205A-22 Definitions. As used in this part, unless the context otherwise requires:

"Applicant" means any individual, organization, partnership, or corporation, including any utility and any agency of government.

"Authority" means the county planning commission, except in counties where the county planning commission is advisory only, in which case "authority" means the county council or such body as the council may by ordinance designate. The authority may, as appropriate, delegate the responsibility for administering this part.

"Department" means the planning department in the counties of Kauai, Maui, and Hawaii and the department of planning and permitting in the city and county of Honolulu, or other appropriate agency as designated by the county councils.

"Development" means any of the uses, activities, or operations on land or in or under water within a special management area that are included below:

(1) Placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste;

(2) Grading, removing, dredging, mining, or extraction of any materials;

(3) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land;

(4) Change in the intensity of use of water, ecology related thereto, or of access thereto; and

(5) Construction, reconstruction, demolition, or alteration of the size of any structure.

"Development" does not include the following:

(1) Construction or reconstruction of a single-family residence that is less than seven thousand five hundred square feet of floor area and is not part of a larger development;

(2) Repair or maintenance of roads and highways within existing rights-of-way;

(3) Routine maintenance dredging of existing streams, channels, and drainage ways;

(4) Repair and maintenance of underground utility lines, including but not limited to water, sewer, power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations;

(5) Zoning variances, except for height, density, parking, and shoreline setback;

(6) Repair, maintenance, or interior alterations to existing structures;

(7) Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers;

(8) Use of any land for the purpose of cultivating, planting, growing, and harvesting plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture or mariculture of plants or animals, or other agricultural purposes;

(9) Transfer of title to land;

(10) Creation or termination of easements, covenants, or other rights in structures or land;

(11) Final subdivision approval; provided that in counties that may automatically approve tentative subdivision applications as a ministerial act within a fixed time of the submission of a preliminary plat map, unless the director takes specific action, a special management area use permit if required, shall be processed concurrently with an application for tentative subdivision approval or after tentative subdivision approval and before final subdivision approval;

(12) Subdivision of land into lots greater than twenty acres in size;

(13) Subdivision of a parcel of land into four or fewer parcels when no associated construction activities are proposed; provided that any land that is so subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels;

(14) Installation of underground utility lines and appurtenant aboveground fixtures less than four feet in height along existing corridors;

(15) Structural and nonstructural improvements to existing single-family residences, where otherwise permissible;

(16) Nonstructural improvements to existing commercial structures; and

(17) Construction, installation, maintenance, repair, and replacement of emergency management warning or signal devices and sirens;

provided that whenever the authority finds that any excluded use, activity, or operation may have a cumulative impact, or a significant environmental or ecological effect on a special management area, that use, activity, or operation shall be defined as "development" for the purpose of this part.

"Special management area" means the land extending inland from the shoreline as delineated on the maps filed with the authority as of June 8, 1977, or as amended pursuant to section 205A-23.

"Special management area emergency permit" means an action by the authority authorizing development in cases of emergency requiring immediate action to prevent substantial physical harm to persons or property or to allow the reconstruction of structures damaged by natural hazards to their original form; provided that such structures were previously found to be in compliance with requirements of the Federal Flood Insurance Program.

"Special management area minor permit" means an action by the authority authorizing development the valuation of which is not in excess of $500,000 and which has no substantial adverse environmental or ecological effect, taking into account potential cumulative effects.

"Special management area use permit" means an action by the authority authorizing development the valuation of which exceeds $500,000 or which may have a substantial adverse environmental or ecological effect, taking into account potential cumulative effects.

"Structure" includes but is not limited to any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line.

"Valuation" shall be determined by the authority and means the estimated cost to replace the structure in kind based on current replacement costs, or in the cases of other development as defined above, the fair market value of the development. [L 1975, c 176, pt of 1; am L 1977, c 188, 6; am L 1979, c 200, 7; am L 1982, c 126, 1; am L 1983, c 124, 8; am L 1984, c 113, 1; am L 1991, c 129, 1; am L 1993, c 258, 4; am L 2001, c 169, 6; am L 2004, c 76, 2; am L 2011, c 153, 3; am L 2012, c 239, 2; am L 2014, c 111, 28; am L 2018, c 18, 6]

 

Attorney General Opinions

 

"Special management area" must be shoreline or coastal water related land. Att. Gen. Op. 75-18.

 

Case Notes

 

Where no express procedure provided in Maui charter or Maui special management area rules for appeal of Maui planning director's decision on a minor permit application to the Maui planning commission, and commission delegated authority to render final decision on minor permit applications to director pursuant to this section, director's decision not to process developer's application was a final decision equivalent to a denial of the application and was thus appealable under 91-14(a). 88 H. 108, 962 P.2d 367 (1998).

Where defendant's tour boat operation changed the intensity of use of water in the Hanalei special management area, defendant's tour boat operation constituted a "development", within the meaning of this section, that was not exempt from the coastal zone management act or special management area rules. 89 H. 400, 974 P.2d 40 (1999).

Special management area minor permit issued by county to public utility invalid and public utility required to obtain special management area use permit for its cellular telephone tower where county board of appeals finding that valuation of tower development did not exceed $125,000 was clearly erroneous. 90 H. 384, 978 P.2d 822 (1999).

Where land lease did not constitute a "development" under this chapter, trial court erred in ruling that valuation of cellular telephone tower development must include value of the land lease; instead, valuation consisted of the "current replacement cost" of the structures built. 90 H. 384, 978 P.2d 822 (1999).

Where developer's proposed subdivision fell within the definition of "development" found in this section, trial court correctly determined that a special management area use permit was required. 109 H. 384, 126 P.3d 1071 (2006).

"Development" includes that which is planned. 4 H. App. 304, 666 P.2d 177 (1983).

Where the appellant failed to file an appeal with the Maui planning commission regarding the county director of planning's issuance of a special management area minor permit, the doctrine of primary jurisdiction warranted dismissal of the case; the circuit court did not abuse its discretion in choosing to refrain from exercising jurisdiction. 132 H. 472 (App.), 323 P.3d 116 (2012).

Where the defendants contended that the case was moot because it pertained to the issuance of a special management area minor permit for an event that occurred prior to appeal, the appeal retained vitality because the questions presented were of public concern and, in the likely event that they recurred in the future, were of a nature that would likely become moot before they could be determined on appeal. 132 H. 472 (App.), 323 P.3d 116 (2012).

 

 

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