Note: Prior ordinance history: Ord. No. 863, January 25,
2008; Ord. No. 887, December 2, 2009; Ord. No. 935, December 3, 2012;
Ord. No. 950, July 17, 2013.
The purpose of this Article is to protect life and property,
provide access to and along the shoreline, protect and preserve Native
Hawaiian cultural resources and communities threatened by sea level
rise, ensure the longevity and integrity of Kaua'i's coastal and beach
resources along Kaua'i's shoreline and to strengthen shoreline setback
requirements in this Article by incorporating science-based erosion
rates established in the Kaua'i Coastal Erosion Study and current
coastal hazard mitigation best practices and strategies.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
This Article shall be applicable to all lands within the County
of Kaua'i where structures and/or prohibited activities are proposed
within 500 feet of the shoreline.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
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:
means to pose a potential immediate or future adverse effect
on beach processes as a result of a structure and/or landscaping located
within the coastal erosion hazard zone, or to create an immediate
or future need to artificially fix the shoreline.
means the long-term average annual rate of coastal erosion
calculated by following the methodology outlined in the National Assessment
of Shoreline Change: Historical Shoreline Changes in the Hawaiian
Islands (Fletcher, et al., 2012). Annual coastal erosion rates are
available for all lots on Kaua'i fronted by a sandy beach from the
Kaua'i Planning Department. These rates were calculated by the University
of Hawai'i's Coastal Geology Group for the Kaua'i Coastal Erosion
Study, and it was last updated in 2018. The Planning Director may
designate a qualified professional to review and, subject to the Planning
Director's approval, update annual coastal erosion rates.
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 line obtained by drawing 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 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.
shall mean the Board of Land and Natural Resources, State
of Hawai'i.
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.
means the shoreline established by Board pursuant to HRS
205A-42, as amended.
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.
means the natural loss of coastal lands, usually by wave
attack, tidal or littoral currents, or wind. Coastal erosion is synonymous
with shoreline retreat.
shall include all of the land between the shoreline and the
shoreline setback line.
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.
means a statement prescribed by the department disclosing
the potential for coastal hazards and the potential for further restrictions
and limitations on development of the respective property in the future.
This statement is an addendum to the shoreline setback determination
application, and it must be signed by the property owner prior to
acceptance of the determination application.
means the Planning Commission of the County of Kaua'i.
means the Planning Department of the County of Kaua'i.
means the Planning Director of the Planning Department of
the County of Kaua'i.
means any building or any portion thereof which is designed
or intended for occupancy by one 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 kitchen.
means the Federal Emergency Management Agency.
means the Flood Insurance Rate Map.
means assessment for erosion, wave, flood, and inland zone
following the standards in Section 4.3 of the Hawai'i Coastal 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 College Program and the Pacific
Services Center and Coastal Services Center of the National Oceanic
and Atmospheric Administration.
means the quantitative study of Kaua'i and Ni'ihau's historical
shoreline behavior utilizing orthorectified aerial photographs or
other imagery to carry out high-resolution mapping of historical shoreline
positions to obtain a statistically valid annual erosion rate of the
Shoreline Change Reference Feature (SCRF).The study was conducted
by the University of Hawai'i's Coastal Geology Group for the County
of Kaua'i, and it was last updated in 2018. The shoreline change data
and shoreline change posters produced by this study are on file with
the Kaua'i Planning Department. The study followed procedures described
in the 'National Assessment of Shoreline Change: Historic Shoreline
Changes in the Hawaiian Islands (Fletcher, et al., 2010) available
from the Kaua'i Planning Department.
means the modification of landscape for an aesthetic or functional
purpose that includes the planting of vegetation; the installation
of irrigation, rock or water features; grading or grubbing.
means seaward or in a seaward direction.
means landward or in a landward direction.
means a building footprint of 1,500 square feet.
means:
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 180 days of its installation, and given the significance of
the emergency, the protection is the best management alternative with
respect to beach, shoreline, and/or coastal resource conservation,
or
a structure that:
costs less than $125,000; and
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
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
is consistent with the purposes of this Article and HRS Chapter
205A, as amended; and
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,
lifesaving devices, movable lifeguard stands, outdoor showers and
water faucets, public utility lines, utility poles and accessory structures
along existing corridors, temporary tents for special events not exceeding
14 consecutive days in duration during any three-month period, walls
and fences that are located more than 40 feet from the shoreline,
landscape planting and irrigation systems provided that they are located
more than 40 feet away from the shoreline and do not artificially
extend the shoreline or shoreline setback area seaward, public park
facilities (excluding restrooms, wastewater systems, and shoreline
armoring structures or improvements), portable or removable walkways
for public access, or, as determined by the director, a structure
primarily benefitting the public that will not impact or be impacted
by coastal erosion processes; and
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 foot
intervals, and concrete steps.
is a natural disaster qualifying for a governor's declaration
of emergency pursuant to Hawai'i Revised Statutes Chapter 128, or
a presidential declaration of emergency of a major disaster pursuant
to 42 USC 5170, including those caused by episodic coastal hazards
such as tsunamis and hurricanes, and not the result of other coastal
hazards or processes such as erosion or sea level rise.
means a structure or activity which is lawfully existing
within the shoreline setback area because it:
means a detailed construction plan drawn to scale of 1″
= 20′ 0″ 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 licensed in the State of Hawaii
and shall consist of data including but not limited to:
Property boundaries;
Natural features such as large trees, rock outcroppings, and
any primary or secondary coastal dunes;
Topography in and around the proposed construction;
Any and all shoreline hardening;
Flood zones, where applicable;
Existing and proposed structures and their proximity to the
shoreline and shoreline setback area;
Fences, walls, and any other structures in the shoreline setback
area and any potential hindrances to lateral access along the shoreline;
A geo-referenced survey of the site; and
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.
means those activities prohibited in the shoreline setback area as provided in Section 8-27.6 of this Article. All other activities shall be regulated by the Special Management Area Rules and Regulations of the County of Kaua'i and the requirements of HRS Chapter 343-5 regarding environmental assessments for any proposed uses within a shoreline area as defined in Section 205A-41.
means recreational facilities owned and operated by state
or county park agencies for the benefit and use of the general public.
means a coastal scientist with a master 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. If
a dune restoration project is proposed, the qualified consultant shall
have experience and expertise with dune restoration.
means the demolition of a structure or structures where such
demolition:
Will not adversely affect beach processes;
Will not artificially fix the shoreline;
Will not interfere with public access, except for public safety
reasons during demolition operations;
Will not interfere with public views to and along the shoreline,
except during demolition operations;
Will be consistent with the intent of open space enhancement
as reflected in these rules and HRS 205A; and
Will comply with applicable County Codes.
means reconstruction of a lawfully existing dwelling unit
when the reconstruction is valued by a licensed professional engineer,
or architect at 50% or more of the current replacement cost of the
structure.
means the reconstruction or renewal of any part of a lawfully existing structure, but not the entire structure, solely for the purpose of its maintenance and does not result in an addition to, or enlargement or expansion of, the lawfully existing structure, such as alterations of floors, roofs, walls, or the supporting structure of a building or the rearrangement of any of its component parts. A "substantial improvement" as defined herein shall not be considered a repair. Repair shall be consistent with the definition of "repair" under Sec. 8-1.5, Kaua'i County Code 1987, as amended.
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.
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 cliffed shorelines composed dominantly of dirt
or clay.
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.
means a signed statement by the chairperson of the Board
of Land and Natural Resources that the shoreline is as located and
shown on the map as of a certain date.
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).
means the process of fortifying the shoreline or shoreline
setback area with hard structures including, but not limited to, seawall
and revetments.
means "shoreline area" as defined in Section 205A 41, Hawai'i
Revised Statutes, as amended
means that inland line established by Section 8-27.3 that runs parallel to the shoreline.
is the first 40 feet of the shoreline setback area as measured
from the shoreline.
is as defined in Section 205A-41, Hawai'i Revised Statutes,
as amended.
means that 100% of the foundation has been laid, or that
100% of the foundation of the active phase of a project has been laid
where the project is being done in phases.
means any cumulative series of repairs, reconstruction, improvements,
or additions to a structure over a 10 year period, where the cumulative
cost equals or exceeds 50% of the market value of the structure before
the start of construction of the first improvement during that 10
year period. For the purposes of this definition, substantial improvement
is considered to occur when the first alteration of any wall, ceiling,
floor, or other structural part of the building commences, whether
or not that alteration affects the external dimensions of the structure.
The value of any substantial improvement shall be determined by the
County Engineer or his/her authorized representative. The term does
not, however, include either: (1) any project for improvement of a
structure to correct existing violations of a State or local health,
sanitary, or safety code specifications which have been identified
by the local code enforcement official and which are the minimum necessary
to assure safe living conditions, or (2) any alteration of a "historic
structure," provided that the alteration will not preclude the structure's
continued designation as a "historic structure."
means structures that will exist for no longer than six months
and will 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.
means the purpose for which land or building is arranged,
designed, or intended, or for which either land or building is or
may be occupied or maintained.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
Shoreline setback determinations shall be issued based on the
following procedures:
(a)
A shoreline
setback determination shall be required for all structures and subdivisions
proposed on lands covered by this Article, except in the following
two cases:
(2)
Where the applicant can demonstrate to the satisfaction of the Planning
Director that the applicant's proposed structure or subdivision will
not affect beach processes, impact public beach access, or be affected
by or contribute to coastal erosion or hazards, excluding natural
disasters. 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 of
coastal hazards in the area.
(b)
Unless otherwise provided in subsection (a) above, no shoreline setback line shall be established for any lot subject to this Article unless the application for a shoreline setback line includes a certified shoreline issued within 12 months prior to submission of the application.
(c)
Lots
Included in the Kaua'i Coastal Erosion Study. For all structures on
lots subject to the Kaua'i Coastal Erosion Study, the setback shall
be calculated as follows:
(1)
For lots with an average lot depth of less than 140 feet, the setback
line shall be 40 feet plus 70 times the annual coastal erosion rate
as measured from the certified shoreline. In addition to the shoreline
setback calculations above, for all applicable lots subject to the
Kaua'i Coastal Erosion Study a mandatory 20 foot additional safety
buffer shall be added to the setback area for episodic coastal events,
sea level rise and other hazards.
(2)
For lots with an average lot depth of 140 feet to 220 feet, the greater
setback of the following shall apply:
(A)
Forty feet plus 70 times the annual coastal erosion rate as measured
from the certified shoreline. In addition to the shoreline setback
calculations above, for all applicable lots subject to the Kaua'i
Coastal Erosion Study a mandatory 20 foot additional safety buffer
shall be added to the setback area for episodic coastal events, sea
level rise and other hazards; or
(B)
A shoreline setback determined by taking the average lot depth, subtracting
100 feet, dividing by two and adding 40 feet.
(3)
For all lots with an average lot depth of over 220 feet, the greater
setback of the following shall apply:
(A)
Forty feet plus 70 times the annual coastal erosion rate as measured
from the certified shoreline. In addition to the shoreline setback
calculations above, for all applicable lots subject to the Kaua'i
Coastal Erosion Study a mandatory 20 foot additional safety 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 100 feet from the certified shoreline.
|
Table 1
|
|---|
|
(This table is included for illustrative purposes only.) Lots
Included in the Kaua'i Coastal Erosion Study. The distance in feet
of the shoreline setback line as measured from the certified shoreline
based on the average lot depth in feet.
|
|
Average Lot Depth
|
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 plus (70 X annual coastal erosion rate)
plus 20 feet -or- (Average Lot Depth minus 100 feet) ÷ by 2
plus 40 feet
|
|
Greater than 220 feet
|
Greater of: 40 feet plus (70 X annual coastal erosion rate)
plus 20 feet -or- 100 feet from the certified shoreline
|
(d)
Lots
Not Included in the Kaua'i Coastal Erosion Study. For all structures
on lots that were not included in the Kaua'i Coastal Erosion Study,
the setback shall be calculated by the following formula, (Average
Lot Depth - 100)/2 +40), subject to the following:
(e)
Non-abutting
Lots. If an applicant is unable to secure permission from the abutting
owner to complete a certified shoreline for a non-abutting lot within
approximately 500 feet of the shoreline, the Planning Director may,
pursuant to Sec. 8-4.3, impose conditions to zoning permits to increase
setbacks where evidence exists that a proposed structure may be affected
by coastal hazards or erosion.
(f)
No
subdivision which involves a lot, or any portion of a lot that would
be subject to this Article, shall be approved without a coastal erosion
study, a certified shoreline, and a shoreline setback line established
in accordance with this Article, unless the subdivision is initiated
by the County.
(g)
Any
subdivision with lots abutting the shoreline approved pursuant to
Chapter 9 of the Kaua'i County Code, 1987, as amended, after the adoption
of this Ordinance shall have a shoreline setback line of 40 feet plus
70 times the annual coastal erosion rate as measured from the certified
shoreline. In addition to the shoreline setback calculations above,
a mandatory 20 foot additional safety buffer shall be added to the
setback area for episodic coastal events, sea level rise and other
hazards.
(i)
Prior
to commencement of grubbing, grading, or construction activities,
the shoreline and shoreline setback line shall be identified on the
ground and posted with markers, posts, or other appropriate reference
marks by a surveyor licensed in the State of Hawai'i.
(j)
The
application of Section 8 27.3 by itself shall not make a dwelling
unit nonconforming.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
Except as provided for in this Article, no lot shall have a shoreline setback line of less than 60 feet, except as determined by the Planning Commission pursuant to Section 8-27.10.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
The requirements of this Article shall not abrogate the requirements
of Hawai'i Revised Statutes Chapter 205A, Hawai'i Revised Statutes
Chapter 343-5, the Special Management Area Rules and Regulations of
the County of Kaua'i, or any other applicable statutes, codes, ordinances,
rules and regulations, or other law.
In case of a conflict between the requirements of any other
state law or county ordinance regarding shoreline setback lines, the
more restrictive requirements shall apply.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
(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 inadvertent taking from the shoreline setback area of the materials,
such as those inadvertently carried away on the body, and on clothes,
toys, recreational equipment, and bags;
(2)
Where the mining or taking is authorized by a variance pursuant to
Section 205A-46 of the Hawai'i Revised Statutes;
(3)
The clearing of these materials from existing drainage pipes and
canals and from the mouths of streams, including clearing for the
purposes under HRS Section 46-11.5; provided that, the sand removed
shall be placed on adjacent areas unless such placement would result
in significant turbidity;
(4)
The cleaning of the shoreline setback area for state or county maintenance
purposes, including the clearing of seaweed, limu, and debris under
HRS Section 46-12; provided that, the sand removed shall be placed
on adjacent areas unless the placement would result in significant
turbidity;
(5)
The taking of driftwood, shells, beach glass, glass floats, or seaweed;
(6)
The exercise of traditional cultural practices as authorized by law
or as permitted by the department pursuant to Article XII, Section
7, of the Hawai'i State Constitution; or
(7)
For the response to a public emergency or a state or local disaster.
(b)
Any
primary coastal dune, which lies wholly or partially in the shoreline
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 allowable
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 building
footprint. This exception shall apply only to lots in existence prior
to December 2, 2009.
(c)
The
following are prohibited in the shoreline setback area:
(1)
Individual wastewater system or subsurface improvement unless the
applicant demonstrates to the satisfaction of the Director that no
feasible alternative exists, including a redesign of the improvement
or structure to accommodate the system outside of the setback line,
and the system or improvement complies with all statutory and Department
of Health requirements.
(2)
Landscaping that artificially fixes the shoreline.
(3)
Shoreline hardening unless it is approved by the State of Hawai'i's
Office of Conservation and Coastal Lands.
(4)
Expansion of the footprint of a non-conforming structure, unless
otherwise provided by law.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
(a)
The
following structures are permitted in the shoreline setback area.
All structures and/or landscaping not specifically permitted in this
section are prohibited without a variance.
(1)
Existing conforming or legally nonconforming structures.
(2)
Structure that received a shoreline variance or administrative approval
prior to February 26, 2008.
(3)
A structure 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" as defined in Section 8-27.2. To ensure that there will be no irreversible or long term adverse effects, 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 that consists of maintenance, repair, reconstruction,
and minor additions or alterations that results in no interference
with natural beach processes and is ancillary or associated with one
of the following sites:
(6)
Repairs to a lawfully existing structure, including nonconforming
structures, provided that:
(A)
The repairs do not enlarge, add to or expand the structure; increase
the size or degree of nonconformity; or intensify the use of the structure
or its impact on coastal processes;
(B)
The repairs do not constitute a substantial improvement of the structure;
(C)
The repairs are permitted by the Comprehensive Zoning Ordinance,
Development Plans, building code, floodplain management regulations,
special management area requirements under HRS Chapter 205A and any
other applicable rule or law; and
(D)
The Planning Director determines that the proposal complies with
the definition of "repair" under Sec. 8-1.5, Kaua'i County Code 1987,
as amended.
(7)
Beach nourishment or dune restoration projects approved by all applicable
governmental agencies.
(8)
A structure approved by the Director as a minor structure.
(9)
Qualified demolition of existing 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, including archaeological surveys.
(12)
Structures built by a governmental agency 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.
(13)
Structures relating to film productions that have received a County
Revocable Film Permit. Structures undertaken for film productions
must be removed within 30 days following the completion of the film
production.
(14)
Structures required for remedial and removal actions undertaken pursuant
to Chapter 128D of the Hawai'i Revised Statutes.
(15)
Repair and/or rebuilding of existing public park facilities, excluding
shoreline armoring structures or improvements.
(b)
The
following conditions shall apply to any new structure or any substantial
improvement permitted in the shoreline setback area:
(1)
All new structures shall be constructed in accordance with the standards
for development in Chapter 15, Article 1, Flood Plain Management,
Kaua'i County Code 1987, as amended, 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, liability, claim
or demand arising out of damages to said structures 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 and/or landscaping shall not be allowed to protect
the permitted structure during its life, with the exception of approved
beach or dune nourishment fill activities, and landscape planting
and irrigation located more than 40 feet from the shoreline.
(4)
Unless otherwise provided, all new structures and/or landscaping
shall not (i) adversely affect beach processes, (ii) artificially
fix the shoreline, (iii) interfere with public access or public views
to and along the shoreline, (iv) impede the natural processes and/or
movement of the shoreline and/or sand dunes, (v) adversely impact
neighboring property, or (vi) alter the grade of the shoreline setback
area.
(5)
All new structures shall be consistent with the purposes of this
Article and HRS Chapter 205A, as amended, and shall be designed and
located to minimize the alteration of natural landforms and existing
public views to and along the shoreline.
(6)
The requirements of this Subsection (b) shall run with the land and
shall be set forth in a unilateral agreement recorded by the applicant
with the Bureau of Conveyances or the Land Court, whichever is applicable,
no later than 30 days after the date of final shoreline approval of
the structure 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 45 days after the date of the final shoreline determination
and approval of the structure and the filing of such with the Director
shall be a prerequisite to the issuance of any related building permit.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
(a)
Unless
as otherwise provided in this Article, any structure proposed within
500 feet of the shoreline shall first obtain a shoreline setback determination
from the Director in accordance with this Article.
(b)
A proposed
structure in the shoreline setback area or within 500 feet of the
shoreline 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 proposed structure within the shoreline
setback area or within 500 feet of the shoreline shall be submitted
to the Department on a form prescribed by the Director.
(2)
For public structures whose valuation does not exceed $500,000 and
repairs to lawfully existing private structures as delineated in Section
8 27.7(a), the request shall include construction and site plans,
and written text addressing compliance with the criteria set forth
in this Article. The Director may also require additional information,
including, but not limited to a current shoreline setback determination
or a current certified shoreline survey or shoreline survey stamped
by a licensed surveyor, registered in the State of Hawai'i and coastal
erosion information, a list of proposed plants and their growth, existing
and final contours, photographs, and an environmental assessment.
(3)
For public structures whose valuation exceeds five hundred thousand dollars($500,000.00) and private structures unless delineated in Sec. 8 27.7(a), 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 survey and coastal erosion information, construction and site plans, existing and final contours, photographs, and a written text addressing compliance with the criteria set forth in this Article. The Director may also require a hazard assessment.
(4)
Within 60 days from the day the application is deemed complete by
the Director, the Director shall make a decision in accordance with
the criteria set forth in this Article that the proposed structure
is:
(5)
A list of applications for a shoreline setback determination or determination
of exemption deemed complete by the Director shall be posted within
10 working days to a publicized website maintained by the Department.
(6)
The Director shall notify the Commission at the Commission's next
regularly scheduled meeting of the following:
(A)
any shoreline setback determinations for approval of a structure
proposed within the shoreline setback area or within 500 feet of the
shoreline;
(B)
any approvals or denials by the Director of structures and the reasons
therefore, including, but not limited to, the name of the applicant,
the location and purpose of the structure, and a discussion of the
factors considered in making the decisions; and
(7)
All shoreline setback determinations made by the Director shall include, but are not limited to, the name of the applicant, the average lot depth calculations, the location of any proposed structures depicted on a plan drawn to scale, the purpose of the proposed structures, the current certified shoreline (if required), the setback calculations and setback line drawn on the plan, and copies of a coastal erosion study, if applicable. If the Director, pursuant to Section 8-27.3, make a determination of exemption, the Director shall state the justification in writing.
(8)
The Director's decisions pursuant to Section 8 27.8(c)(4) shall not
be final until posted on the Commission's agenda. Notwithstanding
the posting of the decision, if there is an appeal from the Director's
decision, the decision shall not be final until the Commission completes
its decisionmaking on the appeal.
(9)
Minor structures shall be completed 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.
(10)
For any non-minor structures allowed within the shoreline setback
area and any structures outside the shoreline setback area based on
the shoreline setback line, substantial construction of the structure
shall be achieved within three years from the date of final shoreline
setback determination and approval, and construction thereof shall
be completed (as evidenced by a certificate of occupancy in the case
of buildings for habitation) within four 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 shoreline change rates as provided
in the Kaua'i Coastal Erosion Study. In all other cases where substantial
construction has not occurred by the deadline, a new certified shoreline
and setback 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 application for a building permit. A copy of the recorded
unilateral agreement shall be submitted to the Planning Department
prior to application for a building permit.
(11)
All applications for Shoreline Setback Determinations shall include
a Coastal Hazard Disclosure Statement signed by the property owner.
(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, HRS Chapter 205A, as amended, or HRS Chapter
343-5, as amended.
(e)
Fees.
A nonrefundable processing fee of $100 shall accompany a request for
determination.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
(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)
A non-refundable administrative application fee of $300.
(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 environmental impact statement rules and applicable guidelines
of the State of Hawai'i;
(4)
The names, addresses, 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 structure and/or landscaping is
to be located;
(5)
A site plan of the shoreline setback area, drawn to scale, showing:
(A)
Existing natural and man-made features and conditions within;
(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 minimum interval of two feet unless waived by the director;
and
(E)
Proposed development and improvements showing new conditions with
a typical section (if a structure), and the proposed development's
impacts to neighboring properties.
(6)
A copy of the certified shoreline survey map of the property;
(7)
Detailed justification of the proposed project, which addresses the
purpose and intent of these rules and the criteria for approval of
a variance;
(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 application 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 application to the Commission
prior to the matter appearing on an agenda of the Commission.
(c)
Except
as otherwise provided in this section, all applications for variances
shall be heard, noticed, and processed as public hearing matters.
Not less than 30 calendar days before the public hearing date, the
applicant for a variance shall mail notices of public hearing by certified
or registered mail, postage prepaid, to all owners of real property
within 300 feet of the parcel that is the subject of the application.
Not less than 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 application, 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 public hearing within 25 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 water sports recreational facilities,
which result in little or no interference with natural shoreline processes.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
(a)
A shoreline setback variance may be considered for a structure otherwise prohibited by this Article, if the Commission finds in writing, based on the record presented, that the proposed structure meets those standards established under Section 8-3.3 and is necessary for or ancillary to:
(1)
Cultivation of crops;
(2)
Aquaculture;
(3)
Landscaping; provided that, the Commission finds that the proposed
structure will not adversely affect beach processes, public access
or public views and will not artificially fix the shoreline and is
in compliance with HRS Section 115-5;
(4)
Drainage;
(5)
Boating, maritime, or water sports recreational facilities;
(6)
Structures by public agencies or public utilities regulated under
HRS Chapter 269;
(7)
Private and public structures that are clearly in the public interest;
(8)
Private and public structures that will neither adversely affect
beach processes nor artificially fix the shoreline; provided that,
the Commission also finds that hardship will result to the applicant
if the facilities or improvements are not allowed within the shoreline
setback area;
(9)
Private and public structures 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
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 health, safety, and welfare of the public, and the
proposed protection is the best shoreline management option in accordance
with relevant state policy on shoreline hardening.
(11)
Construction of a new dwelling unit. In the case where the minimum
buildable footprint does not allow for a setback in accordance with
this Article, 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)
If the foregoing approaches are done to the maximum extent practicable
and a dwelling cannot be sited mauka of the shoreline setback, the
minimum buildable footprint shall be reduced to no less than 1,000
square feet.
(D)
If the foregoing approaches in subsections (A), (B) and (C) are done
to the maximum extent practicable, the calculated shoreline setback
may be reduced to the minimum extent required to permit the construction
of a house within the reduced footprint, provided that a qualified
consultant must certify that the property is not subject to undue
risk from erosion, high wave action, or flooding. Under no circumstance
shall the shoreline setback line be less than 40 feet.
(12)
Rebuilding of an existing dwelling unit.
(A)
Rebuilding of a lawfully existing dwelling unit under this section
shall only be allowed if the rebuilding is not prohibited by Article
13, Chapter 8, Kaua'i County Code 1987, as amended and does not:
(B)
In the case where the minimum buildable footprint does not allow
for a setback of 60 feet, the Commission may consider granting a variance
under the following guidelines only:
(i)
The front yard setback may be reduced where feasible to allow
for the minimum buildable footprint;
(ii)
The side yard setback may be reduced where feasible to allow
for the minimum buildable footprint;
(iii)
If the foregoing approaches are done to the maximum extent practicable
and a dwelling cannot be sited mauka of the shoreline setback, the
minimum buildable footprint may be reduced to the lesser of 1,000
square feet or the actual footprint of the house.
(b)
A
structure may be considered for a variance upon grounds of hardship
if:
(1)
The applicant would be deprived of all reasonable use of the land
if required to fully comply with the provisions of the provisions
of this Article;
(2)
The applicant's proposal is due to unique circumstances and does
not draw into question the reasonableness of the provisions of this
Article; and
(3)
The proposal is the best practicable alternative which best conforms
to the purpose of the provisions of this Article.
(c)
Before
granting a hardship variance, the Commission shall find 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. The Commission shall consider
factors such as coastal hazards, shoreline conditions, erosion, surf
inundation, flood conditions and the geography of the lot in determining
whether the proposal is a reasonable use of the applicant's land.
The Commission shall give due consideration to the long-term average
annual rate of coastal erosion calculated by following the methodology
outlined in the National Assessment of Shoreline Change: Historical
Shoreline Changes in the Hawaiian Islands (Fletcher, et al., 2012)
and any amendments thereto, or Section 4.1 of the Hawai'i Coastal
Hazard Mitigation Guidebook (Hwang, 2005), and any subsequent amendments
thereto.
(d)
For
purposes of this section, hardship 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
and neighboring properties;
(3)
To minimize and mitigate risk of structures failing and becoming
loose rocks or rubble on public property;
(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 1987, as amended, and Drainage,
Chapter 22, Article 16, Kaua'i County Code 1987, as amended, 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 limitation and the fact that the structure does not meet 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 shoreline 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.
(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.
(j)
In
no case shall the Commission grant a shoreline setback variance for
structures constructed without valid permits.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
(a)
The
Director shall enforce this Article in accordance with Article 24
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 shall
be that required under Section 1-12-4 of said rules. If a Class IV
permit would have been required, the procedure would be that outlined
in Sections 1-12-5 through 1-12-8 of said rules.
(2)
Following the relevant procedures described in Sec. 8 27.11(b)(1),
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 harm to the ecosystem and/or public improvements
than allowing the structure to remain.
(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 the time
allowed for requesting a hearing had expired without such a request,
that a civil fine was imposed and that the fine imposed has not been
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 there under, 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 of such order shall be stayed on appeal unless specifically
ordered by a court of competent jurisdiction
(f)
The
Director shall enforce this Article in accordance with Article 24
of the County of Kaua'i Comprehensive Zoning Ordinance and HRS Chapter
205A.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
Any person who violates any provision of this Article shall be subject to the penalties provided for in HRS Section 205A-32 and Section 8-3.5 of this Chapter.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
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, Denial or Determination of Inapplicability by the Director
to the Commission in accordance with the Commission's Rules of Practice
and Procedure.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
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 of the provisions of this Article.
(Ord. No. 979, December
5, 2014; Ord. No. 1088, February 4, 2021)
