Kauai County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE 3
General Administrative Regulations
§ 8-3.1 Zoning Permits.
(a)
When Required. No person shall undertake any construction or development or carry on any activity or use, for which a Zoning Permit is required by this Chapter, or obtain a Building Permit for construction, development, activity or use regulated by this Chapter, without first obtaining the required Zoning Permit.
(b)
Applications. Applicants may file a written application with the Planning Department for a zoning permit of the required type on a form prescribed by the Planning Department. The application shall contain or be accompanied by:
(c)
Class I Zoning Permits.
(1)
The filing and processing fee is $30.
(2)
The Planning Director or designee shall check the application to determine whether the construction, development, activity, or use conforms to the standards established by this Chapter and may require additional information if necessary to make the determination.
(3)
A Class I Zoning Permit shall be issued with or without conditions or denied by the Planning Director or by any member of the Planning Department to whom the Planning Director has delegated authority.
(4)
If the Planning Director or designee fails to take action on a completed application within 30 days of its filing, unless the applicant assents to a delay, the application shall be deemed approved.
(5)
An applicant who is denied a Class I Zoning Permit or who disagrees with the conditions that have been imposed on its issuance may appeal the decision to the Planning Commission in accordance with Subsection (g).
(d)
Class II Zoning Permits.
(1)
The filing and processing fee is $60.
(2)
The Planning Director or designee shall check the application to determine whether the construction, development, activity, use or plot plan conforms to the standards established by this Chapter and may:
(3)
A Class II Zoning Permit shall be issued with or without conditions or denied by the Planning Director.
(4)
If the Planning Director or designee fail to take action on a completed application within 30 days of its filing, unless the applicant assents to a delay, the application shall be deemed approved.
(5)
An applicant who is denied a Class II Zoning Permit or who disagrees with the conditions that have been imposed on its issuance may appeal the decision to the Planning Commission in accordance with Subsection (g).
(e)
Class III Zoning Permits.
(1)
The filing and processing fee is $200.
(2)
The Planning Director or designee shall check the application to determine whether the construction, development, activity, use, or plot plan conforms to the standards established by this Chapter and:
(3)
Within 45 days after the filing of a completed application, the Planning Director shall prepare a report that indicates the reasons supporting the issuance, issuance with conditions, or denial of the application. The reports shall be sent to the applicant, to the Planning Commission, to any persons who have duly requested the report, and shall be made public.
(4)
The Planning Director may, within 45 days after the filing of a completed application, issue a provisional Class III Zoning Permit with or without conditions, or deny the permit, or determine that the application for the permit should be decided in the first instance by the Planning Commission.
(5)
If the Planning Director issues a provisional Class III Zoning Permit, with or without conditions, he or she shall notify the members of the Planning Commission, and any persons who have duly requested such notice, of that action. The provisional permit shall become final unless within 30 days at least three members of the Planning Commission request review by the Planning Commission. In that case, the Planning Commission shall determine whether or not to issue the permit.
(6)
If the Planning Director refers the application to the Planning Commission or if three members request Planning Commission review of a provisionally issued permit, the Planning Commission within 60 days of the reference or request for review shall issue the permit with or without conditions or shall deny the permit.
(7)
If the Planning Director or the Planning Commission fails to take action within the time limits prescribed in this Article, unless the applicant assents to a delay, the application shall be deemed approved.
(8)
An applicant who is denied a Class III Zoning Permit by the Planning Director, or who disagrees with the conditions that have been imposed on its issuance by the Planning Director may appeal the decision to the Planning Commission in accordance with Subsection (g).
(f)
Class IV Zoning Permits.
(1)
The filing and processing fee is $800, except where a Class IV Zoning Permit is only required because a Variance is necessary, in which case the fee is $50.
(2)
The Planning Director or designee shall check the application to determine whether the construction, development, activity, use or plot plan conforms to the standards established by this Chapter and:
(A)
Shall refer the application to the Department of Public Works, the Department of Water, and the County Transportation Agency, and may refer the application to any other County or State Department for comment or approval; and
(B)
May require additional information if necessary to make a determination.
(3)
Within 60 days after the filing of a completed application, the Planning Director shall prepare a report that indicates the reasons supporting the issuance, issuance with conditions, or denial of the application. The report shall be sent to the applicant, to the Planning Commission, to any persons who have duly requested the report, and shall be made public.
(4)
Within 60 days after the receipt of the Planning Director's report or within such longer period as may be agreed to by the applicant, the Planning Commission shall hold at least one public hearing on the application and issue the permit with or without conditions or deny the permit. Notice of the proposed public hearing shall be given to the applicant and shall also be published at least once in a newspaper of general circulation in the County, at least 20 days prior to the date of the hearing.
In proceedings involving Use Permits within the Residential, Agriculture and Open Districts and for all project developments pursuant to Sec. 8-3.2, and for variances involving height limitations pursuant to Sec. 8-3.3, the following procedures shall apply in addition to the above paragraphs:
The applicant, at least 12 days prior to the scheduled date of such hearing, shall either hand deliver written notice to persons listed on the current Notice of Property Assessment Card File located at the Real Property Division of the Department of Finance of the County of Kaua'i, or mail, by certified mail, written notice to the addresses shown on such Notice of Property Assessment Cards for at least 85% of all parcels of real property within 300 feet from the nearest point of the premises involved in the application to the nearest point of the affected property. For the purposes of this paragraph, notice to one co-owner shall be sufficient notice to all other co-owners of the same parcel of real property. For each condominium project within the affected area, one notice of the hearing shall be sent addressed "To the Residents, Care of the Manager," followed by the name and address of the condominium involved. The notice shall include the following information and shall be in a form approved by the Planning Director:
(A)
Date;
(B)
Time;
(C)
Location;
(D)
Purpose; and
(E)
Description or sketch of property involved.
At least seven days prior to the hearing date, the applicant shall file with the Planning Commission an affidavit as to the mailing or delivery of such notice and a list of persons to which such notices were sent. |
Should the applicant fail to submit the affidavit within the time required, the public hearing shall be postponed. In this case, the Planning Commission shall reschedule another hearing within 60 days of the postponed hearing. The applicant shall be required to pay for the republication costs and shall follow the same notice requirements of this paragraph in the renotification of affected persons. |
(5)
If the Planning Director or the Planning Commission fails to take action within the time limits prescribed in this Article, unless the applicant assents to a delay, the application shall be deemed approved.
(g)
Appeal. An applicant who seeks to appeal from an adverse decision of the Planning Director or designee shall file a notice of appeal with the Planning Director and the Planning Commission within 30 days after the adverse decision. If the appeal is from the denial of a Class III Zoning Permit, the Planning Director shall make the notice public and shall notify any persons who have duly requested notice of appeals. The Planning Commission shall consider the appeal within 60 days of the filing of the notice at a public session and shall render its decision within that period.
(h)
After-the-Fact Permits. In addition to the Zoning Permit filing and processing fee(s), an application for a Zoning Permit for a structure partially or fully constructed without the required approvals and/or a use that has commenced prior to the required approvals shall have an additional filing, inspection, and processing fee(s) which is double that of the original filing and processing fee(s) or $500, whichever is greater.
(i)
Fee Exemptions.
(1)
A Zoning Permit application for a housing project or portions of housing projects that are developed to be affordable to low-income households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from the filing and processing fee required in Subsection (b)(1), provided such projects conform to applicable provisions of the County's affordable housing program.
(2)
A Zoning Permit application for a housing project or portions of housing projects that are developed to be affordable to gap-group households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from 1/2 of the filing and processing fee required in Subsection (b)(1), provided such projects conform to applicable provisions of the County's affordable housing program.
(3)
No exemptions shall be afforded for such housing projects from any fees or costs arising from compliance with Subsection (f)(4) or (h) of this Section.
(4)
A Zoning Permit application for an additional rental unit certified by the Housing Agency as affordable housing shall be exempt from the filing and processing fee required in Subsection (c)(1), provided such project conforms to applicable provisions of the County's affordable housing program.
(Ord. No. 935, November 14, 2012; Ord. No. 950, July 17, 2013; Ord. No. 1059, November 12, 2019; Ord. No. 1067, February 3, 2020; Ord. No. 1080, October 9, 2020)
§ 8-3.2 Use Permits.
(a)
Purpose. The purpose of the Use Permit procedure is to assure the proper integration into the community of uses which may be suitable only in specific locations in a district, or only under certain conditions, or only if the uses are designed, arranged or conducted in a particular manner, and to prohibit such uses if the proper integration cannot be assured.
(b)
When Required. No person shall undertake any construction or development, or carry on any activity or use for which a Use Permit is required by this Chapter, or obtain a building permit for construction, development, activity or use for which a Use Permit is required by this Chapter, without first obtaining a Use Permit.
(c)
Application. An application for a Use Permit may be filed by any person authorized to file an application for a Zoning Permit under Sec. 8-3.1(b). The application, whenever feasible, shall be filed together with the application for the required zoning permit, and a single application shall be used for both permits in those cases. The application shall contain the information required by Sec. 8-3.1(b) and other information justifying the issuance of the Use Permit.
(d)
Fees. A non-refundable fee of $300 shall accompany the application for the Use Permit, except that filing and processing fees shall be exempted as follows:
(1)
A Use Permit application for a housing project or portions of housing projects that are developed to be affordable to low-income households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from the filing and processing fee required in Subsection (d), provided such projects conform to applicable provisions of the County's affordable housing program.
(2)
A Use Permit application for a housing project or portions of housing projects that are developed to be affordable to gap-group households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from 1/2 of the filing and processing fee required in Subsection (d), provided such projects conform to applicable provisions of the County's affordable housing program.
(e)
Standards.
(1)
A Use Permit may be granted only if the Planning Commission finds that the establishment, maintenance, or operation of the construction, development, activity or use in the particular case is a compatible use and is not detrimental to health, safety, peace, morals, comfort and the general welfare of persons residing or working in the neighborhood of the proposed use, or detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the community, and will not cause any substantial harmful environmental consequences on the land of the applicant or on other lands or waters, and will not be inconsistent with the intent of this Chapter and the General Plan.
(2)
The Planning Commission may impose conditions on the permit involving any of the following matters: location, amount and type and time of construction, type of use, its maintenance and operation, type and amount of traffic, off-street parking, condition and width of adjoining roads, access, nuisance values, appearance of the building, landscaping, yards, open areas and other matters deemed necessary by the Planning Commission.
(f)
Procedure.
(1)
The procedures established in Sec. 8-3.1(e) for a Class III Zoning Permit shall be followed except:
(A)
All Use Permits for development or use in a Residential District, and all Use Permits for a project development, shall require a public hearing in accordance with the procedure specified for Class IV Zoning Permits.
(2)
Upon findings of the Commission that a Use Permit may be granted consistent with the requirements of this Article, the permit shall be issued to the applicant on such terms and conditions and such a period of time, as the facts may warrant.
(3)
Use Permits may be revoked by the Commission after due hearing if such action shall be necessary to effectuate the purpose of this Chapter.
(g)
Application Denials and Appeal. When a Use Permit application is denied by the Planning Director and no appeal is taken, or is denied by the Planning Commission, an application for a Use Permit involving the same or substantially similar construction, development, activity or use may not be filed sooner than six months following the denial.
(Ord. No. 935, November 14, 2012; Ord. No. 950, July 17, 2013)
§ 8-3.3 Variance.
(a)
Authority. The Planning Commission may grant Variances from the provisions of this Chapter only in particular cases as set forth in this Article.
(b)
Standards. Variances from the terms of this Chapter shall be granted only if it is found that because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the regulations deprives the property of privileges enjoyed by other property in the vicinity and within the same District, and the applicant shows that he or she cannot make a reasonable use of the property if the regulations are applied. Where these conditions are found, the Variance permitted shall be the minimum departure from existing regulations necessary to avoid the deprivation of privileges enjoyed by other property and to facilitate a reasonable use, and which will not create significant probabilities of harm to property and improvements in the neighborhood or of substantial harmful environmental consequences. Financial hardship to the applicant is not a permissible basis for the granting of a Variance. In no case may a Variance be granted that will provide the applicant with any special privileges not enjoyed by other properties in the vicinity. The Planning Commission shall indicate the particular evidences that support the granting of the Variance.
(c)
Application. An application for a Variance may be filed by any person authorized to file an application for a Zoning Permit under Sec. 8-3.1(b). The application, wherever feasible, shall be filed together with the application for the required Zoning Permit and a single application shall be used for both permits in those cases. The application shall contain the information required pursuant to Sec. 8-3.1(b) and other information justifying the issuance of the Variance.
(d)
Fees. A non-refundable fee of $300 shall accompany the application for the Variance, except that filing and processing fees shall be exempted as follows:
(1)
A Variance Permit application for a housing project or portions of housing projects that are developed to be affordable to low-income households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from the filing and processing fee required in Subsection (d), provided such projects conform to applicable provisions of the County's affordable housing program.
(2)
A Variance Permit application for a housing project or portions of housing projects that are developed to be affordable to gap-group households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from 1/2 of the filing and processing fee required in Subsection (d), provided such projects conform to applicable provisions of the County's affordable housing program.
(e)
Procedure.
(1)
The procedure established in Sec. 8-3.1(f) for a Class IV Zoning Permit shall be followed.
(2)
Upon findings of the Planning Commission that a Variance may be granted consistent with the requirements of this Article, the Variance shall be issued to the applicant on such terms and conditions, and for such period of time, as the facts may warrant. The Planning Commission shall append conditions that achieve a substantial equivalent or alternative to the regulation from which the Variance is sought.
(3)
When a Variance is denied by the Planning Commission, an application for a Variance involving the same or substantially similar construction, development, use or activity may not be filed sooner than six months following the denial.
(Ord. No. 864, March 7, 2008; Ord. No. 935, November 14, 2012; Ord. No. 950, July 17, 2013)
§ 8-3.4 Amendments.
(a)
Amendments. This Chapter may be amended by changing the boundaries of districts or by changing the text whenever the public necessity and convenience and the general welfare require an amendment.
(b)
Initiation. The amendment may be initiated by the verified petition of one or more owners of property affected by the proposed amendment, which petition shall be on a form prescribed by and filed with the Planning Commission and shall be accompanied by a processing fee of $150 and the cost of publication of notices for the public hearings before the Planning Commission and the County Council.
(1)
For the purpose of complying with this Section a property owner is to include the holder of a lease interest the expiration of which will occur more than five years after the date of filing the petition.
(2)
The petition shall contain or be accompanied by the following:
(A)
A statement of the nature of the petitioner's interest;
(B)
A draft of the substance of the proposed amendment;
(C)
A specific statement of the reasons for granting the proposed change, and if requested by the Planning Director, supported by a written documented analysis of the district involved using all the pertinent elements upon which the Zoning is based;
(D)
A map, drawn to scale, describing the property and showing its location in relation to surrounding properties and to known landmarks or improvements.
(3)
Processing fees for amendments shall be exempted as follows:
(A)
An amendment initiated for a housing project or portions of housing projects that are developed to be affordable to low-income households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from the filing and processing fee required in Subsection (b), provided such projects conform to applicable provisions of the County's affordable housing program.
(B)
An amendment initiated for a housing project or portions of housing projects that are developed to be affordable to gap-group households as determined by the Housing Director or authorized representative of the County Housing Agency shall be exempt from 1/2 of the filing and processing fee required in Subsection (b), provided such projects conform to applicable provisions of the County's affordable housing program.
(C)
No exemptions shall be afforded for such housing projects from any fees or costs arising from compliance with Subsection (c)(3) of this Section.
(c)
Public Hearings. The Planning Commission shall hold at least one public hearing on any proposed amendment.
(1)
Except for amendments relating to necessary governmental public utility developments and District Boundary change applications pending before the State Land Use Commission on or prior to July 3, 1973, all proposed amendments shall be considered for public hearing only during four months per calendar year.
(A)
Public hearings shall be conducted by the Planning Commission only during the months of January, April, July and October. At any public hearing, any number of petitions may be heard provided that each petition is heard separately.
(B)
Petitions and resolutions received in an acceptable form by the Planning Commission not later than 60 days prior to the public hearing date shall be considered by the Planning Commission and Council for review and action.
(2)
At least 15 days prior to the public hearing, the Planning Commission shall give notice thereof to the petitioner and also by publishing at least once in a newspaper of general circulation published in the County the time, date and place of the public hearing, its purpose and a description of any property which may be involved.
(3)
In the case of a petition for the amendment of district boundaries, the petitioner, at least 12 days prior to the scheduled date of such hearing, shall either hand deliver written notice to persons listed on the current Notice of Property Assessment Card File located at the Real Property Division of the Department of Finance of the County of Kaua'i, or mail, by certified mail, written notice to the addresses shown on such Notice of Property Assessment Cards, for at least 85% of all parcels of real property within 300 feet from the nearest point of the premises involved in the application to the nearest point of the affected property. For the purposes of this paragraph, notice to one co-owner shall be sufficient notice to all other co-owners of the same parcel of real property. For each condominium project within the affected area, one notice of the hearing shall be sent addressed "To the Residents, Care of the Manager," followed by the name and address of the condominium involved. The notice shall include the following information and shall be in form approved by the Planning Director:
(A)
Date;
(B)
Time;
(C)
Location;
(D)
Purpose;
(E)
Description or sketch of property involved; and
(F)
Explanation of amendment process with emphasis on forthcoming Council action.
At least seven days prior to the public hearing date, the petitioner shall file with the Planning Commission an affidavit as to the mailing or delivery of such notice and a list of persons to which such notices were sent. |
Should the petitioner fail to submit the affidavit within the time required, the public hearing shall be postponed and the Planning Commission shall reschedule another public hearing within 60 days of the postponed hearing. The petitioner shall be required to pay for the republication costs and shall follow the notice requirements of this paragraph in the re-notification of affected persons. |
(4)
Where the zoning amendments are initiated by the Planning Commission or the Council, the public hearing notice requirements of Subsection (c) shall apply, except that in the consideration of community development plans and updates, the requirements of Subsection (b) shall apply.
(d)
Consideration. In considering an amendment, the Planning Commission shall consider the purposes of the existing and proposed changes to the Zoning Ordinance. A change in the Zoning Map or text shall not be made unless the change will further the public necessity and convenience and the general welfare.
(e)
Report Filed with Council. After the conclusion of the public hearing, the Planning Commission shall approve, approve with modifications or disapprove any proposed amendment and shall file a report with the Council and the petitioner of its findings and action taken. The report shall be filed within 90 days after the public hearing, or within a longer period as may be agreed upon between the Planning Commission and the initiator of the action.
(1)
Failure by the Planning Commission to report within the 90 day period specified in this Section or within a period as may be agreed upon shall be an approval of the proposed amendment by the Planning Commission and shall be reported to the Council by the Planning Director.
(f)
Approval or Denial of Proposal. In the event that the Planning Commission approves the proposal, the Council shall act on the proposal as indicated in this Article. However, in the event the Planning Commission denies the proposal, its decision is final except that the petitioners may appeal to the County Council by filing a written notice of appeal within 15 days after service of the Planning Commission decision, in which case the Council shall hear the matter in the same manner as provided for consideration by the Planning Commission. For the purpose of this Section, service shall mean delivery of a copy of the decision to the petitioner or the petitioner's representative, by hand delivery, mail, facsimile or electronic mail. Service by mail is complete upon mailing. Service by facsimile transmission is complete upon confirmation that service was accomplished by facsimile transmission to a specific phone number, on a specific date, at a specific time. Service by electronic mail is complete upon confirmation that service was accomplished by electronic mail to a specific electronic mail address, on a specific date, at a specific time.
(1)
Within 45 days of receipt of the report for approval, the Council shall place the matter on its agenda for first reading and schedule a public hearing within 30 days of the first reading. Within 90 days of the close of the public hearing, the Council may affirm, reverse or modify the Planning Commission's decision and may adopt the proposed amendment or any part thereof by a majority vote of the Council in a form as the Council deems advisable. In the event the Council's decision cannot be made within 90 days of the close of the hearing, the Council, with approval of the Applicant may extend the time frame required for Council action.
(2)
Within 45 days of receipt of the appeal, the Council shall set the matter for public hearing and shall give notice thereof to the petitioner and also by one publication in a newspaper of general circulation published within the County at least 15 days prior to a public hearing. Within 90 days of the close of the public hearing, the Council may affirm, reverse or modify the Planning Commission's decision and may adopt the proposed amendment or any part thereof by a majority vote of the Council in a form as the Council deems advisable.
(g)
Enactment by Ordinance. Enactment of the amendment shall be by ordinance.
(h)
Withdrawal. With the consent of the Planning Commission, any petition for an amendment may be withdrawn upon the written application of the initiator. The Council or the Planning Commission, as the case may be, may, by motion abandon any proceedings for an amendment initiated by its own resolution of intention.
(1)
The withdrawal or abandonment may be made only when the proceedings are before the body for consideration, and provided that any public hearing of which public notice has been given shall be held.
(i)
Denial. When an amendment initiated by petition is denied by the Planning Commission and no appeal is taken, or is denied by the Council, the amendment or a substantially similar amendment may not be initiated by petition sooner than one year following the denial.
(j)
Initiation by Council or Planning Commission. Nothing contained in this Chapter shall prohibit the Planning Commission or the Council from initiating zoning changes where the general public interest and welfare are involved. When the amendment is initiated by the Planning Commission or the Council, the public hearing on the amendment may be held at any time.
(Ord. No. 864, March 7, 2008; Ord. No. 935, November 14, 2012; Ord. No. 950, July 17, 2013; Ord. No. 952, August 14, 2013)
§ 8-3.5 Enforcement, Legal Procedures and Penalties.
(a)
Enforcement, Legal Procedures and Penalties.
(1)
All departments, officials, and public employees vested with the duty or authority to issue permits or licenses shall conform to the provisions of this Chapter, and shall issue no such permits or licenses for construction, development, uses, activities, subdivisions or other purposes which would be in conflict with the provisions of this Chapter; any such permits or licenses, if issued in conflict with the provisions of this Chapter shall be void.
(2)
It shall be the duty of the Planning Commission and Planning Director to enforce the provisions of this Chapter and it shall be the duty of all law enforcement officers of the County of Kaua'i to enforce this Chapter and all the provisions thereof.
(3)
Any person convicted of violating or causing or permitting the violation of any of the provisions of this Chapter, shall be guilty of a misdemeanor and shall be punished by a fine not exceeding $2,000. After conviction, a separate offense is committed upon each day during or on which a violation occurs or continues.
(4)
Any building or structure or other improvement or development set up, erected, constructed, altered, enlarged, converted, moved, or maintained contrary to the provisions of this Chapter or any use of land contrary to the provisions of this Chapter shall be unlawful and a public nuisance. The County Attorney shall immediately commence an action or proceeding for the abatement, removal, or enjoinment thereof in the manner provided by law, and shall take such other steps, and shall apply to such courts as may have jurisdiction to grant relief that will abate or remove such building, structure, improvement, development or use, and restrain and enjoin any person from setting up, erecting, building, maintaining, or using any such building, structure, improvement or development, or using any property contrary to the provisions of this Chapter.
(5)
The remedies provided for in this Article shall be cumulative and not exclusive.
(b)
Civil Fines.
(1)
If the Director of the Planning Department determines that any person, firm or corporation is not complying with a notice of violation, the Director may have the party responsible for the violation served, by mail or delivery, or by posting of the property which address is the most current address reflected in the Real Property tax records, or by publishing such notice in a newspaper of general circulation in the County of Kaua'i should previous notification efforts not be accepted, with an order pursuant to this Section. The order may require the party responsible for the violation to do any or all of the following: (A) correct the violation within the time specified in the order; (B) pay a civil fine not to exceed $10,000 in the manner, at the place, and before the date specified in the order; (C) pay a civil fine up to $10,000 per day for each day in which the violation persists, in the manner and at the time and place specified in the order. All civil fines shall be deposited to the Planning Enforcement Account within Fund 251.
(2)
The order shall advise the party responsible for the violation that the order shall become final 30 calendar days after the date of its delivery or posting on the property, or publishing of such notice in a newspaper of general circulation in the County of Kauai. The order shall also advise that the Director's action may be appealed to the Planning Commission.
(3)
The provisions of the order issued by the Director under this Section shall become final 30 calendar days after the service or posting on the property, or publishing of such notice in a newspaper of general circulation in the County of Kaua'i, of the order. The parties responsible for the violation may appeal the order to the Planning Commission pursuant to its rules. The form of this appeal must conform to the Planning Commission's rules. However, an appeal to the Planning Commission shall not stay any provision of the order.
(4)
The Director may institute a civil action in any court of competent jurisdiction for enforcement of any order issued pursuant to this Section. Where the civil action has been instituted to enforce the civil fine imposed by said order, the Director need only show that the notice of violation and order were served; that a civil fine was imposed; the amount of the civil fine imposed has not been paid; that either the order has not been appealed or that if appealed, the order was sustained by the Commission and/or any Court action.
(5)
The Director may place a lien on the property if the violation has not been corrected or the civil fine imposed has not been paid within 90 days of the order. The Director shall obtain approval from the County Attorney prior to the placement of any liens.
(A)
Said lien shall be recorded with the State of Hawai'i, Bureau of Conveyances or registered in the Office of the Assistant Registrar of the Land Court, and shall identify the owner's name, address of the property, tax map key number of the property, and include copies of pertinent documentation as to the failure of the property owner to pay the civil fine. Any cost incurred in the filing of the lien shall be part of the lien for the civil fine set forth.
(B)
The lien may be enforced and foreclosed by action of the Director in circuit court, and the proceedings before the circuit court shall be conducted in the same manner and form as ordinary foreclosure proceedings. If the owners or claimants of the property against which a lien is sought to be foreclosed are at the time out of the County or cannot be served within the County, or if the owners are unknown, and the fact shall be made to appear by affidavit to the satisfaction of the court, and it shall in like manner, appear prima facie that a cause of action exists against such owners or claimants or against the property described in the complaint, or that such owners or claimants are necessary or proper parties to the action, the court may grant an order that the service may be made in the manner provided by Chapter 634, H.R.S. In any such case it shall not be necessary to obtain judgment and have execution issued and returned unsatisfied, before proceeding to foreclose the lien in the manner provided.
(C)
The Director or subordinate shall, at the expense of the debtor, upon payment of the amount of the lien, execute and deliver to the debtor a sworn satisfaction, which shall be entered in the general indexes of the Bureau of Conveyances or noted on the certificate if a notation of the original notice was made on any Land Court Certificate of Title.
(6)
There is hereby established and created an account to be known as the "Planning Enforcement Account" within Fund 251. The fines collected pursuant to this Section are hereby deemed appropriated upon receipt and may be expended to retain independent contractors to assist in the enforcement of the Comprehensive Zoning Ordinance and other Codes, Statutes, or regulations the Planning Department has the authority to enforce. The fines may also be expended for materials, supplies, education, training, and legal representation, and equipment that facilitate inspection and enforcement of such violations. Council notification is required for any single expenditure from this account which exceeds $10,000. Any fines collected when the account has an excess of $500,000 in uncommitted funds shall be transferred and deposited into the General Fund at the close of the fiscal year. The fines collected shall not lapse at the close of the fiscal year. The Planning Department shall annually report to the Council as part of the Mayor's budget submittal on March 15th of each year, the expenditures and outcomes of said account.
(Ord. No. 935, November 14, 2012; Ord. No. 938, February 13, 2013; Ord. No. 950, July 17, 2013; Ord. No. 1049, July 3, 2019)