HomeMy WebLinkAboutPlanning Commission Rules, Rule 9 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 Hawaii. Therefore, special controls on
development within the area along the shoreline are necessary to avoid permanent
loss of valuable resources and the foreclosure of management options,and to insure
that adequate public access is provided to public-owned or used beaches,recreation
areas, and natural reserves,by dedication or other means.
9-3 Title
This rule shall be known as the "Special Management 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.
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(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 Hawaii 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 an solid material or an gaseous,
( ) Y Y
liquid, solid, or thermal waste;
B Grading, removin
g, 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
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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
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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 94(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 Hawaii Administrative Rules, Title II, Chapter
200.1 (Environmental Impact Statement Rules). An EIS discloses the
environmental effects of a proposed action, effects of a proposed action on
the economic welfare, social welfare, and cultural practices of the
community and State, effects of economic activities arising out of the
proposed action,measures proposed to minimize adverse effects and
alternatives to the action and their environmental effects.
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(1) "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 Hawaii 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.
(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 Hawaii. 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
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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 94(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.
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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
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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;
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(C) The probable impact of the proposed action on the
environment;
(D) Any probable adverse environmental effects which cannot
be avoided;
(E) Alternatives to the proposed action;
(F) Mitigating measures proposed to minimize impact; and
(G) Any irreversible and irretrievable commitment of resources.
(6) A written description of the anticipated impacts of the proposed
development on valued cultural historical or natural resources on or
in the vicinity of the property, to include:
(A) The identity and scope of valued cultural, historical, or
natural resources in the area, including the extent to which
traditional and customary native Hawaiian rights are
exercised in the area;
(B) The extent to which those resources, including traditional
and customary native Hawaiian rights, will be affected or
impaired by the proposed action; and
(C) The feasible action, if any, to be taken to reasonably protect
any valued cultural,historical or natural resources,including
any existing traditional and customary native Hawaiian
rights.
(7) A written statement discussing the proposed use, activity or
operation in relation to the objectives and policies as provided by
Chapter 205A, HRS.
(8) A statement of the valuation of the proposed use, activity or
operation.
(9) A current certified shoreline survey when the parcel abuts the
shoreline, except that the Director may waive the submission of the
survey when the proposed development is clearly and unmistakably
located on a shoreline parcel at a considerable distance from the
shoreline.
(10) Identification and detailed information of existing public access to
and along the shoreline and whether the access is being used.
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(11) Any other plans or information required by the Director.An EIS that
has been declared adequate under the National Environmental
Policy Act (NEPA) or under Chapter 343, HRS, may constitute a
valid filing under this section.
(12) A fifty dollar($50) filing fee.
(c) The Director shall assess the proposed use, activity or
o operation upon the
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applicant's compliance with Section 9-10B based on the following criteria:
(1) The valuation of the proposed use, activity or operation.
(2) The potential effects and significance of each specific circumstance
of the use, activity or operation, according to the criteria of
significant adverse effect established by Section 9-10H.
(d) The Director, within sixty calendar days after the receipt of all filing
requirements or within a longer period as may be agreed to by the applicant,
shall notify the applicant in writing that:
The proposed use, activity or operation does not constitute a development
or is exempt from the definition of development; or
A Special Management Area Minor Permit is being issued; or
A Special Management Area(Major) Use Permit is required.
If the p
use, activity, or operation is less than$500,000 in value and
proposed
the Director fails to act within the sixty calendar day period or within such
longer period as may have been agreed to by the applicant, the proposed
use, activity or operation shall be forwarded to the Commission for its
consideration. The notice and hearing procedures and action shall be the
same as under Section 9-11(c) through 9-11(f).
(e) Where it is found that the proposed use, activity or operation is not in excess
of $500,000 in valuation; and will not have a cumulative impact, or a
significant adverse effect on the Special Management Area,and after review
by the Public Works Director for compliance with Chapter 27, Flood
Control, of the Hawaii County Code, the Director shall issue a Special
Management Area Minor Permit.
(1) The issuance of such minor permit shall be subject to any reasonable
terms or conditions.
(2) A copy of the Special Management Area Minor Permit issued shall
be filed with the Commission and the Office of Planning of the State
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Department of Business, Economic Development and Tourism.
(f) The Director shall declare that a Special Management Area Use Permit is
required if it is found that the proposed use, activity or operation has a
valuation in excess of$500,000 or may have a significant adverse effect on
the Special Management Area. Should a determination be made that the
proposed use, activity or operation requires a Special Management Area
Use Permit, the applicant shall submit such application in accordance with
Section 9-11.
(g) The Director shall declare the proposed use, activity or operation exempt
from the definition of development if it is found that the proposal falls in
any category under Section 9-4(h)(2), and does not have a cumulative
impact, or a significant adverse environmental or ecological effect on the
Special Management Area. The Director may impose certain conditions
with the exemption determination to assure that the proposed use, activity,
or operation does not have a significant adverse effect on the Special
Management Area.
(h) Criteria of Significant Adverse Effect
In considering the significance of potential environmental effects, the
Director shall consider the sum of those effects that adversely affect the
quality of the environment and shall evaluate the overall and cumulative
effects of the action.
A `significant adverse effect' is determined by the specific circumstances
of the proposed use,activity or operation.In determining whether a proposal
may have a significant adverse effect on the environment,the Director shall
consider every phase of a proposed action and expected consequences,
either primary or secondary, or the cumulative as well as the short or long-
term effect of the proposal. The Director should bear in mind that in most
instances,the following factors of a proposal, although not limited to same,
may constitute a significant adverse effect on the environment when the
proposed use, activity or operation:
(1) involves an irrevocable commitment to loss or destruction of any
natural or cultural resource, including but not limited to, historic
sites and view planes outlined in the General Plan or other adopted
plans;
(2) curtails the range of beneficial uses of the environment;
(3) conflicts with the long-term environmental policies or goals of the
General Plan or the State Plan;
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(4) significantly affects the economic or social welfare and activities of
the community, County or State;
(5) involves significant secondary impacts, such as population changes
and effects on public facilities;
(6) in itself has no significant adverse effect but cumulatively has
considerable adverse effect upon the environment or involves a
commitment for larger actions;
(7) significantly affects a rare, threatened, or endangered species of
animal or plant, or its habitat;
(8) detrimentally affects air or water quality or ambient noise levels;
(9) affects an environmentally sensitive area, such as flood plain,
tsunami zone, erosion-prone area, geologically hazardous land,
estuary, fresh water or coastal water; or
(10) is contrary to the objectives and policies of the Coastal Zone
Management Program and the Special Management Area
Guidelines of Chapter 205A, HRS.
(i) SMA Short Form Assessment
The Department may create a SMA short form assessment to be used by the
Department to assess uses that may result in a determination that the
proposed use is exempt, i.e., single family residence, minor grubbing, or
accessory structures. The short form assessment may include, but not be
limited to the following information:
(1) The tax map number for the property;
(2) A plot plan of the property, drawn to scale, with all proposed and
existing structures shown thereon;
(3) Description of the proposed action, including the extent of land
clearing, if any;
(4) Description of any known historical sites, anchialine ponds,
wetland, or sandy beach, and any other pertinent information.
In case of a single family dwelling, a Building Permit application may
suffice as the plot plan required under(2).
The Director may require a full SMAA if it is determined through the short
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form assessment review that further information is needed from the
applicant. The Director may impose certain conditions with the exemption
determination to assure that the proposed use,activity,or operation does not
have a significant adverse effect on the SMA.
9-11 Special Management Area Use Permit Procedures
(a) Compliance with Chapter 343, HRS
If the action proposed requires compliance with Chapter 343, HRS, an
environmental assessment or environmental impact statement shall
accompany the filing of a special management area use permit application.
The Department, on behalf of the Commission, shall be the accepting
authority of all environmental assessments and/or environmental impact
statements, if appropriate, which are prepared in accordance with Chapter
343, HRS and this rule. A special management area use permit application
shall not be considered complete until such time as the requirements of
Chapter 343, HRS and Title 11, Chapter 200.1, Hawaii Administrative
Rules, if applicable,have been complied with.
(b) Application
An applicant who has received a determination that the proposed use,
activity or operation does not conform to the requirements for a minor
permit, or who has determined on its own that the proposed use, activity or
operation will exceed $500,000 in valuation or will have a cumulative
impact, or a significant adverse environmental or ecological effect on the
Special Management Area, shall apply to the Authority through the Director
for a Special Management Area Use Permit.
The applicant shall submit the following to the Director:
(1) The completed application including the following:
(A) A tax map key description of the property;
(B) A plot plan of the property, drawn to scale, with all existing
and proposed structures shown thereon and any other
information necessary to make a proper determination of the
impacts relative to the specific request;
(C) A written description of the proposed project and statement
of the objectives;
(D) An EA or EIS if required under Chapter 343, HRS, or when
required by the Director;
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(E) A written description of the anticipated impacts of the
proposed development on the Special Management Area,
including but not limited to:
(i) Description of environmental setting;
(ii) The relationship of the proposed action to land use
plans,policies, and control of the affected area;
(iii) The probable impact of the proposed action on the
environment;
(iv) Any probable adverse environmental effects which
cannot be avoided;
(v) Alternatives to the proposed action;
(vi) Mitigating measures proposed to minimize impact;
and
(vii) Any irreversible and irretrievable commitment of
resources.
(F) A written description of the anticipated impacts of the
proposed development on valued cultural, historical or
natural resources on or in the vicinity of the property, to
include:
(i) The identity and scope of valued cultural, historical
or natural resources in the petition area,including the
extent to which traditional and customary native
Hawaiian rights are exercised in the petition area;
(ii) The extent to which those resources, including
traditional and customary native Hawaiian rights,
will be affected or impaired by the proposed action;
and
(iii) The feasible action, if any, to be taken by the
Authority to reasonably protect any valued cultural,
historical or natural resources,including any existing
traditional and customary native Hawaiian rights.
(G) A written statement discussing the proposed development in
relationship to the objectives and policies as provided by
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Chapter 205A, HRS;
(H) A statement of the valuation of the proposed use, activity or
operation;
(I) A current certified shoreline survey when the parcel abuts
the shoreline, except that the Director may waive the
submission of the survey when the proposed development is
clearly and unmistakably located on a shoreline parcel at a
considerable distance from the shoreline;
(J) Identification and detailed information of existing public
access to and along the shoreline and whether the access is
being used; and
(K) Any other plans or information required by the Director.
(2) In the case of an applicant whose proposed development has been
assessed, any information as to the areas of critical concern
delineated by the Director.
(3) In the case where a multi-unit residential structure, containing more
than ten units is proposed, the Director may require the applicant to
submit a scale model or three-dimensional rendering of the proposed
development and related improvements.
(4) Archaeological Resources (one of the following):
(A) An archaeological inventory report or assessment prepared
by a licensed archaeologist containing significance
assessments, effect determinations, and proposed mitigation
commitments. The report should be completed pursuant to
Department of Land and Natural Resources—State Historic
Preservation Division(DLNR-SHPD)rules.
(B) A prior "no-effect" letter from the DLNR-SHPD for the
subject property.
(C) A letter and location map for the Planning Department to
submit to DLNR-SHPD claiming no significant historic sites
are likely to be present. The letter must present supportive
evidence documenting the proposed land altering activities
(including the affected area and depth of disturbance) and
documenting the likely nature and depth of historic
properties that may have once existed in the area.
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(5) Five hundred($500)dollars filing fee to cover publication and other
administration costs.
(6) Prior to the acceptance of any application,all real property taxes and
other fees relating to the subject parcel or parcels shall be paid and
there shall be no outstanding delinquencies, except in cases of
bankruptcy or similar matters as authorized by the County Director
of Finance.
(c) Posting of Signs for Public Notification
(1) Within ten days of being notified of the acceptance of an application,
the applicant shall post a sign on the subject property notifying the
public of the following:
(A) The nature of the application;
(B) The proposed use of the property;
(C) The size of the property;
(D) The tax map key(s) of the property;
(E) That the public may contact the Department for additional
information; and
(F) The address and telephone number of the Department.
(2) The sign shall remain posted until the application has been granted,
denied, or withdrawn.The applicant shall remove the sign promptly
after such action.
(3) Notwithstanding any other provisions of law, the sign shall be not
less than nine square feet and not more than twelve square feet in
area,with letters not less than one inch high.No pictures, drawings,
or promotional materials shall be permitted on the sign. The sign
shall be posted at or near the property boundary adjacent to a public
road bordering the property and shall be readable from said public
road.If more than one public road borders the property,the applicant
shall post the sign to be visible from the more heavily traveled public
road. The sign shall, in all other respects, be in compliance with
Chapter 3 (Signs) Hawaii County Code 1983 (2016 Edition, as
amended).
(4) The applicant shall file an affidavit with the Department not more
than five days after posting the sign stating that a sign has been
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posted in compliance with this section, and that the applicant and its
agents will not remove the sign until the application has been
granted, denied, or withdrawn. A photograph of the sign in place
shall accompany the affidavit.
(d) Hearings
Upon acceptance of an SMA Use Permit application, the Commission,
through the Department, shall fix a date for the public hearing. The public
hearing shall commence no later than ninety days after the acceptance of an
SMA Use Permit application by the Director,or within a longer time period
as agreed to by the applicant.
Promptly after the Commission fixing a date for the hearing, the applicant
shall mail a notice of the hearing setting forth the time, date, and place of
the hearing to the owners of properties, lessees, and others with a recorded
possessory interest in property within three hundred feet of the perimeter
boundary of the affected property and to any other person or agency that
has made a written request to the Department for advance notice of the
hearing, not less than twenty calendar days prior to the date set for the
hearing. Prior to the date of the hearing, the applicant shall file with the
Commission, through the Director, an affidavit or other similar proof of
mailing of said notice.In addition to said notice and at least twenty calendar
days prior to the date of the hearing, the Commission shall give public
notice of the time, date, and place of the hearing at least once in the County.
Any failure to mail or to receive the public notice shall not invalidate the
proceedings, provided further that the proceedings conform to the
requirements of Chapter 91, HRS, as amended. These aforementioned
notice requirements are not required for subsequent hearing dates upon the
same application.
At the hearing, all interested persons shall be afforded an opportunity to be
heard. The proceedings shall comply with the requirements of Chapter 91,
HRS, as amended, and Commission Rule 4 relating to Contested Case
Procedures, where applicable.
Any such hearing shall,whenever possible,be held jointly and concurrently
with other applicable hearings for the proposed development.
The applicant shall submit an additional two hundred fifty ($250) dollars
processing fee for each hearing continued at the request of the applicant.
The applicant shall also notify all owners of properties, lessees, and other
recorded possessory interests in the property within three hundred feet of
the perimeter boundary of the affected property of the continued hearing.
(e) Grounds for Approval of Special Management Area Use Permits:
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The Commission may permit the proposed development only upon finding
that:
(1) The development will not have any significant adverse
environmental or ecological effect except as any adverse effect is
minimized to the extent practicable and is clearly outweighed by
public health, safety, or compelling public interest. Those adverse
effects shall include, but not be limited to, the potential cumulative
impact of individual developments, each of which taken by itself
might not have a significant adverse effect, and the elimination of
planning options;
(2) The development is consistent with the objectives and policies and
the Special Management Area guidelines as provided by Chapter
205A, HRS;
(3) The development is consistent with the general plan, community
plan, zoning code and other applicable ordinances, provided that a
finding of consistency shall not preclude concurrent processing
where a general plan, community plan, or zoning amendment may
pi
an,
be required.
(4) The development will, to the extent feasible, reasonably protect
native Hawaiian rights if they are found to exist, including specific
factual findings regarding:
(A) The identity and scope of valued cultural, historical or
natural resources in the petition area, including the extent to
which traditional and customary native Hawaiian rights are
exercised in the petition area;
(B) The extent to which those resources, including traditional
and customary native Hawaiian rights, will be affected or
impaired by the proposed action; and
(C) The feasible action, if any, to be taken by the Authority to
reasonably protect any valued cultural, historical or natural
resources, including any existing traditional and customary
native Hawaiian rights.
Any development permitted shall be subject to reasonable terms and
conditions set by the Authority in accordance with the Special Management
Area guidelines as contained in Section 9-7.
(f) Decision and Order
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(1) Within sixty days following the close of the public hearing(s), or a
longer time period as agreed to by the applicant, the commission
shall either deny or approve the application. The decision, whether
to grant or to deny the application, shall require a majority vote of
the total membership of the Commission. In the event the
Commission fails to render a decision to approve or deny within the
prescribed time limit, the request shall be considered denied.
The applicant may request the Commission to defer action on the
application. A majority vote of the total membership of the
Commission is required if applicant requests to defer action on the
application. In the event the Commission fails to render a decision
to defer action within the prescribed time limit, the request shall be
considered denied.
(2) Notice of Decision: Notice of the decision shall be promptly given
to the applicant by delivery thereof or by mailing or electronically
mailing the notice to the applicant's last known address.
(3) Reconsideration: In the event an application is denied due to the
Commission's failure to render a decision within the period
prescribed by Section 9-11(f)(1) above, the applicant may, within
ten calendar days after receipt of notice of the denial, request
reconsideration of that decision.Upon such request,the Department
shall place the application on the agenda of Commission for its
reconsideration at the next meeting. In the event the Commission
fails to render a decision by a majority vote of its total membership
at the next meeting, the application shall be considered as denied.
(4) Refiling: Whenever an application for a Special Management Area
Use Permit has been denied, no new application for the same or
similar development, covering all or any portion of the property
involved in the application, shall be accepted by the Commission
through the Director for a period of two years from the effective date
of the denial of the application; provided, however, that upon
showing of a substantial change of circumstances the Commission
may permit the filing of a new application prior to the expiration of
such a two-year period.
(5) Appeals:
(A) Any decision of the Commission so made within the context
of this article shall be appealable to the Third Circuit Court.
The notice of appeal shall be filed in the Third Circuit Court
within thirty (30) days after the person desiring to appeal is
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notified of the decision or order, or of the action taken in a
manner provided by statute.
(B) If a contested case hearing is held, a different appeal option
is available. Refer to Planning Commission Rule 4-32 for
appeal procedures.
(g) Amendments to a Special Management Area Use Permit or Conditions
(1) Application: The applicant may apply to the Commission through
the Director for an amendment to the permit or condition(s)imposed
by the Special Management Area Use Permit.
In the case of time extensions,the applicant shall set forth in writing:
(a) the length of time requested; and (b) the reasons for the time
extension.
In the case of additions, modifications, and/or deletions of
conditions,the applicant shall file the request not less than sixty days
prior to the expiration date of the time conditions, setting forth: (a)
the condition to be amended; and (b)the reasons thereof.
The applicant shall also deposit with the Department the sum of two
hundred fifty ($250) dollars to cover publication and other
administrative costs, along with the request.
(2) Notice and Hearing: The hearing and notice procedures shall be the
same as under Section 9-11(c) and (d).
(3) Decision and Order: The procedures shall be the same as provided
for under Section 9-11(f).
9-12 Artificial Light on Shoreline and Ocean Waters
(a) Artificial light from floodlights, uplights, or spotlights used for decorative
or aesthetic purposes is prohibited when the light(1)directly illuminates the
shoreline and ocean waters; or (2) is directed to travel across property
boundaries toward the shoreline and ocean waters.
(b) Section 9-12(a) shall not apply to:
(1) A outdoor lighting fixture that is located on the grounds of a
hotel/hotel-condo, provided that (A) the outdoor lighting fixture is
located underwater or is directed downward and illuminates a
limited area of no more than thirty feet into the shoreline and ocean
waters; or (B) the outdoor lighting fixture is the only practicable
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means of ensuring the safety and security of guests, visitors, and
employees; and
(2) Artificial lighting provided by a government agency or its
authorized users for government operations, security, government
agency or its authorized users shall make reasonable efforts to
properly position or shield lights to minimize adverse impacts.
9-13 Prohibitions
(a) No special management area use permit or special management area minor
permit shall be granted for structures that allow artificial light from
floodlights, uplights, or spotlights used for decorative or aesthetic purpose
when the light:
(1) Directly illuminates the shoreline and ocean waters; or
(2) Is directed to travel across property boundaries toward the shoreline
and ocean waters.
(b) Section 9-13(a) shall not apply to special management area use permits for
structures with:
(1) An outdoor lighting fixture that is located on the grounds of a
hotel/hotel-condo; provided that
(A) The outdoor lighting fixture is located underwater or is
directed downward and illuminates a limited area of no more
than thirty feet into the shoreline and ocean waters; or
(B) The outdoor lighting fixture is the only practicable means of
ensuring the safety and security of guests, visitors, and
employees; and
(2) Artificial lighting provided by a government agency or its
authorized users for government operations, security,public safety,
or navigational needs; provided that a government agency or its
authorized users shall make reasonable efforts to properly position
or shield lights to minimize adverse impacts.
9-14 Special Management Area Emergency Permits
(a) A Special Management Area Emergency Permit may be issued for
emergency repairs to existing public utilities including but not limited to
water, sewer, gas and electric transmission lines and highways, or similar
emergencies which may otherwise not be exempt from the Special
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Management Area permit requirements. Upon finding that an emergency
exists and requires immediate action, the Director shall issue a Special
Management Area Emergency Permit subject to reasonable terms and
conditions including an expiration date. Such permits shall be filed with the
Commission in writing.
(b) In cases of imminent substantial harm to public health, safety, or welfare in
the County, including declared states of emergency by the Governor, the
Mayor may waive the requirements of obtaining a permit pursuant to these
Rules and Regulations.
9-15 Exemptions
This rule shall not apply to proposed developments within the Special Management
Area for which final approval, or in the case of subdivisions, for which preliminary
subdivision approval, was issued prior to the adoption of this rule, amendments
thereto,or to the adoption of the Special Management Area Maps. SMA Use Permit
applications filed prior to the adoption of amendments to this rule shall be exempted
from any new procedures.
9-16 Revocation
(a) A Special Management Area Use Permit may be revoked by the
Commission in the event that:
(1) Any property owner who holds the permit sought to be revoked or
at the request of any other person, with the property owner's
consent, submits a written statement to the Commission verifying
that the development approved under the permit issued has either
not been established or has been abandoned.
(2) The Director submits a request if:
(A) There has been noncompliance with the conditions of the
permit; or
(B) The development authorized under the permit is creating a
threat to the health or safety of the community.
(b) Notice and Hearing: The Director shall provide written notice to the
property owner and/or to the person who has been issued the permit prior to
the Commission taking action to revoke the permit. The Commission shall
conduct a hearing within a period of ninety calendar days from the receipt
of the request by the applicant or Director. At the hearing, all interested
persons shall be afforded an opportunity to be heard. The proceedings shall
comply with the requirements of Chapter 91, HRS, as amended, and
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Commission Rule 4 relating to Contested Case Procedures, where
applicable.
(c) Decision and Order: The procedures shall be the same as provided under
Section 9-11(f) of this rule.
(d) A property owner or other person affected by the revocation of a Special
Management Area Use Permit ordered by the Commission, may, within
thirty days after the date of the Commission's written order, appeal the
Commission's action to the Third Circuit Court as provided by Chapter 91
of the HRS. An appeal to the Third Circuit Court shall stay the provisions
of the Commission's revocation order pending the final decision of the
Third Circuit Court.
(e) The Department is authorized to adopt rules to establish procedures for
revocation of a Special Management Area Minor Permit.
9-17 Penalties
(a) Any person who violates any provision or this rule shall be liable for (1) a
civil fine not to exceed$100,000;or(2)for the cost of returning the affected
environment or ecology within the Special Management Area to the
condition existing before the violation.
(b) In addition to any other penalties,any person who is violating any provision
of this rule shall be liable for a civil fine not to exceed $10,000 a day for
each day in which such violation persists.
(c) Any civil fine or other penalty provided under this rule may be imposed by
the circuit court or by the Department after an opportunity for a hearing
under Chapter 91, HRS.
9-18 Complaint and Investigative Procedures
The Department shall adopt rules to establish procedures for investigating
complaints and alleged violations.
9-19 Administrative Fines
The Department is authorized to impose administrative fines in accordance with
established rules.
9-20 Injunction
Any person violating any provision of this rule may be enjoined by the circuit
court of the State by mandatory or restraining order necessary or proper to
9-23
effectuate the purposes of this rule in a suit brought by the County.
9-21 Hearing Officer
(a) The Commission may authorize a hearing officer to conduct a hearing for
the purpose of taking testimony and to report his/her findings of facts and
conclusions of law with his/her recommendation to the Authority on
proceedings under the jurisdiction of the Commission as provided by this
rule.
(b) The notice and hearing requirements for hearings conducted by a hearing
officer shall be same as provided under Sections 9-11(c), 9-11(d), 9-22(b),
9-23(a)(2) or 9-23(b)(2), as may be applicable.
(c) Post hearing procedures for hearings conducted by a hearing officer:
(1) Recommendation of hearing officer: Upon completion of taking of
the evidence the hearing officer shall prepare a report setting forth
findings of fact, conclusions of law, and the reasons therefor, and a
recommended order and submit the report of the case to the
Commission.
(2) Contents of the record: The record shall include the petition,
transcripts of the hearing, stipulations, documentary evidence,
proposed findings, or other documents submitted by the persons
involved, objections to conduct of the hearing and the report of the
hearing officer and all other matters placed into evidence.
(3) Within forty-five calendar days after the conclusion of the hearing,
the hearing officer shall complete the report and submit it to the
Commission and to all persons involved in the proceedings.
(d) Exceptions to the Hearing Officer's Report and Recommendation:
(1) Within ten working days after receipt of the report and
recommendation by the hearing officer, a person involved in the
proceedings may submit to the Authority his exceptions to the
report and his reasons in support thereof.
(2) The exception shall:
(A) Set forth specifically the procedure, fact, law or policy to
which exceptions are taken;
(B) Identify the part of the hearing officer's report and
recommended order to which objections are made; and
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(C) State specifically the reasons for exceptions to the ruling,
finding, conclusion, or recommendation.
(e) Testimony Before the Commission:
(1) If a person involved in the proceedings desires to testify before the
Authority, a written request with reasons therefor shall accompany
the exceptions and the Commission may grant such request.
(2) The Commission may on its own motion re-open the hearing to
allow the taking of additional testimony and further evidence.
(f) Commission Action:
(1) In the event no statement of exception is filed, the Commission
may proceed to reverse, modify or adopt the recommendation of
the hearing officer.
(2) Upon the submittal of exceptions and the taking of further
evidence, if any, Commission shall render its decision pursuant to
Rule 9-11(e).
9-22 Petition for the Adoption, Amendment or Repeal of Rule 9 Special Management
Area Rule of the County of Hawaii
(a) Petition
Any person may petition the Commission through the Director requesting
the adoption, amendment or repeal of any provision of this rule.
The petitioner shall be responsible for submitting the following to the
Director:
(1) The completed petition including:
(A) A statement of the nature of the petitioner's interest.
(B) A draft of the substance of the proposed rule or amendment
or a designation of the provisions sought to be repealed.
(C) An explicit statement of the reasons in support of the
proposed rule, amendment or repeal. Said reasons shall
include a discussion of the relationship of the proposed
change with Chapter 205A, HRS, Relating to Coastal Zone
Management, and other applicable State and County
9-25
Ordinances or regulations including the General Plan.
(2) Five hundred($500) dollars filing fee to cover publication and other
administrative costs.
(b) Notice and Hearing
The notice and hearing procedures shall be the same as stipulated under
Section 9-11(c)and(d),provided further that the Commission shall conduct
a public hearing within a period of ninety calendar days from the receipt of
a properly filed petition.
(c) Decision and Order
The procedures shall be the same as under Section 9-11(f).
9-23 Amendment of Special Management Area(SMA) Mgps
(a) Amendments initiated by the Director:
(1) Initiation:
(A) The Director may at any time initiate amendments to the
Special Management Area Boundaries.
(B) The Commission, by a two-thirds (2/3) vote of its total
membership,may direct the Director to initiate amendments
to the Special Management Area boundaries.
(C) The Director shall give notice of his intent to amend the
Special Management Area boundaries to the Commission,
the general public and the State Office of Planning, stating
the initiation date and estimated completion date of review.
The Director, upon completion of his review, shall submit
the proposed amendments to the Commission.
(2) Notice and Hearing:
The notice and hearing procedures shall be the same as stipulated
under Section 9-11(c) of this rule, provided further that the
Commission shall conduct a hearing within a period of sixty
calendar days from the submittal of the proposed amendments by
the Director.
(3) Grounds for Approval of Special Management Area Boundary
Amendments:
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The Commission may amend the Special Management Area
boundaries only upon finding that the amendments will further the
objectives and policies as provided by Chapter 205A,HRS, and will
be consistent with the General Plan and other applicable ordinances.
(4) Decision and Order:
The procedures shall be the same as under Section 9-11(f).
(b) Special Management Area Boundary Amendments Initiated by the
General Public:
(1) Application:
Any person may apply to the Commission through the Director
requesting the amendment of the Special Management Area
boundaries.
The applicant shall submit the following to the Department:
(A) The completed application including the following:
(i) A statement of the nature of the applicant's interest.
(ii) A description of the properties involved in sufficient
detail to determine the precise location.
(iii) An explicit statement of the reasons in support of the
request including a discussion of how the
amendment will further the Special Management
Area objectives and policies as well as be consistent
with the General Plan and other applicable
ordinances.
(iv) A statement discussing the proposed use of the parcel
and any other information necessary to render a
proper decision relating to the specific request.
(B) Five hundred ($500) dollars filing fee to cover publication
and other administrative costs.
(2) Notice and Hearing
The notice and hearing procedures shall be the same as stipulated
under Section 9-11(c) and (d).
9-27
(3) Grounds for Approval of Special Management Area Boundary
Amendments:
The Grounds for approval of Special Management Area boundary
amendments shall be the same as provided for in Section 9-23(a)(3).
(4) Decision and Order:
The procedures shall be the same as provided for in Section 9-11(f).
9-28
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.
County er