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HomeMy WebLinkAbout2025-10-22 Appellants Exhibit 18_Rule 9-SMA RULE 9. SPECIAL MANAGEMENT AREA 9-1 Authority Pursuant to authority conferred by Chapter 205A,Hawaii Revised Statutes(HRS), the rule hereinafter contained is hereby established and shall apply to all lands within the Special Management Area of the County of Hawaii. 9-2 Purpose It is the State policy to preserve,protect, and where possible,to restore the natural resources of the coastal zone of Hawai`i. Therefore, special controls on development within the area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options,and to insure that adequate public access is provided to public-owned or used beaches,recreation areas, and natural reserves,by dedication or other means. 9-3 Title This rule shall be known as the"Special Management Area Rule of the County of Hawai`i." 9-4 Definitions For the purpose of this rule, unless it is plainly evident from the content that a different meaning is intended, certain words and phrases used herein are defined as follows: (a) "Artificial light"or"artificial lighting"means the light emanating from any fixed human-made device. (b) "Assessment"means an evaluation by the Department of a proposed use, activity,or operation to determine whether a Special Management Area Use Permit is required. (c) "Authority"means the county planning commission.The authority may, as appropriate,delegate the responsibility for administering this rule,as stated in this rule. (d) "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. .-; 9-1 APPELLANT EXHIBIT- 1pg. 1 of (e) "Coastal hazards"means any tsunami,hurricane,wind,wave,storm surges, high tide,flooding,erosion,sea level rise,subsidence,or point and nonpoint source pollution. (f) "Crops"means agricultural produce or part(s) of plants or trees cultivated for commercial or personal use including but not limited to the raising of livestock. (g) "Cultural" pertains to traditional and customary practices and usage of resources to fulfill responsibilities and rights possessed and exercised by ahupua'a tenants who are descendants of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778. (h) "Department"means the planning department of Hawai`i County. (i) "Development"means any of the following uses, activities, or operations on land or in or under water within the Special Management Area: (1) "Development"includes the following: (A) Placement or erection of any solid material or any gaseous, liquid,solid,or thermal waste; (B) Grading, removing, dredging, mining, or extraction of any materials; (C) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land; (D) Change in the intensity of use of water, ecology related thereto, or of access thereto; and (E) Construction,reconstruction, or alteration of the size of any structure. (2) "Development" does not include the following uses, activities or operations: (A) Construction or reconstruction of a single-family residence that is less than seven thousand five hundred(7,500)square feet of floor area, is not situated on a shoreline parcel or a parcel that is impacted by waves, storm surges,high tide, or shoreline erosion, and is not part of a larger development. Floor area shall be the total area of all floors of a building(s) associated with the single-family residence, including a 9-2 APPELLANT EXHIBIT- 1 2 of pg basement and accessory structures, measured along the exterior walls of such building(s). The floor area of a building(s), or portion thereof, not provided with surrounding exterior walls shall be the usable area under the horizontal projection of the roof or floor above; (B) Repair or maintenance of roads and highways within existing rights-of-way; (C) Routine maintenance dredging of existing streams,channels, and drainage ways; (D) Repair and maintenance of utility lines, including but not limited to water, sewer, power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations; (E) Zoning variances, except for height, density, parking, and shoreline setback; (F) Repair, maintenance, or interior alterations to existing structures or relating to existing uses; (G) Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers or those listed in the Historic Sites Element of the General Plan; (H) Use of any land for the purpose of cultivating, planting, growing, and harvesting plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture or mariculture of plants or animals, or other agricultural purposes; (I) Transfer of title of land; (J) Creation or termination of easements, covenants, or other rights in structures or land; (K) Subdivision of land into lots greater than twenty acres in size; (L) The amendment of the General Plan, State Land Use Boundary amendments and changes of zone; (M) Subdivision of a parcel of land into four or fewer parcels 9-3 APPELLANT EXHIBIT- 1 of pg when no associated construction activities are proposed, provided that any such land which is so subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels; (N) Installation of underground utility lines and appurtenant aboveground fixtures less than four feet in height along existing corridors; (0) Structural and non-structural improvements to existing single-family residences,where otherwise permissible; (P) Non-structural improvements to existing commercial or non-commercial structures; (Q) Construction, installation, maintenance, repair, and replacement of civil defense warning or signal devices and sirens; and (R) Plan, design, construct, operate, and maintain any lands or facilities under the jurisdiction of the Division of Boating and Ocean Recreation of the State Department of Land and Natural Resources. (3) Any proposed use, activity, or operation listed in Section 9-4(i)(2) shall be deemed to be "Development" until the Director has determined it to be exempted from the definition of"development." (4) Whenever the Director finds that any excluded use, activity, or operation may have a cumulative impact, or a significant adverse environmental or ecological effect on the Special Management Area, that use, activity, or operation shall be defined as "development"for the purpose of this rule. (j) "Directly illuminate" means to illuminate through the use of a glowing element,lamp,globe,or reflector of an artificial light source. (k) "EIS"means an informational document prepared in compliance with Chapter 343,HRS, and the Hawai`i Administrative Rules,Title II, Chapter 200.1 (Environmental Impact Statement Rules). An EIS discloses the environmental effects of a proposed action, effects of a proposed action on the economic welfare,social welfare, and cultural practices of the community and State, effects of economic activities arising out of the proposed action,measures proposed to minimize adverse effects and alternatives to the action and their environmental effects. 9-4 APPELLANT EXHIBIT- 1pg. 4 of (I) "Estuary"means that part of a river or stream or other body of water having unimpaired connection with the open sea,where the seawater is measurably diluted with fresh water derived from land drainage. (m) "Native Hawaiian Rights" means those rights defined in and protected under HRS 1-1, HRS 7-1, HRS 174C-101, Article XII, Section 7 of the Hawaii State Constitution,and in rulings of Hawai`i case law." (n) "Ocean waters" means all waters seaward of the shoreline within the jurisdiction of the State. (o) "Owner" means all equitable and legal holders or lessees of real property. Lessees shall present certification of approval from the legal owner. 1 i (p) "Person" means and includes any individual, organization, partnership, or corporation,including any utility and any agency of government. (q) "Petitioner" means and includes any person who seeks permission or authorization which the Commission may grant under this rule. (r) "Public Works Director" means Director of the Department of Public Works of the County of Hawaii. (s) "Shoreline"means the upper reaches of the wash of waves,other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth,or the upper limit of debris left by the wash of the waves. (t) "Shoreline Survey" means the actual field location of the shoreline in accordance with the definition herein along with the existing property lines which shall be located and platted by instrument surveys and the property corners or appropriate references thereof along the shoreline be marked on the ground by a registered land surveyor in the State of Hawai`i. Such survey maps developed by the registered land surveyor shall bear the surveyor's signature and date of field survey,and the confirming signature of the Chairman of the Board of Land and Natural Resources. (u) "Single-Family Residence"means a detached building designed for and/or used as the complete facility for cooking,sleeping and living area of a single family only and occupied by no more than one family. Single family residences may include uses or structures normally considered accessory to the single family facilities provided that any such uses or structures are situated on the same lot or building site and are in compliance with all requirements of any county or state regulation, statute, or ordinance. A single family shall include all persons living in a dwelling related by blood, marriage or by adoption or a group comprised of not more than five persons 9-5 APPELLANT EXHIBIT- 1 5 o not related by blood,marriage or by adoption. (v) "Special Management Area" means the land extending inland from the shoreline as delineated on the maps filed with the Commission as of June 8, 1977,or as amended pursuant to Section 9-21. (w) "Special Management Area Emergency Permit" means an action by the Director authorizing development in cases of emergency requiring immediate action to prevent substantial harm to persons or property or to allow the reconstruction of structures damaged by natural hazards to their original form,provided that those structures were previously found to be in compliance with requirements of the National Flood Insurance Program. (x) "Special Management Area Minor Permit"means an action by the Director authorizing development, the valuation of which is not in excess of $500,000 and which has no cumulative impact, or a substantial adverse environmental or ecological effect on the Special Management Area. (y) "Special Management Area Use Permit" means an action by the Commission authorizing development, the valuation of which exceeds $500,000 or which may have a cumulative impact, or a substantial adverse environmental or ecological effect on the Special Management Area. (z) "Structure" means and includes, but is not limited to, any building, road, pipe,flume,conduit, siphon,aqueduct,telephone line,and electrical power transmission and distribution line. (aa) "Use"means any purpose for which a structure or a tract of land is designed, arranged, intended, maintained or occupied or any activity, occupation, business,or operation carried on or intended to be carried on in any structure or on a tract of land. (bb) "Valuation" shall be determined by the Director and means the estimated cost to replace the structure,in kind,based on current replacement costs,or in the case of other developments, as defined in 9-4(i)(1), the fair market value of the development. (cc) "Vegetation Growth"means any plant,tree,shrub,grass,or groups,clusters or patches of the same,naturally rooted and growing. 9-6 APPELLANT EXHIBIT- 1 of pg 9-5 Special Management Area Special Management Area of the County shall be as delineated on such maps filed with the Authority as of June 8, 1977, or as may be amended pursuant to Section 9-21, and shall be the official Special Management Area to be administered and enforced under this rule. 9-6 Objectives and Policies of Chapter 205A,HRS (a) The objectives and policies of the coastal zone management program shall be those set forth in Section 205A-2,HRS,as amended. (b) The Commission shall implement these objectives and policies, as appropriate. 9-7 Special Management Area Guidelines The Special Management Area guidelines set forth in Section 205A-26, HRS, as amended, shall be used by the Commission, as appropriate, for the review of developments proposed in the Special Management Area. 9-8 Permits Required for Development (a) No development shall be allowed within the Special Management Area without obtaining a permit in accordance with this-rule. (b) No State or County Agency authorized to issue permits within the Special Management Area shall authorize any development unless approval is first received in accordance with this rule. (c) Special Management Area Minor,Use or Emergency Permits or exemptions validly issued by the Department or the Commission, subsequent to any amendment to Chapter 205A, HRS but preceding any supportive amendment to this rule shall continue to be considered valid. 9-9 Authority of the Department in the Special Management Area All development within the Special Management Area shall be administered through the Department under this rule pursuant to the objectives and policies and the Special Management Area guidelines as provided by Chapter 205A,HRS. To improve the efficiency of the Commission's review, approval and permitting processes granted upon it by Chapter 205A-22, HRS and in accordance with Rule 9 herein,the Commission hereby delegates to the Director the authority to process assessments, determinations and conditions regarding exemptions, issue and enforce Special Management Area Minor Permits and Special Management Area 9-7 APPELLANT EXHIBIT- 18, pg. 7 of 8 Emergency Permits, and to administer, interpret, and enforce terms, scope and conditions set forth in Special Management Area Use Permits issued by the Commission. 9-10 Assessment (a) The Department shall assess all uses, activities or operations proposed in the Special Management Area except in cases in which the applicant determines that the proposed use, activity or operation will: a) exceed $500,000 in valuation; or b) have a cumulative impact, or a significant adverse environmental or ecological effect on the Special Management Area. In this case, the assessment procedures may be waived and the applicant shall petition the Commission for a Special Management Area Use Permit pursuant to Section 9-11. (b) For proposed uses,activities or operations that are subject to an assessment, the applicant shall submit to the Department a Special Management Area Assessment (SMAA) on a form prepared by the Department. The review and acceptance of the assessment application shall follow the procedures pursuant to Section 25-2-3 (Review and acceptance of applications) in Chapter 25, Hawai`i County Code 1983 (2016 Edition, as amended). The information on the SMAA form shall include, but not be limited to, the following: (1) The tax map number for the property. (2) A plot plan of the property, drawn to scale, with all proposed and existing structures shown thereon and any other information necessary to a proper determination relative to the specific request. (3) A written description of the proposed project and a statement of objectives. (4) An Environmental Assessment (EA) or Environmental Impact Statement (EIS) if required under Chapter 343, HRS, or when required by the Director. (5) A written description of the anticipated impacts of the proposed uses, activities or operations on the Special Management Area including but not limited to: (A) Description of environmental setting; (B) The relationship of the proposed action to land use plans, policies, and control of the affected area; 9-8 APPELLANT EXHIBIT- 18, pg. 8 of 8