change of Zone, Project District (PD), or Agricultural Project District (APD) and shall be forwarded to the Planning Commission and the County Council. 15-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 15. PROJECT DISTRICTS 15-1 Authority This rule governs Project District (PD) before the Director as required by Chapter 25 (Zoning Code), Hawaiʻi 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 infrastructure 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, Hawaiʻi County Code, which changes the district boundaries in accordance with the individual Project District. 15-3 Minimum Land Area Required The minimum land area required for a Project District shall be fifty acres. 15-4 Permitted Uses Any uses permitted either directly or conditionally in the following County zoning districts shall be permitted in a Project District; provided, that each of the proposed uses and the overall densities for residential and hotel uses shall be contained in a master plan for the Project District and in the Project District enabling ordinance: (a) Single Family Residential (RS) (b) Double Family Residential (RD) (c) Multiple Family Residential (RM) (d) Residential-Commercial Mixed Use (RCX) (e) Neighborhood Commercial (CN) (f) General Commercial (CG) (g) Village Commercial (CV) (h) Resort-Hotel (V) 15-5 Application and Requirements (a) An application for a Project District may be filed with the Director by a property owner or any other person with the property owner's consent and 15-2 Planning Department Rules of Practice & Procedure shall include: (1) A non-refundable filing fee of $5,000. (2) Original of: (A) Description of the property in sufficient detail to determine its location. (B) Master conceptual plan of the property, showing the Project District boundaries and the land uses and acreage of land involved. (C) Description of the proposed Project District, including land uses, densities, infrastructure requirements, and development standards. (D) Description of each of the open space areas proposed for the Project District for cultural and/or environmental purposes, including those open space areas preserved because of natural hazards. (E) County Environmental Report. A County Environmental Report shall not be required for any amendment where either an environmental impact statement or an environmental assessment and negative declaration have been prepared and issued in compliance with Chapter 343, HRS. The environmental impact statement or environmental assessment in compliance with Chapter 343, HRS, shall be submitted with the application. (F) Any other plans or information required by rules adopted by the Director in accordance with Chapter 91, HRS. (3) Legal description of the property in map and written form by metes and bounds as certified by a surveyor. (4) List of names, addresses and tax map keys for those property owners and lessees of record of surrounding properties: (A) Within three hundred feet of any point along the perimeter boundary of the building site affected by the application if the building site is located within State Land Use Urban or Rural district, or; (B) Within five hundred feet of any point along the perimeter 15-3 Planning Department Rules of Practice & Procedure boundary of the building site affected by the application if the building site is located within the State Land Use Agriculural district, except that if the surrounding lots are located within either the State Land Use Urban or Rural district, notice shall be served on the owners and lessees of record of all lots which any portion is within three hundred feet of the building site. (b) The Director shall neither accept nor process an application which is incomplete as to form and content. (c) Within ten days after filing an application for a Project District, the applicant shall service notice of the application on surrounding owners and lessees of record as provided under section 15-5 (a)(5) above. (d) The Director shall forward the application to the Planning Commission within one hundred twenty days after its acceptance. The Director shall also transmit a recommendation on the proposed Project District, together with 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 and Chapter 23 (Subdivision Control), Hawaiʻi County Code 1983 (2016 Edition, as amended), if applicable, as contained in the master conceptual plan for the Project District. 15-6 Review and Approval of Site Plans (a) After adoption of a Project District enabling ordinance, the applicant shall submit to the Director detailed site plans for the Project District development. The site plans shall conform to the enabling ordinance and shall include the following: (2) Plans for required infrastructure improvements; (3) All items required for a plan approval application; and (4) Any other information required by rules adopted by the Director in accordance with Chapter 91, HRS. (b) Within sixty days after acceptance of the site plans, the Director shall either deny or approve the plans. (c) The Director may approve the site plans for the Project District only if the applicant has complied with all of the conditions contained in the Project District enabling ordinance and the site plans conform to the standards contained in the ordinance. The Director may approve the site plans subject to conditions, or subject to certain changes when, in the Director's opinion, 15-4 Planning Department Rules of Practice & Procedure such conditions or changes are necessary to carry out the purposes of the Project District and Chapter 25, Hawaiʻi County Code. (d) If the Director fails to render a decision on the site plans within the prescribed period, the site plans shall be considered approved without further certification by the Director. 15-7 Review Criteria and Conditions of Approval In reviewing site plans for a Project District, the Director shall consider the proposed development and uses in relation to the surrounding properties, improvements, streets, traffic, community characteristics, and natural features, and may require conditions or changes to assure: (a) Adequate light and air, proper siting and arrangements of all structures and improvements are provided; (b) Existing and prospective traffic movements will not be hindered; (c) Proper landscaping is provided that is commensurate with the development or use and its surroundings; (d) Unsightly areas are properly screened or eliminated; (e) Adequate off-street parking is provided to serve the development or use; (f) Access to the parking areas will not create potential accident hazards; and (g) Within reasonable limits, any natural and man-made features of community value are preserved. 15-8 Construction in Conformity with Approved Site Plans Every structure, development and use contained in site plans for a Project District approved by the Director shall be constructed and developed in accordance with the terms, specification and conditions of approval for those site plans. 15-9 Plan Approval Issued by Approval of Site Plans Plan approval shall be considered issued when site plans for a Project District are approved by the Director, and no further action is required for the issuance of plan approval. 15-10 Amendments 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 County Council in the ordinance authorizes the amendments to be made by the Director. A request for any amendment shall be submitted in writing to the Director in lieu of the application required for a Project 15-5 Planning Department Rules of Practice & Procedure District. The request shall be accompanied by a filing fee of $250. 15-11 Appeal of Director's Actions on Proiect District Site Plans Any person aggrieved by the decision of the Director in the issuance of a decision regarding Project District site plans may appeal the Director's action to the Board of Appeals in accordance with its rules, within thirty days after the written decision is issued by the Director. Cross-reference: Article 6, Division 4, Project Districts (PD)., Zoning Code Rule 15. PROJECT DISTRICTS, Planning Commission Rules of Practice & Procedure 16-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 16. AGRICULTURAL PROJECT DISTRICTS 16-1 Authority This rule governs Agricultural Project District (APD) before the Director as required by Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended). 16-2 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 for a rural lifestyle on marginal agricultural land, while decreasing the pressure to develop important agricultural land for this purpose. The planning approach would establish a continuity in land uses and designs, while providing for the needed infrastructure facilities and systems to support the various types of agricultural developments. An Agricultural Project District is an amendment to Chapter 25, Hawaiʻi County Code, which changes the district boundaries in accordance with the individual Agricultural Project District. 16-3 Minimum Land Area Required The minimum land area required for an Agricultural Project District shall be five acres. 16-4 Permitted Uses; Overall Density Any uses permitted either directly or conditionally in the County Agricultural (A) and Intensive Agricultural (IA) zoning districts shall be permitted in an Agricultural Project District, and the overall density permitted in an Agricultural Project District shall not be greater than one acre per building site. Each of the proposed uses and the overall densities for dwelling uses shall be contained in a master conceptual plan for the Agricultural Project District and in the Agricultural Project District enabling ordinance. 16-5 Application and Requirements (a) An application for an Agricultural Project District may be filed with the Director by a property owner or any other person with the property owner's 16-2 Planning Department Rules of Practice & Procedure consent and shall include: (1) A non-refundable filing fee of $100 per acre up to a maximum of $5,000. (2) Original of: (A) Description of the property in sufficient detail to determine its precise location. (B) Master conceptual plan of the property, showing the Agricultural Project District boundaries and the land uses and acreage of land involved. (C) Description of the proposed Agricultural Project District, including land uses, densities, infrastructure requirements, and development standards. (D) Description of each of the open space areas proposed for the Agri- cultural Project District for cultural and/or environmental purposes, including those open space areas preserved because of natural hazards. (E) County Environmental Report. A County Environmental Report shall not be required for any amendment where either an environmental assessment and negative declaration have been prepared and issued in compliance with Chapter 343, HRS. The environmental impact statement or environmental assessment in compliance with Chapter 343, HRS, shall be submitted with the application. (F) Any other plans or information required by rules adopted by the Director in accordance with Chapter 91, HRS. (3) Legal description of the property in map and written form by metes and bounds as certified by a surveyor. (4) List of names, addresses and tax map keys for those property owners and lessees of record of surrounding properties: (A) Within three hundred feet of any point along the perimeter boundary of the building site affected by the application if the building site is located within the State Land Use Urban or Rural district; or (B) Within five hundred feet of any point along the perimeter 16-3 Planning Department Rules of Practice & Procedure boundary of the building site affected by the application if the building site is located within the State Land Use Agricultural district, except that if the surrounding lots are located within either the State Land Use Urban or Rural district, notice shall be served on the owners and lessees of record of all lots which any portion is within three hundred feet of the building site. (b) The Director shall neither accept nor process an application which is incomplete as to form and content. (c) Within ten days after filing an application for an Agricultural Project District, the applicant shall service notice of the application on surrounding owners and lessees of record as provided under section 16-5 (a)(5) above. (d) The Director shall forward the application to the Planning Commission within one hundred twenty days after its acceptance. The Director shall also transmit a recommendation on the proposed Agricultural Project District, together with a pro­ posed ordinance which establishes the Agricultural Project District. The ordinance shall provide Agricultural Project District standards and conditions, including per­ mitted land uses, accessory uses, densities, heights, setbacks, and variances from the requirements of Chapter 25 and Chapter 23 (Subdivision Control), Hawaiʻi County Code 1983 (2016 Edition, as amended), if applicable, as contained in the master conceptual plan for the Agricultural Project District. 16-6 Review and Approval of Site Plans (a) After adoption of an Agricultural Project District enabling ordinance, the applicant shall submit to the Director detailed site plans for the Agricultural Project District development. The site plans shall conform to the enabling ordinance and shall include the following: (1) Plans for required infrastructure improvements; (2) All items required for a plan approval application; and (3) Any other information required by rules adopted by the Director in accordance with Chapter 91, HRS. (b) Within sixty days after acceptance of the site plans, the Director shall either deny or approve the plans. (c) The Director may approve the site plans for the Agricultural Project District only if the applicant has complied with all of the conditions contained in the Agricultural Project District enabling ordinance and the site plans conform to the standards contained in the ordinance. The Director may approve the site plans subject to conditions, or subject to certain changes when, in the 16-4 Planning Department Rules of Practice & Procedure Director's opinion, such conditions or changes are necessary to carry out the purposes of the Agricultural Project District and Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended). (d) If the Director fails to render a decision on the site plans within the prescribed period, the site plans shall be considered approved without further certification by the Director. 16-7 Review Criteria and Conditions of Approval In reviewing site plans for an Agricultural Project District, the Director shall consider the proposed development and uses in relation to the surrounding properties, improvements, streets, traffic, community characteristics, and natural features, and may require conditions or changes to assure: (a) Adequate light and air, proper siting and arrangements of all structures and improvements are provided; (b) Existing and prospective traffic movements will not be hindered; (c) Adequate off-street parking is provided to serve the development or use; (d) Access to the parking areas will not create potential accident hazards; and (e) Within reasonable limits, any natural and man-made features of community value are preserved. 16-8 Construction in Conformity with Approved Site Plans Every structure, development and use contained in site plans for an Agricultural Project District approved by the Director shall be constructed and developed in accordance with the terms, specification and conditions of approval for those site plans. 16-9 Plan Approval Issued by Approval of Site Plans Plan approval shall be considered issued when site plans for an Agricultural Project District are approved by the Director, and no further action is required for the issuance of plan approval. 16-10 Amendments 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 County Council in the ordinance authorizes the amendments to be made by the Director. A request for any amendment 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 filing fee of $250. 16-5 Planning Department Rules of Practice & Procedure 16-11 Appeal of Director's Actions on Project District Site Plans Any person aggrieved by the decision of the Director in the issuance of a decision regarding Agricultural Project District site plans may appeal the Director's action to the Board of Appeals in accordance with its rules, within thirty days after the written decision is issued by the Director. Cross-reference: Article 6, Division 5, Agricultural Project Districts (APO)., Zoning Code Rule 16. AGRICULTURAL PROJECT DISTRICTS, Planning Commission Rules of Practice & Procedure 17-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 17. LANDSCAPING REQUIREMENTS 17-1 Authority and Applicability This rule governs the Plan Approval standards for landscaping pursuant to Article 2 (Administration and Enforcement), Division 7 (Plan Approval), Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended). Other references to landscaping in the Zoning Code, which are reviewed through Plan Approval, include: Sections 25-4-59.3 (parking lot and loading spaces), -5-37 (RM), -5-47 (RCX), -5-97 (V), -5-107 (CN), -5-117 (CG), -5-127 (CV), -5- 137 (MCX), -5-147 (ML), -5-157 (MG), -6-3 (PUD), -6-47 (Project District), -7-4 (Kailua Village Design Commission). At no time shall the landscaping requirements pursuant to this rule exceed the requirements of Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended). 17-2 Purpose Landscaping protects the health and welfare of the community by serving the following purposes: (a) Buffering and screening. Landscaping eliminates or minimizes potential nuisances such as noise, dust, litter, glare of lights, signs, or unsightly areas between adjacent land uses or between a land use and roadways. (b) Moderating the visual impact and microclimate of expansive paved parking lots. Landscaping along the perimeter and within the interior of parking lots provide visual relief from the rows of parked vehicles or asphalt. Trees add shade that moderate the temperature of parking lots during sunny days. (c) Enhancing the streetscape of commercial and industrial areas. Landscaping the front yards of commercial and industrial areas provides a human scale and visual continuity from the viewpoint of motorists and pedestrians traveling within the right-of-way. (d) Promoting ecological and cultural values. Encouraging landscaping with native species, other species adaptable to the environment, and species suitable for the intended function conserves water, promotes ecological and cultural appreciation, and adequately fulfills the intended buffering, screening, or shading functions without causing undue maintenance problems. 17-2 Planning Department Rules of Practice & Procedure 17-3 Definitions (a) BERM: An earthen mound designed to provide visual interest on site, screening of undesirable views, noise reduction, etc. (b) BUFFER: A combination of physical space and vertical elements, such as plants, berms, fences, or walls, the purpose of which is to separate and screen incompatible land uses from each other. (c) BUFFERYARD: One of several specific combinations of minimum building set­ backs, landscaped yard widths, and plant material requirements set forth in this rule for use in buffering incompatible land uses. (d) OPAQUE: A level of screening that completely blocks the view. (e) SCREENING: A method of reducing the impact of visual and/or noise intrusions through the use of plant materials, berms, fences and or walls, or any combination thereof. Screening blocks that which is unsightly or offensive with a more harmonious element. (f) SHRUB: A woody plant, or small palm smaller than a tree, which consists of a number of small stems from the ground or small branches near the ground. (g) TREE: A large, woody plant or large palm having one or several self- supporting stems or trunks and numerous branches. (h) WOODLAND: Existing trees and shrubs of a number, size and type that approximately accomplish the same function as new plantings. 17-4 Submittal Requirements (a) Applicability. Plan approval applications for projects located in the RM, RCX, V, CN, CG, CV, MCX, ML, MG, or Project districts shall include a landscape plan. Plan approval applications for a project located in any zoning district that proposes a loading area or parking lot with 5 or more parking stalls shall also include a land- scape plan. (b) Preparation. A landscape plan meeting the provisions of this rule which is pre­ pared by a landscape architect or landscape contractor, licensed in the State of Hawaii, shall be granted approval. Any landscape plan developed by other means shall be subject to Planning Department Review. (c) Contents of Landscape Plan. The landscape plan may be submitted on a separate sheet or superimposed on a single sheet with the site plan. The landscape plan shall include the following planting and site information: (1) Existing vegetation 17-3 Planning Department Rules of Practice & Procedure (A) Location, general type and quality of existing vegetation, specimen trees, and areas of secondary growth; (B) Existing vegetation to be saved (indicated and noted accurately); (C) Methods and details for protection of existing vegetation during construction and the approved sediment control plan, if available; (2) Proposed vegetation (A) Locations and labels of all proposed plants; (B) Plant list or schedule to include botanical and common name, quantity, spacing and size at time of planting of all proposed plants; (3) Location and description of other landscape improvements, such as earth berms, walls, fences, screens, sculptures, fountains, street furniture, lights and courts or paved areas; (4) Irrigation plan; (5) Planting installation details as necessary to insure conformance with the standards set forth in this rule. (6) Site information (A) North arrow and scale; (B) Property lines; (C) Zoning and use of all abutting properties; (D) Name, location, and right-of-way and paving widths of all abutting streets; (E) Natural features such as ponds, lakes and streams; (F) Delineation of 100 year floodplain and non-tidal wetlands; (G) Required yard depths/widths (i.e., setbacks from all lot lines); 17-4 Planning Department Rules of Practice & Procedure (H) Location, height, dimensions, and use of all existing and proposed buildings and other structures (including parking lots, sidewalks, and other paved areas; fences and walls; and recreational facilities); (I) Location of any slopes steeper than 3:1; (J) Location of existing and proposed utilities and utility easement, including water, storm drain, and sanitary sewer pipes; overhead wires; utility poles and boxes; and signs if available; and (K) Location, size and description of all elements which are required to be screened. 17-5 Review and Approval Procedure (a) Plan Approval Procedures. The landscape submittals shall be reviewed together with the complete Plan Approval submittal in accordance with the procedures for Plan Approval. (b) When Landscaping Must Be Completed. All landscaping, unless the director has approved a phasing plan, shall be completed in accordance with the approved land- scape plan prior to issuance of a certificate of occupancy for any building on the lot. 17-6 Landscape Standards (a) Open space requirements in the RM, RCX, and V districts. The Zoning Code requires landscaping on a minimum of 20% of the building site in the RM, RCX, and V districts to ameliorate the potential higher densities permitted in these districts. (1) Calculation of 20% area. In determining the minimum 20% landscaped area, subtract from the gross building site area the following: building foot­ print, parking areas, loading areas, and driveways. Interior courtyards, roof gardens, solariums, or other landscaping not visible from the lot perimeter at ground level shall not be included in the 20% landscaped area. (2) Open space landscaping standard. Landscaping shall include plant materials including grass and/or ground cover, and water features such as ponds. It shall not include hard-surface outdoor recreation areas such as tennis courts or swimming pools. A minimum of one (1) tree is required per 2,000 square feet or fraction of landscaped area. Existing trees exceeding two and one-half ( 2 1/2) inches caliper located anywhere in the landscaped area on the site may be counted 17-5 Planning Department Rules of Practice & Procedure on a one-to-one basis as fulfilling up to 100% of the requirement for trees on that site. (b) Bufferyard requirements in the CN, CG, CV, MCX, ML, and MG districts. The Zoning Code requires a landscaped bufferyard within the side yards of building sites within the commercial (CN, CG, CV) district if the building site adjoins any residential district (RS, RD, RM), and within the side and/or rear yards of building sites within the industrial districts (MCX, ML, MG) if the building site adjoins any residential district (RS, RD, RM). (1) General bufferyard standard. Development on any lot within the CN, CG, CV, MCX, ML, and MG districts that adjoins any residential district shall provide sufficient buffering to shield the residential lot(s) from any adverse external effects of the commercial or industrial development. (2) Compliance with bufferyard standard. Any of the following landscape treatments may be used singly or in combination to satisfy the general standard: (A) MCX, ML, MG districts. To exclude all visual contact between the industrial and residential uses and to create a strong spatial with concomitant lessening of noise intrusion, the landscaped buffer shall be opaque from the ground to a height of at least six feet, with intermittent visual screening from the opaque portion to a height of at least 20 feet. Compliance shall be determined on the basis of the average mature height and density of foliage of the subject species, or field observation of existing vegetation. At maturity, the portion of intermittent visual screening should not contain any completely unobstructed openings more than 10 few wide. Options that presumptively achieve this standard include (see Example 1): (i) Small trees (20' at maturity) planted 30' on center with 3’ solid fence or wall. (ii) Small trees (20' at maturity) planted 20-30' on center on top of 3' high seeded earth berm. (iii) Tall trees (taller than 40' at maturity) planted with branches touching near the ground. B) CN, CG, CV districts. To partially exclude visual contact between the commercial and residential uses and to create a strong spatial separation, with concomitant lessening of noise 17-6 Planning Department Rules of Practice & Procedure intrusion, the land scaped buffer shall be opaque from the ground to a height of at least three feet, with intermittent visual screening from the opaque portion to a height of at least 20 feet. Compliance shall be determined on the basis of the average mature height and density of foliage of the subject species, or field observation of existing vegetation. At maturity, the portion of intermittent visual screening should not contain any completely unobstructed openings more than 10 feet wide. Options that presumptively achieve this standard include (see Example 2): (i) Small trees (20’ at maturity) planted 30’ on center with 3' solid fence or wall. (ii) Small trees (20’ at maturity) planted 20-30’ on center on top of 3' high seeded earth berm. (iii) Large trees (20’ to 40’ at maturity) planted 40’ on center with 3' high hedge shrubbery planted 3’ on center. (c) Front yard landscaping requirements in the CN, CG, CV, MCX, ML, and MG districts. Where the Zoning Code requires a front yard in the CN, MCX, ML, and MG districts, or where the front yard option is selected over the rear yard in the CV and CG districts, the front yard shall be landscaped pursuant to the following standards. (1) General front yard landscaping standard. Front yard landscaping on any lot within the CN, CG, CV, MCX, ML, and MG districts shall provide sufficient plant material that complements the surrounding. The landscaped strip may not include any paved area, except pedestrian sidewalks or trails which cross the landscaped strip. (2) Compliance with front yard landscaping standard. Any of the following landscape treatments may be used singly or in combination to satisfy the general standard (see Example 3): (A) Provide a minimum 10 foot wide landscaped strip to be planted with a minimum of one (1) tree and 10 shrubs per 35 linear feet of frontage, excluding driveway openings. Where the plantings required would result in an inappropriate or impractical design due to underground utilities, overhead wires, or other factors, 5 shrubs may be substituted for 1 tree. (B) Provide a minimum 10 foot wide strip of existing woodlands. 17-7 Planning Department Rules of Practice & Procedure (d) Parking lot landscaping requirements (1) Perimeter landscaping requirements. The following requirements apply to a parking lot of five or more spaces. (A) Screening along right-of-way. When a parking lot in any zone is located adjacent to a public right-of-way, a landscape screen shall be provided on the property between the parking lot and the right- of-way. (In circumstances where greater parking lot setbacks are required than those listed below, the greater requirement shall apply). The landscaped strip may not include any paved area except pedestrian sidewalks or trails which cross the landscaped strip. Any of the following landscaped strip treatments may be used singly or in combination (see Example 4): (i) Provide a minimum 10 foot wide landscape strip between the right-of-way and the parking lot to be planted with a minimum of one (1) tree and 10 shrubs per 35 linear feet of frontage, excluding driveway openings. Where the plantings required would result in an inappropriate or impractical design due to underground utilities, overhead wires, or other factors, 5 shrubs may be substituted for 1 tree. (ii) Provide a berm, the top of which is at least 2 ½ feet higher than the elevation of the adjacent parking lot pavement. The slope of the berm shall not exceed 33 % (3:1) for lawn areas. Berms planted with ground covers and shrubs may be steeper. However, no slope shall exceed 50% (2:1). Berms should be graded to appear as smooth, rounded, naturalistic forms. Avoid narrow bumps which result from creating too much height for the width of the space. Plant with a minimum of one (1) tree and five (5) shrubs per 35 linear feet of frontage, excluding driveway openings. Where the plantings required would result in an inappropriate or impractical design due to underground utilities, overhead wires, or other factors, 5 shrubs may be substituted for 1 tree. (iii) Provide a minimum six (6) foot wide landscaped strip and a minimum three (3) foot grade drop from the right-of-way line to the adjacent parking lot pavement. Plant the resulting embankment with a minimum of one (1) tree and five (5) shrubs per 35 17-8 Planning Department Rules of Practice & Procedure linear feet of front­ age, excluding driveway openings. Where the plantings required would result in an inappropriate or impractical design due to underground utilities, overhead wires, or other factors, 5 shrubs may be substituted for 1 tree. (iv) Provide a minimum four (4) foot wide landscaped strip between the right-of-way line and the parking lot, with a maximum three (3) foot high brick, stone or finished concrete wall to screen the parking lot. The wall shall be located adjacent to but entirely outside the four (4) foot landscaped strip. Plant with a minimum of one (1) tree per 35 linear feet of frontage, excluding driveway openings. Where the plantings required would result in an inappropriate or impractical design due to underground utilities, over head wires, or other factors, 5 shrubs may be substituted for 1 tree. (v) Provide a minimum 10 foot strip of existing woodlands. (B) Screening from adjoining RS, RD, RM, RCX, or RA districts. When the adjacent property is zoned RS, RD, RM, RCX, or RA, parking lots shall be set back from adjacent property lines in accordance with the requirements of the Zoning Code. In all other cases, the perimeter of a proposed parking lot adjacent to a property line shall be treated as indicated below. (For the purposes of this Section, a parking lot shall be considered adjacent to a property line when any part of the lot is within 30 feet of the property line and no building is located between the lot and the property line). (i) Provide a landscaped strip between the parking lot and any adjacent property line, to be a minimum of five (5) feet wide for building sites 10,000 square feet or more. Within this landscaped strip, provide one (1) tree and three (3) shrubs per 35 linear feet of parking lot perimeter adjacent to property line. (This does not mean that trees must be located 35 feet on center.) Any tree planted to fulfill another requirement of this rule which is located within 15 feet of the edge of the parking lot, may count toward fulfillment of this requirement. Where the plantings required would result in an inappropriate or impractical design due to 17-9 Planning Department Rules of Practice & Procedure underground utilities, overhead wires, or other factors, 5 shrubs may be substituted for 1 tree. (ii) Provide a minimum 25 foot wide strip of existing woodland. (2) Interior landscaping requirements. Parking lots with more than 12 stalls shall provide landscaping within the interior of the parking lot according to the following standards: (A) At least one (1) canopy tree shall be provided for every 12 parking stalls or fraction thereof. These trees shall have a minimum of 2" caliper, a planting area or tree well no less than 30 s.f. in area, and a clear trunk at least six (6) feet above finished grade level. Trees shall be sited so as to evenly distribute shade throughout the parking lot (see Example 5). (B) A curb or wheelstop shall be provided for all parking spaces adjacent to planting or pedestrian areas to protect those areas from overhanging by parked vehicles. Continuous planting areas with low ground cover centered at the corner of parking stalls may be located within the three-foot overhand space of parking stalls. Hedges and other landscape elements, including planter boxes over six inches in height, are not permitted within the overhang space of the parking stalls (see Example 6). (C) Planting islands which are parallel to parking spaces shall be a minimum of nine (9) feet wide to allow car doors to swing open (see Example 7). (D) In cases where a planting island is perpendicular to parking spaces and the spaces head into the planting island on both sides, the island shall be a minimum of eight (8) feet wide to allow for bumper over hang. If parking spaces are located on only one side of such a planting island, the island shall be a minimum of six (6) feet wide (see Example 8). (e) Screening requirements, for loading spaces, trash disposal areas, mechanical equipment. (1) Loading areas A) General standard. Except porte cocheres, all loading areas, loading docks, vehicular lanes providing access to the above, and service or maintenance areas shall be screened from any 17-10 Planning Department Rules of Practice & Procedure adjoining properties in the RS, RD, RM, RCX, or RA districts; from all public roads; if located within a residential development, from all outdoor living and recreation areas, parking areas, and entrance drives within the development; and if located within a commercial development, from all outdoor recreation areas, retail parking areas and entrance drives within the development. In general, screening materials shall consist of trees and shrubs, vines, walls, fences, and berms; screening fences and walls shall not be constructed of corrugated metal, corrugated fiberglass, sheet metal. (B) Compliance with general standard. Any of the following landscape treatments may be used singly or in combination to satisfy the general standard: (i) 6 ft. high opaque fence or wall (may be plant covered or veneered with natural materials) (ii) 6 ft. high berm (iii) 6 ft. plant screen (2) Trash disposal areas (A) General standard. All dumpsters or trash storage areas shall be screened from any adjoining properties in the RS, RD, RM, RCX, or RA districts; from all public roads; if located within a residential development, from all outdoor living and recreation areas, parking areas, and entrance drives within the development; and if located within a commercial development, from all outdoor recreation areas, retail parking areas and entrance drives within the development. (B) Compliance with general standard. Any of the following landscape treatments may be used singly or in combination to satisfy the general standard: (i) Opaque fence or wall (may be plant covered or veneered with natural materials). (ii) Plant screen (height, spacing and variety to be determined by size and location of area to be screened). (3) Mechanical equipment 17-11 Planning Department Rules of Practice & Procedure (A) General standard. All mechanical equipment and meters (including free standing air conditioners, heat pumps, and similar equipment, but not including public utility transformers, electric and other meters attached to single- family dwelling units, and heat pumps or air conditioners for single-family dwelling units, unless placed in a group of three or more) shall be screened from any adjoining prop erties in the RS, RD, RM, RCX, or RA districts; from all adjacent public roads; if located within residential development, from all outdoor living and recreation areas, parking areas and entrance drives within the development; and, if located within a commercial development, from all outdoor recreation areas, parking areas, and entrance drives. (B) Compliance with general standard. Any of the following landscape treatments may be used singly or in combination to satisfy the general standard which is intended to shield the equipment from visual contact with concomitant lessening of noise intrusion: (i) Opaque fence or wall (may be plant covered or veneered with natural materials) (ii) Plant screen (height, spacing and variety to be determined by size and location of area to be screened) 17-7 Plant Material and Installation Standards (a) General. Plant material shall be of a size and quality at installation to meet the objectives of the approved landscape plan within 24 months from the date of the certificate of occupancy. (b) Hedges. Hedges, where required, shall form a partial visual screen of at least 2-1/ 2 feet in height immediately upon planting and shall be spaced a maximum of 3' on center for a 3' high hedge and 4' on center for a 6' high hedge. (c) Trees. Root barriers shall be required where there is a potential to damage side­ walks or pavement in the adjoining right-of-way. 17-8 Maintenance Standards; Irrigation Requirements Maintenance Standards. All required landscaping shall be maintained in good growing condition. No plant material shall be allowed to encroach on rights-of-way and easements that interferes with motorists' vision of vehicular traffic, pedestrian use within the rights- of-way or easement, or overhead utility lines. 17-12 Planning Department Rules of Practice & Procedure (a) Irrigation Requirement. Irrigation shall be required unless evidence is submitted at plan approval of a maintenance contract or installation guarantee of a minimum of 1 year. (b) Plant material that dies or is destroyed shall be replaced by comparable plant material. Cross-reference: Article 2, Division 7, Plan Approval., Zoning Code 18-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 18. DE MINIMIS STRUCTURE POSITION DISCREPANCY 18-1 Authority This rule is made pursuant to Chapter 91, Hawaii Revised Statutes, Section 25-14, Chapter 25 (Zoning Code), Hawaiʻi County Code 1983 (2016 Edition, as amended), and Sections 669-11,12, and 13, Hawaiʻi Revised Statutes. 18-2 Purpose and Findings This rule governs the determination whether a minor discrepancy between the yard or open space required under Chapter 25, Hawaiʻi County Code 1983 (2016 Edition, as amended), and the actual yard or open space, is a violation of the zoning code. The Director finds that with more modern surveys, it is sometimes discovered that a structure has been inadvertently located a small distance into a required yard or open space. Sections 669-11,12, and 13, Hawaiʻi Revised Statutes, legitimated "de minimis" encroachments of improvements across boundary lines. The purpose of this rule is to apply the same principle to similar minor encroachments into required yards and open spaces. 18-3 Definition "De minimis structure position discrepancy" means a difference between the distance from a property boundary required by the Zoning Code for a yard or open space and the actual distance, of not more than the following: (a) For property zoned Multiple Residential (RM), Residential-Commercial Mixed Use (RCX), Resort-Hotel (V), Neighborhood Commercial (CN), General Commercial (CG), Village Commercial (CV), Industrial- Commercial Mixed (MCX), Limited Industrial (ML), General Industrial (MG), Downtown Hilo Commercial (CDH), or within a Planned Unit Development (PUD), Cluster Plan Development (CPD), or Project District (PD): 0.25 feet; (b) For property zoned Single Family Residential (RS) or Double-Family Residential (RD): 0.5 feet; (c) For property zoned Residential and Agricultural (RA), Family Agricultural (FA), Agricultural (A), Intensive Agricultural (IA), or Agricultural Project District (APD): 0.75 feet. 18-2 Planning Department Rules of Practice & Procedure 18-4 Procedure for Recognizing a De Minimis Structure Position Discrepancy An application for recognition of a de minimis structure position discrepancy shall be filed with the Director and shall include: (a) A description of the property in sufficient detail to determine the precise location of the property involved; (b) A plot plan of the property, prepared by a licensed surveyor, showing existing improvements, and the improvement(s) and relevant distances for the de minimis structure position discrepancy; (c) A description of the nature of the improvements involved in the de minimis structure position discrepancies; (d) A statement by the landowner that to the best of the landowner's knowledge and information, the improvements were placed without actual knowledge that they did not meet the minimum yard or open space requirements. 18-5 Review by Director Within fifteen days of receipt of the application, the Director shall either accept the application as complete, or reject it as incomplete, in writing. Any rejection shall list the deficiencies in the application. The Director shall approve or deny an application for recognition of a de minimis structure position discrepancy within twenty-five days after acceptance of the application. If the Director does not approve or deny the application within twenty-five days of acceptance, the application shall be deemed approved. 18-6 Grounds for Approval or Denial The Director shall approve an application for recognition of a de minimis structure position discrepancy unless: (a) The discrepancy is greater than the difference allowed by Section 18-3 above; or (b) The Director finds that the improvement was placed with knowledge that it would violate the minimum yard or open space requirements; or (c) The improvement could be moved, or the discrepancy otherwise corrected, without significant expense, difficulty, or hardship to the applicant. 18-7 Recognition of De Minimis Structure Position Discrepancy If the Director accepts the application for recognition of de minimis structure position discrepancy, the Director shall notify the applicant in writing that the discrepancy is not a violation of the Zoning Code and that it may remain in place without a variance. 18-3 Planning Department Rules of Practice & Procedure 18-8 Disclosure A de minimis structure position discrepancy shall be disclosed by the owner to subsequent purchasers of the property in question. 18-9 Appeals The Director's decision with respect to a de minimis structure position discrepancy is appealable to the Board of Appeals. 19-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 19. PRE-EXISTING LOTS BASED UPON LEASES. 19-1 Purpose The purpose of this rule is to specify when pre-existing lots may be recognized based upon leases. 19-2 Authority This rule is made pursuant to Chapter 91, Hawaiʻi Revised Statutes, Sections 25-14 and 25- 2-11, Chapter 25 (Zoning Code), and section 23-7, Chapter 23 (Subdivision Code) of the Hawaiʻi County Code 1983 (2016 Edition, as amended), and Sections 6-4 (c) and (e) of the Hawaiʻi County Charter. 19-3 Definition As used in this rule, except as otherwise recognized by context: "Pre-existing lot" means a specific area of land that will be treated as a legal lot of record because of actions that occurred before the enactment of the first applicable county subdivision ordinance. 19-4 Requirements for Pre-existing Lots Based Upon Leases No pre-existing lot shall be recognized based upon a lease, except for a lease which complied with all other applicable laws when made, including territorial statutes on the lease or sale of property by lot number or block number, and on the effective date of this rule, the proposed lot: (a) Contains a legal dwelling, or (b) Has been continuously leased since January 8, 1948, as a separate unit. 19-5 Proof The owner of property seeking recognition as a pre-existing lot under Section 19-4 of this rule must show that a valid lease was in existence on January 8, 1948, for the specific area, with proof sufficient to demonstrate the boundaries of the claimed lot with reasonable certainty. 19-6 Applicability This rule shall not affect any pre-existing lots recognized by official action of the 19-2 Planning Department Rules of Practice & Procedure Director, or within any subdivision which had received tentative or final approval, prior to the effective date of this rule. 20-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI AMENDMENTS TO THE COUNTY OF HAWAIʻI PLANNING DEPARTMENT'S RULES OF PRACTICE AND PROCEDURE. THE PLANNING DIRECTOR OF THE COUNTY OF HAWAIʻI ADOPTS THE FOLLOWING AMENDMENTS TO THE PLANNING DEPARTMENT'S RULES OF PRACTICE AND PROCEDURE. SECTION 1. The County of Hawaiʻi Planning Department's Rules of Practice and Procedure is amended by including the following Rule 20 relating to Consolidation and Resubdivision. RULE 20. CONSOLIDATION AND RESUBDIVISION 20-1 Purpose The purpose of this rule is to clarify certain aspects of consolidation and resubdivision. 20-2 Authority This rule is made pursuant to Sections 25-1-4 and 25-2-11, Chapter 25 (Zoning Code) and Section 23-7, Chapter 23 (Subdivision Code) of the Hawaiʻi County Code, and sections 6-4 (c) and (e) of the Hawaiʻi County Charter. 20-3 Definitions As used in this rule, except as otherwise recognized by context: (a) "Pre-existing lot" means a specific area of land that will be treated as a legal lot of record because of actions that occurred before the enactment of the first applicable county subdivision ordinance. (b) "Conforming" means in compliance with the requirements of the applicable zoning district, including minimum building site area and minimum dimensions. 20-4 Use of Certain Pre-existing Lots in Consolidation and Resubdivision A pre-existing lot that was created for use as a road lot, a railroad right-of-way, a flume line, or a pole anchor, shall not be counted for purposes of Section 23-7, Chapter 23, Hawaiʻi County Code, unless it is conforming 20-5 .Applicability Section 20-3 of this rule does not apply to any pre-existing lots recognized by official action of the Director, or to any subdivision which had received preliminary or final approval, prior to the effective date of this rule." 21-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI AMENDMENTS TO THE COUNTY OF HAWAIʻI PLANNING DEPARTMENT'S RULES OF PRACTICE AND PROCEDURE. THE PLANNING DIRECTOR OF THE COUNTY OF HAWAIʻI ADOPTS THE FOLLOWING AMENDMENTS TO THE PLANNING DEPARTMENT'S RULES OF PRACTICE AND PROCEDURE. SECTION 1. The County of Hawaiʻi Planning Department's Rules of Practice and Procedure is amended by including the following Rule 21 relating to Public Access: Usage. RULE 21. PUBLIC ACCESS USAGE 21-1 Authority Pursuant to the authority conferred by Chapter 46, Hawaiʻi Revised Statutes, and Chapter 34, Hawaiʻi County Code 1983 (2016 Edition, as amended), the rule hereinafter contained is hereby established relative to public access: usage. 21-2 Purpose The purpose of this rule is to: (a) Regulate the use of public accesses to and along the shoreline and mountain areas that have been granted in fee or by easement to the County. (b) Provide guidelines and standards for managing and preserving an environmentally safe public access to and along the shoreline and to mountain areas. 21-3 Definitions As used in this rule, except as otherwise recognized by context: (a) "Camping" means being in the possession of a backpack, tents, blankets, tarpaulins, or other paraphernalia with the intent of overnight sleeping, one hour after sundown until sunrise within or along a trail or access. (b) "Commercial activity'' means the solicitation of a person for the sale or rental of goods or services or any transaction whereby a person receives a benefit or promise to receive a benefit by providing goods or services to another person. A non-profit organization that charges only for its actual expenses incurred in leading groups to hike through a public access or trail, and which does not compensate staff through charges to participants, is not considered "commercial activity" under these rules. Any person receiving compensation 21-2 Planning Department Rules of Practice & Procedure in conjunction with a use of or activity on a public access who seeks to qualify as a non-commercial activity shall have the burden of establishing to the satisfaction of the Director that any fee or charge is strictly a sharing of the actual expenses of the use or activity. (c) "Compensation" includes, but is not limited to, monetary fees, barter, or services in-kind. (d) "Easement" means the grant of the right to use a strip of land for specific public access purposes. (e) "Mode of transport or travel" means any method used to move humans along accesses, including, but not limited to, walking, running, bicycling, skating, skate boarding, roller blading, riding equestrian animals, motorcycles, trucks, and automobiles. (f) "Motorized vehicle" means a vehicle of any shape or form that depends on a motor (gas, electric, or other fuels) for propulsion. (g) "Mountain" means those lands situated above the one-thousand-foot elevation above sea level. (h) "Non-motorized vehicle" means a vehicle of any shape or form that does not depend on a motor (gas, electric, or other fuels) for propulsion, such as a bicycle, skateboard, cart, etc. (i) "Public access" means an easement, trail, route, right-of-way, or portion thereof, to which these rules apply under Rule 21-4. (j) "Public mountain area" means lands publicly owned or privately owned subject to written grants of easements allowing public access and use. These are areas where there are existing facilities for hiking, hunting, fruit picking, ti-leaf sliding, other recreational purposes and where there are existing public mountain trails. (k) "Public shoreline area" means lands fronting a shoreline which are publicly owned or privately owned subject to written grants of easement allowing public access and use. (l) "Service Animal" means any animal individually trained to do work or perform tasks for the benefit of an individual with a disability and accompanied by their master. (m) "Shoreline" means the upper reaches of the wash of the waves, other than storm or 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 21-3 Planning Department Rules of Practice & Procedure vegetation growth, or the upper limit of the debris left by the wash of the waves, pursuant to chapter 205A, Hawaii Revised Statutes, as amended. (n) "Trail" means an identifiable linear course or portion thereof which has been used, is used, or is intended for use by the general public primarily for a recreational, educational, traditional, or inspirational experience to traverse, reach or to depart a public beach, shore, park, forest, historic or cultural site, or other public area. Throughout this rule, "access" also includes "trail" when the context does not preclude such an interpretation. (o) "Wheelchair" means a mobility aid used primarily by individuals with disabilities. 21-4 Applicability This rule applies to public accesses that have been granted in fee or by easement to the County pursuant to Chapter 34,Hawaiʻi County Code, or under other land use regulations. It does not apply to public accesses required as conditions of approval of rezoning ordinances, Special Management Area (SMA) Permits, Shoreline Setback Variances (SSV) or other county land use approvals, which have not been granted in fee or easement to the county. The management of those public accesses is pursuant to the terms of the land use approvals and any supplementary conditions imposed as a result of those approvals. It does not apply to "public trails" under the jurisdiction of the Department of Land and Natural Resources under H.R.S. §264-1(b). 21-5 Use of Public Access (a) No person shall interfere with the rights of any other person to use a public access except as authorized by law, or by a condition of approval or agreement. Interference includes, but is not limited to, the following: (1) Physically blocking the access. (2) Making physical changes to an access that impedes use of the access. (3) Threatening physical harm to persons using the access. (4) Threatening civil or criminal trespass actions against access users. (5) Posting signs restricting access or otherwise intimidating persons from using the access. (6) Removing access signs. (b) The public access shall be open seven days a week, 24 hours a day 21-4 Planning Department Rules of Practice & Procedure unless otherwise noted or restricted by a condition of approval, or by agreement between the County and the private landowner in the grant of easement, or unless the Director limits the hours in accordance with (c) below. (c) The Director may temporarily close or restrict a public access under the following circumstances: (1) In the event of an emergency or for public safety reasons; (2) To address an imminent threat of harm to an access or person; (3) To comply with the requirements or agreements made with private landowners or lessees who permit access through their land; (4) To mitigate user impacts upon the access surface, historic and culturally sensitive areas, or environmentally sensitive areas; (5) To minimize incompatible uses in the access; and/or (6) To manage and control periods of use of the access. (d) All persons entering a public access shall comply with all applicable federal, state, and county laws, ordinances, and rules. 21-6 Activities Prohibited Within the Public Access (a) The following activities shall be prohibited within all public accesses: (1) Removing, injuring, or killing any form of plant or animal life, except for the taking of aquatic life or wildlife, in accordance with the State of Hawaii fishing and hunting laws or as authorized maintenance activities. (2) Releasing any animals or plants except for re-vegetation efforts approved by the Director. (3) Removing, damaging, or disturbing any natural feature, geological features, or resource. (4) Removing, damaging, or disturbing any historic or prehistoric sites, objects, ruins, or remains. (5) Removing, damaging, or disturbing any notice, signage, 21-5 Planning Department Rules of Practice & Procedure markers, or structures. (6) Entering, occupying, or using any building or structure, motorized vehicle or machinery, etc. belonging to another person along the access. (7) Trespassing upon adjacent private properties. (8) Constructing any improvements. (9) Using or possessing alcohol, narcotics or non-prescribed drugs. (10) Possessing firearms or other weapons, except on accesses leading to public hunting areas, by licensed hunters, in season, in compliance with applicable hunting regulations. (11) Setting fires. (12) Using the public access for other than transit to or from a permitted activity. This shall not prohibit stops for rest, snacks, fishing and other similar activities, including traditional and customary gathering rights. (13) Camping or residing. (14) Using motorized vehicles or non-motorized vehicles, except wheelchairs and other devices for persons with disabilities, and except where allowed by the Director for specifically designated public accesses, pursuant to Rule 21-8 when also allowed by the grant of easement. (15) Dogs, cats, and other animals are prohibited on a public access unless crated, caged, or on a leash, at all times. (16) Using horses, mules, or other animals, other than service animals, except when allowed by the Director for specifically designated public accesses, when also allowed by the grant of easement. (17) Commercial activities. (18) Using devices that amplify sound, such as radios, portable stereos, megaphones, etc., unless the sound is audible only in the immediate vicinity of the user. (19) Explosives. 21-6 Planning Department Rules of Practice & Procedure (20) Disorderly conduct, as defined in Section 711-1101, Hawaiʻi Revised Statutes. (21) Draining, dumping, or leaving any litter, animal waste or remains, or any other material on an access including in or near streams and other water sources. (22) Depositing any human waste except in comfort stations. (23) Leaving or abandoning a vehicle, equipment, or any other items, including but not limited to refrigerators, stoves, household garbage, trash, or other forms of waste or debris. 21-7 Access By Permit (a) The Director may designate specified public accesses for use by permit only when the Director has determined that site conditions or lack of supervision necessitates special education, direction, or control of public users. (b) Such "permit only" public accesses shall be designated by rule. (c) The Director may delegate the issuance of the permit to another governmental agency or to a contracted permitting agent. (d) The permit application may include: (1) A refundable or non-refundable filing fee. (2) A waiver of liability against the County and adjacent landowners. (e) The Director may require any other appropriate and relevant information needed to make a decision on granting of the permit and to formulate appropriate permit conditions. (f) The Director may cancel, revoke, or terminate a permit when: (1) An emergency is declared by the department or other proper authority; (2) A permittee violates the permit conditions; or (3) A permittee's activity damages or threatens to damage, the integrity, or condition of the access, or the surrounding environment, or threatens the safety of the 21-7 Planning Department Rules of Practice & Procedure users of the access. 21-8 Public Access Where Motorized Vehicles are Allowed On public accesses where motorized vehicles are allowed, only motorized vehicles legal for highway travel under H.R.S. Chapter 286 are allowed, in addition to non-motorized vehicles. The following are prohibited in addition to the other prohibited activities: (a) Parking, except in designated parking areas. (b) Loitering in parking areas. (c) Use of the access for cruising (repeatedly riding back and forth), motorcross activities such as jumping, or other activities not directly related to use of the access for transit to or along the shoreline, or to the designated mountain area. (d) Leaving vehicles unattended. Any vehicle left unattended within a public access for longer than twenty-four hours without prior written permission from the Director shall be considered abandoned. Any abandoned vehicle may be impounded or towed away by the Director at the expense of the owner. (e) The pertinent provisions of Chapter 291C, Hawaiʻi Revised Statutes, "Traffic Code," are hereby included by reference for those public accesses where motorized vehicles are allowed. 21-9 Conflicts Between Transportation Modes (a) On a public access where multiple modes of transportation are allowed, motorized vehicles shall yield the right-of-way to all other modes of transport; non-motorized vehicles, including mountain bikes and other bicycles shall yield to equestrians and pedestrians; and pedestrians shall yield to equestrians. (b) The Director may also post rules or mark accesses to indicate additional rights-of-way, lanes, areas of management, use, or other means to separate or otherwise address the potential conflicts between transportation modes and mitigate adverse effects on the safety, use, and enjoyment of the access by all users. 21-10 Enforcement Any person who violates any provision of this rule shall be: (a) Held liable for all costs of clean up and restoration, and damages to public and private property; 21-8 Planning Department Rules of Practice & Procedure (b) Subject to the confiscation and forfeiture of any tools and equipment used in the violation as well as any plants, objects, or artifacts removed illegally from the access; (c) Subject to a civil fine of $500.00 per incident; and (d) May be barred from the public access for repeated or serious violations. 21-11 Appeal The final action of the Director under this rule may be appealed to the Board of Appeals in accordance with its rules. 21-12 Conflicting Rules When a public access that has been granted in fee or by easement to the County is subject to rules, regulations or conditions of approval other than this rule, all as stated, whenever possible, shall be interpreted in a manner that gives full effect to each. If there is a conflict between such regulations and these rules, the more restrictive rule, regulation or condition of approval shall apply. When a public access that has been granted in fee or by easement to the County by agreement between the private landowner and the County and the agreement differs from these rules, the agreement shall apply." SECTION 2. In the event that any portion of this rule is declared invalid, such invalidity shall not affect other parts of the rule. SECTION 3. This rule shall take effect upon its approval. 22-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI AMENDMENTS TO THE COUNTY OF HAWAIʻI PLANNING DEPARTMENT'S RULES OF PRACTICE AND PROCEDURE. THE PLANNING DIRECTOR OF THE COUNTY OF HAWAIʻI ADOPTS THE FOLLOWING AMENDMENTS TO THE PLANNING DEPARTMENT'S RULES OF PRACTICE AND PROCEDURE. SECTION 1. The County of Hawaiʻi Planning Department's Rules of Practice and Procedure is amended by including the following Rule 22 relating to Water Variance. RULE 22. WATER VARIANCE 22-1 Purpose and Authority The purpose of this rule is to provide criteria for the granting or denial of variances from sec. 23-84 of the Subdivision Code, which requires a water system meeting with the requirements of the Department of Water Supply (DWS). It applies to requests for subdivisions that propose to rely on rain catchment for their water supply, on agriculturally-zoned property. It does not apply to subdivisions that propose to rely on private, non-catchment water systems that do not meet DWS standards. This rule provides more specific criteria to supplement Hawaiʻi County Code (H.C.C.) sec. 23-15, and is authorized under Hawaiʻi County Charter, sec. 6- 4.2 (c) and (e). The variance request must also meet the general requirements of H.C.C. sec. 23-15. 22-2 Findings The Planning Director finds that it is in the public interest to establish criteria for variances from the water supply requirements for subdivisions to use catchment as their water source. The Subdivision Code has required a public water system since 1967, and the General Plan has contained a standard that water systems meet the requirements of the Department of Water Supply and the Subdivision Code. Nevertheless, many variances for catchment have been granted over the years. Such variance requests have many issues in common that should be handled consistently. The water supply requirement exists to ensure that new lots, which ultimately may include homes, have safe water for drinking and fire protection. The Department of Health cautions that catchment systems have had problems with microbial contamination, and with leaching of metals from roofing materials. In some areas, dissatisfaction with catchment systems has led to requests that public funds be spent for wells. Public funds are currently used to provide water from roadside spigots, mostly because of subdivisions on catchment. In low rainfall areas especially, catchment systems may run out of water and owners may have to resort to trucking water. On the other hand, catchment variances allow property owners a way to subdivide property when there is no public water system in the vicinity, and when it 22-2 Planning Department Rules of Practice & Procedure would be prohibitively expensive to construct a private water system. Although the family status of the subdivider cannot be a formal consideration in a variance application, allowing small numbers of lots to be created with water variances facilitates transfer of property to family members. If lots are subdivided to a much lower density and to large lot sizes, some of the concern over the lack of water for fire protection is reduced. When a subdivision involves large numbers of lots, however, the subdivider should put in a water system because it is possible to spread the cost. The Planning Director finds that this rule regarding variances is necessary to ensure that subdivisions created with catchment water are not materially detrimental to the public welfare and do not cause substantial adverse impact to an area's character or to adjoining properties. 22-3 Eligibility No property shall be granted a variance from sec. 23-84 to allow subdivision using catchment if there is a public water system in the vicinity of the property, with available capacity, or if the Department of Water Supply has definite plans to extend the public water system or increase the capacity in a way that will allow subdivision of the property with county water, or if it was the subject of a rezoning ordinance that requires a water system. 22-4 Minimum Rainfall Except as provided in Rule 22-6, all lots to be served by catchment shall have an average annual rainfall of not less than 60". The annual rainfall can be proven by rainfall records at comparable rain gauges, or by the USGS rainfall map. 22-5 Maximum Number of Lots Except as provided in Rule 22-6, no more than six lots shall be allowed in a catchment subdivision. 22-6 Exceptions for Large Lot Subdivisions Exceptions to the minimum rainfall requirement and the maximum number of lots (up to an absolute maximum of twenty lots) may be granted if the subdivision results in lots averaging at least twenty acres in size and averaging at least four times the minimum lot size allowed by zoning. 22-7 No Further Subdivision by Water Variance Allowed There shall be no further variance from the water supply requirements to allow later subdivision of lots in a subdivision created with a variance under this rule. The deeds to all such lots shall include a covenant running with the land acknowledging that the lot is suitable for the owner or grantee's needs in its present condition and prohibiting further subdivision of the lot by variance from the water system requirements. 22-8 Water Tanks Required Any dwelling on a lot in a subdivision created with a variance under this rule shall 22-3 Planning Department Rules of Practice & Procedure have a water tank with at least 6000 gallons capacity, and a separate tank for fire fighting purposes with at least 3000 gallons capacity. Both tanks shall be supplied by drainage from the dwelling's roof or equivalent catchment area. This requirement shall be contained in a covenant running with the land. 22-9 Support for Future Water Improvements Required All lots in a subdivision created by a variance under this rule shall contain a requirement that if an improvement district is proposed for a public water system that would serve the property, the owner will support the improvement district, and if water from a public system becomes available to the property, the owner will purchase a connection to the system. This requirement shall be contained in a covenant running with the land." SECTION 2. In the event that any portion of this rule is declared invalid, such invalidity shall not affect other parts of the rule. SECTION 3. This rule shall take effect upon its approval. 23-1 Planning Department Rules of Practice & Procedure PLANNING DEPARTMENT COUNTY OF HAWAIʻI RULES OF PRACTICE AND PROCEDURE RULE 23. SHORT-TERM VACATION RENTALS I. GENERAL PROVISIONS 23-1 Authority Pursuant to the authority conferred upon the Director by Chapter 25, Hawai'i County Code or any amendments thereto, the rules hereinafter contained are established to regulate Short- Term Vacation Rentals (STVR). 23-2 Purpose The purpose of this Rule is to establish procedures for the processing of STVRs and manage their impacts. 23-3 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: "Affected owners and lessees" means those property owners and/or lessees of record of any lots of which any portion is within three hundred feet of any point of the boundary of a lot where a Nonconforming Use Certificate is being sought. "Department" means the County of Hawaiʻi Planning Department. "Director" means the Director of the Planning Department. "Dwelling" means a building or part thereof designed for or used for residential occupancy or both and containing one or more dwelling units, and includes double- family dwelling or duplex, mobile dwelling, multiple-family dwelling and single- family dwelling. "Dwelling unit" means one or more rooms designed for or containing or used as the complete facilities for the cooking, sleeping and living area of a single-family only and occupied by no more than one family and containing a single kitchen. "Family" means an individual or two or more persons related by blood, state- sanctioned adoption, foster parentage, guardianship or marriage, or a group of not more than five unrelated persons (excluding servants), occupying a dwelling unit. "HCC" means the Hawaiʻi County Code. 23-2 Planning Department Rules of Practice & Procedure "New Short-Term Vacation Rental" means a Short-Term Vacation Rental established after April 1, 2019. "Permitted Zoning Districts" means the following zoning districts designated in HCC Chapter 25: 1) Resort (V); 2) General Commercial (CG); 3) Village Commercial (CV); 4) Residential and Commercial Zoning Districts, situated in the General Plan Resort and Resort Node areas; and, 5) Multiple-Family Residential (RM) for multiple family dwellings within a condominium property regime as defined and governed by Chapters 514A or 514B, Hawaiʻi Revised Statutes. "Pre-existing Short-Term Vacation Rental" means a Short-Term Vacation Rental established on or before April 1, 2019, which is operating in compliance with all applicable governmental laws, ordinances, codes, and/or regulations. Any dwelling being operated as a Short-Term Vacation Rental on a lot created on or after June 4, 1976 in the State Land Use Agricultural District is excluded from being registered as a Short-Term Vacation Rental. "Reachable" means an individual who is able to: (1) Respond via telephone to a request from a guest, neighbor, or County agency within one hour of receiving that request; and (2) Be physically present at the Short-Term Vacation Rental within three hours of receiving a call from a guest, neighbor, or County agency, when that guest, neighbor, or County agency requests the presence of the reachable person. "Short-Term Vacation Rental" (STVR) means a dwelling unit of which the owner or operator does not reside on the building site, that has no more than five bedrooms for rent on the building site and is rented for a period of thirty consecutive days or less. "Verified complaint" means any complaint filed on a complaint form prepared by the Department pursuant to Rule 9 of the Planning Department Rules of Practice and Procedure or forwarded to the Department and verified as a Zoning Code violation by the Director. II. ELIGIBILITY 23-4 Zoning Districts (a) A dwelling may be used as a STVR upon obtaining a STVR registration in the Permitted Zoning Districts. (b) Pre-existing STVRs outside of the Permitted Zoning Districts may continue to operate as STVRs by registering the STVR and obtaining a Nonconforming Use Certificate (NUC). 23-3 Planning Department Rules of Practice & Procedure 23-5 Standards All STVRs shall be subject to the following standards: (a) The owner or reachable person shall reside in the County of Hawaiʻi and shall be reachable by guests, neighbors, and County agencies on a twenty- four hour, seven days-per-week basis. The Department shall be notified within five (5) days of any changes in the owner or reachable person's contact information. (b) The owner or reachable person shall be responsible to ensure that activities taking place within the STVR conform to the character of the existing neighborhood in which the rental is located. (c) Display Requirements. (1) The following shall be prominently displayed within the dwelling unit and recited in the STVR rental agreement between the owner and person(s) renting the STVR: (A) Quiet hours shall be from 9:00 p.m. to 8:00 a.m., during which time the noise from the STVR shall not unreasonably disturb adjacent neighbors. (B) Sound that is audible beyond the property boundaries during non- quiet hours shall not be more excessive than would be otherwise associated with a residential area. (C) Guest vehicles shall be parked in the designated onsite parking area. (D) The STVR shall not be used for commercial purposes. (2) A copy of the STVR Registration, and the owner or reachable person’s name and phone number, shall be displayed on the back of the front door of all sleeping quarters. (3) Current NUC shall be displayed in a conspicuous place on the STVR's premises that is readily visible to an inspector. In the event that a single address is associated with numerous NUCs, a listing of all units at that address holding current certificates may be displayed in a conspicuous, readily visible common area instead. (d) All print and internet advertising of STVRs, including listings with a rental service or real estate firm, shall include the STVR Registration Number. The NUC Number shall also be included if one has been issued. (e) Any property with a dwelling being used as a STVR shall be in compliance with all 23-4 Planning Department Rules of Practice & Procedure applicable laws, including but not limited to having obtained all necessary final permits and/or approvals from the County of Hawaiʻi Department of Public Works- Building Division for all necessary building, electrical, and plumbing permits. (f) All guest parking for STVRs shall be off-street and shall meet the requirements set forth in HCC Sections 25-4-50 through 25-4-54 and applicable parking standards in HCC Chapter 25. If there is any doubt as to the requirements for off-street parking for a STVR, the Director shall determine the required number of parking spaces. (g) Any commercial signage that advertises a STVR shall comply with the requirements of HCC Section 22-2.6 and HCC Chapter 3. (h) Owners of STVRs shall notify the Director in writing within thirty (30) days when such use permanently ceases for any reason. (i) Upon a change in ownership for a STVR, the new owner shall notify the Director in writing within thirty (30) days of the change in ownership and provide: (1) Name and contact information of the new owner; (2) Copy of the conveyance document; (3) Notarized STVR Affidavit of Compliance; (4) Name and contact information of the reachable person; (5) Copy of STVR Registration Number; (6) Copy of NUC, if one has been issued; (7) STVR street address; (8) STVR tax map key number; and (9) Any other information deemed relevant and requested by the Director. (j) Failure to comply with any of the preceding standards, or any conditions provided with STVR Registration or a NUC shall constitute a violation of HCC Chapter 25 III. STVR REGISTRATION 23-6 Within Permitted Zoning Districts STVRs within Permitted Zoning Districts shall conform to the following requirements to continue or commence operations: (a) Pre-existing STVRs under this subsection must submit a STVR Registration form no later than September 28, 2019. (b) New STVRs under this subsection may obtain a STVR Registration at any time; however, the property may not be operated as a STVR until the STVR 23-5 Planning Department Rules of Practice & Procedure Registration has been issued. (c) Any STVR under this section that has not lawfully registered within the deadlines set forth herein shall be considered an unpermitted use and subject to the penalties set forth in HCC Chapter 25. 23-7 Outside of Permitted Zoning Districts STVRs outside of the Permitted Zoning Districts shall conform to the following requirements to continue being operated as STVRs: (a) Pre-existing STVRs under this section shall submit a STVR Registration Form and a NUC Application no later than September 28, 2019. (b) No new STVR can obtain a Registration under this section. (c) Any STVR under this section that has not lawfully registered within the deadlines set forth herein shall be considered an unpermitted use and subject to the penalties set forth in HCC Chapter 25. IV. STVR REGISTRATION AND NUC APPLICATION PROCESS 23-8 General Provisions (a) Unless otherwise specified, Sections 23-8 through 23-13 of this Rule shall provide the processing procedures for obtaining STVR Registrations, NUC, and NUC Renewals. (b) The Director shall publish, on a semi-monthly basis, a list of all NUC Applications accepted under this Rule in at least two newspapers of general circulation in the County. Such list shall include: (1) Name of the applicant; (2) Name of the property owner; (3) Tax map key number of the property; (4) The land area; and (5) STVR street address, if available. (c) STVR Registration Forms and/or NUC Applications filed with the Director pursuant to this Rule shall be reviewed by the Director for completeness within fifteen (15) days from the date that the STVR Registration Form and/or NUC Application was filed by the applicant. During the fifteen (15) day period, the Director shall either determine that the STVR Registration Form and/or NUC Application was complete and accept the STVR Registration Form and/or NUC Application as of the date that the STVR Registration Form and/or NUC Application was filed by the applicant, or determine that the STVR 23-6 Planning Department Rules of Practice & Procedure Registration Form and/or NUC Application is defective. (d) Once a STVR Registration Form and/or NUC Application is accepted, the Department may request a site inspection to verify that the STVR is located within a legal dwelling and complies with HCC ·chapter 25, any rule adopted thereunder, or any permit or variance issued pursuant thereto. 23-9 Incomplete STVR Registration Form/NUC Application (a) The Director shall neither accept nor process any STVR Registration Form and/or NUC Application filed pursuant to this Rule that is deemed incomplete as to form or content. An incomplete STVR Registration Form and/or NUC Application shall be returned to the applicant with a written explanation of its deficiencies. A written determination as to whether or not the STVR Registration Form and/or NUC Application is complete or incomplete shall be made within fifteen (15) days upon receipt of the STVR Registration Form and/or NUC Application. (b) Any STVR Registration Form and/or NUC Application that is rejected as defective may be refiled together with a copy of the deficiency notice and the required additional information. The resubmitted STVR Registration Form and/or NUC Application shall be accepted as complete as of the date of resubmittal, provided that all required additional information has been submitted. 23-10 Decision (a) Unless indicated otherwise, the Director shall, within ninety (90) days after the filing of a complete STVR Registration Form and/or NUC Application or within a longer period as may be agreed to by the applicant, approve or deny the request. Any conditions imposed by the Director shall bear a reasonable relationship to the approval granted. (b) If a decision is not rendered within the ninety (90) day review period, the STVR Registration and/or NUC Application shall be deemed approved. (c) Decisions by the Director to approve or deny a STVR Registration Form and/or NUC Application shall be based on information provided by the applicant, and other information of which the Department is aware. Should additional information of a substantive nature become available after a decision has been rendered, the Director reserves the right to reverse or amend the original determination. (d) At a minimum, an approval for a STVR Registration and/or NUC shall include the following: (1) Name and address of the landowner or lessee: 23-7 Planning Department Rules of Practice & Procedure (2) STVR tax map key number; (3) State Land Use district classification, County zoning district, and General Plan designation; (4) STVR Standards, as listed in Section 23-5 of this Rule; (5) A condition requiring verification of compliance with STVR display requirements outlined in Section 23-5(c) of this Rule; and (6) Expiration date of the NUC, if applicable. (e) The Director may attach appropriate performance conditions on an approved STVR Registration and/or NUC if the conditions are reasonably designed to mitigate adverse impacts to the neighborhood in which the STVR is situated. 23-11 STVR Registration (a) A person desiring to commence or continue operation of a STVR that satisfies the eligibility requirements under this Rule, shall submit a STVR Registration Form to the Director for approval. (b) One (1) STVR Registration Form shall be submitted for each lot or unit identified by a tax map key for which STVR Registration is sought. (c) A person seeking a STVR Registration pursuant to this Section shall provide the following documents submitted electronically to planning@hawaiicounty.gov, to the Department: (1) A completed STVR Registration Form; (2) Written landowners' authorization, if applicable; (3) A non-refundable filing and processing fee of five hundred dollars ($500). Payments by check shall be made payable to the Director of Finance. (4) Documentation establishing that all permits from the County of Hawaiʻi Department of Public Works-Building Division for all necessary building, electrical, and plumbing permits were granted final approval; (5) Current State of Hawaiʻi General Excise and Transient Accommodations Tax licenses; (6) County of Hawaiʻi Real Property Tax Clearance Certificate; (7) A site plan, drawn to scale, identifying: (A) All property boundaries, dimensions, and setbacks; (B) Location of existing and proposed structures, driveway access, swimming pools, ancillary structures, eaves, and overhangs shall be clearly identified and labeled; (C) Designated parking spaces for the STVR in compliance with HCC Sections 25-4-50 through 25-4-54; (D) Reference points such as roadways, shoreline, etc.; and 23-8 Planning Department Rules of Practice & Procedure (E) Table indicating total square footages of each of the structures on the property. (8) A floor plan, drawn to scale, identifying the location and use of all rooms in the STVR. The number of bedrooms should coincide with that which was approved by the Department of Public Works' Building Division; (9) Notarized STVR Affidavit of Compliance; (10) Reachable person's name and contact information; and (11) Any other or additional relevant information that may be requested by the Director to facilitate processing. 23-12 Nonconforming Use Certificate (a) ·NUCs shall be issued in accordance with the procedures herein in Rule 23-12. (b) One (1) NUC Application shall be submitted electronically to planning@hawaiicounty.gov, for each lot or unit identified by a tax map key for which a NUC is sought. (c) Applicants who seek to obtain a NUC shall submit to the Department: (1) A completed STVR Registration Form with associated documents and filing fee, pursuant to Section 23-11 (c) of this Rule; (2) Evidence that establishes STVR use on the subject property prior to April 1, 2019. The evidence must be of such quality to demonstrate to the satisfaction of the Director that the dwelling unit was being used as a STVR prior to April 1, 2019 as an ongoing and lawful enterprise. Such evidence may include copies of: (A) Tax documents for the relevant time period; or (B) Other information which the Director finds to be reliable that provides clear evidence of STVR operations during the relevant time period, including but not limited to, verifiable business receipts, guest registers, etc.; (3) First Notice Requirements for NUC Applicants: (A) A list of the names, mailing addresses, and tax map key numbers of all affected owners and lessees. For the purpose of this Rule, notification to a condominium association may be substituted for notification of the individual condominium owners and lessees that the association represents. (B) A copy of the first notice to be sent to the affected owners and 23-9 Planning Department Rules of Practice & Procedure lessees. The first notice shall include: (A) Name of the applicant; (B) Nature of the use sought; (C) STVR's street address and tax map key number; (D) Date the NUC Application was filed with the Director; (E) Number of bedrooms being rented; (F) Maximum number of guests permitted; (G) Number and location of off-street parking spaces; and (H) Instructions on how to submit comments to the Director about the subject rental operation. (C) Proof of service or of good faith efforts to serve notice of the NUC Application on affected owners and lessees. Such proof may consist of certified mail receipts, affidavits, declarations, or the like. (4) Second Notice Requirement for NUC Applicants (A) Upon receipt and acceptance of a properly filed and completed NUC Application, the Director shall officially acknowledge receipt of the NUC Application and set a date for administrative action on the NUC Application. (B) Within ten (10) days of receiving the acknowledgment communication from the Director, the applicant shall: (i) Serve a second notice of the NUC Application to all affected owners and lessees; (ii) Provide to the Director a copy of the second notification letter; and (iii) Provide proof of service or of good faith efforts to serve notice of the NUC Application to affected owners and lessees. Such proof may consist of certified mail receipts, affidavits, declarations, or the like. (C) The second notice shall include: (i) Name of the applicant; 23-10 Planning Department Rules of Practice & Procedure (ii) Nature of the use sought; (iii) STVR's street address and tax map key number; (iv) Date the NUC Application was filed with the Director; (v) Number of bedrooms being rented; (vi) Maximum number of guests permitted; (vii) Number and location of off-street parking spaces; (viii) The date on which the administrative action by the Director will be taken on the NUC Application; (ix) The date by which comments must be received by the Director, which shall not exceed thirty (30) days from the date of the second notice; and (x) Instructions on how to submit comments to the Director about the subject rental operation. (D) Failure to meet the second notice requirement within the time limits specified herein will render the NUC Application invalid. (5) Any other or additional information relevant to the NUC Application that may be requested by the Director to facilitate processing of the NUC Application. (d) Issuance of a NUC may be denied if the Director verifies any of the following: (1) The applicant has violated pertinent laws, such as, but not limited to, not securing and finalizing necessary building, electrical, and plumbing permits for the dwelling from the Department of Public Works-Building Division; (2) The owner is delinquent in the payment of State of Hawai'i General Excise Tax, Transient Accommodations Tax, or County property taxes, fees, fines, or penalties assessed in relation to the STVR; or (3) Evidence of non-responsive management, such as issuance of a notice of violation, police reports, or verified neighbor complaints of noise or other disturbances relating to the STVR operations. (e) Notice of denial of a NUC and appeal. 23-11 Planning Department Rules of Practice & Procedure (1) Notice of a decision by the Director to deny the issuance of a NUC shall be transmitted in writing to the property owner. (2) Within thirty (30) days after the receipt of a notice of denial, the owner may appeal to the board of appeals as provided by the Hawaiʻi County Charter, Section 6-9.2 and HCC Sections 25-2-20 through 25-2-24. 23-13 Nonconforming Use Certificate Renewal (a) NUCs must be renewed every year on or before the expiration date indicated on the Certificate. (b) One (1) NUC Renewal Application shall be submitted for each NUC issued. (c) NUC Renewal Applications shall be accepted at the Department no earlier than ninety (90) days and no later than fifteen (15) days prior to a NUC's expiration date. (d) The Department will not issue reminder notices for upcoming expiration dates. (e) Late NUC Renewal Applications will not be accepted; failure to file a NUC Renewal Application by the NUC's expiration date will be considered voluntary forfeiture of the Certificate, rendering the Certificate ineligible for renewal. (f) At the time of renewal, the applicant shall submit to the Department: (1) A completed NUC Renewal Application, indicating any changes to the owner or reachable person's contact information; (2) Written landowners' authorization, if applicable. (3) A non-refundable filing and processing fee of two hundred fifty dollars ($250). Payments by check shall be made payable to the Director of Finance; (4) Notarized STVR Affidavit of Compliance; (5) County of Hawaiʻi Real Property Tax Clearance Certificate; (6) Proof that State of Hawai'i General Excise and Transient Accommodations taxes are paid in full; (7) Proof of STVR use within the previous twelve (12) months. Failure to meet this condition will result in automatic denial of the NUC Renewal Application; and 23-12 Planning Department Rules of Practice & Procedure (8) Any other or additional information relevant to this NUC Renewal Application that may be requested by the Director to facilitate processing of this request. (g) Renewal of a NUC may be denied if the Director verifies any of the following: (1) The applicant has violated pertinent laws, such as, but not limited to, not securing and finalizing necessary building, electrical, and plumbing permits for the dwelling from the Department of Public Works-Building Division; (2) The owner is delinquent in payment of State of Hawaiʻi General Excise Tax, Transient Accommodations Tax, or County property taxes, fees, fines or penalties; (3) Evidence of nonresponsive management, such as issuance of a notice of violation, police reports, or verified neighbor complaints of noise or other disturbances relating to the STVR operations; (4) The owner or reachable person has not been reachable; (5) The renewal request and renewal fee were not received on or before the expiration date indicated on the Certificate; (6) Any other verified complaints of such number and/or nature as to establish a continuing infringement upon the health, safety, or welfare of the neighborhood or area; (7) Evidence that the conditions of approval have been violated; or (8) The owner or applicant has provided false or misleading information to the Department. (h) Renewal of a NUC shall be denied if the Director finds that the STVR use has been abandoned pursuant to HCC Section 25-4-62. (i) Notice of denial of a NUC and appeal. (1) Notice of a decision by the Director to deny the renewal of a NUC shall be transmitted in writing to the property owner. (2) Within thirty (30) days after the receipt of a notice of denial, the owner may appeal to the board of appeals as provided by the Hawaiʻi County Charter, Section 6-9.2 and HCC Sections 25-2-20 through 25-2-24. 23-13 Planning Department Rules of Practice & Procedure 23-14 Appeals A person "aggrieved", as defined by HCC Section 25-2-20(b), by the Director's approval or denial of a request for STVR registration, or approval or denial of an application for a NUC or NUC Renewal may appeal to the Board of Appeals in accordance with its rules within thirty (30) days of the Director's decision. 23-15 Amendments (a) The owner or applicant may apply in writing with the Director for any modification to the STVR Registration, and if applicable, the NUC. An application for an amendment shall state the condition(s) to be amended and the reasons for the request. (b) Within forty-five (45) days from the date of receipt of the request or a longer time as may be agreed to by the owner or applicant, the Director shall either approve or deny the request. (c) If the Director fails to act within the prescribed time, the request shall be considered as having been denied. V. COMPLIANCE 23-16 Enforcement (a) STVRs in violation of HCC Chapter 25, any rule adopted thereunder, or any permit or variance issued pursuant thereto, shall be subject to enforcement pursuant to HCC Section 25-2-35. (b) The Director shall catalog any complaints on STVR properties relating to the violation of HCC Chapter 25, this Rule, or any permit issued therefrom. (c) Unresolved violations shall be considered by the Director in approving or denying a STVR Registration, NUC, or NUC Renewal. (d) Civil fines for violations of this Rule shall comply with HCC Section 25-2-35 and Planning Department Rules of Practice and Procedure, Rule 9. (e) Advertising of any sort that offers a property as a STVR shall constitute prima facie evidence that a STVR is operating on that property. The burden of proof shall be on the owner or operator to establish either that the property is not being used as a STVR or that it is being used for such purpose legally.