§205A-46 Variances.

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§205A-46 Variances.

(a)A variance may be granted for a structure or activity otherwise prohibited in this part if the authority finds in writing, based on the record presented, that the proposed structure or activity is necessary for or ancillary to:

(1)Cultivation of crops;

(2)Aquaculture;

(3)Landscaping; provided that the authority finds that the proposed structure or activity will not adversely affect beach processes and will not artificially fix the shoreline;

(4)Drainage;

(5)Boating, maritime, or watersports recreational facilities;

(6)Facilities or improvements by public agencies or public utilities regulated under chapter 269;

(7)Private facilities or improvements that are clearly in the public interest;

(8)Private facilities or improvements that will not adversely affect beach processes, result in flanking shoreline erosion, or artificially fix the shoreline; provided that the authority may consider any hardship that will result to the applicant if the facilities or improvements are not allowed within the shoreline area;

(9)Private facilities or improvements that may artificially fix the shoreline; provided that the authority may consider hardship to the applicant if the facilities or improvements are not allowed within the shoreline area; provided further that a variance to artificially fix the shoreline shall not be granted in areas with sand beaches or where artificially fixing the shoreline may interfere with existing recreational and waterline activities unless the granting of the variance is clearly demonstrated to be in the interest of the general public; or

(10)Moving of sand from one location seaward of the shoreline to another location seaward of the shoreline; provided that the authority also finds that moving of sand will not adversely affect beach processes, will not diminish the size of a public beach, and will be necessary to stabilize an eroding shoreline.

(b)Hardship shall be defined in rules adopted by the authority under chapter 91. Hardship shall not be determined as a result of county zoning changes, planned development permits, cluster permits, or subdivision approvals after June 16, 1989, or as a result of any other permit or approval listed in rules adopted by the authority.

(c)No variance shall be granted unless appropriate conditions are imposed:

(1)To maintain safe lateral access to and along the shoreline or adequately compensate for its loss;

(2)To minimize risk of adverse impacts on beach processes;

(3)To minimize risk of structures failing and becoming loose rocks, sharp or otherwise dangerous debris, or rubble on public property; and

(4)To minimize adverse impacts on public views to, from, and along the shoreline. [L 1986, c 258, pt of §1; am L 1989, c 356, §14; am L 1993, c 258, §6; am L 2020, c 16, §11]

Revision Note

"June 16, 1989" substituted for "the effective date of this Act" pursuant to §23G-15 .

Law Journals and Reviews

Eliminating the Hardship Variance in Honolulu's Shoreline Setback Ordinance: The City and County of Honolulu's Public Trust Duties as an Exception to Regulatory Takings Challenges. 43 UH L. Rev. 464 (2021).

Shoreline Hardening in Hawai`i: A Perspective from the Beaches. 43 UH L. Rev. 519 (2021).