§205A-26 Special management area guidelines. In implementing this part, the authority shall adopt the following guidelines for the review of developments proposed in the special management area:
(1) All development in the special management area shall be subject to reasonable terms and conditions set by the authority in order to ensure:
(A) Adequate access, by dedication or other means, to publicly owned or used beaches, recreation areas, and natural reserves is provided to the extent consistent with sound conservation principles;
(B) Adequate and properly located public recreation areas and wildlife preserves are reserved;
(C) Provisions are made for solid and liquid waste treatment, disposition, and management which will minimize adverse effects upon special management area resources; and
(D) Alterations to existing land forms and vegetation, except crops, and construction of structures shall cause minimum adverse effect to water resources and scenic and recreational amenities and minimum danger of floods, wind damage, storm surge, landslides, erosion, siltation, or failure in the event of earthquake.
(2) No development shall be approved unless the authority has first found:
(A) That the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Such adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options;
(B) That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; and
(C) That the development is consistent with the county general plan and zoning. Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required.
(3) The authority shall seek to minimize, where reasonable:
(A) Dredging, filling or otherwise altering any bay, estuary, salt marsh, river mouth, slough or lagoon;
(B) Any development which would reduce the size of any beach or other area usable for public recreation;
(C) Any development which would reduce or impose restrictions upon public access to tidal and submerged lands, beaches, portions of rivers and streams within the special management areas and the mean high tide line where there is no beach;
(D) Any development which would substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast; and
(E) Any development which would adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats, or potential or existing agricultural uses of land. [L 1975, c 176, pt of §1; am L 1977, c 188, §10; am L 1979, c 200, §9; am L 1984, c 113, §2; am L 1994, c 3, §2]
Law Journals and Reviews
The Moon Court, Land Use, and Property: A Survey of Hawai`i Case Law 1993-2010. 33 UH L. Rev. 635 (2011).
Grant of permit overturned because findings required by paragraph (2) not made. 65 H. 506, 654 P.2d 874 (1982); 68 H. 135, 705 P.2d 1042 (1985).
Where Kihei-Makena community plan was part of Maui general plan and county planning director determined that developer’s proposed action was inconsistent with community plan, special management area permit application properly denied by director pursuant to paragraph (2)(C). 88 H. 108, 962 P.2d 367 (1998).
Absent a finding that impact on public facilities would result in a substantial adverse environmental or ecological effect, or render the development inconsistent with objectives, policies, and guidelines of Coastal Zone Management Act, planning commission’s finding that the development would have significant adverse effects and impact on existing highway system in area of the development did not provide a sufficient basis for denying permit petition. 9 H. App. 377, 842 P.2d 648 (1993).
Even if the development was shown to have a substantial adverse effect in accordance with the statute, planning commission was required under paragraph (2)(A) to determine whether that effect could be practicably minimized and, when minimized, whether the effect was clearly outweighed by public health, safety, or compelling public interests. 9 H. App. 377, 842 P.2d 648 (1993).
Paragraph (3)(D) mandated planning commission to protect and preserve more than just the view of the shoreline; the statute, by its very language, is intended to protect the view toward the sea even though the "shoreline" cannot be seen either because of intervening development or natural growth. 9 H. App. 377, 842 P.2d 648 (1993).