The purposes of this Article are to provide standards to safeguard
the public health, safety and welfare; to protect property; to control
soil erosion and sedimentation by setting standards for grading, grubbing
and stockpiling; and to protect historic properties and burial sites
in the County of Kaua'i; setting forth the requirements governing
grading, grubbing and stockpiling and establishing the administrative
procedures, minimum requirements for issuance of permits and the enforcement
of such requirements.
(Ord. No. 262, July 23,
1975; Sec. 22-7.1, R.C.O. 1976; Sec. 22-7.1, 1978 Cumulative Supplement; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
This Article shall be known as the "Sediment and Erosion Control
Ordinance."
(Ord. No. 262, July 23,
1975; Sec. 22-7.2, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
The provisions of this Article shall apply to all grading, grubbing
and stockpiling in the County of Kaua'i and shall supersede all provisions
of existing ordinances covering the same subject matter.
(Ord. No. 262, July 23,
1975; Sec. 22-7.3, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
When used in this Article the following words or phrases shall
have the meaning given in this Section unless it shall be apparent
from the context that a different meaning is intended:
"Best management practices" or "BMPs"
means activities, practices, facilities, and/or procedures
that will to the maximum extent practicable prevent the discharge
of pollutants, including sediment and other contaminants, from a construction
site. BMPs may include a schedule of activities, the prohibition of
practices, maintenance procedures, and other management practices
to prevent or reduce the pollution of waters of the State. BMPs also
include treatment requirements, operating procedures, and practices
to control site runoff, spillage or leaks, waste disposal, or drainage
from raw material storage.
"Burial site"
shall have the same meaning as that term is defined in Hawai'i
Revised Statutes Section 6E-2, as amended from time to time.
"Coastal dune"
means one (1) 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.
"County Engineer"
means the County Engineer, Department of Public Works, County
of Kaua'i or a duly authorized representative.
"Earth material"
means any rock, gravel, sand, natural soil or combination
thereof.
"Engineer"
means a person duly licensed as a professional engineer (civil
branch) in the State of Hawai'i.
"Engineer's soil report"
means a report on soils conditions prepared by an engineer
or geologist experienced in the practice of soils mechanics and foundations
engineering.
"Excavation" or "cut"
means any act by which earth material is cut into, dug or
removed, and shall include the conditions resulting therefrom.
"Fill"
means any act by which earth materials are placed or deposited
by artificial means, and shall include the resulting deposit of earth
material.
"Geologist"
means a person who holds a four (4) year degree in geology
from an accredited college or university.
"Grading"
means any excavation or fill or any combination thereof.
"Grubbing"
means any act by which vegetation or materials, including
but not limited to trees, timber, shrubbery, plants, concrete or asphalt
concrete, is dislodged or uprooted from the surface exposing bare
ground.
"Historic property"
shall have the same meaning as that term is defined in Kaua'i County Code 1987, Section
8-1.5, as amended from time to time, and as that term is defined in Hawai'i Revised Statutes Section 6E-2, as amended from time to time.
"Maximum extent practicable"
means reasonably economically achievable measures for the
control of the addition of pollutants from nonpoint sources of pollution,
which reflect the greatest degree of pollutant reduction achievable
through the application of the best available nonpoint pollution control
practices, technologies, processes, siting criteria, operating methods,
or other alternatives.
"Permittee"
means the person or party to whom the permit is issued and
shall be the owner or developer of the property whether a person,
firm, corporation, partnership or other legal entity having legal
or equitable title to the property and being responsible for the work.
"Person"
means an individual, firm, corporation, partnership or other
responsible legal entity.
"Planning Director"
means the Planning Director of the County of Kaua'i or a
duly authorized representative.
"Sand"
means naturally produced particles of predominately (greater
than ninety percent [90%]) calcium carbonate mineralogy consisting
of skeletal fragments of reef-dwelling organisms, excluding the product
of artificial crushing or disaggregation of limestone rock, with a
cumulative grain size distribution twenty percent (20%) finer or coarser
than the existing beach sediment, but in no event shall the grains
be smaller than 0.062 mm or larger than four (4) mm. The particles
shall be substantially clean of soil, rubble, and debris, and shall
contain no more than six percent (6%) volume of silt and clay size
material, except that where native beach environments display a higher
than normal percentage of silt and clay size material, the percent
volume shall not exceed nine percent (9%). Particles are expected
to be free of any coating or other content that may discolor the water.
"Shoreline area"
shall have the same meaning as that term is defined in Hawai'i
Revised Statutes Chapter 205A.
"Soil"
shall have the same meaning as that term is defined in the
soil survey of the islands of Kaua'i, Oahu, Maui, Molokai and Lanai,
State of Hawai'i, printed by the United States Department of Agriculture,
Soil Conservation Service, in cooperation with the University of Hawai'i
Agricultural Experiment Station issued August, 1972.
"Stockpiling"
means the temporary open storage of soil, sand, gravel, rock
or other similar material in excess of five hundred (500) cubic yards
upon any premises.
"Surveyor"
means a person duly licensed as a professional land surveyor
in the State of Hawai'i.
(Ord. No. 262, July 23,
1975; Sec. 22-7.4, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
Regardless of whether a permit is required pursuant to this Article, or an exemption from Sec.
22-7.6 is applicable, all grading, grubbing and stockpiling activities shall incorporate BMPs to the maximum extent practicable to prevent damage by sedimentation to streams, watercourses, natural areas and the property of others. It shall be the permittee's and the property owner's responsibility to ensure that the BMPs are satisfactorily implemented. As determined by specific site requirements, the County Engineer may require the following minimum BMPs:
(a) Drainage.
On-site drainage shall be handled in such a way as to control erosion,
prevent damage to downstream properties and to return waters to the
natural drainage course in a manner that minimizes sedimentation or
other pollution to the maximum extent practicable.
(b) Dust
Control. All areas disturbed by construction activities shall control
dust emissions to the maximum extent practicable through the application
of BMPs, that may include watering with trucks or sprinklers, erection
of dust fences, limiting the area of disturbance, and timely grassing
of finished areas.
(c) Vegetation.
Whenever feasible, natural vegetation, especially grass, should be
retained. If it is necessary to be removed, trees, timber, plants,
shrubbery and other woody vegetation, after being uprooted, displaced
or dislodged from the ground by excavation, clearing or grubbing,
shall not be stored in or deposited along the banks of any stream,
river or natural watercourse. The County Engineer may require the
removal and disposal of such vegetation from the site within a reasonable
time, but not to exceed three (3) months from when it was uprooted,
displaced, or dislodged.
(d) Erosion
Controls. All disturbed areas shall be stabilized with erosion control
measures that may include: staging construction; clearing only areas
essential for construction; locating potential nonpoint pollutant
sources away from steep slopes, water bodies, and critical areas;
routing construction traffic to avoid existing or newly planted vegetation;
protecting natural vegetation with fencing, tree armoring, and retaining
walls or tree wells; stockpiling topsoil, covering the stockpile to
prevent dust, and reapplying the topsoil; covering or stabilizing
all soil stockpiles; using wind erosion control; intercepting runoff
above disturbed slopes and conveying it to a permanent channel or
storm drain; constructing benches, terraces, or ditches at regular
intervals to intercept runoff on long or steep disturbed or man-made
slopes; providing linings or other method to prevent erosion of stormwater
conveyance channels; using check dams where needed to slow flow velocities;
using seeding and fertilizing, mulching, sodding, matting, blankets,
bonded fiber matrices, or other effective soil erosion control technique;
and providing vehicle wheel wash facilities for vehicles before they
leave the site.
(e) Sediment
Control. In addition to the erosion control measures of this Section,
measures shall be taken to capture sediment that is transported in
runoff to prevent the sediment from leaving the site. Sediment control
measures include sediment basins; sediment traps; filter fabric silt
fences; straw bale, sand bag, or gravel bag barriers; inlet protection;
stabilized construction entrances, and other measures to minimize
off-site tracking of sediment by construction vehicles; and vegetated
filter strips.
(f) Material
and Waste Management. Measures to insure the proper storage of toxic
material and prevent the discharge of pollutants associated with construction
materials and waste shall implemented.
(g) Timing
of Control Measure Implementation. Timing of control measure implementation
shall be in accordance with the approved erosion control plan if such
plan is required. At a minimum, disturbed areas of construction sites
that will not be redisturbed for twenty-one (21) days or more shall
be stabilized (grassed or graveled) by no later than the fourteenth
(14th) day after the last disturbance.
(h) The use of soil as fill is prohibited within any shoreline area, as defined by Section 205A-41, Hawai'i Revised Statutes, except for sand as defined in Section
22-7.4 of this Article.
(i) Any
grading or mining of a coastal dune is prohibited, unless permitted
by the Board of Land and Natural Resources.
(j) For
projects having a disturbed ground area of more than one (1) acre,
a plan showing the BMPs to be incorporated shall be held on site.
(k) A BMP
manual including, but not limited to, the preceding minimum BMPs shall
be adopted by the County Engineer within one hundred eighty (180)
days from the enactment of the ordinance codified in this Article,
pursuant to Chapter 91, Hawai'i Revised Statutes.
(Ord. No. 262, July 23,
1975; Sec. 22-7.5, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
The permit requirements of Section
22-7.8 of this Article shall not apply to the following:
(a) Work
in a public street, sidewalk, alley, right-of-way or in an isolated,
self-contained government controlled area.
(b) Mining,
quarrying, landfill or sanitary landfill operations subject to and
operated in accordance with applicable County, State or Federal government
regulations or laws, unless required by such other government regulations
or laws or any permits issued thereunder.
(c) Excavation
and backfill for the construction of basements and footings of a building,
retaining wall, or other structure authorized by a valid building
permit within the footprint of the building. This shall not exempt
any fill made outside the building lines or the placing of fill material
obtained from excavations on other premises.
(d) Grading
and grubbing individual cemetery plots.
(e) Agricultural
operations, including ranching incidental to or in conjunction with
crop or livestock production, managed in accordance with soil conservation
practices acceptable to the applicable soil and water conservation
district directors, and in accordance with an actively pursued comprehensive
conservation plan that has been exempted by the County Engineer.
(1) This exemption shall not be granted by the County Engineer unless:
(A) The applicant submits a copy of the conservation plan to the County
Engineer, accompanied by written verification that the Soil and Water
Conservation District Board approved the plan, and a copy of the State
Department of Land and Natural Resources Historic Preservation Division's
comments to the plan;
(B) The conservation plan does not alter the drainage pattern;
(C) The land covered by the conservation plan is identified through mapping
and numbers by tax map key parcels;
(D) The conservation plan includes best agricultural management practices;
and
(E) The applicant gives written authorization for the County Engineer
to inspect the applicant's files held by the Soil and Water Conservation
Districts and the U.S. Department of Agriculture Natural Resources
Conservation Service.
(2) The County Engineer shall:
(A) Attend all meetings of the Soil and Water Conservation District Boards
at which a soil and water conservation plan may be approved; and
(B) Indicate whether the Department of Public Works has record of any
prior or pending violations of this Article for the subject property,
or any other matter relevant to the Board's decision whether to approve
the plan.
(3) Upon a showing of necessity, the County Engineer may require an applicant
to produce a topography map showing specific fields or areas on which
the agricultural operations will occur, before the exemption is effective,
where the plan covers fifteen (15) acres or more.
(4) The County Engineer shall issue to the applicant a written decision
within thirty (30) days of receiving a copy of the plan with the supporting
documentation specified above.
(5) This exemption shall terminate upon cancellation of the plan by the
Soil and Water Conservation District Directors or upon cancellation
of the exemption by the County Engineer.
(6) Any grading, grubbing, or stockpiling beyond the scope of the plan
is subject to the requirements of this Article and may be enforced
in accordance with the provisions of this Article.
(7) Any exemption granted under this Section shall terminate ten (10)
years after the Board's approval, unless the plan, with appropriate
modifications, is reviewed and re-approved by the Soil and Water Conservation
District Board.
(f) Excavation
or fill that does not unreasonably alter the general drainage pattern
to the detriment of abutting properties, does not exceed one hundred
(100) cubic yards of material on any one (1) site, and does not exceed
five (5) feet in vertical height or depth at its deepest point.
(g) For
excavation or fill that does not alter the general drainage pattern
to the detriment of abutting properties, is over one hundred (100)
but less than one hundred fifty (150) cubic yards of material on any
one (1) site, and does not exceed five (5) feet in vertical height
or depth at its deepest point from the original grade, in lieu of
obtaining a permit, a notice of intent shall be filed with, and on
a form furnished by, the Engineering Division, Department of Public
Works, at least ten (10) business days before the work begins.
(h) Grubbing
that does not unreasonably alter the general drainage pattern to the
detriment of abutting properties and does not exceed a total area
of one (1) acre.
(i) Exploratory
excavations not to be incorporated in the anticipated project under
the direction of an engineer for the purpose of subsurface investigation
provided that these excavations will be filled in a reasonable period
of time and provided that the County Engineer is advised in writing
prior to the start of the excavations.
(j) Trenching
and backfilling for installation of utility and drainage conduits.
(k) Historic/cultural
restoration work for a non-profit organization as described in Internal
Revenue Code Section 501(c)(3), where a permit application is approved.
Permit fees and bond requirements are waived for work commenced after
approval of such application.
Notwithstanding the exemptions contained herein, the activities
described in Sec. 22-7.6(b), (f), (g), and (h) shall be subject to
the requirements of Sec. 22-7.17(a), (c), (d), (e), (f), (g), and
(i) and Sec. 22-7.18(a), (b), and (c). All exemptions are subject
to the requirements of Sec. 22-7.5.
|
(Ord. No. 262, July 23,
1975; Sec. 22-7.6, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
Decisions of the County Engineer made in accordance with the
provisions of this Article, and decisions involving variations from
the standards referred to in this Article shall be made a matter of
record in the permit file.
(Ord. No. 262, July 23,
1975; Sec. 22-7.8, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
Unless excluded under Section
22-7.6 of this Article, no grading, grubbing, or stockpiling shall be commenced or performed without a permit as prescribed in this Article. A separate grubbing permit is not required when grubbing activities are performed in conjunction with and as part of activities conducted pursuant to a validly issued grading permit. A permit or exemption pursuant to this Article does not obviate the need to obtain other permits or approvals.
(Ord. No. 262, July 23,
1975; Sec. 22-7.8, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) An
applicant for a grading, grubbing, or stockpiling permit shall first
file an application on a form furnished by the Engineering Division
of the Department of Public Works, County of Kaua'i. The application
shall be accompanied by two (2) sets of the supporting documents.
Each application shall:
(1) Describe by tax key or street address the land on which the proposed
work is to be done.
(2) State the estimated dates for the starting and completion of the
proposed work.
(3) Show the names and addresses of the owner or owners of the property.
(4) Show the name of the permittee and the person who shall be responsible
for the work, his or her contractors and employees and for requesting
the inspections required in this Article. A person signing the application
for the permittee shall present evidence satisfactory to the County
Engineer that he or she is authorized to act for the permittee.
(5) State the purpose of the work.
(6) State the dust control proposals to be utilized.
(b) Each
application for a grading permit shall also be accompanied by plans
and specifications, including:
(1) For all areas:
(A) A vicinity sketch map or plan adequately indicating the site location,
property lines, easements and setbacks of the property on which the
work is to be performed.
(B) Location of any buildings, structures and improvements on the property
where the work is to be performed and location of any building or
structure on adjacent land which is within fifteen (15) feet of the
property to be graded.
(C) Elevations showing the topography of the existing ground by contours
or other means and extending fifteen (15) feet into adjacent property.
(D) Elevation, dimensions, location, extent and the slopes of all proposed
grading shown by contours or other means.
(E) The area in square feet of the land to be graded; and the quantities
of excavation and fill involved.
(F) The location and description of any known historic properties or
burial sites on the subject property.
(G) Any additional plans, drawings or calculations required by the County
Engineer.
(2) There shall be the following additional requirements for grading
applications for areas of one (1) acre or more, grading in excess
of five hundred (500) cubic yards, or where the land slope is greater
than twenty percent (20%).
(A) A contour map prepared by a surveyor or by an engineer. This map
shall include location and type of utility lines, structures, and
dimensions and azimuths of property lines, easements and setbacks,
name and location of street, roadways, and rights-of-way.
(B) A grading plan and specifications certified by an engineer. This
plan shall show the location of all proposed structures, buildings,
streets, utilities, permanent erosion control features, easements
and other improvements where the grading work is to be performed,
the contours of the land before grading and the finished conditions
to be achieved by the proposed grading to be shown by contours, cross
sections, spot elevations or other means.
(C) Where an area is proposed to be graded in increments, plans for the
future development of the area.
(D) If the land is to be subdivided, the applicant shall obtain the tentative
approval of the proposed subdivision from the Planning Commission
and the tentative approval together with its date of approval shall
be shown on the grading plan. The Planning Commission may make recommendations
to the County Engineer pertaining to such elements of the grading
relating to zoning, use and effect upon the optimum design or development
of the area, the surrounding area, and the environment.
(E) A drainage and erosion control plan showing the scheme for controlling
erosion and disposal of runoff water including details of temporary
drainage control devices such as terraces, berms, ditches, culverts,
subsurface drains, sedimentation basins, and erosion control planting,
mulching, sprigging, or sodding.
(F) A schedule of construction operations to accomplish temporary and
permanent erosion control work. Where any operations are delayed for
any reason, a revised schedule shall be submitted to the County Engineer
together with a modification of the temporary drainage and erosion
control plan as the County Engineer may require.
(3) The permittee shall submit an engineer's soils report under the following
circumstances:
(A) For any deviation from height, slope and distance from property line requirement in Section
22-7.17.
(B) In an area with highly plastic or expansive soil.
(C) Where fill is to be placed over a wetland, swamp, pond, gully or
lake.
(D) Where the fill material is highly plastic.
(E) Where the fill will support buildings unless otherwise waived by
the County Engineer. The engineer's soils report shall include:
(F) Data regarding the subsurface conditions at the site.
(G) The presence of groundwater if detected.
(H) Recommended limits for the proposed grading.
(I) Recommended fill material and manner of placing it.
(J) Recommended heights and slopes of cut and fill sections.
(c) Each
application for a grubbing permit shall also contain:
(1) A plot plan showing the location and property boundaries, easements
and setbacks.
(2) An erosion and sediment control plan.
(3) A statement indicating the disposition of the grubbed material.
(d) An
applicant for a stockpiling permit shall also furnish a plot plan
showing the property lines, easements and setbacks and the location
of the proposed stockpile, quantities, height of stockpile, life of
stockpile, source of the material to be stockpiled and furnish any
other information as may be required by the County Engineer, to control
the creation of dust, drainage or sedimentation problems. Where stockpiling
is for the purpose of surcharging to stabilize or consolidate an area,
the County Engineer shall require the permittee to submit an engineer's
soil report which shall include data on the effect surcharging will
have on adjacent building or structure.
(e) All
grading, grubbing or stockpiling permits and operations shall conform
to the erosion and sedimentation control standards and guidelines
established by the Department of Public Works in conformance with
Act 249, SLH 1974.
(Ord. No. 262, July 23,
1975; Ord. No. 294, October 21, 1976; Sec. 22-7.9, R.C.O.
1976; Sec. 22-7.9, 1978 Cumulative Supplement; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) The Department of Public Works within ten (10) calendar days shall check the application for compliance for form and content as required under Section
22-7.9. If the form and content of the application are not found to be in compliance, it shall be rejected and returned to the applicant.
(b) After
the application has been preliminarily accepted, the Department of
Public Works shall forward copies of the application to the Planning
Department, the Department of Water, the State Department of Health,
the State Department of Land and Natural Resources, and any other
affected agency or department for comment and approval. Any agency
to which the application is referred shall have thirty (30) calendar
days from the date of acceptance of the application to submit any
comments, conditions, or approvals to the Department of Public Works
for its review and consideration.
(c) The
Department of Public Works shall then have thirty (30) calendar days
after all agencies have submitted comments to it to impose conditions
to the grading, grubbing or stockpiling permit required by law, ordinance,
rule, regulation or validly issued governmental permit.
(Ord. No. 695, August 28,
1995; Ord. No. 808, October 10, 2003)
(a) The
issuance of a grading permit shall constitute an authorization to
do only that work described on the permit and on the plans and specifications
approved by the County Engineer.
(b) Jurisdiction
of Other Agencies. Permits issued under the requirements of this Article
shall not relieve the owner of responsibility for securing required
permits or approval for work regulated by any other code, department
or division of any government agency.
(c) Conditions
of Approval. In granting any permit under this Article, the County
Engineer:
(1) Shall attach conditions as required by law, ordinance, rule, regulation
or validly issued governmental permit or as recommended by the Historic
Preservation Division of the Department of Land and Natural Resources
to identify, preserve or protect historic properties and burial sites
within the County of Kaua'i; and
(2) May attach such conditions as may be reasonably necessary to prevent
nuisances or hazards to public or private property, health or welfare.
The conditions may include, but shall not be limited to:
(A) Improvement of any existing grading to bring it up to the standards
of this Article.
(B) Requirements for fencing of excavations or fills which otherwise
would be hazardous.
(C) The route of travel over public streets so as to cause the least
interference with general traffic and to eliminate damage to public
streets.
(Ord. No. 262, July 23,
1975; Sec. 22-7.10, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) The
applicant shall pay to the Department of Public Works the cost for
review and inspection of the work: a sum equal to one-half of one
percent (1/2%) of the estimated construction cost as determined by
the County Engineer. Full payment of the applicable fee shall be made
prior to issuing a permit.
(b) Fees
for grading work for which inspectional fees are paid in conformance
with the Subdivision Ordinance for the County of Kaua'i shall be a
lump sum amount of five dollars ($5.00).
(c) All
fees are payable to the Director of Finance, County of Kaua'i and
submitted to the Department of Public Works, County of Kaua'i.
(d) If
work for which a permit is required by this Article has been commenced
or performed without a permit, a permit shall be obtained retroactively
provided that such work complies with or may be made to comply with
this Article. The permit fees for work that has been commenced or
performed without a permit shall be based on the schedule below. For
grading and stockpiling permits:
Volume of Material (in cubic yards)
|
Permit fee
|
---|
101 - 500
|
$500
|
501 - 1,000
|
$2,000
|
1,001 - 5,000
|
$10,000
|
5,001 - 10,000
|
$15,000
|
Greater than 10,000
|
$25,000
|
For grubbing permits, the fee is one thousand dollars
($1,000.00) per acre; provided that a minimum fee of one thousand
dollars ($1,000.00) shall be assessed.
(e) If
the grading, grubbing, or stockpiling work accomplished or commenced
cannot be made to comply with the provisions of this Article, the
person(s) responsible for the initiation or accomplishment of the
work shall restore the land as nearly as possible to its original
condition and shall obtain a certificate of completion therefor from
the County Engineer. Notwithstanding the above, neither the application
for nor the issuance of a retroactive permit shall relieve any person
from civil or criminal penalty for violation of this Article.
(f) If
the grading, grubbing, or stockpiling work accomplished or commenced
without a permit cannot be made to comply with the provisions of this
Article, the person(s) responsible shall post a restoration bond executed
by an acceptable surety in an amount sufficient, as determined by
the County Engineer, to pay all costs of restoring the land as nearly
as possible to its original condition in the event that the person(s)
responsible do not satisfactorily perform the restoration. The restoration
bond shall be maintained in force for a period of one (1) year after
the restoration work has been completed and no certificate of completion
for the work shall be issued by the County Engineer until one (1)
year has elapsed after the physical work of the restoration has been
completed.
(Ord. No. 262, July 23,
1975; Sec. 22-7.11, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) Every
grading or grubbing permit shall expire and become void one (1) year
after the date of issuance.
(b) Every grading or grubbing permit shall expire and become void unless the work permitted therein is started within six (6) months after the date of issuance, or if the work is suspended or abandoned at any time after the work is commenced for a period of ninety (90) days. Before the work can be recommenced, a new permit shall first be obtained to do so and the fee therefor shall be the fee as specified in Section
22-7.12. Permit fees for an expired permit shall not be refunded, even if no work has commenced.
(c) Every
stockpiling permit shall expire and become void one (1) year after
the date of issuance and all stockpiled material temporarily stored
on the premises shall be removed from the premises or used on the
premises as fill material under a grading permit.
(d) Upon written application, the County Engineer may grant an extension or renewal for an expired grading, grubbing, or stockpiling permit. In granting an extension or renewal, the County Engineer may attach conditions as appropriate to prevent the creation and maintenance of a nuisance or hazard to individuals and property. The permit fee for extension or renewal shall be the fee as specified in Section
22-7.12.
(Ord. No. 262, July 23,
1975; Sec. 22-7.12, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
The County Engineer shall deny the grading, grubbing or stockpiling
permit if he or she finds that the work as proposed by the applicant
is likely to endanger any property or public way or structure, endanger
the public health, safety or welfare or if the grading, grubbing or
stockpiling as proposed by the applicant would constitute a violation
of a State or County law protecting historic properties or burial
sites. Factors to be considered in determining probability of hazardous
conditions shall include, but not be limited to, possible saturation
of the ground by rains, earth movements, dangerous geological conditions
or flood hazards, undesirable surface water run-off, subsurface conditions
such as the stratification and faulting of rock, nature and type of
soil or rock. Failure of the County Engineer to observe or recognize
hazardous conditions or his or her failure to deny the grading, grubbing
or stockpiling permit shall not relieve the permittee or his or her
agent from being responsible, nor cause the County, its officers or
agents, to be held responsible for the conditions or damages resulting
therefrom.
(Ord. No. 262, July 23,
1975; Sec. 22-7.13, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) The
County Engineer may, in writing, suspend or revoke a permit issued
under the provisions of this Article whenever the permit has been
issued on the basis of incorrect information supplied by the permittee;
or whenever the grading, grubbing or stockpiling is not being performed
in accordance with the terms and provisions of the permit; or whenever
it is determined that the permittee had not complied with this Article
or any provision of any other applicable law, ordinance, rule or regulation
of the State of Hawai'i or the County of Kaua'i; or whenever the grading,
grubbing or stockpiling discloses conditions that are unsafe as determined
by the County Engineer. Where a permit is revoked for any reason,
there shall be no refund of any permit fee.
(b) When
a permit has been suspended or revoked the permittee shall submit
detailed plans and proposals for compliance with the provisions of
this Article, and any other applicable laws, ordinances, rules or
regulations of the State of Hawai'i, or the County of Kaua'i and for
correcting the objectionable or unsafe conditions. Upon approval of
the plans and proposals, the County Engineer may, in writing, authorize
the permittee to proceed with the work.
(c) When a permit has been suspended or revoked and the permittee fails to take corrective action specified above within thirty (30) days following the suspension or revocation, the County Engineer may correct the deficiencies described in Subsection
(a) of this Section and the permittee or his/her sureties shall be liable for the cost thereof.
(Ord. No. 262, July 23,
1975; Sec. 22-7.14, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) Bond
Required. A grading permit or stockpiling permit shall not be issued
unless the permittee shall first post a bond conforming to the requirements
of this Section, for the benefit of the County of Kaua'i, except that
a bond is not required for grading fewer than five hundred (500) cubic
yards that is not for retaining wall construction within the setback
distances from the lot line for cut or fill slope. If the proposed
grading or stockpiling is to be performed under an approved subdivision
final map and a subdivision agreement or bond or other security has
been approved and accepted by the County under the subdivision rules
and regulations of the County of Kaua'i and which covers the grading
or stockpiling work, then the County Engineer shall not require a
bond for grading or stockpiling. A copy of the approved and accepted
subdivision bond or other security shall be presented as evidence
by the applicant for a grading or stockpiling permit. At the option
of the applicant, he or she may either file a bond guaranteed by a
surety company duly authorized to transact business within the State
of Hawai'i, or he or she may deposit cash, certified check, certificate
of deposit, stock or other securities, in lieu of a bond. No interest
shall be paid by the County on cash deposits. The provisions in this
Article relating to a surety bond shall be equally applicable to a
cash deposit pledged as a bond.
(b) Amount of Bond. The amount of the bond shall be in an amount equal to fifty percent (50%) of the total cost of all work and services required to complete all of the work under the grading, grubbing or stockpiling permit as approved by the County Engineer. Cost estimates prepared by the permittee shall be subject to approval by the County Engineer to determine the exact amount of the bond. The amount of the bond for a permit which is retroactively applied for pursuant to Section
22-7.12 shall be one hundred percent (100%) of the total cost of all work and services required to complete all of the work under the grading or stockpiling permit as approved by the County Engineer.
(c) Purposes
and Conditions.
(1) The purpose of the bond shall be to insure that the work under the
permit:
(A) Is completed in a manner which fulfills the requirements of this
Article and any conditions imposed under the permit; or
(B) Should the work be abandoned prior to completion, is restored to
a condition that: is consistent with the standards contained in this
Article; minimizes any damages to any other properties, public ways
or structures; protects the public health, safety or welfare; and
satisfies any other applicable laws, ordinances, rules, regulations
or validly issued governmental permit.
(2) Each bond shall provide that the surety shall be held and firmly
bound unto the County of Kaua'i to accomplish the purposes of the
bond and to pay for any work necessary to accomplish such purposes
and the surety company shall not terminate or cancel the bond until
notified in writing by the County Engineer.
(3) Nothing herein shall require the County of Kaua'i to do any work
or expend any funds to accomplish the purposes of the bond other than
that which can be paid for out of the proceeds of the bond.
(d) Period
and Termination of Bond. The term of each bond shall begin upon the
date of issuance of the permit and shall remain in effect for a period
of thirty (30) days after certification by the County Engineer that
the work has been completed. Stockpiling shall be removed and properly
disposed of and the bared area shall be immediately grassed. Upon
issuance of the certificate the County Engineer may authorize the
reduction of the penal sum of the bond to an amount deemed by the
County Engineer to insure the acceptability of the work. In the event
of failure to complete the work or failure to comply with all of the
conditions and terms of the permit, the County Engineer may enter
in an agreement for the completion of any and all work to meet the
requirements of the permit or to comply with this Article without
termination of the bond. The surety and permittee shall be liable
and shall pay for all necessary costs and expenses that may be incurred
or expended by the County of Kaua'i in causing any and all of the
required work to be done.
(Ord. No. 262, July 23,
1975; Sec. 22-7.15, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) Slope
Control.
(1) Height. Where a cut or fill is greater than fifteen (15) feet in
height, terraces or benches shall be constructed at vertical intervals
of fifteen (15) feet except that where only one (1) bench is required,
it shall be at the midpoint. The minimum width of the terraces or
benches shall be at least eight (8) feet and provided with drainage
provisions to control erosion on the slope face and bench surface.
(2) Cut Slopes. Under the following soil conditions, no cut may be steeper
in slope than the ratio of its horizontal to its vertical distance
as shown below. One-half (1/2) horizontal to one (1) vertical in unweathered
rock or mudrock.
One (1) horizontal to one (1) vertical in decomposed rock.
One and one-half (1-1/2) to one (1) vertical in soils of low
plasticity, cuts of any height in highly plastic soils shall be as
recommended in the engineer's soil report.
(3) Fill Slopes. Fill using non-expansive material shall not be steeper
in slope than the ratio of two (2) horizontal to one (1) vertical,
or one and one-half (1-1/2) horizontal to one (1) vertical in areas
recommended in the engineer's soil report.
(4) Distance from Adjoining Property Line. The horizontal distance from
the top of a cut slope or the bottom of a fill slope to an existing
adjoining property line shall not be less than as follows:
Height of Cut or Fill
|
Distance from Adjoining Property Line
(in feet)
|
---|
0 feet to 4 feet
|
2
|
More than 4 feet to 8 feet
|
4
|
More than 8 feet to 15 feet
|
6
|
More than 15 feet
|
8
|
(5) Modifications. These requirements may be modified by the County Engineer
when cuts or fills are supported by retaining walls approved by the
Engineering Division or when the permittee submits an engineer's soils
report stating that the soil conditions will permit modifications,
or when warranted by additional engineering data.
(b) Area
Opened. The maximum area of land that may be opened for grading or
grubbing at any one (1) time is ten (10) acres. The area of land that
may be opened shall not exceed ten (10) acres unless detailed plans
and schedules are approved by the County Engineer that document or
demonstrate the ability to control dust, erosion and pollution and
to minimize storm damage, and authorization is issued by the State
of Hawai'i Department of Health under the provisions of the National
Pollutant Discharge Elimination System (NPDES) Permit program. The
permittee's drainage and erosion control plan shall be designed to
ensure that the grading or grubbing activities will not cause or contribute
to a violation of the State's basic water quality criteria (Hawai'i
Administrative Rules, Section 11-54-04). There shall also be procedures
established for the maintenance of, inspections, and modifications
to the system of erosion and sediment controls for the site as prescribed
and approved by the County Engineer to prevent water quality violations.
To control fugitive dust, measures such as the use of water wagons,
sprinkler systems and dust fences shall be used to minimize any visible
dust emissions from the construction site. If these measures do not
prove to be effective, or if significant dust, erosion, pollution
or storm damage problems occur, the County Engineer shall reduce the
permissible open area to reasonably control and minimize such dust,
erosion, pollution or storm damage problems.
(c) Fills.
The requirements of Paragraphs (1), (2), and (3) of this Subsection
may be modified if the permittee submits an engineer's soils report
recommending criteria for the proposed fill for its intended use,
and the modifications are approved by the County Engineer.
(1) Fill material shall be selected to meet the requirements and conditions
of the particular fill for which it is to be used. The fill material
shall not contain trees, timber, plants, shrubbery, grass, and woody
vegetation matter. Fill within the shoreline setback area as established
by the Planning Department shall be of material compatible with the
marine environment. The use of soil as fill is prohibited within any
shoreline area, as defined by Sec. 205A-1, Haw. Rev. Stat., except
for sand, as defined herein.
(2) Preparation of Ground Surface. Before placing fill or stockpiling,
the natural ground surface shall be prepared by removing the vegetation
and, if required by the County Engineer, shall be notched by a series
of benches or have subsurface drains installed, or both. No fill shall
be placed over any water spring, marsh, refuse dump, nor upon a soft,
soggy or springy foundation.
(3) Placement and Compaction. Fill materials shall be spread and compacted
in a series of eight (8) inch layers (maximum) when compacted. Except
for slopes, the fill shall be compacted to ninety percent (90%) of
maximum density as determined by the most recent ASTM Soil Compaction
Test D1557 or AASHO T180.
(d) Vegetation.
Whenever feasible, natural vegetation and top soil shall be retained.
Trees, timber, plants, shrubbery and other woody vegetation, when
displaced shall not be stored or deposited along the banks of any
stream, river or natural watercourse. After being displaced, the vegetation
shall be disposed of or removed from the site at the earliest reasonable
time, conforming to State Health Department Rules and availability
of County or private solid waste facilities as they exist at that
time, except where the County Engineer allows for the mulching of
the greenwaste and its re-deposit onto the site.
(e) Drainage
Provisions. Adequate provisions shall be made to prevent surface waters
from damaging the cut face of an excavation or the sloped surfaces
of a fill. Proper drainage shall be provided to prevent the unwanted
accumulation or retention of surface water. The County Engineer may
require the drainage structures and pipes to be constructed or installed,
which will reasonably minimize erosion damage and satisfactorily carry
off surface waters. The flow of any existing and known natural underground
or surface drainage shall not be impeded or changed so as to cause
damage to surrounding properties.
(f) Debris
Prohibited. No person shall perform any grading operations so as to
cause falling rocks, soil or debris in any form to fall, slide or
flow onto adjoining properties.
(g) No
grubbing or grading shall take place within the Special Management
Area (SMA) or the Shoreline Setback area, without first obtaining
approval of an SMA and/or Shoreline Setback Variance permit, as required
by the County Planning Department. Any grading of a coastal dune within
the shoreline area or a frontal dune is prohibited, except that where
a permit is issued under this Article, sand may be imported and placed
on the area of the coastal dune mauka of the shoreline to rebuild
or enhance the protective capacity and environmental quality of the
coastal dune.
(h) Hours
of Operation. No work shall be done between the hours of 7:00 p.m.
and 7:00 a.m. Monday through Friday, and no work shall be done on
Saturdays, Sundays and holidays without the prior written permission
of the County Engineer.
(i) Water
and Air Pollution Control. All operations shall be performed in conformance
with the applicable provisions of the Water and Air Pollution Control
and Water Quality Standards contained in the Administrative Rules,
Department of Health, State of Hawai'i, on Air and Water Pollution
Control and Water Quality Standards.
(j) Report
after Grading. When grading involves cuts or fills for which an engineer's
soils report is required, the permittee shall submit a certification
from the soil's engineer that the work was done in conformity to this
Article and the engineer's soils report. The report after grading
shall contain information including but not limited to the following:
engineering data of the fill material used; how it was placed and
compacted; moisture during compaction; compacted density; preparation
of the ground to be filled on; subdrains and other pertinent features
of the cut or fill necessary for its stability.
(k) Notification of Completion. The permittee or his/her agent shall notify the County Engineer or his/her representative when the grading operation is ready for final inspection. Certificate of completion shall be given upon completion and inspection of all work including installation of all drainage structures and their protective devices, completion of all planting in conformance with the approved plans and specifications, and the submission of the required reports and as-built grading plans whenever the completed work contains approved deviations from the original plans. Certificate of completion shall not be construed as relieving permittee from any of the requirements set out in Section
22-7.16.
(Ord. No. 262, July 23,
1975; Sec. 22-7.17, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) Any
person performing or causing to be performed any excavation or fill
shall, at his or her own expense, provide the necessary means to prevent
the movement of earth of the adjoining properties, to protect the
improvements thereon, and to maintain the existing natural grade of
adjoining properties. All grading and excavation work for which a
permit is required shall be performed by a licensed contractor holding
a Type A or C-17 Contractor's License.
(b) Any
person performing or causing to be performed any excavation or fill
shall be responsible for the maintenance or restoration of street
pavements, sidewalks and curbs, and public utility facilities that
may be affected by grading operations. The maintenance or restoration
of street pavements, sidewalks and curbs shall be performed in accordance
with the requirements of the County of Kaua'i and the maintenance
and restoration of public utility facilities shall be in conformity
with the standards of the public utility companies affected.
(c) Any
person depositing or causing to be deposited, any silt or other debris
in ditches, watercourses, drainage facilities, and public roadways,
shall remove the silt or other debris. In case the person shall fail,
neglect or refuse to comply with the provisions of this Section within
twenty-four (24) hours after written notice, served upon him or her,
either by mail or by personal service, the County Engineer may proceed
to remove the silt and other debris or to take any other action he
or she deems appropriate. The costs incurred for any action taken
by the County Engineer shall be payable by the person or his or her
sureties.
(d) At
any stage of the grading, grubbing or stockpiling work, if the County
Engineer finds that further work as authorized by an existing permit
is likely to create soil erosion problems or to endanger health, safety
or property, he or she may require safety precautions, which may include
but shall not be limited to the construction of flatter exposed slopes;
the construction of additional silting or sediment basins, drainage
facilities or benches; removal of rocks, boulders, debris and other
dangerous objects, if dislodged, are likely to cause injury or damage;
and the construction of fences or other suitable protective barriers.
(e) At
any stage of the grading, grubbing or stockpiling operations, if further
work as authorized by an existing permit is likely to create dust
problems which may jeopardize health, property or the public welfare
as determined by the State Department of Health in consideration of
the air pollution control standards and regulations, the County Engineer
may require additional dust control precautions and, if these additional
precautions are not effective in controlling dust, may stop all operations.
These additional dust control measures may include, but are not limited
to, sprinkling water, applying mulch treated with bituminous material,
and applying hydro mulch.
(Ord. No. 262, July 23,
1975; Sec. 22-7.18, R.C.O. 1976; Ord. No. 695, August 28, 1995; Ord. No. 808, October
10, 2003)
(a) Each
permit issued under this Article shall be deemed to authorize the
County Engineer to enter upon and to inspect the grading, grubbing
or stockpiling operations, after at least twenty-four (24) hours advance
notice of the inspection is provided to the permittee. If the permittee
expressly refuses permission for the inspection, the County Engineer
shall obtain a warrant before proceeding with such inspection. This
Section shall not be construed to invalidate unannounced inspections
authorized by a warrant or to invalidate unannounced and warrantless
inspections where exigent circumstances exist.
(b) The
permittee shall notify the County Engineer at least five (5) business
days before the permittee or his or her agent begins any grading,
grubbing or stockpiling. A copy of the permit, approved plans and
specifications for grading, grubbing or stockpiling shall be made
available at the request of the inspector.
(c) If
the County Engineer finds that the work is not being done in conformance
with this Article, the approved plans, or in accordance with accepted
practices, the person in charge of the work shall be notified immediately
of the nonconformity and of the corrective measures to be taken. Grading,
grubbing, and stockpiling operations shall cease until corrective
measures have been taken. If grading, grubbing, and stockpiling operations
commence before corrective measures have been approved, the County
Engineer shall report the violation to the Prosecuting Attorney for
appropriate criminal action.
(Ord. No. 808, October
10, 2003)
In addition to any criminal penalties, any person violating this Article shall be subject to civil penalties as set forth herein. Within five (5) working days of the notification issued pursuant to Sec.
22-7.19(c), the County Engineer shall have the person served, by mail or personal delivery, with a notice of violation and order, pursuant to this Article and such administrative rules as the County Engineer may adopt.
(a) Contents
of the Notice of Violation. The notice shall include at least the
following information:
(2) Name and address of the person noticed;
(3) Section number of the provision or rule, or the number of the permit
that has been violated;
(5) Location and date(s) of the violation, to the extent possible.
(b) Contents
of the Order. The order may require the person to do any or all of
the following:
(1) Cease and desist from the violation;
(2) Correct the violation at the person's own expense, before a date
specified in the order;
(3) Pay a civil fine not to exceed ten thousand dollars ($10,000.00) per day for each day in which the violation persists; or pay a monitoring fee not to exceed one percent (1%) of the project cost as provided in Section
22-7.12(a) of this Article.
(c) Any
person who has previously violated this Article shall be fined not
less than one thousand dollars ($1,000.00).
(d) The
order shall state that:
(1) It may be appealed within thirty (30) days to an administrative hearing
and if not so appealed, it shall become final thirty (30) days after
the date of its mailing or delivery; and
(2) That the State of Hawai'i Department of Commerce and Consumer Affairs
(Contractors License Board) may be notified of the existence of the
violation, upon finality of the order.
(e) Effect of Order; Right to Appeal. The provisions of the order issued by the County Engineer under this Section shall become final thirty (30) days after the mailing or delivery of the order. The person may appeal the order pursuant to Section
22-7.23 of this Article. However, such appeal shall not stay any provision of the order.
(Ord. No. 808, October
10, 2003)
(a) It
shall be unlawful for any person to do any act forbidden, or to fail
to perform any act required, by the provisions of this Article. Any
person convicted of violating any provision of this Article shall
be guilty of a misdemeanor. A separate offense is committed upon each
day during or on which a violation occurs or continues.
(b) Continuing
Violation. The failure to comply with the requirements set forth under
the provisions of this Article shall be deemed a new offense for each
day of such noncompliance.
(c) If
the person fails to comply with the contents of the order issued pursuant
to Sec. 22-7.20(b) within the specified time, the County Engineer
shall refer the case to the Prosecuting Attorney for appropriate criminal
action, except if the case is pending appeal pursuant to Sec. 22-7.23.
In the case of an appeal, all affirmed violations shall be immediately
forwarded to the Prosecuting Attorney.
(Ord. No. 808, October
10, 2003)
(a) Whenever
the County Engineer determines that existing grading, grubbing, or
stockpiling is or may become a hazard to public health and safety,
endangers property or natural resources, or adversely affects the
safety, use, or stability of a public way or drainage channel, the
owner or other person in control of the property upon which the hazardous
condition arose, upon receipt of notice in writing from the County
Engineer, shall commence correction of the hazardous condition within
twenty-four (24) hours.
(b) If the owner or other person in control of the property upon which the hazardous condition arose fails to comply therewith, or if through reasonable efforts the County Engineer is unable to contact either one of them, then the County Engineer may cause the hazardous condition to be corrected at their expense— jointly and severally. If the owner or other person in control of the property within thirty (30) days thereafter fails, neglects, or refuses to pay the County the expense incurred thereby, the County Engineer may add the cost to any County taxes, fees, or charges, as provided in Section
22-7.24 of this Article.
(c) If
grading, grubbing, or stockpiling work is necessary to avoid imminent
substantial harm to public health and safety, property or natural
resources, the County Engineer may waive the requirements of this
Article.
(Ord. No. 808, October
10, 2003)
(a) Administrative
Appeals. Any person aggrieved by a decision of the County Engineer
in the administration of this Article may, within thirty (30) days,
appeal the decision to a hearings officer appointed by the County
Engineer or the Building Board of Appeals if the Building Code so
authorizes. The hearings officer or Building Board of Appeals may
affirm the decision of the County Engineer or may reverse or modify
the decision if the decision is:
(1) In violation of this Article or other applicable law;
(2) Clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or
(3) Arbitrary, or capricious, or characterized by an abuse of discretion
or clearly unwarranted exercise of discretion.
(b) Hearings
Officer. The County Engineer shall have the discretion to appoint
a hearings officer, who shall not be an employee of the Department
of Public Works.
(c) The
hearings officer or the Building Board of Appeals may not waive the
requirements of this Article.
(d) The
County Engineer shall adopt rules of procedure for the administration
of this Section, pursuant to Hawai'i Revised Statutes Chapter 91.
(Ord. No. 808, October
10, 2003)
(a) Collection
of Unpaid Civil Fines. In addition to any other procedures for the
collection of unpaid civil fines available to the County by law, the
County may add unpaid civil fines as herein defined to any County
taxes, fees or charges, except for residential water or sewer charges,
if the person(s) or entity fined have exhausted all appeal rights,
including judicial appeal rights pursuant to Hawai'i Revised Statutes
91-14.
(b) Judicial
Enforcement of Order. The County Engineer may institute a civil action
in any court of competent jurisdiction for the enforcement of any
order issued pursuant to this Section. Where the civil action has
been instituted to enforce the civil fine imposed by said order, the
County Engineer need only show that the notice of violation and order
were served, that a civil fine was imposed, the amount of the civil
fine imposed, and that the fine imposed has not been appealed in a
timely manner and has not been paid.
(Ord. No. 808, October
10, 2003)
All County departments, officials, and public employees vested
with the duty or authority to issue permits, licenses, or certificates
of occupancy shall conform to the provisions of this Article, and
shall not issue permits, licenses, or certificates of occupancy for
construction, development, uses, or other purposes if there is a conflict
with the provisions of this Article. No such permits, licenses, or
certificates of occupancy shall be issued for any property that has
outstanding violations of this Article. Any permits, licenses, or
certificates of occupancy, if issued in conflict with the provisions
of this Article, shall be void.
(Ord. No. 808, October
10, 2003)
The provisions of this Article shall not be construed to relieve
or alleviate the liability of any person for damages resulting from
performing, or causing to be performed, any grading, grubbing or stockpiling
operation. The County and its officers and employees shall be free
from any liability, cost or damage that may accrue from any grading,
grubbing or stockpiling or any work connected therewith, authorized
by this Article.
(Ord. No. 808, October
10, 2003)
The County Engineer shall be empowered to promulgate rules and
regulations pursuant to Hawai'i Revised Statutes Chapter 91, for the
implementation of the provisions of this Article.
(Ord. No. 808, October
10, 2003)