Shoreline Setback Variance: Coastal Zone Management Program
A. Legal Authority
- Chapter 205A, HRS, Part III, as amended, Shoreline Setbacks
- Shoreline Setback Rules and Regulations of the County of Kauai, City and County of Honolulu, County of Maui, and County of Hawaii.
The purpose of the shoreline setback law is to regulate uses and activities within the shoreline area to preserve and protect the natural shore and open space and to protect against encroachment of structures which may disturb the natural processes of the shoreline and cause erosion of the shoreline.
The shoreline setback law establishes a permitting system in which all non-exempt structures must obtain a Shoreline Setback Variance (termed Shoreline Area Variance in Maui County), and meet certain guidelines and criteria. Shoreline is defined as the upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edges of vegetation growth or the upper limit of debris left by the wash of the waves. As defined, structure includes, but is not limited to, any portion of any building, pavement, road, pipe, flume, utility line, fence, groin, wall, or revetment.
C. Applicability to Aquaculture
Anyone proposing to construct a structure in the shoreline area or otherwise physically alter the shoreline area is required to obtain a Shoreline Setback Variance (or Shoreline Area Variance), unless otherwise exempted. The “shoreline area” includes, at least, all of the land area between the shoreline and the shoreline setback line (not less than 20 feet and not more than 40 feet inland). It may include the area between mean sea level and the shoreline (§205A-41, HRS) and be set back at distances greater than 40 feet (§205A-45, HRS, as amended) by county ordinance. In their recently amended rules relating to the shoreline area, Maui County extended shoreline setbacks to a distance of 150 feet in some areas (see current Maui County rules relating to the shoreline area for details).
The law prohibits most activities involving the mining or taking of sand, dead coral or coral rubble, rocks, soil or other beach or marine deposits from the shoreline area. No variance will be granted unless the following conditions are imposed, as appropriate:
- Maintain safe lateral access along the shoreline or adequately compensate for its loss;
- Minimize the risk of adverse impacts on beach processes;
- Minimize the risk of structures failing and becoming loose rocks or rubble on public property; and
- Minimize adverse impacts on public views to, from, and along the shoreline.
A Shoreline Setback Variance (or Shoreline Area Variance) may also be granted for a structure or activity otherwise prohibited if the granting authority finds in writing that, based on the record presented, the proposed activity is necessary for, or ancillary to, among other things cultivation of crops, aquaculture, or drainage (§205A-46, HRS, as amended).
D. Administering Department
The Shoreline Setback Variance (or Shoreline Area Variance) is administered by the respective county planning department.
County of Kauai
4444 Rice Street, Suite 473
Lihue, Kauai, Hawaii 96766
Web site: http://www.kauai.gov/planning
Department of Planning
Current Planning Division
County of Maui
250 South Main Street
Wailuku, Hawaii 96793
Web site: http://www.co.maui.hi.us/index.aspx?NID=1245
Department of Planning and Permitting
Land Use Permits Division
City and County of Honolulu
650 South King Street
Honolulu, Hawaii 96813
Web site: http://www.honoluludpp.org/permitinfo/ http://www1.honolulu.gov/council/ocs/roh/25.pdf
County of Hawaii
Aupuni Center 101
Pauahi Street, Suite 3
Hilo, Hawaii 96720
Web site: http://www.co.hawaii.hi.us/directory/dir_plan.htm
If the Shoreline Setback Variance (or Shoreline Area Variance) is processed alone or in conjunction with a Special Management Area Minor Permit, the granting authority is the Director of the administering department. If a Special Management Area Major Permit is required in conjunction with the Shoreline Setback Variance (or Shoreline Area Variance), both permit requests are forwarded to the county Planning Commission of the respective county for approval (on Oahu the City Council is the granting authority).
E. Information Requirements
An applicant for a Shoreline Setback Variance (or Shoreline Area Variance) is required to submit the completed application form, including project drawings and plans, and a Certified Shoreline survey showing the actual field location of the shoreline in relation to the position of the proposed facilities (see appropriate county web site for more details). To be valid, the survey must be prepared by a Registered Land Surveyor and confirmed by the Chairman of the Board of Land and Natural Resources. Detailed construction plans showing the design of the proposed structure and its relationship to property boundaries and existing topography in and adjacent to the subject property are also required.
An Environmental Assessment (EA) evaluating the potential impact of a proposed project will be required. Ask the respective county for guidelines on content. If, on the basis of the EA’s findings, it is determined that a significant impact may result from the proposed project, preparation of an Environmental Impact Statement (EIS) will be required. If an adequate EA and/or EIS have already been prepared for a proposed project in conjunction with some other permit requirement, preparation of a new document will not be required.
A written statement describing how a proposed project is necessary for, or ancillary to, aquaculture is also required. This statement should specifically address the relationship between aquaculture and each feature of the development proposal. Further, additional information may be required, depending on the project and the county.
F. Public Participation
A public hearing is conducted in conjunction with the request for a Shoreline Setback Variance (or Shoreline Area Variance). If a Special Management Area Use Permit is also required in connection with the development proposal, a joint public hearing will be held.
G. Process Time
Generally, the processing time for a Shoreline Setback Variance (or Shoreline Area Variance) varies with scale of the project proposal and the need for additional permits (e.g., an SMAP). Usually within 30 days of the official receipt of a complete application, the Director of the administering department assesses the impact of the project and determines the need for the preparation of an EIS. Within 45 days of the completion of the environmental requirement (i.e., an accepted EIS or if an EIS is not required a Negative Declaration), the administering department will hold a public hearing on the application. Within 45 days after the public hearing is held, the Director will make a written decision and forward it to the applicant. In cases where the variance application is being processed with an application for a Special Management Area Use Permit, the recommendation will be forwarded to the county Planning Commission (City Council on Oahu) a decision; denial, approval, or approval with conditions.
H. Sequence of Filing
If an SMAP is required in conjunction with the development proposal, the request for a Shoreline Setback Variance should be filed at the same time so that the applications can be processed concurrently.
If a Special Management Area Use Permit is required in conjunction with the development proposal, the request for a Shoreline Setback Variance is $600 minimum for a non-seawall application and $1,000 for a seawall in the City and County of Honolulu. In the County of Maui the amount for a permit is $550 and in the County of Hawaii it is $2,000. For Kauai County, the amount is not available.
The cost of preparing a Certified Shoreline Survey, construction plans, an EA, and if required an EIS, can be substantial depending on the size of the property, the complexity of the proposed development and surrounding environmental conditions. Any fees associated with public notices and signage will vary.
Pacific Region Aquaculture and Coastal Resource Hub
2525 Correa Road, HIG 238
Honolulu, HI 96822
Phone: (808) 956-7031
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