The purpose and intent of this article is to ensure compliance with all provisions of this title and to describe how permit applications are to be processed.

(Ord. 2032 § 5 (part), 1991)

No person shall erect, construct, enlarge, extend, structurally alter, or use any building, structure, or parcel of land which does not conform to the provisions of this title or to the plans required to be approved by the director of public works or the director's authorized representative.

(Ord. 2032 § 5 (part), 1991)

For the purpose of this article, certain words or terms used herein shall be interpreted as set forth in this chapter unless specifically prescribed elsewhere in this article. Words and terms not defined in this section shall be interpreted in accord with such normal dictionary meaning or customary usage as is appropriate to the context. Words used in the present tense shall include the future, and the plural number includes the singular. The words "used" or "occupied" include the words "intended," "designed," or arranged to be used or occupied. The word "lot" includes the words "plot" or "parcel." The word "shall" is mandatory and the word "may" is permissive.

(Ord. 2032 § 5 (part), 1991)

A.

Administrative Officer Designated. It shall be the duty of the director of public works of the County to administer and enforce the provisions of this title, and therefore, the director of public works shall be known as the administrative officer of this title. Nothing in this article shall be construed to abrogate the authority and responsibilities of the planning director, Maui planning commission, and Molokai planning commission, set forth in this title and in the charter of the County. In addition, pursuant to the charter of the County, the department of water supply shall implement the County's general plan and community plans in the administration of its affairs.

B.

Duties of Administrative Officer.

1.

Generally. In its duty to approve applications for subdivision, building, certificate of occupancy, sign, grading, plumbing, electrical, or other development or construction permits, the director of public works shall approve an application which complies with the provisions of this title. The director of public works shall use the director's best effort to prevent and detect any violation of the provisions of this title and to secure the correction of these violations.

2.

Enforcement. Upon discovering a violation of the provisions of this title, the director of public works shall:

a.

Send a written notice to the person responsible for the violation which indicates the nature of the violation and the action necessary to correct it;

b.

Order discontinuance and removal of any uses of land, buildings, structures, additions, alterations or portions thereof or any work being done which is in violation of this title; and

c.

Take or cause to be taken any other action, authorized by law, to ensure compliance with this title.

3.

Records. The director of public works shall maintain records of all official actions taken by the director's office with respect to the administration and enforcement of this title. These records shall include, but are not limited to, approved certificates of occupancy, sign, building, grading, plumbing, electrical and other construction permits, violations and actions taken with regard thereto, including remedial action taken and final disposition of cases, and any other information which the director deems necessary in the performance of the director's duties as administrative officer of this title.

(Ord. 2032 § 5 (part), 1991)

A.

Upon receiving an application for a building permit required by the building code of the County, the director of public works shall determine whether the application conforms to the requirements of this title. No building permit shall be issued unless the director of public works, or the director's authorized designee, certifies that the proposed construction and use of the premises conform to all applicable provisions of this title.

B.

All applications for permits to erect, construct, enlarge, extend, or structurally alter any building or structure shall be accompanied by plans which are drawn to scale and which are in such number as are requested by the director of public works.

These plans shall indicate:

1.

The actual shape and dimensions of the lot or tract of land on which the building or structure is to be erected, constructed, enlarged, extended, or structurally altered;

2.

The exact size and location of existing and proposed buildings or structures and any enlargement, extension, or structural alteration to be made thereto and any accessory building or structure to be used in connection therewith;

3.

The current and proposed use of the lot, building or structure;

4.

If the building is to be used for purposes to which floor area ratios and parking requirements apply, the number of occupants the existing and proposed building or structure is designed to accommodate and the amount of floor area contained therein; and

5.

Any other information requested by the director of public works in order for the director to administer and enforce the provisions of this title and the building code of the county.

(Ord. 2032 § 5 (part), 1991)

No person shall use or permit the use of any building, structure, premises, or portion thereof, other than a single-family dwelling unit, unless a certificate of occupancy for the building, structure, premises, or portion thereof has been issued by the director of public works or the director's authorized representative.

(Ord. 2032 § 5 (part), 1991)

The director of public works shall determine whether applications for subdivisions conform to the requirements of this title. No preliminary or final subdivision plan shall be issued unless the director of public works or the director's authorized representative has certified that the proposed subdivision conforms to all applicable provisions of this title.

(Ord. 2032 § 5 (part), 1991)

The director of public works shall determine whether applications for grading, electrical, plumbing, sign, and other construction and development permits issued by the director conform to requirements of this title, chapter 6E of the Hawai&#699 Revised Statutes, and any other development regulation or law of the county or the State of Hawai&#699. No grading, electrical, plumbing, sign, or other construction or development permit shall be issued unless the director of public works or the director's authorized representative certifies that the construction or development being requested by the application conforms to the provisions of this title.

(Ord. 2032 § 5 (part), 1991)

The director of water supply shall ensure that any approval by the department of water supply conforms to the requirements of this title.

(Ord. 2032 § 5 (part), 1991)

The provisions of this title, or the application thereof, shall not be construed to affect, interfere with or abrogate any covenant, condition, limitation or restriction contained in any deed, contract or agreement, whether recorded or otherwise, relating to the use of any land, building or structure. Whenever the provisions of this title, or the application thereof, impose greater restrictions upon the use of land, buildings or structures than are imposed by any such covenants, conditions, limitations or restrictions, the provisions of this title, of the application thereof, shall govern the use of such land, buildings or structures.

(Ord. 2032 § 5 (part), 1991)

A.

Nonconforming lots, structures, uses, and parking may be continued, subject to this section's provisions.

B.

Nonconforming lots.

1.

A nonconforming lot may not be reduced in area, width, or depth, except by government action to further public health, safety, or welfare.

2.

A nonconforming structure or use may be constructed, enlarged, extended, or moved on a nonconforming lot if all other requirements of this title are met.

C.

Nonconforming structures.

1.

If a nonconforming structure is destroyed by any means to an extent of more than 50 percent of its replacement cost at the time of destruction, it may not be reconstructed unless the reconstruction conforms with the provisions of this title; except that:

a.

A nonconforming structure that is a historic property as defined in chapter 6E, Hawai&#699 Revised Statutes, and a nonconforming structure devoted to a conforming use that contains multi-family dwelling units owned under the authority of chapter 514B, Hawai&#699 Revised Statutes, and whether the structure is destroyed by accidental means, including destruction by fire, other calamity, or natural disaster, may be restored to its former condition if the restoration is in compliance with title 16 and is started within two years.

b.

The burden of proof to establish that a structure was destroyed by accidental means as described in subparagraph (C)(1)(a) and that the structure was legally nonconforming is on the owner.

c.

Except as otherwise provided in this title, a nonconforming structure that is voluntarily razed or required by law to be razed by the owner may not be restored except in full conformity with the provisions of this title.

d.

On Lāna‘i and Maui, a nonconforming structure that is damaged or destroyed to an extent of more than 50 percent of its replacement cost by an emergency or disaster proclaimed by the governor or mayor to constitute a state of emergency or local state of emergency, respectively, under section 127A-14, Hawai&#699 Revised Statutes, may be repaired or reconstructed to its former nonconforming condition, if:

i.

The property with the former nonconforming structure is located within an area covered by the proclamation.

ii.

The repair or reconstruction is permitted in compliance with title 16. The fire chief may require residential structures to exceed the standards of chapter 16.08A by imposing the requirements of chapters 16.25 and 16.26C, or portions of those chapters, as may be necessary to improve public safety.

iii.

The nonconforming structure is repaired, expanded, renovated, or altered in a manner that does not increase its nonconformity.

iv.

The property owner meets the burden of proof to establish the nonconforming portion of the structure existed before the emergency or disaster. Evidence supporting the property owner's burden of proof is subject to review and approval by the director.

v.

The building permit must be obtained, the repair or reconstruction completed, and the final inspection of the nonconforming structure issued:

aa.

Within four years of the initial date of the governor's or mayor's proclamation, whichever occurred first; or

bb.

By April 1, 2029, for structures affected by the August 2023 Maui wildfires.

The director may grant a two-year extension of the deadline for good cause if the structure is within a historic district or within the special management area, or both.

2.

A nonconforming structure repaired or reconstructed under subparagraph (C)(1)(d) will continue to be nonconforming upon completion and will be subject to all other requirements of this section.

3.

If a nonconforming structure is moved, it must conform to the provisions of this title.

4.

A nonconforming structure may be repaired, expanded, renovated, or altered in a manner that does not increase its nonconformity.

D.

Nonconforming uses. Except for those nonconforming uses on Lāna‘i and Maui affected by emergency or disaster under subsection E, all nonconforming uses must comply with the following:

1.

A nonconforming use may not extend to a part of the structure or lot that was not arranged or designed for the use at the time the use became nonconforming.

2.

A nonconforming use that is discontinued for twelve consecutive months may not be resumed.

3.

Work may be done on a structure devoted in whole or in part to a nonconforming use if the work is limited to ordinary repairs, including repair or replacement of walls, fixtures, wiring, or plumbing. Further, the work may not exceed 50 percent of the current replacement cost of the structure within a twelve-month period, and the floor area of the structure, as it existed at the time the nonconforming use was created, may not be increased.

4.

A nonconforming use may not be changed to another nonconforming use.

E.

Nonconforming uses affected by emergency or disaster on Lāna‘i and Maui. Nonconforming uses that were discontinued because of an emergency or disaster proclaimed by the governor or mayor to constitute a state of emergency or local state of emergency, respectively, under section 127A-14, Hawai&#699 Revised Statutes, may continue if:

1.

The property owner meets the burden of proof to establish the nonconforming use existed before the disaster. Evidence supporting the property owner's burden of proof is subject to review and approval by the director.

2.

If the nonconforming use occurred in a structure that was damaged or destroyed by the emergency or disaster:

a.

The nonconforming use must be reestablished:

i.

Within four years of the initial date of the governor's or mayor's proclamation, whichever occurred first, within the structure that has been repaired or reconstructed in compliance with title 16; or

ii.

By April 1, 2029, for nonconforming uses affected by the August 2023 Maui wildfires.

The director may grant a two-year extension of the deadline for good cause if the nonconforming use is within a historic district or within the special management area, or both.

b.

As determined necessary to improve public safety, the fire chief may require the relocation of an area of nonconforming use to a more suitable portion of a lot or structure. The property owner bears the burden of proof to establish that a structure or use area will not increase a nonconforming use. Evidence supporting the property owner's burden of proof is subject to review and approval by the director.

3.

If the nonconforming use did not occur within a structure that was damaged or destroyed by the emergency or disaster, but was otherwise discontinued by the emergency or disaster, the nonconforming use may continue if the nonconforming use:

a.

Occurred within the specific area of the emergency or disaster.

b.

Was discontinued because of a lack of access or lack of business activity directly resulting from the emergency or disaster.

c.

Is reestablished:

i.

Within four years of the initial date of the governor's or mayor's proclamation, whichever occurred first; or

ii.

By April 1, 2029, for nonconforming uses discontinued by the August 2023 Maui wildfires.

The director may grant a two-year extension of the deadline for good cause if the nonconforming use is within a historic district or within the special management area, or both.

4.

A nonconforming use may not be changed to another nonconforming use.

5.

An inspection which may be required to verify compliance with title 16 must be completed before occupancy. Upon reestablishment of the nonconforming use, the use will still be considered nonconforming and will be subject to all other requirements of this section.

F.

Nonconforming parking and loading.

1.

If there is a change in use of a structure or lot or a portion of a structure or lot, the area of the new use must meet the off-street parking and loading requirement established in chapter 19.36B.

2.

A use that adds floor area must provide off-street parking and loading for the additional area as required by chapter 19.36B.

3.

A nonconforming parking or nonconforming loading may be repaired, expanded, or altered in a manner that does not increase its nonconformity.

G.

Nonconforming transient vacation rental uses; exception. Notwithstanding subsection E, nonconforming transient vacation rental uses that were discontinued for twelve consecutive months or more because the transient vacation rental was within a structure that was damaged or destroyed in an emergency or disaster may not be resumed. This subsection does not apply to nonconforming transient accommodations occupied by the owner. For purposes of this subsection, "transient accommodations" has the same meaning as in section 237D-1, Hawai&#699 Revised Statutes.

(Ord. No. 5780, § 3, 2025; Ord. No. 4921, § 19, 2018; Ord. 2032 § 5 (part), 1991)

A.

Generally.

1.

General Purpose. The general purpose of this chapter is to prescribe the manner by which permits and approvals are processed and approved and to ensure that all developments in the County are in compliance with the provisions of this title. Except as otherwise provided, all permits and development approvals required by this title shall comply with the procedures specified in this chapter. Any department or agency of the State or County or any person having a legal or equitable interest in property or a person acting as the authorized representative of the person having a legal or equitable interest in the land for which a change in zoning is sought may file an application with the appropriate planning commission by filing the application with the department of planning.

2.

Consolidated Applications and Public Hearing. A consolidated application may be filed and a single public hearing held for all of the permits or approvals required by a project. The consolidated application shall address all of the issues which pertain to the criteria and requirements of each permit or approval sought. The decisions rendered on the permits or approval sought shall analyze each permit and approval separately with regard to the criteria and requirements which pertain to each permit or approval.

B.

Fees. Except for applications filed by County agencies, application fees shall be required in the amounts specified in the annual budget of the County. All checks issued to pay for application fees shall be made payable to the director of finance.

C.

Application completeness review.

1.

All applications required by this title shall be submitted to the director. Within fifteen business days after receiving an application, the director shall review the application and determine if the application is complete or incomplete. If the application is complete, the director shall continue processing the application. If the application is incomplete, the director shall provide the applicant with a written statement that identifies the portions of the application that are incomplete. In addition to incompletion as determined by the director, an application is automatically incomplete, at any stage of the application process, if it is for or relates to land use on a lot or on a unit in a condominium property regime that is the subject of an unresolved enforcement action by the department, if the department has sent a notice of warning or notice of violation for the enforcement action. However, an application is not automatically incomplete if: a) the applicant pays all fines associated with the unresolved enforcement action as required by the director, and b) approval of the application would resolve the enforcement action. An enforcement action is unresolved until all fines as determined by the director have been paid.

2.

For all community plan amendment and change in zoning applications deemed complete, the director shall prepare a report that includes an assessment and detailed explanation for each requirement set forth in subsection 19.510.010(D). The report shall include all relevant data, studies, agency reports, and any other information relied upon by the director in finding that an application is complete.

3.

The director shall transmit the report to the council and the appropriate planning commission as a part of the report required by subsection 19.510.020(A)(5) or 19.510.040(A)(3).

4.

The director shall prepare an updated report for each amendment made to the application and transmit the updated report to the council and appropriate planning commission.

D.

Content of Application. All applications shall provide the following information:

1.

Documents which identify the owner of the subject parcel of land and the signature or written authorization for the application by the owner; provided, however, that this requirement shall not apply to revisions or amendments proposed by the planning director or the County council;

2.

Owner's name, address and telephone numbers;

3.

Agent's name, address and telephone numbers, if applicable;

4.

Tax map key number of the parcel and its street address, if available;

5.

Locational map identifying the site, adjacent roadways, and identifying landmarks;

6.

List of owners and lessees of record located within a five-hundred-foot distance from the parcel. This list shall be derived from the most current list available at the real property tax division of the department of finance at the time of the filing of the application with the planning director. This list shall include the names and addresses of all of the owners and lessees of record located within a five-hundred-foot distance from the parcel, as well as the tax map key numbers of these owners' and lessees' lands identified in accordance with this section. A map, drawn to scale, which clearly identifies the five-hundred-foot boundary surrounding the subject parcel and the parcels within the boundary;

7.

Policies and objectives of the general plan, the provisions o f the community plan applicable to the application, the provisions of the applicable district and an analysis of the extent to which the application, if granted, conforms to these policies, objectives and provisions;

8.

Detailed land use history of the parcel which includes, but which is not limited to, former and existing State and County land use designations, violations and uses;

9.

Preliminary archaeological and historical data and comments from the department of land and natural resources and office of Hawaiian affairs of the State, and if applicable, a preservation/mitigation plan which has been reviewed and approved by the department of land and natural resources and office of Hawaiian affairs of the State;

10.

Analysis of the secondary impacts of the proposed use on surrounding uses which includes, but which is not limited to, increases in property value, populations, housing, community services and facility needs, secondary jobs and employment generated, and compatibility with surrounding uses, and if applicable, the affordable housing program and comments from the department of human concerns of the County, and other mitigation plans and comments from the respective governmental and community services agencies;

11.

Traffic impact analysis and, if applicable, a traffic master plan, which includes, but which is not limited to, comments from the department of transportation of the State and department of public works and environmental management;

12.

If applicable, an assessment of the impact which the proposed use may have on agricultural use of the parcel which includes, but which is not limited to, a feasibility analysis of potential agricultural uses suited to the site and written comments from the department of agriculture of the State and the Soil Conservation Service of the government of the United States;

13.

Water source, supply and distribution analysis which includes, but which is not limited to, methods of irrigation existing on the parcel and proposed for the application, location and use of groundwater and nonpotable water sources, and, if applicable, a water master plan, which includes, but which is not limited to, comments from the department of land and natural resources of the State and the departments of water supply and public works and environmental management;

14.

Sewage disposal analysis, a description of a proposed method of sewage disposal, and comments, if applicable, from the departments of health and land and natural resources of the State and the departments of public works and environmental management and water supply;

15.

Solid waste disposal analysis, a description of a proposed method of solid waste disposal and comments, if applicable, from the departments of health and land and natural resources of the State and the departments of public works and environmental management and water supply;

16.

Identification of environmentally sensitive areas, habitat and botanical features which include, but which are not limited to, wetlands, streams, rock outcroppings, endangered plants and animals, and exceptional trees, if applicable, a baseline study and preservation/mitigation plan, and comments, if applicable, from the department of land and natural resources of the State, the United States Fish and Wildlife Service, and the United States Corps of Engineers;

17.

Identification of the topographical and drainage patterns existing on the subject parcel and any proposed alterations to these patterns;

18.

Identification of all meetings held between the applicant and any community or residential group which may be impacted by the applicant's request, the issues raised by these meetings, and any measures proposed by the applicant to deal with or to mitigate these issues;

19.

Photographs of the subject site or structure which are dated;

20.

Development schedule;

21.

Schematic site development plans, if applicable, drawn to scale, which identify the following:

a.

Property lines and easements with their dimensions and area calculations,

b.

Location, size, spacing, setbacks and dimensions of all existing and proposed buildings, structures, improvements and uses,

c.

Existing and proposed building elevations, sections, floor plans and site sections which clearly define the character of the development,

d.

Topographic information showing existing features and conditions and proposed grading,

e.

Existing and proposed landscaping which depicts open spaces, plantings and trees,

f.

Existing and proposed roadways and accesses to the project and parking layout with dimensions, and

g.

Shoreline, shoreline setback lines, stream and other setback lines;

22.

Operations and management of the proposed use which includes, but is not limited to, number of employees, proposed employee housing plan, hours of operation, fees charged to residents and visitors, provisions for off-site parking;

23.

Identification of traditional beach and mountain access trails and additional trails which may be required for public access to the beaches and mountains, and if applicable, preservation/mitigation plan, and comments from the department of land and natural resources and the office of Hawaiian affairs;

24.

Identification and assessment of chemicals and fertilizers used, including, but not limited to, detailing effects upon surface, underground and marine water resources and neighboring properties and surrounding flora and fauna, and if applicable, a mitigation plan and maintenance program and schedule, and comments from the departments of health and of land and natural resources of the State, the United States Fish and Wildlife Service, and the United States Environmental Protection Agency; and

25.

Any other information to assess the application.

E.

At the time of the filing of the application, the applicant shall file a notice of application, which is in a form prescribed by the planning director, and an affidavit certifying that the notice of application was mailed to all owners and lessees of record located within a five-hundred-foot distance from the subject parcel. The notice of application shall include the following information:

1.

The name, address and telephone number(s) of the owner and the owner's authorized agent, if applicable;

2.

A brief description of the existing uses and uses proposed by the application; and

3.

A location map and a description of the location of the proposed development which includes, but which is not limited to, the tax map key number and street address, if available, of the subject parcel.

(Ord. No. 5047, § 2, 2020; Ord. 3447 § 1, 2007: Ord. 2032 § 5 (part), 1991)

A.

With the exception of section 19.510.020(B) and the specific requirements of each application, the general processing requirement for all applications which require a public hearing by a planning commission shall be as follows:

1.

The planning director shall set the application for public hearing on the agenda of the planning commission;

2.

The planning director shall notify the applicant and the appropriate State and County agencies of the date of the public hearing not less than forty-five calendar days prior to the date of the public hearing;

3.

The planning director shall publish the notice of the date, time, place, and subject matter of the public hearing once in a newspaper printed and issued at least twice weekly in the County and which is generally circulated throughout the County at least thirty calendar days prior to the date of the public hearing;

4.

The applicant shall provide notice of the public hearing date on the application to the owners and lessees of record located within a five-hundred-foot distance from the parcel identified in the application by complying with the following procedures:

a.

The applicant shall:

i.

Mail a notice of the date of the public hearing of the application in a form prescribed by the director of planning by certified mail, return receipt requested, to each of the owners and lessees not less than thirty calendar days prior to the date of the public hearing,

ii.

Submit each of the return receipts for the certified mail to the planning director not less than ten business days prior to the date of the public hearing, and

iii.

Publish the subject matter, in a form prescribed by the planning director, once a week for three consecutive weeks prior to the date of the public hearing in a newspaper which is printed and issued at least twice weekly in the County and which is generally circulated throughout the County,

b.

For purposes of this section, notice shall be considered validly given if the applicant has made a good faith effort to comply with subsection (A)(4)(a) of this section;

5.

The planning director shall transmit a report on the application to the planning commission, the applicant, the appropriate State and County agencies, and all interested persons not less than six business days prior to the date of the public hearing;

6.

Except as provided in section 19.510.020A.7, after holding a public hearing, the planning commission:

a.

For applications which require final action by the County council, shall transmit its findings, conclusions, and recommendations to the County council, the applicant, public agencies, and all interested parties, and

b.

For applications which require final action by the planning commission, shall notify the applicant, public agencies, and interested parties of the action taken by the planning commission;

7.

The commission shall transmit to the County council findings, conclusions, and recommendations for all changes in zoning and conditional use permits within ninety days, and within one hundred twenty days for all other applications requiring council approvals, after the application is deemed complete by the planning department. However, if a consolidated application for a community plan amendment and change in zoning is submitted, the findings, conclusions, and recommendations shall be transmitted within one hundred twenty days.

B.

All amendments to this title, including proposed zoning ordinances, land use ordinances, zoning maps, and regulations and any amendments or modifications thereto, may be proposed by the planning director, the County council or a planning commission and shall be processed as follows:

1.

The planning director shall set the proposed amendment for public hearing on the agenda of the planning commission;

2.

If a resolution of the County council initiated pursuant to the charter of the County is transmitted to the planning commission, the director shall set a public hearing date not later than sixty calendar days from the date of the receipt of the resolution of the County council and within one hundred twenty calendar days upon receipt of the resolution, the planning commission shall transmit its findings and recommendations to the County council.

3.

The planning director shall notify the County council, and the appropriate State and County agencies, and those persons who requested notification of meetings pursuant to subsection A of this section.

(Ord. 2316 § 3, 1994; Ord. 2032 § 5 (part), 1991)

Applications which do not require a public hearing shall comply with all provisions of this chapter; except that the applicant shall not be required to comply to the provisions of section 19.510.020 of this chapter.

(Ord. 2032 § 5 (part), 1991)

A.

All applications for change of zoning shall be processed as applications which require a public hearing in accordance with the procedures set forth in sections 19.510.010 and 19.510.020 of this code and the following requirements:

1.

The appropriate planning commission shall conduct a public hearing on all change of zoning applications;

2.

Upon closing the public hearing and upon reviewing the report and recommendation of the planning director and all other applicable information on the application, the commission shall prepare a report which includes, but which is not limited to, the commission's findings of fact, conclusions of law, recommendations, and any recommended condition which the commission determines to be necessary pursuant to the conditional zoning provisions of this chapter;

3.

Upon appropriate action by the commission, the director of planning shall transmit the report of the commission to the county council;

4.

The county council may grant a change of zoning if all of the following criteria are met:

a.

The proposed request meets the intent of the general plan and the objectives and policies of the community plans of the county,

b.

The proposed request is consistent with the applicable community plan land use map of the county,

c.

The proposed request meets the intent and purpose of the district being requested,

d.

The application, if granted, would not adversely affect or interfere with public or private schools, parks, playgrounds, water systems, sewage and solid waste disposal, drainage, roadway and transportation systems, or other public requirements, conveniences and improvements,

e.

The application, if granted, would not adversely impact the social, cultural, economic, environmental, and ecological character and quality of the surrounding area, and

f.

If the application change in zoning involves the establishment of an agricultural district with a minimum lot size of two acres, an agricultural feasibility study shall be required and reviewed by the department of agriculture and the United States Soil and Conservation Service.

B.

Protests. Protests may be filed with the appropriate planning commission prior to or on the public hearing date of the application being protested. In the case in which the owners or lessees of record of 40 percent or more of the parcels located within a five-hundred-foot distance from the boundaries of the subject parcel have filed written protests, the ordinance that grants the application shall not become effective unless approved by a vote of at least six members of the council. In calculating the percentage of owners or lessees of record who have filed written protests, the following standards shall apply:

1.

Protest Area. The total number of parcels that are located within a five-hundred foot distance from the boundaries of the subject parcel shall include parcels that are situated entirely within five hundred feet and those with only a portion situated within five hundred feet. Each parcel, whether situated entirely or partially within five hundred feet, shall be counted equally toward the percentage calculation. Publicly owned parcels, such as roadways and parks, shall be included in the computation.

2.

Protest by less than all owners or lessees of a parcel. A parcel within a five-hundred-foot distance from the boundaries of the subject parcel shall be treated as having filed a protest if any of the parcel's owners or lessees filed a timely protest.

3.

Withdrawal of Protest. A protest may be withdrawn in writing, even if the withdrawal is received after the date of the planning commission's public hearing on the application. A protest may not be reinstated after such date. Upon receipt of a written withdrawal of protest, the percentage of owners or lessees of record who have filed written protests shall be recalculated.

4.

Change of zoning initiated by planning director or council. Unless the planning director or council otherwise specify in writing at the time the change of zoning is initiated, the protest provisions under this section shall not apply to a change of zoning initiated by the planning director or council.;p0;

C.

Project Master Plan and Development Plan. The applicant shall submit a project master plan and development plan, as provided in this title.

(Ord. No. 4102, § 2, 2014; Ord. 2032 § 5 (part), 1991)

A.

Prior to the enactment of an ordinance effecting any change in zoning, the county council may impose conditions upon the applicant's proposed use of the property.

B.

The conditions shall be imposed if the council finds them necessary to prevent circumstances which may be adverse to the public health, safety, convenience, and welfare. The conditions shall be reasonably conceived to mitigate the impacts emanating from the proposed land use and shall meet the following criteria:

1.

That the public shall be protected from the potentially deleterious effects of the proposed use; and

2.

That the need for public services created by the proposed use shall be fulfilled.

C.

The conditions to be imposed must have been performed prior to council action on the rezoning amendment or be enforceable by the county so as to ensure performance after council action. The conditions shall be fulfilled within the time limitation set by the council, or, if no time limitation is set, within a maximum of five years from the date the ordinance is in effect.

D.

Such conditions shall be set forth in a unilateral agreement running in favor of the county, acting by and through the chairman of the county council. No ordinance with conditions shall be effective until such agreement, properly executed, has been recorded with the bureau of conveyances of the State of Hawai&#699 or the land court of the State, as the case may be, so that the conditions imposed pursuant to such agreement shall run with the land and shall bind and constitute notice to all subsequent grantees, assignees, mortgagees, lienors, and any other person who claims an interest in such property. The agreement shall be properly executed and delivered to the county prior to council action on the ordinance with conditions; provided however, that the council may grant reasonable extensions in cases of practical difficulty. Such agreement shall not restrict the power of the council to rezone with or without conditions. The agreement shall be enforceable by the county, by appropriate action at law or suit in equity, against the parties and their heirs, personal representatives, successors, and assigns.

E.

The council may require a bond, in a form acceptable to it, or a cash deposit from the property owner or contract purchaser in such amount as will assure compliance with the conditions imposed pursuant to this section. Such bond shall be posted at the same time the agreement containing the conditions is recorded with the bureau of conveyances of the state or the land court of the state, as the case may be.

F.

Failure to fulfill any conditions on a zone change within the specified time limitations may be grounds for the enactment of ordinances to restore the zoning to the previous zoning district or initiate a claim on the bond.

G.

Changes or alterations of conditions shall be processed in the same manner as petitions for zone changes.

H.

In reviewing and approving permits, certificates, plans, or any other matter which requires the approval of the director of public works, the director of public works shall enforce the provisions of the conditions.

(Ord. 2032 § 5 (part), 1991)

A.

Initiation of Proposal.

1.

Initiation of amendments to or repeal of the provisions of this title or of the boundaries of the districts may be made by adoption of a resolution by the council, by a motion approved by a planning commission, or by a proposal of the planning director.

2.

The resolution, motion, or proposal shall be addressed to the planning director who shall prepare any legislative bill, zoning map, regulation, or amendment or modification thereto which may be necessary to implement the resolution, motion, or proposal and transmitted to the county council prior to action being taken on the matter.

3.

The resolution, motion, or proposal shall be processed in accordance with the provisions of section 19.510.020(B) of this code.

B.

Public Hearing Required. All motions, resolutions, or proposals identified in this section shall require the procedure for public hearing to be done in accordance with sections 19.510.010 and 19.510.020 of this code.

(Ord. 2032 § 5 (part), 1991)

A.

Compliance Required. A special use permit shall comply with the provisions of this section and with the policies and objectives of the general plan and community plans of the county, the Hawai&#699 Revised Statutes, and the revised charter of the county.

B.

Criteria for Permit. Subject to the provisions of this chapter, the appropriate planning commission shall review and, after a public hearing, may approve a request for a special use if the commission finds that each of the following criteria have been met:

1.

The proposed request meets the intent of the general plan and the objectives and policies of the applicable community plan of the county;

2.

The proposed request is consistent with the applicable community plan land use map of the county;

3.

The proposed request meets the intent and purpose of the applicable district;

4.

The proposed development will not adversely affect or interfere with public or private schools, parks, playgrounds, water systems, sewage and solid waste disposal, drainage, roadway and transportation systems, or other public requirements, conveniences, and improvements;

5.

The proposed development will not adversely impact the social, cultural, economic, environmental, and ecological character and quality of the area;

6.

That the public shall be protected from the deleterious effects of the proposed use;

7.

That the need for public service demands created by the proposed use shall be fulfilled; and

8.

If the use is located in the state agricultural and rural district, the commission shall review whether the use complies with the guidelines established in section 15-15-95 of the rules of the land use commission of the State.

C.

Application Process. All applications for a special use permit shall comply with the application procedures established in sections 19.510.010 and 19.510.020 of this code; provided, that if a state special use permit is required, requirements of chapter 205 shall also apply.

D.

If applicable to the requirements of the district, the applicant shall provide a project master plan and development plan as provided in this article; except, that these plans need not be transmitted to the county council.

E.

The planning commission may impose conditions on the granting of a request for a special use if the conditions are reasonably conceived to mitigate the impacts emanating from the proposed land use.

(Ord. 2032 § 5 (part), 1991)

A.

Purpose. The purpose of the master plan is to establish general planning and development control parameters while allowing sufficient flexibility to permit detailed planning at the time of development. If the applicant desires to phase the development plan, the anticipated pattern of development shall be included in the master plan.

B.

Processing Requirements. Any district or use which requires a project master plan pursuant to the provisions of this title shall comply with the following procedure:

1.

All applications for a project master plan shall require a public hearing and shall comply with sections 19.510.010 and 19.510.020 of this code; and

2.

The planning commission shall approve the project master plan if the development shown on the plan complies with the provisions of the district. If the application for a project master plan is being processed concurrently with an application for a change of zoning, the planning commission shall approve the project master plan if the development shown on the plan complies with the district being requested and any conditions placed on the approval of the change of zoning. The planning commission shall not approve the project master plan if the requirements of this subsection are not met.

C.

A project master plan shall be a scaled, graphic representation of the following information together with all necessary explanatory material:

1.

The boundaries of the area involved and the owners of the land contained therein, as well as all existing public streets and rights-of-way within and adjacent to the site;

2.

The existing and proposed location of all buildings and uses on the site and the descriptions of buildings and uses proposed;

3.

The general location of all existing and proposed parking facilities which includes, but which is not limited to, the approximate number of parking spaces at each location and all existing and proposed means of vehicular access to parking areas and to public streets, and any proposed changes in the location, width, or character of public streets within and adjacent to the site; and

4.

The general use of major existing and proposed open spaces within the site and general features of the plan, such as screening, buffering, or retention of natural areas which are intended to enhance the compatibility of the site with adjacent properties.

D.

No development plan, as set forth in this title, shall be approved nor shall any subdivision, building, or occupancy permit, or any other construction or development permit or approval be issued by any department of the county unless the approval or issuance shall be in compliance with the provisions of this chapter and substantially in accordance with the approved project master plan.

(Ord. 2032 § 5 (part), 1991)

A.

Purpose. The purpose of the development plan is to specify the uses of land, and the layout of the project's landscaping, circulation and buildings. This plan may be the final document upon which subdivision, building permits, and other county approvals are issued.

B.

Processing Requirements.

1.

Any district or use which requires a project master plan shall also require a development plan.

2.

No certificate of occupancy for a use or subdivision and no permit for the erection, enlargement, extension, or reconstruction of a building or structure occupied, or intended to be occupied by these uses shall be granted by the director of public works unless a development plan for such a use, subdivision or building has been approved by the planning director as being in accordance with the requirements set forth in the approved project master plan and this title.

3.

If the proposed project is within the special management area, the final plans reviewed and approved by the appropriate planning commission may be considered in lieu of the development plan; provided, that all requirements of this title which pertain to development plans have been met.

4.

The planning director shall approve the development plan if the director finds that the plan is consistent with the applicable district and the project master plan. The planning director shall consult with the appropriate county and state agencies and may seek such additional technical advice the director deems necessary to review the plan. The director may attach conditions to the approval of any development plan which are clearly necessary to ensure conformance to the intent and purpose of the provisions of this title and the provisions of the approved project master plan or applicable conditional zoning. The director shall review and approve or reject the application based on the following:

a.

Landscaping.

i.

Appropriate groundcover, trees and other vegetative materials identified by the planting plan adopted by the arborist committee of the county shall be retained or planted to prevent excessive storm runoff, erosion, siltation and dust, buffering and screening, if necessary, and to enhance the general appearance of the site, and

ii.

The natural landscape of the site shall be preserved by retaining mature, healthy trees and natural topography except where removal or thinning of trees and alteration of topography is necessary to accommodate building sites, recreation areas, required parking and driveway areas, or drainage facilities and utility systems.

b.

Arrangement of Buildings and Spaces.

i.

Where a site to be developed for residential use abuts a major thoroughfare, expressway or railroad or where a site is to be developed or is intended to be developed for a use which is potentially incompatible with abutting, existing or proposed residential use, buildings and open spaces shall be so located, designed, and arranged in order to provide reasonable separation of the major thoroughfare, expressway, railroad, or incompatible use from the residential use. Where necessary to achieve this separation, trees or other vegetative materials shall be retained on the site or supplemented by additional plantings or the erection of appropriate walls or fences, and

ii.

Buildings shall be located on the site or designed in such a manner that the fronts of buildings containing dwelling units do not face into rear yards or service areas of other buildings located either within the site or adjacent to it, except where privacy walls, fences, plant materials or topographic features provide screening therefrom,

c.

Function of Yards and Spaces. Yards, spaces between buildings, and open space required by the provisions of this title shall be located with respect to buildings and other site improvements and improved so as to reasonably serve the purposes of this title for providing light and air, separation between buildings, separation between incompatible functions, enhancement of privacy, and promotion of public health and safety;

d.

Parking and Circulation.

i.

Driveways and areas for the parking and circulation of vehicles shall be located, designed, and improved so as to provide for safe and convenient access from adjoining streets and shall be in accordance with the established traffic engineering standards and driveway policies of the county. Factors to be considered in the location, design, or improvement of driveways and areas for the parking and circulation of vehicles shall be the number and location of access drives from adjacent streets, the location and width of driveways and access aisles to parking spaces, the arrangement of parking areas, and the means of access to buildings for firefighting apparatus and other emergency vehicles,

ii.

Parking areas and driveways shall be clearly identified and separated from principal pedestrian routes and recreation areas by curbs, pavement markings, planting areas, fences or similar features designed to promote pedestrian safety, and

iii.

Vehicular access to adjoining minor residential streets shall not be permitted when adequate access is available to collector streets or major thoroughfares and when adequate access for emergency vehicles can otherwise be provided; and

e.

Design. If required, the planning director shall review and comment on the site design, building scale, and architectural design, lighting, colors and other design features of the proposed project after considering the existing character of the area, requirements of the approved project master plan and, if applicable, the conditions of zoning.

5.

Appeal to the Planning Commission.

a.

If the applicant disagrees with the development plan approved by the planning director, the applicant may request that the director submit the plan to the appropriate planning commission for its review and action. Upon receiving a request, the director shall submit the request and the plan to the commission. Request for the review shall be made in writing to the chairperson of the appropriate planning commission. Upon receipt of a request for review, the chairperson shall schedule the review on the first agenda of the commission meeting which is able to be properly noticed pursuant to Chapters 91 and 92 of the Hawai&#699 Revised Statutes.

b.

After reviewing the development plan, the appropriate planning commission may either affirm the approval of the development plan by the planning director or may modify the plan if this action complies with the criteria set forth for development plans in this chapter and substantially conforms to the project master plan which relates to the development plan. The commission may attach conditions to its approval or modification which it deems necessary to ensure that the plan conforms with the intent and purpose of the criteria set forth in this chapter or the requirements of the approved project master plan. The action of the commission shall be by formal resolution approved by a majority of its members.

6.

Review and Granting of Permits by the Director of Public Works.

a.

The director of public works shall determine whether the construction or use of premises proposed by an application for a subdivision, a building permit or for a certificate of occupancy conforms to the requirements of the approved development plan.

b.

Nothing in this title shall be construed to abrogate the authority or duties of the director of public works which pertain to an application for a subdivision, a building permit or for a certificate of occupancy which have been approved by the director of public works.

C.

Submission of Plans.

1.

The applicant shall submit a minimum of two copies of the development plan to the director of planning. The development plan may be submitted concurrently with the subdivision, building permit or occupancy permit applications.

2.

The applicant shall submit any other information requested by the planning director to allow the director to properly determine whether the development plan conforms to the project master plan and zoning restrictions, if applicable.

(Ord. 2032 § 5 (part), 1991)

Purpose. The purpose of country town business district design guidelines is to insure that all buildings and structures shall be erected, constructed, reconstructed, renovated, remodeled, enlarged, or converted in a similar and compatible architectural design character with that of surrounding buildings. It is intended that an identifiable and unified design theme be retained within each B-CT country town business district. Except as necessary to protect public health, safety and welfare, where a conflict exists between adopted country town business district design guidelines and standards, and this code, the design guidelines and standards shall prevail.

(Ord. No. 4153, § 2, 2014)

A.

Each small town within Maui County that incorporates country town business districts shall establish design guidelines and standards.

B.

Review of country town business district design guidelines and standards by the appropriate planning commission shall include:

1.

Review and comment by the urban design review board;

2.

An advertised public meeting in the respective country town; and

3.

A public hearing held by the appropriate planning commission. The director of planning shall publish the notice of the date, time, place, and subject matter of the public hearing once in a newspaper printed and issued at least twice weekly in the County and which is generally circulated throughout the County at least thirty calendar days prior to the date of the public hearing.

C.

In developing site design guidelines and standards, consideration shall be given to functional and spatial relationships with surrounding uses, and landscape planting in the aesthetic continuity of surrounding sites.

D.

In developing architectural design guidelines and standards, consideration shall be given to: the existing variety of form and massing of elements; the size and proportions of surrounding structures; the predominant directional expression of nearby buildings; the articulation of main building entrances; the roof forms and composition of structures found in the area; the recurrent alteration of wall areas with door and window elements in facades; and the building materials, texture, and color schemes of surrounding buildings.

E.

The design guidelines and standards shall be adopted by resolution by the council.

(Ord. No. 4153, § 2, 2014)

A.

Adopted country town business district design guidelines and standards shall be administered by the director of planning; however, approved drainage and roadway guidelines and standards shall be administered by the director of public works. Design plans for improvements within the B-CT country town business districts shall be approved by the director of planning in accordance with established guidelines or the architectural character of existing town design until such time as guidelines are approved for an area.

B.

Pending adoption by the council of the country town business district design guidelines and standards required under section 19.510.110, the director of planning shall review all proposals so as to enhance design features of country towns and shall consider the following factors in the review:

1.

Siting should reflect the functional and spatial relationships with surrounding uses, including preservation of scenic and historic view corridors;

2.

Landscape planting should enhance the aesthetic continuity of surrounding sites;

3.

Building massing should be compatible with the existing variety of form and massing elements;

4.

Building scale should respect the size and proportions of surrounding structures;

5.

Directional orientation should foster the relationship of the predominant directional expression of nearby buildings;

6.

Entry features should reflect the manner of articulation of main building entrances;

7.

Roof form and composition should be compatible with that of structures found in the area;

8.

Patterns of facade openings should be compatible with the recurrent alteration of wall areas with door and window elements; and

9.

The use of building material type, texture, and color schemes should be compatible with those of surrounding buildings.

(Ord. No. 4153, § 2, 2014)

A.

An applicant may appeal a final determination on a design plan made by the director of planning pursuant to section 19.510.120 by filing a notice of appeal with the appropriate planning commission within ten days after such final determination. Upon review, the planning commission may affirm the decision of the director of planning or reverse or modify the director of planning's decision if:

1.

The decision was based on a clearly erroneous finding of a material fact or error of law; or

2.

The decision was arbitrary, or capricious, or characterized by abuse of discretion; or

3.

The proposed design plan maintains the design integrity of the B-CT country town business district.

B.

The appeal of the director's determination shall be placed on the next available commission agenda as a non-public hearing item.

(Ord. No. 4153, § 2, 2014)

Nothing in this chapter shall be construed to abrogate the authority and duties of the council and the boards and commissions of the county which are not referred to herein.

(Ord. 2032 § 5 (part), 1991)

A.

Application Required. All applications for variances from the strict administration of a provision of the zoning ordinances of the county and all applications of appeals by persons aggrieved by a decision or order of any department charged with the enforcement of the zoning ordinances of the county which allege that the decision or order which is the subject of the appeal was erroneously rendered shall be filed with the director of public works in a written form prescribed by the director.

B.

Required Information. All applications for variances or appeals shall include, but not be limited to, the following:

1.

The information required by section 19.510.010(D)(1) through (6); except, that the information required by subsection 19.510.010(D)(6), pertaining to the list of owners and lessees adjacent to and across the street from the subject parcel, need not be provided for appeals; and

2.

For an appeal, a written analysis by the aggrieved person which shows:

a.

That the subject decision or order was based on an erroneous finding of a material fact or erroneously applied to the law,

b.

That the subject decision or order was arbitrary or capricious in its application, or

c.

That the decision or order was a manifest abuse of discretion, and

d.

Any other pertinent information which supports or clarifies the appeal.

3.

For an application for a variance, the applicant shall be either the owner of the subject parcel of land or the lessee, who holds a recorded lease with an unexpired term of not less than five years from the date of the filing of the application with the director of public works. The application shall include the following:

a.

The nature of the variance requested,

b.

The applicable ordinances, rules, or regulations which pertain to the application,

c.

The conditions, circumstances, and provisions which support the granting of the application which include, but which are not limited to, a written analysis which indicates:

i.

A description of the exceptional, unique, or unusual physical or geographical condition which exists on the subject property and which is not generally prevalent in the neighborhood or surrounding area,

ii.

A description of whether the use sought to be authorized by the variance would alter the essential character of the neighborhood surrounding the subject parcel,

iii.

A description of the restrictions which prevent the reasonable use of the subject property if the applicant were to strictly comply with the applicable provisions of this title, and

iv.

A description of all previous actions of the applicant which created the hardship which the applicant is claiming,

d.

All previously approved building permits and violation notices for the subject parcel,

e.

Dated photographs of the site or structure which relate to the variance request,

f.

A notice of application which is in a form prescribed by the director of public works and an affidavit certifying that this notice was mailed to all owners and lessees adjacent to and across the street from the subject property. The notice of application shall include the following information:

i.

The name, address and telephone number of the applicant,

ii.

A brief description of the existing uses and uses for which the application was filed, and

iii.

A location map and a description of the location of the use which the applicant has applied for and the tax map key number and street address, if available, for the subject property, and

g.

Drawings stamped, prepared by, or under the supervision of a licensed engineer, surveyor, or architect, if applicable,

h.

A site plan drawn to scale which shows, if applicable:

i.

The property lines and easements, with dimensions and area calculations, of the subject property,

ii.

Location, size, spacing, setbacks, and dimensions of all existing and proposed buildings, structures and improvements,

iii.

The building elevations, sections, and floor plan and site sections which clearly define the character of the development,

iv.

The existing and proposed landscaping plans which show open spaces, plantings, and trees,

v.

The existing streets which access the property and all proposed roads and parking areas, with dimensions, and

vi.

The shoreline, shoreline setback lines, stream and other setback lines,

i.

A description of the existing and proposed floor area, parking and loading calculations and areas of the subject property, if appropriate,

j.

All topographic information which shows existing features and conditions and any proposed grading, if applicable, and

k.

All other information requested by the director of public works to assess the impact of the proposed request, and

4.

A processing fee in the amount set forth in the annual budget of the county; except that no processing fee shall be required for applications filed by county agencies; and except that the processing fee paid for filing an appeal (not a variance application) shall be refunded to the appellant if and only if the board of variances and appeals renders a final decision and order in favor of the appellant.

(Ord. 2563 § 2, 1997; Ord. 2032 § 5 (part), 1991)

A.

Determination of Completeness. Not more than ten business days after an application for a variance or an appeal has been filed with the director of public works, the director shall determine whether the application is complete and indicate the date upon which the application was determined to be complete or incomplete. Also, within the ten-day period specified in this section, the director shall schedule the completed application for a variance for a public hearing date or the completed application for an appeal for a meeting date on the agenda of the board of variances and appeals, or return the incomplete application to the applicant with a statement identifying the reasons for which the application was determined to be incomplete.

B.

Report.

1.

Not more than forty-five calendar days after the date upon which an application has been determined to be complete, the director of public works shall prepare and transmit a report to the board of variances and appeals which includes, but which is not limited to, the filed application and an analysis of the application as it relates to the provisions of this title.

2.

Not less than six business days prior to the date of the public hearing on the application for a variance or the meeting date on an appeal, the director of public works shall transmit the director's report to the applicant, interested persons, the planning director and other appropriate county or state agencies.

C.

Public Hearing Notice. Not less than thirty calendar days prior to the public hearing date for an application for a variance, the director of public works shall publish notice of the date, time, place, and subject matter of the public hearing once in a newspaper which is printed and issued at least twice weekly in the county and which is generally circulated throughout the county and shall transmit a copy of the notice to the planning director.

(Ord. 2032 § 5 (part), 1991)

Pursuant to the charter of the county and in accordance with provisions of this title, the board of variance and appeals shall hear and determine appeals alleging error from any person aggrieved by a decision or order of any department charged with the enforcement of zoning, subdivision, or building ordinances which is within the jurisdiction of the board of variances and appeals. An appeal may be granted only if the board finds one of the following:

1.

That the subject decision or order was based on an erroneous finding of a material fact or erroneously applied the law;

2.

That the subject decision or order was arbitrary and capricious in its application; or

3.

That the subject decision or order was a manifest abuse of discretion.

(Ord. 2032 § 5 (part), 1991)

A.

At the time of filing the application, the applicant must provide notice of application in accordance with subsection 19.520.020(B)(3)(f).

B.

Not less than thirty calendar days prior to the public hearing date on an application for a variance, the applicant must give notice by certified mail, return receipt requested, of the date, time, place, and subject matter of the public hearing, in a form prescribed by the director of public works, to the owners and lessees of record adjacent to the subject property, and must submit any updated names and addresses of these owners and lessees derived from the return receipts received on the notices of application previously mailed to these owners and lessees. Not less than ten business days prior to the date of the public hearing, the applicant must submit all certified mail receipts received for the certified mail sent out. For purposes of this section, notice will be considered validly given upon compliance with the following provisions:

1.

The applicant must make a good faith effort to mail a copy of the notice of public hearing in a form approved by the director of public works by certified mail, return receipt requested, to all owners and lessees of record located adjacent to and across the street from the subject parcel.

2.

The applicant must publish a copy of the notice of public hearing in a form approved by the director of public works once per week for three consecutive weeks prior to the public hearing date in a newspaper of general circulation that is printed and issued at least twice weekly in the County.

C.

In accordance with the charter of the County of Maui (1983), as amended, the provisions of this article, and the procedures established in this chapter, variances from the provisions of this title may be granted by the board of variances and appeals if the board finds that due to the particular physical surroundings, shape, or topographical condition of the subject property, compliance with the provisions of this chapter would result in hardship to the owner that is not mere inconvenience or economic hardship on the applicant.

1.

For all areas of the County outside the Wailuku redevelopment area, the board must grant a variance if the board finds the following:

a.

There is an exceptional, unique, or unusual physical or geographical condition existing on the subject property which is not generally prevalent in the neighborhood or surrounding area and the use sought to be authorized by the variance will not alter the essential character of the neighborhood.

b.

Strict compliance with the applicable provisions of this title would prevent reasonable use of the subject property.

c.

Any conditions creating a hardship are not the result of previous actions by the applicant.

2.

Within the Wailuku redevelopment area, variances from strict compliance with this title, the Wailuku redevelopment area design guidelines, or the Wailuku redevelopment plan, may be permitted when the variation is consistent with the objectives of economic revitalization or conservation, including the preservation, maintenance, and management of natural or man-made resources, and when one or more of the following conditions justify the variation:

a.

Site topography makes full compliance impractical.

b.

Local practices, customs, and neighborhood character that are long established in the area ensure the continued community and market acceptance of the variation, as evidenced in public testimony.

c.

The design and plans for the site incorporate improved or compensating features that will provide equivalent desirability and utility.

d.

The project will further the elimination of slum and blight, repurpose and revitalize historic buildings and assets, and forward the vision, principles, and objectives of the Wailuku redevelopment plan.

D.

For variances within the Wailuku redevelopment area, mitigative measures must be incorporated into the project to protect the public health, safety, and welfare. The board must not grant variances for property designated for single-family use in the Wailuku-Kahului community plan area.

E.

The board of variances and appeals must comply with the general plan and the community plan provisions of the County. The board must not grant an application for a variance that requests a use that does not conform with the applicable community plan designation for the subject property.

F.

On every application for a variance, the board of variances and appeals must review the report submitted by the director of public works and hold a public hearing. At the close of the public hearing, the director of public works must submit a written recommendation to the board which recommends that the board either grant, grant subject to conditions identified by the director, or deny the application for a variance. Unless a formal, contested case hearing on the application has been approved by the board, the board must take action on the application within sixty calendar days from the date of the public hearing.

(Ord. No. 5305, § 4, 2021; Ord. 2032 § 5 (part), 1991)

Any approval or permit issued pursuant to the provisions of this title shall comply with all applicable requirements of this article.

(Ord. 2032 § 5 (part), 1991)

A.

Any person convicted of a violation of this title shall be sentenced as follows:

1.

For a first offense, by a fine not exceeding $1,000 and one of the following:

a.

Thirty-two hours of community service, as authorized by and defined in section 706-605(1)(f) of the Hawai&#699 Revised Statutes, as amended, or

b.

Forty-eight hours imprisonment.

2.

For a second offense which occurs within five years of any prior conviction for violation of this title, by a fine not exceeding $1,000 and one of the following:

a.

Sixty-four hours of community service as authorized by and defined in section 706-605(1)(f) of the Hawai&#699 Revised Statues, as amended, or

b.

Ninety-six hours of imprisonment.

3.

For a subsequent conviction which occurs within five years of any two prior convictions under this title by a fine of not less than $500 but not exceeding $1,000 and one of the following:

a.

Not less than sixty-four hours but not exceeding one hundred and forty hours of community service as authorized by and defined in section 706-605(1)(f) of the Hawai&#699 Revised Statutes, as amended, or

b.

Not less than ninety-six hours but not exceeding thirty calendar days imprisonment.

B.

After a conviction for a first violation under this title, each further day of violation shall constitute a separate offense if the violation is a continuance of the subject of the first conviction.

C.

The imposition of a fine under this section shall be controlled by the provisions of the Hawai&#699 Penal Code relating to fines, section 706-641 through 706-645 of the Hawai&#699 Revised Statutes.

D.

The county may maintain an action for an injunction to restrain any violation of the provisions of this title and may take any other lawful action to prevent or remedy any violation.

E.

Any personnel authorized by the director of public works may arrest, without warrant, alleged violators by issuing a summons or citation in accordance with the procedure specified in this section. Nothing in this section shall be construed as barring such authorized personnel from initiating prosecution by penal summons, by complaint, by warrant or such other judicial process as is permitted by statute or rule of court.

F.

Any personnel authorized by the director of public works making an arrest for a violation of this title may take the name and address of the alleged violator and shall issue to the alleged violator a written summons or citation, notifying the alleged violator to answer at a place at a time provided in the summons or citation.

G.

There shall be provided for use by authorized personnel a form of summons or citation for use in citing violators of this title which does not mandate the physical arrest of such violators. The form and content of such summons or citation shall be as adopted or prescribed by the administrative judge of the district court and shall be printed on a form commensurate with the form of other summons or citations used in modern methods of arrest, so designed to include all necessary information to make the same valid under the laws and regulations of the state and the county.

H.

In every case when a citation is issued, the original of the same shall be given to the violator, provided that the administrative judge of the district court may prescribe the giving to the violator of a carbon copy of the citation and provide for the disposition of the original and any other copies.

I.

Every citation shall be consecutively numbered and each carbon copy shall bear the number of its respective original.

(Ord. 2032 § 5 (part), 1991)

In lieu of, or in addition to, enforcement by criminal prosecution, if the director of public works, the director of environmental management, the director of water supply, or the planning director determines that any person is violating or has violated any provision of titles 8, 12, 14, 16, 18, 19, and 20 of this code, any rules adopted thereunder, or any permit issued thereto, the director with jurisdiction over the relevant ordinance, rule, or permit, shall have the person served by mail with proof of mailing or personal delivery, with a notice of violation and order pursuant to this chapter and such administrative rules as the director may adopt. If service by mail or personal delivery fails, the director shall provide service by posting the notice of violation and order in a conspicuous place on the property where the violation is occurring or occurred, or at the last known address of the violator, or by publishing a notice at least once per week for two consecutive weeks in a newspaper of general circulation in Maui County.

A.

Contents of the notice of violation. The notice shall include at least the following information:

1.

Date of the notice.

2.

The name and address of the person noticed.

3.

The section number of the provision or rule, or the number of the permit that has been violated.

4.

The nature of the violation.

5.

The location and date of the violation.

B.

Contents of the order.

1.

The order shall require the person to do one or more of the following:

a.

Cease and desist from the violation.

b.

Correct the violation at the person's own expense before a date specified in the order.

c.

Pay a civil fine not to exceed $1,000 in the manner, at the place, and before the date specified in the order, except that the initial civil fine shall not exceed $20,000 for the operation of a bed and breakfast home, short-term rental home, transient vacation rental, or other transient accommodation, without a permit that is required for the operation, unless a higher fine is authorized by State law.

d.

Pay a civil fine not to exceed $1,000 per day for each day in which the violation persists, in the manner and at the time and place specified in the order, except that the daily civil fine shall not exceed $10,000 for the operation of a bed and breakfast home, short-term rental home, transient vacation rental, or other transient accommodation, without a permit that is required for the operation, unless a higher fine is authorized by State law.

e.

Pay a civil fine not to exceed 1 percent of the project cost as provided in subsection 20.08.260(E)2 of this code.

2.

The order shall advise the person that the order shall become final unless an appeal is filed with the board of variances and appeals within thirty days after the date of its mailing or delivery.

C.

Effects of order; right to appeal. The provisions of the order issued by the director of public works, the director of environmental management, the director of water supply, or the planning director under this section shall become final unless an appeal is filed with the board of variances and appeals within the thirty-day period. However, an appeal to the board of variances and appeals shall not stay any provision of the order.

D.

Collection of unpaid civil fines. In addition to any other procedures for the collection of civil fines available to the county by law or rules of the court, the county may add unpaid civil fines as herein defined to any county taxes, fees or charges except for residential water or sewer charges.

E.

Judicial enforcement of order. The director of public works, the director of environmental management, the director of water supply, or the planning director may institute a civil action in any court of competent jurisdiction for the 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 or agency 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, and that the fine imposed has not been appealed in a timely manner nor paid.

(Ord. No. 5001, § 2, 2019; Ord. No. 3621, § 1, 2009; Ord. 2684 § 26, 1998: Ord. 2521 § 1, 1996: Ord. 2205 § 1, 1992: Ord. 2032 § 5 (part), 1991)