First Addition to the 4-13-2021 PC Agenda
4444 Rice Street, Suite A473 • Līhu‘e, Hawai‘i 96766 • (808) 241-4050 (b) An Equal Opportunity Employer
PLANNING COMMISSION
DONNA APISA, CHAIR HELEN COX, VICE CHAIR MELVIN CHIBA, MEMBER FRANCIS DEGRACIA, MEMBER ROY HO, MEMBER GLENDA NOGAMI-STREUFERT, MEMBER LORI OTSUKA, MEMBER
KAAINA S. HULL, CLERK OF COMMISION
MEMORANDUM
DATE: April 12, 2021
TO: Planning Commission
FROM: Clerk of the Commission
SUBJECT: 1st Addition to the Planning Commission 4/13/2021 Agenda
F. HEARINGS AND PUBLIC COMMENT
2. New Agency Hearing
a. Green Earth Matters, Inc.
4. Memorandum in Opposition to Moloa‘a Farms LLC and Jeffery Linder’s
Petition to Intervene.
5. Letter (4/12/2021) from Kanoe Ahuna, Ph.D.
b. Michael A. Kaplan Revocable Trust
4. Applicant Michael Kaplan’s Objection to Petition for Intervention and
Request for Hearing.
c. Association of Apartment Owners of the Makahuena at Po‘ipū
3. Letter (3/23/2021) Felicia Cowden, Councilmember, Kaua‘i County
Council.
4. Email (4/4/2021) from Makaala Kaaumoana.
5. Letter (4/7/2021) from Kōloa Community Association.
6. Letter (4/13/2021) from Kaaumoana.
7. File Plan 1702, Adjacent Access.
8. Letter (undated) from Sara Sloan, General Manager, The Makahuena at
Po‘ipū.
9. Letter (undated) from Edward Schimmlefennig.
10. Letter (undated) from Christopher Bartlett and Lindsay Nakamura.
11. Letter (undated, received 4/9/2021) from Judy Foss.
PAGE 2
I. GENERAL BUSINESS MATTERS
1. Gather Federal Credit Union
b. Letter (4/8/2021) from Sherman Shiraishi, Esq.
April 12,2021
Re:Green Earth Matters,Inc.-Amendment to Class IV Zoning Permit (Z-IV-2017-12),Use
Permit [U-2017-10J,and Special Permit fSP-2017-5}
AIoha ChairApisa and Members ofthe Planning Commission,
Please accept this as written testimony for the Amendment to Class JVZoning Permit
(Z-IV-2017-12),Use Permit (V-201 7-10).and Speclal Permit (SP-201 7-5)to allow
construction ofan office facllity and two (2)storage buildings for the green waste
composting operatlon involving Units 69 &70 of the Moloa'a Hui I Condominium,on a
parcel situated along the makai side of Kahio Highway in Moloa'a.
As a curreat school principal ofa charter school in Anahola and an active community
member,I am in support of Green Earth Matters,Inc.'s amendment to the permlts
requested above.Green Earth Matters,Inc.is founded and managed by a Kauai-born
resident,BrandonMiranda.Mr.Miranda has proven to support Kauai's local and growing
agricultural economy as well as employ Kauai locals.Green Earth Matters (GEM)provides
an alteroative option for both residential and commercial green waste recyding.The green
waste recycling produces an end product that is beneflcial for local horticulture and
agriculture.
Over the past three years,Green Earth Matters has proven to support and provide
opportunities for safe and healthy community projects.For instance,GEM provides our
charter school with continuous compost and high grade soil in support ofour 'ike 'aina
projects on our school carapus.'Ike 'Aina projects are kindergarten through grade twelve
student-driven agricultural activities that support our school's food forest,natlve plant
gardens,and our farm to table gardens.We look forward to building our partnership with
GEM to Include opportunlties such as a safe educational tour of their facillties as well as
teacbing our students and staff about green waste recycling,composting,and different
types ofsoils for agriculture.
I support Green Earth Matters,Inc.and believe that their services and green waste recyded
products are beneflcia]to the current and continued growth ofpositive agriculture on
Kauai and Kauai's overall envlronment.Moreover,'ike 'aina projects supported by
organizations like Green Earth Matters are invaluable to the education and healthy lifestyle
ofour keiki and the Kauai community at-large.
lahalo nui,
;anoe Ahuna,Ph.D.
Principal/Executive Director
Tr^^.^
APR
BRONSTER FUJICHAKU ROBBINS
A Law Corporation
MARGERY S. BRONSTER 4750
REX Y. FUJICHAKU 7198
1003 Bishop Street, Suite 2300
Honolulu, Hawai‘i 96813
Telephone: (808) 524-5644
Facsimile: (808) 599-1881
MCCORRISTON MILLER MUKAI MACKINNON LLP
LAUREL LOO 4806
4537 Rice Street, Suite 201
Lihue, Hawai‘i 96766
Telephone No.: (808) 977-8015
Attorneys for Applicant MICHAEL KAPLAN,
Trustee of the Michael A. Kaplan
Revocable Trust, dated August 12, 1992
IN THE PLANNING COMMISSION OF THE
COUNTY OF KAUAI
In the Matter of the Application
of
MICHAEL KAPLAN, Trustee of the
Michael A. Kaplan Revocable Trust,
date August 12, 1992 as amended
and restated by instrument dated
July 16, 2017, affecting real
property located at Kahili Ahupua’a,
Hanalei, Island and County of
Kauai, State of Hawaii, more
particularly identified as Tax Key
No. (4) 5-2-012:019, and containing
an area of 32,034 sq. ft., more or
less.
APPLICANT MICHAEL KAPLAN’S
OBJECTION TO PETITION FOR
INTERVENTION AND REQUEST FOR
HEARING; EXHIBITS “1” - “5”
[Re: Application for Class IV Zoning
Permit (Z-IV-2021-8) and Use Permit
(U-2021-7)]
Related property: TMK # (4) 5-2-
012:019
Hearing date: April 13, 2021
Hearing Time: 9:00 a.m.
2
APPLICANT MICHAEL KAPLAN’S OBJECTION TO PETITION
FOR INTERVENTION AND REQUEST FOR HEARING
Applicant MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable
Trust, dated August 12, 1992 (“Kaplan”), objects to the Petition for Intervention
(“Petition”) submitted on April 6, 2021 on behalf of West Sunset 32 Phase 1,
LLC, Charles Somers, as Trustee of the Charles Somers Living trust, CS
Development, and Charles Somers (collectively “Somers”). The County of Kauai
Planning Commission (“Commission”) should deny intervention by Somers in
the proceeding for approval of the Application for a Class IV Zoning Permit (Z-
IV-2021-8) and Use Permit (U-2021-7) (“Subject Permits”) for the property
identified by Tax Map Key: (4) 5-2-012:019 (“Kuleana Parcel”). Kaplan requests
a hearing on this issue.
I. Introduction
Intervention should be denied because Somers fails to meet the
requirements established by the Rules of Practice and Procedure of the
Planning Commission (“RPPPC”). The Application seeks approval for Kaplan to
complete construction of the single-family two-bedroom house on the Kuleana
Parcel. Nothing more. While Somers has falsely portrayed the Application as
an attempt to revive permits previously granted by the Commission for a larger,
multi-structure development, Kaplan has abandoned those plans pending
judicial review by the appellate courts.
The instant Application seeks approval only for a single-family, single-
story dwelling on a kuleana lot. The total lot coverage is 2,791 square feet and
the house’s footprint will occupy 8.7% of the Kuleana Parcel. See Application
3
at 4. The house does not require any variance or other exceptions for its height,
size, building material or other features. Id. at 7. The Application and its 13
exhibits provide the Commission comprehensive information of the proposed
residence and the property, its location, its size, its floor plan, topographic and
drainage information, and environmental and archeological concerns. The
Application also addresses how the proposal complies with the county General
Plan, the North Shore Development Plan, the Comprehensive Zoning Ordinance
(“CZO”), land use designations and zoning, prior uses, and native Hawaiian
gathering rights. The Planning Department has issued a Departmental
Determination (DD-2021-13) that the “proposed single family dwelling would
not be considered development” under the County Special Management Area
(“SMA”) Rules. Exhibit “M” to Application.
The Commission’s review of the Application should be a straight-forward
matter. Intervention by Somers would turn a simple proceeding into a farce.
As he has in the past, Somers will hijack the contested case process for his
own goal of preventing Kaplan from ever building anything on his kuleana
parcel. As we show below, Somers has misled the Commission in his attempt
to assert himself as the development authority and replace the Commission as
the decisionmaker. He misstates the facts, misstates the law, and shamelessly
mischaracterizes the Application and its contents. If allowed to intervene,
Somers will continue to use the Commission process for his own personal
agenda.
4
Somers has openly criticized the Commission in court proceedings,
challenged the Commission’s decision making (even though he personally
benefitted from the exact same processes that he later challenged as
inappropriate), and is seeking to supplant the Commission. The Petition
reflects that Somers intends to act as the enforcer of the CZO and the Kauai
County zoning policies, but the right to supervise and enforce the law has been
granted to the Commission, not Somers. His intervention will not address,
reveal or develop any issues that have not already been addressed in the
Application. In addition to not having a legally cognizable right to intervene,
Somers will not aid in the Commission’s review of the Application and will
undoubtedly cause unnecessary expense and delay in making a determination
on the Application. Indeed, undersigned counsel is not aware of one instance
where the Commission granted intervention where a kuleana owner sought
approval to build a single-family house that did not require a SMA use permit.
Granting Somers’s Petition will serve as a dangerous precedent.
For these reasons, Kaplan requests that the Petition be denied and
Somers not be allowed to intervene.
II. The Nature of Kaplan’s Application
The Application is for a single-story structure that will occupy less than
10% of the total area of the Kuleana Parcel, which is 32,034 square feet, more
or less. Application at 2. The total lot coverage of the proposed dwelling is
2,791 square feet. Id. at 4. The Planning Department has determined that the
5
residence is not a “development” requiring a SMA use permit. See Exhibit “M”
to the Application.
Somers’s Petition attempts to confuse the Commission by asserting that
the residence is a development that requires a SMA use permit. Not true. As
the Application explains (at 3-4 and 7-8), and Somers in his Petition (at 3-5)
confirms, in 2010 the Commission had issued permits to Kaplan’s predecessor
in interest, Hendrikus. Those permits, Special Management Area Use SMA (U)
2011-1, Class IV Zoning Permit Z-IV-2011-1, and Use Permit U-2011-1 (“Prior
Permits”), were for a development of multiple structures, installations, and
other development activities on the Kuleana Parcel, the adjoining Parcel 41
which Kaplan also owns, and a portion of Somers’s property subject to access
easements in favor of Kaplan’s property.
As Somers acknowledged, the Prior Permits have been vacated on appeal
by the Circuit Court. Kaplan is not asking the Commission to restore them,
and instead has filed a secondary appeal with the Intermediate Court of
Appeals, which remains pending. Kaplan is respecting the judicial
consideration of the Prior Permits. Instead of proceeding with the larger
development, Kaplan is seeking approval of a narrower and limited residential
construction that is not development under the SMA laws and regulations.
Somers threatens to turn what should be a simple and straightforward
use permit review for a single-family residence on kuleana land into an
unnecessary and prolonged contested case. Somers seeks to have the
Commission rehash the Prior Permits while their disposition is still pending in
6
the Intermediate Court of Appeals. Somers asks the Commission to review and
incorporate thousands of irrelevant pages in the review of the Application. Such
a review is unnecessary, inappropriate, and wholly inefficient. To allow Somers
to intervene and force consideration of the Prior Permits would be a re-litigation
of already-decided issues in an improper forum.
III. Somers Intentionally Misleads the Commission
Somers makes misleading and inaccurate statements in the Petition in
an attempt to convince the Commission that his intervention is appropriate.
He self-aggrandizes his rights, misrepresents the contents of the Application,
and mischaracterizes the proposed construction. Among other
misrepresentations in the Petition, Somers incorrectly states that the Circuit
Court has already found that he has standing and that a portion of Kaplan’s
project area is within a portion of Somers’s property encumbered by
conservation easement C-1 and is subject to the terms and conditions of
easement GU-4. Neither is true. The fact that Somers is willing to stretch the
truth to intervene demonstrates that he is not concerned with the public
interest or native Hawaiian rights, only his own self-serving agenda to oppose
his neighbors at every opportunity.
First, the Circuit Court has not found that Somers has standing to
intervene in the Commission’s consideration of the Application. While the
court did find that Somers had standing to challenge the Prior Permits, those
permits were for a larger development covering multiple parcels of land,
including an access easement (GU-4) on Somers’s adjacent property. In
7
contrast, the Application relates only to the Kuleana Parcel. Somers owns no
portion of the Kuleana Parcel. The Application does not propose any
construction, removal of structures, or other activity on easement GU-4.
Second, no part of the single-family residence will be located on, affect,
or occur within conservation easement C-1, which Somers was forced to grant
on his own property in order to build his Mansion. The proposed structure is
entirely within the Kuleana Parcel and entirely on Kaplan’s property. There is
no part of the construction that would affect or occur on any part of Somers’s
property.
Simply put, to allow Somers to intervene in this matter based on
misrepresentations is inappropriate and would set a bad example for all
applications to intervene moving forward. If a proposed intervenor is allowed to
make misrepresentations to undertake a contested case proceeding, then every
single use permit application would be required to go through the contested
case process at anyone’s whim.
IV. Somers Does Not Qualify For Intervention
RPPPC Rule 1-4-1 provides three categories of individuals who are
eligible to intervene: (1) all Persons who have or hold an interest in the subject
land, (2) all Persons who lawfully reside on the land, or (3) all Persons who
otherwise can demonstrate that they will be so directly and immediately
affected by the proposed application that their interest in the proceeding is
clearly distinguishable from that of the general public. Somers does not qualify
under any of the three categories.
8
A. Somers Does Not Own or Reside on the Land
Somers does not have or hold any interest in the Kuleana Parcel and he
does not reside there, so neither of the first two categories are applicable. The
Petition incorrectly states that “a portion of Kaplan’s project area is within a
portion of Somers’ property”. Petition at 7. This is false. No part of the
proposed construction is on any portion of Somers’s property. The Application
clearly delineates where the house will be situated and it is entirely on the
Kuleana Parcel. See Exhibits “D”, “E”, “G”, and “I”. Exhibit “I” in particular
contains the boundary of the Kuleana lot in red and contains the entirety of the
proposed structure within the red lines.
Somers does own property that has a conservation easement over it, but
the house for which the Subject Permits are being sought is not being built on
that land. While Somers attempts to widen the geographic scope of the
Application to include other structures and areas on other parcels, the
Application itself shows that the Subject Permits are being sought to build the
house only on the Kuleana Parcel.
Somers tries to conflate the “project area” for the Prior Permits granted to
Kaplan by the Commission for Parcel 41 and the Kuleana Parcel (now subject
to appeal) with the construction area proposed under the Application. The two
are not the same. Under the Application, the entirety of the proposed
structure, and any and all proposed construction, will be solely within the
Kuleana Parcel, and not Parcel 41 or any parcel owned by Somers. Therefore,
while Somers may have had an “interest in the land” under the prior permits
9
which encompassed multiple parcels and a part of Somers’s property in the
total “project area”, the Application has a much smaller scope and does not
include or involve Somers’s property at all.
B. Somers Does Not Have a Clearly Distinguishable Interest From
that of the General Public
As for the third category of those who may intervene, Somers does not
identify any interest that will be “so directly and immediately affected” by the
Application that his interest “is clearly distinguishable from that of the general
public.” RPPPC Rule 1-4-1. The Petition argues that Somers’s interests are
clearly distinguishable where the proposed construction could harm (1)
Somers’s right to a clean and healthful environment, (2) his ability to engage in
recreational activities (not on the Kuleana Parcel), (3) his “scenic resources”
and (4) his conservation easements (that do not encumber the Kuleana Parcel).
See Petition at 6-8. None of these purported interests are “clearly
distinguishable from that of the general public.”
The public has an interest in a clean and healthful environment, the
public has an interest in recreational activities (not on the Kuleana Parcel), the
public has an interest in maintaining scenic resources, and the conservation
easements encumber Somers’s property, not the Kuleana Parcel. As a result,
Somers has failed to demonstrate that he has an interest that is clearly
distinguishable from the general public and has failed to establish that he may
intervene in the Application process under RPPPC 1-4-1.
Somers asserts that, “Kaplan’s development will change existing drainage
patterns, cause harmful environmental consequences to the Kilauea Stream
10
and significantly adversely affect the Conservation Values of C-1[.]” Petition at
7. These statements are unsupported, misrepresent the contents of the
Application, and fail to show a personal interest distinguishable from the
general public. Somers does not explain how the proposed structure could
possibly change existing drainage patterns. Somers does not explain how a
single-family house, located entirely on the Kuleana Parcel, could possibly
harm the Kilauea Stream or affect the conservation easement on his property,
which is separate and apart from the Kuleana Parcel. His arguments are
speculative, at best.
Somers mischaracterizes the construction proposed by Kaplan as
“increasing the interior living area of the single-family residence from 2,098 sq.
ft. to 2,353 sq. ft.” See Petition at 4. Even if this were true, the amount that the
interior living area is increased is irrelevant to a structure’s overall effect on the
environment unless it corresponds to an increase in the structure’s exterior
footprint. As Somers knows well, Kaplan’s application actually reduces the
exterior footprint of the proposed single-family dwelling from that proposed in
the previously approved permits. This blatant attempt to mislead the
Commission is, sadly, characteristic of and in keeping with the rest of the
Petition.
Further, were the Commission to agree with the claims in the Petition,
Somers still has not identified any harm to himself personally that would be so
direct and immediate that it is clearly distinguishable from the general public.
Somers must satisfy all elements of a three-part “injury in fact” test that
11
requires: “(1) an actual or threatened injury, which, (2) is traceable to the
challenged action, and (3) is likely to be remedied by favorable judicial action.”
Citizens for the Protection of the North Kohala Coastline v. County of Hawai‘i, 91
Hawai‘i 94, 100, 979 P.2d 1120, 1126 (1999).
The Hawaii State Constitution, the General Plan, the Coastal Zone
Management Act, and the Comprehensive Zoning Ordinances all express the
public’s concern for the environmental effects of construction. So, to the extent
that the Application would result in changes to drainage patterns, harm to the
Kilauea Stream, or other adverse environmental impacts, it is of concern to the
entirety of the general public, not just Somers. The concerns about the
environment expressed in the Petition overlap with the laws of the State of
Hawaii, and therefore Somers’s interest is the exact same as that of the general
public. Consequently, Somers’s claims of seeking to protect the environment
are insufficient to establish a right to intervene.
With respect to being an adjoining landowner, there is no impact that the
proposed structure would have on Somers. Kaplan seeks approval to build a
single-family dwelling on a kuleana lot like so many others that are routinely
permitted without an agency hearing. The proposed house will have a low
profile, will be inset into the ground in conformity with the natural grade of the
land, will be surrounded by trees, and will not be visible from Somers home.
See Application at 5-6 and Exhibits “1”. The renderings of the proposed
structure show that it will be concealed within the tress and natural stone low
walls. See Exhibit “1” (front rendering and back rendering of proposed house).
12
The structure will not obstruct Somers’s view from his sprawling mansion,
which is three-quarters of a mile away from the proposed home site. See
Exhibits “2” (photograph with red line showing distance in feet from the Somers
Mansion to home site), “3” (photograph of home site in relation to the Somers
Mansion in foreground), and “4” (Mansion).
Most implausible is Somers’s claim to be protecting native Hawaiian
rights. Somers has not shown that he will sustain a personal injury
implicating any native Hawaiian rights. Denial of intervention on that basis is
clear. See Public Access Shoreline Haw. v. Haw. Cty. Planning Comm’n, 79
Hawai‘i 246, 255, 900 P.2d 1313, 1322 (App. 1993) (holding that proposed
intervenor did not show personal interest where he did not engage in protected
native Hawaiian gathering rights), aff’d, 79 Hawai‘i 425, 903 P.2d 1246 (1995).
C. The Case Law Does Not Support Somers’s Intervention
The cases Somers cites to justify intervention as a neighbor are all
distinguishable, especially where the zoning approvals at issue in those cases
were for significant changes in use or for variances or exemptions of existing
zoning. See Petition at 9. In East Diamond Head Association v. Zoning Board of
Appeals, 52 Haw. 518, 519, 479 P.2d 796, 797 (1971), a variance was granted
to build a movie studio in a residential neighborhood. It was noted that the
variance sought would have caused a substantial change in the character of
the neighborhood. Id. at 521, 479 P.2d at 798. Neighboring landowners, who
had not intervened in the agency proceeding, appealed. Id. The Hawai‘i
Supreme Court reviewed the requirements for standing to bring an agency
13
appeal pursuant to HRS § 91-14, and not whether the parties had a right to
intervene or had an interest that was ‘clearly distinguishable’ from the general
public. Id. at 521-24, 479 p.2d at 798-99.
In Dalton v. City and County of Honolulu, 51 Haw. 400, 401, 462 P.2d
199, 201 (1969), the Hawai‘i Supreme Court reviewed whether the parties had
standing to bring a civil action for declaratory relief in relation to challenge
newly-passed ordinances that permitted rezoning of a 47-acre parcel from
residential and agricultural uses to medium density apartment use. No agency
proceeding occurred. Thus, the case did not discuss whether the plaintiffs—
some of who “live[d] across the street from said real property”—would have
been able to intervene at an agency proceeding, because there was no petition
to intervene on the agency hearing and there was no agency hearing to begin
with. Id. at 403, 462 P.2d at 202.
Lastly, Waianae Model Neighborhood Assoc., Inc. v. City and County of
Honolulu, 55 Haw. 40, 46, 514 P.2d 861, 862 (1973), addressed whether a
neighborhood association had standing to seek declaratory relief to challenge
an exemption from the zoning code for a building permit for a hotel. The court
did not address the issue of whether the association had a right to intervene
solely based on being an adjoining landowner. Because language similar to
RPPPC Rule 1-4-1 was not discussed in this case, it does not support Somers’s
contention that he has a right to intervene by virtue of being an adjacent
landowner.
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Unlike a variance for a movie production studio in a residential
neighborhood, a zoning change to a 47-acre parcel, or an exemption for a hotel
building permit, Kaplan’s Application pertains to the construction of the
modest single-family dwelling on a kuleana parcel. The proposed residence will
not change or affect the character of the neighborhood. The house does not
require any variance or other exceptions for its height, size, building material
or other features. See Application at 7. Thus, the Application is distinguishable
from the cases cited by Somers.
V. The Commission Should Exercise Its Discretion to Deny
Intervention
Even if Somers somehow demonstrates eligibility to intervene under
RPPPC Rule 1-4-2, the Commission should nonetheless deny intervention
because Somers intends to use a contested case proceeding of the Application
for his own ends. The Commission should not allow Somers to abuse the
process and make a mockery of the Commission’s rules.
Leave to intervene falls within the sound discretion of the Commission.
RPPPC Rule 1-4-2 provides that leave to intervene may be denied when, in the
Commission’s or Hearing Officer’s discretion, it appears that (1) the admission
of additional Parties-Intervenors will render the proceedings inefficient and
unmanageable; or (2) the intervention will not aid in the development of a full
record and will overly broaden issues. See RPPPC Rule 1-4-2 (emphasis
added).1 Both conditions apply here to deny intervention.
1 RPPPC Rule 1-4-2 (1) also allows for denial of intervention where the position
of the applicant for intervention is substantially the same as the position of a
15
A. Intervention will Render the Proceedings Inefficient and
Unmanageable
Allowing Somers to intervene would render the proceedings inefficient
and unmanageable because the Petition shows that he will inject unrelated and
irrelevant issues into this proceeding. The Petition demonstrates that Somers
will bog down the proceeding by re-litigating the Commission’s grant of the
Prior Permits. This is a prime example of inefficiency where this very issue is
being considered by the ICA. The Petition makes numerous assertions about
the Prior Permits and the agency and court proceedings leading to the current
appeal. As such, Somers asks the Commission to review and incorporate
thousands of irrelevant pages in the review of the Application. There is no
justification to warrant an in-depth review of those proceedings as Somers
apparently desires. By bringing up irrelevant issues, Somers promises to make
the proceedings on the Application unmanageable because the Commission
would be required to review extraneous documents and consider irrelevant
testimony. The Prior Permits have been vacated and the Application is not an
effort to restore them. Somers should not be permitted to manipulate the
system in this way.
Somers has already shown that he will, if allowed, render this proceeding
inefficient and unmanageable by his intervention. The neighbors of one of
Somers’s many properties, Ms. Valerie Nielsen and Dr. David Kells, recently
applied for approval to construct a single-family home on their property. See
Party-Intervenor already admitted to the proceeding. Because there is no other
Party-intervenor in this case, this option is not applicable.
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Contested Case Hearing CC-2020-2. Somers was granted intervention when his
request was not objected to by applicants. The resulting contested case
required eight days of hearings over a period of four months (March to July
2020), and a decision on that application still hasn’t been issued. There is no
doubt that Somers will drag out the approval of the Application in the same
manner. Somers recently improperly requested the Court to issue a permanent
injunction prohibiting the County ever issuing any permits to Kaplan, which
the Court denied. All of this shows that allowing Somers to intervene would
only support Somers’s true agenda of obstructing Kaplan and make the
proceedings on the Application inefficient.
Somers’s intervention here would bog these proceedings down with
misrepresentations and mischaracterizations that are unrelated to the
Application and would inflict upon the Hearings Officer and the Commission
the unenviable task of wading through a morass of pleadings, statements,
testimony and other materials that do not pertain to the Application.
B. Intervention will not Aid in Development of a Full Record and
will Overly Broaden the Issues
The Application is clear, thorough and detailed. Any further information
needed by the Commission to assess the Application can be provided by
Kaplan. Allowing Somers to intervene will not aid in development of the record.
It will only cause stale and irrelevant issues to be raised in what should be a
simple and uncomplicated process.
The Petition fails to articulate any specific issue that Somers has with
the Application as required by RPPPC Rule 1-4-4(3). The issues specifically
17
raised in Section IV of the Petition are largely irrelevant and meritless. See
Petition at 10-11. For instance, number 1 is related to the SMA Rules, but the
Planning Department has already determined that the proposed structure is
not “development” under SMA Rule 1.4f, and therefore not subject to the SMA
Rules. See Exhibit “M” to Application. Any elaboration may be provided by the
Department, and not by Somers.
Where Somers asserts that he wants to ensure that the construction
complies with the Comprehensive Zoning Ordinance (#6, #9, #10, #11), the
Kauai County General Plan (#7), and the North Shore Development Plan (#8),
all of these issues are covered by the Application. See Application at 8-11. The
Application already addresses Kaplan’s proposed efforts to protect and preserve
archaeological sites (Application at 6-7), limit all possible impacts on the
surrounding environment (id. at 5-6), to construct the house in conjunction
with the Kauai County General Plan, the North Shore Development Plan, the
Open District Zoning, and all other aspects of the Comprehensive Zoning
Ordinance (id. at 8-13).
Where Somers offers vague generalizations about “significant adverse
effects” to his multiple properties, Petition at 10, these are only vaguely
articulated and fail to meet the requirement of specificity demanded by the
Rule. It begs the question: “How could this house possibly harm you?”, to
which the Petition is silent.
The answer is that the Application will not affect any part of Somers’s
property, and the documentation attached to the Application includes a
18
meticulous archeological preservation plan by which Kaplan intends on
protecting and preserving the environment of the Kuleana Parcel. See Exhibits
“I” (showing entirety of house on Kuleana Parcel) and “K” (Archaeological
Inventory Survey). The Application already addresses the potential issues that
he raised in the Petition. Without specificity, the Petition fails to present
identifiable specific issues for a contested case hearing to actually determine.
As a practical matter, the entirety of a contested case would consist of nothing
more that Kaplan debunking Somers’s misrepresentations.
C. Denial of Intervention Will Not Affect Somers’s Ability to
Appeal
Finally, denial of intervention will not bar Somers from filing an appeal of
the Commission’s decision on the Application if he can prove appellate
standing to do so. As the Hawai‘i Supreme Court has observed, “We have not,
however, conditioned standing to appeal from an administrative decision upon
formal intervention in the agency proceeding. Participation in a hearing as an
adversary ... has been held sufficient to give rise to appeal rights[.]” Mahuiki v.
Planning Comm’n, 65 Haw. 506, 515, 654 P.2d 874, 880 (1982) (quotation
marks omitted), citing Jordan v. Hamada, 62 Haw. 444, 449, 616 P.2d 1368,
1371 (1980). Therefore, Somers will not be prejudiced by a denial of his
Petition.
19
VI. Conclusion
For the above stated reasons, the Petition for Intervention fails to meet
the requirements for intervention and should be denied.
DATED: Honolulu, Hawai‘i, April 9, 2021.
/s/ Margery S. Bronster
MARGERY S. BRONSTER
REX Y. FUJICHAKU
SKYLAR G. LUCAS
LAUREL LOO
Attorneys for Applicant MICHAEL A.
KAPLAN, Trustee of the Michael A. Kaplan
Revocable Trust
EXHIBIT “1”
EXHIBIT “2”
EXHIBIT “3”
EXHIBIT “4”
EXHIBIT “5”
COUNTY COUNCIL
Anyl Kaneshiro,Chair
Mason K.Chock,Vice Chair
Bemard P.Carvalho,Jr.
Felicia Cowden
Bill DeCosta
Luke A.Evslin
KipuKaiKuaIi'i
Council Services Division
4396 Rice Street,Suite 209
LIhu'e,Kaua'i,Hawai'i 96766
March 23,2021
OFFICE OF THE COUNTY CLERK
Jade K.Fountain-Tanigawa,County Clerk
Scott K.Sato,Deputy County Clerk
Telephone:(808)241-4188
Facsimile:(808)241-6349
E-mail:cokcouncil@kauai.gov
Donna Apisa,Chair
and Members of the Planning Commission
c/o County of Kaua'i Planning Department
4444 Rice Street,Suite A473
Lihu'e,Hawai'i 96766
Dear Chair Apisa and Members of the Planning Commission
RE:TESTIMONY REGARDING SHORELINE SETBACK VARIANCE
PERMIT (SSV-2021-1)
Thank you for the opportunity to provide written testimony in SUPPORT of
the Shoreline Setback Variance Permit (SSV-2021-1),to deviate from the shoreline
setback requirement involving the construction of perimeter fencing for a parcel
situated on the mafeat-side of Pe'e Road in Po'ipu,further identified as 1661 Pe'e
Road,Tax Map Key (TMK)No.(4)2-8-020:003 and containing a total area of
approximately 3.867 acres.My testimony is provided as an individual
Councilmember on the Kaua i County Council and as Chair of the Councils Public
Safety &Human Seryices Committee.
Having visited the parcel,it is evident there is a safety threat on the
makai-side behind the building structures of the Makahuena at Poipu
condominiums.There is an abrupt drop to the shoreline volcanic ledge of possibly
10-15 feet.An unexpected fall could seriously injure or possibly kill a person.The
evidence of previous metal fencing remains in the rusted fence posts.The edge is
perhaps 10 feet from the buildings in some areas where there may be a smooth grass
drop point and other areas in which vegetation grows from the face of the steep
embankment,obscuring the danger potential.In the dark of night,an uninformed
walk around the building could be disastrous.Even in the daylight,a dangerous
misstep could happen,particularly by a child or vulnerable person.The beauty ofthe
ocean is a draw to the area.
I leave the details of the fencing material and the location of gates for public
access to the Planning Commission to determine.The need for a safety fence,despite
shoreline setback goals,is evident.The protective fencing is needed on the
Makahuena at Po'ipu property.
^.^C.9.
AN EQUAL OPPORTUNiry EMPLOYER
Shanlee Jimenez
From:
Sent:
To:
Subject:
Planning Department
Wednesday,April 07,2021 12:35 PM
Shanlee Jimenez
FW:April 12 PC Public Hearing
From:Makaala Kaaumoana <kaaumoana@gmail.com>
Sent:Wednesday,April 7,2021 12:32 PM
To:Planning Department <planningdepartment@kauai.gov>
Subject:April 12 PC Public Hearing
CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even ifthe
sender is known to you unless it is something you were expecting.
I.CLASS IV ZONING PERMFT (Z-IV-2021-8),and USE PERMFT (U-2021-7)for the construction of a
farm dwelling unit and associated site improvements on a parcel located in Kilauea,situated
approximately 1,700 feet from Kahili Makai Road and 2,700 feet from the Kahili Makai Road/Kuhio
Highway intersection,further identified as Tax Map Key:(4)5-2-012:019 and containing a total area
of 0.735 acre will testify in the matter of:
Mahalo,Makaala
Makaala Kaaumoana
POB 1205
Kilauea,HI 96754
808-828-1205 home
808-346-5458 cell
808-431-4444 fax
^p/i.c^
•APR 1 3 2021 (g)
KOLOA COMMUNITY ASSOCIATION
PO Box 1313,Koloa,Hawall 96756
koloacommunityassociation@gmait.com
April 7,2021
County of Kaua'i Planning Commission
4444 Rice Street,Suite A473
Lihue,Kaua'i,Hl 96766
(808)241-4050
Public Hearing Testimony
Tuesday,April 13,2021
Support for Shoreline Setback Variance Permit (SSV-2021-1)
Makahuena at Poipu,1661 Pe'e Road
Dear ChairmemberApisa,Planning Director Hull,and Kaua'i County Planning Commissioners,
The Koloa Community Association sends our strong support for the requested shoreline
setbackvariancefortheconstruction ofa replacinga perimeterfence on thismakai property.
Members ofour Koloa Community Association Board took a site visit with General Manager,
Sara Sloan and Judy Foss,the Condominium President We viewed the approximately 4-acre
grounds.We are well aware ofthe historyofthe Makahuena at Poipu as one ofthe veryfirst
accommodations on the makai side,dating back for decades.There grounds are well
maintained and conscious and respectful ofShearwater Nesting areas,as well as cultural
access rights.
The staff are very nice,and exemplify aloha.They support continued access for fisherman and
coastal enjoyment.There will be no locked entrances on the fenced area,and all are welcome,
The southern side ofthe property has lost its original metal fence to age and rust,but is
needed as a safety measure.The coastal side ofthe property has a verysteep cliffdrop offand
f:^.^^-
APR1 3?021(^
a fence for safety is a must for residents and guests.The fence will in no way preclude
enjoyment or access to trails.Safe passage is located on the eastern and western sides of the
property,and will not be affected by the perimeter fence replacement.
This landmark property was built before the expanded shoreline setback.It did have a fence
along the cliff,and we strongly encourage the variance to allow a replacement to prevent
harm or injury.Native plantings will also be incorporated to enhance safety precautions and
widen the setback from the cliff.These prudent measures will in no way cause loss of public
access or encroachment.
We appreciate their forthrightness and inclusion ofthe Koloa Community Association
with help in this matter.They are good neighbors in our community.
Wewhole heartedlyaskforyoursupportin grantingthisvarianceforthe residents of the
Makahuena at Poipu point.
Mahalo nui loa,
^a-A'-P^t^
Jeri Di Pietro,President
Koloa Community Association
^:\1"c'•r^J'»«••"<»•
^^l:
%..
••••.fs.r"'
Kaaumoana
POB 1205 Kilauea,Hawaii 96754
K_aaumoana@email.com
PH:808-828-1205 Cell:808-346-5458 Fax:431-4444
April 13,2021
Kauai County Planning Commission
Testimony in the matter of:CLASS IV ZONING PEKMIT (Z-IV-2021-8),and USE PEI<MIT (U-2021-7)for the
construction of a farm.dwelling unit and associated site improvements on a parcel located in Kjlauea/situ.ated
approximately 1,700 feet from Kahili Makai Road and 2,700 feet from the Kahili Makai Road/Kuhio Highway
intersection,furthcr identified as Tax Map Key:(4)5-2-012:019 and containing a total area of 0.735 acre.
Aloha Conunissioners/
I testify today in SUPPORT of the request for intervention in your consideration of thls permlt application.
I provided testimony regarding development of this property on 9-28-2010.At that tiine my concerns included;
•Preservation of more than nine historic lo/i kalo,some of more than sixty-nine known to be in the area
•Water quality monitoring before/during and after any construction
I am unaware of any water quality testing or analysis having been conducted since 2010 and am also unavvare
of any site inspections having been conducted on this property since that time.In addidon,the currently
proposed wastewater system would leach into the historic lo i kalo.Is that pono?Do we allow that?Do vve
pcrmit that?
Further/the SMA extension granted to this developer in 2019 with no public hearing was for an already lapsed
SMA and no substantial progress had been made on the origina]permit.
This is a very dangerous procedure is such a sensitive place.This isn't just any property.It is specifically
designated as special treatmentbecause of its unique features and the SMA law is intended for these kinds of
lands and this application is for a substanrial development.
What has happened on this land in the past eleven years?Apparently what was permitted as a post and beam
sta'ucture 1s now being described as //on grade foundation///constructed in the lo/i kalo.VVould that have been
permitted in 2010 given the sensitive historical features of this land and its location?
Intervention is the remedy hcre because there is no evidcnce that the planning departnent has the information
it requires to grant this permit application.Interveners can provide that and this application deserves thdt.If a
public hearing had been held in 2019 I suspect intervention would have been requested than as well.
Any consideration of thls application n-iust be updated with the current status of this property and will require
additional site information,at the very least what is there now and does it comport with the 2010 permit?
There was a previous house on this property/built by Taylor/and thus this SMA is not "automatic by
defirdtion.This development is not the first structure.A class IV7 permit is insufficient.
I request you grant intervenrion by the petitioners in this matter to assure a full and fair process.
f.^.C.fr'APR 1 3 2021
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at Poipu
Sara Sloan
Makahuena General Manager
sara.makahuena@fimail.com
Donna Apisa,Chair and Members ofthe Planning Commission
c/o County of Kaua'i Planning Department
4444 Rice Street,Suite A473
Lihue,Hawaii,96766
Dear Chair and Apisa and Members of the Planning Commission,
RE:TESTIMONY REGARDING SHORELINE SETBACK VARIANCE PERMIT (SSV-2021-1)
Thank you forthe opportunityto provide written testimony in SUPPORTofthe SetbackVariance
Permit (SSV-2021-1).1 am providing this testimony as the General Manager of the Makahuena,
and resident of Kauai.
To protect the public,residents and guests from danger,the Makahuena AOAO has supported
replacing the fencing in several areas ofthe property.The fence removed as it was in such poor
condition it provided a false sense of security in protecting people from the shear drop off as
much as 25 feet in front ofMakahuena.In some areas ofMakai side ofthe property,the
vegetation has created a false sense ofsecurityas it disguises the cliffalong the ocean,In other
areas the vegetation has declined,exposing the shear drop off.We are fortunate that no
unsuspecting person has been injured.
There is a small cottage on the propertythat has a small pool.Because ofthe setback rules,this
pool is not fenced.There is a constant worry that a child will wander to this area unnoticed,if
this were to happen,it could be tragic.Our residents and owners have expressed this concern
as well,as well as the concern that visitors,with children are unaware of the unfenced pool.The
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current set back dissects the middle of the pool.Without a granting a variant,this pool remains
a hazard.
The property next door was recently sold,and the easement allowing beach access is now a
well-traveled destination to view this beautiful coastline.Many people also walk their dogs,
many of individuals do not obey the leash laws.In the past our fence protected the vulnerable
nesting seabirds,at leaston ourside ofthe property.Also,aswe cannot lightthe cliffarea at
night,because ofthe Shearwaters,it posesan added danger.
Thankyou forconsideringour request as we are concerned forthe safetyofthe publicas well
as our residents and thank you for serving our community.
Mahalo,
Sara Sloan
Makahuena General Manger
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Donna Apisa,Chair and Members ofthe Planning Commission
c/o County of Kauai Planning Department
4444 Rice Street,Suite A473
Lihue,Hawaii,96766
Dear Chair and Apisa and Members ofthe Planning Commission,
RE:TESTIMONY REGARDING SHORELINE SETBACK VARIANCE
PERMIT (SSV-2021-1)Thank you for the opportunity to provide written
testimony in SUPPORT ofthe Setback Variance Permit (SSV-2021-1).
My name is Edward Schimmelfennig.I own and operate a security service
company which provides security for the Makahuena for the past 5 years.I grew
up houses down from the Makahuena.Our family was the first family on the hill
overlooking the coast on Pe'e Road.My uncle once owned the property and built
the Makahuena complex back in the late 70 s.He lived in the cottage that is
original to this property.
The fence on the property was old,rusted and falling down.It was a hazard,and
no longer protected people from falling from the cliffs.This put people at risk of
injury,serious bodily harm and even death.The old fence has now been removed,
but the danger still exists.
There are portions ofthe property on the Makai side,fronting the ocean,that are
very steep.Anyone walking in this area is in danger offalling down the cliffand
into the ocean,This area is even more dangerous to kids.The edge of cliff is only
about 10 feet or less from some ofthe building lanais which open up and lead right
to these danger zones.At night,it is even more disastrous to new guests and .£.4
APR 1 3 2^1@
Donna Apisa,Chair and Members of the Planning Commission
c/o County of Kauai Planning Department
4444 Rice Street,Suite A473
Lihue,Hawaii,96766
Dear Chair and Apisa and Members of the Planning Commission,
RE«TetTIMONV RECAnDING (HORBtINE »ETBACKVABIANCE PERMIT (»»V-
2021-1)Thanb you for the opportunity lo prouide written lestimony.We are in tUPPORT
of the Setbacb Variance Permit (SSV-2021-1)for the safety of the Mabahuena residents and
children.
Our names are Christopher Bartlett and Lindsay Nabamura.We have a young son,and we
liue at the Mabahuena.We have liued at the Mabahuena for over a year.We love the
natural beauty of the area and the friendly residents who live here.
Our son is only 3 years old now,but we are increasingly concerned about his safety as a grows
and h gettlng more mobile.We live on the ground leyel of the east side of the property.The
fence was in such poor condition is was remoued.The apartment we live in bacte to the
beach access on the east side of the property.There are now many people walbing dogs,
fishing and enjoying this area.We also enjoy this area but not entirely comfori:able without
the fence in the bacb yard.We are concerned for the safety of our apartment,or child if he is
playing on the bach lanai.
We hope that the fence will be replaced as il would giue us piece of mind as our child
continues to be more independent.A fence on the mahai side of the property would protect
a 20'or more shear drop off along to the rocbs below.We heep a good eye on our child,but
fL^.c.t0
^PR 1 3 2021
fear that an accident could happen to Kaha'au or other children.No amount of signage can
help when you can't read.
We will also be relieved that the small pool on the property is fenced.We were told that this
area will be fenced if the variance is approved.Many of the residents are concerned about
the pool and the cliffs.We all feel extremely fortunate that no one,especially a child has been
hurt.
Ptease consider our testimony and grant the yariance so that the fence may be installed.It is
for everyone's safety!
Thanb you so much!
Mahalo,
^^
Christopher Bartlett,Lindsay and Kaha'au Nabamura
Mahahuena Residents
1661 Pe'e Road,Koloa Hl 96756
^.•^.^??
4,'7;2021 IMG_4218.jDg
4
https://mail.google.com/ma!l/u/0/#inbox'?proiector=1
1/1
Donna Apisa,Chair and Members of the Planning Commission
c/o County ofKauai Planning Commission
4444 Rice Street,Suite A473
Lihui,Hawaii 96766
Dear Chair Apisa and Members of the Planning Commission,-o
RE:TESTIMONY REGARDING SHORELINE SETBACK VARIANCEg
PERMIT (SSV-2021-1)-X.
cn
orn
M
^
^
-T3
fcs.Thank you for the opportunity to provide written testimony in 'f
SUPPORT ofthe Setback Variance Permit (SSV-2021-1),to deviate'from^
the shoreline setback requirement involving construction ofperimeter
fencing for the Makahuena.
We have been working on fencing the parameter ofthe Makahuena
since July of 2017 when it was brought to our attention that the existing
fence was in a state of disrepair which could jeopardize the safety of
persons residing at the Makahuena,visitors,and local fisherman that
brave the rocks on the Makai side ofthe property.We were not aware
at the onset,that our existing fence had not been properly permitted.
We carefully researched the acquisition of fencing material that would
withstand over time,the winds and the constant spray ofseawater that
is prevalent on the cliffs of the Makahuena Property.We had to ask for
assistance,as we were unfamiliar with the process that would be
necessary to properly document the need for a fence and therefore
justify erecting the fence that has been laying under cover in our
parking lot since January 2018.
With the direction and support ofpersons familiar with the process
we have been completing the requisite SMA permits,Environmental
Assessments and Shoreline Setback documentation.We believe that we
have provided,as clearly as we can,the need for a fence to provide
safety for those who occupy our property.We have been mindful ofthe
nesting shearwaters,the small pool adjacent to a private home on the
property that sits unprotected and the merging of our property
boundaries with the developing Makahuena Estates.
ooc.
TC.•->
-<
C3-n
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APR 1 3 2021
1 havc incliidsii »limcline oftlie activitics wc havc undort.ikcn in our
attemptto meet County/Statc rcgul.it ions.We undcr.sLiiKJ th.il this is
iin imporLanl dfci-sion as thc tirw stiorfjlinf -sclh.ick rcquirctiiynLs h.ivc
rcccnrly l)een enaclcd.Wr hope th;it wc have shown that our nccd is
cumpclling to protf(:t thc .saf'cty ofour propfrty while showing rt;s[)e(--t
lur tlie taws that embracu thc futurc ofthe lsl;iri(l.
Thank you for con.sidering oor rcqucst.
Rc.spcctlully,
'•^<£tf^-^
judy Fo.ss.
Presidcntoftfic Ko.ini ot'thr Makahucna
THE STORY OF A FENCE
By Judy Foss/Makahuena
07/14/17 a fence was ordered for the parameter of the Makahuena (Colonial
Qrnamental Powder Coated Aluminum-Universal Top Rail fro Master Halco
09/01/17 bids for installment of tfae fence from Artistic Builders Corp $11,724
10/11/17 order ready for shipping from East coast to West Coast to be loaded on
a barge to Kauai (Lito Dizon)
02/02/18 fence delivered to dock
02/07/18 negotiations begin with CIRI regarding grading and drainage from
their property to ours *#1 Communication with CIRI
02/08/18 fence goes to Aloha Moving (Storage $2500)
02/08/18 fence to be moved to property to save $s.Moved by Traffic Tech
(1/30/18)$5027.84
02/09/18 conversation from County Jody Galinato **(copy of correspondence)
02/12/18 received ***ordinance &HRS Shoreline Setbacks (Ordinance to
amend Chapter 8,Kauai County Code 1987,as amended,relating to the
Comprehensive Zoning Ordinance Bill No 2461,Draft 5
Chapter 13 of HRS Shoreline Setbacks
2/13/18 consulted with Jan TenBruggencate who advised to avoid sanctions and
to apply for fencing permit
2/23/18 engaged Jennifer Littenberg who wrote our 2010 WWTS proposal
2/26/18 received bid to install fence Bob Hardy American 'fencin..
2/28/18 Bill from Jan Ten..for $729.12
3/6/18 received copy of Shoreline certification from 2010 *'***copy of existing
fence and proposed additional fence
Page2
3/19/18 Estimated Budget for Installation $25,000;quote $13,200;additional
materials $25,326;installation $10,500;freight $7,000;Disposal old fence $1,800;
permitting $1,500
8/02/18 Hawaiian Administration Rules re fencing around pool (4'high,4"
openings no other openings except gate with no gaps.3109.3 Hawaiian state
building code Need to expand fencing for house on property with pool
8/21/19 Jan and lan Jung UPDATE ON SLOW MOVING FENCE PERMIT
PROGRESS
08/22/19 Shoreline setback survey EXPIRES in one year Stamped 04/17/19
01/07/20 Letter to Jan and lan re:stahis *****From Judy Foss requesting stahis
5/27/20 lan Jung Environmental notice ******
06/24/20 from lan.Now we are to file a final EA with responses to the
Department of Health
08/24/20 lan "I will get a FONSI this week then we make application for SSD
Variance and SMA Minor,then final EA
9/03/20 No sign of FEA and FONSI *******correspondence and Standards for
Land Use Reviews Clean Air Branch Hawaii State Deparbnent of Health
*Aft*A *ft*01/20/21 Letter to lan requesting stahis of fence and lan's response *****
02/17/21 Note to lan regarding a Board meeting to be help and requesting status
of pemiit application
Chad Nugent <cnugent@ciri.com>C<5'yn"/rf"''t-^'t>^>l^1/(/'^*1
fArzl^'^UniLst^fse issuf'5
RE:Nokaoi -fence/french drain
2/7/2018 7:54 AM
To judyfoss@comcast.net <judyfoss@comcast.net>
Hi Judy,
Thanks for the heads up.We knew that at the common line something might need to be done once you removed your
fence and the vegetation along the line as the natural grade dipped in at least at one area if 1 remember correctly.Do
you want me to have our contractor come in and take a look at the best modification now?1 had assumed once you
pulled your fence and relooked at the plantings you wanted along there that your landscaper was going to have a plan
to build that area up but we can certainly help ensure some fill gets placed where it is needed so long as you are good
with the outcome on your side of the line.Let me know your thoughts.
Thanks,
Chad
From:judyfoss(a)comcast.net fmailto:judyfoss(5)comcast.net]
Sent:Tuesday,February 6,2018 5:40 PM
To:Chad Nugent <cnugentiaciri.com>
Subject:Fwd:Nokaoi -fence/french drain
[External]
[EXTERNAL]
FYI
Original Message
From:Blake Hughes <makahuenarm(5)vahoo.com>
To:Judy Foss <judvfoss(a)comcast.net>
Cc:Lorie Davey <ldavev(5)sturmanindustries.com>
Date:February 6,2018 at 4:46 PM
Subject:Nokaoi -fence/french drain
Hi Judy,
Just sat down with Sara from Nokaoi who walked the property with her boss,
Fernando.
Sara said that owner,Abby Santos,does not think that installation of the fence is
something they could do.She does feel that they would be willing to take it down
and remove it.
Sara and Fernando agree that the issue with the drainage on the CIRI pathway is
something that should require engineering and probably a large machine to
accomplish properly.When I spoke with Jordan,(Earthworks),on Friday last week
when he showed up to place a large sandbag in the problem area,he did note that
there should have been a more suitable berm built up to allow better water flow
towards the ocean.Should I will contact Chad Nuggent or Earthworks to have
arranged?
I asked Sara to confirm that with an email to you.
Mahalo!
Blake Hughes
Site Manager
The Makahuena at Poipu
(808)742-2482 (Office)
(808)742-2379 (Fax)
(858)333-4223 (Emergency line)
The information contained in this CIRI email message may be privileged,confidential and protected from disclosure.Ifyou are not an intended recipient,please
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you.
t*
Blake Hughes <makahuenarm@yahoo.com>
Fw:Makahuena fencing
To Judy Foss <judyfoss@comcast.net>•Lorie Davey <ldavey@sturmanindustries.com>
2/9/20181:34PM
G
R'I...see below
Mahalo!
Blake Hughes
Site Manager
The Makahuena at Poipu
(808)742-2482 (Office)
(808)742-2379 (Fax)
(858)333-4223 (Emergency line)
—-Forwarded Message -—
From:Jody Galinato <jgalinato@kauai.gov>
To:Blake Hughes <makahuenarm@yahoo.com>
Cc:Leslie Milnes <lmilnes(a)kauai.gov>
Sent:Friday,9 February2018,11:19
Subject:RE:Makahuena fencing
There are no records for any fencing.You will have to submit a SMA permit application and shoreline
setback determination.Any fencing in the shoreline setback area will need to be removed.Additionally,
the footing cannot cross the property line,you will have to show it to be inside of your property.
Jody Galinato
Planner
County of Kauai
Planning Department
4444 Rice Street,Ste.A-473
Lihue,Hi 96766
(808)241-4050
From:Blake Hughes [mailto:makahuenarm@yahoo.com]
Sent:Friday,February 09,2018 11 :08 AM
To:Jody Galinato <jgalinato@kauai.gov>
Subject:Makahuena fencing
Hi Jody,
Thanks again for taking the time to speak with me today about our fencing project.
Attached is what 1 have so far regarding the fencing for you.
ORDINANCE N0.979 BILL N0.2461.Draft 5
A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8,
KAUA'I COUNTY CODE 1987,AS AMENDED,RELATING TO
THE COMPREHENSIVE ZONING ORDINANCE
BE IT ORDAINED BY THE COUNCIL OF THE COUNT^OF KAUA'I,STATE
OF HAWAI'I:
SECTION 1.The Council finds tbat Kaua'i's coastUne is subject to a
wide variety of natural hazards,such as tsunamis,high surf,sea level rise,
hurricanes,coastal flooding,and coastal erosion that pose dangers to people and
property located near the shoreline.Proper siting of structures based on hazard
recognition and long term planning principles is critical to the protection of life and
property,the mitigation of coastal hazards,and the preservation of
coastalresources.
Until recently,development and other improvements on coastal lands
occurred without regard to erosion hazards.In some cases,chronically retreating
shorelines eventually threatened these improvements causing strong pressure to
build shore protection structures such as seawalls and revetments.These
structures distorted the natural Bhoreline environment,often leading to accelerated
erosion on adjoining properties,beach loss,and reduced public access.This pattern
of coastal zone development has seriously degraded the natural attributes of the
Kaua'i coast as documented in the Kauai Shoreline Erosion Management Study
(September,1990).
On January 25,2008,the first shoreline setback ordinance
(Ordinance No.863)was signed into law.The purpose of the ordinance was to
properly site structures to protect life,property,and resources along Kauais
shorelines from a wide variety of natural hazards,including high surf,hurricanes,
flooding,and erosion.The Council envisioned Ordinance No.863 as an initial effort
to establish shoreline setbacks while science-based coastal erosion hazards maps
were being completed.On December 2,2009,Ordinance No.887 became effective,
amending the original shoreline setback ordinance.The purpose of Ordinancc No.
887 was to streamline permit procedures by removing unnecessary requirements for
structures and activities permitted within the shoreline setback area.
In 2010,the University of Hawai'i Coastal Geology Group completed the
Kaua'i Coastal Erosion Study that mapped historical shoreline positions to
calculate shoreline change data along most of Kaua'i's sandy shorelines,thus
making available documented rates ofshoreline erosion.
The Council finds that the shoreline environment is one of Kaua'i's most
important economic and natural resources.Kaua'i's beaches provide scenic beauty
and recreational opportunities for residents and visitors.They are culturally
important to the people of Hawai'i.Beaches,dunes,and offshore topographic
features also help to minimize risks fi-om coastal hazards by dissipating wave
energy,which could otherwise cause significant damage to coastal property.
Beaches provide important habitat for seabirds,turtles,monl;seals,and other
animals and plants.In all of the abovementioned ways,beaches and coastal areas
are part of the public trust,and it is government s fiduciary responsibility to protect
beaches and coastal areas.
The Council also finds that it is important that information regarding natural
hazards such as coastal erosion data be incorporated into the planning process at
the early stage of development,i.e.,at the time of subdivision before lot sizes and
shapes are established,so as to give landowners more environmentally sound
options and to save decision makers from the agonizing dilemma of choosing
between protection of one owner to the detriment of another owner and/or
the public.
The purpose of this bill is to:
(1)To protect life and property and to ensure the longevity and
integrity ofKaua'i's coastal and beach resources along Kaua'i's shoreline.
(2)To strengthen shoreline setback requirements in Chapter 8,
Article 27 of the Kaua'i County Code,1987,as amended,by incorporating
science-based erosion rates estabhshed in the Kaua'i Coastal Erosion Study
and current coastal hazard mitigation best practices and strategies.
(3)To align the Shoreline Setback Ordinance with the County Flood
Ordinance to improve coordination between the Departments of Planning and
Public Works.
(4)To protect against episodic shoreline erosion that is not
accounted for in the Kauai Coastal Erosion Study until such time as studies
providing additional piidance and information are completed.
(5)To create consistency with recent amendments to Hawai'i
Revised Statutes,Chapter 205A,as prescribed in Act 120 ofthe 2013 State
Legislature.
(6)To give the Planning Director flexibiUty in applying tbis law to
large parcels that abut the shoreline where the proposed improvement is
sited in a location that will not increase erosion or impact natural shoreline
processes.
The County is authorized to protect the coastal area pursuant to
Public Law No.92-583,as amended,("Coastal Zone Management Act"),
Chapter 205A,Hawai'i Revised Statutes,as amended,("Shoreline Protection Act"),
Article XI Section 1 of the Hawai'i State Constitution,Public Law 92-583,and the
County's police powers to protect public health and safety.This ordinance shall be
known as the "Shoreline Setback and Coastal Protection Ordinance.
SECTION 2.Chapter 8,Article 27 of the Kaua'i County Code 1987,as
amended,is hereby amended as follows:
"ARTICLE 27.SHORELINE SETBACK AND COASTAL PROTECTION
[Sec.8-27.1 ApplicabiUty.
This Article shall be applicable to all lands within the County of Kaua i,State
ofHawai'i,that are:
(a)abutting the shoreline,or
(b)not abutting the shoreline but located within five hundred (500)feet of
the shoreline unless the applicant can demonstrate to the satisfaction of the
Planning Director that the applicant's proposed improvement will not be affected by
2
coastal erosion or hazards,excluding natural catastrophes.Factors to be considered
shall include,but not be limited to,proximity to the shoreline.topography,
properties between the shoreline and applicant's property,elevation,and the
history ofcoastal hazards in the area.
Sec.8-27.2 Definitions.
For purposes of this article,unless it is plainly evident from the context that
a different meaning is intended,certain words and phrases used herein shall be
defined as follows:
Adversely affect beach processes"means to pose a potential immediate or
future adverse effect on beach processes as a result of a structure or activity located
within the coastal erosion hazard zone,or to create an immediate or future need to
artificially fix the shoreUne."Annual coastal erosion rate"means the annual rate of coastal erosion
calculated by following a procedure established in the Hawai'i Coastal Hazard
Mitigation Guidebook,(January 2005),which was prepared for the State of Hawai'i,
Department of Land and Natural Resources,Coastal Zone Management Program,
University of Hawai'i Sea Grant CoUege Program and the Pacific Services Center
and Coastal Services Center of the National Oceanic and Atmospheric
Administration at section 4.1."Average lot depth"means the measurement obtained by adding the lengths
of the two sides of a lot which are at or near right angles with the shoreline,or the
seaward boundary of the lot that runs roughly parallel to the shoreline if the
property is not abutting the shoreline,to the length of a Une obtained by drawing a
]ine from a point in the center of the makai side of the lot to a point in the center of
the mauka side of the lot and dividing the resulting sum by three.For irregularly
shaped lots including flag lots,triangular parcels,lots on peninsulas,and/or lots
having ocean on two or more sides of the lot,the average lot depth will be
determined by the Director.
Board shall mean the Board of Land and Natural Resources,State
ofHawaii."Building footprint"shall mean all parts of a main building (excluding roof
overhangs)that rest,directly or indirectly,on the ground,including those portions
of the building that are supported by posts,piers,or columns.Building footprint
also includes attached garages,covered carports,bay windows with floor space,
lanais,decks,cantilevered decks,spas,and in-ground swimming pools."Certified Shoreline means the shoreline established by Board piu-suant to
HRS 205A-42,as amended.
Coastal Dune means one of possibly several continuous or nearly
continuous mounds or ridges of unconsolidated sand contiguous and parallel to the
beach,situated so that it may be accessible to storm waves and seasonal high waves
for release to the beach or offshore waters."Coastal erosion"means the natural loss of coastal lands,usually by wave
attack,tidal or littoral currents,or wind.Coastal erosion is synonymous with
shoreline retreat."Coastal erosion hazard zone"shall include all of the land between the
shoreline and the shoreline setback line."Coastal erosion study"means a quantitative study of historical shoreline
behavior utUizing orthorectified aerial photographs or other imagery to carry out
high-resolution mapping of historical shoreline positions to obtain a statistically
vaUd annual erosion rate of the Shoreline Change Reference Feature (SCRF)and
vegetation line.The coastal erosion study shall be carried out by a qualified
3
professional consultant as defined in this article following procedures described in
Section 4.1 of the Hawai'i Coastal Hazard Mitigation Guidebook,(January 2005).
The coastal erosion study shall include but not be limited to:
(1)Mapping of the historical shoreline positions including both the
SCRF and the vegetation Une for the subject parcel,as wel]as the local and
regional littoral cell;
(2)The method resulting in tbe larger erosion rate (SCRF/toe of
beach vs.vegetation line)shall be used to establish the erosion rate unless
there is clear evidence to indicate another method is a more accurate
representation of historic shoreUne change.
(3)Uncertauity or error calculation of the data and the annual
erosion rate;
(4)Additional information relevant to the erosion study shall
include:a current certified shoreline survey,construction plans,if any,
existing and finished contours;photographs of the sboreline setback area,
analysis of the coastal erosion rates and shoreline processes.
(5)Where a coastal erosion study is required to be done or is done
voluntarily by an applicant,an application for a shoreline setback
determination shall not be deemed complete unless the coastal erosion study
has been accepted by the Director.
(6)Any non-governmental study shall be valid for no longer than a
period of five (6)years from the date of its acceptance by the Director which
shall be by certified letter issued by the Planning Department.
(7)The coastal erosion study shall consider the purpose of the
study-to safely site structures away from hazards such as erosion so that
shoreUne hardening will not be required to protect the property during its
useful life."Coastal hazard means natural processes in the coastal zone that are
generated by geologic,oceanographic,and/or meteorological processes that place
people and/or improvements at risk for injury and/or damage."Commission means the Plaaning Commission of the County of Kaua i."Department"means the Planning Department of the County of Kaua'i."Director means the Planning Director of the Planning Department of the
County of Kaua'i."DwelUng Unit"means any building or any portion thereof which is designed
or intended for occupancy by one (1)family or persons living together or by a person
living alone,and provides complete living facilities within the unit for sleeping,
recreation,eating and sanitary facilities,including installed equipment for only
one (1)kitchen."FEMA means the Federal Emergency Management Agency."FIRM means tbe Flood Insurance Rate Map."Hazard Assessment means assessment for erosion,wave,flood,and inland
zone following the standards in Section 4.3 of the Hawaii Coastal Mitigation
Guidebook,(January 2006)."Lot"means a portion of land shown as a unit on an approved and recorded
subdivision map."Makai means seaward or in a seaward direction."Mauka"means landward or in a landward direction."Minimum buildable footprint means the building footprint of 2,100 square
feet or as allowed in Section 8-27.10(a)."Minor activity"means an activity that:
(1)costs less than $125,000;and
(2)does not adversely affect beach processes,does not artificially tix
the shoreline,does not interfere significantly with public access or public
views to and along the shoreline;and
(3)does not impede the natural processes and/or movement of the
shoreline or sand dunes,and does not alter the grade of the shoreline setback
area,except for landscaping,clearing (grubbing)of vegetation,and grading,
which are exempt from HRS Chapter 343;and
(4)is consistent with the purposes of this article and HRS
Chapter 206A,as amended."Minor structure means:
(1)a structure that costs less than $125,000 and provides
temporary emergency protective measures for a legally habitable structure
that is imminently threatened by coastal hazards provided that the
protective measure has received approval in accordance with the Special
Management Area Rules of the Kaua'i Planning Commission and/or the State
Department of Land and Natural Resources (as may be the case),relocation
of the endangered structure has been considered and is not reasonable given
the nature of the emergency,the protective measure is removed within one
hundred eighty (180)days ofits installation,and given the significance ofthe
emergency,the protection is the best management alternative with respect to
beach,shorelme,and/or coastal resource conservation,or
(2)a structure that:
(A)costs less than $126,000;and
(B)does not adversely affect beach processes,does not
artificially fix the shoreline,and does not interfere with public access
or public views to and along the shoreline;and
(C)does not impede the natural processes and/or movement
of the shoreline and/or sand dunes,and does not alter the grade of the
shoreline setback area;and
(D)is consistent with the purposes of this article and HRS
Chapter 206A,as amended;and
(E)includes,but is not limited to,lighting in conformance
with HRS Chapter 205A,landscape features,barbeques,picnic tables,
benches,chairs,borders,wooden trellis,bird feeders,signs,safety
improvements,movable Ufeguard stands,walkways for access,outdoor
showers and water faucets,public utility lines,utility poles and
accessory structures along existing corridors,temporary tents for
special events not exceeding foiu-teen (14)consecutive days in duration
during any three-month period,walls and fences that are located more
than forty (40)feet from the shoreline,landscape planting and
irrigation systems provided that they are directed away from a valid
certified shoreline and do not artificially extend the shoreline or
shoreline setback area seaward;and
(F)excludes,but is not limited to,any in-ground swimming
pools or spas,garages,carports,concrete walkways that are reinforced,
concrete walkways that are not saw-cut at a minimum of three (3)foot
intervals,and concrete steps."Natural catastrophe"is a natural disaster qualifying for a governor's
declaration of emergency pursuant to Hawai'i Revised Statutes Chapter 128,or a
presidential declaration ofemergency ofa major disaster pursuant to 42USC5170,
including those caused by episodic coastal hazards such as tsunamis and
5
hurricanes,and not the result of other coastal hazards or processes such as erosion
or sea level rise."Nonconforming structure or activity"means a structure or activity which is
lawfully existing within the shoreline setback area because it:
(1)Was completely built,in its present form,prior to June 22,
1970;or
(2)Received either a building permit,board approval,or shoreline
setback area variance prior to June 16,1989;or
(3)Was outside the shoreline setback area when it received either a
building permit or board approval;or"Plan"or "site plan"means a detailed construction plan drawn to scale of 1"
=20'O"that shows the design of a structure proposed to be built within the
shoreline setback area.The plan shall be based on an accurate instrument by a
surveyor Ucensed in the State of Hawai'i and shall consist of data including but not
limited to:
(1)Property boundariea;
(2)Natural features such as large trees,rock outcroppings,and any
prunary or secondary coastal dunes;
(3)Topography in and around the proposed construction;
(4)Any and all shoreline hardening;
(5)Flood zones,where applicable;
(6)Existing and proposed structures and their proximity to the
shoreUne and shoreline setback area;
(7)Fences,walls,and any other structures m the shoreline setback
area and any potential hindrances to lateral access along the shoreline;
(8)A geo-referenced survey of the site;and
(9)Any.other information which identifies the existing condition of
the subject parcel of land.""Primary Coastal Dune"means the first dune encountered mauka of the
beach.Qualified professional consultant"means a coastal scientist with a masters
of science degree or doctorate in geology,geography,or other appropriate physical
science relating to coastal processes,or an engineer licensed in the State of Hawai'i
that has experience in coastal processes."Qualified professional consultant means a coastal scientist with a masters
of science degree or doctorate in geology,geography,or other appropriate physical
science relating to coastal processes,or an engineer Ucensed in the State of Hawai'i
that has experience in coastal processes."Qualified Demolition"means the demolition of a structure or structures
where such demolition:
(1)Will not adversely affect beach processes;
(2)WU1 not artificiaUy fix the shoreline;
(3)Will not interfere with public access,except for public safety
reasons during demolition operations;
(4)Will not interfere with public views to and along the shoreline,
except during demolition operations;
(5)Will be consistent with the intent of open space enhancement as
reflected in these rules and HRS 205A;and
(6)Will comply with applicable County Codes."Rebuilding"means reconstruction of a lawfully existing dwelling unit when
the reconstruction is valued by a licensed professional engineer or architect at fifty
percent (50%)or more ofthe current replacement cost ofthe structure.
'Repair means the ftxing of damages to a structure where the cost thereof is
valued by a licensed professional engineer or architect at less than fifty percent (50
%)ofthe current replacement cost ofthe structure."Revetment shall mean a facing of stone,concrete,blocks,or other similar
materials built to protect a scarp,embankment,or shore structure against erosion
by wave action or currents."Rocky ShoreUne"means a shoreline segment acting as the primary interface
between marine dominated processes and terrestrial dominated processes that is
composed of hard,non-dynamic,non-erodible material such as basalt,fossil
limestone,beach rock,or other natural non-dynamic material,not to include cobble
or gravel beaches that are dynamic in nature,or erodible cUffed shorelines
composed dominantly of dirt or clay."Shoreline is as defined in Section 205A-1,Hawai'i Revised Statutes,as
amended,and as established pursuant to Section 205A-42,Hawai'i Revised
Statutes,as amended."Shoreline Change Reference Feature (SCRF)"means a morphologic feature
commonly referred to as the toe of the beach,which represents the base of the
foreshore or approximating the Mean Lower Low Water (MLLW)."Shoreline setback area"means "shoreline area"as defined in Section 205A-
41,Hawai'i Revised Statutes,as amended."Shoreline setback line"is as defined in Section 205A-41,Hawai'i Revised
Statutes,as amended."Storm buffer zone is the first forty feet (40')of the shoreline setback area as
measured from the shoreline."Structure is as defined in Section 205A-41,Hawai'i Revised Statutes,as
amended."Substantial construction"means that one hundred percent (100%)of the
foundation has been laid,or that one hundred percent (100%)of the foundation of
the active phase of a project has been laid where the project is being done in phases.
Temporary structures or activities means structures or activities that will
exist for no longer than six (6)months and wiU not irreversibly and adversely affect
beach processes,public access,or public views nor artificially fix the shoreline in an
irreversible way,and from which there will be a public benefit."Use"means the purpose for which land or buUding is arranged,designed,or
intended,or for which either land or building is or may be occupied or maintained.
Sec.8-27.3 Shoreline Setback Determination:Establishment of the Shorelinc
Setback Line.
(a)No shoreline setback Une shall be established for any lot subject to this
Article unless the application for a shoreline setback Une includes a shoreline
survey certified not more than six (6)months prior to submission ofthe application.
(b)For lots with an average depth of one hundred sfatty (160)feet or less,
the shoreline setback line shaU be established based on the average depth of the lot
as provided in Table 1,or at the option of the appUcant,upon a coastal erosion
study as provided in Table 2.
Table 1:The distance in feet of the shoreline setback line as measured
from the certtfied shoreUne based on the average lot depth in feet.See attached
table and substitute for below:
(c)for lots with an average depth of more than one hundred sbcty (160)
feet,the shoreline setback Une shall be estabUshed based on a coastal erosion study
as provided in Table 2 and shall be no less than the setback distances set forth in
Table 1 as applicable.
Table 2:The distance in feet of the shoreline setback line as measured
from the certified shorehne based on the building footprint and a coastal erosion
study.
(d)No zoning amendment,general plan amendment,development plan
amendment,or subdivision,any of which involves lands,or any portion of land,
subject to this Article,shall be approved without a coastal erosion study and a
shoreline setback Une established in accordance with Table 1 and Table 2.In cases
where these methods result in lines that cross or intersect each other,the most
mauka (landward)segments ofeach line shall form the shoreUne setback line.
(e)When an application for a Shoreline Setback Determination has been
certified complete by the Director on a form prescribed by the Director,the Director
shall,within one hundred twenty (120)days of the completed application,issue a
Shoreline Setback Determination which shall conform to the delineation of the
shoreline setback line on a site plan pursuant to Section 8-27.3.
(f)The Director shall notify the commission at the Commission's next
regularly scheduled meeting ofthe following:
(1)any newly completed applications for shoreline setback
determination.
(2)any new shoreline setback determinations made by the Director
including,but not limited to,the name of the applicant,the average lot depth
calculations,the location of any proposed structures or activities depicted on
a plan drawn to scale,the purpose of the proposed structures and/or
activities,the current certified shoreline,the setback calculations and
setback line drawn on the plan,and copies of the coastal erosion study,if
applicable.
(g)The Director's shoreline setback determinations shall not be final until
accepted by the Commission.Notwithstanding Commission acceptance,if there is
an appeal of the Director's decision,the shoreline setback determinations shall not
be final until the Commission completes its decision-making on the appeal.
(h)Prior to commencement of grubbing,grading,or construction activities,
the shoreline and shoreline setback line shall be identified on the ground and posted
If the average
lot depth is:
100
feet or
less
101 to
120
feet
121 to
140
feet
141 to
160
feet
161 to
180
feet
181 to
200
feet
More
than
200 feet
Then the
muiimum
setback is:
40 feet 50
feet
60
feet
70
feet 80 feet 90 feet 100 feet
For structures with a
building footprint that is:
Less tban or equal to
5,000 square feet
Greater than 5,000
square feet
Then the Setback distance
18:
40 feet plus 70 times
the annual coastal
erosion rate
40 feet plus 100 times
the annual coastal
erosion rate
with inarkers,posts,or other appropriate reference marks by a surveyor licensed in
the State of Hawai'i.
(i)The application of Section 8-27.3 by itself shall not make a dwelling
unit nonconforming.
Sec.8-27.4 Minimum Shoreline Setback Requirements
Except as provided for in this article,no lot shall have a shoreline setback
line of less than forty (40)feet.
Sec.8-27.5 Structures and Activities Subject to These Rules.
AU structures and activities located or proposed to be located within the
shoreline setback area shall conform to the requirements of this article.The
requirements of this article sball not abrogate the requirements of any other
applicable statutes,codes,ordinances,rules and regulations,or other law.
Construction immediately mauka of the shoreline setback area shall also be subject
to these rules unless a certified and confirmed survey map,prepared in accordance
with the provisions of section 8-27.3,is filed with the department showmg that the
construction is mauka of the shoreline setback area.
Sec.8-27.6 Prohibited Activities in the Shoreline Setback Area.
(a)Pursuant to HRS 205A-44,as amended,the mining or taking of sand,
dead coral or coral rubble,rocks,soils,or other beach or marine deposits from the
shoreline setback area is prohibited with the following exceptions:
(1)The taking from the shoreline setback area of the materials,not
in excess of one gallon per person per day,for reasonable,persoaal
noncommercial use;or
(2)Where the mining or taking is authorized by a variance
pursuant to these rules;or
(3)The clearing of these materials from existing dramage pipes and
canals and from the mouths of streams,including clearing for the purposes
under HRS section 46-11.6;provided that,the sand removed shall be placed
on adjacent areas unless sucb placement would result in significant
turbidity;or
(4)The cleaning of the shoreline setback area for state or county
inaintenance purposes,including the clearing of seaweed,limu,and debris
under HRS scction 46-12;provided that,the sand removed shall be placed on
adjacent areas unless the placement would result in significant turbidity.
(b)Any primary coastal dune,which lies wholly or partially in the setback
area,shall not be altered,graded,or filled in any way except for the addition of
sand of compatible quality and character unless the application of this section
renders the build-out of aUowable density unfeasible.In such case,modifications,
alterations,grading,or filling may be allowed through a variance,but only for that
portion of the primary dune located mauka (landward)of the shoreline setback
area,and only to the extent necessary to construct on a minimum buUding
footprint.This exception shall apply only to lots in existence on the date of
enactment ofthis ordinance.Non-native vegetation may be removed only ifdone in
conjunction with a dune restoration and re-vegetation program approved by the
Director that uses naturally occurring historical endemic plant species.
Sec 8-27.7 Permitted Structures and Activities Within the Shoreline Setback Area.
(a)The following structures and activities are permitted m the shoreline
setback area.All structures and activities not specifically permitted in this section
are prohibited without a variance.
(1)Existing conforming and nonconforming structures/activities.
(2)Structure or activity that received a shoreline variance or
administrative approval prior to January 1,2010.
(3)A structure or activity that is necessary for,or ancillary to,
continuation of agriculture or aquaculture existing in the shoreline setback
area on June 16,1989.
(4)Temporary structures or activities as defined in Section 8-27.2.
To ensure that there will be no irreversible or long-term adverse affects,the
Director shall require as a condition of a permit the restoration of the site to
its original condition or better,and the director may require a bond to ensure
such restoration.
(5)A structure or activity that consists of maintenance,repair,
reconstruction,and minor additions or alterations oflegal boating,maritime,
or water sports recreational facilities,which are pubUcly owned,and which
result in no interference with natural beach processes;provided that
permitted structures may be repaired,but shall not be enlarged within the
shorehne setback area without a variance.
(6)Repairs to a lawfully existing structure,including
nonconforming structures,provided that:
(A)The repairs do not enlarge the structure nor intensify the
use of the structure or its impact on coastal processes;
(B)The repairs are valued by a licensed professional engineer
or architect at less than fifty percent (50%)of the current replacement
cost of the structure;and
(C)The repairs are permitted by building code,flood hazard
regulations,and special management area requirements under HRS
Chapter 206A.
(7)Beach nourishment or dune restoration projects approved by all
applicable governmenta]agencies.
(8)A structure or activity approved by the Director as a minor
structure or activity.
(9)Qualified demolition ofexisting structures.
(10)Unmanned civil defense facilities installed for the primary
purposes of:(i)warning the public of emergencies and disasters;or (ii)
measuring and/or monitoring geological,meteorological and other events.
(11)Scientific studies and surveys.mcluding arcbaeological surveys.
(12)Structures built to address an emergency as declared by the
Governor of the State of Hawai'i,the Mayor of the County of Kaua'i or any
other public official authorized by law to declare an emergency.
(b)The following conditions shall apply to any new structure or activity
permitted in the shoreline setback area:
(1)AU new structures shall be constructed in accordance with the
standards for development in Chapter 15,Article l,Flood Plain
Management,Kaua i County Code,relating to coastal high hazard districts
and FEMA guidelines regarding construction in areas mapped on Flood
Insurance Rate Maps as flood hazard areas.
(2)The applicant shall agree in writing that the applicant,its
successors,and permitted assigns shall defend,indemnify,and hold the
County of Kaua'i harmless from and against any and all loss,Uability,claim
10
or demand arising out of damages to said structures or activities from any
coastal natural hazard and coastal erosion.
(3)The applicant shall agree in writing for itself,its successors and
assigns that the construction of any erosion-control or shoreline hardening
structure or activity shall not to be allowed to protect the permitted structure
or activity during its Ufe,with the exception of approved beach or dune
nourishment fiU activities,and landscape planting and irrigation.
(4)AU new structures or activities shall not (i)adversely affect
beach processes,(ii)artificially fix the shoreline,(iii)interfere with pubUc
access or public views to and along the shoreline,(iv)impede the natural
processes and/or movement of the shoreline and/or sand dunes,or (v)alter
the grade and/or shoreline setback area.
(5)All new structures shall be consistent with the purposes of this
article and HRS Chapter 205A,as amended.
(6)The requirements of this subsection 8-27.7(b)shaU run with the
land and shall be set forth in a unilateral agreement recorded by the
applicant with the bureau of conveyances or land court,whichever is
applicable,no later than tbirty (30)days after the date of final shoreline
approval of the structure or activity under Section 8-27.8.A copy of the
recorded unilateral agreement shall be filed with the Director and the County
Engineer no later than forty-five (45)days after the date of the final shoreline
determination and approval of the structure or activity and the filing of such
with the Director shall be a prerequisite to the issuance of any related
building permit.
Sec.8-27.8 Structure and Activity Determinations.
(a)Any structure or activity proposed in the shoreline setback area shall
first obtain a determination from the Director in accordance with this article.
(b)A proposed structure and activity in the shoreline setback area shall
not be allowed by the Director unless it is consistent with this Article and HRS
Chapter 205A,as amended.
(c)Procedure:
(1)A request for determination for a structure or activity within the
shoreline setback area shall be submitted to the department on a form
prescribed by the Director.
(2)For public improvements and facilitles whose valuation does not
exceed $125,000.00,and repairs to lawfully existing private structures as
delineated in Section 8-27.7(a)(6),the request shall include construction and
site plans,and a written text addressing compUance with the criteria set
forth in this article.
The Director may also require additional information,including,but
not Umited to a current shoreline setback determination or a current certified
shoreline surveyor shoreline survey stamped by a licensed surveyor,
registered in the State of Hawai'i and coastal erosion information,a Ust of
proposed plants and their growth,existing and final contours,photographs,
and an environmental assessment.
(3)For public improvements and facilities whose valuation
exceeds $125,000.00,and private improvements and facilities that are not
repairs to lawfully existing structures as delineated in Section 8 27.7(a)(G),
the request shaU include relevant information,which shall include,but is not
limited to,a current shoreline setback determination as set forth in
Section 8-27.3 or a current certified shoreline survey and coastal erosion
11
information,construction and site plans,a list of proposed plants and their
growth,existing and final contours,photographs,an environmental
assessment,and a written text addressing compUance with the criteria set
forth in this article.
(4)Within one hundred twenty (120)days from the day the
application is deemed complete by the Director,the Director shall make a
determination in accordance with the criteria set forth in this Article that the
proposed activity or structure is:
(A)Permitted under Section 8-27.7:
(B)Permitted under Section 8-27.7 and subject to conditions:
(C)Not permitted under Section 8-27.7:or
(D)Outside ofthe shoreline setback area.
(5)The Director shall notify the commission at the commission's
next regularly scheduled meeting of the following:
(A)any newly completed applications for approval for a
structure or activity proposed within the shoreline setback area;and
(B)any new approvals or denials by the Director of structures
or activities and the reasons therefore,including,but not limited to,
the name of the applicant,the location and purpose of the structure or
activity,and a discussion of the factors considered in making the
decisions.
(6)The Director s structure and activity determinations shall not be
final until accepted by the Commission.Notwitbstanding Commission
acceptance,if there is an appeal from the Director's decision,the
determinations shall not be final until the Commission completes its decision-
making on the appeal.
(7)Minor structures or activities shall be completed or in operation
respectively within one year from the final shoreline approval or within one
year from the date of approval of the last discretionary permit,whichever
comes later.
(8)For any non-minor structures or activities aUowed within the
shoreline setback area and any structures outside the shoreUne setback area
based on the shoreline setback line,substantial construction of the structure
shall be achieved within three (3)years from the date of final shoreUne
setback deterniiiiation and approval,and construction thereof shall be
completed (as evidenced by a certificate of occupancy in the case of buildings
for habitation)within four (4)years from said date.
(A)An extension of no more than one year may be granted by
the director to the deadline for substantial construction only for
properties with a stable shoreline such as rocky or accreting shorelines
or shorelines exhibiting no coastal erosion per a coastal erosion study.
In all other cases where substantial construction has not occurred by
the deadline,a new shoreline determination shall be required.
(B)In case of failure to complete construction by the four-year
deadline,the Planning Commission shall determine a remedy based on
a review of the specific circumstances,including but not limited to,the
stability of the shoreline,the extent of the completion and the reason
for delay.
(C)These requirements for substantial construction and
completion shall run with the land and shall be written in a unilateral
agreement that is recorded in the Bureau of Conveyances or Land
Court,as applicable,prior to appUcation for a building permit.A copy
12
of the recorded unilateral agreement shall be submitted to the
Planning Department prior to appUcation for a building permit.
(d)Nothing in this section shall be deemed to amend,modify or supersede
any provision of the Special Management Area Rules and Regulations of the County
of Kaua'i.
Sec.8-27.9 Variance application.
(a)A written application for variance shall be made in a form prescribed
by the Director and shall be filed with the Director.The application shall include
plans,site plans,photographs,and any other plans,drawings,maps,or data
determined by the Director to be necessary to evaluate the application.The
application shall also include:
(1)An administrative fee of $300.00.The administrative fee shall
be seventy-five hundred dollars ($7,500)if the application is made after the
structure is partially or fully built without the required approvals.
(2)Certification from the owner or lessee of the lot which authorizes
the application for variance;
(3)An environmental assessment prepared in accordance with HRS
chapter 343,and the enviroiunental impact statement rules and applicable
guidelines of the State of Hawai'i;
(4)The names,addreases,and the tax map key identification of
owners of real property situated adjacent to and abutting the boundaries of
the land on which the proposed use,activity,or operation is to occur;
(5)A site plan ofthe shoreline setback area,drawn to scale,
(A)Existing natural and man-made features and conditions
witbin;
(B)Existing natural and man-made features and conditions
along properties immediately adjacent to the shoreline setback area
and proposed improvements;
(C)The certified shoreline and the shoreline setback line;
(D)Contours at a murimum interval of two (2)feet unless
waived by the director;and
(E)Proposed development and improvements showing new
conditions with a typical section (ifa structure).
(6)A copy ofthe certified shoreline survey inap ofthe property;
(7)DetaUed justification of the proposed project,which addresses
the purpose and intent of these rules and the criteria for approval of a
vanance;
(8)Analysis and report of coastal erosion rates and coastal
processes;and
(9)Any other information required by the director.
(b)Upon a determination by the director that the appUcation is complete
and in compliance with HRS Chapter 205A,part II and this article,the Director
shall submit the application to the commission.If the application is determined to
be incomplete by the Director,the Director shall return the application to the
applicant with a written description identifying the portions of the application
determined to be incomplete.The Director shall submit a written report,a copy of
the application,and all other documents submitted on the appUcation to the
commission prior to the matter appearing on an agenda of the commission.
(c)Except as otherwise provided in this section,all applications fer
variances shall be heard,noticed,and processed as public hearing matters.Not less
than thirty (30)calendar days before the pubUc hearing date,the applicant for a
13
variance shall mail notices of public hearing by certified or registered mail,postage
prepaid,to owners of real property which abut the parcel that is the subject of the
application.Not less than thirty (30)days prior to the public hearing date,the
Director shall publish a notice of hearing once in a newspaper that is printed and
issued at least twice weekly in the County and which is generally circulated
throughout the County.The notice shall state the nature of the proposed
development,the date,time,and place of the hearing,and all other matters
required by law.
(d)Exceptions.Prior to action on a variance apphcation,the commission
may waive a public hearing on the application for:
(1)Stabilization of shoreline erosion by the moving of sand entirely
on public lands;
(2)Protection of a legal structure costing more than $20,000;
provided that,the structure is at risk of immediate damage from shoreline
erosion;
(3)Other structures or activities;provided that,no person or agency
has requested a pubUc hearing within twenty-five calendar days after public
notice of the application.For the purposes of this section "public notice of the
application"shall be publication of a notice of the application in a newspaper
which is printed and issued at least twice weekly in the County of Kaua'i,
which informs the public of the subject matter of the application and which
identifies the date and time by which a written request for a public hearing
must be received by the commission;or
(4)Maintenance,repair,reconstruction,and minor additions or
alterations of legal boating,maritime or watersports recreational facilities,
which result in little or no interference with natural shoreUne processes.
Sec.8-27.10 Criteria for approval of a variance.
(a)A shoreline setback area variance may be considered for a structure or
activity otherwise prohibited by this Article,if the commission finds in writing,
based on the record presented,that the proposed structure or activity is necessary
for or ancillary to:
(1)Cultivationofcrops;
(2)Aquaculture;
(3)Major landscaping;provided that,the comniission finds that the
proposed structure or activity wiU not adversely affect beach processes,public
access or pubUc views and will not artificially fix the shoreline;
(4)Drainage;
(5)Boating,maritime,or water sports recreational facilities;
(6)Facilities or improvemBnts by public agencies or public utilities
regulated undcr HRS chapter 269;
(7)Private and pubUc faciUties or improvements that are clearly in
the public interest;
(8)Private and public facilities or improvements which will neither
adversely affect beach processes nor artificially fix the shoreline;provided
that,the commission also finds tbat hardship will result to the applicant if
the facilities or improvements are not allowed within the shoreline
setback area;
(9)Private and public facihties or improvements that may
artificially fix the shoreline but not adversely affect beach processes;provided
that,the commission also finds that shoreline erosion is likely to cause severe
hardship to the applicant if the facilities or improvements are not allowed
14
within the shoreline setback area and all alternative erosion control
measures,including retreat,have been considered;
(10)The commission may consider granting a variance for the
protection of a dwelling unit or public infrastructure;provided that,the
structure is at imminent risk of damage from coastal erosion,such damage
poses a danger to the healtb,safety,and welfare of the public,and the
proposed protection is the best shoreUne management option in accordance
with relevant state policy on shoreline hardening.
(11)Construction of a new dwelling unit.In the case where the
applicable shoreUne setback Une does not allow for the minimum buildable
footprint for a new dwelling unit,the commission may consider granting a
variance under the following guidelines:
(A)The front yard setback may be reduced where feasible to
allow for the minimum buildable footprint;
(B)The side yard setback may be reduced where feasible to
allow for the minimum buildable footprint;
(C)The minimum buildable footprint may be reduced to 1500
square feet.
(D)If the foregoing approaches (a),(b),and (c)are done to the
maximum extent practicable,the calculated shoreline setback may be
reduced,provided that under no circumstance shall the shoreline
setback line be less than forty (40)feet;
(12)Rebuilding of an existing dwelUng unit.
(A)Rebuilding of a lawfully existing dwelling unit under this
section shall only be allowed if the rebuilding does not enlarge the
structure beyond its previous building footprint nor intensyy the use of
the structure or its impacts on coastal processes,and the rebuilding is
not prohibited by Articlel3,Chapter 8,Kaua'i County Code,1987
as amended.
(B)In the case where the applicable shoreline setback line
does not aUow for the rebuilding of a lawfuUy existing dwelling unit
upon a minimum building footprint,the commission may consider
granting a variance under the foUowing guidelines only:
(i)The front yard setback may be reduced where
feasible to allow for the ininimum buildable footprint;
(ii)The side yard setback may be reduced where
feasible to allow for the ininimum.buildable footprint;
(iii)The buildable footprint may be reduced to
below 2100 square feet.
(iv)If the foregoing approaches (a),(b)and (c)are done
to the maximum extent practicable and a buildable footprint
of 1600 is not feasible,the shoreline setback may be reduced
provided that under no circumstances shall the shoreline
setback Une be less than twenty (20)feet from the certified
shoreline,and for any reduction below thirty (30)feet,a
quahfied professional consultant must certify that the property
is not subject to undue risk from erosion,high wave action,
or flooding.
(b)A structure or activity may be considered for a variance upon grounds
of hardship if:
15
(1)The applicant would be deprived of all reasonable use of the
land if required to fully comply with the shoreline setback rules;
(2)The applicant's proposal is due to unique cu-cumstances and
does not draw into question the reasonableness ofthe shoreline setback rules;
and
(3)The proposal is the best practicable alternative which best
conforms to the purpose of the shoreUne setback rules.
(c)Before granting a hardship variance,the commission must determine
that the applicant's proposal is a reasonable use of the land.Because of the
dynamic nature of the shoreline environment,inappropriate development may
easily pose a risk to individuals or to the public health and safety or to the coastal
zone management and resources.For this reason,the determination of the
reasonableness of the use of land should properly consider factors such as shoreUne
conditions,erosion,surf and flood conditions and the geography of the lot.
(d)For purposes of this section,hardsbip shall not include economic
hardship to the applicant resulting from:(1)county zoning or setback changes,
planned development permits,cluster permits,or subdivision approvals after
June 16,1989;(2)any other permit or approval which may have been issued by the
commission,or (3)actions by the applicant.
(e)No variance shall be granted unless appropriate conditions
are imposed:
(1)To maintain and require safe lateral access to and along the
shoreline for public use or adequately compensate for its loss;
(2)To minimize and mitigate risk of adverse impacts on beach
processes;
(3)To minimize and mitigate risk of structures failing and
becoming loose rocks or rubble on public property;and
(4)To minimize adverse impacts on public views to,from,and along
the shoreline;and
(5)To comply with County Code provisions relating to flood plain
management,Chapter 15,Article 1,Kaua'i County Code,and Drainage,
Chapter 22,Article 16,Kaua'i County Code,respectively.
(f)Any structure approved within the shoreline setback area by variance
shall not be eligible for protection by shoreline hardening during the life of the
structure.and this Umitation and the fact that the structure does not raeet setback
requirements under Section 8-27.3 and could be subject to coastal erosion and high
wave action shall be written into a unilateral agreement that is recorded by the
Bureau of Conveyances of Land Court,as the case may be.A copy of the unilateral
agreement shall be submitted to the Planning Department prior to the issuance of
the required zoning and/or shoreline setback variance.Failure of the grantor to
record these deed restrictions shall constitute a violation of this section and the
grantor shall be subject to the penalties set forth in this article.
(g)For any structure approved within the shoreUne setback area by
variance,the applicant shall agree in writing that the applicant,its successors,and
permitted assigns shall defend,indemnify and hold the County of Kaua'i harmless
from and against any and all loss,liability,claim,or demand arising out of damages
to said structure and this indemnification shall be included in the unilateral
agreement required above.
(h)The applicant may apply to the department for an amendment to the
variance in a manner consistent with the procedures of the special management
area rules of the Kaua i Planning Commission.
16
(i)No variance shall be granted for structures within the shoreline
setback area that are unpermitted,unless the Commission determines that a
structure is necessary to protect public health and safety,and/or that removal of the
structure would cause a greater public harm.
Sec.8-27.11 Enforcement.
(a)The Director hall enforce this article in accordance with
Section 8-3.5(a)of the County of Kaua'i Comprehensive zoning Ordinance.HRS
Chapter 205A,and the rules of Practice and Procedure of the County of Kaua'i
Planning Commission.
(b)Removal of an unpermitted structure.
(1)In determining the disposition of a unpermitted structure,the
Director shall follow the procedures outlined in Chapter 12 of the Rules of
Practice and Procedure of the County of Kaua'i Planning Commission based
on the nature of the unpermitted structure.If the structure would have
required Class I,II,or III permits as well as shoreline setback determination
and approval or variance,the procedure shaU be that required under
Section 1-12-4 of said rules.If a Class FV permit would have been required,
the procedure would be that outhned in Sections 1-12-5 through 1-12-8 of
said rules.
(2)Followuig the relevant procedures described in
Section 8-27.11(b)(l),the Director or the Commission,as the case may be,
shall order the removal of an unpermitted structure unless it is determined
that removal shall cause a greater public harm than allowing the structure
to remain.
(3)If the Director or Commission determines that removal would be
inappropriate,the property owner or perpetrator shall obtain a variance
under Sec.8-27.10 and shall pay penalties as specified in Section 8-27.12.
(c)Judicial Enforcement of Order.The 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
such order,the director need only show that a notice of violation and order was
served,a hearing was held or thc tune allowed for requesting a hearing had expired
without such a request,that a civU fine was iinposed and that the fine iniposed has
not bcen paid.
The director may institute a civil action in any court of competent jurisdiction
for injunctive relief to prevent violation of any provision of this Chapter,any rule
adopted thereunder,any permit issued pursuant thereto or any condition of any
shoreline setback approval in addition to any other remedy provided for under this
chapter.
(d)Nonexclusiveness of Remedies.The remedies provided in this chapter
for enforcement of the provisions of this chapter,or any rule adopted thereunder,
shall be in addition any other remedy as may be provided by law.
(e)Appeal in Accordance with Statute.If any person is aggrieved by the
order issued by the director pursuant to this section,the person may appeal the
order in the manner provided in HRS Chapter 91,provided that no provision ofsuch
order shall be stayed on appeal unless specifically ordered by a court of competent
jurisdiction
17
(f)The Du'ector shall enforce this article in accordance with
Section 8-3.5(a)ofthe County ofKaua'i Comprehensive Zoning Ordinance and HRS
Chapter 206A.
Sec.8-27.12 Civilfines.
(a)Any person who violates any provision of this Article shall be subject to
the penalties provided for in HRS Section 205A-32.Where a structure is built
without permits and the Director,in following the procedures outlined in
Section 8-27.ll(a),determines that removal ofthe structure would cause a gi'eater
public harm,a mandatory penalty of one thousand dollars ($1,000)shall be
imposed,plus,in the discretion of the Director,between ten percent (10%)to one
hundred percent (100%)of the estimated construction cost of the unpermitted
structure shall be imposed as a penalty,considering factors such as percentage of
completion,scope ofwork,and number ofoffenses.
(b)Any penalty paid pursuant to this section shaU be deposited by the
Director of Finance into the Planning Department's budget and shall be used for the
enforcement and/or education relating to this Article.
Sec.8-27.13 Appeal ofDirector's decision.
Any person who can show that a direct probable harm to his or her person or
his or her property interest,or probable public harm could occur from the decision
may appeal any Shoreline Setback Determination,Approval or Denial by the
Director to the Commission.The potential appeUant shall file a notice of appeal
with the Director and the Commission within fifteen (15)days after the adverse
decision.Within twenty (20)days of said filing,the commission shall determine the
potential appellant's standing to appeal.If the commission grants standing to
appeal,the commission shaU follow the procedure outlined in Chapter 9 of The
Rules of Practice and Procedure of the County of Kaua'i Planning Commission.The
Planning Commissions decision may be appealed to the Circuit Court pursuant to
HRS Chapter 91 and the aforementioned rules.
Sec.8-27.14 Promulgation ofRules and Regulations.
This ordinance shall supersede tbe Shoreline Setback Rules and Regulations
of the Planning Department of the County of Kaua'i in existence at the time of
adoption ofthis ordmance.Pursuant to HRS Chapter 91,as amended,the Planning
Commission may promulgate rules and regulations consistent with this Article as
may be necessary to implement any ofthe provisions ofthis Article.J
"Sec.8-27.0 Purpose.The purpose of this Article is to protect life and propertv.
ensure the loneevitv and inteeritv of Kaua'i's coastal and beach resources alone
Kaua'i's shoreline and to strenethen shoreline setback requirements in this Article
bv uicorporatinEr science-based erosion rates established in the Kaua'i Coastal
Erosion Studv and current coastal hazard mitieation best practices and strateeies.
18
Sec.8-27.1 Apolicabilitv.
This Article shall be aDplicable to all lands within the Countv of Kaua'i.
that are:
{al Abuttine the shoreline where structures and/or prohibited activities
are nroposed within five hundred ^500)feet ofthe shoreline.or
(b)Not abutting the shoreline where structures and/or prohibited
activities are proposed within aDproximatelv five hundred fiftv (650)feet of the
shoreUne,
Sec.8-27.2 Definitions.
For purposes of this Article unless it is plainlv evident &om the context that
a different meanine is intended.certain words and phrases used herein shall be
defined as follows;
Adverselv affect beach processes"means to pose a uotential immediate or
future adverse effect on beach processes as a result of a structure and/or
landscapine located within the coastal erosion hazard zone.or to create an
immediate or future need to artificiallv fix the shoreline.
Annual coastal erosion rate"means the long-term averaee annual rate of
coastal erosion calculated by foUowine the methodoloev outlined in the National
Assessment of Shoreline Chanee:Historical Shoreline Chanees in the Hawaiian
Islands (FIetcher,et al..2012).Annual coastal erosion rates are available for all
lots on Kaua'i fronted bv a sandv beach from the Kaua'i Plannine Department.
These rates were calciilated bv the Universitv of Hawaii's Coastal Geoloev Groun
for the Kaua'i Coastal Erosion Studv (20W).The Plannine Du-ector mav desienate
a qualified professional to review and.subiect to the Plannine Du-ector's apDroval,
update annual coastal erosion rates.
Averaee lot deoth"means the measurement obtained bv addine the leneths
of the two sides of a lot which are at or near right aneles with the shoreline.or the
seaward boundarv of the lot that runs rouehlv parallel to the shoreline if the
property is not abuttine the shoreline.to the leneth of a line obtained by drawine a
line from a point in the center of the makai side of the lot to a point in the center of
the mauka side of the lot and dividine the resultine sum bv three.For irreeularlv
shaced lots includine flae lots.trianeular pareels.lots on peninsulas.and/or lots
havine ocean on two or more sides of the lot,the averaee lot depth will be
determined bv the Director.
"Board shall mean the Board of Land and Natural Resourees._State
of Hawai'i.
"BuUdine footurint"shall mean all parts of a main buildine'fexcludine roof
overhanesl that rest.directlv or indirectlv.on the eround.includine those Dortions
of the buildine that are supuorted bv nosts,ciers.or columns.Buildine footorint
also includes attached earaees,covered caroorts.bav windows with floor space.
lanais.decks.cantilevered decks.soas.and in-eround swimmine oooK
19
Certified Shoreline"means the shoreline established by Board pursuant to
HRS 205A.42,as amended.
Coastal Dune means one of possiblv several continuous or neariv
continuous mounds or ridees of unconsoUdated sand contieuous and parallel to the
beach.situated so that it mav be accessible to storm waves and seasonal hieh waves
for release to the beach or offshore waters.
Coastal erosion means the natural loss of coastal lands,usuallv bv wave
attack.tidal or littoral currents.or wind.Coastal erosion is svnonvmous with
shoreline retreat.
"Coastal erosion hazard zone"shall include all of the land between the
shoreline and the shoreline setback line.
Coastal hazard means natural crocesses in the coastal zone that are
eenerated bv eeoloeic.oceanoeraphic.and/or meteoroloE'ical processes that clace
neoule and/or improvements at risk for iniurv and/or damaee.
"Commission"means the Plannine Commission ofthe Countv ofKaua'i.
"Department"means the Planninsf Denartment of the County of Kaua'i.
"Director"means the Plannine Director of the PlannuiE!Department of the
Countv of Kaua'i.
"DwelUne Unit"means anv buildine or anv portion thereof which is desiened
or intended for occuoancv bv one fl)familv or persons livine toeether or bv a cerson
livine alone,and orovides complete livine facUities within the unit for sleeBine,
recreation.eatine and sanitarv facilities.uicludine installed equipment for onlv
one (1)kitchen.
"FEMA means the Federal Emereencv Manaeement Aeencv.
"FIRM"means the Flood Insiu-ance Rate Mac.
"Hazard.A^sessment"means assessment for erosion.wave.flood.and inland
zone foUowme the standards ui Section 4.3 of the Hawai'i Coastal Mitieation
Guidebook,(JanuarY 2005),which was prepared for the State of Hawaii.
Department of Land and Natural Resources.Coastal Zone Manaeement ProCTam.
University of Hawai'i Sea Grant Colleee ProETam and the Pacific Services Center
and Coastal Services Center of the National Oceanic and Atmospheric
Administration.
"Kaua'i Coastal Erosion Studv means a uuantitative study of Kauai and
Ni'ihau's historical shoreline behavior utilizine orthorectified aerial photogranhs or
other imaeerv to carrv out high-resolution mappin^of historical shorehne positions
to obtain a statistically valid annual erosion rate of the Shoreline Chanee Reference
Feature (SCRF).The studv was conducted bv the Universitv of Hawai'i s Coastal
Geoloev Group for the Countv of Kaua'i.The shorelme chanee data and shoreline
chan^e Bosters produced bv this studv are on file with the Kaua'i Plannine
20
Department.The studv followed nrocedures described in the 'National Assessment
ofShoreline Change:Historic Shoreline Chanees in the Hawaiian Islands (Fletcher.
et al.,2010)available from the Kauai Plannine Denartment.
"Landscacine"means the modification of landscaoe for an aesthetic or
functional purpose that includes the plantine of veeetation:the instaUation ot
irrieation,rock or water features:CTadine or erubbine.
"Makai"means seaward or in a seaward durection.
Mauka means landward or in a landward directioiL
"Minimum buildable footprint means a buildine footorint of one thousand
five hundred (1.500)sauare feet.
Minor structure means:
(1)a structure _that costs less tban $125.000 and provides
temoorarv emereencv orotective measures for a leeallv habitable structure
that is imminentlv threatened bv coastal hazards piovided that the
Brotective measure has received apDroval in accordance with the Special
Manaeement Area Rules of the Kaua i Plannine Commission and/or the State
Department of Land and Natural Resources (as mav be the case).relocation
of the endaneered structure has been considered and is not reasonable eiven
the nature of the emereencv.the crotective measure is removed within one
hundred eiehtv (1801 davs of its installation.and eiven the sienificance of the
emergency,the Drotection is the best manaeement alternative with rescect to
beach.shorehne.and/or coastal resource conservation.or
(2)a structure that;
(A)costs less than $125,000:and
(B)does not adverselv affect beach processes.does not
artificiallv fix the shoreline.and does not interfere with public access
or public views to and alone the shoreline:and
(0 does not imoede the natural processes and/or movement
of the shoreline and/or sand dunes,and does not alter the erade of the
shoreline setback a.rea:and
CD)is consistent with the Durooses of this article and HRS
Chapter 205A.as amended:and
(E)includes,but is not limited to,Uehtine in conformance
with HRS Chapter 205A.landscape features.barbeques.picnic tables.
benches,chairs.borders.wooden trellis.bird feeders.siens.safetv
imDrovements,Ufesavme devices.movable lifeeuard stands.walkwavs
for access,outdoor showers and water faucets.public utilitv lines,
utUitv poles and accessory structures alone existine corridors.
temDorarv tents for soecial events not exceedine fourteen (14)
consecutive days in duration durine anv three-month period,walls and
fences that are located more than fortv (40)feet from the shoreline.
landscape Blantmg and irrieation svstems provided that thev are
located more than fortv (40)feet awav from the shoreUne and do not
artificiallv extend the shoreline or shoreline setback area seaward:and
(F)excludes.but is not limited to.anv in-eround swimmine
pools or spas,earaees.carports.concrete walkwavs that are reinforced,
21
concrete walkways_that are^Ao.t saw-cut at a minimum of three (3)foot
intervals.and concrete steps.
"Natural catastrophe"is a natural disaster aualifvine for a eovernors
declaration of emereencv pursuant to Hawai'i Revised Statutes Chapter 128.or a
presidential declaration ofemereencv of a maior disaster cursuant to 42 USC 5170.
includine those caused bv eoisodic coastal hazards such as tsunamis and
hurricanes.and not the result of other coastal hazards or processes such as erosion
or sea level rise.
"Nonconformine structure or activitv"means a structure or activitv which is
lawfullv existine within the shoreline setback area because it:
(1)Was completelv built,in its present form.prior to June 22.1970:
or
{2)Received either a biuldins;permit.board aonroval.or shoreline
setback area variance prior to June 16.1989:or
(3)Was outside the shoreline setback area when it received either a
buildine permit or board auproval;or
"Plan"or "site plan"means a detailed construction plan drawn to scale
of I"=20'0"that shows the desien of a structure proposed to be built within the
shoreline setback area.The plan shall be based on an accurate instrument bv a
survevor licensed in the State of Hawaii and shall consist of data includine but not
limited to:
(1)Propertv boundaries:
(2)Natural features such as laree trees.rock outcrocpines.and any
primarv or secondarv coastal dunes:
(3)Topoeraphy in and around the oroposed construction:
(41 _.Anv and all shoreline hardenine:
(5)Flood zones.where applicable:
(G)Existine and proposed structures and their proximitv to the
shoreUne and shoreline setback area:
(7)Fences.walls.and anv other structures in the shoreUne setback
area and anv potential hindrances to lateral access along the shnrfilinc:
(8)^A geo-refereiiced survey ofthe site:and
(9)Anv other information which identifies the existine condition of
the subiect parcel of land.
"Primarv Coastal Dune"means the first dune encountered mauka__of
the beach.
"Prohibited Activities"means tbose activities prohibited in the shoreljne
setback area as provided in Section 8-27.6 ofthis Article.AU other activities shall be
reeulated bv the Special Manaeement Area Rules and Reeulations ot the Countv of
Kaua'i and the reauirements of HRS Chapter 343-6 regardine environmental
assessments for anv proDosed uses within a shoreline area as defined in
Section 205A-41.
"OuaUfied consultant"means a coastal scientist with a master of scjence
degree or doctorate in geoloev.eeoETaphv.or other aDDropriate phvsical science
relatine to coastal processes.or an engineer Ucensed in the State of Hawai'i that
22
has exnerience in coastal processes.If a dune restoration project is proposed,the
aualified consultant shall have experience and expertise with dune restoration,"
'QuaUfied Demolition"means the demolition of a structure or structures
where such demQlition:
(1)Will not adverselv affect beach nrocesses:
(2)Will not artificiaUv fix the shoreline:
(3)Will not interfere with nublic access.except for public safetv
reasons durine demolition ooerations:
(4)Will not interfere with public views to and alone the shoreliue,
exceut durine demolition operations:
(5)Will be consistent with the intent of open space enhancement as
reflected in these rules and HRS 205A;and
(6)Will comclv with aDplicable Coimtv Codes.
Rebuildine"means reconstruction of a lawfullv existin^_dweUing unit when
the reconstruction is valued bv a licensed orofessional eneineer,or-architect at fiftv
percent (50%)or more ofthe current replacement cost ofthe structure.
Eepair means the fixine or reeular maintenance of a lawfullv existijie
structure that does not result in an addition to.or enlargement or expansion of,the
lawfully existing structure.A "substantial improvement"as defined herein shall not
be considered a reoair.
Eevetment shall mean a facine of stone.concrete.blocks.or nthpr similar
materials built to protect a scarn,embankment.or shore structure aeainst erosion
bv wave action or currents.
'Rockv Shoreline means a shoreUne seement actiner as the primarv interface
between marine dominated processes and terrestrial dominated processes that is
comoosed of hard.non-dvnamic.non-erodible material such as basalt.fossil
limestone.beach rock.or other natural non-dvnamic material.not to include cobble
or eravel beaches that are dvnamic in nature.or erodible cUffed shorelines
composed dominantlv of dirt or clav.
"Shoreline is as defined in Section 205A-1.Hawai'i Revised Statutes.as
amended.and as established pursuant to Section 205A-_42,Hawai'i Revised
Statutes.as amended.
"Shoreline Hardeninsf"means the process of fortifvine the shoreline or
shoreline setback area with hard structures indurlini?but not limited to.seawall
and revetments,
"Shoreline Chanee Reference Feature ^SCRF)means a morpholoeic feature
commonlv referred to as the "toe"of the beach.which reoresents the base of the
foreshore or aoDroximatine the Mean Lower Low Water (MLLW).
"Shoreline setback area"means "shoreline area"as defined rn
Section 205A-41,Hawai'i Revised Statutes.as amended.
"Shoreline setback Une"is as defined in Section 205A-41,Hawai'i Revised
Statutes.as amended.
23
Storm buffer zone is the first fortv feet (40')of the shoreline setback area as
measured from the shoreline.
"Structure"is as defined in Section 205A-41.Hawai'i Revised Statutes.
as amended.
"Substantial construction"means that one hundred percent (100%)of the
foundation has been laid.or that one hundred pereent (100%1 of the foundation of
the active phase of a project has been laid where the proiect is beine done in phases.
Substantial improvement"means anv cumulative series of repairs.
reconstruction.improvements.or additions to a structure over a ten (10)vear
period.where the cumulative cost equals or exceeds fiftv percent (50%)of the
market value of the structure before the start of construction_of the first
improvement durins that ten (10)vear period.For the purposes of this definition.
substantial improvement is considered to occur when the first alteration of anv
wall.ceiline.floor,or other structural part of the buildine commences.whether or
not that alteration affects the external dimensions ofthe structure.The value ofanv
substantinl improvement shall be determined bv the Countv Eneineer or his/her
authorized representative.The term does not.however.include either:(1)anv
proiect for improvement of a structure to correct existine violations of a State or
local bealth.sanitarv.or safetv code specifications which have been identified bv the
local code enforcement oiEcial and which are the mmimum necessarv to assure safe
UvinE;conditions.or (2)anv alteration of a "historic structure."provided that the
alteration will not preclude the structures continued desienation as a"historic structure."
Temporarv structures"means structures that will exist for no loneer than
six )months and will not irreversiblv and adverselv affect beach processes.public
access.or public views nor artificiallv fix the shoreline in an irreversible wav.and
from which there wUl be a public benefit.
"Use means the curoose for which land or buUdine is arraneed.desiened.or
intended,or for which either land or buildine is or naav be occuDied or naaintained.
Sec.8-27.3 Shoreline Setback Determination:Establishinent of the
Shoreline Setback Line.
ShoroUne setback determinations shall bc issued based on the followine
orocedures:
(a)Except m either of the followuig two cases and except as oermitted in
Section 8-27.7.a shoreUne setback determination shall be reauired for all structures
and subdivisions Droposed on lands covered by this Article.
{D In cases where the proposed structure or subdivision satisfies
the foUowine four criteria:
{A}In cases where the pronosed structure or subdivision is
located outside of the Federal Emereencv Manaeement Aeencv
(FEMA)Flood Insurance Rate Mao (FIRM)V or VE flood zones:
24
oL
<B)The proposed structure or subdivision is located at an
elevation which is thirtv (30)feet above mean sea level or ereater:
(0 The apclicant can demonstrate to the satisfaction of the
Plannine Director that the cropertv is clearlv adiacent to a rockv
shoreline and that it will not affect or be affected bv coastal erosion or
hazards;and
(D)The shoreline setback shall be sixtv (60)feet from the
certified shoreUne which has been established not more than
twelve (12)months from the date of the anplication for the exception
under this section.
^2}In cases where the apDlicant can demonstrate to the satisfaction
the Plnnnin|>Director that the aopUcant's prooosed structure or
subdivision will not affect beach processes.imoact oublic beach access.or be
affected bv or contribute to coastal erosion or hazards.excludine natural
disasters.Factors to be considered shall include.but not be Umited to.
proximitv to the shoreline.topoeraphv.properties between the shoreline and
aoplicant s oropertv.elevation.and the history of coastalhazards ui_the_area,
flb)Unless otherwise orovided in subsection (a)above.no shoreline setback
Une shall be established for anv lot subject to this Article unless the aDpUcation for
a shoreline setback line iiicludes a certified shoreline issued within twelve (12)
months prior to submission of the aDDlication.
(c)Lots Included in the Kaua i Coastal Erosion Studv.For all structures
on lots subiect to the Kaua'i Coastal Erosion Studv.the setback shall be calculated
as follows:
(1)For lots with an averaee lot depth of less than one hundred
fortv (140)feet.the setback line shall_be forty (40)_Jeet plus sevent¥_QO)
times the annual coastal erosion rate as measured from the
certified shoreline.
for all applicable
In addition to the shoreline setback calculations above.
lots subiect to the Kaua'i Coastal Erosion Study a
mandatorv twentv (201 foot additional safetv hiiffer shall be added to the
setback area for episodic coastal^vents.sea level rise and other hazards,
(2)For lots with an averaee lot depth of one hundred forty (140)feet
to two hundred twentv (220)feet.the Ea-eater setback of the foUowine'
shall auplv:
CA)Fortv (40)feet plus sev^ntY (7Q)_times the annuaLcoastal
erosion rate as measured from the certified shoreline.In addition to
the shoreline setback calculations above.for all aooUcable lots subiect
to the Kaua'i Coastal Erosion Studv a mandatorv twentv (20)feot
additional safetv buffer shall be added to the setback area for episodic
coastal events.sea level rise and other hazards:or
(K)A shoreline setback determined bv takine the averaee lot
decth.subtracting one hundred (100)teet.dividine bv two and addine
fortv (40)feet.
(3)For all lots with an averaee lot depth of over two hundred
twentv (220)feet,the ereater setback ofthe followine shall aBplv:
25
(A)Fortv feet (W)plus seventv (70)times the annual coastal
erosion rate as measured from the certified shoreUne._In addition to
the shoreline setback calciilations above.for all apclicable lots subiect
to the Kaua'i Coastal Erosion Studv a mandatorv twentv (20)foot
additional safetv buffer shall be added to the setback area for episodic
coastal events.sea level rise and other hazards:or
(B)A shoreline setback line of one_hundred (100)feet from
tbe certified shoreline.
Table 1.(This table is included for illustrative purposes onlv.)Lots Included
in the Kaua'i Coastal Erosion Studv.The distance in feet of the shoreline setback
line as measured from the certified shoreline based on the averaee lot depth in feet.
Averaee Lot
DeDth Setback Line
Less than 140
feet 40 feet plus (70 X annual coastal erosion rate)plus 20 feet
140 feet to 220
feet
Greater of:
40 feet olus (70 X annual coastal erosion rate)olus 20 feet
-or-
(Averaee Lot Deoth minus_lQO feet)_T_bY_2_Blus 40 feet
Greater than
220 feet
Greater of:
40 feet clus (70 X annual coastal eiosion rate)plus 20 feet
-or-
100 feet &om the certified shoreline
(d)Lots Not Included in the Kaua'i Coastal Erosion Studv.For all
structures on lots that were not included in the Kaua'i Coastal Erosion Studv.
the setback shall be calculated bv the followine'formula.
(Averaee Lot Depth -100V2 +401.subiect to the followine:
(1)For lots with naturallv occurrinE'rockv shorelines.the shoreline
setback line shall be no less than 40 feet.
(2)For all other lots.the shoreline setback line shall be no less
than 60 feet.
(3)For all lots.the maximum setback tbat can be reauired shall
be 100 feet.
je)Non-abuttine Lots.If an aiiplicant is unable to secure permission from
the abuttine owner to complete a certified shoreline for a non-abuttine lot within
auoroximatelv five hundred fiftv 50)feet of the shoreline.the Plannine Director
mav,pursuant to Sec.8-4.3.impose conditions to zonine permits to increase
setbacks where evidence exists that a Droposed structure mav be affected bv coastal
hazards or erosion.
26
(f)No subdivision which involves a lot.or anv cortion of a lot that would
be subiect to this Article.shall be apDroved without a coastal erosion studv.a
certified shoreline.and a shorehne setback Une established_jn accordance with this
Article.unless the subdivision is initiated bv the Countv.
(e)Anv subdivision with lots abuttine the shoreline approved pursuant to
Chacter 9 of the Kaua'i Countv Code.1987.as amended,after the adontion of this
Oriiinnnce shall have a shoreline setback line of forty (40)feet plus seventv (70)
times the annual coastal erosion rate as measured from the certified shoreline,In
addition to the shoreline setback calculations above.a mandatorv twentv (20)foot
additional safetv butfer shall be added to the setback area for episodic coastal
events.sea level rise and other hazards.
(h)Each lot abuttine the shoreline in a subdivision approved after the
effective date of this ordinance shall be desiened to achieve a biuldine;footprint of
five thousand (5.000)sauare feet of buildable area mauka of the shoreline setback
Une established in accordance with subsections (tl and (e).above.
fi)Prior to commencement of erubbuie.eradine.or construction activities,
the shorehne and shoreline setback line shall be identified on the ground and nosted
with markers.posts.or other appropriate reference marks bv a survevor licensed in
the State of Hawai'i.
(fl The aDplication of Section 8-27.3 bv itself shaU not make a dwelline
unit nonconformine.
Sec.8-27.4 Miniinuni Shoreline Setback Renuirements.
Exceot as provided for in this article,no lot shall have a shoreline setback
line of less than fortv (40)feet.
Sec.8-27.5 Applicable Laws.
The reauireraents of this Article shall not abroeate the reauirements_of
Hawai'i Revised Statytes Chauter 205A.Hawai'i Revised__Statutes Chaotei*343-5,
the Special Manapement Area Rules and Reeulations of the County of Kaua'i.or
anv other applicable statutes.codes.ordinances,rules and reeulations.or other law.
Sec.8-27.6 Prohibited Activities in the Shoreline Setback Area.
<a)Pursuant to HRS 205A-44.as amended,the minine or takine of sand,
dead coral or coral rubble,rocks.soils.or other beach or marine deposits from the
shoreline setback area is prohibited with the followine exceptions:
(1)The inadvertent takine frorn the shoreline setback area of the
materials.such as those inadvertentlv carried awav on the bodv.and_Qn
clothes,tovs.recreational eauipment.and baes:
(2)Where the minmg or takine is authorized bv a variance
Bursuant to Section 205A-46 of the Hawai'i Revised Statutes:
27
(3)The clearme of these materials from existine drainaee pioes and
canals and from the mouths of streams.includine clearine for the purposes
under HRS section 46-11.5;provided that,the sand removed shall be placed
on adiacent areas unless such placement would result in sienificant turbiditv:
(4)The cleanine of the shoreline setbad area for state or countv
maintenance purposes.includine the clearme'of seaweed.Umu.and debris
under HRS section 46-12:provided that.the sand removed shall be placed on
adiacent areas unless the placement would result in sienificant turbjdjtx;
(5)The
or seaweed:
takine of driftwood.shells.beach elass.elass floats.
(6)The exereise of traditional cultural practices as authorized bv
law or as permitted bv the department pursuant to article XII.section 7.of
the Hawai'i State Constitution:or
(7)For the response to a public emergencv or a state or
local disaster.
<h)Anv orimarv coastal dune.which Ues whollv or Bartially in the setback
area,shall not be altered.eraded.or filled in anv wav except for the addition of
sand of compatible aualitv and character unless the aDplication of this section
renders the build-out of allowable densitv unfeasible.In such case.modi&cations.
alterations.erading.or filling mav be allowed throueh a variance.but onlv for that
portion of the priniiirY dune located mauka (landward)of the shnrfiline setback
area.and onlv to the extent necessarv to construct on a minimum building
footorint.This exception shall applv onlv to lots in existence on the date of
enactment of this ordinance.
(c)The followine are prohibited in the shoreline setback area:
(1)Individual wastewater svstem or subsurface improvement
unless the auphcant demonstrates to the satisfaction of the Director that no
feasible alternative exists.uicludine a redesien of the iniDroveraent or
structure to accommodate the svstem outside of the setback line,and the
system or unprovement complies with all statutorv and Department of
Health reauirements.
(2)Landscauine that artificiallv fixes the shorehne.
(3)Shoreline hardening unless it is approved by the State of
Hawai i s Office of Conserk'ation and Coastal Lands.
M)Expansion of the footorint of a non-conformine structure.unless
otherwise provided bv law.
Sec.8-27.7 Permitted structures within the shoreline setback area.
(a)The following structures are permitted in the shoreline setback area.
All structures and/or landscaoine not scecificallv nermitted in this section are
prohibited without a variance.
28
(1)ExistinEf conformme and nonconformine structures/activities.
(2)Structure or activitv that received a shoreline variance or
administrative apnroval prior to Februarv 26.2008.
(3)A structure or activity that is necessarv for.or ancillarv to.
continuation of aericiilture or aauaculture existine in the shorehne setback
area on June 16.198A
(4)"Temoorarv structures"as defined in Section 8-27.2.To ensure
that there wUl be no irreversible or lone-term adverse effects.the Director
shall reauire as a condition of a permit the restoration of the site to its
original condition or better,and the Director mav require a bond to ensure
such restoration.
(5)A structure that consists of maintenance.repair.reconstruction.
and minor additions or alterations of leeal boating.maritime.or water sports
recreational facilities.which are publiclv owned.and which result in no
interference with natural beach processes:provided that nermitted structures
may be repaired,but shall not be enlareed within the shoreline setback area
without a variance.
(6)Repairs to a lawfullv existine structure.includjne
nonconformine structures,BroYidedAbat:
(A)The reoairs do not enlaree.add to or expand the
structure;increase the size or deeree of non-conformitv:or intensifv
the use of the structure or its impact on coastal processes:
(B)The reoairs do not constitute a substantial improvement
ofthe structure:and
(0 The repairs are permitted by the Comprehensive Zonine'
Ordinance.Development Plans.hiiilrline code.floodclain manaeement
reE'ulations.soecial manaeement area reauirements under HRS
Chaoter 205A and anv other applicable rule or law.
(7)Beach noiirisheaent or dune restoration proiects approved bv all
applicable eovernmental aeencies.
(8)A structure aDoroved bv the Director as a minor structure.
(9)Qualified demolition of existine structures.
(10)Unmanned civil defense facilities installed for the primarv
purposes of:(i)warning the pubUc of emereencies and disasters:or (ii)
measurine and/or monitorine eeoloe'ical.meteoroloeical and other events.
{lll__Seientific studies and survevs,includine archaeoloeical survevs,
(12)Structures built bv a eovernmental aeencv to address an
emereencv as declared bv the Governor of the State of Hawai'i.the Mavor of
the Coun_tY_ofjCaua'i or anv other pubhc official authorized bv law to declare
an emereencv.
29
(13)Structures relatinc to film productions that have received a
Countv Revocable FUm Permit.Structures undertaken for film productions
must be removed within thirtv (30)davs foUowine the completion of the film
production.
(14)Structures reauired for remedial and removal actions
undertaken pursuant to Chaoter 128D of the Hawai'i Revised Statutes.
(b)The followine;conditions shall apolv to anv new structure oermitted in
the shoreline setback area:
UL
standards
AU new structures shall be constructed in accordance with the
for development in Chaoter 15.Article 1.Flood Plain
Manaerement.Kaua'i Countv Code 1987.as amended.relatine to coastal hieh
hazard districts and FEMA guidelines reeardine construction in areas
mapped on Flood Insurance Rate Maps as flood hazard areas.
(2)The apDlicant shaU aeree in writine that the applicant.its
successors.and permitted assie>ns shall defend.indemnifv.and hold the
Countv of Kaua'i harmless from and aeainst any and all loss.Uabilitv.claim
or demand arisine out of damaees to said structures from anv coastal natural
hazard and coastal erosion.
(3)The applicant shall aeree in writine for itself.its successors and
assigns that the construction of anv erosion-control or shoreline hardenine;
structure and/or landscapine shatl not be allowed to protect the permitted
structure durine its Ufe.with the exception of aocroved beach or dune
nourishment fill activities.and landscape plantiag and u-rigation located
more than fortv feet (40)from the shoreUne.
{4)Unless otherwise provided.all new structures and/or
landscapine shal]not (i)adverselv affect beach processes.(ii)artificiallv fix
the shoreline.(iii)interfere with public access or public views to and alone
the shoreline.__(iv)imoede the natural processes and/or inovement of_the
shorehne and/or sand dunes.pr ^v)alter the grade of the shoreline
setback area.
(5)AU new structures shall be consistent with the ourposes of this
article and HRS Chaoter 206A.as amended.and sball be desiened and
located to minimize the alteration of natural landforms and existine public
views to and along the shoreline.
(6)Tbe reauirements ofthis Subsection (b)shall run with the land
and shall be set forth in a unilateral aereement recorded bv the applicant
with the Bureau of Convevances or the Land Court.whichever is appUcable,
no later than thirtv (30)davs after the date of final shoreline approval of_the
structure under Section 8-27.8.A copy of the recorded unilateral aereement
ghaU_b_e^led_with the Du-ector and the Countv Eneineer no later than
fortv-five (45)davs after the date of the final shoreline determination and
approval of the structure and the filine of such with the Director shall_be_a
prerequisite to the issuance of anv related buildine permit.
30
Sec.8-27.8 Procedures For Obtainine Determinations.
(a)Unless as otherwise orovided in this Article.anv structure Droposed in
the.shoreUne setback area shall first obtain a determination from the Director in
accordance with this Article.
(b)A proDosed structure in the shoreline setback area or within five
hundred feet (500')ofthe shoreline shall not be allowed bv the Director unless it ig
consistent.with this Article and HRS Chacter 205A.as amended.
(c)Procedure.
(1)_A reauest for determination for a oroposed structure within the
shoreline setback area or within five hundred (500)feet of the shoreline shall
be submitted to the Denartment on a form orescribed bv the Director.
(2)For public structures whose valuation does not
exceed $125.000.00 and repairs to lawfullv existine orivate structures as
delineated in Section 8-27.7(a).the reuuest shall include construction and site
nlans.and written text addressine comDUance with the criteria set forth in
this Article.
The Director mav also reauire additional uiformation.includine.but
not Umited to a current shoreluie setback determination or a current certified
shoreline survev or shoreline siirvev stamped bv a Ucensed survevor.
reeistered in the State of Hawaii and coastal erosion information.a Ust of
protiosed plants and their erowth.existine and final contours.DhotoeTaohs.
and an environmental assessment.
(3)For public structures whose valuation exceeds one hundred
twentv-five thousand dollars ffil25.000.00)and private structures unless
delineated in Sec.8-27.7(al.the request shall include relevant information.
which shall include.but is not limited to.a current shoreline setback
determination as set forth in Sec.8-27.3 or a current certified shoreline
survev and coastal erosion information.construction and site olans.existine
and final contours,ohotoerapbs,and a written text addressine compliance
with the criteria set forth in tbis Artide.The Director mav also reauire a
hazard assessment.
(4)Within sbcty (60)davs from the dav the aDplication is deemed
complete bv the Director.the Director shaU make a decision in accordance
with the criteria set forth in this Article that the proposed structure is:
<AL
IBL
IS1.
ffll
(SL
Permitted under Section 8-27.7:
Permitted under Section 8-27.7 and subject to conditions:
Not permitted under Section 8-27.7;
Outside ofthe shoreline setback area:or
_Not subiect to Section 8-27.3.
(5)AU aDplications for a shoreline setback determination or
determination of exemption deemed complete bv the Director shall be posted
31
within ten (10)workine davs to a pubUcized website maintained bv
the Department.
(6)The Director shall notifv the Commission at the Commission's
next reeularlv scheduled meetine of the following:
(A)anv shoreUne setback determinations for approval of a
structure proposed within the shorehne setback area or witbin five
hundred (500)feet of the shorehne:
(B)anv apDrovals or denials by the Director of structures
and the reasons therefore.including.but not Umited to.the name of
the appUcant.the location and Duruose of the structure,and a
discussion ofthe factors considered in makine the decisions:and
(C)anv decision bv the Director to not reauire a shoreline
setback determination pursuant to Section 8-27.3,exceo^_with regard
to repairs to structures oermitted pursuant to Section 8-27.7(a)(6).
(7)AU shoreline setback determinations made bv the Director shall
include,but are nnt.limited to.the name of the applicant.the averaee lot
depth calculations.the location of anv proposed structures depicted on a_Elan
drawn to scale.the purpose of tbe Droposed structures.the current certjfied
shoreline fifreauired).the setback calculations and setback line drawn on the
plan.and copies of a coastal erosion studv.if applicable.If the Director.
pursuant to Section 8-27.3,make a determination of exemption.the Director
shall state the iustification in writine.
to_
(8)Except with reeard to repairs to structures permitted pursuant
Section 8-27.7(a)(6).the Director's decisions pursuant to
Section 8-27.8(c)(4)shall not be final imtil posted on the Commission's
aeenda.Notwithstandine the postine of the decision.if there is an aoceal
from the Director's decision,the decision shall not be final until the
Commission completes its decision-makine on the acpeal.
(9)Minor structures shall be completed within one vear from the
final shoretine apDroval or within one vear &om the date of aoproval of the
last discretionarv oermit.whichever comes later.
(10)For anv non-minor structures aUowed within the shoreline
setback area and anv structures outside the shoreliae setback area based on
the shoreline setback line.substantial construction of the structure shall be
achieved within three (3)vears from the date of final shoreUne setback
determination and aBcroval.and construction thereof shall be completed (as
evidenced bv a certificate of occupancv in the case of buildines for habitation)
within four (4)vears from said date»
iAl_^An_extension of no more than one vear mav be eranted by
the Director to the deadUne for substantial construction onlv for
BTQp£rties_with a_stable shoreline such as rockv or accretine shorelines
or shorelines exhibitine no coastal erosion per shoreline chanee rates
as provided in the Kaua'i Coastal Erosion Studv.In all other cases
where substantial construction has not occurred bv the deadline.a new
certified shoreline and setback determination shall be reauired.
(B)In case of faUure to complete construction bv the four-vear
deadline.the Plannine Commission shall determine a remedv based on
32
a review of the scecific circumstances.includine but not limited to.the
stabUity__Qf the_shoreline.the extent of the completion and the reason
for delav.
(C)These reauirements for substantial construction and
completion shaU run with the land and shall be written in a unilateral
aereement that is recorded in the Bureau of Convevances or Land
Court.as appUcable.prior to aDplication for a buildine permit.A copv
of the recorded unilateral aereement shall be submitted to the
PInnnine Department orior to aDplication for a buildine permit.
(d)Nothine in this section shall be deemed to amend.modifv or suoersede
anv provision of the Soecial Manaeement Area Rules and Reeulations of the Countv
of Kaua'i.HRS Chaoter 205A.as amended.or HRS Chapter 343-5.as amended.
(e)Fees.A nonrefundable urocessine fee ofone hundred dollars f$100.00)
shall accompanv a reauest for determination.
Sec.8-27.9 Variance apnlication.
(a)A written acnlication for variance shall be made in a form prescribed
bv the Director and shaU be filed with the Director.The anplication shall include
pjans,_site plans,photoeraDhs.and anv other ulans.drawines.maps.or data
determined bv the Director to be necessarv to evaluate the aDplication.The
aDpUcation shall also include:
(1)A non-refundable administrative aoplication fee of three
hundred dollars ($300.00).
(2)Certification from the owner or lessee of the lot which authorizes
the acplication for variance:
(3)An environmental assessment nrepared m accordance with HRS
Chauter 343.and the environmental unpact statement rules and apDlicable
euidelines of the State of Hawai i:
(4)The names,addresses.and the tax map kev identification of
owners of real propertv situated adiacent to and abuttine the boundaries of
the land on which the proposed structure and/or landscaoine is to be located;
(5)A site plan of the shorehne setback area.drawn to
scale,showine:
(A)Existine natural and man-made features and conditions
within:
(B)Existing natural and man-made features and conditions
alone properties immediatelv adiacent to the shoreline setback area
and proposed improvements;
(C)The certtfied shoreline and the shoreUne setback line:
(D)Contours at a minimum interval of two (2)feet unless
waived bv the director;and
(E)Proposed development and improvements showine new
conditions with a tvcical section (ifa structure).
33
(6)A CODV ofthe certified ahoreline survev map ofthe propertv:
(7)Detailed iustification of the oroposed proiect.which addresses
the purpose and intent of these rules and the criteria for approval_of_a
vanance:
f8)Analvsis and report of coastal erosion rates and coastal
processes:and
(9)Anv other information reauired bv the Director.
<b)Upon a dntBrmination bv the Director that the aooUcation is comolete
and in compUance with HRS Chacter 206A.nart II and this article.the Director
shall submit the aBplication to the Commission.Ifthe aDpIication is dpt^niinni]tn
be incomplete bv the Du^ctor.the Director shall return the apDlication to the
applicant with a written description identifnne the portions of the aDpUcation
determined to be incomolete.The Director shal1 suhmit a written report.a copy of
the aBDlication.and all other documents submitted on the aDclication to the
Commission prior to the matter apnearme on an aeenda of the Commission.
fc)Exceot as otherwise provided m this section.all aDDlications for
variances shaU be heard.noticed.and processed as oublic hearine matters.Not less
than thirtv C301 calendar davs before the public hearing date.the appUcant for a
variance shall mail notices ofpublic hearinB bv certtfied or re^ister<"1 mafl postage
prepaid.to owners of real propertv which abut the uarcel that is the subieet of the
application.Not less than thrrtv C30)davs prior to the pubUc hearm?date.the
Du'ector shall publish a notice of hearine once in a newspaper that is printed and
issued at least twice weeklv in the Countv and which is eenerallv circulated
throuphout the Countv.The notice shaU state the nature of the proposed
development.the
renuu'ed bv law.
date.time.and place of the hearine.and all other matters
(d)Exceptions.Prior to action on a variance aDplication.the Commission
may waive a public hearine on the application for:
(1)StabUization of shoreline erosion by the movme of sand entirelv
on public lands:
C21 Protection of a leeal structure costin?more than $20.000:
provided that.the structure is at risk of immediate damaee from shoreline
erosion;
f3)Other structures or activities:orovided that.no person or agency
has reauested apublichearine wit.hin twentv-five (25)calendar davs after
public notice ofthe appUcation.'Forthe uurooses ofthis aectinn "publisuiotice
of the aBoUcation"shall be uublication of a notice of the ailDlication in a
newsoaDer wluchis orinted and issued at least twice weeklv in tlie Cqunty pf
Kaua'i.which informs the oublic of the subiect matter of the aDDUcation and
which identifies the date and time bv which a written reauest for a.Eublje
hearine must be received bv the Commission:or
34
(4)Maintenance.repair.reconstruction.and minor additiona^or
alterations of leeal boatine,mflrit.imR ny wateraBOrts^eCTeational facilities,
which result in Uttle or no interference with naturql ahnrRline processes.
Sec.8-27.10 Criteria for approval ofa variance.
(a)A shoreline setback area variance mav be considered for a structure
otheniirise prohibited bv this Article-if the Commiasion finds in writine.based on
the record presented.that the proposed Btructure meets those standards established
under Section 8-3.3 and is necessarv for or anciUarv to:
d}CultivationofcroDS:
(2)Aauaculture:
(3)Landscapine:provided that.the commissiop finris that the
Droposed structure wiU not adverselv affect beach orocesaes.oubUc access or
public views and will not artificiallv fix the shoreline and is in compliance
with HRS Section 116-5:
(4)DrainaEe:
(5)Boatine.marit.ime.or water sports recreational facilities:
(6)Structures bv public aeencies or oublic utilities reeulated under
HRS Chaoter 269:
(7)Private and pubUc structures that are cleariy in the public
interest;
(8)Private and public structures which wiU neither adverselv
affect beach procRSseB nor artificiallv fix the shoreline:provided that^_the
Commission also finrla that hardship wffl result to the apolicant if the
facilities or improvements are nnt.^llnwfiil wit.hin t.he shoreUne setback area:
(9)Private and public structures that mav artificiallv fix the
shoreline but not adverselv affect beach processes:provided that,_the
Commission als"fipds that shoreline erosio"'a likely to cause severe
hardshipto the apBlicant ifthe facUities or unprovements are not allowed
wit.hin t.he shorelme setback area and all alternative erosion _ceBtrol
measures.inclu'linp retreat.have been considered:
(IQ)The Commission may consider erantine a variance for the
protection of a dwellme unit or puhlic mfrafitructure:provided that.the
stnicture is at immment risk of dama?e from coastal erosion.such damaee
poses a daneer to the health.safetv.and welfare of the public.and the
proposed protection is the best shnrfline manaeement ootion in accordance
with relevant state oolicv on shorelipn hi^rriBni^p;-
35
(11)Construction of a new (Iwsllinp unit.In the case where the
^iininiiiin buildable footprint does not allow for a setback in accordance with
this Article.the Cnmmission mav consider erantine a variance under the
foUowinf CTiidalinee-
(A\The front vard setback mav be reduced where feasible to
allow for ths minimum buildable footDrmt:
(B)The side vard setback mav be reduced where feasible to
allow for t.hfi minimum buildable footnrint:
(0 If the foreeoine aoproaches are done to the maximum
extent practicable and a dwellinff nannnt he sited mauka of the
shoreluae setback.the imnimuni buildable footDrint shall be reduced to
no less than one thousand (1.000)sauare feet.
(D)V the foresoine aonroaches in subsections (A).(K)and (O
a^^lone to t-h<?Tnay1W^lP exfcent Dracticabl&^the c^ilcul$tte(|shora^inR
setback mav be reduced to the minimum extent reauired to permit the
constructioa of a house withui the reduced footprmt.provided that a
aualified consultant muat certifv that the Drooertvis not eubiect to
uadue rielt from erosiou.hieh wave action.or floodinp.Under no
circuTpstance shall the shoreUne setback line be less than
fortv (40)feet.
(12)Rebuildine of an existine dwelUnp unit-
(A)Rebuildmp of a lawfuUy existine dwsl^ng unit under tl
sectlon shall onlv be aUowed if the rebuldine is not prohlbited bv
Article 13.Chaoter 8.Kaua'i Countv Code 1987.as amended and
does not:
(i)enlarge the structure bevond its orevious builduie
footprint.and
(ii)intensifv the use of the structiire or ita impacts on
coastal orocesses.
In the case where the mmimiim huildable footpruit does
not allow for a setback of fortv f401 feet.the Commission mav consider
Branting a variance undar the foUowini;guideUnes onlv:
ftt The front vard setback mav be reduced where
feasible to allow fnr t.hs minimum bliildable footorint:
Cii)The side vard setback mav be reduced where
feasible to allow for the minimum buildable footorint:
(ui)If theforepoinp approaches are done to the
maximum extent practicable and a dweUiirif;nfinn^t be sited
mauka of the shorelme setback.the minimum bujldable
footprint mav be reduced to the lesser pf one thousand (1.000)
square feet or the actual footprint ofthe house.
(b)A structure may be considered for a variance uoon grounds of
hardshiu if:
(1)The apolicant would be deprived of all reasonable use of the
land ifrequired to fullv complv with the provisions of the Brovisiongj.if
this Article;
36
(2)The applicant's Droposal is due to uninun circumstances and
does not draw into auestion the reasonableness of the provisions of this
Article:and
(3)The Drooosal is the best practicable altemative which best
conforms to the curpose ofthe Drovisions ofthis Article.
(c)Before erantine a hardshio variance.the Commission shall finil t.hqt.
the appUcant's Droposal is a reasonable use of the land.Because of the dY"ami('
nature of the shoreline enviromnent.inannrooriate development mav easilv oose a
risk to individuals or to the nublic health and safetv or to the coastal zone
manaeement and resources.The Commission shall consider factors such as coaatal
hazards,shorelme conditions.erosion.surf inundation.flood conditions and the
CeotEraphv of the lot in determininB whether the croBosal is a reasonable use of the
aoplicant's land.The CommiBsion shall eive due consideration to the lone-term
averas'e annual rate of coastal erosion calculated bv followme the methodoloev
outlined in the National Assessment of Shoreline Chanee:Historicsl Shnrflline
Chanees in the Hawaiian Islands (Fletcher.et al..2012)and anv amendments
thereto.or Section 4.1 of the Hawai'i Coastal Hazard Mitieation Guidebook
(Hwane.2005)and anv subseaueat amenilmpnts thereto.
(dt For Durposea of this section.hardshio shaU not indude economic
hardshiii to the aoclicant resultine from:(1)countv zonine or setback chanaes.
nlannnrt develoument Tifirmit.a,cluster permits.or subdivision apDrovals after
June 16.1989:(2)anv other permit or apDroval which mav have been issued by the
mmmission.or (3)actions bv the aoolicant.
(e)No variance shall be eranted iinlRss appropriate conditions
an>impQwd:
tl)To maintain and reauire safe lateral access to and alone the
shoreline for public use or adequatelv compensate for its loss:
(2)To mmimize and mitieate risk of adverse impacts on beach
processes:
(S)To mynimiae and mitieate riek of structures failmp and
becomine loose rocks or rubble on public propertv:and
(4)To minimize adverse imuacts on public views to.from.and alone
the shoreluie;and
<S)To complv with Countv Code provisions relatme to flood clam
manaeement.Chapter 15.Article 1.Kaua'i Countv Code 1987,m aiBendei
and DrainaBe.Chaoter 22.Article 16.Kaua'i Countv Code 1987,as amen^d,
resnectivelv.
Cf>Anv structure aoproved with.in t.hs shnrBlinn setback area bv yariance
shall wt be eUeible for protection by shoreline hardeninp durins the life of the
structure.andthis UBiitation and the fact that the atructure does not meet wtback
requirements under Section 8-27.3 and muld be subject to coastal erogton and hish
wave action shaU be writfcen into a unUateral aereement that ifi recorded by the
37
Bureau of Convevances of Land Court.as the case mav be.A CODV of the unilateral
aareement shall be submitted to the PIanmne Department nrior to the issuance of
the reauired zonine and/or shoralino aetback variance.Failure of the erantor to
record these deed restrictions shall rnnstitute a violation of this section and the
CTantor shall be subiect to the oenalties set forth in this article.
<e)For anv structure aDBroved within the shnmlinn setback area bv
variance.the annUcaat shall aeree in writine that the apBlicant.its successors.and
permitted assiEms shall defend.indemnifv and hold the Countv of Kaua'i harmless
frnm nnd aeainst anv and all loss.UabilJt.Y,[•Inim.or demand arisine out ofdamaees
to said structure and this indfimnifination shall be included in the unilateral
airreement reauired above.
(h)The aupUcant mav aDplv to the department for an amendment to the
variance in a manner consistent with the procedures of the special manaeement
area rules ofthe Kauai PlannintLCoiniaission,
ffl No variance shall be eranted for structureB within the ahnrnliiiR
setback area that are unoermitted.unless the Commission determines that a
structure is necessarv to protect oubUc health and safetv.and/or that removal ofthe
structure would cause a sreater DubUc harm.
ti)In no case shall the Commission erant a shorfilinn RBtback variance for
structures constructed without vahd permits.
Sec.8-27.11 Enforcement.
(a)The Director shall enforce this article m accordance with Article 24 of
the Countv of Kaua'i Comprehensive zonintr nrilinnnce.HRS Chaoter 205A.and
the rules ofPractice and Procedure ofthe Countv ofKaua'i Plaiining f'nmmission.
(b)Removal of an unpermitted structure.
(1)In determinine the disposition of a unpermitted structure.the
Director shaU foUow the procedures outlined in Chapter 12 of the Rules of
Practice and F'rocedureofthe County ofKaua'i P)^^fi^iip Commission based
on the nature of the imnermitted structure.If the structure would have
required Class I.II.or III cermits as well as shoreUne setback deh>rminHt,ion
and aporoval or variance the nrocedure shall be that reauired under
Section l-12-4 ofsaid rules.Ifa Class IV oermit would have been reauired.
the procedure would be that oiit.linnrl jn Sections 1-12-6 throuErh 1-12^-of
said rules.
C21 Followins the relevant procedures described in
Sec.8-2T7llft)MD.the Directoror the Commission.as the case mav bfi^sfeeU
order the removal of an unoermitted structure unless it is determined that
removal shall cause a ereater harm to the ecosvstem and/or public
improvementB than allowing the structure to remain.
(3)Ifthe Director or Commission determines that removal would be
inappropriate.the propertv owner or pBrpetrator sha]1_nht,nin^a^jan?nce
under Sec.8-27.10 and shall oav penalties as aoecified in Section 8-27.12.
38
<c)Judicial Enforcement of Order.The Director mav institute a civil
action in anv court of competent iurisdiction for the enforcement of anv order issued
pursuant to thia section.
Where the civU action has been instituted to enforce the civU fine imoosed liv
such order.the Director need onlv show that a notice of violation and order was
served.a hearine was held or the rimn aDowed for requestinp a hearinp had expired
without such a reauest.that a civil fi"n wna imposed and that ttifi fip?unposed has
not been paid.
The Director mav institute a civil action m anv court of competent
iurisdiction for iniunctive reliefto nrevent violation ofany provision ofthi?Chapter.
anv rule adopted there under.anv permit iasued purs^apt theTeto or anv condltion
of any shnrpline setback approval in addition to any other remedv provided for
under this chapter.
(S)Nonexclusiveness of Remedies.The remedies orovidfiri in this chaBter
for enforcement of the Drovisions of this chapter.or anv rule adopted thereunder.
shall be in addition anv other remedv as mav be provided bv law.
(e)Acpeal in Accordance with Statute.If any person is apprieved bv the
order issued bv the director pursuant to this section.the person mav apueal the
order in t.he i^nnner urovided in HBS Chaoter 91.provided that no crovision ofsuch
order shall be staved on apoeal unless sBecificallv ordered bv a court of comoetent
iurisdiction
ffi The Director ahall enforce this article ia accordance with Article 24 of
the Coimtv ofKaua'i Comcrehensive Zoniiiff Oriiinance and HRS Chaoter 205A.
Sec.8-27.12 CivUfines.
Anv cerson who violates anv orovision of this Article shall be subiect t2_the
penalties provided for in HRS Section 205A-32 and Section 8-3.5 ofthis Chapter.
Sec.8-27.13 Anoeal ofthe Dlrector's Determination.
Anv person who can show that a direct probable harm to his or her Derson or
his or her prooerty interest.or probable pubUc harm could occur from the decision
mav apoeal anv Shore^no Setback Determination.Approval.—Denial—or
Determmfttion of Inapplicabilitv bv the Director to the Commission in accordance
with the Commission's Rules ofPractice and Procedure.
Sec.8-27.14 Promulffation ofRules and Reeulations.
Pursuant to HBS Chapter 91.as amended.the Plannine Commission mav
pmmulpate rules and repilations consistent with this Article as mav be necessarv
tn implsment anv ofthe provisions ofthis AEtJElei
SECTION 3.Ifany provision ofthis ordmance or a^pUcation thereofto
any person,persons,or circumstances is held myalid,the invaHdity does not affect
the other provisions or applications of this ordinance which can be given effect
39
without the invalid provision or appUcation,and to this end,the provisions of this
ordinance are severable.
SECTION 4.Ordinance material to be repealed is bracketed.New
ordinance material is underscored.When revising,compiluig or printing this
ordinance for inclusion in the Kaua'i County Code 1987,as amended,the brackets,
bracketed material,and underscoring shaU not be included.
SECTION5.This ordinance ahaU take effect upon approval.The
requirements of this ordinance shall not affect any application which haa been
approved by the Commission prior to the effective date of this ordinance,unless
there is a subsequent approval required prior to a bmlding permit,in which case,
that subsequent applicatipn shall be sub.ject to the relevant requirements of this
ordmance,excluding subdivisions which have received tentative approval prior to
the approval date ofthis ordinance.
Introduced by:/s/NADINE K.NAKAMURA
(By Request)
DATE OF INTRODUCTION:
December 19,2012
Lihu'e,Kaua'i,Hawai'i
V:\BiU8\2012-2014 Tem\BiU No.2461,Draft 5-NN-PM_k.doc
40
CERTIFICATE OF THE COUNTY CLERK
I hereby certify that heretofore attached is a true and correct copy of Bill
No.2461,Draft 5,which was adopted on second and final reading by the Council ofthe
County of Kaua'i at its meeting held on November 19,2014,by the following vote:
FORADOPTION:
AGAINSTADOPTION:
EXCUSED &NOT VOTING:
EECUSED &NOT VOTING:
lahu'e,Hawai'i
November 20,2014
Kagawa,Rapozo,Yulcimura,Furfaro TOTAL -4,
Bynum,Chock,Hooser TOTAL -3,
None TOTAL -0,
None TOTAL -0.
)l2~<A^'
Ricky Watanabe
County Clerk,County ofKaua'i
ATTEST:
DATE OF TRANSMirTAL TO MAYOR:
November 21,2014
Approved this h day of
December 2014.
BernardP.Carv^Tlin,,'lr—
Mayor
County of Kaua'i
Articles:
Shoreline Setbacks.
Chapfer 23
SHORELINE SETBACKS
Articlel.ShorelineSetbacks
Sectioos:
23-1.1 Aulhorily.
1.2 Purpose.
t.3 Delinitions
1.4 Shoreline setback line.
1.5 Prohibitionswithintheshorelinearea.
1.6 Nonconfonning structurcs.
i.7 Subdivision actions.
..8 Criteria for granting a variance.
1.9 Conditions on variances.
1.10 Authority to act on variance applications—Noticcofapplication.
1.11 Public hearings on variance applications.
1.12 Variancc application fee.
23-1.13 Civil lines.
23-1.14 Enforcement.
23-1.15 Illegal shore protection structtires.
23-1.16 Rules.
Sec.23-1.1 Authority.
Pursuant to the authority confenred by HRS Chapter 205A,the standards and procedures contained in this chapter are
hereby establislied and shall apply to all lands within the shoreline area ofthe city.(Added by Ord.92-34J
23-
23-
23-
23-
23-
23 -
23-
23 -
23-
23 -
23-
Sec.23-1.2
(a)
Purpose.
It is a primary policy ofthe city to protect and preserve the natural shoreline,especially sandy beaches;to protect and
preserve public pcdestrian access laterally along the shoreline aiid to the sea;and to protect and preserve open space along
the shoreline,It is also a secondary policy ofthe city to reduce hazards to property from coastal floods.
(b)To carry out these policies and to comply with the mandate stated in HRS Chapter 205A,it is the specific purpose ofthis
chapter to establish standards and to authorize the department ofland utilization to adopt rules pursuant to FTRS Chapter
91,which generally prohibit withiii the shoreline area any construction or activity wliich may adversely affect beacli
processes,public access along tlie shoreline,or shoreline open space.
(c)Finaliy,it is the purpose ofthis chapter to name the director of land utilization as the council's designee to exercise some of
the powers and functioiis granted,and dufies imposed,pursuant to HRS Chapter 205A,Part III.
(Addcd by Ord.92-34)
Sec.23-1.3 Definitions.
For the purposes ofthis chapter,unless it is plainly evident firom the context that a differcnt meaning is intended,the
following words and plirases are defined as follows:
"Activity"means any grubbing or any grading or stockpiling ofearth materials.
"Applicant"means any individual,organization,partnership,firm,association,tmst,estate,or corporation and any agency
of the federal,the state,or any county govemment,"Buildablearea"meansthatportionofazoninglotexcludingtheshoreljnesetback,requiredyards,sfreet setbacks,strcain
setbacks,easements and flag stems.
"Certified shoreline"or "certified shoreline survey"means the shoreline as marked on the ground and as shown on a
shorelinesurveywhichhasbeencertifiedbythestatedepartinentoflandandnatural resourccs under Hawaii Administrative Rules,
Titte 13,Chapter222,entitled"ShorelineCertification."
"Council"means the city council ofthe City and County ofHonolulu."Department"means the department ofland utilization,which agency shall act as the "county pfanning department"under
HRSSectit>n205A-41."Director"means the director of)and utilization.
"Earth material"means any sand,coral or coral rubble,rocks,soil,fill or marine deposits."Excavation"or "cut"nieans any act by which earth material is cut into,dug or moved,and any condition resulting
therefrom."Filt"means any acl by which earth material is placed or deposited by artificial means and any condition resulting
therefroin."Grading"means any excavation or fill or any combination thereof."Grubbing"means any act by which vegetation,inciuding Irees,shrubs or other planls,is dislodged or uprooted frotn the
surface ofthe ground."HRS"means the Hawaii Revised Statutes.
"Nonconfonning structure"means a structure or portion ofa structiire which was previously lawful but which is located
within the shoreline setback as aresuft ofsubsequentbeach erosion,orasaresultofchanges Inthe lawrelating to the shoreline
setback.
"Practicable altemative"means an altemative to the proposed project which is available and capable ofbeing done,taking
into consideration existing technology and logistics,and which would accomplish the basic purpose ofthe project while avoiding or
having less adverse impact on the shoreline area.
"Shoreline"mcans the upperreachesofthewashofthewaves,other than storm and seismic waves,at high tide during the
season ofthe year in which the higliest wash ofthe waves occiirs,usually evidenced by the edge ofvegetation growth,or the upper
limit ofdebris left by ttie wash ofthe waves."Shoreline area"means ai!ofthe land area between the shoreline and tlie shoreline setback line.
"Shoreline lot"means a zoning lot ofrecord,any portion ofwhich lies within the shoreline area,or when there is no
certified shoretine survey any portion ofwhich lies within 55 feet inland ofthe natural vegetation line.A lot may be determined to be
a shoreline lot notwithstanding the existence ofa second lot between the lot and the shoreline."Shorcline setback line"means that line established by this chapter which mns inland from and parallel to the cenified
shoreline at the horizontal plane."Shoreline survey"means a survey perfomied by a registered land surveyor for ttie purpose ofdetermining the location of
the shoreline,in accordance with Hawaii Administrative Rules,Title 13,Chapter 222,entitled "Shoreline Certification.""Shore protection stmcture"means a structure which may artificially fix the location ofthe shoreline,including but not
liniited to a groin,seawail,or revetnieiit.
"Stockpiling"means the temporary open storage ofearth materials,
"Structure"means any portion of any building,pavement,road,pipe,flume,utility line,fence,groin,wall,or revetment;or
anything constructed or erected with a fixed location at or under the ground,or requiring a fixed location on or under the ground,or
attached to something having or requiring a fixed location on or below the ground.(Added by Ord.92-34)
Sec.23-1.4
(a)
Shoreline setback line.
General Rule.Except as otherwise provided in this section,the shoreline setback line shaJl be established 40 feet inland
from the certified shoreline.
(b)AdjustmentofShoreline Setback Line on Shallow Lots.Wherethe depth ofthebuildableareaofa lot,asmeasured
seaward froni its inland edge,is reduced to less than 30 feet,the shoreline setback line shall be adjusted to allow a
m!mmumdepthofbuildableareaof30feet;providedthattheadjustedshorelinesetbacklineshallbenolessthan20feet
from the certified shoreline.
(c)Adjustment ofShoreIine Setback Line Related to the Construction ofa Shore Protection Structure.Once a shoreline has
been certified ftom which a shoreline setback line can be established.no shoreline setback line shall be esfablished farther
seaward as tfie result ofa subsequent certified shoreline survey following the constructJon ofa shore protection structure.
On a lot where the certified shoreline is pennanently fixed by a shore protection structure,the shoreline setback line shall
be established by measuring inland from the shoreline,as it was located prior to the construction ofthe shoreline protection
structure.
Where the shore protection structure was constructed without a shoreline survey first being niade and certified by the state
department ofland and natural resources,the director stiall detennine the prior tocation ofthe shoreline solely for the
purpose ofestablishing the shoreline setback line.In so doing,the director shall consider the actual location ofthe high
wash ofthe waves during the year and the location ofthe shoreline and the stioreline setback line on adjacent properties.
The resulting shoreline setback line may be further than 40 feet from the shoreline established by the department ofland
utilizafion foltowing construction ofthe shore protection structure.
(Added by Ord.92-34)
Sec.23-1.5 Prohibitions within the shoreline area.
(a)The mining or taking ofany earth material from fhe shoreline area is prohibited,with the following exceptions:
(1)Thetakingofmaterials,notinexcessofonegallonperpersonper(Iay,forreasonable,personal,noncommercial
use,provided that it does not result cumulatively in changing the topography ofthe shoreline area;
(2)Where the mining or taking is authorized by a variance granted pursuant to this chapter;
(3)The clearing ofmaterials from existing drainage pipes,canals and the niouths ofstreams,including clearing for
purposes allowed under HRS Section 46-11.5;provided that sand removed shall be placed on adjacent areas
unless the placement woutd result in sigtiificant turbidity;or
(4)The clearing ofthe shoreline area for state or city maintenance pufposes,including clearing for purposes under
HRS Section 46-12;providedthatsandremovedshall beplaced on adjacentareas unless the placementwould
result in significant turbidity.
(b)Stmctures and activities are prohibited within the shoreline area,with the following exceptions:
(1)Minor structures and activities pennitted under rules adopted by the department which do not aflect beach
processes or artificially fix the shoreline and do not interfere with public access,public views or open space
along the shoreline.If,due to beach erosion or other cause,the director determines that a minor struchire
permitted under this section may affect beach processes or public access or has become located seaward ofthe
shoreline,the director or other govemmental agency havingjurisdiction may order its removal;
(2)Minor structures and activities necessary for or anci]]ary to continuation,but not expansion,ofagriculture or
aquaculture in fhe shoreline area on June 16,I9S9;
(3)Maintenance,repair,reconsfruction,and minor additions to or alterations oflegal,publicly owned boating,
maritime,or ocean sports recreational facilities,wliich result in little or no interference with natural shoreline
processes.Privately owned boating,maritime,or ocean sports recreational facilifies are specifically excluded
from this exception;
(4)Nonconfomiing stnictures or sfructures that have received a shoreline setback variance;
(5)Constmction,installation,maintenance,repair,and replacement ofcivil defense warning or signal devices and
sirens.
(Addcd by Ord.92-34;Am.Ord.10-32)
Sec.23-1.6 Nonconforming structurcs.
(a)Any nonconforming structure may be repaired or altered in any manner which docs not increase its nonconformity.
(b)Ifanonconformingstructure isdestroyed byanymeans to an extent ofmorethan 50percent ofits replacement cost at the
time ofdestruction,it shall not be rcconstructed except in conformity with the provisions ofthis ehapter and the shoreline
setback rules and reguladons,or successor regulations.Reconstruction ofsuch a structure within the shoreline area shall
require a vanance.
(Added by Ord.92-34)
Sec.23-1.7 Subdivision actions.
(a)Except as provided in this chapter,no new subdivision action,including the subdivision or consolidation of land,for an
existing shoreline lof to create new lots may be approved unless each new lot;
(I)Can accommodate a 60-foot shoreline setback,except for:
(2)
(A)
(B)
and,
Areas that are not within the coastal high hazard district and where the entire shoreline for the new
!ot is characterized by either:
(i)an authorized shoreline protection structure;or
(ii)a fixed,rocky shoreline;
in which case the department may approve new slioreline lots that will accommodate a 40-foot
shoreline setback;or
Minor subdividion actions involving the subdivision or consolidation ofland only for the purpose of
creating easements or adjusting (ot lines,and which will not result irt any increase in the number of
pennitted dwelling units,nonresidential structures,or lots;
Has a buildable area adequate to accommodate the proposed development,including appurtenant uses and
structures,such as parking.
AccretedIandsobtainedfromtheStateofHawaii pursuanttoHRS Section 501-33 shall notbe included as partofthe land
area when md(ing calculations ofthe lot size available for subdivision.
(b)Subdivision ofexistingshorelme lots for the purpose ofwidening roadways designated on the public infrastructure maps
adopted pursuant to Chapter 4,Article 8,may be pennitted,upon review and approval ofthe director.
(c)New residential lots may not be approved unless each new lot:
(1)Hasabuildableareaofatleast 3,000 squarefeet;and
(2)Has a buildable area with a minimum depth and width ofat least 50 feet.
(Added by Ord.92-34,Am.Ord.10-32)
Sec.23-1.8 Criteria for granting a variance.
(a)Thedirector,3SprovidedinSection23-l,]0,maygrantavarianceuponfindingthat,based upon the record presented,the
proposed structure or activity is necessary for or ancillary to:
(1)Cultivation ofcrops;
(2)Aquaculture;
(3)Landscaping;provided that the proposed structure or activity will not adversely afFect beach processes and wili
not artificially fix the shoreline;
(4)Moving ofsand from one location seaward ofthe shoreline fo another location seaward ofthe shoreline;
provided that the director also finds that the moving ofsand will not adversely affect beach processes,will not
diminish thesizeofapubiicbeach and will be necessary to stabilizean erodingshoreline.
(b)The director may also grant a variance upon finding that,based upon the record presented,the proposed structure or
activity meets one ofthe following standards ofthis section.
(1)Shoreline-dependent Facility Standard.A variance may be granted for an activity or structure that is necessary
for or ancillary to a shoreline-dependent facility or improvement,including drainage facilities and boating,
maritime or ocean sports recreationai facilities;provided that the proposal is the practicable altemative which
best conforms to tlie purpose ofthe shoreline selback rules.
(2)Public Interest Standard.A variance may be granted for an activity or structure that is necessary for or ancillary
to facilities or improvements by a public agency or by a public utility regulated luider HRS Chapter 269,or
necessary for or ancillary to private facilities or improvements that are clearly in ihe public interest;provided
that the proposa)is the practicable altemative which best conforms to the purpose ofthis chapter and the
shoreline setback rules.
Public interest shall niean principally ofbenefit to the general pubiic,as detennined by the director,
(3)Hardship Standard.
(A)A variance may be granted for an activity or structure that is necessary or ancillary to the folfowing
private facilities or improvements,ifhardship will result to fhe applicant ifthe facilities or
improvements are not allowed within the shoreline area;
(i)Private facilities or improvenients which will neither adversely affect beach processes nor
artificially fix the shoreline;and
(ii)Private facilities or improvements that niay artificially fix the shoreline,but onlyif
hardship is likely to be caused by shoreline erosion and conditions are imposed
prohibiting any such structure seaward ofthe existing shoreline unless it is clearly in the
public interest.
(B)For the purposes ofthis subsection,hardship may be found only if:
(i)Theapplicantwouldbedeprivedofreasonableuseofthelandifrequiredtocomplyfully
with the shoreline setback ordinance and the shoreiine setback rules;
(ii)The applicant's proposal is due to unique circumstances and does not draw Jnto question
the reasonableness ofthis chapter and the shoreline setback rules;and
(iii)The proposal is the practicable alteniative whicli best confonns to the purpose ofthis
chapter and the shoreline setback rules.
(C)Before granting a hardship variance,the director must determine that the applicant's proposal is a
reasonable use ofthe iand.Because ofthe dynamic nature ofthe shoreline environment,
inappropriate development may easily pose a risk to individuals or to the public health and safety.
For this reason,the (letermination ofthe reasonableness ofthe use ofland should properly consider
factors such as shoreline conditions,erosion,surfand flood conditions and the geography ofthe lot.
(D)Hardship shall not be determined as a result ofazone change,plan review use approval,subdivision
approval,cluster housing approval,planned development housing approval,conditional use permit,
or any other discretionary land use permit granted after June 16,1989.
(Addcd by Ord.92-34;Am.Ord.10-32)
Scc.23-1.9 Conditions on variances.
No variance shall be granted unless appropriate conditions are imposed:
(a)To maintain safe access to and along the shoreline or adequately compensate for its loss;
(b)To minimize risk ofadverse impacts on beach processes;
(c)To niinimize risk ofexisting legal or proposed structures fatling and becoming loose rocks or rubble on public property;
and
(d)To minimize adverse impacts on public views to,from and along the shoreline.
(Added by Ord.92-34)
Sec.23-1.10 Authority to acf on variance applications-Notice ofapplication.
(a)The director shall act upon all variance applications according to the criteria contained in this chapter.
(b)The directorshit]l givenoticeofanappljcation for a varlance under this chapter to abutting property owners,to affected
neighborhood boards and community associations and to persons who have requested notice.
(Addcd by Ord.92-34)
Scc.23-1.11 Public hearings on variance applications.
(a)The director shall hold a public hearing on each variance application,exccpt that the director may waive the hearing on
variances for the following:
(1)Stabilization ofshoreline erosion involving the movement ofsand entirely on public lands;
(2)Application for shore protection where a legal habitable stnicture is at risk ofinunediate damage from shoreline
erosion as detennined by the director;
(3)Other structures or activities;provided that no person or ageiicy has requested a pubtic hearing within 25
caiendar days after public notice ofthe application;
(4)Application qualifying for an emergency permit under Chapter 25 ofthis code;or
(5)Maintenance,repair,reconstruction and minor additions to or alterations oflegal boating,nnaritime or water
sports recreational facilities,which result in littte or no interference with natural shoreline processes.
(b)The director shaJl give reasonable notice ofthe public hearing on any variance application to the applicant,to any person or
agency that requested the public hearing,a)id to abutting property owners and any other persoii who requested notice.
(AddedbyOrd.92-34)
Sec.Zi-1.12
(a)
Variance application fee.
The application fee for a variance under this chapter shall be $1,200.00,which shall not be refundable;provided that the
fee shai]be waived for city projects.
(b)When a shoreline setback variance or minor shoreline structure pemiit application,or a related environmentaf assessment
or impact stafement is subniitted subsequent to the applicant's haviiig completed the activity or structure for which the
variance or minor shoreline structure permit is sought,or having been cited for the activity or constmction without having
obtained a variance or ininor shoreline structure permit,the application or processing fee shall be doubled.
(c)When a request for a wrilten clearance regarding compliance with the shoreline setback ordinance or confirmation
regarding the nonconforming status ofa shoreline structure is submitted for processing,the fee shall be $300.00 per tax
map key.
(d)When a minor shoreline structure perniit application is submitted for processing,the application fee shall be $200.00.
(e)WIien an environmental assessment or impact statement must be prepared as a prerequisite to a variance required by this
chapter,and is submitted to the department ofplanning and permitting for processiflg as the accepting agency,there shall
be a processing fee of $600.00 for an environmental assessment,and $1,200.00 for an environmental impact statement.
(f)When a shoreline setback variance,minor shoreline structure pennit,or prerequisite environmental assessment or impact
stateinent is submitted for processing,there shall be a nonreftindable application review fee to determine whether the
application is complete or incomplete,as follows;
(1)Applications with a feeof $1,200.00 ormoreshallhaveanapplicationreviewfeeof $400.00;
(2)Applications with a fee of $600,00 shatl have an application review fee of $200.00;
(3)Minor shoreline structure permits shall have an application review fee of $100.00.
When an apptication under this section has been accepted by the department for processing,the application review fee for
the submitted application shall be counted as partial payment towards the total application fee for that submittal.
(Addcd by Ord.92-34;Am.Ord.03-12,13-16.l4^t)
Sec.23-1.13 Civllfmci.
(a)Any person who vioiates any provision ofthis chapter,any rule adopted pursuant thereto,any permit issued pursuant
thereto,oranyconditionofashorelinevarianceshall,uponnoticeissuedpursuanttoSection23-1.14,bedeemedtohave
committedacivilviolationandshallbesubjecttoaninitialcivil fine nottoexceed $10,000.00 perviolation anda
maximiun daily fine of$1.000,00 until the violation is correcled or a variance is granted.
ib)A variance appjication submitted subsequent to an applicant's having completed the activity or structure,or having been
riiied for the activity or the construction without having obtained a variance,shall not stay any order to pay civil fines.
(Added by Ord.92-34)
Scc.23-1.14 Eaforcement.
(a)Issuance ofNotice ofViolation and Order.Ifthe director determines tliat any person is violatiiig any provision ofthis
chapter,any rule adopted thereunder,any pemiit issued pursuant thereto,or any condition of a shoreline setback variance,
the director may have the person served,by registered or certified mail,delivery,or publication,with a written notice of
violation and order.
(1)Contents ofthe Notice ofViolation.The notice shall include at least the following infonnation:
(A)Date ofnotice;
(B)The name and address ofthe person given notice;
(C)The section nuniber of the ordinance or rule which has been violated;
(D)The nature ofthe violation;and
(E)The location and the time that the violafion was discovered.
(2)Contents ofthe Order.The order may require the person to do any or all of the following:
(A)Cease and desist from the violation;
(B)Correct the violation at the person's own expense,which may include removal ofany structure and
restoration ofland to previous conditions;
(C)Pay a civil fine not to exceed $10,000.00 in the manner,at the place and before the date specified in
the order:
(D)Pay a civil fine not to exceed $1 ,000.00 per day for each day in which the violation persists,in the
manner,at the place and before the date specifled in the order;and
(E)Appear before the director at a time and place specified in the order and answer the charges specified
Jn the notice ofviolation.
The order shall advise the person that the order shall becomefinal30daysafterthedateofitsmailing,delivery,
or publication unless written request for a hearing is mailed or delivered to the director within said 30 days.
(b)Effect ofOrder-Right to Hearmg.The provisions ofthe order issued by the director under this section shall become final
30 days after the date ofthe mailing,delivery,or publication ofthe order.The person to whom the notice is directed may
request a hearing before the director.A request for a hearing shall not stay any provision ofthe order.
The reqiiest for a hearing shalt be considered timely ifa written request is delivered or mailed and postmark dated to the
director within said 30 days.
Upon receipt ofa request for a hearing,the director shall specify a time and piace for the person subject to the order to
appear and be heard.The hearing shall be conducted by the director or the director's designee in aocordance with the
provisions of HRS Chapter 9 1.Following said hearing,the director may affinn,modify or rcscind the order as in the
opinion ofthe director may be appropriate.
(c)Judicial Enforcenient ofOrder.The director may institute a civil action in any court ofcompetentjurisdiction for the
enforcement of any order issued pursuant to this section.
Where the civil action has been instituted to enforce the civil fine iniposed by such order,the director need only show that
a notice ofvioiation and order was served,a hearing was hetd or the time allowed for requesting a hearing had expired
without such a request,that a civil fine was imposed and that fhe ftne imposed has not been paid.
The director may institute a civil action in any court ofcompetentjurisdiction for injunctive reliefto prevent violation of
any provision ofthis chapter,any rule adopted thereunder,any permit issued pursuant thereto or any condition ofany
shoreline setback variance in addition to any other remedy provided for under this chapter.
(d)Nonexclusiveness ofRemedies.Theremedies provided in thischapterforenforcementoftheprovisionsofthischapter,
any rule adopted thereunder,any pennit issued pursuant thereto,or any condition of any shoreline setback variance shall be
in addition to any other remedy as may be provided by law.
(e)Appeal in Accordance with Statute.[fany person is aggrieved by the order issued by the director pursuant to this section,
theperson may appeal theorderin themannerprovidedinHRSChapter91,provided that no provisiffli ofsuch ordershall
bestayedonappealunlessspecificatlyorderedbyacourtofcompetentjurisdiction.
(Added by Ord.92-34)
Sec.23-1.15 Illegal shore protection structures.
Where the shoreline is affected by a man-made structure that has not been authorized with govemment agency pennits
required by law:
(a)Ifanypartofthestructurelieswithinthecurrenttaxmapboundariesofaprivatelyownedparcel.thenforpurposesof
enforcement ofthis chapter,the structure shall be constmed to be entirely within the shoreline area;and
(b)No building permit or grading pemiit shall be granted on a shoreline lot until the illegal structure is removed or corrected;
except,however,that such pennits may be granted where the director determines it necessary to protect public health and
safety.
(Added by Ord.92-34)
Sec.23-1.16 Rulcs.
The department shail adopt rules pursuant to HRS Chapter 91 to implement this chapter and HRS Chapter 205A,Part III.
The rules may designate high quality sandy beaches which should be preserved and may include guideiines or prohibitions relating to
the types ofshore protection structures which may or may not be allowed on these and other beaches.
(Added by Ord.92-34)
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DCOS-Seattle,WA (Michael Newby)<mnewby@masterhalco.com>
RL:Colonial Ornamental Aluminum Fencing -Universal Top 3 Rail
To Lachlan Foss <lfoss@bellwetherhousing.org>Copy judyfoss@comcast.net <judyfoss@comcast.net>•
jalpfoss@gmail.com <jalpfoss@gmail.com>
7/14/20172:28PM
Lachlan,
1 will have this back to you either Monday or Tuesday.
From:Lachlan Foss [mailto:lf!2as.@bellwetherhousing^2rg]
Sent:Friday,July 14,2017 2:21 PM
To:DCOS-Seattle,WA (Michael Newby)<MNewby(aMasterHalco.com>
Cc:judyfossfa'comcast.net;jalRfi2£Sj@-gniaiL£flm
Subject:Colonial Ornamental Aluminum Fencing -Universal Top 3 Rail
Mike,
Thank you for taking time to discuss my fencing needs with you for my project in Kauai,Hawaii.
What 1 need pricing information on is -Coloniat Fence -Universal 3 rail (or equivalent):
•210 L.F.:4'high x 6'wide 3 rail universal top panel -part #721702 (or equivalent);
•320 L.F.:6'high x 6'wide 3 rail universal top panel -part #721732 (or equivalent);
•One:Swing gate -5'opening x 70"htgh -part #722012 (or equivalent);
•Posts for above;
•Overall weight(s)for all of above (shipping by others).
1 understand since you are a wholesaler that this order will ultimately need to be placed by the licensed installation
contractor,so 1 greatly appreciate you providing me with a preliminary cost estimate
Thanks again,and look forward to hearing back from you at your earliest convenience.
Lachlan
Lachlan Pries Foss
Construction Manager
bellwether housing
Create.Susfain.Advocate.
C:425.765.7523 |O:206-588-4792 |F:206.623.9404
Mailing:1651 Bellevue Ave,Seattte,WA 98122 |Visiting:433 Minor Avenue N
Jan TenBruggencate <jan@islandstrategy.com>
Update on slow moving fence permit progress.
To Judy Foss <judyfoss@comcast.net>
^y-^^^8/21/20193:00PM
I met this morning with attorney lan Jung.It seems pretty clear that this will not be a fast permit process,and there is no
hope of getting the permit by the end of the year.Although Planning Director Kaaina Hull sees little difficulty getting it
approved,but it is the first shoreline variance permit they will ever have done,and they want to be sure it dots all the i's and
crosses the t's.
lan had promised the application would be done earlier,but he says maybe this week.Then the draft environmental
assessment must be reviewed,published,a 30day public comment period,updates based on those comments,issuance of
final assessment report,planning public hearing.
lan says a permit probably won't be ready until February.Sarah had asked about starting construction in a month,but it
appears that is unrealistically optimistic.
Jan
Sent from my iPad
Jan TenBruggencate <jan@islandstrategy.com>
Re:Re:Makahuena Fence Permit
To Judy Foss <judyfoss@comcast.net>
1/7/20207:44PM
Thanks for that.1 have similar sentiments.May I forward your note to lan?
On Tue,Jan 7,2020,1:30 PM <judyfoss@comcast.net>wrote:
Jan,Let's get some perspective.On February 9,2018 we received an email from Jody Galinato
stating "There are no records for any fencing.You will have to submit a SMA permit application
and shoreline setback determination.Any fencing in the shoreline setback area will need to be
removed.Additionally,the footing cannot cross the property line,you will have to show it to be
inside of your property."
Since then we have filed an Environmental Impact Assessment,a Shoreline Management
Setback Document;we have had the property surveyed.We have established with CIRI our
neighbor the exact fence line.
We are on one of the windiest sections of the islands.Our existing fences have fallen over and
been propped up only to fall in a heavy wind.We are set on a craggy shoreline on the edge of a
steep cliff.1 feel that our liability for an accident increases every day we ignore the establishment
of a safety boundary to our property.,a boundary that will insure us that our homeowners and their
guests are not going to fall over the edge as a result of our negligence.
So,after two years let me know;Where is our application?Is it sitting on someone's desk?Is it in
a file somewhere?We have been compliant and patient but we need action.
1 would like answers to some of my questions so I can report back to the Board and to our
homeowners.
Judy Foss,President
AOAO Makahuena
On January 7,2020 at 10:18 AM Jan TenBruggencate <jan@islandstrategy.com>wrote:
1 suggested to lan that the delays are now ridiculous.He agreed.He said he reminded them again
last week,and will push a complaint up to the Planning Director to try to get some movement.
On Mon,Jan 6,2020 at 3:12 PM Sara Sloan <sara.makahuena@gmail.com>wrote:
Aloha Jan,
Happy New Year!Judy and 1 wanted to check in an on our fence permit.Can you give us an
update and let us know where we are in the process?What is the next step?Thank you for your
help and we look forward to hearing from you.
Mahalo,
Thanks for that.1 have similar sentiments.May 1 forward your note to lan?
On Tue,Jan 7,2020,1:30 PM <judyfoss@comcast.net>wrote:
Jan,Let's get some perspective.On February 9,2018 we received an email from Jody
Galinato stating "There are no records for any fencing.You will have to submit a SMA permit
application and shoreline setback determination.Any fencing in the shoreline setback area will
need to be removed.Additionally,the footing cannot cross the property line,you will have to
show it to be inside of your property."
Since then we have filed an Environmental Impact Assessment,a Shoreline Management
Setback Document;we have had the property surveyed.We have established with CIRI our
neighbor the exact fence line.
We are on one of the windiest sections of the islands.Our existing fences have fallen over and
been propped up only to fall in a heavy wind.We are set on a craggy shoreline on the edge of a
steep cliff.1 feel that our liability for an accident increases every day we ignore the
establishment of a safety boundary to our property.,a boundary that will insure us that our
homeowners and their guests are not going to fall over the edge as a result of our negligence.
So,after two years let me know;Where is our application?Is it sitting on someone's desk?Is it
in a file somewhere?We have been compliant and patient but we need action.
I would like answers to some of my questions so I can report back to the Board and to our
homeowners.
Judy Foss,President
AOAO Makahuena
On January 7,2020 at 10:18 AM Jan TenBruggencate <jan@islandstrategy.com>wrote:
1 suggested to lan that the delays are now ridiculous.He agreed.He said he reminded them
again last week,and will push a complaint up to the Planning Director to try to get some
movement.
On Mon,Jan 6,2020 at 3:12 PM Sara Sloan <sara.makahuena@gmail.com>wrote:
Aloha Jan,
Happy New Year!Judy and 1 wanted to check in an on our fence permit.Can you give us an
update and let us know where we are in the process?What is the next step?Thank you for
your help and we look forward to hearing from you.
Mahalo,
Sara Sloan
Property Administrative Manager
The Makahuena at Poipu
(808)742-2482 (Office)
lan K.Jung <ikj@kauai-law.com>
RE:Makahuena Fence Permit
5/27/2020 7:07 PM
To judyfoss@comcast.net <judyfoss@comcast.net>•Jan Bruggencate <jan@islandstrategy.com>Copy
Jennifer A.Uyeda-Gali <jau@kauai-law.com>
Judy:
I'll put a ti'me line together to make sense of the delay and process.
I understand the frustration;however,this is the first shoreline setback application under the new shoreline setback
ordinance.We had to prepare an environmental assessment,which is typically a six-month process.It seems
ridiculous for a fence replacements;however,that is the new norm with regard to work within the shoreline setback
area.
The good news is that the EA was posted in the May 23,2020 Environmental Notice.Our comment deadline is set for
June 22,2020,whereby folks can comment on the project.See link below.
http://oeqc2.doh.hawaii.eov/The_Environmental_Notice/2020-05-23-TEN.[.ulf
Once the EA is issued its final EA status,then we can submit the Application for the Shoreline Setback Variance,whjch
still has to go to the Planning Commission.
1 suggest we get on a call so 1 can walk you through the process more clearly.
Regards,
lan K.Jung
Attorney at Law
Beltes Graham LLP
Watumult Piaza
4334 Rice Street,Suite 202
Lihue,Kauai,Hawaii 96766
Phone:(808)245-2163
Fax:(808)245-3277
Email:ikKakauai-law.com
CONFfDENTtALITY:The information contained in this e-maii and any attachment is confidentiat and is intended only for the intended
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message is not the intended recipient (or the person responsible for the delivery of this e-mait message to an intended recipient),you
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From:judyfoss@comcast.net <judyfoss(5)comcast.net>
Sent:Wednesday,May 27,2020 1:00 PM
To:lan K.Jung <IKJ(5)kauai-law.com>:Bruggencate,Jan <jan(5>islandstrategy.com>
Subject;Makahuena Fence Permit
OFFICE OF ENVIRONMENTAL QUALITY CONTROL
^*^''..
'"^—'•^1*'
David Y.Ige,Governor
The
Environmental
Notice May 23,2020
The Environmental Notice provides pubtic notice for projects undergoing environmental review in Hawai'i as
mandated under Section 343-3,Hawai'i Revised Statutes,the Environmental Impact Statement Law.Along
with pubtishing Environmental Assessments and Environmental Impact Statements for projects in Hawai'i,
The Environmentol Notice also includes other items related to the shoreline,coastal zone.and federal artivities.
Expansive perspective from West Kaua'i towards Ni'ihau and Lehua Ptioto from £.u'u 'Qpae Homestead_t^
235SouthBeretaniaStreet,Suite702 •Honolulu,Hawail 96813 •(808)586-4185 •oeqchawaii@doh.hawaii.gov •http://health.hawaii.eov/oeqc
?May 23,20201 The Envlronmental Notice
TABLE OF CONTENTS
ANNOUNCEMENTS._.____________________________.__2
STATEWIDE MAP OF NEW HRS CHAPTER 343 DOCUMENTS &
DETERMINATIONS...____________________________2
HAWAI'I
Wrieht/Bentley Sinele Family Residence at Kaiwiki-FijiaJ^A
(FONSIL_______...3
MAUI
Pu'unani Homestead Subdivision-Draft EA (AFNSI)_..___.3
Maui Hleh School STEM Buildine /Autism Center-Draft EA
(AFNSIL___.4
O'AHU
Wahlawa Pedestrian Bridee--Draft EA IAFNSI)....._...__.4
BWS Beretania Comolex Redevelopment-Draft EIS _._.___5
Atherton Mlxed-Use Center-Flnal EA (FONSI)____________5
KAUA'I
Pu'u 'Opae Kuleana Homestead Settlement Plan--Draft EA
IAFNSI)6
AOAO Makahuena Shoreline Safetv Fence--Draft EA IAFNSI).6
PREVIOUSLY PUBLISHED DOCUMENTS OPEN FOR COMMENT____7
PRIOR AGENCY DETERMINATIONS 7
SHOREUNE NOTICES
Proposed Shoreline Certificatlons and Rejectfons_.._...7
Applications for Shoreline Certification.............._8
COASTAL ZONE MANAGEMENT NOTICES
Special Management Area (SMA)Minor Permits.______8
Federal Consistency Reviews^^..„.„..„___.....»^__9
FEDERAL NOTICES_9
GLOSSARY Of TERMS AND DEFINITIONS________________10
ANNOUNCEMENTS
AGENCY 101:As a reminder,pursuant to HRS Chapter 343,proponents of actions subject to the environmental review process
are elther an Agenfy or an Applicant.An ageney is any department,office,board or commlssion ofthe state or county govern-
ment that Is part of the executfve branch of that government (common exclusions from thls definition are the Judiclary and the
Offfce of Hawaiian Affairs).An apDlicant Is any entlty other than an agency that is requesting a dlscretionary approval of the
proposed action from an agency.
Thus,in lay terms,the roles of agencies are either as the proponentoftheir own action or the approver ofan applicant's action.
Proposing agencies make their own determinations on whether an EA Is required and whether a Final EA is adequate;if an EIS
is determined to be required,then the Governor or Mayor (rather than the agency)has the authority to accept the Final EIS as
adequate.An approvlng agency make atl the necessary Chapter 343 determlnations on actions proposed by an apptlcant.
Feel free to contact our office should you desire further clariflcation or guidance on complex situationsl
STATEWIDE MAP OF NEW HRS CHAPTER 343 DOCUMENTS &DETERMINATIONS
LEGEND
New document count in this issue:8 total
O -HRS §343-5(b)Agency Actions:6
-HRS §343-5fe)Applicant Actions:2
•":•';y^si'ssf^s^^s^^
tThe Envirorimental Notfce"
HAWAI'I
Wrieht/Bentlev Sinele Familv Residence at Kalwiki-Final EA (FONSI)
HRS 5343-
S(a)Trtgger
District(s)
TMKfs)
Permlt(s)
Approving
Agency
Applicant
(2)Propose any use within any land classified as a consen/ation district
South Hllo
(3)2-6-011:033
State:Conservation District Use Permit;DOH Individual WastewaterSystem Approval
Consultant
County of Hawai'i:Pfan Approval,Grading and Grubbing and Building Permits
Department of Land and Natural Resources,State of Hawai'f
Trevor Fitzpatnck,(808)798-6660,trevor.j,fitzpatrjck@hawaii,gov
Office of Conservation and Coastal Lands,1151 Punchbowl Street.Room 131.Honolulu,Hl 96813
J.Spencer Wright and M.Ellen Bentley;P.0.Box 6686,Hilo,Hl 96720
J.Spencer Wright,(808)345-4234,kaleo@olapanoe.net
None
Status 'Finding of No Significant Impact (FONSI)determination
The applicants J.Spencer Wright and M.Ellen Bentley are proposing to construct a one-story post-and-pier approxlmately 3,160
square foot single-family resldence (SFR),removal of invasive species,and related improvements on thelr 19.000-acre proper-
ty in the State Conservation District,Resource Subzone.Mr.Wright and Ms.Bentley note that the house site has been chosen
to minimize the impact on the native forest and to displace much of the strawberry guava thlckets found on thelr parcel.Addi-
tionally,the proposed SFR site utilizes the most level topography available on the lot so as to minimize grading.The applicants
anticipate that the total area impacted by the building site,driveway,and associated construction artivity would be less than
a half of an acre of the 19-acre property.In addition to the SFR and related improvements,the applicants are proposing to
remove Invasive specles and restore the area through the siting of the home and plantfng native vegetation.
Pu'unani Homestead Subdivision-Draft EA (AFNSIl
HRSS343-
5(a)Trigger
District(s)
TMK(S)
Permit(s)
Proposing/
Determining
Agency
Consultant
Status
;(1)Propose the use of state or county lands or the use of state or county funds
j_Wa^luku
(2)3-5-002:002(por.)and 3-5-001:064(por.l
National Pollutant Discharge Elimination System Permit;Community Noise Permit (as
applicable);Subdivision;Work on State Highway Permit;Construction Permits
DepartmentofHawaiian Home Lands,StateofHawai'i
Stewart Matsunaga,(808)620-9500,stewart.t.matsunaeaiahawaii.eov
91-5420 Kapolei Parkway,Kapolel,Hl 96707
Munekiyo Hiraga;305 High Street,Sulte 104,Wailuku,Hl 96793
Bryan Esmerafda,(808)983-1233,planninE@munekivohiraRa.com
Statutory 30-day publlc review and comment period starts.f.omments are due by June 22,2020.Click the title link aboue
to access and read the document,then send comments to the proposing/determlning agency and copy the consultant.
The Department of Hawaiian Home Lands intends to develop a new residential subdlvision for its beneficiaries on a 47.4-acre
portion of land owned by the DHHL,Identified by TMK (2)3-5-002:002,in Waikapu,Maui,mauka of Honoapi'ilani Highway.A
new seweriine to serve the subdivision will also be construrted,which will cross the highway from Parcel 2 and run along a
portion ofTMK (2)3-5-001:064.The project will feature a max of 161 single-family lots (137 turn-key homes and 24 vacant lots).
Each ofthe lots will be approximately 7500 square feet in area and will be improved with graded pads and stubbed utility
connections.Related improvement5 to also be developed include internat roadways and sidewalks,a drainage detention basin,
utility connech'ons,and roadway frontage improvements along the highway including a road widening lot for turnlng lanes,a
median refuge lane,a bike lane,as well as for slte distance requirements.
awaw^ssaaesa ,-,^iSSBI^KS^iESiHaKffii^S«^BAln^S.T^.^^8&S^^S^afc'^3'^^ySf3?@§i^Sat•hlay23,2020 The Envlronmental Notlce
MAUI (CONTINUEO)
Maui Hjgh School STEM Buildine /Autism Center-Draft EA (AFNSIl
HRS §343-
5(a)Trlgger
Distrlct(s)
TMK(s)
1 Permit(s)
i Proposing/
Determining
Agency
Consultant
Status
(1)Proposethe useofstateorcountylandsortheuseofstateorcountyfunds
Wailuku
(3)3-8-007:098
Various (see document)
Department of Education (DOE),State of Hawai'i
Janna Mihara,(808)784-5120,ianna.miharaiakl2.hi.us
Department of Education,FDB,OFO,3633 Wai'alae Avenue,Honolulu,Hl 96816
Gerald Park Urban Planner;95-595 Kaname'e Street #324,Mllllani,Hl 96789
Gerald Park,(808)625-9626,enarkiaeDUD.biz
Statutory 30-day public review and comment period starts.Comments are due by June 22,2020.Ctick the title link above
to access and read the document,then send comments to the proposing/determining agency and copy the consultant.
The proposed action will provlde a permanent structure for accommodating the Maui High School STEM program and an Autism
CenterforMauiDistrictschoolchildren.Theuseswilloccupyseparatespacesinthestructure.MauiHighSchooldoesnothave
sufficient classroom space and does not have a flexible STEM/Science Lab for multi-purpose collaborative learning,research,
design,and experiments for STEM students.A dedicated space for the STEM program will foster and promote the DOE goal to
expose and develop student interest and grow STEM programs in alt pubtic schoois.The Autism Center will accommodate
special needs children who are not able to be mainstreamed into the general student poputation.Currently there is no perma-
nent Maui facility speclfically designed to accommodate the special needs children.
Wahiawa Pedestrian Bridee-Draft BA IAFNSI)
HRS §343-!(1)Propose the use of state or county lands or the use of state or county funds
5(a)Trigger
District(s)'Wahiawa
TMK(s)|(1)7-1-001:0l4,015,017and 034;7-4-007:007
Permit(s)|Various (see document)
Proposing/j Department of Transportation,State of Hawai'i (HDOT)
Determlning |HollyYuen,(808)692-7548,Hollv.YueniahawaIi.eov
Agency
Consultant
Status
601 Kamoklla Blud.,Rm 6S8,Kapolei,Hl 96707
WSP USA;1001 Bishop Street,Sulte 2400,Honolulu,Hl 96813
Todd Nlshtoka,(S08)566-2212,todd.nishiokaOwsD.com
Statutory 30-day public review and comment period starts.Comments are due by June 22,2020.Click the title tink above
to access and read the document,then send comments to the proposing/determining agency and copy the consuitant.
HDOT is proposing to construct a shared use bicycle/pedestrian facility from Whitmore Village to Wahiawa Town,which includes
a new non-vehicular bridge over Ki'iki'l Stream.Please refer to the document's Project Location Map for the project locatfon
and potential route alternatives.The shared use path is intended to drastically reduce the time and distance between Whitmore
Vtltage and Wahiawa Town by creating an additionaf multimodat connector from Whitmore Village to the Wahiawa Transit
Center.Moreover,the project would fulfill the stated objectives withln the Proposed 2016 Central O'ahu Sustainable Commu-
nlties Plan of designing communities to reduce automobile usage,while supporting walking,biking,and transit use.HDOT Is
reaching out to you as well as other City^State/federa)agencies,and the surrounding community to gather project input.
;May 23,2020
O'AHU (CONTINUED)
BWS Beretania Comolex Redevelooment-Draft EIS Grandfathered under old rules
HIIS S343-
5(a)Trigger
Dlstrict(s)
TMK(s)
Permit(s)
Proposlng
Agency
Accepting
i Authority
Consultant
Status
(1)Propose the use of state or county lands or the use of state or county funds
Honolulu
(1)2-1-036:001 S005 (portlon)
'Construction and building permits
j Board of Water Supply (BWS),City and County of Honolulu
1 Ernest Y.W.Lau,P.E.,Manager and Chief Engineer
(808)748-5061,bwsredevelopmentejs@hhf.com
630 South Beretania Street,Honolulu,Hl96843
MayorKirk Caldwell,Cityand CountyofHonolulu
c/o Board of Water Supply,630 South Beretania Street,Honolulu,Hl96843
(808)748-5061,bwiredevelopmentejs@hhf.com
HHF Planners;733 Blshop Street,Sulte 2590,Honolulu,Hl 96813
Scott Ezer,Vice President,(808)457-3158,sezer@hhf.com
Statutory 45-day public review and comment period starts.Comments are due by July 7,2020.Click the ti'tle link to access
and read the document,then send comments to the accepting authority and copythe proposing agency and the consultant.
The BWS intends to issue a Request for Proposals to redevelop approximately 128,100 square feet of its 6.3 acre Beretania
Complex located at 630 South Beretania Street,Honolulu.The purpose of the proposed artion is to provlde a revenue stream
to help offset a portion of BWS's operating expenses and capital Improvements costs.BWS will enter into a development con-
tractwithaqualifleddeveloperandlssueagroundleasefortheuseofa portionoftheBeretaniaComplex.Theleasetermwill
not exceed 65 years and will provide for continued and uninterrupted use ofexlsting BWS buildlngs and operational facilities.
Redevelopment will occur on areas currently being used as ground level parking for BWS employees,equipment and staff ve-
Wcles.All lost parking spaces wjll be replaced in the redevelopment.
FutureredevelopmentoftheBeretaniaComplexwill bedetermlned by the selected developer.However,three possible rede-
velopment scenarios are evaluated in the DEIS:1)Assisted Care Living Facility and Office Building;2)Affordable Senlor Rental
Apartments and Office Building;and 3)ParkingStructure and Office Building.The office buildingwill be for BWS use.All ofthese
uses are allowed under the property's A-2 Medium Density Apartment zoning.
Atherton Mixed-Use Student Housine.Innovation &Entrepreneurshio Center-Final EA IFONSI)
HRS S343-
5(a)Trigger
District(s)
(1)Propose the use of state or county lands or the use of state or county funds
Honolulu
(1)2-8-016:001TMKfs)
Permit(s)j Various (see document)
Proposing/'University of Hawai'i,State of Hawai'i
Determlning |Jan Gouveia,(808)956-6405,igouveia@hawaii.edu
Agency 2444 Dole Street,Bachman Hall 109H,Honolulu,Hl 96822
I Wilson Okamoto Corporation;1907 S.Beretania Street,Suite 400,Honolulu,Hl 96826
[Keola Cheng,(S08)946-2277,KChenBiS>wilsonokamoto.com
Consultant
Status j Finding of No Significant Impact (FONSI)determination
The University of Hawai'i Foundatfon (UHF)has partnered wlth Hunt Development Group (HDG)to design,build,ffnance,
operate,and maintain a Mixed Use Student Housing Innovation and Entrepreneurship Center on UHF property in tower Manoa
located directly adjacent from the University of Hawai'j at Manoa (UHM)campus.The proposed project will conslst of approx-
imately 114,000 square feet,with programming that will include student housing and residential common areas,the Innovation
and entrepreneurshlp center,project service areas,retail area,and on-site parking.
The proposed project wltl comprise ofthe Innovation /Entrepreneurship Center and two six-story buildlngs primarilyfor student
housing.The existlng Charles Atherton house will be repurposed as the Innovation Center and house Incubator spaces,class-
rooms,offices,and retail space.
Pu'u 'Qpae Kuleana Homestead Settlement Plan-Draft EA (AFNSI)
HRS S343-
5(a)Trigger
DIstrlct(s)
TMKfs)
Permlt(s)
Proposlng/
Determining
(1)Propose the use of state or county lands or the use of state or county funds
Waimea
(4)1-2-002:023 (por.)
See document
Department of Hawaiian Home Lands,State of Hawail
Julie-Ann Cachola,(808)620-9500,jufie-ann.cachola@hawaii.gov
Agency |91-5420 Kapolei Pkwy,Kapolel,Hl 96707
Consultant |G70;111 S.King St.,Suite 170,Honolulu,Hl96813
Kawika McKeague,(808)523-5866,kawikam®e70.desiBn
Status 1 Statutory 30-day public review and comment period starts.Comments are due byJune 22,2020.Ctick the title link to access
and read the document,then address comments to the proposfng/determlning agency at DHI-ILPuuODae@g70.design and
copytheconsultant.
The Department of Hawaiian Home Lands (DHHL)is proposing the Pu u Opae Kuleana Homestead Settlement Plan to offer 251
homestead lots (11 Pastoral and 240 Subsistence Agricutture)on 1,421 acres on the Island of Kaua'i.According to HAR Chapter
10-3-30 Kuleana Homestead Leases,DHHLshall survey,stake and award lots and provide an unpaved roadway suitable to access
the lots.As a non-traditional program,the Kuleana Homestead Program places responsibility for development of infrastructure
in the hands of native Hawaiian beneficiaries.This arrangement provides benefidaries land within a shorter time frame than
the traditlonal DHHL awarding process,as well as the opportunity to create a new self-sufficient community.The Project is
proposlng the following DHHL land uses:Subslstence Agriculture,Pastoral,Community Use and Speclal Distrirt.
AOAO Makahuena Shoreline Safetv Fence-Draft EA (AFNSI)
HRS 5343-
5(a)Trigger
District(s)
TMK(s)
Permit(s)
Approving
Agency
Appllcant
Consultant
(3)Propose any use within a shoreline area
Kotoa
(4)2-8-020:003
See document
Status
Department of Planning,County of Kaua'i
Ka'aina S.Hull,Plannlng Director,(808)241-4050,khull@kauai.eov
4444 Rice Street,Suite A47,LThu'e,Hawai'i 96766
AOAO Makahuena;4-1579 Kuhio Hlghway,Suite 102A,Kapa'a,Hawal'i 96746
c/o Ms.Judy Foss,judvfoss@comcast.net
Belles Graham LLP;4334 Rice Street,Suite 202,Lthu'e,Hawal'i 96766
lan K.Jung,Esq.,(808)245-2163,ikiiakauai-law.com
Statutory 30-day public review and comment period starts,Comments are due by June 22,2020.Click the titte link above
to access and read the document,then send comments to the approving agency and copy the applicant and the consultant.
The Applicant proposes to install a safety fence around the perimeter ofthe south (makal),east and west portions ofthe Subject
Property.The purpose of the fenclng Is to protect guests,owners,and members of the public from possible dangers from the
abrupt change in elevation at the southern (makai)side ofthe Subject Property.
A portion ofthe proposed fendng will be on the bluff edge above the certified shoreline at elevations often (10)to seventy-five
(75)feet above mean sea level.The fencing is also proposed to be slx (6)feet tall on the eastern and western portlon of the
Subject Property and four (4)feet on the southern (makai)portion of the Subject Property.The fencing is proposed to be con-
structed ofcoloniat aluminum by manufacturer Master Halco,fnc.
PREVIOUSLY PUBLISHED DOCUMENTS OPEN FOR COMMENT
Status:Public review and comment period for these projects began previously.Please click on the links beiow to access,and
send comments to the relevant agency and copy any relevant applicant and/or consultant,as identtfied on the publicatlon form
that follows the Inltial agency letter for each action.
COMMENTS DUE MAY 26,2020
HAWAI'I
Maeic Sands Beach ParkAccessibilitv Improvements-Draft EA (AFNSI)
KTpahoehoe NAR Fenceline Clearine and Access-Draft EA (AFNSI)
MAUI
Auwahi 2 Wind Farm Proiect-IEIS Preoaration Notice)
STATEWIDE
Miconia Bioloaical Control-Draft EA (AFNSI)
COMMENTS DUEjUNE 8,2020
HAWAI'I
Wai'ohinu Transfer Station Repairs and Enhancements-Draft EA (AFNS11
MAUI
Lower IVIain Street Sewer Upgrade-Draft EA IAFNSI)
La'akea VillaBe-Draft EA (AFNSI)
Hotel Wailuku-Draft EA (AFNSI)
KAUA't
Anahola Kuleana Homestead Settlement Plan-Draft EA (AFNSI)
COMMENTS DUE JUNE 22,2020
O'AHU
Issuance of Commercial Aauarium Permit^for theJslandofO'tihu-Draft EIS
PRIOR AGENCY DETERMINATIONS
The Department ofTransportation,State of Hawal'i has determlned that additional envlronmental review is not requlred for
the construction of fuel storage tanks on the Daniel K.Inouye International Airport property at the Sand Island Terminal,Tax
Map Keys:1-2-25:19 and 26,pursuant to HAR,Section 11-200.1-11.A Sand Island Terminal Final Environmental Assessment
(FEA)and Finding of No Significant Impact (FONSI)was nublished on September 23.2005.in The Envjronmental Notice.
The proposed storage tank project Is a signlflcant reduction of scope from the 2005 FEA actlon.Therefore,DOT has determined
that the FONSi for the Sand Island Terminal in 2005 and past and compatible land use of the proposed property sattsfles the
requlrements of Chapter 343,HRS,for the proposed tanks.The 2005 FEA improvements evaluated the construction of nine
storage tanks,a new tanker truck loading rack,an office building,a vapor combustion or recovery unit,and an upgraded entry
way.The 2005 improvements were never implemented and PAR Hawaii Reffning,LLC,wants to construct one storage tank for
ultra-low sulfur diesel fuel and the installation of a second tank for storage of blodlesel fuel on the same site.
SHORELINE NOTICES
PROPOSED SHORELINE CERTIFICATION5 AND REJECTIONS
The shoreline notices below have been proposed for certificatton or rejection by the Department of Land and Natural Resourc-
es (HRS §205A-42 and HARA13^22^6).Any person or agency who wants to appeal shall file a notice of appeal in writing with
DLNR no later than 20 calendar days from the date of this public notice.Send the appeal to the Board of Land and Natural
Resources,1151 Punchbowl Street,Room 220,Honotulu,Hawai'i 96813.
File No.|Status |locatlon
OA-1878 |Proposed i 84-1009 Farrington Highway,O'ahu 96792
^TMKfAppiicant^
;(1)8-4-003:003 i Wesley T.Tengan
Owner
Wel Ling Fung
:May 23,2020|EThe Environmental Notitf
SHORELINE NOTICES (CONTINUED)
APPLICATIONS FOR SHORELINE CERTIFICATION
The shorellne certification applications below are available for review at the Department of Land and Natural Resources offices
on Kaua'i,Hawai'l,Maui,and Honolulu,1151 Punchbowl Street,Room 220 (HRS §205A-42 and HAR §13-222-12).All comments
shall be submitted in writing to the State Land Surveyor,1151 Punchbowl Street,Room 210,Honolulu,Hl 96813 and postmarked
no laterthan 15 calendar daysfrom the date ofthis public notice ofthe appllcation.For more information,call lan Hirokawa at
(808)587-0420.
Flte No.|Location
OA-1894 |41-505 Kalaniana'ole Hwy,O'ahu96795
OA-1895 i 59-541 Ke Iki Road,O'ahu 96712
TMK Appticant
OA-1896
OA-1897
MA-735
MA.736
MA-737
MA-738
MO-181
LA-024
HA-585
HA-586
HA-587
KA-451
KA-452
(1)4-1-002:007 'Kenn Nishihlra
(1)5-9-003:068 !Jaime F.Alimboyoguen
84-1101,1103,and 1105 Farrington :(1)8-4-003:021,:Leaps &Boundarles,Inc.
Hwy,O'ahu 96792
91-545 Fort Weaver Road,O'ahu
475 Front Street,Maui
1484 Halama Street,Maui 96753
Hana Hlghway,Kipahulu,Maui 96713
3850 Wallea Alanui Drive,Maui 96753 !(2)2-1-008:109 I Fukumoto Engineering,Inc.
Owner
Waimanalo Paradise LLC
Quentin Gillette
NSl,LLC
022,023 ;
(1)9-1-007:058 i AIIana Surveying &Geomatics
(2)4-6-002:007 1 Kevin J Ctarke
(2)3-9-010:018 jActton Survey LLC_|Charles Cronce
(2)1-6-010:road |Austin,Tsutsumi &Associates,Inc,County of Maul
.4
TEp Top Investments,LLC
i LahainaShores-CondoMaster
8714 Kamehameha V Hwy,Moloka'i
Manete,Lana'i
(2)5-7-007:055 1 Zelie K Duvauchelle
(2)4-9-017:por.J R.M.Towill
002 &008
Government Beach Road,Hawal'l 96778 !(3)l-4-028:044 !
BRE lconic GWR Owner LLC
Zelie K Duvauchelle
Lanai Resorts,LLC
Daniel Berg,dlb &associates,LLC 'Alice Ammen
Hawai'i Belt Road (no assigned address)(3)3-2-001:001 Daniel Berg,dlb &associates,LLC
Queen Ka'ahumanu Hlghway,Hawai'i !(3)7-2-004:001!R.M.Towlll Corporation
KA-453
5-7550 Kuhio Hlghway,Kaua'i
7322 'Ale'ale'a Road,Kaua'i
3736,3746 'Anini Road,Kaua'i
(4)5-9-002:033
(4)5-8-009:049
(4)5-3-005:005,
006,&010
Honua Engineering,Inc.
Honua Engineering,Inc.
Esaki Surveying &Mapping,Inc.
Liti'uokalaniTr,George Hlrowa-
tari
B.P.Bishop Estate TTEES,Kame-
hameha Schools
Oak Terrace Properttes,LLC
Dirk P &Kathleen Lange
County of Kaua/i
COASTAL ZONE MANAGEMENT NOTICES
SPECIAL MANAGEMENT AREA (SMA)MlNOR PERMITS
The SMA Minor permlts below have been approved (HRS S 205A-30).For more information,contact the relevant county/state
planning agency.Honolulu (768-8014);Hawal'i (East 961-8288,West 323-4770);Kaua'i (241-4050);Maui (270-7735);Kaka'ako
or Kalaeloa Community Development District (587-2841).
Location (TMK)
Maui:Lahalna (4-4-014:004)
Maui:Kahului (3-7-004:003)
Maui:Naplll (4-3-002:053 and 054)
Maul:tahalna (4-6-001:009)
Maul:lahalna (4-3-002:053)
Maui:Lahalna (4-8-003:084)
Description (File No.)
Roof Expansion (SM2 20190038)
Demollsh Buildings (SM2 20200043)
After-the-Fact Various Renovations (SM2 20200045)
Courthouse RoofTile Replacement (SM2 20200046)
After-the-Fact Various Renouations (SM2 20200048)
J^ltomlu Driveway Project (SM2 202000^
j
VSE Pacific Inc.
Anthony Riecke-Gonzales
Stuart Bird
Lahaina Restoration Foundation
Brandis Sarich,Architect
Otowaiu Elua Associates LLC
>3,2020 ie Environmental Notid
COASTAL ZONE MANAGEMENT NOTICES (CONTINUED)
F E DE RA L CQNS ISTENCY R£VI_EWS_
The fotlowing federal actions are being reviewed for consistency with the enforceable policies of the Hawai i Coastal Zone
Management (C2M)Program,including the CZM obj'ectives and policies in Hawail Revised Statutes.Chapter 205A.Federat
consistency,pursuant to Section 307 of the Coastal Zone Management Act of 1972 (CZMA),as amended,generally requires
that federai actions,within and outside of the coastal zone,which have reasonably foreseeable effects on any coasta!use (land
or water)or naturat resource of the coastal zone be consistent with the enforceable polides of a state s federalty approved
coastal management program.Federal artions include federal agency activjtfes,federal license or permit activities,and federal
financial assistance activitles.This public notice is being provided in accordance with §306(d)(14)ofthe CZMA,and federaf
regulations at 15 CFR §930.2,§930.42,and §930.61.General information about federal consistency is available at the Hawai i
CZM ProEram web site.or call (808)587-2878.
For specific information or questions about an action listed betow,contact John Nakagawa,john,d,nakagawa@hawaii.sov or
(808)587-2878.The CZM Program Is required to adhere to federal revlew deadlines,therefore,comments must be received by
the date spedfied.Comments may be submitted by mail or electronic mail,to the addresses below.
Mall:Office of Planning
Department of Business,Economic Devetopment and Tourism
P.0.Box 2359,Honolulu,Hl 96804
Email:iohn.d.nakaBawa(S)hawaii.eov
Port Allen Commercial Harbor Maintenance Dredging,'Ele'ele,Kaua'i
Proposed Actfon;Conduct maintenance dredging at the Port Allen Commercial Harbor (not the small boat harbor)to
restore the authorized depth to -35 feet Mean Lower Low Water within the federat limits of the harbor.The maintenance
dredging will be done by barge-based mechanical clamshell excavator removal of approximately 582,000 cubic yards of accu-
mulated sediments within shoaled areas ofthe harbor basin.The material to be dredged has been determined suitable for
ocean disposal by the U.S.Environmental Protectlon Agency and will be transported offshore for disposal at the Port Allen
Ocean Dredged Material Dlsposal Slte,located beyond state waters.No new dredging and no change to the authorized depths
oftheharborisproposed,Dredgingislimitedto removalofsoftsediments only.Workis projectedto be completed within 24
months of contract award.
Location:Port Allen Commercial Harbor,'Ele'ele,Kaua'l
Federal Action:Federal Agency Activity
Federal Agency:U.S.Army Corps of Engineers
Comments Due:June 9,2020
FEDERAL NOTICES
As a courtesy,llsted below are some relevant entries from the Federal Register published slnce the last Issue of The Envlron-
mental Notice,For more information,click on the title link,also avaiiable at www.federalregLster.gQv.
Rule:IVlovement of Certain Genetically Engineered Oreanisms (published by the Animal and Plant Health In-
spection Service on 05/18/2020)
We are amending the regulations regardlng the movement (importation,Interstate movement,and environmental release)of
certain genettcally engineered organisms in response to advances In genetic engineering and our understanding ofthe plant
pest risk posed by genetically engineered organisms,thereby reducing the regulatory burden for developers of organisms that
are unlikely to pose plant pest risks.Thls ffnal rule,whlch rnarks the first comprehensive revision of the regulations slnce they
were established in 1987,provides a clear,predictable,and effident regulatory pathway for innovators,facilitating the devel-
opment ofgenetically engineered organisms that are unlikelyto pose plant pest rlsks.Hfeclive August 17,2020.Sections 340.4
and 340.5 are applicable beginning April 5,202 t.Forfurtherlnformatfon,clickonthetit]elinkofthlsentry.
Notice:Western Pacific Fishery IVIanaeement Council;Public Meetines (published by the National Oceanic and
Atmospheric Administration on 05/13/2020)
The Western Paciflc Flshery Management Councll will hold a meeting of its Hawai'i Archipelago Flshery Ecosystem Plan Advi-
sory Panel on Friday,May 29,2020 between 9 a.m.and 11 a.m to dlscuss and make recommendations on fishery management
Issues in the Western Pacific Region.The meeting will be held by web conference;audio and visual portions for al!of the web
conferences can be accessed at:httDs://wDrfmc.webex.com/ioin/tnfo.wDcouncitnoaa.6ov.Web conference access information
wlll also be posted on the Coundl's website atwww.wpcouncil.ore.For assistance,contact the Council office at (808)522-8220.
9
FMay 23,2020 Environmental Notic^.1
GLOSSARY OF TERMS AND DEFINITIONS
Agency Actlons
Projects or programs proposed by any department,office,
board,or commission ofthe state or county govemment
which is part of the executive branch of that government
AppticantArtions
Projects or programs proposed by any person who,pur-
suant to statute,ordinance,or rule,requests approva)
(discretionary consent)for a proposed action perHRS
Draft Envit'onmentalAssessment
When an Agency or Appiicant proposes an actfon that
Uigggrs HRS 343,an Environmental Assessment shal!be
prepared at the earliest practicable t1me to determlne
whether the action's envlronmental impact will be sig-
nificant,and thus whether an environmental impact
statement shall be required perHR^.3A3-^(t,>J,for Agency
actions and yBS.M?^5te]f ^or Applicant actions.For
actions for which the proposing or approving agency
anticipatesa FindingofNoSlgnlfic3ntlmpact(AFNSI),a
Draft EA (OEA)shalt be made available for public review
and comment for 30 days and public notlce is published
in this periodic bulletin.
Final Environmenta!Assessment and FJnd-
ing of No Significant Impact
The action's proponent shafl respond in writing to cam-
ments on a DEA received during the 30-day revlew period
and prepare a Flnal EA (FEA)that includes those respons-
es to determlne whether an environmental impact state-
ment shall be required,Ifthere are no significant imparts,
then the Agencv will Issue a Finding of No Significant
Impact (FONSt).An Environmental Impact Statement
(E1S)will not be required and the project has cleared HRS
343 requirements.The pubfic has 30 days from the notice
ofa FONSI in this bultetintoaskthe Environmental Court
torequirethepreparation ofan EIS.
Final Environmentat Assessment and Envi-
ronmental tmpact Statement Preparation
Notice
An EIS shall be required if the Agency finds that the
proposed action may have a significant effect on the
environment-The Agency shail file notice of such deter-
mination with OEQC,calied an EIS Preparatlon Notice
(EfSPN)along with the supporting Finsl EA.After the
notice of the FEA-EISPN is published [n thls bulletin,the
pubiic has 30 days to request to become a consulted
party and to make written comments.The public (indud-
ing the Appllcant)has 60 days from the notlce of the
EISPN in this bulletln to ask a court to not require the
preparatlonofan EIS.
Act 172-2012,Direct-to-EIS,Environmental
Impact Statement Preparation Notice
(with no EA)
Act 172 in 2012 amended HRS 343 by providing for an
agency to bypass the preparation of an environmental
assessmentforvarious actions thatinthe experience of
the agency would clearly requirethe preparation ofan
EIS.The agency must submit its determinatfon that an
EIS is required for an action (Act 172-2012,EISPN)with
acompleted OEQC publication form detailing the specif-
ics of the action.This starts a 30-day scoping period In
which the agency orapplicant must hold a public scoping
meetlng for the preparation of the Draft EIS.Wrltten
comments and responses on the EISPN must be incor-
porated Into the subsequent Draft EIS and orel comments
from the pubiic scoping meeting must be recorded and
submitted to the OEQC with the Draft E1S.
Act 312-2012,Secondary Actions in the
Highway or Pubtic Right OfWay
Act 312-2012,amended HRS 343,by adding a new section
(HRS 343-5.5.,entitled "Exception to applicability of
chapter"}.HEPA allows for a statutory exception for"sscon[t3rvactions"(thosethatmvo!veinfrastructurein
the highway or public right-of-way)provided that the
permitorapproval ofthe refated "primary action"(those
outside of the highway or public-right-of-wBy and on
private property)is not subject to discretionary consent
and further provlded that the applicant for the primary
artion submits documentation from the approprlate
agency confirming that no further discretional approvals
are required.An aid to understandlng this Is to visualire
residential driveway improvements in the public right-
of-way,versus,retail outlet driveway improvements In
the public right-of-way.
Draft Enuironmenta)Impact Statement
After receivingthe comments on the EISPN,the Agency
orApplicant must prepare a Draft Envlronmental Impact
Statement (DEIS).The content requirements of the DEIS
shsll contain an explanation of the environmental con-
sequences of the proposed action induding the dirert,
indirect and cumulatfve impacts and their mitigation
measures.The public has 45 days from the flrst pubfica-
tion date In thls bulletln to comment on a DEIS.The DEIS
must respond to comments received during the EISPN
comment period in a point-by-point manner.
Fina!Environmentai Impact Statement
After considering all public comments filed during the
DEIS stage,the Agency orAppiicant must prepare a FInal
EIS (FEIS).The FE1S must respond in a point-by-point
manner to al)comments from the draft and must be
included in the FEIS.For Appiicant projects,the Approv-
ing Agency is the Accepting Authority and must make a
determlnation withln 30 days or the FEIS is deemed ac-
cepted as a matter of taw.For an Agency project,the
Governor or the Mayar (or their deslgnated representa-
tive)1s the Accepting Authority,and unlike applicant
actions,there is no time limit on the accepting authority
reviewing the FEIS.Only after the FEIS is accepted may
the project be implemented.
Acceptability
The Accepting Authority must be satisified that the FEIS
meets three criteria (process,content,response to com-
ments)to accept it.If the FEIS ts accepted,notice 1s
publlshed in this bultetin.The public has 60 days from
publication to challenge the acceptance of a FE1S.For
Appllcant actions,non-acceptance by the Approving
Agency is cause for the Applicant to administratively
appealtotheEnvironmentalCouncil.ForAgencyactions,
there is no such adminlstrativeappeal.In both jnstances,
the Applicant or the proposing Agency can prepare a
revised DEIS after a non-acceptance determination.
Mauisunset Photo by Thomas Hawk
National Environmental PolicyAct
The National Erwironmental Policy Act (NEPA)requires
federa)projectsto prepareaFederatEAorEIS.!n many
ways it is similar to Hawai'i's law.Some projects require
both a State and Federal EIS and the public comment
procedure should be coordinated.Upon request by a
federal agency,OEQC publishes NEPA notices In thls
buHetin to help keep the public informed of important
federal actions.
Consfirvation District
Proposed uses of land in the State Conservation District
requlre a Conservation District Use Application (CDUA).
These applications are reviewed and approved by the
Board of Land and Natural Resources.Members of the
public mayintervene in the permit process.This bulletin
will include EAs &EISs for actions proposed within the
Conservation District.
Special Management Area and Shoreline
Setback Area
The Special Management Area (SMA)is atong the coast-
line of all istands and development in this area is gener-
ally regulated by HRS 205A,and county ordinance.A
portlon of the SMA that is addressed by HRS 343 is the
ShQLeluie_Area,which includes land between the
State-certiffed 5horellne and the county-determined
shoreline setback Nne.Thls bulletin will include EAs &
EISs for actions proposed within the Shoreline Setback
Area.
Shorefine Certificafcions
State law requires that Hawai'i shorelines be surveyed
and certifled when necessarv to clearly estabtish the
shoreline setback from the certrfied shoreline.The public
may partidpate in the process to help assure accurate
regulatoryboundarles,Private land owners often petttion
to tiave their shoreline certifiect by the State surveyor
prior to construction.Ttiis bulteti'n publisties notice from
the DepartmentofLandand Natural Resourcesofshore-
tine certificatton applicants and ffnal certifications or
rejections.
Environmenta!Councit
The Environmental Council Is a 15-member cltizen board
appointed by the Governor.They serve as a llalson
between the Director of OEQC and the general public
concernlng ecology and environmental quality.The
Councll makes the rules that govern the Environmentat
Impact Statement process (HRS 343).Agendas of thelr
regular meetings are posted an the Internet and the
public is invlted to attend.The Council Just completed
ttie repeal of Hawaii Admlnlstrative Rules (HAR)Chapter
11-200 and adoption of HAR Chapter 11-200.1.
Agency Exenfiption Lists
Government agencies may keep a list describing the
minor activities they regularly perform that are exempt
from the environmental review process.These lists and
any amendments shatt fae submitted to the Council for
review and concurrence (HAR 11-200.1-16].This bulietin
will pubiish an agenc/s draft exemption list for pubiic
comment prior to Council decision making,as well as
notice of the Coundl's dedsion on the list,
Endangered Species
This bulletln is required by HRS 343-31c),to publish notice
of public comment periods or public hearings for Hafaitat
Conservation Plans (HCP),Safe Harbor Agreements (SHA),
or Inddentat Take Licenses (ITL)under the federal En-
dangered Spedes Act,as well as availsbility for public
inspection of a proposed HCP or SHA,or a proposed 1TL
(as a part of an HCP or SHA),
10
.an i<.Junq <ll(j@kauai-law.com>9/3/20206:16PM
RE:R/V:DOH Clean Air Branch Comments on Draft EA for AOAO
Makahuena Shoreline Safety Fence
To judyfoss@comcast.net <judyfoss@comcast.net>Copy Jennifer A.Uyeda-Gali <jau@kauai-law.com>
^uay:
1 was hoping for good news from the County today,,but I am still waiting on the signed FEA and FONSI letter.1 received
an email with the letter attached approving the FEA and FONSI on August 27,2020;however,it was not signed despite
the email saying it was.
1 seni an eman roaay 10 TOIIOW up.
As soon as 1 get signed letter back,1 will copy you on the final transmlttal to the Office of Environmental Quality
i-oniroi.
Regards,
lan K.Jung
Attorney at Law
Belles Graham LLP
Watumull Plaza
4334 Rlce Street,Suite 202
Lihue,Kauai,Hawaii 96766
Phone:(808)245-2163
Fax:(808)245-3277
Email:i]sj.@kauai-law.corn
CONFIDENTIALITY:The information contained in this e-mail and any attachment is confidential and is intended onlyforthe intended
recipient(s).This e-mail may be attomey-client communication and,as such,is privileged and confidential.Ifthe reader ofthis e-mall
message is not the intended reclpient (or the person responslble for the delivery of this e-mail message to an intended recipient),you
are hereby notified that you have received thls document in error,and that any reuse,revlew,printing,dlssemlnation,dlstribution or
copyingofthismessage Is strictly prohibited.Ifyou have recelved this e-mail jn error,please reply to inform the sender and delete it
without printing or making any copies of it.
From:j'uiiyfossOcomcast.net <judyfoss(fflcomcast.net>
Sent:Tuesday,September 1,2020 1:30 PM
To:lan K.Jung <IKJ(5)kauai-law.com>
Subject:RE:FW:DOH Clean Air Branch Comments on Draft EA for AOAO Makahuena Shoreline Safety Fence
Good Day,It is now September and we have not heard back from you.It is Judy Foss the President
of the Makahuena,do you want me to sign something or is the formal authorization approved with my
prior acknowledgement that 1 was writing on behalf of the Makahuena.We are very anxious to get
going.The fishing season has brought many to our shoreline over the planters providing an issue
with homeowners and guests that would follow footsteps into dangerous regions.
Let me know if you have the FONSI referred to in you last correspondence and what we need to do to
put up a fence.Judy Foss
Judy:
1 will get in the FONSI this week.
Thereafter,the Application fortheSSD Variance and SMA Minorforthefence can go in upon issuanceofthe Final
EA.
I need a formal authorization to be signed.Who is the current board president.
Regards,
lan K.Jung
Attorney at Law
Belles Graham LLP
Watumull Plaza
4334 Rice Street,Suite 202
Lihue,Kauai,Hawaii 96766
Phone:(808)245-2163
Fax:(808)245-3277
Email:iki0kauai-law.com
CONFIDENTIALITY:The information contained in this e-mail and any attachment is confidential and is intended only for the intended
recipient(s).This e-mall may be attorney-client communication and,as such,Is privileged and confidential.If the reader of this e-
mail message is not the intended recipient (or the person responsible for the delivery of this e-mail message to an intended
recipient),you are hereby notified that you have received this document in error,and that any reuse,review,prlnting,
dissemination,distribution or copying of this message is strictly prohibited.If you have received this e-mail in error,please reply to
inform the sender and delete it without printing or making any copies of it.
From:judyfoss@comcast.net <jydyfoss(5)comcast.net>
Sent:Tuesday,August 4,2020 5:12 AM
To:lan K.Jung <IKJ@kauai-law.com>
Subject:RE:FW:DOH Clean Air Branch Comments on Draft EA for AOAO Makahuena Shoreline Safety Fence
Good Morning Gentlemen,1 responded to the Draft EA letter some time ago.Can you tell me if
the Planning Department in response has issued a FONSI.1 have a Board meeting today and
have no updates on our attempt to erect a fence.We were hoping that if hurricane Douglas hit as
was expected it would take out the fence on the east side of the property.We are grateful to have
been spared the impact of a hurricane but would not miss the fence.J
1 On 07/17/2020 2:23 PM lan K.Jung <iki(a kauai-law.com>wrote:
Jan:
I spoke with Planning Department and confirmed only on comment to the Draft EA.We will need to have you
respond to the DOH comment via formal letter and include the DOH letter and response in the Final EA and
they will issue the FONSI.
Let me know ifyou have any questions.
Regards,
!ii)
!I
i i
lan K.Jung
Attorney at Law
Belles Graham LLP
Watumull Plaza
4334 Rice Street,Suite 202
Lihue/Kauai,Hawaii 96766
Phone:(808)245-2163
Fax:(808)245-3277
Ema i 1:ikj^ka yaklaw^om
CONFIDENTIALITY:The information contained in this e-mail and any attachment is confidential and Is intended only for the
intended reciplent(s).This e-mail may be attorney-client communication and,as such,is privlleged and confidential.Ifthe
reader of this e-mail message is not the intended recipient (or the person responslble for the delivery of this e-mail message to
an intended redpient),you are hereby notified that you have received this document in error,and that any reuse,review,
prlntlng,dissemlnation,distribution or copying of this message is strictly prohibited.If you have received this e-mail in error,
please reply to inform the sender and delete it without printing or making any copies of it.
From:Jan TenBruggencate <jan(S)islandstrateev.com>
Sent:Friday,July 17,2020 11:04 AM
To:Judy Foss <judvfoss(S)comcast.net?
Cc:lan K.Jung <IKJ@JayflNaw^flm>;Jennifer A.Uyeda-Gali <JAU@KAUAI-LAW.com>;
sara.makahuena@gmail.com
Subject:Re:FW:DOH Clean Air Branch Comments on Draft EAfor AOAO Makahuena Shoreline Safety Fence
With the exception ofanyfugitivedustfrom digging for fence posts (ifduringadryperiod),which shouldbe
readily controlled with water applicatjon.
On Fri,Jul 17,2020 at 10:08 AM <jud.yfoss(5)comcast.net>wrote:
lan,Idon'tthinkanyofthecommentsfromtheHealth Department apply to our fence installation.
On 06/24/2020 12:06 PM lan K.Jung <iki(Sikauai-law.com>wrote:
Jan/Judy:
Below is the email and embedded link to the comment from the State Department of Health.The
comments are relatively standard comments.
Regards,
lan K.Jung
Attorney at Law
Belles Graham LLP
Watumull Plaza
4334 Rice Street,Sulte 202
Lihue,Kauai,Hawaii 96766
Phone:(808)245-2163
Standard Comments for Land Use Reviews
Clean Air Branch
Hawaii State Department of Health
If your proposed project:
Reguiresan Air Pollytion Control PermLt
You must obtain an air pollution control permit from the Clean Air Branch and comply with all
applicable conditions and requirements.If you do not know if you need an air pollution control
permit,please contact the Permitting Section ofthe Clean Air Branch.
Includes construction or demolition activities that involve asbestos
You must contact the Asbestos Abatement Office jn the Indoor and Radiological Health
Branch.
Has the potential to aenerate fuaitive dust
You must control the generation of all airborne,visible fugitive dust.Note that construction
activities that occur near to existing residences,business,public areas and major thoroughfares
exacerbate potential dust concerns.It is recommended that a dust control management plan be
developed which identifies and mitigates all activities that may generate airborne,visible fugitive
dust.The plan,which does not require Department of Health approval,should help you
recognize and minimize potential airborne,visible fugitive dust problems.
Construction activities must comply with the provisions of Hawaii Administrative Rules,§11-
60.1-33 on Fugitive Dust.In addition,for cases involving mixed land use,we strongly
recommend that buffer zones be established,wherever possible,in order to alleviate potential
nuisance complaints.
You should provide reasonable measures to control airborne,visible fugitive dust from the
road areas and during the various phases ofconstruction.These measures include,but are not
limited to,the following:
a)Planning the different phases of construction,focusing on minimizing the amount of
airbome,visible fugitive dust-generating materials and activities,centralizing on-site
vehicular traffic routes,and locating potential dust-generating equipment in areas of the
least impact;
b)Providing an adequate water source at the site prior to start-up of construction activities;
c)Landscaping and providing rapid covering of bare areas,including slopes,starting from
the initial grading phase;
d)IVIinimizing airborne,visible fugitive dust from shoulders and access roads;
e)Providing reasonable dust control measures during weekends,after hours,and prior to
daily start-up of constructfon activities;and
fl Controlling airborne,visible fugitive dust from debris being hauled away from the project
site.
Ifyou have questions about fugitive dust,please contactthe Enforcement Section ofthe
Clean Air Branch
April 1,2019
Clean Air Branch
(808)586-4200
cab(0)doh.hawaii.qoy^
Indoor Radiological Health Branch
(808)586-4700
Fax:(808)245-3277
Emaif:ikj@kauai-law.conn
CONFIDENTfALIT/:The information contained in this e-mail and any attachment is confidential and is intended onlv for
the intended reciplent(s).This e-mail may be attorney-cllent communlcation and,as such,Is priulleged and
confidential.If the reader of this e-mall message is not the Intended recipient (or the person responslble for the
dellvery of this e-mall message to an Intended recipient),you are hereby notified that you have recelved this
document in error,and that any reuse,review,printing,dissemination,distribution or copylng ofthls message Is
strictly prohlbited.If you have recelved thjs e-mail in error,please reply to Inform the sender and delete it without
printing or making any copies of it.
From:Cab General <Cab.General(S)doh.hawaii.goy>
Sent:Wednesday,June 24,2020 8:27 AM
To:khull@J<auaLg2y;lan K.Jung <IKJ(S)kauai-law.com>
Subject:DOH Clean Air Branch Comments on Draft EA for AOAO Makahuena Shoreline Safety Fence
Aloha
Thank you for the opportunity to provide comments on the subject project.
Please see our standard comments at:
httRS;//health.hawaii.gov/cab/files/2019/04/Standard-Comments-Clean-Air-Branch-2019.edf
Please let me know ifyou have any questions.
Barry Ching
Clean Air Branch
Hawaii Department ofHealth
(808)586-4200
Jan TenBruggencate
Island Strategy LLC
jan(5)islandstrategv.com
cell:808-639-9900
land:808-245-7825
Lihue,Kauai,Hawaii 96766
Phone:(808)245-2163
Fax:(808)245-3277
Email:ikj@kauai-law.com
CONFIDENTIALITi':The information contained in this e-mail and any attachment is confidential and is
intended only forthe intended recipient(s).This e-mail may be attorney-client communication and,
as such,is privileged and confidential.If the reader of this e-mail message is not the intended
recipient (or the person responsible for the delivery of this e-mail message to an intended recipient),
you are hereby notified that you have received this document in error,and that any reuse,review,
printing,dissemination,distribution or copying of this message is strictly prohibited.If you have
received this e-mail in error,please reply to inform the sender and delete it without printing or making
any copies of it,
From:judyfoss@comcast.net <judyfoss@comcast.net>
lent:Wednesday,January 20,2021 10:43 AM
To:lan K.Jung <IKJ@kauai-law.com>;Bruggencate,Jan
Cc:sara.makahuena@gmail.com
Subject:Makahuena Fence
:jan@islandstrategy.com>
Greetings of a New Year.As we move forward we are trying to continue the efforts made in
OLII-attempt to get a fence to dedne the j3arameters and to protect the persons on our property,
We appreciate your efforts and wisclom directed on our behalf to make the fence a reality.In
our last correspondence in December of 2020,when we executed an Ai.ithorization for you to
file and process any and all applications on our behalf,we discussed the next hurdle,the
Planning Commission.1 believe we were tryirig to schedule a hearing with the Planning
Commission in January or the beginning o(February,depending on the availability of the
council.We are getting ready to gear up to address the fence and would find it very hetpful
were we to have a timeline or review of the stages left until a decision can be rendered.It
turns out that we cannot simple install fence posts waiting for a decision,as the fence is an
anodized aluminum powder coated fence that requires exact measurement and placernent.
One part is contingent upon another.We still depend and acknowtedge the authorities that be
and wait for your word that would give us authority to continue.
teaards.J
lan,1 believe we had a conference call to discuss the steps necessary to be in a position to
replace the fence that we had to remove as it was prostrate on the ground and posed a hazard.
In that conversation we were told that we now had to go before the planning commission and we
suggested a date during the month of January and at the latest February.We are now requesting
a date for March.It is beyond my comprehension that having received all the the documentation
required to erect a fence;to protect the lives of persons on our property,it has been since January
of 2018 that we have been jumping through hoops.During that time our new fence has been
laying in our parking lot;and we cannot secure the perimeter of the property because the
Planning Commission has not had time to render a decision...or is it because someone in the
Planning Department filed our request in a drawer and forgot about it...or is it because no one
notified the Planning Department that there was a decision to be made?1 think it is verging on the
side of 'unbelievable'I can understand why people do not seek to follow the rules and simply do
what is necessary to conduct a safe business.1 hope no one has the audacity to call this delay
"COVID"related.We would appreciate anything you can do to remind the Planning Commission
that we have waited as required to construct a fence when all of our instincts are trying to drive us
to put up a fence before a child falls off of the cliff and perishes.J
On 01/22/2021 2:08 PM lan K.Jung <ikj@kauai-law.com>wrore:
Judy:
I spoke with the SMA Planner this morning who finally called me back after he was out ofthe
office for a few weeks.He has the application and is completing his review ancl will work on
scheduling the hearing date.Unfortunately,it cannot be in the February given the notice
requirement of 30 days.I asked him to schedule us for the March Planning Commission
Meeting.As soon as I get the notice,I will forward it on to you folks.
I'll keep trying to push on this one.
Regards,
lan K.Jung
Attorney at Law
Watuinull Plaza
4334 Rice Street,Suite 202
Gentlemen,1 am at a loss as to the appropriate way to address this issue.We have been patiently
waiting to receive a permit to install a fence to insure the safety of those individuals residing and
guests of the Makahuena.It has been months since we were told that our plans were approved and
that we were waiting for the Planning Department of the County to circulate the plans and to render
permission for us to erect a fence along the parameter of the property.We have been told on at least
two different occasions that our request has been "misfiled,misplaced,lost,forgotten"and in so many
words "ignored"by the powers that be.I would find it helpful to know when each document was filed
and with whom.1 would like to know the exact obstacle that currently stands in the way of our
construction of the fence to protect persons from fatling off the bank on to the rocks below.To whom
can we expect to hear from and what is the exact status of our application.1 hesitate to wait another
year to address this issue and do not want to turn the issue over to our corporate legal counsel.
Ptease provide me with all of the relevant details so I might have a measure of accountability about
the issue when questioned by our homeowners as to the "status of the fence".
Judy Foss
Sherman Shiraishi
Mia R.Shiraishi
SHERMAN SHIRAISHI
ATTORNEYATLAW
A LAW CORPORATION
2403 Ulu Maika Street
Lihue,Kauai,Hawaii 96766-1355
Telephone:(808)245-3361 Facsimile:(808)246-0486
shermshir@hawaii.rr.com
mia.shiraishi@gmail.com
April 8,2021
TO:CHAIR&MEMBERSOFTHE
KAUAI COUNTY PLANNING COMMISSION
[via email to khull@kauai.gov]
Re:Gather Federal Credit Union;TMK (4)5-2-5-23 (por),Kilauea.
Class IV Zoning Permit Z-IV-2020-1;
Use Permit U-2020-1
Aloha Chair &Members of the Kauai Planning Commission:
The purpose of this letter is to supplement my letter to Ka'aina Hull dated
February 19,2021 requesting a 2-year extension of the deadline to commence
substantial constructiori of Gather Federal Credit Union's Kilauea branch office.
By letter dated August 20,2019 from Ka'aina Hull,the Credit Union was advised
of the permit approvals for the construction of a new branch office building in Kilauea.
A deadline of one year from the date of approval to commence substantial construction
was imposed.The Credit Union is anxious to start construction of its Kilauea branch
office,but has been prevented from doing so for reasons beyond its control as
explained below and in my February 19,2021 letter.The purpose of this letter is to
provide the Commission with more information regarding the Credit Union's efforts to
obtain ownership title to the Kilauea site in order to submit plans to obtain a building
permit and commence construction.
CHRONOLOGY:
2015 (and possibly earlier).Discussions with Kilauea Ohana Plateau,LLC for the
purchase of a site for Kilauea Branch Office.
12-18-2015.Meeting with Planning Dept.staffto discuss subdividing the Kilauea
Ohana Plateau,LLC parcel.
6-8-2016.Meeting with Dept.Of Water to discuss water availability.
6-8-2016.Presentation to the Kilauea Neighborhood Assoc.for a new Kilauea Branch
Office.
\\s1\shared\Clients\Gather FCU 2130\Kitauea Purchase\4-8-21 Lttrto Planng Comm.wpd
I.t.b
APR 1 3 2021^
8-15-2016.Letterfrom Kilauea Neighborhood Assoc.in supportof Credit Union's
proposal for a Kilauea Branch Office.
8-30-2016.Kilauea Ohana Plateau,LLC working with Esaki Surveying to prepare
preliminary subdivision map forthe Credit Union's lot.
10-21-2016.Purchase &Sale Agreement ("PSA")signed by Credit Union (will have to
be revised).
3-3-2017.Meeting with Planning Dept.staffto discuss subdivision.
4-19-2017.Review of proposed subdivision map.
9-20-2018.Kilauea Ohana Plateau,LLC receives TENTATIVE APPROVAL for its
subdivision.
2-22-2019.Credit Union negotiating agreements for architectural and engineering
services for site.
5-3-2019.Credit Union enters into Option Agreementwith Kilauea Ohana Plateau,LLC
for purchase of a subdivided lot.
7-1-2019.Credit Union files application for Class IV Zoning Permit and Use Permit with
the Planning Dept.
8-13-2019.Planning Commission hearing on Credit Union's permit application.
8-20-2019.Letter from Planning Commission to Credit Union advising of permit
approvals.
9-23-2020.Kilauea Ohana Plateau receives Final Subdivision Approval.
9-30-2020.Credit Union exercises option to purchase and Kilauea Ohana Plateau,
LLC and the Credit Union enter into new PSA.
1-22-2021.Receipt of revised Title Report.Seller unable to convey marketable title
until Ala Namahana Roadway is conveyed to County.
REASONS WHY EXTENSION SHOULD BE GRANTED:
1.The Credit Union has moved diligently in applying for the necessary permits
and retaining design professionals.hlowever,it is unable to close on the purchase of
the subdivided parcel until certain title matters (e.g.,lack of access)are resolved.The
Credit Union is able,ready,and willing to close on the purchase once title issues are
resolved.
•:r«KSS'^"f
-.^.
•^
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2.The Credit Union did not own the underlying property at the time of its
application for use and zoning permits and permission was granted from the landowner
to proceed with its application.The Credit Union's application for zoning and use
permits was planned to coincide with the owner's pending subdivision application of the
underlying property.The subdivision application is identified as S-2018-15,Kilauea
Ohana Plateau LLC.Both Kilauea Ohana Plateau and the Credit Union anticipated that
final subdivision approval would be granted before the Credit Union's application for
permits.However,even though Kilauea Ohana Plateau's subdivision application was
filed prior to the Credit Union's application for use and zoning permits,Kilauea Ohana
Plateau encountered numerous delays in obtaining final subdivision approval,which in
turn prevented the conveyance of the lot to the Credit Union.
3.The delays in commencing construction were not caused by the Credit Union
and were beyond the control of the Credit Union.The final subdivision approval was
obtain by Kilauea Ohana Plateau in late 2020,after the Credit Union's 1-year deadline
for commencing construction had already expired.
4.Although S-2018-15 obtained final subdivision approval,Kilauea Ohana
Plateau is unable to convey marketable title to the Credit Union because the subdivided
lot to be conveyed to the Credit Union lacks access to a public roadway.Kilauea
Ohana Plateau does not own the roadway,Ala Mahana Parkway.The owner of Ala
Mahana Parkway has failed to dedicate the roadway to the County although it is legally
obligated to do so.However,I have been informed that the deed to the roadway has
been signed and will be processed with the County.
The title insurance company is unable to insure access to the Credit
Union's lot until the roadway dedication deed is recorded in the Bureau of
Conveyances.This has delayed the closing of the sale.
5.The architect for the project has been unable to finalize the plans for the
Credit Union's building until the subdivision obtained final approval.Drainage and soils
studies are currently underway in connection with the submittal of an application for
building permit.The architect has been instructed to finalize the building plans for
approval.
6.Once we finalize the building plans and submit an application for a building
permit,we anticipate further delays during the County's permit review process due to
backlog and the current COVID situation.
In view of the foregoing,an extension of time of 2 years to commence
substantial construction activities is reasonable and is hereby requested.
c:
If you have any questions,please feel free to contact me.
Yours very truly,
SHERMAN SHIRAISHI
Client
lan Jung,Esq.