§15-22-1  General purposes.  (a)  The legislature of the State of Hawaii, by chapter 206E, HRS, established the Kakaako community development district (hereinafter "Kakaako district").  In so doing, the legislature determined that there was a need for replanning, renewal, or redevelopment of that area.  The legislature found the following respecting the Kakaako district:
(1) The Kakaako district is centrally located in Honolulu proper, in close proximity to the central business district, the government center, commercial, industrial, and market facilities, major existing and contemplated transportation routes and recreational and service areas;
(2) The Kakaako district, because of its present function as a service and light industrial area, is relatively underdeveloped and has, especially in view of its proximity to the urban core where the pressure for all land uses is strong, the potential for increased growth and development that can alleviate community needs such as low- or moderate-income housing, parks and open space, and commercial and industrial facilities;
(3) The Kakaako district, if not redeveloped or renewed, has the potential to become a blighted and deteriorated area.  Because of its present economic importance to the State in terms of industry and subsequent employment, there is a need to preserve and enhance its value and potential; and
(4) Kakaako has a potential, if properly developed and improved, to become a planned new community in consonance with surrounding urban areas.
 (b) The legislature declared further that there exists within the State vast, unmet community development needs, such as:
(1) Suitable housing for persons of low or moderate income;
(2) Sufficient commercial and industrial facilities for rent;
(3) Residential areas which have facilities necessary for basic livability, such as parks and open space; and
(4) Areas which are planned for mixed uses.
 The legislature declared that existing laws and private and public mechanisms have either proven incapable or inadequate to meet these needs.  The legislature called upon the Hawaii community development authority to provide a new, innovative form of development and regulation to meet these needs.
 (c) The legislature authorized and empowered the Hawaii community development authority to develop a community development plan for the district.  It noted that the plan should include a mixed-use district whereby industrial, commercial, residential, and public uses may coexist compatibly in a vertical as well as horizontal mixture within a single development lot.  The legislature further directed that in planning for such mixed uses, the authority shall also respect and support the present function of Kakaako as a major economic center, providing significant employment in such areas as light industrial, wholesaling, service, and commercial activities.
 (d) The legislature further authorized and empowered the authority to establish and adopt community development rules under chapter 91, HRS, on health, safety, building, planning, zoning, and land use which shall supersede all other inconsistent ordinances and rules relating to the use, zoning, planning, and development of land and construction thereon.
 (e) In accordance with the declarations of the legislature, the authority has developed community development plans for the Kakaako district.  As an integral part of implementing these plans, and in compliance with the mandate of the legislature, the authority has developed these innovative community development rules for the Kakaako district.
 (f) It is the intent of the authority that these rules shall be established and adopted to implement the purposes and intent of the legislature as set forth in chapter 206E, HRS.  It is the further intent of the authority that these rules shall implement the policies and programs relating to the Kakaako district as set forth in the provisions of the community development plan.
 (g) So that Kakaako can be developed as an attractive and desirable urban community, the authority shall interpret these rules to encourage flexibility of design.  [Eff 9/8/86, comp 1/28/88, am and comp 2/24/90, am 1/13/00] (Auth:  HRS §§206E-4, 206E-5, 206E-7,) (Imp:  HRS §§206E-1, 206E-4, 206E-5, 206E-7)

Historical note:  §15-22-1 is based substantially upon §15-17-1.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-2  Development guidance policies.  The development guidance policies governing the authority's actions in the Kakaako district have been set forth by the legislature in section 206E-33, HRS.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90] (Auth:  HRS §206E-33) (Imp:  HRS §206E-33)

Historical note:  §15-22-2 is based substantially upon §15-17-2.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-3  Title.  These rules shall be known and may be cited as the Kakaako community development district rules for the mauka area.  [Eff 9/8/86, comp 1/28/88, am and comp 2/24/90, am 1/13/00] (Auth:  HRS §§206E-5, 206E-7) (Imp:  HRS §§206E-5, 206E-7)

Historical note:  §15-22-3 is based substantially upon §15-17-3.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-4  Plan incorporated by reference.  The mauka plan, is hereby incorporated by reference and made a part of this chapter.  [Eff 9/8/86, comp 1/28/88, am and comp 2/24/90, am 8/16/99] (Auth:  HRS §206E-5) (Imp:  HRS §206E-5)

Historical note:  §15-22-4 is based substantially upon §15-17-4 [Eff 2/27/82; am 3/29/86; R 9/8/86] and §15-17-214 [Eff 10/10/83; am 3/29/86; R 9/8/86]
 

 §15-22-5  Definitions.  Except as otherwise stated in this chapter, all of the definitions contained in the land use ordinance of the city and county of Honolulu are by reference incorporated herein and made a part hereof.  As used in this chapter, the following words and terms shall have the following meanings unless the context shall indicate another or different meaning or intent:
 "Ancillary assisted living amenities" means those components that are necessary to the operation and function of an assisted living facility and are in addition to
 typical amenities that would not otherwise be provided in multi-family residential projects;
 "Arcade" means a protected walkway which provides public pedestrian access contiguous to a building.  It is open on at least one long dimension, except for structural columns, and has an average unobstructed ceiling height of at least twelve feet.  It shall have a clear walkway width of at least twelve feet and not less than five hundred square feet of covered area, including the area occupied by the structural columns.  An arcade is not more than eighteen inches above adjoining grade;
 "Assisted living administration" means the coordination of services to residents in their living units, ancillary assisted living amenities, or nursing facilities;
 "Assisted living facility" means a combination of housing, health care services, and personalized supportive services designed to respond to individual needs, to promote choice, responsibility, independence, privacy, dignity, and individuality".  This facility is a building complex offering dwelling units to individuals and services to allow residents to maintain an independent assisted living lifestyle.  The environment of an assisted living facility is one in which meals are provided, staff are available on a 24-hour basis and services are based on the individual needs of each resident.  Each resident, family members, and others work together with facility staff to assess what is needed to support the resident in his/her greatest capacity for living independently.  The facility is designed to maximize the independence and self-esteem of limited-mobility persons who feel that they are no longer able to live on their own.  If provided, nursing facilities should serve the residents and the general public;
 "Authority" means the Hawaii community development authority established by section 206E-3, HRS;
 "Awning" means a temporary shelter supported entirely from the exterior wall of a building;
 "Decks" mean the roofs of platforms;
 "Development" means the construction of a new building or other structure on a development lot, the relocation of an existing building on another development lot, or the use of a tract of land for a new use, or the enlargement of an existing building or use;
 "Development lot" means any lot or a combination of lots developed in accordance with the provisions of these rules;
 "Duplex unit" means a building containing one dwelling unit on a single zoning lot which is to be attached on a side or rear property line with another dwelling.  The dwellings shall be structurally independent of each other and attached by means of a boundary wall.  The attachment of the wall shall not be less than fifteen feet or fifty per cent of the longer dwelling on the property line, excluding carports or garages, whichever is the greater length.  In lieu of construction with a boundary wall, both dwellings shall be built up independently to the property line.  The maximum building area shall be fifty per cent of the zoning lots;
 "Dwelling, detached" means a building containing one or two dwelling units, entirely surrounded by yards or other separation from buildings on adjacent lots.  Dwelling units in a two-family detached dwelling may be either on separate floors or attached by a carport, garage or a solid wall without openings which shall not be less than fifteen feet or fifty per cent of the longer dwelling.  The maximum building area shall be fifty per cent of the zoning lot;
 "Eleemosynary organization" means a society, association, or corporation engaged in religious, charitable, educational, scientific, literary, or other benevolent purposes, whose charter or other enabling act contains a provision that, in the event of dissolution, the land owned by such society, association, or corporation shall be distributed to another society, association, or corporation engaged in religious, charitable, educational, scientific, literary, or other benevolent purposes;
 "Executive director" means the executive director of the authority;
 "Floor area" means the area of the several floors of a building excluding unroofed areas measured from the exterior faces of the exterior walls or from the center line of party walls separating portions of a building.  The floor area of a building, or portion thereof, not provided with surrounding exterior walls shall be the usable area under the horizontal projection of the roof or floor above, including but not limited to elevator shafts, corridors, and stairways.  Excluded from the floor area are parking facilities and loading spaces, including their driveways and accessways, lanais or balconies of dwelling or lodging units which do not exceed fifteen per cent of the total floor area of the unit to which they are appurtenant, attic areas with head room less than seven feet, covered rooftop areas, and rooftop machinery equipment rooms and elevator housings on the top of buildings;
 "Floor area ratio" or "(FAR)" means the ratio of floor area to land area expressed as a per cent or decimal which shall be determined by dividing the total floor area on a development lot by the lot area of that development lot;
 "Ground elevation" means the finished grade of a sidewalk adjacent to any front yard property line or the adjacent street right-of-way line if no sidewalk exists;
 "Hawaii capital district" means a special district established by Article 7 of the land use ordinance;
 "Kakaako community development district plan", "Kakaako community development plan", or "Kakaako plan", means the development plans referred to as the "mauka area plan" and the "makai area plan";
 "Kakaako special design district ordinance" means Ordinance No. 80-58, as amended by Ordinance No. 81-8, of the city and county of Honolulu;
 "Lanai" or "balcony" means an accessory area to a dwelling or lodging unit, with one or more sides permanently open to the exterior except for a railing or parapet not exceeding four feet in height, with such open side or sides constituting at least twenty-five per cent of the perimeter thereof, and is accessible solely from the dwelling or lodging unit to which it is appurtenant;
 "Land use ordinance" or "LUO" means the Land Use Ordinance adopted by Ordinance No. 86-96 of the city and county of Honolulu;
 "Land use zone" means any zone delineated on the land use plan map of the mauka area plan;
 "Lot" means a duly recorded parcel of land which can be used, developed or built upon as a unit;
 "Makai area" means that portion of the Kakaako community development district, established by section 206E-32, HRS, which is bounded by Ala Moana Boulevard, inclusive from Punchbowl Street to Piikoi Street, from Piikoi Street to its intersection with the Ewa boundary of Ala Moana Park also identified as the Ewa boundary of tax map key 2-3-37: 01; the Ewa boundary of tax map key 2-3-37: 01 from its intersection with Ala Moana Boulevard to the shoreline; the shoreline from its intersection with the property line representing the Ewa boundary of property identified by tax map key 2-3-37: 01 to the property line between Pier 2 and Pier 4 from its intersection with the shoreline to Ala Moana Boulevard; and Ala Moana Boulevard from its intersection with the property line between lands identified by Pier 2 and Pier 4 to Punchbowl Street. The makai area also includes that parcel of land identified by tax map key 2-1-14: 16, situated mauka of Piers 6 and 7 and makai of Nimitz Highway, being the site for the existing Hawaiian Electric power plant and related facilities;
 "Makai area plan" means the development plan for the makai area of the Kakaako community development district adopted on September 29, 1998;
 "Mauka area" means that portion of the Kakaako community development district, established by section 206E-32, HRS, which is bounded by King Street; Piikoi Street from its intersection with King Street to Ala Moana Boulevard; Ala Moana Boulevard, exclusive, from Piikoi Street to its intersection with Punchbowl Street; and Punchbowl Street to its intersection with King Street;
 "Mauka area plan" means the development plan for the mauka area of the Kakaako community development district originally adopted on February 16, 1982, as amended on January 10, 1983, May 18, 1984, September 6, 1984, April 26, 1985, August 17, 1985, July 15, 1988, June 28, 1989, January 18, 1990, July 16, 1990, September 5, 1997, and August 3, 1999;
 "Median income" means the median annual income, adjusted for family size, for households in the city and county of Honolulu as most recently established by the United States Department of Housing and Urban Development for the Section 8 Housing Assistance Payments Program.
 "MUZ" means a mixed-use zone in which activities from two or more of the categories of residential, commercial and industrial uses are permitted or may be required;
 "Nonconforming use" means an activity using land, buildings, signs, or structures for purposes which were legally established prior to February 27, 1982 but would not be permitted as a new use in any of the land use zones established by this chapter;
 "Nursing facilities" means skilled nursing or intermediate care facilities (generally defined in Section 11-94-2 of the Hawaii administrative rules) and may include assisted living administration functions and ancillary assisted living amenities;
 "Open space" means noncontiguous, unbuilt and unobstructed spaces at grade between and adjacent to public and private structures;
 "Open space areas" mean noncontiguous, unbuilt and unobstructed spaces between and adjacent to public and private structures which may be at grade or on upper levels;
 "Open space systems" mean continuous networks of open space that result from public rights-of-way, view corridors, building setback areas, parks and private open spaces;
 "Platforms" mean those parts of mixed-use developments limited to forty-five feet in height.  The platforms may
 contain extensive parking areas as well as other permitted uses;
 "Preservation" means keeping a particular property in its present condition.  The property may already be in a restored or rehabilitated condition;
 "Protection" means undertaking actions or applying measures which will prevent the property from deterioration or loss or which will keep it from being destroyed or abused;
 "Public improvement" means any improvement, facility, or service, together with customary improvements and appurtenances thereto, necessary to provide public needs as:  vehicular and pedestrian circulation systems, storm sewers, flood control improvements, water supply and distribution facilities, sanitary sewage disposal and treatment, public utility and energy services;
 "Public project" means any project or activity of any county or agency of the state conducted to fulfill a governmental function for public benefit and in accordance with public policy;
 "Reconstruction" means the reproduction by new construction of a building, structure, object or parts thereof as it originally appeared;
 "Reflective surface" means any glass or other surface, such as polished metal, specified in the manufacturer's literature having reflectance (designated by such terminology as average daylight reflectance, visible light reflectance, visible outdoor reflectance, and comparable terms) of over thirty per cent;
 "Rehabilitation" means returning a property to a useful state, thus allowing it to be used while preserving those portions or features considered historically, architecturally, or culturally significant;
 "Restoration" means recovering accurately the authentic form and details of a property, or a structure and its setting, usually by renovating a later work, or replacing missing earlier work; and
 "Tower" means a single building form which may be situated above or abutting the platform.  [Eff 9/8/86, am and comp 1/28/88, am 7/28/88, am and comp 2/24/90, am 12/15/94, am 8/4/95, am 1/25/97, am 8/1/97, am 1/13/00] (Auth:  HRS §§206E-2, 206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-2, 206E-4, 206E-5, 206E-7)

Historical note:  §15-22-5 is based substantially upon §15-17-5 [Eff 2/27/82; am 1/21/83; am 5/11/85; am 3/29/86; R 9/8/86] and §15-17-201 [Eff 10/10/83; am 3/29/86; R 9/8/86]

  §15-22-6  Rules for construction of language.  The following rules of construction apply to the text of this chapter.
(1) The particular shall control the general;
(2) In case of any difference of meaning or implication between the text of this chapter and any caption, illustration, map, summary table, or illustrative table, the text shall control;
(3) The word "shall" is always mandatory and not discretionary.  The word "may" is permissive;
(4) Words used in the present tense shall include the future; and words used in the singular number shall include the plural, and the plural the singular, unless the context clearly indicates the contrary;
(5) A "building" or "structure" includes any part thereof;
(6) The phrase "used for" includes "arranged for", "designed for", "intended for", "maintained for", or "occupied for";
(7) The word "person" includes an individual, a corporation, a partnership, an incorporated association, or any other similar entity;
(8) Unless the context clearly indicates the contrary, where a rule involves two or more items, conditions, provisions, or events connected by the conjunction "and", "or", or "either...or", the conjunction shall be interpreted as follows:
(A) "And" indicates that all the connected items, conditions, provisions, or events shall apply.
(B) "Or" indicates that the connected items, conditions, provisions, or events may apply singly or in any combination.
(C) "Either...or" indicates that the connected items, conditions, provisions, or events shall apply singly but not in combination;
(9) The word "includes" shall not limit a term to the specified examples, but is intended to extend its meaning to all other instances or circumstances of kind or character.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90] (Auth:  HRS §§206E-4, 206E-7) (Imp:  HRS §§206E-4, 206E-7)

Historical note:  §15-22-6 is based substantially upon §15-17-6.  [Eff 2/27/82; R 9/8/86]

  §15-22-7  Establishment of the Kakaako community development district.  (a)  The Kakaako community development district was established by the legislature in 1976.  As originally established, the district included that area bounded by King Street, Piikoi Street from its intersection with King Street to Ala Moana Boulevard, Ala Moana Boulevard from Piikoi Street to its intersection with Punchbowl Street, and Punchbowl Street to its intersection with King Street.
 (b) The legislature, during its 1982, 1987 and 1990 sessions, revised the district's boundary to include an area of approximately 221 acres makai of Ala Moana Boulevard, also known as the "makai area".  The provisions of chapter 15-23, Hawaii Administrative Rules, shall apply to the makai area.  [Eff 9/8/86, comp 1/28/88, am and comp 2/24/90, am 1/13/00] (Auth:  HRS §206E-32) (Imp:  HRS §206E-32)

Historical note:  §15-22-7 is based substantially upon §15-17-7.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-8  Establishment and scope of controls.  (a)  In harmony with the purpose and intent of chapter 206E, HRS, these rules are established by the Hawaii community development authority for the mauka area of the Kakaako district controlling, regulating, and determining the area of lots; height of buildings; minimum yards and setbacks; required open spaces; the density of buildings; the location and amount of residential uses, commercial uses, industrial uses, public uses, and other appropriate uses; the location of buildings and other structures; requiring reserved housing units; requiring off-street parking and loading; requiring dedication of public facilities; architectural design; urban design; historic and cultural sites; circulation criteria; performance standards; and other appropriate regulations relating to land use, zoning, and planning for buildings and structures for all properties within the mauka area.
 (b) This chapter, together with the mauka area plan, shall govern all developments and use of properties within the mauka area.  In case of any discrepancy between the provisions of this chapter and the mauka area plan, this chapter shall control.
 (c) No building permit shall be issued for any development within the mauka area unless the development conforms to the provisions of the mauka area plan and this chapter.
 (d) All developments, proposed developments, and properties within the mauka area shall be subject to all of the provisions of this chapter and the mauka area plan.  This requirement shall apply notwithstanding the fact that at the effective date of this chapter, a city and county of Honolulu building permit has been applied for or has been issued for the developments, proposed developments, or properties; provided that such requirement shall not apply if a city and county of Honolulu building permit has been issued, substantial expenditures have been incurred, and substantial changes in the land have already occurred.  Substantial changes in the land shall be evidenced by substantial excavations for foundations.
 (e) No public improvement or project within the mauka area shall be initiated or adopted unless it conforms to and implements the mauka area plan and this chapter.
 (f) Except as otherwise specifically provided, the provisions of this chapter shall supersede the provisions of the city and county of Honolulu's development plan (Ordinance No. 81-79, as amended by Ordinance No. 85-46), the provisions of the Kakaako special design district ordinance, and the provisions of the land use ordinance as they all shall relate to properties within the mauka area.  The foregoing ordinances are hereby declared to be inconsistent with this chapter, and shall therefore be inapplicable to developments within the mauka area unless otherwise specifically stated.
 (g) Except as otherwise specifically stated in this chapter, all other rules, laws, and ordinances shall continue to remain applicable to the developments and properties within the mauka area.
 (h) All agencies of the city and state governments shall perform their duties, functions, and powers which affect the mauka area in accordance with the provisions of the mauka area plan and this chapter.
 (i) Project plans that have been approved as to project eligibility shall not be required to comply with the provisions of this chapter or the mauka area plan that have been amended subsequent to said approval and prior to construction.  However, construction not in compliance with said amended provisions shall be regarded as nonconforming for the purposes of this chapter.  [Eff 9/8/86, am and comp 1/28/88, am and comp 2/24/90] (Auth:  HRS §§206E-1, 206E-4, 206E-5, 206E-7, 206E-13, 206E-33) (Imp:  HRS §§206E-1, 206E-4, 206E-5, 206E-7, 206E-13, 206E-33)

 Historical note:  §15-22-8 is based substantially upon §15-17-9.  [Eff 2/27/82; am 1/21/83; R 9/8/86]
 

 §15-22-9  Methods of development.  The following types of development are permitted in each of the mixed-use zones:
(1) Base zone development:  Base zone developments shall comply with the applicable use, area, bulk, open space, density, parking, performance standards, and other appropriate rules as set forth in subchapters 2 and 3, and all other applicable rules.
(2) Planned development:  Planned developments shall comply with the provisions of subchapter 4 and all other applicable rules.  The planned development option permits greater densities and some negotiation and modification of requirements.  In exchange, certain public facilities, amenities, and reserved housing units must be provided by the developer where applicable.  [Eff 9/8/86, comp 1/28/88, am and comp 2/24/90] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-9 is based substantially upon §15-17-10.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-10  Project eligibility review.  (a)  The executive director may require, prior to receipt of any application for a base zone development or planned development permit, a project eligibility review of the development project to consider the project concept and its impact on infrastructure facilities such as streets, pedestrian and bicycle circulation, sanitary sewers, drainage and water, and to improve efficiency and avoid unnecessary delays and expense in processing the formal development application.  No development application for which a project eligibility review has been required shall be considered until the project eligibility review has been completed.
 (b) To conduct project eligibility review, the applicant shall provide sufficient information which the executive director may reasonably request, such as the proposed site plan, basic massing, floor area allocation and location of proposed uses, off-street parking and loading, pedestrian and vehicular circulation, topography (existing and proposed), and location of existing and proposed improvements and utilities.
 (c) To the extent possible, project eligibility review shall be completed within thirty days of the executive director's determination to require the review.
 (d) Base zone development or planned development shall not be approved unless adequate infrastructure facilities are or will be made available to service the proposed development prior to occupancy.  The executive director may consult with applicable governmental agencies regarding the adequacy of infrastructure requirements.  Any base zone development or planned development approval may be conditioned with the requirement that the concerns and requirements of appropriate governmental agencies relative to the adequacy of infrastructure facilities for the proposed development are satisfied.
 (e) Notwithstanding the requirement for a project eligibility review, potential applicants may seek preliminary review of their proposed developments with the executive director prior to submitting an application for base zone development or planned development permit.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-10 is based substantially upon §15-17-11.  [Eff 2/27/82; am 1/21/83; R 9/8/86]
 

 §15-22-11  Requirement of base zone development and planned development permit.  (a)  A building permit shall not be issued for any development within the mauka area until the developer has obtained from the authority either a base zone development permit or a planned development permit certifying that the development complies with this chapter and the mauka area plan.
 (b) An application to the authority for a base zone development or planned development permit shall include complete, detailed information showing that the development complies with all of the provisions of this chapter and the mauka area plan.  The authority may determine the nature and extent of the information required in the application.  [Eff 9/8/86, comp 1/28/88, am and comp 2/24/90] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-11 is based substantially upon §15-17-12.  [Eff 2/27/82; R 9/8/86]

  §15-22-12  Administration.  The authority, through its executive director, shall administer the provisions of this chapter.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-12 is based substantially upon §15-17-13.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-13  Appeals.  (a)  The authority shall hear and determine appeals from the actions of the executive director in the administration of this chapter.  An appeal shall be sustained only if the authority finds that the executive director's action was based on an erroneous finding of a material fact, or that the executive director had acted in an arbitrary or capricious manner or had manifestly abused his discretion.
 (b) All appeals and appeal procedures shall comply with the provisions of subchapter 7 of chapter 15-16, Hawaii Administrative Rules.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90, am 12/15/94] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-13 is based substantially upon §15-17-14.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-14  Variances.  (a)  The authority shall hear and determine petitions for varying the application of this chapter with respect to a specific parcel of land and building, and may grant a variance based on unnecessary hardship if the record shows that:
(1) The applicant would be deprived of the reasonable use of land or building if it were used only for the purpose allowed in that zone;
(2) The request of the applicant is due to unique circumstances and not the general conditions in the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into question; and
(3) The use sought to be authorized by the variance will not alter the essential character of the locality nor be contrary to the intent and purpose of this chapter or the mauka area plan.
 (b) The authority shall specify the particular evidence which supports the granting of a variance.  The authority may impose reasonable conditions in granting a variance.
 (c) Prior to making a determination on a variance application, the authority shall hold a public hearing.  The public hearing shall afford interested persons a reasonable opportunity to be heard.
 (d) Any variance granted under the provisions of this section shall automatically terminate if a development permit for a development requiring said variance has not been issued within two years from the date of granting the variance.  This time limit may be extended for a period not to exceed two years, on the authority's approval of the applicant's request and justification in writing for an extension, provided the request and justification are received by the authority at least one hundred days in advance of the automatic termination date of the variance and there are no material changes in circumstances which may be cause for denial of the extension.  Prior to making a determination on a request for extension, the authority shall hold a public hearing.
 (e) All requests for variances and the applicable requirements and procedures thereto shall comply with subchapter 5 of chapter 15-16, Hawaii Administrative Rules.  [Eff 9/8/86, am and comp 1/28/88, am 1/29/90, am and comp 2/24/90, am 12/15/94] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-14 is based substantially upon §15-17-15.  [Eff 2/27/82; am 5/31/84; R 9/8/86]
 

 §15-22-15  Nonconformities.  (a)  Except as otherwise provided, nonconforming uses of land and structures, and nonconforming lots, structures, parking and loading within the mauka area may be continued subject to the provisions hereinafter specified.
 (b) Any provision to the contrary notwithstanding, existing industrial and commercial uses which meet reasonable performance standards as contained in this chapter shall be permitted to continue in appropriate locations within the district.
 (c) Nonconforming use of land shall not:
(1) Be enlarged, increased or extended to occupy a greater area of land than was occupied on February 27, 1982;
(2) Continue if it ceases for any reason (except where government action impedes access to the premises) for a period of more than six consecutive months or for twelve months during any three-year period; or
(3) Be moved in whole or in part to any portion of the lot or parcel other than that occupied by the use on February 27, 1982;
 (d) The following are rules with respect to nonconforming uses of structure:
(1) Nonconforming use of structure shall not extend to any part of the structure which was not manifestly arranged or designed for the use on February 27, 1982; and a nonconforming use shall not be extended to occupy any land outside the structure.  The structure shall not be enlarged, extended, constructed, reconstructed, moved, or structurally altered;
(2) Nonconforming use of structure shall not continue if it is discontinued for twelve consecutive months or for eighteen months during any three-year period;
(3) If structural alterations are not made, any nonconforming use of a structure, or structure and premises in combination, may be changed to another nonconforming use of the same nature, or to a more restricted use, or to a conforming use; provided that change to a more restricted use or to another nonconforming use may be made only if the relation of the structure to the surrounding property is such that adverse effects on occupants and neighboring property will not be greater than if the original nonconforming use continued;
(4) On any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, roofs, fixtures, wiring or plumbing, to an extent not exceeding ten per cent of the current replacement value of the building; provided that the cubic content of the building as it existed on February 27, 1982, shall not be increased;
(5) Nothing contained in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of that official.
  (e) The following are rules with respect to nonconforming structures:
(1) A nonconforming structure may be continued as long as it remains otherwise lawful.
(2) A nonconforming structure may be altered in any way which does not increase its nonconformity.  However, a nonconforming structure may be enlarged without satisfying the public facilities dedication, open space and recreation space requirements of this chapter, provided that:
(A) The floor area of the proposed construction does not exceed twenty-five per cent of the floor area of the structure as it legally existed on February 27, 1982, or floor area of the structure at the time of application for a development permit excluding proposed demolitions, whichever is less;
(B) The proposed construction does not encroach into a required yard, except that roof overhangs, eaves, sunshades, sills, frames, beam ends, projecting courses, planters or awnings are allowed if they do not extend more than four feet from the existing structure.  However, in no event shall roof overhangs, eaves, sunshades, sills, frames, beam ends, projecting courses, or planters be closer than five feet from the property line; and awnings may extend over the property line above public property pursuant to the provisions of subsection (e)(6) below;
(C) The total floor area of the existing structure and the expansion do not exceed 1.5 FAR;
(D) The proposed construction does not exceed forty-five feet in height;
(E) The proposed construction does not adversely affect neighboring properties;
(F) The parking requirements of this chapter are satisfied for the area proposed to be constructed; and
(G) The area created by the proposed construction will be utilized for a permitted use.
(3) Any provision of these rules to the contrary notwithstanding, if a nonconforming structure is proposed to be partially acquired as part of an improvement district or other public project, the remainder of the structure may be demolished and the equivalent floor area reconstructed on the lot without satisfying the public facilities dedication, open space and recreation space requirements of this chapter, provided that the executive director shall find that the proposed reconstruction will be utilized for a permitted use, is practically and aesthetically superior to that which would otherwise result if the partially acquired structure was refaced at the new property line, and does not substantially increase nonconformity.  Any additional floor area created by the proposed reconstruction shall be subject to the applicable requirements of this chapter.
(4) If a nonconforming structure is destroyed by any means to an extent of more than fifty per cent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of these rules.
(A) Notwithstanding the foregoing provision, a nonconforming use which contains multiple units owned by owners under the authority of chapter 514A or chapter 421H, HRS, or units owned by a "cooperative housing corporation" as defined in chapter 421I, HRS, and which is destroyed by accidental means, including destruction by fire, other calamity, or Act of God, may be restored to its former condition and use, provided that such restoration is permitted by the Building Code and is started within two years;
(B) The burden of proof to establish that the destruction of a structure was due to accidental means as described above and that the structure was legally nonconforming shall be on the owner; and
(C) Except as otherwise provided herein, no nonconforming structure that is voluntarily razed or required by law to be razed by the owner therefore may thereafter be restored except in full conformity with the provisions of this chapter.
(5) If a nonconforming structure is moved for any reason, it shall thereafter conform to the applicable rules of this chapter after it is moved.
(6) Any awning may extend from a nonconforming structure over public property, provided approvals from the appropriate governmental agencies are secured and the awning does not extend more than four feet from the face of the building to which it is attached.
(7) Upon satisfaction of the zoning adjustment provision set forth in section 15-22-21:
(A) Walls and fences may project into or enclose any part of any front yard provided that the wall or fence does not exceed a height of six feet and front yard nonconformities already exist on the development lot;
(B) Other structures may be allowed in side and rear yards provided that the structure does not exceed a height of six feet and side or rear yard nonconformities already exist on the development lot.
 (f) The following are rules with respect to nonconforming lots:
(1) A nonconforming lot shall not be reduced in area, width or depth, except because of a government project that is intended to further the public health, safety or welfare or the intent of the mauka area plan.
(2) Any conforming structure or use may be constructed, enlarged, extended or moved on a nonconforming lot as long as all other requirements of this chapter are complied with.
 (g) Nonconforming parking and loading may be continued, subject to the following provisions:
(1) If there is a change in use which has a greater parking or loading requirement than the former use, additional parking and loading shall be required and shall not be less than the difference between the requirements for the former use and the proposed use.
(2) Off-street parking and loading requirements of this chapter shall be satisfied for additional floor area constructed. [Eff 9/8/86, comp 1/28/88, am 12/10/88, am and comp 2/24/90, am 12/15/94, am 1/13/00] (Auth:  HRS §§206E-4, 206E-5, 206E-7, 206E-33) (Imp:  HRS §§206E-4, 206E-5, 206E-7, 206E-33)

Historical note:  §15-22-15 is based substantially upon §15-17-17.  [Eff 2/27/82; am 1/21/83; am 5/31/84; am 3/13/86; R 9/8/86]

  §15-22-16  Application fees.  (a)  Applications for which a public hearing is required shall be accompanied by an application fee.  The application fee shall consist of the following:
(1) a nonrefundable processing fee of $200 to defray expenses associated with staff review, preparation of a report to the authority and for holding the public hearing; and
(2) a fee for the publication and transmittal of the hearing notice.  The cost of the hearing notice shall be refunded only if the public hearing notice has not been submitted to the publishing agency.  If a joint hearing is held for more than one permit requiring a public hearing for a single development project, only one public hearing fee shall be charged.
 (b) Government agencies shall be exempt from all fees required by this chapter.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90, am 12/15/94] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)
 

 §15-22-17  Violations.  (a)  The authority may maintain an action for an injunction to restrain any violation of this chapter or the mauka area plan, and may take lawful action to prevent or remedy any violation.
 (b) When a violation is found to have occurred the executive director shall require that corrective action be taken and may impose administrative penalties pursuant to subchapter 8 of chapter 15-16.  [Eff 9/8/86, comp 1/28/88, am and comp 2/24/90, am 10/3/94] (Auth:  HRS §206E-4, 206E-22) (Imp:  HRS §206E-22)

Historical note:  §15-22-17 is based substantially upon §15-17-18.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-18  Amendments.  This chapter may be amended pursuant to chapter 91, HRS, as may be necessary.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-18 is based substantially upon §15-17-19.  [Eff 2/27/82; R 9/8/86]
 

  §15-22-19  Severability.  (a)  If a court of competent jurisdiction finds any provision or provisions of this chapter to be invalid or ineffective in whole or in part, the effect of that decision shall be limited to those provisions which are expressly stated in the decision to be invalid or ineffective, and all other provisions of these rules shall continue to be separately and fully effective.
 (b) If a court of competent jurisdiction finds the application of any provision or provisions of this chapter to any zoning lot, building or other structure, or tract of land to be invalid or ineffective in whole or in part, the effect of that decision shall be limited to the person, property, or situation immediately involved in the controversy, and the application of any such provision to other persons, property, or situations shall not be affected.  [Eff 9/8/86, comp 1/28/88, comp 2/24/90] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)

Historical note:  §15-22-19 is based substantially upon §15-17-20.  [Eff 2/27/82; R 9/8/86]
 

 §15-22-20  Interpretation by the executive director.  (a)  In administering this chapter, the executive director may when deemed necessary render written interpretations to clarify or elaborate upon the meaning of specific provisions of this chapter for intent, clarity and applicability to a particular situation.
 (b) A written interpretation shall be signed by the executive director and include the following:
(1) Identification of the section of this chapter in question.
(2) A statement of the problem.
(3) A statement of interpretation.
(4) A justification statement.
 (c) A written interpretation issued by the executive director shall be the basis for administering and enforcing the pertinent section of this chapter.  All written interpretations rendered pursuant to these rules shall be public record, and shall be effective on the date signed by the executive director.  [Eff 12/15/94] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)
 

  §15-22-21  Zoning adjustments and waivers.  (a)  When a development standard contained in this chapter identifies specific circumstances under which a revision is appropriate, an applicant may request an adjustment to the standard.  An adjustment request is to be filed with supporting material specifying the requested adjustment and the manner in which the proposed project qualifies for the adjustment.  A request for adjustment shall be approved by the executive director upon finding that criteria for the adjustment specified in the standard are satisfied.
 (b) The strict application of the development or design standards of this chapter may be waived by the executive director for public uses and utility installations.  The granting of the waiver shall not, under the circumstances and conditions applied in the particular case, adversely affect the health or safety of persons, and shall not be materially detrimental to the public welfare or injurious to nearby property improvements.  The burden of proof in showing the reasonableness of the proposed waiver shall be on the applicant seeking the waiver.  [Eff 12/15/94] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)
 

 §15-22-22  Conditions for modification.  (a)  In order for the authority to consider modification of specific provisions, the applicant must demonstrate that:
(1) The modification would provide flexibility and result in a development that is practically and aesthetically superior to that which could be accomplished with the rigid enforcement of this chapter;
(2) The modification would not adversely affect adjacent developments or uses; and
(3) The resulting development will be consistent with the intent of the mauka area plan.
 (b) The authority shall specify the particular evidence which supports the granting of a modification and may impose reasonable conditions in granting a modification.  [Eff 1/25/97] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)
 

 §15-22-23  Automatic approvals.  (a)  The following development-related permits and approvals shall be deemed approved if no decisions are made granting or denying them within the following review periods:
(1) Master plan permits:  200 days;
(2) Planned development permits:  160 days;
(3) Base zone development permits:  160 days;
(4) Certificates of appropriateness:  160 days;
(5) Conditional use permits for off-site parking or joint use of parking:  160 days;
(6) Variances:  100 days;
(7) Modifications:  100 days;
(8) Certificates of project eligibility:  60 days;
(9) Conditional use permits for vacant land:  30 days;
(10) Zoning adjustments and waivers:  30 days; and
(11) Temporary use permits:  10 days.
 (b) The review period shall commence upon submission of a complete application.  In the event that no decision is rendered on the application within ten (10) days of the submission of a complete application, the applicant shall be notified of the date for automatic approval.
 (c) When a proposed project requires more than one permit and/or approval listed in subsection (a) of this section, the applicant may apply for some or all such approvals concurrently.  The review period for concurrent applications shall be based on the permit or approval with the longest review period.
 (d) Application filing procedures and preparation guidelines may be provided to assist applicants.  [Eff 1/13/00] (Auth:  HRS §§206E-4, 206E-5, 206E-7) (Imp:  HRS §§206E-4, 206E-5, 206E-7)