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HomeMy WebLinkAboutPlanning Commission Rules, Rule 8 RULE 8. SHORELINE SETBACK VARIANCE 8-1 Authority Pursuant to authority conferred upon the Commission by Chapter 205A, Hawaii Revised Statutes (HRS), as amended, the rules hereinafter contained are hereby established and shall apply to all lands within the shoreline setback area. 8-2 Purpose The growing population and expanding development have brought about numerous cases of encroachment of structures upon the shoreline and within the nearby shoreline areas. Many of these structures have disturbed the natural shoreline processes and caused erosion of the shoreline. Concrete masses along the shoreline are contrary to the policy for the preservation of the natural shoreline and the open space.Unrestricted removal of sand,coral,rocks,etc.,for commercial uses can only deteriorate the shoreline and remove it from public use and enjoyment. Moreover, the Hawaiian Islands are subject to tsunamis and high waves which endanger residential dwellings and other structures which are built too close to the shoreline. For these reasons, it is in the public interest to establish shoreline setbacks and to regulate the use and activities within the shoreline setbacks. The purpose of this rule is to establish authority, criteria and procedures for the review of all activities or structures proposed within the shoreline setback area which requires a Shoreline Setback Variance in accordance with the requirements of this rule and Chapter 205A Part III, HRS. 8-3 Definitions For the purpose of these rules, unless it is plainly evident from the context that a different meaning is intended, certain words and phrases used herein are defined as follows: (a) "Activity" means any landscaping, excavating, grubbing, grading, filling or stockpiling of earth materials, including sand, coral, coral rubble, rocks, soil, or marine deposits. (b) "Authority"means the county planning commission. The authority may, as appropriate, delegate the responsibility for administering this rule, as stated in this rule. (c) "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 8-1 ecosystems, and as a natural buffer against coastal hazards. (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) "Department" means the planning department of the County of Hawaii. (f) "Lot" means a parcel, tract, or area of land established by subdivision or as otherwise lawfully established prior to the adoption of the Chapter 23 (Subdivision Code), Hawaii County Code 1983 (2016 Edition, as amended) and accepted by the Department. (g) "Practicable alternative" means an alternative to the proposed project which is available and capable of being done, taking into consideration existing technology and logistics, and which would accomplish the basic purposes of the project while avoiding or having less adverse impact on the shoreline area. (h) "Shoreline"means the upper reaches of the wash of the waves,other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves,which has been certified by the Board of Land and Natural Resources in accordance with its rules. (i) "Shoreline setback area" shall include all of the land area between the shoreline and the shoreline setback line, provided that if the highest annual wash of the waves is fixed or significantly affected by a structure that has not received all permits and approvals required by law or if any part of any structure in violation of this rule extends seaward of the shoreline, then the term "shoreline setback area" shall include the entire structure. (j) "Shoreline setback line" means that line established by the Department in accordance with the requirements of Department Rule No. 11 regarding Shoreline Setback, running inland from and parallel to the certified shoreline at a horizontal plane. (k) "Structure" includes, but is not limited to, any portion of any building,pavement,road,pipe,flume,utility line,fence,groin,wall, or revetment. 8-2 8-4 Variance Application and Content An application for a shoreline setback variance shall be filed with the Commission, through the Department, and shall include: (a) A non-refundable filing and processing fee of five hundred $500 dollars. (1) Application form; (2) Description of the property in sufficient detail,including the tax map key identification, location map, and land area; (3) Written description of the proposed project,including a statement as to how the request complies with the criteria within Section 8-11; (4) An environmental assessment or environmental impact statement consistent with the requirements of Chapter 343, HRS, which may include, but not be limited to, flood hazard engineering studies of subject property and project's impact analysis on adjacent properties, an archaeological survey, floral and faunal surveys, photographs, existing and proposed contours; and (5) A site plan of the shoreline setback area, drawn to scale, showing: (A) Existing natural and man-made features and conditions within the shoreline setback area; (B) Existing natural and man-made features and conditions along properties immediately adjacent to the shoreline setback area and proposed improvements; (C) The certified shoreline; (D) The shoreline setback line; (E) Contours at a minimum interval of five feet unless waived by the Commission; (F) Proposed development and improvements showing new conditions. (b) A copy of the certified shoreline survey map of the property. (c) Detailed justification of the proposed project, which addresses the criteria 8-3 and conditions set forth in Section 8-11. (d) A list of all properties by tax map key located within 300 feet of the perimeter boundary of the property under consideration. (e) Prior to the acceptance of any application, all real property taxes and other fees relating to the subject parcel or parcels shall be paid and there shall be no outstanding delinquencies, except in cases of bankruptcy or similar matters as authorized by the County Director of Finance. (f) Any other information required by the Commission. 8-5 Posting of Signs for Public Notification (a) Within ten days of being notified of the acceptance of an application, the applicant shall post a sign on the subject property notifying the public of the following: (1) The nature of the application; (2) The proposed use of the property; (3) The size of the property; (4) The tax map key(s) of the property; (5) That the public may contact the Department for additional information; and (6) The address and telephone number of the Department. (b) The sign shall remain posted until the application has been granted, denied, or withdrawn.The applicant shall remove the sign promptly after such action. (c) Notwithstanding any other provisions of law, the sign shall be not less than nine square feet and not more than twelve square feet in area, with letters not less than one inch high. No pictures, drawings, or promotional materials shall be permitted on the sign. The sign shall be posted at or near the property boundary adjacent to a public road bordering the property and shall be readable from said public road. If more than one public road borders the property, the applicant shall post the sign to be visible from the more heavily traveled public road. The sign shall, in all other respects, be in compliance with Chapter 3 (Signs) Hawaii County Code 1983 (2016 Edition, as amended). (d) The applicant shall file an affidavit with the Department not more than five days after posting the sign stating that a sign has been posted in compliance 8-4 with this section, and that the applicant and its agents will not remove the sign until the application has been granted, denied, or withdrawn. A photograph of the sign in place shall accompany the affidavit. 8-6 Incomplete Application The Commission, through the Department shall neither accept nor process an application which is incomplete as to form and content. An incomplete application shall be returned with a written explanation of its deficiencies. 8-7 Compliance with Chapter 343, Hawaii Revised Statutes An environmental assessment or environmental impact statement, prepared in accordance with the requirements of Chapter 343, HRS and Title 11, Chapter 200.1, Hawaii Administrative Rules (HAR), shall accompany the filing of a shoreline setback variance application with the Commission. The Department, on behalf of the Commission, shall be the accepting agency of all environmental assessments and/or environmental impact statements,if appropriate,which are prepared in accordance with this rule.A shoreline setback variance application shall not be considered complete until such time the Department has complied with the requirements of Chapter 343,HRS and Title 11, Chapter 200.1, HAR. 8-8 Public Hearing (a) Except as otherwise provided in this rule, the Commission shall conduct a public hearing within a period of ninety days from the date of acceptance of a complete application, or within a longer time period as agreed to by the applicant. Prior to acceptance of an application, the applicant shall comply with the requirements of Chapter 343, HRS and Title 11, Chapter 200.1, HAR. In the case of a finding of no significant impact (FONSI) and final environmental impact statements, the Office of Planning and Sustainable Development, Environmental Review Program Periodic Bulletin publication date will be used as compliance. For exemptions, the date of determination will be used. (b) At least twenty days prior to the date of the public hearing,the Commission shall publish a notice of the hearing in at least two daily newspapers of general circulation in the county which includes the following: (1) Name of the applicant; (2) The location of the property involved, including its physical address and tax map key number; (3) Nature of the variance sought; 8-5 (4) Date, time, and place of the public hearing. (c) Promptly after the Commission's fixing a date for the hearing but not less than ten days prior to the date of the hearing,the applicant shall mail a notice of the hearing to all property owners within three hundred feet of the affected property.Reasonable notice shall also be provided to those persons who have requested such notification of the applicant. Prior to the date of the hearing,the applicant shall file with the Commission proof of service or of good faith efforts to serve notice of the application on the designated property owners. Such proof may consist of certified mail receipts, affidavits, or the like. However, any failure to mail or to receive the written notice shall not invalidate the proceedings. (d) For each hearing continued at the request of the applicant,the applicant shall serve notice of the hearing on surrounding property owners and lessees of record as provided by Section 8-8(c). An additional two hundred fifty ($250) dollar processing fee shall be submitted by the applicant for each hearing continued at the request of the applicant. 8-9 Decision (a) Within sixty days following the close of the public hearing(s), or within a longer time period as agreed to by the applicant, the Commission shall render a decision to approve or deny the application. (b) Notice of the decision shall be promptly given to the applicant by delivery thereof. (c) Whenever an application for a variance has been denied,no new application for the same or similar development, covering all or any portion of the property involved in the application, shall be accepted by the Commission for a period of one year from the effective date of the denial of the application; provided, however, that upon showing of a substantial change of circumstances the Commission may permit the filing of a new application prior to the expiration of such a one year period. 8-10 Waiver of Public Hearing and Action (a) The Commission hereby delegates to the Department the authority to waive a public hearing and to take action on a variance application for: (1) Stabilization of shoreline erosion by moving sand entirely on public lands; (2) Protection of a structure determined by the Department to be legally constructed, which costs more than $20,000; provided the structure 8-6 is at risk of immediate damage from shoreline erosion as determined by the Department, in consultation with appropriate agencies (i.e. U.S. Army Corps of Engineers, Department of Public Works); or (3) Maintenance, repair, reconstruction, and minor additions or alterations of legal boating, maritime, or water sports recreational facilities, which result in little or no interference with natural shoreline processes. (b) An applicant who seeks processing under Section 8-10 shall make the request in writing upon submittal of the variance application. (c) The Department may deny the public hearing waiver and the application shall be heard and noticed by the Commission in accordance with Section 8- 8. (d) The Department shall promulgate rules to administer Section 8-10. 8-11 Criteria for Approval of a Variance (a) A variance may be granted for a structure or activity otherwise prohibited by Planning Department Rule 11 (Shoreline Setback) and Chapter 205A, HRS if the Commission finds in writing, based on the record, that the proposed structure or activity is necessary for or ancillary to: (1) Cultivation of crops; (2) Aquaculture; (3) Landscaping,provided that the Commission finds that the proposed structure or activity will not adversely affect beach processes, will not impede public access, and will not artificially fix the shoreline. (b) Shoreline-dependent Facility Standard. A variance may also be granted,provided that the proposal is the practicable alternative which best conforms to the purpose of this rule, and upon a finding that, based upon the record, the proposed structure or activity is necessary for or ancillary to: (1) Drainage; (2) Boating,maritime, or watersports recreational facilities; (3) Moving of sand from one location seaward of the shoreline to another location seaward of the shoreline; provided that the 8-7 authority also finds that moving of sand will not adversely affect beach processes, will not diminish the size of a public beach, and will be necessary to stabilize an eroding shoreline. (c) Public Interest Standard. A variance may also be granted,provided that the proposal is the practicable alternative which best conforms to the purpose of this rule, and upon a finding that, based upon the record, the proposed structure or activity is necessary for or ancillary to: (1) Facilities or improvements by public agencies or public utilities regulated under Chapter 269, HRS; (2) Private facilities or improvements that are clearly in the public interest. (d) Hardship Standard. (A) A variance may also be granted, provided that the proposal is the practicable alternative which best conforms to the purpose of this rule, and upon a finding that, based upon the record, the proposed structure or activity is necessary for or ancillary to: (1) Private facilities or improvements that will not adversely affect beach processes, result in flanking shoreline erosion, or artificially fix the shoreline; provided that the Commission may consider any hardship that will result to the applicant if the facilities or improvements are not allowed within the shoreline area; (2) Private facilities or improvements that may artificially fix the shoreline; provided that the Commission may consider hardship to the applicant if the facilities or improvements are not allowed within the shoreline area; provided further that a variance to artificially fix the shoreline shall not be granted in areas with beaches or where artificially fixing the shoreline may interfere with existing recreational and waterline activities unless the granting of the variance is clearly demonstrated to be in the interest of the general public. (B) A structure or activity may be granted a variance upon grounds of hardship only if. (i) The applicant would be deprived of reasonable use 8-8 of the land if required to comply fully with this rule; and (ii) The request is due to unique circumstances and does not draw into question the reasonableness of this rule; and (iii) The request is the practicable alternative which best conforms to the purpose of this rule. (C) Before granting a hardship variance, the Commission must determine that the request is a reasonable use of the land. The determination of the reasonableness of the use of land shall consider factors such as shoreline conditions, erosion, surf and flood condition, and the geography of the lot as it relates to health and safety. (D) If a structure is proposed to artificially fix the shoreline, the Commission must also determine that shoreline erosion is likely to cause hardship if the structure is not allowed within the shoreline setback area. (E) Hardship shall not be determined as a result of zoning amendments, planned unit development(PUD)permits, cluster plan development (CPD)permits, or subdivision approvals after June 16, 1989. (e) No variance shall be granted unless appropriate conditions are imposed as applicable: (1) To comply with Chapters 10 and 27 of the Hawaii County Code relating to Erosion and Sedimentation Control and Flood Control, respectively; (2) To maintain safe lateral access along the shoreline or adequately substitute for its loss; (3) To minimize risk of adverse impacts on beach processes; (4) To minimize risk of structures failing and becoming loose rocks, sharp or otherwise dangerous debris, or rubble on public property; and (5) To minimize adverse impacts on public views to, from, and along the shoreline. 8-9 8-12 Amendments to a Variance (a) The applicant may apply to the Commission through the Department for an amendment to the variance. (b) In the case of additions, modifications, and/or deletions to the variance or conditions, the applicant shall submit the written request, which includes: (1) The affected section of the variance or condition; (2) The specific amendment requested; (3) The reasons for the request; and (4) Any other information required by the Commission. (c) In the case of time extensions, the applicant shall file the request not less than ninety days prior to the expiration date of the time conditions, setting forth: (1) The affected condition; (2) The length of time requested; (3) The reasons for the request; and (4) Any other information required by the Commission. (d) Upon submitting a request as set forth in Section 8-12(b) or (c), with the exception of administrative time extensions, the applicant shall also file a two hundred fifty($250) dollar processing fee. (e) The hearing and notice procedures and action shall be the same as under Sections 8-5, 8-8, and 8-9. 8-13 Administration and Enforcement The Department is responsible for the processing of all variance applications and is also responsible for the enforcement of all conditions and requirements associated with a variance issued in accordance with this rule. 8-14 Appeals (a) Any decision of the Commission so made within the context of this article shall be appealable to the Third Circuit Court. The notice of appeal shall be filed in the Third Circuit Court within thirty (30) days after the person 8-10 desiring to appeal is notified of the decision or order, or of the action taken in a manner provided by statute. (b) If a contested case hearing is held a different appeal option is available. Refer to Planning Commission Rule 4-32 for appeal procedures. 8-15 Revocation (a) A Shoreline Setback Variance may be revoked by the Director in the event that any property owner who holds the variance sought to be revoked or any other person,with the property owner's consent,submits a written statement to the Director verifying that the development approved under the variance issued has either not been established or has been abandoned. (b) A Shoreline Setback Variance may be revoked by the Commission in the event that: (1) The Director requests the revocation if- (A) There has been noncompliance with the conditions of the variance; or (B) The use authorized under the variance is creating a threat to the health or safety of the community. (2) The proceeding to revoke a Shoreline Setback Variance, upon request of the Director, shall require written notice to the property owner and to the person who has been issued the variance prior to the Commission taking action to revoke the variance. 8-11 W DWARD PL ING COMMISSION is Lin, airman Date LEEWARD PLANNING COMMISSION Barbara DeFranco, Chairman Date Notice of Public Hearing: Hawaii Tribune Herald: March 21, 2023 West Hawaii Today: March 21, 2023 Date and Place of Joint Planning Commission Hearing: April 20, 2023 West Hawaii Civic Center, Council Chambers, Building A 75-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii Interactive Conference Technology (ICT) Remotely Notice of Public Hearing: Hawaii Tribune Herald: May 3, 2023 West Hawaii Today: May 3, 2023 Date and Place of Joint Planning Commission Hearing: June 2, 2023 Hawaii County Council Chambers in Hilo 25 Aupuni Street,Hilo, Hawaii Interactive-Conference Technology(ICT) Remotely APPROVED: MAYOR, County of Hawaii Date: 0(021 2U2'> APPROVED AS-TO F M: r Deputy o oratio Co el Date: d I hereby certify that the foregoing amendments and revisions to the Hawaii County Planning Commission Rules of Practice and Procedure was received and filed in my Office this 22nd day of June , 2023. 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