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HomeMy WebLinkAboutPlanning Department Rules, Rule 11 PLANNING DEPARTMENT COUNTY OF HAWAI`I RULES OF PRACTICE AND PROCEDURE RULE 11. SHORELINE SETBACK 11-1 Authority Pursuant to the authority conferred upon the Planning Department by §205A Part II1, Hawai'i Revised Statutes (HRS),the rules hereinafter contained are established and shall apply to lands within the shoreline setback area. 11-2 Purpose The growing population and expanding development have brought about numerous cases of encroachment of strictures upon the shoreline and within the nearby shoreline areas. Many of these structures have disturbed the natural shoreline processes and caused erosion of the shoreline. Concrete masses along the shoreline are contrary to the policy for the preservation of the natural shoreline and the open space. Unrestricted removal of sand, coral, rocks, etc., for commercial uses can only deteriorate the shoreline and remove it from public use and enjoyment. Moreover, the Hawaiian Islands are subject to tsunamis and high waves which endanger residential dwellings and other structures which are built too close to the shoreline. For these reasons, it is in the public interest to establish shoreline setbacks and to regulate the use and activities within the shoreline setbacks. The purpose of this rule is to establish authority, criteria and procedures for the establishment and enforcement of the shoreline setback line and shoreline setback area and for the review of all activities or structures proposed within the shoreline setback area in accordance with the requirements of this rule and Chapter 205A- Part 111, HRS. 11-3 Definitions (a) "Activity"means any landscaping,excavating,grubbing, grading, filling or stockpiling of earth materials, including sand, coral, coral rubble, rocks, soil, or marine deposits. (b) "Beach"means a coastal Iandfortn primarily composed of sand from eroded rock,coral, or shell material,or any combination thereof, that is established and shaped by wave action and tidal processes. "Beach" includes sand deposits in nearshore submerged areas, or sand dunes or upland beach. deposits landward of the shoreline, that provide benefits for public use and recreation, for coastal ecosystems, and as a natural buffer against coastal hazards. (c) "Buildable area" means the area of a lot excluding the shoreline setback, required yards, and flag stems (poles). Planning;Department Rules of Practice cue Procedure 11-1 (d) "Coastal hazards"means any tsunami,hurricane,wind,wave, storm surges, high tide, flooding,erosion,sea level rise,subsidence,or point and nonpoint source pollution. (e) "Lot" means a parcel, tract, or area of land established by subdivision or as otherwise Iawfully established prior to the adoption of the Subdivision Control Code and accepted by the Planning Department. (f) "Minor structure" shall not alter the existing grade of the shoreline setback area and shall be limited to landscape features(i.e.,benches,chairs,borders, wooden trellis, bird feeders, signs, safety improvements, etc.); walkways for access; and sprinkler systems. (g) "Minor activity" means an activity that does not alter the existing grade of the shoreline setback area and may include activities such as landscaping and minor clearing(grubbing) of vegetation. (h) "Planning Commission" means the planning commission of the County of Hawaii. (i) "Planning Department' means that agency of the County of Hawaii consisting of the planning director and the necessary staff. (j) "Rebuild" means the reconstruction of a lawfully existing structure when the reconstruction is valued by a licensed professional engineer or architect at more than fifty percent of the replacement cost of the structure. (k) "Repair" means the fixing, renovation, improvement, or restoration of any part of a lawfully existing structure, but not the entire structure, solely for the purpose of its maintenance and which does not result in an addition to, or enlargement or expansion of, the lawfully existing structure. "Repair" includes, but is not limited to alteration of floors, roofs, walls, or the supporting structure of a building or the rearrangement of any of its component parts. (1) "Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth,or the upper limit of debris left by the vegetation growth, or the upper limit of debris left by the wash of the waves, which has been certified by the Board of Land and Natural Resources in accordance with its rules. (m) "Shoreline setback area" shall include all of the land area between the shoreline and the shoreline setback line,provided that if the highest annual Planning Department Rules of Practice chi Procedure 11-2 wash of the waves is fixed or significantly affected by a structure that has not received all permits and approvals required by law or if any part of any structure in violation of this rule extends seaward of the shoreline, then the term "shoreline setback area" shall include the entire structure. (n) "Shoreline setback line" means that line established by the Planning Department running inland from and parallel to the certified shoreline at a horizontal plane. (o) "Structure" includes, but is not limited to, any portion of any building, pavement, road, pipe, flume, utility line, fence, groin, wall, or revetment. (p) "Vegetation" means any plant, tree, shrub, grass, or groups, clusters or patches of the same, naturally rooted and growing. 11-4 Shoreline Certification, Exceptions and Waivers (a) The shoreline is certified by the chairperson of the Board of Land and Natural Resources pursuant to its adopted Hawaii Administrative Rules (HAR). No determination of a shoreline shall be valid for a period longer than twelve months, except where the shoreline is fixed by man-made structures, which have been. approved by appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and structure; in which case the certified shoreline survey shall be valid so long as the man-made structure remains intact and unaltered. (b) For the purpose of establishing the shoreline setback line, the Planning Department may, in consultation with the Department of Land and Natural Resources, require the certified shoreline survey to extend a minimum 40 feet laterally beyond the affected property's shoreline frontage in cases where the inland reaches of an adjacent property's shoreline frontage affect the determination of the shoreline setback area. (c) The Planning Department may waive the certification requirement in cases where there may be special or unusual physical circumstances or conditions of the land or where a structure or activity is proposed at a considerable distance inland. Setback lines shall be conservatively, but reasonably established. The Planning Department may require a survey map of the subject area depicting physical and geographical conditions to assist in making a determination. 11-5 Minimum Shoreline Setback Line (a) The minimum shoreline setback line shall not be less than forty (40) feet inland from the shoreline. 11-6 Structures and Activities Prohibited within the Shoreline Setback Area (a) The mining or taping of sand,dead coral or coral rubble,rocks,soil or other Planning Department Rules of Practice&Procedure 11-3 beach or marine deposits from the shoreline setback area; and (b) All structures and activities which do not qualify under section 11-7(a) through(c). (c) A shoreline setback variance may be granted for a structure or activity otherwise prohibited in this rule if it is necessary and ancillary to the uses and activities listed in Planning Commission Rule 8 (Shoreline Setback Variance, Section 8-1 1. 11-7 Structures or Activities Permitted within the Shoreline Setback Area (a) The following structures or activities may be permitted within the shoreline setback area provided written clearance is secured froin the Planning Department: (1) The mining or taking of sand, dead coral or coral rubble, rocks, soil or other beach or marine deposits from the shoreline setback area; (2) The clearing of sand, dead coral or coral rubble, rocks, soil or other beach or marine deposits from existing drainage pipes and canals and from the mouths of streams, including clearing for the purposes under Section 46-11.5, FIRS, provided that the sand removed shall be placed on adjacent areas unless such placement would result in significant turbidity; (3) The cleaning of the shoreline setback area for state or county maintenance purposes, including the clearing for purposes under Section 46-12,HRS; provided that the sand removed shall be placed on adjacent areas unless the placement would result in significant turbidity; (4) A minor structure or activity approved in accordance with Section 11-8; (5) A structure or activity permitted through the issuance of a shoreline setback variance from the Planning Commission; (6) Structures which were completed by or activities which commenced prior to June 22, 1970; (7) The structure or activity received a building permit, Board of Land and Natural Resources' approval, Special Management Area Use Permit/approval and/or a shoreline setback variance prior to June 16, 1989; (8) Structures and activities necessary for or ancillary to continuation of existing agriculture or aquaculture activity in the shoreline Planning,Department Rules of Practice c& Proce&ire 11-4 setback area prior to June 16, 1989; (9) Work being done consists of maintenance, repair, and minor additions to or alterations of legal, publicly owned boating, maritime, or water sports recreational facilities, which are publicly owned, and which result in little or no interference with natural. shoreline processes; (10) The structure or activity was determined by the Planning Department to be outside the shoreline setback area when it received legal approval(s) (i.e., a building pennit, Special Management Area Use Pen-nit or board of land and natural resources approval). (11) The exercise of traditional cultural practices as authorized by law or as permitted by the Planning Department pursuant to article X 1I, section 7, of the Hawaii State Constitution. (12) For the response to a public emergency or a state or local disaster when an emergency proclamation has been issued by the Mayor or Governor. (b) Structures or activities that qualify under section 11-7 (a)(6) through (10) may be repaired in conformance with plans approved by the Planning Department, but shall not be enlarged, rebuilt, or replaced within the shoreline area without a shoreline setback variance. (c) Structures or activities that qualify under section I 1-7(a)(6) through (10) may be routinely maintained. 11-8 Determination of Minor Structure and Minor Activity A minor structure or activity proposed in the shoreline setback area shall not need a shoreline setback variance if the Planning Department determines that it would not affect beach processes or artificially fix the shoreline and would not interfere with public access or public views to and along the shoreline. (a) A request for a minor structure or activity determination shall be submitted to the Planning Department and shall be accompanied by applicable information to assist in the detenmination, which could include but not be limited to a certified shoreline survey, construction plans, a list of proposed plants and their growth at maturation, existing and finished contours, photographs of the shoreline setback area, an environmental assessment, written reasons addressing the criteria set forth in Section 11-8 and other information required by the Planning Department. (b) Minor structures and activities shall be completed within one year from the date of the Planning Department's minor structure or activity detenmination Planning Department Roles cif Practice& Procedure 11-5 or from the approval date of the last discretionary pen-nit, whichever is last. 11-9 Shoreline Setback Variance Application An application for a shoreline setback variance shall be filed with the Planning Commission in accordance with its rule of practice and procedure. The Planning Department shall review the variance application and plans of all applicants who propose any structure, activity, or facility that would be prohibited without a variance pursuant to this rule. The PIanning Department may require that the plans be supplemented by accurately mapped data and photographs showing natural conditions and topography relating to all existing and proposed structures and activities. 11-10 Compliance_with Environmental Impact Statement Regulations (Chapter 343, HRS) An environmental assessment, prepared in accordance with the requirements of Chapter 343, HRS and Title 11, Chapter 200.1 Hawaii Administrative Rules (HAR), shall accompany the filing of a shoreline setback variance application with the Planning Commission.The Planning Department shall be the approving agency of all environmental assessments prepared in accordance with this rule. A shoreline setback variance application shall not be considered complete until such time the Planning Department has complied with the requirements of Chapter 343, HRS and. Title 11, Chapter 200.1 HAR. 11-11 Waiver of Public Hearing and Action (a) The Planning Department may waive a public hearing and take action on a variance application for the following provided the Department finds in writing, based on the record, that the proposed structure or activity meets the criteria for granting a variance, and public and private notice is provided, including reasonable notice to abutting property owners and persons who have requested this notice- (1) Stabilization of shoreline erosion by moving sand entirely on public lands; (2) Protection of a legal structure or public facility, including any facility owned by a public utility that is regulated pursuant to Chapter 269, HRS that does not fix the shoreline, under an emergency authorization issued by the authority; provided that the structure or public facility is at risk of immediate damage from shoreline erosion as determined by the Planning Department, in consultation with appropriate agencies (i.e., U.S. Anny Corps of Engineers,Department of Public Works) and the authorization does not exceed three years; (3) Maintenance, repair, reconstruction, and minor additions or alterations of legal boating, maritime, or watersports recreational Planning Department Rules of Practice& Procedure 11-6 facilities,that result in little or no interference with natural shoreline processes. (b) An applicant who seeks processing under Section 11-11 shall make the request in writing upon submittal of the variance application. (c) The Planning Department may deny the public hearing waiver in which case the variance application shall be heard and noticed by the Planning Commission in accordance with its rule of practice and procedure. 11-12 Enforcement (a) The Planning Department shall enforce this rule. (b) Any structure or activity prohibited within the shoreline setback area that has not received appropriate approvals or a shoreline setback variance or that has not complied with conditions of said variance shall be removed or corrected. No other state or county permit or approval shall be construed as a variance. (c) Where the shoreline is affected by an artificial structure that has not been authorized with government agency permits required by law., and if any part of the structure is on private property,then for purposes of enforcement of this rule, the structure shall be construed to be entirely within the shoreline setback area. (d) The authority of the board of land and natural resources to determine the shoreline and enforce rules established under Chapter 183C, HRS shall not be diminished by an artificial structure in violation of this rule. 11-13 General Enforcement Procedures (a) Issuance of Notice of Violation and Order. The landowner and/or the alleged violator shall be notified by the Planning Department by certified or registered mail or by personal service of any alleged violation of this rule, any permit issued pursuant thereto, or any condition of a shoreline setback variance. The Notice of Violation and Order shall include, but not be limited to, the specific section of the rule which has been violated; the nature of the violation; and the remedy(ies) available. The Notice of Violation and Order may also require that the violative activity cease and desist; that a civil fine be paid not to exceed $10,000 per violation; and that a civil fine be paid not:to exceed$1,000 per day for each day in which the violation persists. The Notice of Violation and Order shall advise the person that the Order shall become final thirty days after the date of its receipt, unless written request for a negotiated settlement or a hearing before the Board of Appeals is mailed or delivered to the department within said thirty days. Planning Department Rules of Practice& Procedure 1 1-7 (b) Negotiated Settlement If the violator seeks a negotiated settlement with the Planning Department, but waives the right to a hearing, the Planning Department, in consultation with the Office of the Corporation Counsel,shall be authorized to enter into a settlement agreement with the landowner or, if appropriate, the violator, which will cure the violation, set the fine, and allow for inspection by the Planning Department. (c) Right to Hearing A request for hearing shall be considered timely if a written request is delivered to the Planning Department within said thirty days. Upon receipt of a request t'()r a hearing, the Planning Department shall specify a time and place for the person subject to the order to appear and be heard. The hearing shall be conducted by the Board of Appeals in accordance with the provisions of Chapter 91, HRS and its rules of practice and procedure. (d) Judicial Enforcement of Order The Planning Department, in consultation with the Office of the Corporation Counsel, may institute a civil action in any court of competent jurisdiction for the enforcement of any settlement agreement or order issued pursuant to this section. Nothing in this section shall prohibit the Planning Department, through the Office of the Corporation Counsel, from filing an order or motion directly with the Court in the event that public health and safety may be at risk. 11-14 Penalties (a) Any person who violates any provision of this rule shall be liable for an initial civil fine not to exceed $10,000 per violation and a maximum daily tine of$1,000 until the violation is corrected. A civil fine may be imposed by the department after an opportunity for a hearing under Chapter 91,FIRS, unless said hearing is otherwise waived. (b) In specifying the amount of the civil and daily fines,the Planning Department shall consider the following; (1) The nature and degree of the violation; (2) Whether there are multiple violations; and (3) Whether it is a repeated violation. Planning Department Rules of Practice& Procedure 11-5 (c) A shoreline setback variance application filed with the Planning Commission sub- sequent to an applicant's having completed the structure or activity, or having been cited for the activity or construction without having obtained said variance, shall not stay any order to pay civil fines. 11-15 Appeals An administrative decision of the Planning Department shall be appealable to the Board of Appeals in accordance with its rules of practice and procedure. 11-16 Severability If any portion of this rule, or its application to any person or circumstance, shall be held unconstitutional or invalid, the remainder of this rule and the application of such portion to other persons or circumstance shall not be affected thereby. Cross-reference: Rule 8. SHORELINE SETBACK VARIANCE, Planning Commission Rules of Practice Procedure Planning Department Rules nfPractice&Procedure 11-9 PLANNING DEPARTMENT l� l Zendo Kern, Director - Date Notice of Public Hearing: Hawaii Tribune Herald: November 13, 2023 West Hawaii Today: November 13, 2023 Date and Place of Public Hearing: December 14, 2023 West Hawaii Civic Center, Planning Department, Building A 75-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii Interactive Conference Technology(ICT) Remotely APPROVED AS TO FO M AND LEGALITY: Depu orporation :ounsel Date: F APPROVED: MAYOR, County of HaWai`i Date: y I hereby certify that the foregoing amendments and revisions to the Hawaii County Planning De ent Rules of Practice and Procedure was received and filed in my Office this `fit day of February , 2024. Co