·.' .... _.~, ..

COUNTY OF HAWAIIPLANNING COMMISSION

RULES OF PRACTICE AND PROCEDURE

TABLE OF CONTENTS

RULE 1.

1-11-21-31-41-51-6

GENERAL RULES PAGE

Authority 1Purpose •••..••••.•••••.•.•.•••••••..•••.••••.•••.. ~ 1The Commission..................................... 1Meetings •••.. e'..................................... 1Public Records ••••...•...•.•..•••....•....•.•...... 5Computation of Time................................ 6

RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEALOF RULES

2-12-22-32-42-52-62-72-8

RULE 3.

3-13-23-33-43-53-6

RULE 4.

PART 1.

4-14-24-34-44-54-64-74-84-9

Initiation of Rulemaking Proceedings ••••..•••••••.• 6Notice of Public Hearing ••••••••••••••••••••••.••.• 7Conduct of Public Hearing •••.••••••••••.••••••••..• 7Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Emergency Rulemaking •••.•.••••••••••••••••••••••••• 8Filing of Rules •...•.....••..•..•..•.•......•.•.... 8Taking Effect of Rules............................. 8Publication of Rules •••••••••.•••••••••.••••••••••• 8

DECLARATORY RULINGS

Petitions for Declaratory Rulings •..••..••..•.••.•. 9Request for Public Hearing •••.••••••..•.•.••••.••.. 9Notice of Public Hearing .•...........•.....•.••.... 10Conduct of Hearing •........................... A •••• 10Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10Status of Orders •..........................•....... 10

CONTESTED CASE PROCEDURE

GENERAL PROVISIONS

Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11Def ini tions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11Conflict with Other Time and Notice Requirements ... 12Service of Notices, Documents, and Other Papers .•.. 12Presiding Officer 12Prehearing Procedure ..•........•........•....•.•... 13Notice of Contested Case Hearing ........•..•....... 14Prehearing Conference •.••••••••••••.• ~ .••••••••.••• 15Limiting Testimony •..•.•••••••••••••••••••••••••..• 15

\.4

~. ... ;... ....

POST HEARING PROCEDURE FOR HEARINGS CONDUCTED BY HEARINGOFFICER

Authority................. 23Scope and Purpose......... ••••• 23Defini tiona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24Amendment Pursuant to Comprehensive Review.. • •••• 24Interim Amendments ••••••••••••••••••••••.•••••••. 25

GENERAL PLAN AMENDMENTS

Recommendations of Hearing Officer •••••••••••••••••Exceptions to Hearing Officer's Report

and Recommendations ••••••••••••••••Support of Hearing Officer's Report

and Recommendations ••••••••••••••••••••••••••••••Oral Argument before the Commission.. • ••••••Commission Action .

15151516161717171819202020202021212121

21

22

222323

26

2627282829292930

PAGE

...........

• 0 • • • • • • • • • • • • •

.....

................

... .....

·...·...·................

...........

.....

Permit or Conditions.of

Mo tions .Evidence •••••••••Briefs ••..........

Removal from Proceeding ••••••Order of Procedure •••.•••••Questions from Commission ••Cross-Examination••••••••••Requests for Subpoenas •••••••Consolidation•••••••••••••••Substitution of Parties •••••

Oral Arguments......... • ••Public Testimony.. ••• ••• ••••••••••••••• • ••Close of Hearing............. . ............•••..Examination of Evidence by Commission. • •••••••Time Limit for Decision........... • •••••••••Issuance of Decisions and Orders...... • •••Service of Decisions and Orders ••••••••••••••••••Reconsideration of Decision and Order ••••••••••••••Appeal from the Commission's Decision••••••••••••••

AmendmentsAppeals .

SPECIAL PERMITS

Authority •.....•...•....•...••.....•Standing to Submit a Petition for a

Special Permit ••••.••Petition and Content •••Incomplete Application ••••••Public Hearing •••••••••Grounds for Special Permit .••••••.•Action .

4-104-114-124-134-144-154-164-174-184-194-204-214-224-234-244-254-264-274-28

PART 2.

4-294-30

4-31

4-324-33

RULE 5.

5-15-25-35-45-5

RULE 6.

6-16-2

6-36-46-56-66-76-86-9

USE PEID1ITSPAGE

Concurrent Requests.... ••• • •••Appeal ...••..........•.........•..............

......

Grounds for Review of Application ••Decision................. . ...

303031323233333434

·..

·..·..

·.....·....·...·....

·...·. ......

Authority .•.••.....•.••..•.•.Definitions•••••••••..•.Application and Content.Incomplete Application••.Notice .

SHORELINE SETBACK

·.............

· .

·........

·.......

343434343637383838

38404141

·..

·.

·...

·...

·..

.....

....·..

·...

...

...

·..·..·...

·......

·.....

.................Authority.Purpose.............. •....Ti tIe .Definitions ••••••••••••••••••••••Shoreline Setbacks Applicable ••••Establishment of the Shoreline •••••••••••Construction Permit Procedures •••Authority to Waive Field Surveys.Authority of the Agency Along Shorelines ••Prohibited Activities within the

Shoreline Setback Area •••••••••Administration••••••••••••••••Action by Planning Commission••••Exemption .

SPECIAL MANAGEMENT AREA

4242424248485254

555559646465656565

·..

·..

·.......

..

·..·...·...

.....

...

....

.........

. -,.Authority.Purpose... . ••••Title...... . .Definitions..... • .•••••Special Management Area •••Objectives and Policies of Chapter 205A, HRS •.Special Management Area Guidelines.Permits Required for Development ••..Authority of the Department in the

Special Management Area •••••.••.••..••••.•.•Assessment ••••••••••••••••••••••••••••••••••.•Special Management· Area Use Permi t Procedures •.Special Management Area Emergency Permits. . •.Exemptions ••••••.••••.Duration of Permits.Penalties •••••••.••Injunction•••..••Hearing Officer.

9-18

9-19

PAGEPetition for the Adoption, Amendment or

Repeal of Rule 9................................. 67Amendment of Special Management Area Maps ••••••.... 68

RULE 10. APPEALS

10-110-210-310-410-510-6

Authority 70Definitions •••••••••••••••••••••••••••.•••••••••••• 70Standing to Appeal 71Procedures for Zoning Amendment Appeals •••••••••••• 71Procedures for Variance Appeals ••••••••.....••..••• 73Review of Director's Action of Variance

Applications (Non-applicant) ••••••••••••••••••••• 76

RULE 11. ZONING AMENDMENTS

11-111-211-3

Authority 77Definitions 77Procedures for Processing Zoning Amendments •••••••• 78

RULE 12. GEOTHERMAL RESOURCE PERMITS

12-112-212-312-412-512-5-112-6

12-712-812-912-1012-1112-12

RULE 13.

13-113-2

13-313-413-5

13-613-713-8

Purpose and Authority•••••••••••••••••••••••••••••• 79Definitions 79Contents of Application•••••••••••••••••••••••••••• 79Properly Filed Application••••••••••••••••••••••••• 82Hearing and Notification••••••••••••••••••••••••••• 82Mediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 83Criteria for Issuance of Geothermal

Resource Permit •••••••••••.•••••••.••••••.......• 86Action 87Requirements Prior to Initiating Construction•.•••• 88Amendments of Permit and Conditions ••••••..•••.•••• 88Enforcement of Permit and Conditions ••••••••••••••• 89Penalties 90Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 90

STATE LAND USE DISTRICT BOUNDARY AMENDMENT

Purpose and Authority •.•••••••••••••.••.••• ~ ..•.••. 91Standing to Submit Petition for

State Land Use District Boundary Amendment ••••••• 91Contents of Petition............................... 91Incomplete Petition•••••••••••••••••••.•••..••.••.• 92Procedures for Reviewing and Processing

of Petition 92Standards for Review••....•...••.•••••••.•.•••.•••• 94Notification of Decision ••••••.•.•••.•.•••.•.•••••• 94Consolidated Proceeding with

Other Land Use Changes ••••••...•••....•..••...•.. 94

PAGE

APPENDIXES

A DATES OF ADOPTION OF RULES (EXISTING) •.•..•.•...•.. 95

B PLANNING COMMISSION RULES (DELETED) ••••••••.•.••... 96

, "l

PLANNING COMMISSIONCOUNTY OF HAWAII

RULES OF PRACTICE AND PROCEDURE

RULE 1. GENERAL RULES

1-1 Authority

The rules hereinafter contained are established pursuant tothe authority of sections 5-4.3 and 13-7 of the Charter ofthe County of Hawaii, and chapter 91, Hawaii Revised Statutes.

1-2 Purpose

These rules govern the practice and procedure before thePlanning Commission of the County of Hawaii.

1-3 The Commission

(a) Office. The office of the Commission is at Hilo, Hawaii.

(b) Communications. Any communication to the Commissionshall be addressed to the Chairman, PlanningCommission, County Building, 25 Aupuni Street, Hilo,Hawaii, 96720, unless otherwise directed.

(c) Membership.appointed byIn addition,Public WorksSupply serveprivileges.

The Commission consists of nine membersthe Mayor and confirmed by the Council.the Chief Engineer of the Department ofand the Manager of the Department of Wateras ex-officio members without voting

(d) Chairperson; Vice-chairperson. A chairperson and avice-chairperson shall be elected annually by themembers of the Commission at the last regular meetingof the Commission in December. The vice-chairpersonshall perform all the duties of the chairperson duringthe absence of the chairperson.

1-4 Meetings

"The Commission. may meet and exercise its powers in any partof the County of Hawaii. Except as provided by law, all ofits meetings are open to the public. The parliamentaryprocedure to be utilized by the Commission in the conduct ofits own meetings shall be based on the Revised Edition ofRobert's Rules of Order.

(a) Regular Meetings. Regular meetings shall be held atleast once a month in the Councilroom, Hawaii CountyBuilding, unless otherwise specified by the Commission.

Feb. 1988 - Doc. No. 4566d

(b) Special Meetings. Special meetings of the Commissionfor the transaction of its business may be held at anytime and place as scheduled by the Commission.

(c) Notice of Regular and Special Meetings.

(1) The Commission shall give written public not~ce

of any regular or special meeting. The noticeshall include an agenda which lists all of theitems to be considered at the forthcomingmeeting, the date, time, and place of themeeting.

(2) The Commission shall file the notice in theOffice of the County Clerk and in theCommission's office for pUblic inspection atleast six calendar days before the meeting.The notice shall also be posted at the site ofthe meeting whenever feasible. The Commissionshall not add items to the agenda, once filed,without a two-thirds recorded vote of allmembers to which the Commission is entitled;provided that no item shall be added to theagenda in the manner provided herein, if it isof reasonably major importance and actionthereof by the Commission will affect asignificant number of persons.

(3) The Commission shall maintain a list of namesand addresses of persons who requestnotification of meetings and shall mail a CODV

of the agenda to such persons at their lastrecorded address no later than the time theagenda is filed under subsection (2).

(4) Notice of any special meeting shall bepublished in a newspaper of general circulat:onin the County at least twenty-four hours inadvance of the meeting.

(d) Emergency Meetings; Notice. An emergency meeting is ameeting in which the six calendar days noticerequirement cannot be met. Such a meeting can only beheld if there is a written finding that there isimminent peril to the pUblic health, safety, or welfareand--provided the following procedures are met:

(1) The Commission states in writing the reasonsfor its findings;

(2) Two-thirds of the members to which theCommission is entitled agree that the findingsare correct and an emergency exists;

-2-

ef • ).

(31 An emergency agenda and the findings are f~:e~with the Office of the County Clerk and in theCommission's office; and

(41 Persons requesting notification pursuant toRule 1-5(c)(3) are contacted by mail ortelephone as soon as practicable.

(5) A notice of the meeting shall be published :~ anewspaper of general circulation in the Countyat least twenty-four hours prior to themeeting, or if the requirement with respect :~publication of notice cannot be met because ofinsufficient time, the meeting notice shall bemade by broadcasting a minimum of threeannouncements in the English language over anFCC licensed public radio station in the Countyor a television station with local audience.

(e) Executive Meetings. The Commission may hold anexecutive meeting, closed to the public, upon anaffirmative vote, taken at an open meeting, oftwo-thirds of the members present. The vote of eachmember on the question. of holding a meeting closed tothe public and the reason for holding such a meetingshall be recorded and entered into the minutes of themeeting. A meeting closed to the public may be heldonly for one or more of the following purposes:

(1) To consult with the Commission's attorney;

(2) For any other specific purpose authorized =ylaw.

(f) Chance Meetings. The rules governing meetings shallnot apply to any chance meeting, as defined by sect~on92-2, Hawaii Revised Statutes, at which mattersrelating to official business are not discussed. Nochance meeting or electronic communication shall beused to circumvent the spirit or requirements of themeeting provisions to make a decision or to deliberaLetoward a decision upon a matter over which theCommission has supervision, control, jurisdiction, oradvisory power.

(g) Quorum. A majority (five) of all members to which theCommission is entitled shall constitute a quorum totransact business.

(hI Minutes. The Commission shall keep written minutes ofall meetings. Unless otherwise required by law,neither a full transcript nor a recording of the

-3-

If

meeting is required, but the written minutes shall gi~ea true reflection of the matters discussed and theviews of the participants. The minutes shall incluce,but need not be limited to:

(1) The date, time, and place of the meeting;

(2) The members of the Commission recorded aseither present or absent;

(3) The substance of all matters proposed,discussed, or decided, and a record, byindividual members, of any votes taken; and

(4) Any other information that any member of theCommission requests be included or reflected .~the minutes.

The minutes shall be public records and shall beavailable within thirty days after the meeting exceptwhere such disclosure would be inconsistent withsection 92-5, Hawaii Revised Statutes, or section 13-20of the Charter; provided that minutes of executivemeetings may be withheld so long as their pUblicationwould defeat the lawful purpose of the executivemeeting, but no longer.

(i) Procedure for Testimony at Public Hearings. Thefollowing procedures shall be followed when theapplicant, the applicant's representative, or membersof the pUblic desire to testify during pUblic hearingsbefore the Commission:

(1) The person desiring to testify shall indicatehis or her name and residence address.

(2) The person testifying shall also indicatewhether he or she is testifying on his or he~own behalf or as a representative of thepetitioner or an organization.

(3) An original and nine copies of all writtentestimony offered by any person shall besubmitted to the Commission prior to the timethe person gives such testimony.

(4) The chairperson or vice-chairperson of theCommission may require any person desiring tosubmit testimony, oral or written, to submitsuch testimony under oath. The oath shall 8eadministered by the chairperson orvice-chairperson.

-4-

)

(5) The chairperson or vice-chairperson may lim~ttestimony which is irrelevant or undulyrepetitious.

(j) Removal of Person from Meeting. The chairperson mayremove any person or persons who wilfully disrupts ameeting to prevent or compromise the conduct of themeeting.

1-5 Public Records

The term "public records" shall have the same meaning as isdefined in chapter 92, Hawaii Revised Statutes, and shallinclude all maps, rules, written statements of policy orinterpretation formulated, adopted, or used by the Commissionin its functions, all decisions, orders, minutes of theCommission meetings and records of any proceeding on filewith the Commission, but shall not include records whichinvade the right of privacy of an individual.

(a) Inspection of Public Records. All public records shallbe available for inspection by any person duringestablished office hours unless public inspection ofsuch records is in violation of any other state,federal, or county law; provided that, except wheresuch records are open under any rule of court, thecorporation Counselor Prosecuting Attorney maydetermine which records may be withheld from publicinspection when such records pertain to the preparationof the prosecution or defense of any action orproceeding to which the County is or may be a party, orwhen such records do not relate to a matter inviolation of law and are deemed necessary for theprotection of the character or reputation of any person.

(b) Copies of Public Records. Copies of records printed orreproduced for persons other than governmental agenciesshall be given to any person, provided that the fees orcosts prescribed in the Code are paid.

(c) Denial of Inspection; Application to Circuit Court.Any person aggrieved by the person having custody ofany public record of the right to inspect the recordsor to obtain copies of extracts thereof may apply tothe circuit court for an order directing the person"having' custody of the record to permit the inspectionof or to furnish copies or extracts of the publicrecord. The court shall grant the order after hearing,upon a finding that the denial was not for just andproper cause.

-5-

lOt)

1-6 Computation of Time

In computing any period of time under these rules, by noticE,or by any order or rule of the Commission, the time beginswith the day following the act, event, or default, andincludes the last day of the period unless it is a Saturday,Sunday, or legal holiday, in which event the period runsuntil the end of the next day which is not a Saturday,Sunday, or holiday.

RULE 2. PETITION FOR ADOPTION, AMENDMENT, OR REPEAL OF RULES

2-1 Initiation of Rulemaking Proceedings

(a) The Commission may, at any time, initiate proceedingsfor the adoption, amendment, or repeal of any rule ofthe Commission. Procedures to be followed inrulemaking shall be as set forth in these rules.

(b) Any interested person or agency may petition theCommission for the adoption, amendment, or repeal ofany rule of the Commission. Such petitions shallcontain:

(1) A non-refundable filing and processing fee ofone hundred dollars;

(2) The name, address, telephone number, ifavailable, and signature of the petitioner;

(3) A draft or the substance of the proposed ru:eor amendment or a designation of theprovisions, the repeal of which is desired;

(4) A statement of the reasons in support of theproposed rule, amendment, or repeal.

(c) The Commission shall, within thirty days after thefiling of a petition for rulemaking, either deny thepetition or initiate public rulemaking proceedings.

(d) Any petition that fails in material respect to complywith the requirements of this section or that fails :0disclose sufficient reasons to justify the institutionofrulemakingp,roceedings shall be denied by theCommission. The Commission shall notify the petitionerin writing of such denial, stating the reasonsthereof. Denial of the petition shall not operate toprevent the Commission from acting, on its own motio~,on any matter disclosed in the petition. Petitionermay seek review of the denial through the Board.

-6-

)

(e) If the Commission determines that the petition is inorder and that it discloses sufficient reasons insupport of the proposed rulemaking proceedings, theCommission shall conduct rulemaking proceedings inaccordance with section 2-2 of this rule.

2-2 Notice of Public Hearing

(a) When, pursuant to a petition therefor or upon its owninitiation, the Commission proposes to adopt, amend, orrepeal a rule, a notice of proposed rulemaking shall bepublished at least once in a newspaper of generalcirculation in the County, and the notice shall also bemailed to all persons who have made timely writtenrequests for advance notice of the Commission'srUlemaking proceedings. The notice shall be publishedat least twenty days prior to the date set for thepUblic hearing.

(b) A notice of the proposed adoption, amendment, or repealof a rule shall include:

(1) A statement of the date, time, and place wherethe public hearing will be held;

(2) Reference to the authority under which theadoption, amendment, or repeal of a rule isproposed; and

(3) A statement of the substance of the proposedrule.

2-3 Conduct of Public Hearing

(a) The public hearing for the adoption, amendment, orrepeal of any rule shall be heard before the Commissionand presided over by the chairperson orvice-chairperson of the Commission or, in theirabsence, by another member designated by theCommission. The hearing shall be conducted in such away as to afford all interested persons a reasonableopportunity to offer testimony with respect to thematters specified in the notice of nearing and so as toobtain a clear and orderly record.

(b) Any interested person will be afforded an opportunityto submit data, views, or arguments, orally or inwriting, that are relevant to the matters specified inthe notice of hearing. The period for filing writtencomments or recommendations shall not extend beyond thehearing ~ate, unless specified by the Commission.

(c) In every matter requiring a pUblic hearing, thepresiding officer shall take public testimony at some

-7-

point during the hearing. The presiding officer maylimit testimony which is unduly repetitious or lengthy.

(d) Unless otherwise specifically ordered by theCommission, testimony given at the public hearing neednot be reported verbatim. All supporting writtenstatements, maps, charts, tabulations, or similar dataoffered at the hearing, and which are deemed by theCommission to be authentic and relevant, shall bereceived and made a part of the record.

2-4 Action

The Commission shall consider all relevant comments andmaterial of record before taking final action in a rulemakingproceeding. Final action shall be taken within sixty daysafter the close of the public hearing.

2-5 Emergency Rulemaking

If the Commission finds that an imminent peril to publichealth or safety requires adoption, amendment, or repeal of ~rule upon less than twenty days' notice of hearing and stat€~in writing its reasons for such finding, it may proceedwithout prior notice or hearing upon such abbreviated noticE'and hearing as it finds practicable to adopt an emergencyrule. The Commission shall make an emergency rule known topersons who will be affected by it by pUblication at leastonce in a newspaper of general circulation in the County.

2-6 Filing of Rules

The Commission, upon adopting, amending, or repealing a ruleand approval by the Mayor, shall file certified copies of therule with the County Clerk.

2-7 Taking Effect of Rules

Each rule adopted, amended, or repealed shall becomeeffective ten days after filing with the County Clerk. If alater effective date is required by statute or specified inthe rule, the later date shall be the effective date,provided that no rule shall specify an effective date inexcess of thirty days after the filing of the rule with theCounty Clerk. An emergency rule shall become effective uponfiling with the County Clerk for a period not exceeding onehundred twenty days without renewal unless extended incompliance with section 9l-3(a), Hawaii Revised Statutes.

2-8 Publication of Rules

The Commission shall, as soon as practicable, compile, index,and pUblish all rules adopted by the Commission and remaining

-8-

'. )

in effect. Compilations shall be supplemented as often asnecessary and shall be reviewed at least once every ten years,

RULE 3. DECLARATORY RULINGS

3-1 Petitions for Declaratory Rulings

(a) On petition of an interested person, the Commission mayissue a declaratory order as to the applicability ofany statutory provision, ordinance, or of any rule ororder of the Commission.

(b) Petition for a declaratory ruling shall contain:

(1) A non-refundable filing and processing fee ofone hundred dollars;

(2) Name, address, telephone number, if available,and signature of each petitioner;

(3) A designation of the specific provision, rule,or order in question, together with a statementof the controversy or uncertainty involved;

(4) A statement of the petitioner's position orcontention; and

(5) A memorandum of authorities, containing a ful:discussion of reasons and legal authorities :nsupport of such position or contention.

(c) Within sixty days after the sUbmission of a petitionfor declaratory ruling, the Commission shall eitherdeny the petition in writing, stating the reasons forsuch denial or issue a declaratory order on the matterscontained in the petition, or set the matter for apUblic hearing, as provided in sections 3-2, 3-3 and3-4 of these rules.

3-2 Request fur Public Hearina

The Commission, in its discretion, may order that a hear:~qbe held on a declaratory ruling petition. Any petitioner orparty in interest who desires a hearing on a petition for adeclaratory rUling shall submit a written request for ahearing, setting forth in the request the reasons why thematters alleged in the petition and the supporting materia:submitted will not permit the fair and expeditiousdisposition of the petition and, to the extent that suchrequest for a hearing is dependent upon factual assertion,shall attach to the request an affidavit establishing suchfacts. In the event a hearing is ordered by the Commission,

-9-

, II

the hearing shall be conducted in accordance with section 3-~of this rule.

3-3 Notice of Public Hearing

A notice of the declaratory ruling petition shall bepUblished at least once in a newspaper of general circulat~onin the County, and the notice shall also be mailed to allpersons who have made timely written requests for advancenotice. The notice shall be published at least ten daysprior to the date set for the hearing.

3-4 Conduct of Hearing

(a) The pUblic hearing for the declaratory ruling petit:onshall be heard before the Commission and presided overby the chairperson or vice-chairperson or, in theirabsence, by another member designated by theCommission. The hearing shall be conducted in such away as to afford all interested persons a reasonableopportunity to offer testimony with respect to thematters specified in the notice of hearing and so as toobtain a clear and orderly record.

(b) Any interested person will be afforded an opportuni~yto submit data, views, or arguments, orally or inwriting, that are relevant to the matters specified inthe notice of hearing. The period for filing writtencomments or recommendations shall not extend beyond :hchearing date, unless specified by the Commission.

(c) Unless otherwise specifically ordered by theCommission, testimony given at the public hearing neecnot be reported verbatim. All supporting writtenstatements, maps, charts, tabulations, or similar cataoffered at the hearing, and which are deemed by thecommission to be authentic and relevant, shall bereceived and made a part of the record.

3-5 Action

The Commission shall consider all relevant comments andmaterial of record before taking final action on thedeclaratory ruling petition. Final action shall be takenwithin sixty days after the close of the public hearing.

3-6 Status of Orders

An order disposing of a petition shall have the same stat~sas other Commission orders. An order shall be applicableonly to the factual situation described in the petition orset forth in the order. An order shall not be applicable :0

-10-

'.different factual situations or where additional facts notconsidered in the order exist.

RULE 4. CONTESTED CASE PROCEDURE

PART 1. General Provisions.

4-1 Purpose

This rule governs contested case procedure before theCommission whenever it is required by law; provided that anyprocedure in a contested case may be modified or waived bystipulation of the parties, and informal disposition may bemade of any contested case by stipulation, agreed settlement,consent order, or default.

4-2 Definitions

As used in this rule, except as otherwise required by context:

(1) "Agency" means any agency, board, commission,department, or officer of the county or stategovernment.

(2) "Applicant" means any agency or person who applies tothe Commission for a permit upon which the Commissionhas jurisdiction to take final action.

(3) "Chairperson" means the chairperson of the PlanningCommission of the County of Hawaii.

(4) "Commission" means the Planning Commission of theCounty of Hawaii or the Commission's duly authorizedrepresentative.

(5) "Contested case" means a proceeding in which the legalrights, duties, or privileges of specific parties arerequired by law to be determined after an opportunityfor agency hearing.

( 6 ) "Party" means any person or agency nameda party or properly seeking and entitledbe admitted as a party in a proceeding.specifically, it includes the following,filing of timely .requests:

(A) Any state or county agency, and

or admitted asas of right toMoreupon the

(B) Any person who has some property interest inthe land, who lawfully resides on the land, orwho can demonstrate that that person will be sodirectly and immediately affected by the

-11-

, J •Commission's decision that that person'sinterest in the proceeding is clearlydistinguishable from that of the generalpUblic; provided that such agency or personmust be specifically named or admitted as aparty before being allowed to participate i~the contested case hearing.

(7) "Person" means any individual, partnership, firm,association, trust, estate, corporation, or other legalentity of any character other than an agency.

4-3 Conflict with Other Time and Notice Requirements

In any case of conflict of time and notice requirementsbetween this rule and any other rule of the Commission, theprovisions of this rule shall be applied.

4-4 Service of Notices, Documents, and Other Papers

(a) Opon Whom Served. All notices, documents, and othe:papers shall be served on the Commission and allparties, except that where a party is represented, suc~representative shall be served, rather than the party,

(b) Method of Service. Service shall be made by personaldelivery, first-class mail, or by other meansauthorized by law. If by mail, service shall beregarded as complete upon the mailing of an item whic~is properly stamped and addressed.

(c) Additional Time after Service by Mail. Whenever aparty has the right or is required to do some actwithin a prescribed period after the service of anotice, document, or paper upon that party by mail, :wcdays shall be added to the prescribed period.

4-5 Presiding Officer

(a) Person Presiding. The chairperson of the Commission,one of its members, or a hearing officer duly appointesand designated, shall preside at the hearing.

(b) Powers. The presiding officer controls the course ofhearings, administers oaths, rules on questions ofevidence, holds appropriate conferences before orduring hearings, rules upon all objections or motionswhich do not involve a final determi~ation of theproceeding, receives offers of proof, fixes the timefor the filing of briefs, disposes of any other matterthat normally and properly arises in the course of c

hearing, and takes all other actions authorized by :aw

-12-

t •

that are deemed necessary for the orderly and justconduct of a hearing.

(c) continuance. The presiding officer may postpone orcontinue any hearing to ensure the orderly and justconduct of a hearing.

4-6 Prehearing Procedure

(a) Request for Contested Case Hearing Procedure. A personor agency may request that a contested case hearingprocedure be used in a hearing on a particular matter,provided that such request shall be made before orduring the Commission's first pUblic meeting on thatmatter, and not after such meeting.

(b) Notice of Contested Case. Whenever a contested casehearing procedure is requested and is determined by theCommission to be required, notice sha11 be published ina newspaper of general circulation in the county. Thenotice shall state that:

(1) A contested case hearing procedure has beenrequested on the particular subject matter,

(2) Any agency or person wishing to be a party isrequired to file a petition with the Commissionwithin twenty days after the date ofpublication; and

(3) The petition must conform to the requirementsof this section.

(c) Contents of Petition. The petition shall include thefollowing points:

(1) The nature of petitioner's statutory or otherright.

(2) The nature and extent of petitioner's interestand, if the petitioner is an abutting propertyowner, the Tax Map Key description of theproperty.

(3) A statement of the specific issues to be raisedor contested by the petitioner in the contestedcase hearing.

(4) The effect of any decision in the proceeding onpetitioner's interest.

(d) Filing Requirements. The original and nine copies ofthe petition shall be filed with the Commission and a

-13-

·;

copy served on the applicant and any other party to tr.eproceeding within twenty days after the date ofpublication of notice of the contested case hearing.

(e) Opposition to Petition. If any party opposes thepetition, the party shall file written objections tothe petition with the Commission within seven daysafter being served.

(f) Hearing. Within thirty days after the deadline for thefiling of petitions and upon reasonable notice to eachpetitioner, a preliminary hearing on any petition shallbe held prior to the Commission's granting or denial ofthat petition. In addition to considering the petitio"and any timely objections, the Commission shallconsider:

(1) The extent to which a petitioner's interest inthe proceeding differs from that of theapplicant, other parties, or other petitioners;and

(2) The extent to which a petitioner's interest inthe proceeding can assist in the development ofa complete record.

(g) The Commission shall grant or deny a petition within areasonable time after it is heard.

(h) Appeal from Denial. Any petitioner who has been deniecstanding as a party may appeal such denial to thecircuit court pursuant to section 91-14, Hawaii RevisecStatutes.

4-7 Notice of Contested Case Hearing

(a) Unless otherwise provided by law, the notice of hearingwill be served on all parties and persons on themailing list for this purpose at their last recordedaddresses within a reasonable time after the hearingdate has been set. The notice shall include astatement of~

(1) The date, time, place, and nature of hearing;

(2) The legal authority under which the hearing isto be held;

(3) The particular sections of the statutes andrules involved;

(4) An explicit statement in plain language of theissues involved and the facts alleged by the

-14-

agency in support thereof; provided, that 1:the agency is unable to state such issues andfacts in detail at the time the notice isserved, the initial notice may be limited to astatement of the issues involved, andthereafter upon application a bill ofparticulars shall be furnished; and

(5) The fact that any party may retain counsel ifhe so desires.

(b) The notice of the date, time, place, and nature of t;'ehearing shall also be published in a newspaper ofgeneral circulation in the county at least twenty daysprior to the hearing and shall also be filed at leastsix calendar days prior to the hearing with the Officeof the County Clerk.

4-8 Prehearing Conference

The presiding officer may hold a prehearing conference withthe parties for the purpose of formulating or simplifying theissues, arranging for the exchange of proposed exhibits orproposed written testimony, setting of schedules, exchangingnames of witnesses, limiting the number of witnesses, and anyother matter that may expedite the orderly conduct anddisposition of the proceeding.

4-9 Limiting Testimony

To avoid unnecessary cumulative evidence, the presidingofficer may limit the number of witnesses or the time fortestimony upon a particular issue.

4-10

4-11

4-12

Removal from Proceeding

Any person who wilfully disrupts a hearing to prevent orcompromise the conduct of the hearing shall be removed fromthe hearing room.

Order of Procedure

The applicant shall open and close. Other parties shall =eheard in such order as the presiding officer directs.

Questions from Commission

There shall be opportunity for the Commission, including :tsex-officio members, and the Planning Director, to askquestions of the parties' witnesses as may be required for afull and true disclosure of the facts.

-15-

"

4-13

4-14

Cross-Examination

Each party shall have the right to conduct suchcross-examination of the witnesses as may be required for afull and true disclosure of the facts and shall have theright to submit rebuttal evidence.

Requests for Subpoenas

(a) Subpoena of a Witness. Any request for the issuance ofa subpoena, requiring the attendance of a witness forthe purpose of taking oral testimony before theCommission, shall be in writing and shall state thereasons why the testimony of the witness is believed tobe material and relevant to the issues involved. Onlya party or a member of the Commission may request theissuance of a subpoena.

(b) Subpoena of Documents. Any request for the issuance ofa subpoena for the production of documents or recordsshall be in writing; shall state the name of the personwho is to produce such documents or records; shallspecify the particular document or reco~d, or partthereof, desired to be produced; and shall state thereasons why the production thereof is believed to bematerial and relevant to the issues involved.

(c) Time for Filing. A request for the issuance of asUbpoena under this section shall be valid only if itis physically received by the commission no later thanfive working days before date of the hearing at whichthe subpoenaed witness is to testify or documents areto be produced.

(d) Who May Issue A Subpoena. A subpoena may be issued bythe chairperson of the Commission, the presidingofficer, or a Commission member so authorized by theCommission. No sUbpoena shall be issued unless theparty requesting the sUbpoena has complied with thissection and gives the name and address of the desiredwitness. Signed and sealed blank subpoenas will not beissued to anyone. The name and address of the witnessshall be inserted in the original subpoena, a copy ofwhich shall be filed in the proceeding. The sUbpoenashall show at whose instance the subpoena is issued.

(d) Fees and Mileage. Any witness summoned shall be paidthe same fees and mileage as are paid to witnesses inthe circuit court of the State of Hawaii, and such feesand mileage shall be paid by the party at whose requestthe witness appears.

-16-

4-15

4-16

4-17

(e) Oath. Each witness shall be placed under oath oraff~rmation prior to testifying.

Consolidation

The Commission, upon its own initiative or upon motion, mayconsolidate for hearing or for other purposes, or maycontemporaneously consider, two or more proceedings whichinvolve substantially the same parties or issues which arethe same or closely related if the Commission finds that suer'consolidation or contemporaneous consideration will beconducive to the proper dispatch of its business and to theends of justice and will not unduly delay the proceedings.

Substitution of Parties

Opon motion and for good cause shown, the Commission mayorder the substitution of a party, except that in the case ofdeath of a party, substitution may be ordered without thefiling of a motion.

Motions

(a) Timing. Motions may be made before, during, or after ~hearing.

(b) Form; Contents. Any motion, other than one made duringa hearing, shall be made in writing to the Commission,shall state the relief sought, and shall be accompaniecby an affidavit or legal memorandum setting forth thegrounds upon which the motion is based.

(c) Service of Motions. The moving party shall serve acopy of all motion papers on all other parties andshall file with the Commission the original with proofof service.

(d) Memorandum in Opposition. A memorandum in oppositionor counter affidavit shall be served on all parties ancthe original and proof of service shall be filed withthe Commission within seven days after being servedwith the motion. The chairperson of the Commission mayorder the memorandum in opposition to be filed earlierthan the seven-day period.

(e) waiver. Failure to serve or file a memorandum inopposition to a motion and to appear at the hearing maybe deemed a waiver of objection to the granting ordenial of the motion. A party who does not oppose themotion shall notify the chairperson and opposingcounselor party promptly.

-17-

4-18 Evidence

(a) Form and Admissibility .. The Commission shall not bebound by the rules relating to the admission orrejection of evidence but may exercise its owndiscretion in such matter with a view to do substanti~:justice.

(b) Ruling. The presiding officer shall rule on theadmissibility of all evidence. such rulings may bereviewed by the Commission in determining the matter ofthe merits.

(c) Objections and Exceptions. When objections are mace :~the admission or exclusion of evidence, the groundsrelied upon shall be stated briefly. Formal exceptionsto rulings are unnecessary and need not be taken.

(d) Offer of Proof. An offer of proof for the record shal:consist of a statement of the substance of the evidenceto which objection has been sustained.

(e) Prepared Testimony. With the approval of the pres1a1~~officer, a witness may read into the record histestimony on direct examination. Before any preparedtestimony is read, unless excused by the presidingofficer, the witness shall deliver copies thereof tothe presiding officer and all counselor parties.Admissibility shall be subject to the rules governingoral testimony. If the presiding officer deems thatsubstantial saving in time will result, a copy of theprepared testimony may be received in evidence withoutreading, provided that copies thereof shall have beenserved upon all parties and the Commission fifteen daysbefore the hearing or such prior service is waived, :~permit proper cross-examination of the witness onmatters contained in the prepared testimony.

(f) Documentary Evidence. If relevant and material matte:offered in evidence is embraced in a documentcontaining other matters, the party offering it shalldesignate specifically the matter so offered. If ot~e~matter in the document would unnecessarily encumber :~erecord, the document will not be received in evidence,but at the discretion of the presiding officer, therelevant and material matter may be read into therecord or copies thereof received as an exhibit. Othe~parties shall be afforded an opportunity to examine thedocument and to offer in evidence other portionsthereof believed material and relevant.

-18-

·,

4-19

(g) Exhibits.

(1) Form; Size. Exhibits shall be legible and maybe prepared on paper not exceeding 8-1/2 x 11inches in size or bound or folded to therespective approximate size, where practical.Wherever practicable, sheets of each exhibitshall be numbered and data and other figuresshall be set forth in tabular form.

(2) Copies. When exhibits are offered in evidence,the original and fifteen copies shall befurnished to the presiding officer with a copyto each party to the proceeding other than theCommission, unless such copies have beenpreviously furnished, or the presiding officerdirects otherwise.

(h) Commission Records. If any matter contained in adocument on file as a public record with the Commissionis offered in eVidence, unless directed otherwise cythe presiding officer, such document need not beproduced as an exhibit, but may be received in eVidenceby reference, provided that the particular portions ofsuch document are specifically identified and areotherwise competent, relevant, and material. Iftestimony in any proceeding, other than the one beingheard, is offered in evidence, a copy of the testimonyshall be presented as an exhibit, unless otherwiseordered by the presiding officer.

(i) Official Notice of Facts. Official notice may be takenof such matters as may be judicially noticed by thecourts of the State of Hawaii. Official notice mayalso be taken of generally recognized technical orscientific facts within the Commission's specializedknowledge when parties are given notice either beforeor during the hearing of the material so noticed andafforded the opportunity to contest the facts sonoticed.

(j) Additional Evidence. At the hearing, the presidingofficer may require the production of further evidenceupon any issue. Upon agreement of the parties, thepresiding officer may authorize the filing of specificdocumentary evidence as part of the record within afixed time after submission, reserving an exhibitnumber therefor.

Briefs

The presiding officer may fix the time for the filing ofbriefs. Exhibits may be reproduced in an appendix to a

-19-

• I •

4-20

4-21

4-22

4-23

4-24

brief. A brief of more than twenty pages shall contain asUbject index and table of authorities. Requests forextension of time to file briefs must be made to theCommission in writing, and a copy thereof served upon ormailed to the other parties to the proceedings. Ordinarily,when a matter is to be submitted on concurrent briefs,extensions will not be granted unless stipulation is filedwith the Commission.

Oral Arguments

The Commission or the presiding officer may direct or permitthe presentation of oral argument with the applicant openingand concluding the argument. Not more than one hour on eac~side of the proceeding will be allowed for argument withoutspecial leave of the Commission.

Public Testimony

The presiding officer may provide an opportunity at somepoint during the contested case hearing for the taking ofpublic testimony on the matter.

Close of Hearing

At the end of the presentation of the eVidence, submission ofbriefs and oral arguments, if any, the Commission or thehearing officer shall close the hearing.

Examination of Evidence by Commission

Whenever Commission members who are to render the finaldecision have not heard and examined all of the evidence, t~edecision, if adverse to a party to the proceedings, shall notbe made until a proposal for decision containing a statementof reasons and including determination of each issue of factor law necessary to the proposed decision has been servedupon the parties, and an opportunity has been afforded toeach party adversely affected to file exceptions and ?resentargument to the Commission members who are to render thedecision, who shall personally consider the whole record orsuch portions thereof as may be cited by the parties.

Time Limit for Decision

The Commission shall render its decision, order, or rulingwithin a period of not more than ninety days after the closeof the hearing, unless a longer period of time is agreed uponby all parties.

-20-

• I

4-25

4-26

4-27

4-28

Issuance of Decisions and Orders

A party to the proceeding may submit a proposed decision andorder which shall include proposed findings of fact andconclusions of law. The proposed decision and order shall oeserved on each party to the proceeding, and each party shallhave fifteen days from date of service thereof to submitwritten comments or objections to the Commission. TheCommission shall render a written decision and order in everycontested case, which shall include separate findings of factand conclusions of law. The decision shall expressly acceptor deny proposed findings of fact filed by a party.

Service of Decisions and Orders

Decisions and orders shall be served by mailing certifiedcopies thereof to' the parties of record. When service is notaccomplished by mail, it may be effected by personal deliveryof a certified copy thereof. When a party to a proceedinghas appeared by a representative, service upon suchrepresentative of counsel shall be deemed to be service uponthe party.

Reconsideration of Decision and Order

The Commission shall not reconsider its action in anycontested case hearing after the effective date of itsdecision.

Appeal from the Commission's Decision

Any party may seek judicial review of the Commission's finaldecision in the manner set forth in section 91-14, HawaiiRevised Statutes.

PART 2. Post Hearing Procedure for Hearings Conducted by HearinaOfficer

4-29 Recommendations o£ Hearing Officer

(a) Submission of Recommendations. Upon completion oftaking of the eVidence, the hearing officer shallprepare a report, setting forth findings of fact,conclusions of law, and the reasons therefore, and arecommended order and submit the report of the case tothe Commission.

(b) Contents of Record. The record shall include thepetition, notice of hearing, motions, rulings, orders,transcript of the hearing, stipulations, documentaryeVidence, proposed findings, or other documentssubmitted by the parties, objections to the conduct of

-21-

,.,

4-30

4-31

the hearing and the report of the hearing officer andall other matters placed in evidence.

(c) Service of Hearing Officer's Report. The hearingofficer shall cause a copy of the report to be servedupon all parties to the proceedings.

Exceptions to Hearing Officer's Report and Recommendations

(a) File; Form; copies; Time; Service. Within fifteen daysafter service of the report and recommendations by thehearing officer, a party may file with the Com~issionany exceptions to the report and a brief or statementin support thereof with the Commission. A copy of theexceptions and brief or statement shall be served uponeach party to the proceeding.

(b) Contents of Exceptions. The exceptions shall include:

(1) The specific questions of procedure, fact, law,or policy to which exceptions are taken.

(2) That part of the hearing officer's report andrecommended order to which objections are made

(3) All the grounds for exceptions to a rUling,finding, conclusion or recommendation.

(c) Waiver of Exceptions. Any exceptions not specificallyraised in writing by a party are waived.

Support of Hearing Officer's Report and Recommendations

(a) File; Form; Copies; Time; Service. Within seven daysafter service of the exceptions taken to the hearingofficer's report, a party may file with the Commissiona brief or statement in support of the hearingofficer's recommenda~ion. A copy of the brief orstatement in support shall be served upon each party tsthe proceeding.

(b) Contents of Support Brief or Statement. The supportin~brief or statement shall include:

(1) The specific points of procedure, fact, law, orpolicy to which exceptions were taken.

(2) The facts and reasons why report andrecommendations must be affirmed.

-22-

<.

•4-32

4-33

Oral Argument before the Commission

(a) Party's Request. If a party desires to argue oral:ybefore the Commission, a written request with reasonstherefor shall accompany the exceptions or the supportbrief or statement filed, and the Commission may grantsuch request.

(b) Commission Direction. The Commission may direct oralargument on its own motion.

Commission Action

(a) No Exceptions Filed. In the event no statement ofexceptions is filed with the Commission, the Commissionmay proceed to reverse, modify, or adopt therecommendations of the hearing officer.

(b) Exceptions and Support Statements Filed. Opon thefiling of the exceptions and briefs or statements, thecommission may render its decision forthwith upon therecord; or if oral argument has been allowed, afteroral argument; or may reopen the docket and takefurther evidence or may make such other disposition ofthe case that is necessary under the circumstances,provided that where additional evidence is taken andhas not been heard and examined by all of theCommission members who are to render a final decision,the~Commission shall comply with the procedure insection 4-23 of this rule.

RULE 5. GENERAL PLAN AMENDMENTS

5-1 Authority

This rule implements General Plan amendment procedures beforethe Planning Commission as provided by Chapter 16, HawaiiCounty Code.

5-2 Scope and Purpose

The General Plan may be amended by changing its goals,policies, standards, zoning acreage allocations, land usepattern allocation guide map, and other applicable sectionsthereof, when the conditions or premises upon which theGeneral Plan is based have changed and When such an amendmentwould assure the coordinated development of the County ofHawaii and the general welfare and prosperity of its people.

-23-

••

5-3 Definition

As used in these rules, except as otherwise recognized bycontext:

(1) "Comprehensive review" means a complete review of theGeneral Plan conducted by the Director at least onceevery ten years from the initial date of adoption ofthe General Plan as well as all other subsequentten-year reviews.

(2) "Commission" means the Planning Commission of theCounty of Hawaii.

(3) "Council" means the County Council of the County ofHawaii.

(4) "Director" means the Director of the PlanningDepartment of the County of Hawaii.

(5) "General Plan" means the County of Hawaii General Planadopted as Ordinance No. 439 in December 15, 1971, andall subsequent amendments thereof. It is the policydocument for the long-range comprehensive developmentof the island of Hawaii.

(6) "Interim amendments" means amendments to the GeneralPlan proposed by a property owner, the general pUblic,Council, or Director at any other time other thanduring the comprehensive review period.

(7) "Property owner" means a person having an interest intitle to the affected land proposed for an amendmentand includes the holder of a lease interest in theaffected land, where such lease interest is not due toexpire until after ten years following the date of thefiling of the petition.

5-4 Amendment Pursuant to Comprehensive Review

(a) The Director is responsible for conducting acomprehensive review of the General Plan at least onceevery ten years from the initial date of its adoption.SUbsequent reviews shall be conducted no later than tenyears after the adoption of any amendments proposed aspart of the previous comprehensive review. The scopeof the review includes, but is not limited to, thebasic elements of the General Plan; goals, policies,standards and courses of action of the variouselements; land use designations of the land use patternallocation gUide map; facilities map; and urban landuse pattern acreage and zoning acreage allocations.

-24-

< •

(b) Upon completion of the review, the Director shallsubmit any proposed amendment to the Commission.

(c) Within sixty days of receipt of the Director's proposecamendment, the Commission shall hold a public hearing.

The Commission, through the Planning Department, shallpublish a notice of the public hearing and its purposein a newspaper of general circulation in the County atleast ten calendar days prior to the date of thehearing.

(d) During the hearing and based on public testimonyreceived, the Commission may request the Director toconsider specific modification to any proposedamendment or to initiate within sixty days any newproposed amendments.

(e) If the Director modifies a proposed amendment orinitiates a new proposed amendment upon theCommission's request, the Commission shall hold furtherhearings on such matters, together with any proposedamendment originally submitted.

(f) Within sixty days of the conclusion of the publichearing, the Commission shall submit to the Council itscomments and recommendation on any proposed amendmentinitiated by the Director.

(g) The Council may also request the Director to considerany specific modification to any proposed amendment orto initiate within sixty days a new proposedamendment. If the Director either modifies a proposedamendment or initiates a new proposed amendment, suchproposed amendments shall be reviewed by the Commissionin accordance with the procedures set forth underSection 5-4 (c), (d), (e) and (f) above.

5-5 Interim Amendments

(a) General Public and Council. Members of the generalpublic may propose and the Council may propose orinitiate amendments to the General Plan goals, policiesand standards. In addition, a property owner maypropose an amendment to the land use pattern allocationgUide map covering land held by that property owner.

(1) Within sixty days of receipt of the Director'srecommendation on a proposed amendment, theCommission shall hold a public hearing.

The Commission, through the PlanningDepartment, shall publish a notice of the

-25-

,.public hearing and its purpose in a newspaperof general circulation in the County at leastten calendar days prior to the date of thehearing.

(2) In the case of a proposal by a property owne~,

promptly after the Commission's fixing a datefor the hearing, but not less than ten calendardays prior to the date of the hearing, thepetitioner shall mail a notice of the hearingto all property owners within three hundredfeet of the affected property. Prior to thedate of the hearing, the petitioner shall filewith the Commission proof of service or of goodfaith efforts to serve notice of theapplication on the designated property owners.Such proof may consist of certified mailreceipts, affidavits, or the like.

(A) The petitioner shall submit anadditional one hundred dollarspUblication fee for each hearingcontinued at the petitioner's request.The petitioner shall also notify theproperty owners within three hundredfeet of the affected property of thecontinued hearing.

(3) Within sixty days after the close of thehearing, the Commis~ion shall forward itscomments and recommendation to the Council.

(b) Director. The Director may initiate proposedamendments by transmitting it to the Council throughthe Commission. The Commission shall process theamendments in accordance with the procedures outlinedunder section 5-4 above, except with regard to thoseprovisions relating solely to the comprehensive review.

RULE 6. SPECIAL PERMITS

6-1 Author~ty

This rule governs special permit procedures pursuant toauthority conferred by chapter 205-6, Hawaii RevisedStatutes, as amended.

6-2 Standing to Subm~t a Petit~on for a Special Permit

Any person who des~res to use its land w~thin a State LandUse agr~cultural or rural district other than for anagr~cultural or rural use may pet~tion the P1annlng

-26-

\ .

Comm~ssion for perm~ssion to use its land ~n the mannerdesired.

6-3 Pet~t~on and Content

A pet~t~on for a Special Permit shall be f~led w~th thePlann~ng Comm~ssion's office and shall ~nclude the follow~ng;

(a) Non-refundable filing and process~ng fee of one hundreddollars.

(b) Original and fifteen copies of:

(1) Application form;

(2) Description of the property in sufficientdetail to determine its precise location;

(3) A plot or site plan of the property, drawn toscale, with all eXisting and proposed usesand/or structures shown thereon;

(4) Elevations of the proposed structures;

(5) A statement of the reasons for the grantlng ofthe Special Permit citing how the proposed usewould promote the effectiveness and objectlvesof chapter 205, HRS, and why the proposal 1S anunusual and reasonable use of the land. Thefollow~ng criteria shall also be addressed:

(A) Such use shall not be contrary to theobject~ves sought to be accompl~shed bythe Land Use Law and Regulat~ons;

(B) The desired use shall not adverselyaffect surrounding properties;

(C) Such use shall not unreasonably burdenpubl~c agencies to provide roads andstreets, sewers, water, dralnage, schoolimprovements, and pollce and fireprotection;

(D) Unusual condltions, trends, and needshave ar~sen since the distr~ctboundaries and regulation$ wereestabl~shed;

(E) The land upon WhlCh the proposed use 18sought 1S unsuited for the usespermltted within the district;

-27-

(F) The proposed use w111 not substantlallyalter or chanqe the essent1al characterof the land and the present use; ana

(G) The request wlll not be contrary to theGeneral Plan and officlal CommunityDevelopment Plan and other documentssuch as Deslgn Plans.

(c) A copy of full-size site plan and/or elevatlonsof the proposed structure, a minimum of 2 feetby 3 feet in dimension, drawn to scale. Thesite plan should include property llnes,reference pOlnts (roadways, shoreline, etc.),and eXlsting and proposed structures and uses,

6-4 Incomplete Application

The Planning Commission, through the Plannlng Department,shall nelther accept nor process an application WhlCh 1Slncomplete as to form and content.

6-5 Public Hearing

(a) The Planning Commission shall conduct a public hearlngwlthin a period of ninety days from the date of recelplof a properly filed petitlon.

(b) Promptly after the Planning Commission's fixlng a datefor the public hearing, the petitioner shall mall anotice of the application and hearing to owners ofinterests ln properties within three hundred feet ofthe perimeter boundary of the affected property and toowners of lnterests in other properties WhlCh thePlanning Commlssion may find to be directly affected bythe proposed request. Such notice shall state:

(1) Name of the pet~tioner;

(2) PreClse locat1on of the property lnvolved~

(3) Nature of the proposed use; and

(4) Date, t1me, and place of the hear1ng.

(c) Prlor to the date of the hearing, the pet1tloner shallfile with the Planning Commlssion, an affldavlt orother similar proof of mailing of sald notice. ThePlanning Commlssion shall not conduct a hearlng :f thisrequlrement has not been complied wlth.

(d) In addltlon to sald notlce and at least ten days prIorto the date of the hearlng, the Plannlng CommlSSlon

-28-

,.

shall publ~sh not~ce of the hear~ng ~n a newspa~er ofgeneral c~rculat~on in the County which ~ncludes the~nformat~on prov~ded under sect~on 6.5(b)(1-4) of thlSrule.

6-6 Grounds for Special Permit

The Planning Commission shall not approve a Special Perrnltunless it is found that the proposed use:

(a) Is an unusual and reasonable use of land situatedwithin the Agricultural or Rural District, whicheverthe case may be: and

(b) Would promote the effectiveness and objectives ofChapter 205, Hawaii Revised Statutes, as amended.

The Planning Commission shall also consider the criterial~sted under section 6.3(b)(5)(A) through (G).

6-7 Action

With~n thirty days after the close of the hear~ng or with~n alonger per~od as may be agreed to by the petitioner, thePlann~ng Commission shall:

(a) For a Special Permit involving fifteen acres or less ofland, approve it by stating the reasons and attach~ngappropriate performance conditions; or

(b) For a Special Permit involv1ng more than fifteen acresof land, recommend approval to the State Land UseCommission by stating the reasons and attachingappropriate performance conditions: or

(c) Deny it by stating the reasons.

An application recommended for approval to the State Land UseCommission shall be forwarded within sixty days after thedec1sion is rendered by the Planning Commission.

6-8 Amendments of Conditions

(a) The petitioner may apply to the Planning CommlSSlonthrough the Planning Department for an amendment to thecond1tion(s) imposed by the Special Permit.

(b) In the case of time extensions, the pet~t10ner shallflle the request not less than nlnety days prlor to theexpirat10n date of the t1me conditlons, settlng forth:

(1) The affected cond1tlon:

-29-

\ I

(2) The length of t1me requested; and

(3) The reasons for the request.

If the Plann1ng Commlsslon 1S not able to act on aproperly flIed time extens10n request prlor to theexpiration date, the use granted under the Spec1alPermlt may be continued, unless the Plann1ng Comm1SS10nspecifically disallows the activity during the 1nter1ffiperiod.

(c) In the case of additions, modifications, and/ordeletions of conditions, the petitioner shall set fortb1n writing:

(1) The affected conditlon;

(2) The specific amendment requested; and

(3) The reasons for the request.

(d) The petitioner shall also file a one hundred dollarspublicatlon fee, along with the original and ten coplesof the request.

(e) The hearlng and notice procedures and act10n shall bethe same as under sections 6-5 and 6-7 of thlS rule,provlded further that the Planning Commission shallconduct a hearing within a period of sixty days fromthe date of recelpt of a properly filed petitlon, orwithin a longer period as may be agreed to by theapplicant.

6-9 Appeals

The Planning Commlssion's decision is appealable to theCircult Court.

RULE 7. USE PERMITS

7-1 Authorlty

ThlS rule governs use permit procedures before the Plann1ngCommission as required by Chapter 25 (Zoning Code), Hawa11County Code 1983, as amended.

7-2 Deflnltions

As used 1n this rule, except as otherwise recogn1zed bycontext:

-30-

\ .

(1) "Board" means the Board of Appeals of the county ofHawal.1..

(2) "Commlssl0n" means the Plann1.ng Commlss10n of theCounty of Hawali.

(3) "Department" means the Plannlng Department of theCounty of Hawaii.

(4) "Plan Approval" means a method of allowing closerinspection of the proposed use granted under the usepermit in order to assure that the lntent and purposeof Chapter 25, Hawaii County Code 1983 are carrled out,

7-3 Application and Content

An application for a use permit shall be flIed wlth theCommlssion, through the Department, and shall include:

(1) A non-refundable filing and processlng fee of onehundred dollars.

(2) Original and fifteen copies of:

(A) Appllcation form:

(B) Written descriptlon of the proposed project anda statement of objectives and reasons for therequest, including the following:

(i) How the granting of the proposed usewl11 still be consistent wlth thegeneral purpose of the zoned district,the intent and purpose of the ZonlngCode, and the County General Plan;

(11.) How the granting of the proposed usewll1 not be materially detrimental tothe public welfare nor causesUbstantial, adverse impact to the'community' s character or to surroundlngproperties;

(iil) How the grantlng of the proposed usewill not adversely affect sl.mllar orrelated existing uses withl.n thesurrounding area, community or reglon;and

(lV) How the grantlng of the proposed usewlll not unreasonably burden publlCagencles to provlde roads and streets,sewer, water, dral.nage, schools, pollee

-31-

,.

and fire protectlon and other relatecinfrastructure.

(C) Descr1pt1on of the property 1n sufflclentdetail to determine the precise locatlon of theproperty involved; and

(D) Plot plan of the property, drawn to scale, wlthall existing and proposed structures andlmprovements shown thereon.

(3) A minimum 2-foot by 3-foot presentation map whichincludes the 1nformation required under Sectlon7-3(2)(D) of this rule.

(4) A 11st of names and addresses of all owners of propertyinterests in property located w1thin 300 feet of theper1meter boundary of the applicant's property.

(5) The Commission may require the submission of a scaledmodel of the proposed use and development of theproperty.

7-4 Incomplete Application

The Department, on behalf of the Commiss10n, shall ne1theraccept nor process an application which is 1ncomplete as toform and content.

7-5 Notice

(a) Upon rece1pt and acceptance of a properly filed andcompleted applicat1on, the Commission, through theDepartment, shall fix a date for the public hearing.The public hearing shall be held within sixty days ofreceipt of a properly filed applicat10n or w1th1n alonger period as may be agreed to by the appl1cant.

(b) At least ten calendar days prior to the date of thepubl1C hearing, the Comm1ssion shall pUbllSh a notlceof the public hearing in a newspaper of generalcirculation in the County Wh1Ch 1ncludes the followlng:

(1) Name of the appllcant;

(2) The precise location of the property 1nvolved~

(3) Nature of the use sought and the proposedaccompanying structures, 1f any; and

(4) The date, t1me and place on which the publlChearing w111 be held.

-32-

,.

(c) W1th1n three work1ng days after receiving notice of thepublic hearing date, the applicant shall serve noticeof the appl1catlon on owners of interests 1n prope~:leswithin three hundred feet of the perimeter boundary ofthe applicant's property and owners of interests inother properties which the Commission may find to bedirectly affected by the use permit sought. Suchnotice shall include all of the information requiredunder Section 7-5(b) of this rule.

(d) Prior to the public hearing, the applicant shall submitto the Commission proof of service or of good fa1thefforts to serve notice of the application of thedesignated property owners. Such proof may consist ofcertified mail receipts, affidavits, or the ·like.

7-6 Grounds for ReView of Applicationi

The Commission may approve a use permit application only 1fit finds that: I

(a) The granting of th~ proposed use will still beconsistent with th, general purpose of the zoneddistrict, the intent and purpose of the Zoning Code,and the County General Plan;

(b) The granting of the proposed use will not be materlallydetrimental to the publiC welfare nor causesubstantial, adverse impact to the community'scharacter or to su~rounding properties.

(c) The granting of the proposed use will not adverselyaffect similar or ~elated existing uses within thesurrounding area, community or region; and

(d) The granting of the proposed use will not unreasonablyburden public agencies to provide roads and streets,sewer, water, drainage, schools, police and fireprotection and other related infrastructure.

7-7 Decision

(a) Within sixty days after the conclusion of the hearlnsor within such longer period as may be agreed to cy theapplicant, the Commission shall render a decision.

(b) If the Commission ~ails to render a decision withln theprescribed period, the application shall be cons1de~edas being approved.

-33-

,.

7-8 Concurrent Requests

Concurrent requests, such as dev~at~ons from the m~n~mum

bU~lding s~te area, m~n~mum setback and other s~m~larrequ~rements may be acted upon by the Comm~ssion through theuse permit procedures.

7-9 Appeal

The Commission's decision is appealable to the Board.

RULE NO.8. RULES AND REGULATIONS RELATING TO SHORELINE SETBACK

8-1 . Authority

Pursuant to authority conferred by Chapter 205, Hawa~~Revised Statutes, a amended, by Section 2, Act 136, SeSSionLaws of Hawaii 1970, the rules and regulations here~naftercontained are hereby established and shall apply to all lanesalong the shoreline within the County of Hawaii.

8-2 Purpose

The grow~ng population and expanding development have broughtabout numerous cases of encroachment of structures upon t~eshorel~ne. Many of these structures have disturbed thenatural shoreline processes and caused erosion of theshoreline. Concrete masses along the shoxeline are contraryto the pol~cy for the preservation of the natural shorel~neand the open space. Unrestricted removal of sand, coral,rocks, etc., for commercial uses can only deteriorate theshoreline and remove lt from publ~c use and enjoyment.Moreover, the Hawai~an Islands are sUbject to tsunam1S anch~gh waves which endanger res~dential dwell~ngs and otherstructures which are bUilt too close to the shorel~ne. ?orthese reasons, it 1S in the pUbl~c interest to establlshshoreline setbacks and to regulate the use and actlvlt~esw~thin the shoreline setbacks.

8-3 Title

These rules and regulations shall be known as the "RULES ANDREGULATIONS RELATING TO SHORELINE SETBACK OF THE COUNTY OFHAWAII."

8-4 Definit~ons

For the purpose of these rules and regulations, unless it 1S

plainly ev~dent from the context that a different mean~ng isintended, certa~n words and phrases used hereln are deflnedas follows:

-34-

••

(1) "Agency" means the P1ann1ng Department of the County ofHawai1.

(2) "Agricultural Structures" shall mean any structure that1S used for agricultural purpose.

(3) "Commiss10n" shall mean the Land Use Comm1ss10n of theState of Hawaii.

(4) "Director" shall mean the Planning Director of thePlanning Department, County of Hawaii.

(5) "Groin" shall mean a shore protective structure bU11tusually perpendicular to shoreline to trap 11ttoraldrift or retard erosion of the shore.

(6) "Land" shall include areas under water within theboundaries of the State.

(7) "Line of Debris" shall mean a line marking the landwardLim1t of debris deposits resulting from wave uprush.

(8) "Nonconforming structure" shall mean any structurewhich was previously lawful and eXisting within theshoreline setback area prior to the effective date ofAct 136, SLH 1970, or any sUbsequent amendments madethereto.

(9) "Nonconforming use" shall mean the use of a build1ng orstructure, or of a parcel of land, lawfully exist1ngwithin the shoreline setback area prior to theeffective date of Act 136, SLH 1970, or any subsequentamendments made thereto.

(10) "Owner" shall include lessees of real property.

(11) "Plan" shall mean a deta1led construction drawingprepared to an appropriate scale, show1ng the design ofthe proposed construction. The plan shall be basedupon an accurate instrument survey and shall 1ncludedata on the existing conditions, including propertyboundaries and topography, in and around the proposedconstruction.

(12) "Plann1ng Commission" shall mean the PlanningCommission of the County of Hawaii.

(13) "Revetment" shall mean a facing 0 stone, concrete,blocks, or other sim11ar material built to protect ascarp, embankment, or shore structure aga1nst erOSlonby wave act10n or concurrents.

-35-

• •

(14) "Shorel1ne" shall mean the upper reaches of the wash ofwaves, other than storm and tidal waves, usuallyeV1denced by the edge of vegetatlve growth, the upperllne of debris left by the wash of waves, and/orestabl1shed and structurally sound shoreline walls orstructures or other visible marks such as the rockyshore, as most applicable in each case.

(15) "Shoreline setback" shall mean all of the land areabetween the shoreline and the shoreline setback llne.

(16) "Shoreline setback area" shall mean all of the landseaward of the shoreline setback line.

(17) "Shorellne setback 11ne" shall mean that llneestablished by the State Land Use Comm1ss10n or theCounty of Hawaii running inland from and parallel tothe shorel1ne at a horizontal plane.

(18) "Structure" shall mean anythlng constructed or erectedwith a f1xed 10catl0n on the ground.

(19) "Use." A use is:

(A) any purpose for which a structure or a tract Of

land is designed, arranged, 1ntended,maintained, or occupied; or

(8) any activity, occupation, business, oroperation carr~ed on or lntended to be carr~edon in any structure or on a tract of land.

(20) "Vegetatlve growth" shall mean any plant, tree, shrub,grass, or groups, clusters or patches of the samerooted and growlng.

8-5 Shoreline Setbacks Applicable

Shoreline setbacks as .established and adopted by theCommission on December 18, 1970 as they pertain to the Countyof Hawaii shall be the official shoreline setbacks to beadministered and enforced under these rules and regulatlons.In additlon, any SUbsequent amendments to the offic1alshorellne setbacks that might be made by the Comm1SS10n shal:be applicable under these rules and regulat10ns.

Shorel1ne setbacks established at distance greater than thatestabl1shed by the Comm1ss10n" shall be administered andenforced under such county setback ordinances 1n conjunctlonwith these rules and regulat10ns.

-36-

t • (

8-6 Establ~shment of the Shorel~ne

(a) Field Survey

Actual field locat~on of the shorel~ne is accordancew~th the definition herein along w~th the ex~st~ngproperty lines shall be located and platted byinstrument surveys and the property corners orappropriate references thereof along the shorel~ne bemarked on the ground by a land surveyor in the State ofHawa~i. Such survey maps developed by the reg~stereeland surveyor shall bear the surveyor's signature anedate of field survey and the confirming s~gnature ofthe Chairman of the Board of Land and NaturalResources. Shoreline setbacks shall be measured fromthe shoreline as determined and certified by theRegistered Land Surveyor and as confirmed by theChairman of the Board of Land and Natural Resources.

(b) Surveyor's Signature

The Chairman of the Board of Land and Natural Resourcesconfirming signature shall be placed over the followlngstatement: "The shoreline as located and certif~ed :5hereby conf~rmed as being the actual shoreline as of(date) "

(c) Time Limits

Plans showing the location of a shoreline by aregistered land surveyor shall be based upon actualfield surveys conducted w~thin six months prior tofiling of the application for any construction relat:~eto lands adjacent to the shoreline under these rulesand regulations. Where an application for governmen:alaction is withdrawn or held ~n abeyance at the reques~of the applicant or held in abeyance due tononcompliance w~th other prov~sions of these rules a~cregulations in order to complete the applicat~on, or ::a decision ~s not rendered by the agency for justcause, the shoreline data shall be null and void afte:a period of one year from the date of the originalfield survey. It shall be the responsibility of theappl~cant to prov~de a plan based on an updated surveybefore process~ng can proceed by the agency.

(d) Site Plans

All site plans shOWing the location of the shorel~neshall be drawn to a scale of 1"-20'-0" at a m~n~mum.The shorel~ne and ex~st~ng cond~tions along propertIeslmmediately adjacent shall also be shown on slte plans.

-37-

t,

8-7 Constructlon Permlt Procedures

All publlc and prlvate constructlon lnvolving lands wlthlnthe shorellne setback or immediately lnland and adjacent tosuch lands and all applications for permits, revlew, fees,approvals, and any other similar governmental proceduresshall be subject to these rules and regulatlons, suchconstruction to include work involved for repairs,remodeling, reconstruction, replacement, or maintenance.Approval based upon compliance with these rules andregulations shall not relieve the applicant of hisresponsibility of compliance with all other applicablestatutes, codes, ordinances, or rules and regulatlons.

8-8 Authorlty to Waive Field Surveys

Whenever In the oplnion of the Director, the proposedconstruction as indicated by data submitted by the applIcantis clearly and unmistakably located on shoreline propertIesat a considerable distance from the shorellne setback, heshall be vested with the authority to waive the requlrementfor instrument surveys by a registered land surveyor for theestablishment of the shoreline and the confirmatlon by theState Land Surveyor. In granting such a waiver, he mayrequlre certification from the applicant that none of theproposed construction is intended for or will be constructedwithin the shoreline setback. Such certifications, ifrequired, shall be notarized.

8-9 Authority of the Agency Along Shorelines

All construction, lmprovements, gradlng, and such relatedactivities within or immediately inland of the shorelinesetback shall be subject to review and approval of the agencyunder these rules and regulations. Such activIty proposedfor lands seaward of the shoreline shall not come under thejurisdiction of these rules and regulations. Where thejurisdiction of the agency is llmited for lands wIthIn theshoreline setback and with adjacent Inland lands under thejurIsdiction of other agencies, reVIew by other agencIes aswell as thiS agency shall be required.

8-10 Prohibited Activities Within the Shoreline Setback (Area)

(a) Removal of Material

The removal of sand, coral, rocks, sOlI, shells, orother beach compositions pr natural geologIc materlalsalong the shorelines withln the shorellne setback shallbe prohibited. Such removal shall be prohlblted :orany purpose except for reasonable domestIc,noncommercial use.

-38-

, .

Removal for reasonable domest~c, noncommerclal useshall not be made ~n any manner or to an extent thatwill change the basic topography or the physlcalconf~guration of the area.

(b) Structures

No structure or any portion thereof, includ~ng (but notlimited to) seawall, groins, and revetments, whetherbuilt above, or below the ground surface, shall bepermitted within the shoreline setback (area).Construction of facilities that are accessory orinc~dental to structures located in areas immediatelyadjacent to the shoreline setback shall not bepermitted. Roads, streets, driveways, walkways,utility lines (whether overhead or underground), aswell as grading work, and any and all otherconstruction work not necessarily related to structuresshall not be permitted within the shoreline setback.

(c) Sand Mining

Any sand mining operation or portion thereof with~n theshoreline setback which has been legally in operat~onfor a period of at least two years immediately prior toJune 22, 1970 may be continued for a period not toextend beyond July 1, 1975. Cont~nued operation durlngthis period shall be contingent upon mainta~n~ng thescope of operation on June 22, 1970. Mining operat~onswithin the shoreline setback that have substantially~ncreased ~n scope from that of June 22, 1970 shall beunlawful and all operations with~n the shorelinesetback shall be ~mmediately discontinued.

(d) Special Structures

Special structures necessary for safety reasons or toprotect property from erosion or wave damages shall bepermitted upon approval by the Planning Director. ThePlanning Director shall not approve the construction ofsuch structures within the shoreline setback w~thout

the concurrence of the Chief Engineer of the Departmentof Public Works, County of Hawali.

(e) Nonconforming Structures

Any lawful nonconform~ng structure existing within theshoreline setback on June 22, 1970 shall be permitted.A structure not conforming to this Section but forwhich a bUllding permit appllcation has been filed onor before June 22, 1970 shall also be perm~tted as anonconforming structure subject to the ordinances andregu1atlons of the County of Hawail.

-39-

·,.

8-11

Any nonconformlng structure, drlveway, roadway, orutIlIty may be replaced or reconstructed wlthln theshoreline setback provided that no such nonconformIngstructure or fac1lity shall be substant1ally enlargedor changed to another nonconformlng use w1th1n theshoreline setback. If the use of any nonconformIngstructure is discontinued or held in abeyance for aperiod of one year, the further contlnuation of suchuse shall be prohibited.

A nonconformlng structure shall not be enlarged,extended, constructed, moved, or structurally altered.Work may be done on any nonconforming structure 1n anyperl0d of twelve consecutive months for ordlnaryrepairs or on repair or replacement of nonbearingwalls, fixtures, wlring, or plumbing, to an extent notexceeding ten per center of the current replacementvalue of the structure, provided that the cubic contentof the building as it existed on June 22, 1970 shallnot be increased.

(f) Nonconforming Use

No nonconforming use of land shall be enlarged orincreased or extended to occupy a greater area of landthan was occupled on June 22, 1970. No nonconform1nguse of land shall be moved in whole or in part to anyportion of the lot within the shoreline setback.

Admlnistration

The agency, through its Planning Director, shall reV1ew andapprove or disapprove all plans submitted in accordance wIththe requlrements of Rules 8.3 and 8.4. The D1rector mayrequire additional plans over and above those spec1fied InRules 8.3 and 8.4. Changes 1n any plans submltted 1n orderto obtaln optimum compllance practicable to these rules andregulatlons that are reasonable and proper may be reqUIred 2ythe D1rector.

The agency, through its Dlrector, shall recelve and reVIewplans for proposed structures, facilities, or actlvltleswlth1n the shoreline setback which are expressly and1mplIedly prohibited upon the submisSlon of adequate plansand data attached to a property executed appl1cation formrequesting a variance through the Planning Commission of theCounty of Hawaii. The application shall be accompanied by ~fee of one hundred dollars ($100) to cover the cost ofpubl1sh1ng hearing notices.

-40-

8-12

8-13

Appl1cat1ons for a variance from these rules and regulatlonsshall be accompanied by accurate wr1tten statements tosubstantiate that:

a. such structure, activ1ty, or facility 1S 1n the publ1Cinterest; or

b. hardship will be caused to the applicant if theproposed structure, activity, or facility is notallowed on that portion of the land withln theshoreline setback. Certification from the owner orlessee of the property authorizing and condon1ng theapplication for a variance from these rules andregulations shall also be provided by the applicant oragent.

Opon receipt of a complete application, the Planning D1rector~hall solicit comments from other governmental agencies andsubmit its recommendations in writing to the PlanningCommission along with copies of the application.

Action by Planning Commission

Oponreceipt of the appllcation and the Planning Director'srecommendation, the Planning Commission shall grant avariance for such structure, activity, or facility if, aftera hearing pursuant to Chapter 91, it finds in writing, basedon the record presented either: (1) that such structure,activity, or facility is in the public interest; or (2) thathardship will be caused to the applicant if the proposedstructure, activity, or facility is not allowed on thatportion of the land w1thin the shoreline setback. Anyvar1ance granted may be sUbject to such conditions as wlllcause the structure, activity, or facility to result 1n aminimum interference with natural shoreline processes. Suc~governmental body shall render written approval ordisapproval within 45 days after the hearing on theapplicant's plans, unless such period 1S extended by wrlttenagreement between the governmental body and the applicant.

Exemption

Upon the submittal of plans and a reV1ew 1n publ1C hearlngconducted by the agency, the construct1on of tunnels, canals,bas1ns, and d1tches, together w1th assoclated structures ~sed

by public utilities, wharves, docks, plers, and other harborand waterfront improvements and any other marlt1me facll1tyand water sport recreational facilitles may be permlttedwlthin the shoreline setback. The agency shall approval ofsuch plans for such construction only upon the finding thatthe proposed structures will result in a minimum lnterferencewlth natural shorellne processes.

-41-

Construct1on of facil1tles as 1nd1cated in the paragraphabove by a governmental body shall be exempt from theprovisions of this part. The governmental body charged withthe constructlon shall hold two publiC hearings as follows:

a. a public hearing when the project is first conceived;and

b. a public hearing when the project is substantiallydesigned and planned, but prior to the lettlng of thecontract.

Facillties indicated above constructed on State land by aState agency shall be submitted for review and informatlon ofthe offlcer of the agency. The Director shall make a findingas to whether or not the proposed construct1on as 1ndicatedon the plans 1S in conflict wlth any ordlnances, zonlng laws,and bUllding code of the County of Hawaii. The State agencyshall not proceed with such construction without thecertification from the Director of the agency.

RULE 9. SPECIAL MANAGEMENT AREA

9-1 Authorlty

Pursuant to authority conferred by Chapter 205A, HawallRevised Statutes, the Rules and Regulations hereinaftercontained are hereby established and shall apply to all landswithin the Special Management Area of the County of Hawall.

9-2 Purpose

It is the State poliCy to preserve, protect, and wherepossible, to restore the natural resources of the coastalzone of Hawali. Therefore, special controls on developmentwithin the area along the shoreline are necessary to aVOlCpermanent loss of valuable resources and the foreclosure ofmanagement options, and to insure that adequate public accessis provided to publlc-owned or used beaches, recreationareas, and natural reserves, by dedication or other means.

9-3 Title

These Rules and Regulations shall be known as the "Spec1alManagement Area Rules and Regulations of the County ofHawaii."

9-4 Deflnltions

For the purpose of these Rules and Regulat1ons, unless it isplainly evident from the content that a different meanlng is

-42-

, • 1

~ntended, certa~n words and phrases used here~n are def1nedas follows:

(1) "Agency" means any board, comm~SSlon, department, orofflcer of a county government or state governmentincludlng the Authority.

(2) "Applicant" means and includes any person who seekspermission or authorization which the Director maygrant under these Rules and Regulations.

(3) "Assessment" means an evaluation by the Department of aproposed use, activity, or operation to determ~newhether a Special Management Area Use Permit isrequired.

(4) "Authority" means the Plannlng Commlssion of the Countyof Hawaii.

(5) "Chief Engineer" means the Chief Engineer of theDepartment of Public Works of the County of Hawall.

(6) "County" means the County of Hawaii.

(7) "Crops" means agricultural produce or part(s) of plantsor trees cultlvated for commerclal or personal uselncluding but not limlted to the raising of livestock.

(8) ~Debris Line" means a line marking the landward Ilmltof debris deposits, resulting from wave uprush.

(9) "Department" means the County of Hawaii PlannlngDepartment.

(10) "Development" means any of the following uses,activities, or operations on land, in or under water,wlthin the Special Management Area:

A. "Development" includes the following:

(i) The placement or erection of any solidmaterial or any gaseous, liqUld, SOlld,or thermal waste;

(il) Grading, removing, dredging, mlning, orextraction of any materials;

(lil) Change 1n the density or intensity ofuse of land, includlng but not l~mltedto the divislon or subdivlslon of land;

-43-

, . ..

(lV) Change 1n the lntenslty of use of water,ecology related thereto, or of accessthereto; and

(v) Construct10n, reconstructlon, oralteration of the size of any structure.

B. "Development" does not 1nclude the followlnguses, activities or operations:

(i) Constructlon of a single-familyresidence that is not part of a largerdevelopment;

(li) Repair or maintenance of roads andhighways within existlng rlghts-of-way;

(iii) Routine maintenance dredging of eXistingstreams, channels, and drainage ways;

(iv) The repair and mai'ntenance of utilitylines, including but not limited towater, sewer, power, and telephone andminor appurtenant structures such as pa:mounted transformers and sewer pumpstations;

(v) Zoning variances, except for height,density, parking, and shoreline setback;

(vi) Repalr, maintenance, or lnterloralterations to existing structures orrelating to existing uses;

(vii) Demolltlon or removal of structures,except those structures located on anyhistorlc site as deslgnated ln nationalor state registers or those listed 1nthe Hlstoric Sites Element of theGeneral Plan;

(Vlli) The use of any land for the purpose ofcultivating, planting, growlng, andharvesting of plants, crops, trees, ancother agricultural, horticultural, orforestry products or animal husbandry,or aquaculture or mariculture of plantsor anlmals, or other agriculturalpurposes subject to review by theDepartment in accordance with Rule9.4(lO)C.;

(lX) The transfer of title of land;

-44-

.• . .(x) The creat~on or term~natlon of

easements, covenants, or other r~ghts instructures or land;

(x~) The subdivision of land ~nto lotsgreater than twenty acres in s~ze;

(xii) The amendment of the General Plan, StateLand Use Boundary amendments and changesof zone.

(x~~i) The subdiv1sion of a parcel of land lntofour or fewer parcels when no assoc1atecconstruction activities are proposed,provided that any such land which 15 50sUbdivided shall not thereafter qualifyfor this exception with respect to anysUbsequent subdivision of any of theresulting parcels;

(xiv) Installation of underground utilitylines and appurtenant abovegroundfixtures less than four feet in heightalong existing corridors;

(xv) Structural and non-structuralimprovements to existing single-fam~lyresidences including additional dwell~nsunit, where otherwise permissible; and

(xvi) Non-structural improvements to eX15tlngcommercial structures.

c. Any proposed use, activity, or operation l~stec1n paragraph B shall be deemed to be"Development" until the Director has determ~ned~t to be exempted from the definition of"development."

D. Whenever the Director finds that any use,activity, or operation as excluded inparagraph B is or may become part of a large~project, the cumulative impact of wh~ch mayhave a signif~cant adverse environmental orecological effect on the Special ManagementArea, that use, activity, or operation shall bedefined as "development" for the purpose ofthese Rules and Regulations.

(11) "Director" means the Planning Director or h~s

author~zed designee of the County Planning Department.

-45-

(12) "EIS" means an informational document prepared incompliance with Chapter 343, HRS, and the EnvironmentalQuality Commission's Rules and Regulations, and whichdiscloses the environmental effects of a proposedaction, effects of a proposed action on the economicand social welfare of the community and State, effectsof economic activities arising out of the proposedaction, measures proposed to minimize adverse effectsand alternatives to the action and their environmentaleffects.

(13) "Estuary" means that part of a river or stream or otherbody of water having unimpaired connection with theopen sea, where the sea water is measurably dilutedwith fresh water derived from land drainage.

(14) "Estuarine Sanctuary" means a research area which mayinclude any part or all of an estuary, adjoiningtransitional areas, and adjacent uplands, constitutin~

to the extent feasible a natural unit, set aside toprovide scientists and students the opportunity toexamine over a period of time the ecologicalrelationships within the area.

(15) "General Plan" means the adopted General Plan of theCounty, as reflected in County Ordinance No. 439, andany amendments thereto.

(16) "Owner" means all equitable and legal holders orlessees of real property. Lessees shall presentcertification of approval from the legal owner.

(17) "Person" means and includes any individual,organization, partnership, or corporation, includingany utility and any agency of government.

(18) "Petitioner" means and includes any person who seekspermission or authorization which the Authority maygrant under these Rules and Regulations.

(19) "Shoreline" means the upper reaches of the wash ofwaves, other than storm or tidal waves, usuallyevidenced by the edge of vegetation growth, or theupper limit of debris left by the wash of the waves.

(20) "Shoreline Survey" means the actual field location ofthe shoreline in accordance with the definition hereinalong with the existing property lines which shall belocated and platted by instrument surveys and theproperty corners or appropriate references thereofalong the shoreline be marked on the ground by aregistered land surveyor in the State of Hawaii. Suchsurvey maps developed by the registered land surveyor

-46-

shall bear the surveyor's signature and date of fieldsurvey and the confirming signature of the Chairman ofthe Board of Land and Natural Resources.

(21) "Single-Family Residence" means a detached bUildingdesigned for and/or used as the complete facility forcooking, sleeping and living area of a single familyonly and occupied by no more than one family. Singlefamily residences may include uses or structuresnormally considered accessory to the single familyfacilities provided that any such uses or structuresare situated on the same lot or building site and arein compliance with all requirements of any county orstate regulation, statute, or ordinance. A singlefamily shall include all persons living in a dwellingrelated by blood, marriage or by adoption or a groupcomprised of not more than five persons not related byblood, marriage or by adoption.

(22) "Special Management Area" means the land extendinginland from the shoreline as delineated on the mapsfiled with the Authority as of June 8, 1977, or asamended pursuant to Rule 9.19.

(23) "Special Management Area Emergency Permit" means anaction by the Director authorizing development in casesof emergency requiring immediate action to preventsubstantial harm to persons or property or to allow thereconstruction of structures damaged by natural hazardsto their original form, provided that such structureswere previously found to be in compliance withrequirements of the Federal Flood Insurance Program.

(24) "Special Management Area Minor Permit" means an actionby the Director authorizing development, the valuationof which is not in excess of $65,000 and which has nosignificant adverse environmental or ecological effect,taking into account potential cumulative effects.

(25) "Special Management Area Use Permit" means an action bythe Authority authorizing development the valuation ofwhich exceeds $65,000 or which may have a significantadverse environmental or ecological effect, taking intoaccount potential cumulative effects.

(26) "State Plan" means the adopted State Plan of the Stateof Hawaii as reflected by Chapter 225, HRS, and anyamendments thereto.

(27) "Structure" means and includes, but is not limited to,any building, road, pipe, flume, conduit, siphon,aqueduct, telephone line, and electrical powertransmission and distribution line.

-47-

(28) "Use" means any purpose for which a structure or atract of land is designed, arranged, intended,maintained or occupied or any activity, occupation,business, or operation carried on or intended to becarried on in any structure or on a tract of land.

(29) "Valuation" shall be determined by the Director andmeans the estimated cost to replace the structure, inkind, based on current replacement costs, or in thecase of other developments, as defined in paragraph(lO)A. above, the fair market value of the development,

(30) "Vegetation Growth" means any plant, tree, shrub,grass, or groups, clusters or patches of the same,naturally rooted and growing.

9-5 Special Management Area

Special Management Area of the County shall be as delineatedon such maps filed with the Authority as of June 8, 1977, oras may be amended pursuant to Rule 9.19, and shall be theofficial Special Management Area to be administered andenforced under these Rules and Regulations.

9-6 Objectives and Policies of Chapter 20SA, HRS

A. Objectives:

1. Provide coastal recreational opportunitiesaccessible to the public.

2. Protect, preserve, and where desirable, restorethose natural and man-made historic andpre-historic resources in the coastal zonemanagement area that are significant inHawaiian and American history and culture.

3. Protect, preserve, and where desirable, restoreor improve the quality of coastal scenic andopen space resources.

4. Protect valuable coastal ecosystems fromdisruption and minimize adverse impacts on al~coastal ecosystems.

5. Provide public or private facilities andimprovements important to the State's economyin suitable locations.

6. Reduce hazard to life and property fromtsunami, storm waves, stream flooding, erosion;and subsidence.

-48-

7. Improve the development review process,communication, and pUblic participation in themanagement of coastal resources and hazards.

B. Policies:

1. Recreational resources:

a. Improve coordination and funding ofcoastal recreation planning andmanagement; and

b. Provide adequate, accessible, anddiverse recreational opportunities inthe coastal zone management area by:

i. Protecting coastal resourcesuniquely suited for recreationactivities that cannot be providedin other areas;

ii. Requiring replacement of coastalresources having significantrecreation value, including butnot limited to surfing sites andsandy beaches, when such resourceswill be unavoidably damaged bydevelopment; or requiringreasonable monetary compensationto the State for recreation whenreplacement is not feasible ordesirable;

iii. Providing and managing adequatepublic access, consistent withconservation of natural resources,to and along shorelines withrecreational value:

iv. Providing an adequate supply ofshoreline parks and otherrecreational facilities suitablefor pUblic recreation:

v. Encouraging expanded publicrecreational use of County, State,and Federally owned or controlledshoreline lands and waters havingrecreational value;

vi. Adopting water quality standardsand regulating point and non-point

-49-

·,

sources of pollution to protectand where feasible, restore therecreational value of coastalwaters;

vii. Developing new shorelinerecreational opportunities, whereappropriate, such as artificiallagoons, artificial beaches,artificial reefs for surfing andfishing; and

viii. Encouraging reasonable dedicatior.of shoreline areas withrecreational value for public useas part of discretionary approvalsor permits by the land usecommission, board of land andnatural resources, county planningcommissions; and crediting suchdedication against therequirements of section 46-6.

2. Historic Resources:

a. Identify and analyze significantarchaeological resources;

b. Maximize information retention throughpreservation of remains and artifacts orsalvage operations; and

c. Support State goals for protection,restoration, interpretation and displayof historic resources.

3. Scenic and Open Space Resources:

a. Identify valued scenic resources in thecoastal zone management area;

b. Insure that new developments arecompatible with their visual environmentby designing and locating suchdevelopments to minimize the alterationof natural landforms and existing pUblicviews to and along the shoreline;

c. Preserve, maintain, and, wheredesirable, improve and restore shorelineopen space and scenic resources; and

-50-

,..

d. Encourage those developments which arenot coastal dependent to locate ininland areas.

4. Coastal Ecosystems:

a. Improve the technical basis for naturalresource management;

b. Preserve valuable coastal ecosystems ofsignificant biological or economicimportance;

c. Minimize disruption or degradation ofcoastal water ecosystems by effectiveregulation of stream diversions,channelization, and similar land andwater uses, recognizing competing waterneeds; and

d. Promote water quantity and qualityplanning and management practices whichreflect the tolerance of fresh water andmarine ecosystems and prohibit land andwater uses which violate State waterquality standards.

5. Economic Uses:

a. Concentrate in appropriate areas thelocation of coastal dependentdevelopment necessary to the State'seconomy;

b. Insure that coastal dependentdevelopment such as harbors and ports,visitor industry facilities, and energygenerating facilities are located,designed, and constructed to minimizeadverse social, visual, andenvironmental impacts in the coastalzone management area; and

c. Direct the location and expansion ofcoastal dependent developments to areaspresently"'designated and used for suchdevelopments and permit reasonablelong-term growth at such areas, andpermit coastal dependent developmentoutside of presently designated areaswhen:

-51-

i. Utilization of presently"designated locations is notfeasible;

ii. Adverse environmental effects areminimized; and

iii. Important to the State's economy.

6. Coastal Hazards:

a. Develop and communicate adequateinformation on storm wave, tsunami,flood, erosion, and subsidence hazard;

b. Control development in areas subject tostorm wave, tsunami, flood, erosion, andsubsidence hazard;

c. Ensure that developments comply withrequirements of the Federal FloodInsurance Program; and

d. Prevent coastal flooding from inlandprojects.

7. Managing Development:

a. Effectively utilize and implementexisting law to the maximum extentpossible in managing present and futurecoastal zone development;

b. Facilitate timely processing ofapplication for development permits andresolve overlapping or conflictingpermit requirements; and

c. Communicate the potential short andlong-term impacts of proposedsignificant coastal developments earlyin their life-cycle and in termsunderstandable to the general public tofacilitate pUblic participation in" theplanning and review process.

9-7 Special Management Area Guidelines

The following guidelines shall be used in the review ofdevelopments proposed in the Special Management Area.

-52-

1,••

A. The Authority and/or the Director, in reviewing anyproposed development, shall seek to minimize wherereasonable:

1. Dredging, filling or otherwise altering anybay, estuary, salt marsh, river mouth, slough,or lagoon.

2. Any development which would reduce the size ofany beach or other area usable for publicrecreation.

3. Any development which would reduce or imposerestrictions upon public access to tidal andsubmerged lands, beaches, portions of riversand streams within the Special Management Areaand the mean high tide line where there is nobeach.

4. Any development which would substantiallyinterfere with or detract from the line ofsight toward the sea from the State highwaynearest the coast or from other scenic areasidentified in the General Plan.

5. Any development which would adversely affectwater quality, existing areas of open waterfree of visible structures, existing andpotential fisheries and fishing grounds,wildlife habitats, estuarine sanctuaries,potential or existing agricultural uses of lane ..

B. No development shall be approved by the Authority orthe Director unless it is first found that:

1. The development will not have any significantadverse environmental or ecological effect,except as such adverse effect is minimized tothe extent practicable and clearly outweighedby public health, safety, or compelling publicinterest. Such adverse effect shall include,but not be limited to, the potential cumulativeimpact of individual developments, each one ofwhich taken in itself might not have asubstantial adverse effect and the eliminationof planning options;

2. The development is consistent with theobjectives and policies as provided by Chapter205A, HRS, and the Special Management Areaguidelines as contained herein; and

-53-

3. The development is consistent with the CountyGeneral Plan and zoning. Such a finding ofconsistency does not preclude concurrentprocessing when a general plan or zoningamendment may also be required.

c. All development permitted in the Special ManagementArea shall be subject to reasonable terms andconditions as necessary in order to ensure that:

1. Adequate access, by dedication or other means,to pUblicly owned or used beaches, recreationareas, and natural reserves is provided to theextent consistent with sound conservationprinciples;

2. Adequate and properly located public recreationareas and wildlife preserves are reserved;

3. Provisions are made for solid and liquid wastetreatment, disposition, and management whichwill minimize adverse effects upon SpecialManagement Area resources;

4. Alterations to existing land forms andvegetation, except crops, and construction ofstructures shall cause minimum adverse effectto water resources and scenic and recreationalamenities and minimum danger of floods,landslides, erosion, siltation, or failure inthe event of earthquake;

5. Adverse environmental or ecological impacts ar~minimized to the extent practicable; and

6. The proposed development is consistent with thegoals, policies, and standards of the GeneralPlan.

9-8 Permits Required for Development

A. No development shall be allowed within the SpecialManagement Area without obtaining a permit inaccordance with these Rules and Regulations.

B. No State or County .. Agency authorized to issue permitswithin the Special Management Area shall authorize anydevelopment unless approval is first received inaccordance with these Rules and Regulations.

-54-

• •

9-9 Authority of the Department in the Special Management Area

All development within the Special Management Area shall ~eadministered through the Department under these Rules andRegulations pursuant to the objectives and policies asprovided by Chapter 205A, HRS, and the Special ManagementArea guidelines as contained herein.

9-10 Assessment

A. The Department shall assess all uses, activities oroperations proposed in the Special Manag'ement Areaexcept in cases in which the applicant dete:mines thatthe proposed use, activity or operation will: a)exceed $65,000 in valuation; or b) have a significantadverse effect on the Special Management Area. In thiscase, the assessment procedures may be waived and theapplicant shall petition the Authority for a SpecialManagement Area Use Permit pursuant to Rule 9.11.

B. For proposed uses, activities or operations which aresubject to an assessment, the applicant shall beresponsible for filing the following with theDepartment:

1. A tax map description of the property on whichthe applicant proposes his project.

2. A plot plan of the property, drawn to scale,with all proposed and existing structures shownthereon and any other information necessary toa proper determination relative to the specificrequest.

3. A written description of the proposed projectand a statement of objectives.

4. An EIS if required under Chapter 343, HRS, orwhen required by the Director.

5. A written description of the anticipatedimpacts of the proposed uses, activities,operations on the Special Management Areaincluding but not limited to:

a. Description of environmental setting;

b. The relationship of the proposed act:onto land use plans, policies, and controlof the affected area;

c. The probable impact of the proposedaction on the environment;

-55-_______...,c •••__

• •

d. Any probable adverse environmentaleffects which cannot be avoided;

e. Alternatives to the proposed action;

f. Mitigating measures proposed to minimizeimpact: and

g. Any irreversible and irretrievablecommitment of resources.

6.

7.

8.

9.

A writ~en statement discussing the proposeduse, aptivity or operation in relation to theobject~ves and policies as provided byChapte~ 20SA, HRS, and the Special ManagementArea guidelines as contained herein.

A stat~ment of the valuation of the proposeduse, activity or operation.

A shoreline survey when the parcel abuts theshorel~ne, except as may be waived by theDirect~r when the proposed development isclearly and unmistakably located on a shorelin(parcel at a considerable distance from theshorel:ine.

Any otlher plans or information required by theDirector.

An ErS that has been declared adequate under theNational Environmental Policy Act (NEPA) or underChapter 343, HRS, may constitute a valid filing underthis section.

C. The Director shall assess the proposed use, activity oroperation upon the applicant's compliance withRule 9.10-8 based on the following criteria:

1. The valuation of the proposed use, activity oroperation.

2. The potential effects and significance of eachspecific circumstance of the use, activity oroperation,according to the significancecr~teria established by Rule 9.l0-H.

D. The Director, within twenty-one calendar days after thereceipt of all filing requirements or within a longerperiod as may be agreed to by the applicant, shallnotify the applicant in writing that he has determinedthe proposed use, activity or operation to:

-56-

1. Require a Special Management Area Minor Permit;or

2. Require a Special Management Area Use Permit.

If the Director fails to act within the twenty-onecalendar day period or within such longer period as mayhave been agreed to by the applicant, the proposed use,activity or operation shall be subject to review underthe Special Management Area Ose Permit procedures asestablished by Rule 9.11.

E. Where the Director finds the proposed use, activity oroperation is not in excess of $65,000 in valuation; anewill not have a significant adverse effect on theSpecial Management Area, he shall, after the review anerecommendation of the Chief Engineer, issue a SpecialManagement Area Minor Permit.

1. The issuance of such minor permit shall besubject to any reasonable terms or conditionsin accordance with the Special Management Areaguidelines as established by Rule 9.7.

2. The Director shall file a monthly report of hisactions in writing to the Authority. Suchreport shall include the reasons for any action.

F. The Director shall declare that a Special ManagementArea Use Permit is required if he finds that theproposed use, activity or operation has a valuation inexcess of $65,000 or may have a significant adverseeffect on the Special Management Area.

G. The Director shall declare the proposed use, activityor operation exempt from these Rules and Regulations ,~he finds the proposal is exempt under Rule 9.4(10)8.

H. Significance Criteria

In considering the significance of potentialenvironmental effects, the Director shall consider t~esum of those effects that adversely affect the qualityof the environment and shall evaluate the overall andcumulative effects of the action.

A "significant adverse effect" is determined by thespecific circumstances of the proposed use, activity oroperation. In determining whether a proposal may havea significant adverse effect on the environment, theDirector shall consider every phase of a proposedaction and expected consequences, either primary or

-57-

secondary, or the cumulative as well as the short orlong-term effect of the proposal. The Director shoulcbear in mind that in most instances, the followingfactors of a proposal, although not limited to same,may constitute a significant adverse effect on theenvironment when the proposed use, activity oroperation:

1. involves an irrevocable commitment to loss ordestruction of any natural or culturalresource, including but not limited to,historic sites and view planes outlined in theGeneral Plan or other adopted plans;

2. curtails the range of beneficial uses of theenvironment;

3. conflicts with the long-term environmentalpolicies or goals of the General Plan or theState Plan;

4. substantially affects the economic or socialwelfare and activities of the community, Count~or State;

5. involves substantial secondary impacts, such a5population changes and effects on pUblicfacilities;

6. in itself has no significant adverse effect bu~cumulatively has considerable adverse effectupon the environment or involves a commitmentfor larger actions;

7. substantially affects a rare, threatened, orendangered species of animal or plant, or itshabitat;

8. detrimentally affects air or water quality orambient noise levels;

9. affects an environmentally sensitive area, suc~as flood plain, tsunami zone, erosion-pronearea, geologically hazardous land, estuary,fresh water or coastal water; or

10. is contrary to the objectives and policies ofChapter 205A, HRS, and the Special ManagementArea Guidelines as contained herein.

-58-

• •

9-11 Special Management Area Use Permit Procedures

A. Petition

Any person who has received a determination that hisproposed use, activity or operation does not conform tothe requirements for a minor permit, or any person whohas determined on his own that his proposed use,activity or operation will exceed $65,000 in valuationor will have a significant adverse effect on theenvironment, shall petition the Authority through theDirector for a Special Management Area Use Permit.

The petitioner shall submit the following to theDirector:

1. The original and fifteen copies of thecompleted petition including the following:

a. A tax key description of the property onwhich the petitioner proposes hisproject;

b. A plot plan of the property, drawn toscale, with all existing and proposedstructures shown thereon and any otherinformation necessary to make a properdetermination of the impacts relative tcthe specific request;

c. A written description of the proposedproject and statement of the objectives;

d. An EIS if required under Chapter 343,HRS, or when required by the Director;

e. A written description of the anticipatecimpacts of the proposed development onthe Special Management Area, includingbut not limited to:

i. Description of environmentalsetting;

ii. The relationship of the proposedaction to land use plans,policies, and control of theaffected area;

iii. The probable impact of theproposed action on the environment;

-59-

iv.

v.

vi.I

vii.

Any probable adverse environmentaleffects which cannot be avoided;

Alternatives to the proposedaction;

Mitigating measures proposed tominimize impact; and

Any irreversible and irretrievablecommitment of resources.

f. A written statement discussing theproposed development in relationship tothe objectives and policies as providedby Chapter 20SA, HRS, and the SpecialManagement Area gUidelines as containedherein; .

g. A statement of the valuation of theproposed use, activity or operation;

h. A shoreline survey when the parcel abutsthe shoreline, except as may be waivedby the Director when the proposeddevelopment is clearly and unmistakablylocated on a shoreline parcel at aconsiderable distance from theshoreline; and

i. Any other plans or information requiredby the Director.

2. A plot plan of the property with theinformation required under paragraph l.b. aboveand furthermore which shall be a minimum oftwo (2) feet by three (3) feet or of similardimensions as may be agreed to by the Director.

3. In the case of a petitioner whose proposeddevelopment has been assessed, any informationas to the areas of critical concern delineatecby the Director.

4. In the case where a multi-unit residentialstructure, containing more than ten units isproposed, the petitioner shall submit a scalemodel of the proposed development and relatedimprovements.

5. Two hundred dollars filing fee to coverpublication and other administration costs.

-60-

, ....

B. Hearings

Opon receipt and acceptance of a properly filed anccompleted petition, the Department shall place thepetition on the agenda of the Authority for itsconsideration and action.

promptly after the Authority's fixing a date for thehearing, the petitioner shall mail a notice of thehearing setting forth the time, date, and place of thehearing to the owners of properties, lessees, andothers with a recorded possessory interest in propertywithin three hundred feet of the perimeter boundary ofthe affected property and to any other person or agencythat has made a written request to the Department foradvance notice of the hearing, not less than twentycalendar days prior to the date set for the hearing.Prior to the date of the hearing, the petitioner shallfile with the Authority, through the Director, anaffidavit or other similar proof of mailing of saidnotice. In addition to said notice and at least twentycalendar days prior to the date of the hearing, theAuthority shall publish notice of the time, date, andplace of the hearing once in a newspaper of generalcirculation in the State and once in a newspaper ofgeneral circulation in the County. Any failure to mailor to receive said written notice shall not invalidatethe proceedings, provided further that the proceedingsconform to the requirements of Chapter 91, HRS, asamended.

The hearing shall be conducted within a period ofninety calendar days from the receipt of the properlyfiled petition unless the ninety day period is waivedby the petitioner. At the hearing, all interestedpersons shall be afforded an opportunity to be heard.The proceedings shall comply with the requirements ofChapter 91, HRS, as amended.

Any such hearing shall, whenever possible, be heldjointly and concurrently with other applicable hearingsfor the proposed development.

The petitioner shall submit an additional two hundrecdollars publication fee for each hearing continued a~

.therequestDf the petitioner. The petitioner shallalso notify all owners of properties, lessees, andother recorded possessory interests in the propertywithin three hundred feet of the perimeter boundary ofthe affected property of the continued hearing.

-61-

C. Grounds for Approval of Special Management Area UsePermits:

The Authority may permit the proposed development onlyupon finding that:

1. The development will not have any significantadverse environmental or ecological effectexcept as such adverse effect is minimized tothe extent practicable and is clearlyoutweighed by public health, safety, orcompelling public interest;

2. The development is consistent with theobjectives and policies as provided byChapter 205A, HRS, and the Special ManagementArea guidelines as contained herein; and

3. The development is consistent with the Gene~alPlan, zoning and Subdivision Codes and otherapplicable ordinances.

Any development permitted shall be sUbject toreasonable terms and conditions set by the Authority inaccordance with the Special Management Area guidelinesas contained in Rule 9.7.

D. Decision and Order

1. In general: Within a reasonable time, not toexceed thirty (30) calendar days after theconclusion of the hearing, or within a periodnot less than ten (10) nor more than forty-fi~e(45) calendar days from the receipt of thehearing officer's report, or within a longerperiod as may be agreed to by the petitioner,the authority shall render a decision. Thedecision, whether to grant or to deny thepetition, shall require a majority vote of t~etotal membership of the Authority. In theevent the Authority fails to render a decisionto approve or deny within the prescribed timelimit, the request shall be considered denied.

A decision to defer action on the petitionshall require a majority vote of the members ofthe Authority present at the time of theaction. In the event the Authority fails t8render a decision to defer action within theprescribed time limit, the request shall beconsidered denied.

-62-

••

, J

2. Notice of Decision: Notice of the decisionshall be promptly given to the petitioner bydelivery thereof or by mailing the notice tothe petitioner's last known address.

3. Reconsideration: In the event a petition isdenied due to the Authority's failure to rendera decision within the period prescribed byparagraph D.l. above, the petitioner may,within ten (10) calendar days after receipt ofnotice of the denial, request reconsiderationof that decision. Upon such request, theDepartment shall place the petition on theagenda of the Authority for its reconsiderationat the next meeting. In the event theAuthority fails to render a decision by amajority vote of its total membership at thenext meeting, the petition shall be consideredas denied.

4. Refiling: Whenever a petition for a SpecialManagement Area Use Permit has been denied, nonew petition for the same or similardevelopment, covering all or any portion of theproperty involved in the original petition,shall be accepted by the Authority through theDirector for a period of two (2) years from theeffective date of the denial of the originalpetition; provided, however, that upon showingof a substantial change of circumstances theAuthority may permit the filing of a newpetition prior to the expiration of such a two(2) year period.

5. Judicial Review: Approval or denial of thepetition shall be final and appealable to theThird Circuit Court of the State of Hawaii inaccordance with Chapter 91, HRS, as .amended.

E. Amendments of Conditions

1. Petition: The petitioner may apply to theAuthority through the Director for an amendmentto the condition(s) imposed by the SpecialManagement Area Use Permit.

In the case of time extensions, the petitionershall set forth in writing: (a) the length oftime requested; and (b) the reasons for thetime extension.

In the case of additions, modifications, and/ordeletions of conditions, the petitioner shall

-63-

• •

9-12

file the request not less than sixty days pr:8rto the expiration date of the time conditions,setting forth: (a) the condition to beamended; and (b) the reasons therefor.

The petitioner shall also deposit with theDepartment the sum of two hundred dollars tocover pUblication and other administrativecosts, along with the original and ten copiesof the request.

2. Notice and Hearing: The hearing and noticeprocedures shall be the same as underRule 9.11-B, provided further that theAuthority shall conduct a hearing within aperiod of forty-five calendar days from thereceipt of a properly filed petition.

3. Decision and Order: The procedures shall bethe same as provided for under Rule 9.11-D.

Special Management Area Emergency Permits

A. A £pecial Management Area Emergency Permit may beissued for emergency repairs to existing publicutilities including but not limited to water, sewer,gas and electric transmission lines and highways, orsimilar emergencies which may otherwise not be exempcfrom the Special Management Area permit requirements.Upon finding that an emergency exists and requiresimmediate action, the Director shall issue a SpecialManagement Area Emergency Permit subject to reasonab:eterms and conditions including an expiration date.Such permits shall be filed with the Authority inwriting.

B. In cases of imminent substantial harm to public hea::~,safety, or welfare in the County, including declaredstates of emergency by the Governor, the Mayor maywaive the requirements of obtaining a permit pursuancto these Rules and Regulations.

9-13 Exemptions

These Rules and Regulations shall not apply to proposeddevelopments within the Special Management Area for whichfinal approval, or in the case of sUbdivisions, for whichpreliminary subdivision approval, was issued prior to theadoption of these Rules and Regulations, amendments theret:,or to the adoption of the Special Management Area Maps.

-64-

• • •

9-14

9-15

9-16

9-17

Duration of Permits

A. Any Special Management Area Use and/or Minor Permi~ ~otutilized within a two (2) year period from the date ofissuance unless otherwise conditioned by the terms ofthe permit or unless extended in accordance withRule 9.ll-E, without further action or prior notice onthe part of the Authority or the Director, shall bevoid.

B. Any Special Management Area Use and/or Minor Permitissued prior to the effective date of these Rules andRegulations and not utilized within a two (2) yearperiod from the effective date of these Rules andRegulations, unless otherwise conditioned by the terms

. of the permit or unless extended in accordance withRule 9.11-E, without further action or prior notice onthe part of the Authority or the Director, shall bevoid.

Penalties

Any person who violates any provision of these Rules andRegulations may be subject to a civil fine not to exceed$10,000. In addition to any other penalties, any person whoperforms any development in violation of these Rules andRegulations may be subject to a civil fine not to exceed $500a day for each day in which such violation persists.

Injunction

Any person violating any provision of these Rules andRegulations may be enjoined by the circuit court of the Stateby mandatory or restraining order necessary or proper toeffectuate the purposes of these Rules and Regulations in asuit brought by the County.

Hearing Officer

A. The Authority may designate and authorize a hearingofficer to conduct a hearing for the purpose of takingtestimony and to report his findings of facts andconclusions of law with his recommendation to theAuthority on° proceedings under the jurisdiction of theAuthority as provided by these RUles and Regulations.

B. The notice and hearing requirements for hearingsconducted by a hearing officer shall be same asprovided under Rule 9.ll-B, 9.l8-B, 9.l9-A(2), or9.l9-B(2), as may be applicable.

-65-

, ,

< • ...

C. Post hearing procedures for hearings conducted by ahearing officer:

1. Recommendation of hearing officer: Uponcompletion of taking of the evidence thehearing officer shall prepare a report settingforth findings of fact, conclusions of law, andthe reasons therefor, and a recommended orderand submit the report of the case to theAuthority.

2. contents of the record: The record shallinclude the petition, transcripts of thehearing, stipulations, documentary evidence,proposed findings, or other documents submittecby the persons involved, objections to conductof the hearing and the report of the hearingofficer and all other matters placed intoevidence.

3. Within forty-five calendar days after theconclusion of the hearing, the hearing officershall complete the report and submit it to theAuthority and to all persons involved in theproceedings.

D. Exceptions to the Hearing Officer's Report andRecommendation:

1. Within ten working days after receipt of thereport and recommendation by the hearingofficer, a person involved in the proceedingsmay submit to the Authority his exceptions tothe report and his reasons in support thereof.

2. The exception shall:

a. Set forth specifically the procedure,fact, law or policy to which exceptionsare taken:

b. Identify the part of the hearingofficer's report and recommended orderto which objections are made; and

c. State sp-ecifically the reasons forexceptions to the ruling, finding,conclusion, or recommendation.

E. Testimony Before the Authority:

1. If a person involved in the proceedings desiresto testify before the Authority, a written

-66-

t •

9-18

request with reasons therefor shall accompa~jthe exceptions and the Authority may grant suc~request.

2. The Authority may on its own motion re-open :hehearing to allow the taking of additionaltestimony and further evidence.

F. Authority Action:

1. In the event no statement of exception isfiled, the Authority may proceed to reverse,modify or adopt the recommendation of thehearing officer.

2. Opon the submittal of exceptions and the takingof further evidence, if any, the Authorityshall render its decision pursuant to Rule9.11-D.

Petition for the Adoption, Amendment or Repeal of Rule 9Special Management Area Rules and Regulations of the Count vof Hawaii

A. Petition

Any person may petition the Authority through theDirector requesting the adoption, amendment or repea:of any provision of these Rules and Regulations.

The petitioner shall be responsible for submitting ~hefollowing to the Director:

1. The original and fifteen copies of thecompleted petition including:

a. A statement of the nature of thepetitioner's interest.

b. A draft of the substance of the proposedrule or amendment or a designation ofthe provisions sought to be repealed.

c. An explicit statement of the reasons :nsupport of the proposed rule, amendmentor repeal. Said reasons shall include adiscussion of the relationship of theproposed change with Chapter 205A, ~RS,Relating to Coastal Zone Management, andother applicable State and CountyOrdinances or regulations including :~e

General Plan.

-67-

« •

, I

9-19

2. One hundred dollar filing fee to coverpublication and other administrative costs.

B. Notice and Hearing

The notice and hearing procedures shall be the same asstipulated under Rule 9.11-B, provided further that the'Authority shall conduct a minimum of two publichearings within a period of ninety calendar days fromthe receipt of a properly filed petition.

C. Decision and Order

The procedures shall be the same as under Rule 9.11-D.

Amendment of Special Management Area (SMA) Maps

A. Amendments initiated by the Director:

1. Initiation:

a. The Director may at any time initiateamendments to the Special ManagementArea Boundaries.

b. The Authority, by a two-thirds (2/3)vote of its total membership, may direc~the Director to initiate amendments tothe Special Management Area boundaries.

c. The Director shall give notice of hisintent to amend the Special ManagementArea boundaries to the Authority, thegeneral pUblic and the State of Hawai:Department of Planning and EconomicDevelopment, stating the initiation dateand estimated completion date ofreview. The Director, upon completionof his review, shall submit the proposesamendments to the Authority.

2. Notice and Hearing:

The notice and hearing procedures shall be ~hesame as stipulated under Rule 9.ll-B, providedfurther that the Authority shall conduct ahearing within a period of sixty calendar daysfrom the submittal of the proposed amendmentsby the Director.

3. Grounds for Approval of Special Management AreaBoundary Amendments:

-68-

The Authority may amend the Special Manage~entArea boundaries only upon finding that theamendments will further the objectives anepolicies as provided by Chapter 205A, HRS, andwill be consistent with the General Plan andother applicable ordinances.

4. Decision and Order:

The procedures shall be the same as under Rule9.II-D.

B. Special Management Area Boundary Amendments Initiaceeby the General Public:

1. Petition:

Any person may petition the Authority throughthe Director requesting the amendment of theSpecial Management Area boundaries.

The petitioner shall submit the following tothe Department:

a. The original and fifteen copies of thecompleted petition including thefollowing:

i. A statement of the nature of thepetitioner's interest.

ii. A description of the propertiesinvolved in sufficient detail todetermine the precise location.

iii. An explicit statement of thereasons in support of the requestincluding a discussion of how theamendment will further the SpecialManagement Area objectives andpolicies as well as be consistentwith the General Plan and otherapplicable ordinances.

iv. A statement discussing theproposed use of the parcel and anyother information necessary torender a proper decision relatingto the specific request.

b. Two hundred dollars filing fee to coverpublication and other administrativecosts.

-69-

• 'J

10-1

10-2

2. Notice and Hearing

The notice and hearing procedures shall be thesame as stipulated under Rule 9.1l-B.

3. Grounds for Approval of Special Management AreaBoundary Amendments:

The Grounds for approval of Special ManagementArea boundary amendments shall be the same asprovided for in Rule 9.l9-A(3).

4. Decision and Order:

The procedu~es shall be the same as providedfor in Rule 9.ll-D.

RULE 10. APPEALS

Authority

This rule governs appeal procedures before the PlanningCommission on actions of the Director relating to zoningamendment and variance applications as required by Chapter 25(Zoning Code), Hawaii County Code.

Definitions

As used in this rule, except as otherwise required by context:

(1) "Agency" means any agency, board, commission,department or officers of the county or stategovernment, including the Board.

(2} "Appellant" means any agency or person who appeals tothe Commission for review of a decision upon which theCommission has jurisdiction to take action.

(3) "Chairperson" means the chairperson of the Commissionof the County of Hawaii.

(4) "Commission" means the Planning Commission of theCounty of Hawaii.

(5) "Director" means the Director of the PlanningDepartment of the County of Hawaii.

(6) "Interested party" means a person who has a propertyinterest in an affected property; who owns propertywithin three hundred feet of the affected property; orwho can otherwise demonstrate to the satisfaction of

-70-

· .c.

10-3

10-4

the Commission that such person will be so directly andimmediately affected by a proposed variance granted bythe Director that its interest in the action is clearlydistinguishable from that of the general public.

(7) "Person" means any individual, partnership, firm,association, trust, estate, corporation, or other legalentity, whether or not incorporated, includinggovernmental agencies.

Standing to APpeal

Where permitted by law, any person aggrieved by the decisionof the Director of a zoning amendment or variance applicationmay file an appeal with the Planning Commission.

Procedures for Zoning Amendment APpeals

An appeal from the decision of the Director shall be filedwithin ten working days after receipt of the decision.

(a) Petition and Content. The original and ten copies ofthe petition for an appeal of the Director's decisionshall be filed with the following:

(1) A non-refundable filing and processing fee ofone hundred dollars.

(2) Name, address, and telephone number of theappellant and/or appellant's representative, ifapplicable.

(3) Description of the property involved in theappeal, including the Tax Map Key of theproperty.

(4) Appellant's interest in the property.

(5) A statement of the nature of the appeal and therelief requested. The statement shall specifyhow the decision appealed from:

(A) Violates the law; or

(B) Is clearly erroneous in view of allinformation and issues considered at thetime of the decision; or

(C) Was arbitrary and capricious orcharacterized by an abuse of discretionor clearly unwarranted exercise ofdiscretion.

-71-

••.' ,

(b) Hearings. Upon proper filing of a petition for anappeal, the Commission shall, within not more thanninety days, conduct a hearing, unless that period iswaived by the appellant. The Commission, through thePlanning Department, shall publish a notice of thepUblic hearing and its purpose in a newspaper ofgeneral circulation in the County at least ten calendardays prior to the date of the hearing. The Commissionshall also give additional notice of the appeal bymailing, at least ten calendar days prior to the dateof the hearing, to the owners of all properties withinthree hundred feet of the affected property. However,any failure to mail or to receive the written noticeshall not invalidate any proceeding for an appeal.

The appellant shall submit an additional one hundreddollars publication fee for each hearing continued atthe request of the appellant. The appellant shall alsonotify the owners of all properties within threehundred feet of the affected property of the continuedhearing.

(c) View of Property. Where applicable, the Commission mayview the land or structure(s) involved in the appeal a~a portion of the hearing.

(d) Scope of Review. The scope of review of an appealshall generally be limited to information on the recordat the time of the Director's decision, provided thatany relevant public testimony may be taken and providedfurther that, if the appellant seeks to provide new,relevant information, then the Commission may eitherremand the application to the Director forre-evaluation or, upon finding good cause, hear andconsider the new information.

(e) Action.

(1) within sixty days after the conclusion of thehearing, the Commission shall either affirm orreverse the Director's decision or, whereapplicable, remand the application to theDirector.

(2) If the Commission reverses the Director'sdecision, the Commission shall forward thezoning amendment together with a report of itsfindings and appropriate conditions to theCounty Council. A decision appealed from maybe reversed only if the Commission finds thatthe decision would result in a more appropriateland use pattern that furthers the public

-72-

f.

< < I

10-5

necessity, convenience and the general welfar~;and that the decision appealed from is:

(A) In violation of the law; or

(B) Clearly erroneous in view of allinformation and issues considered at t~e

time of the decision; or

(C) Arbitrary and capricious orcharacterized by an abuse of discretioi.or clearly unwarranted exercise ofdiscretion.

(3) If the Commission affirms the Director'sdecision, the appellant may appeal theCommission's decision to the Board of Appeals.

(4) If the Commission fails to render a decision :0affirm or reverse the Director's action withii.the prescribed period, the Director's actionshall be considered as having been affirmed.

Procedures for Variance Appeals

An appeal from the decision of the Director shall be filedwithin thirty working days after receipt of the decision.

(a) Petition and Content. The original and ten copies ofthe p~titionfor an appeal of the Director's decisionshall be filed with the Commission and shall includethe following:

(1) A non-refundable filing and processing fee ofone hundred dollars.

(2) Name, address, and telephone number of theappellant and/or appellant's representative, -­applicable.

(3) Description of the property involved in theappeal, including the tax map key of theproperty.

(4) Appellant's interest in the property.

(5) A statement of the nature of the appeal and t~e

relief requested. The statement shall specifyhow the decision appealed from:

(A) Violates the law; or

-73-

f •

.' t>

..(B) Is clearly erroneous in view of all

information and issues considered at t~_time of the decision; or

(C) Was arbitrary and capricious orcharacterized by an abuse of discretio~or clearly unwarranted exercise ofdiscretion.

(b) Hearings. Upon proper filing of a petition for anappeal, the Commission shall, within not more thanninety days, conduct a hearing, unless that period iswaived by the appellant. Notice of the pUblic hearingand its purpose shall be published in a newspaper ofgeneral circulation in the County at least ten calenda y

days prior to the date of the hearing. In addition al,(':pursuant to the same notice period, the Commissionshall provide written notice to persons who had timelyobjections before the Director's action. Promptlyafter the Commission's fixing a date for the hearing,but not less than ten days prior to the date of thehearing, the appellant shall mail a notice of thehearing to all property owners within three hundredfeet of the affected property. Prior to the date ofthe hearing, the appellant shall file with theCommission proof of service or of good faith effortsserve notice of the hearing on the designated propertyowners. Such proof may consist of certified mailreceipts, affidavits, or the like. The appellant sha:_submit an additional one hundred dollars publicationfee for each hearing continued at the request of theappellant. The appellant shall also notify persons wr-c,had timely objections before the Director's action ofthe continued hearing.

(c) View of Property. Where applicable, the Commission mayview the land or structure(s) involved in the appeal asa portion of the hearing.

(d) Scope of Review. The scope of review of an appealshall generally be limited to information on the reco~~at the time of the Director's decision, provided thatany relevant pUblic testimony may be taken and providesfurther that, if the appellant seeks to provide new,relevant information, then the Commission may eitherremand the application to the Director forre-evaluation or, upon finding good cause, hear andconsider the new information.

(e) Action.

(1) Within sixty days after the conclusion of thehearing, the Commission shall either affirm or

-74-

J

,.reverse the Director's decision or, whereapplicable, remand the application to theDirector.

(2) All actions of the Commission shall contain astatement of legal and factual bases for itsdecision in accordance with the followingcriteria:

(A) There are special or unusualcircumstances applying to the subjectreal property which exist either to adegree which deprives the owner orapplicant of substantial property righ~3

that would otherwise be available or toa degree which obviously interferes wit~

the best use or manner of development ofthat property; and

(8) There are no other reasonablealternatives that would resolve thedifficulty; and

(C) The variance shall be consistent withthe general purpose of the district, th(intent and purpose of this chapter, andthe County General Plan and will not bematerially detrimental to the publicwelfare or cause substantial, adverseimpact to an area's character or toadjoining properties.

(3) A decision appealed from may be modified orreversed only if the Commission finds that thedecision is:

(A) In violation of the law; or

(8) Clearly erroneous in view of allinformation and issues considered at thetime of the decision; or

(C) Arbitrary and capricious orcharacterized by an abuse of discretionor clearly unwarranted exercise ofdiscretion.

(4) If the Commission fails to render a decision toaffirm, modify or reverse the Director's actionwithin the prescribed period, the Director'saction shall be considered"as having beenaffirmed.

-75-

..... ) .

10-6

(5) If the Commission affirms the Director'sdecision, the appellant may appeal the decisi:to the Board of Appeals.

Review of Director's Action on Variance Applications(Non-applicant)

If the Director grants a variance over the timely writtenobjection submitted by an interested party, then that partymay request the Commission's review of the Director's actio~<

(a) Petition and Content. The interested party shallsubmit to the Commission the original and ten copies cfthe request within ten working days after notice of t~~Director's decision stating:

(1) Name, address, and telephone number of theinterested party;

(2) The variance application which is beingquestioned;

(3) Interested party's interest in the property; a p

(

(4) A statement of the grounds for the request fOi

review by the Commission.

(b) Procedure for Review.

(1) The Commission shall consider a request forreview of the Director's action, at which timethe petitioner who applied for the variance a~rthe person who requested such review shall hav~an opportunity to be heard.

(2) Within forty-five days after the receipt of arequest for review, the Commission shalldetermine either that the Director granted thevariance properly or that sufficient causeexists for a public hearing on the matter.

(3) If the Commission fails to make suchdetermination within the prescribed time, theDirector's action shall be considered as havi~gbeen affirmed.

(c) Notice of Hearing.

(1) If the Commission determines that a pUblichearing is necessary, it shall promptlyschedule the public hearing at which time theinterested party and members of the general

-76-

" ,.

11-1

11-2

public shall have the opportunity to be heardon the application.

(2) Notice of the public hearing and its purposesshall be provided by the Commission, throughthe Planning Department, to owners of interestsin property within three hundred feet of theperimeter of the sUbject property by mailpostmarked at least ten calendar days prior tothe date of the hearing.

(3) The Commission's proceedings and action shallnot be void should such an owner of a propertyinterest fail to receive actual notice of thepublic hearing.

(4) Notice of the public hearing and its purposesshall be published in a newspaper of generalcirculation in the County at least ten daysprior to the date of the public hearing.

(d) Actions on Review.

(1) Within sixty days of its decision to hold apublic hearing on the matter, or within alonger period as may be agreed to by theinterested party, the Commission shall deny theapplication or approve it subject toconditions, stating the factual findingssupporting the variance.

(2) If the Commission fails to render a decisionwithin the prescribed time, the Director'saction shall be considered as having beenaffirmed.

RULE 11. ZONING AMENDMENTS

Authority

This rule governs zoning amendment procedures before thePlanning Commission as required by Chapter 25 (Zoning Code),Hawaii County Code.

Definitions

As used in this rule, except as otherwise recognized bycontext:

(1) "Council" means the County Council of the County ofHawaii.

-77-

11-3

(2) "Commission" means the Planning Commission of theCounty of Hawaii.

(3) "Director" means the Director of the PlanningDepartment of the County of Hawaii.

(4) "Zoning Amendments" means changes to the boundaries ofthe zoning districts or changes to any other provisionof Chapter 25 (Zoning Cod~), Hawaii County Code.

Procedures for Processing Zoning Amendments

(a) Public Hearing.

( 1 ) Upon receipt of a proposal for aamendment from the Director, theshall conduct a public hearing.shall be eonducted within sixtydate of receipt of the proposalDirector.

zoningCommissionSuch hearing

days from thefrom the

(2) At least ten days prior to the public hearing,the Commission shall give notice of theproposed amendment by publishing it at leastonce in a newspape~ of general circulation inthe County.

(3) In cases of property owner-initiatedamendments, promptly after the Commission'sfixing a date for the hearing but not less thanten days prior to the date of the hearing, theapplicant shall mail a notice of the hearing te,all property owners within three hundred feetof the affected property. Prior to the date ofthe hearing, the applicant shall file with theCommission proof of service or of good faithefforts to serve notice of the application onthe designated property owners. Such proof ~ayconsist of certified mail receipts, affidavits,or the like.

(A) The applicant shall submit an additiona:one hundred dollars publication fee :oreach hearing continued at the request ofthe applicant. The applicant shall alsonotify all property owners within threehundred feet of the affected property ofthe continued hearing.

(b) Action.

Within sixty days after the conclusion of the hearingor within such longer period as may be agreed to by t~c

-78-