HAR §15-217-82. Variances

(a) Purpose. This section is intended to provide a mechanism for relief from the strict application of the rules where the strict application will deprive the property owner of privileges enjoyed by similar properties because of the subject property's unique and special conditions. Economic or financial hardship alone is not sufficient justification for granting a variance. (b) Applicability. All requirements of the rules are mandatory unless approval of variance is obtained, except as limited by section 15-217-82(f) (variances) . (c) Types. There shall be two types of variances - minor and major. Each type shall be 217-80 29 7 6 §15-217-82 subject to the decision-maker review and action of Figure 1.1 (approval requirements matrix), dated September 2011, made a part of this chapter, and attached at the end of this chapter: (1) Minor variances shall apply to projects on parcels 20,000 square feet or less and are subject to executive director review and action; and (2) Major variances shall apply to projects on parcels over 20,000 square feet and are subject to authority review and action. (d) Findings. Approval of a variance shall require all the following findings of fact: (1) Uniqueness. That there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular lot; and that, as a result of such unique physical conditions, practical difficulties or unusual hardship arise in complying strictly with the standards of the rules; (2) Self-created hardship. That the practical difficulties or unusual hardship claimed as the basis for a variance has not been created by the owner or by a predecessor in title; (3) Minimal deviation. That the variance, if granted, is the minimum deviation necessary to afford relief; and to this end, the decision-maker may permit a lesser variance than that applied for; (4) Neighborhood character. That the variance, if granted, will not alter the existing or planned character of the neighborhood or neighborhood zone in which the lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare; and 217-81 29 7 6 §15-217-82 (5) No adverse impact. The variance would result in development that is not detrimental to or that would adversely impact adjacent properties. (e) Variances for buildings for civic uses. In addition to the findings required by section 15-217-82(d) above, a community identity finding shall also be required to grant approval for a variance involving a new building or substantial modification to an existing building providing for a civic land use classification of Figure 1.9 (land use), dated September 2011, made a part of this chapter, and attached at the end of this chapter. The community identity finding establishes that the building and use provides a public service dedicated to arts, culture, education, recreation, government, transit or public parking and is uniquely designed to feature as a prominent, architecturally significant contribution to the built environment such that deviation from the provisions of the rules is warranted. (f) Limitations. The following shall not be eligible for variance approval: (1) Change of zone; (2) Deletion of any thoroughfare identified in the thoroughfare plan; (3) Figure 1.5 (parks and open space plan), dated September 2011, made a part of this chapter, and attached at the end of this chapter; (4) Figure 1.6 (view corridors), dated September 2011, made a part of this chapter, and attached at the end of this chapter, and associated setback requirements; (5) Land use classifications as allocated to neighborhood zones - Figure 1.9 (land use), dated September 2011, made a part of this chapter, and attached at the end of this chapter; (6) Any buildings types and frontages types not allocated to neighborhood zones; and (7) Any maximum floor area ratio standard. 217-82 2976 §15-217-83 (g) Submittal requirements. Each variance application shall include, at a minimum, the following: (1) A statement of the standard or standards that are the subject of the proposed variance; (2) A textual description of the manner in which the applicant proposes to deviate from such evaluation standard or standards; (3) Plans drawn to scale, showing the nature, location, dimensions, and elevation of the structure, area or part thereof that is the subject of the proposed variance; including the development projects relationship to the surrounding context; (4) A justification for the proposed variance in light of the requirements set forth above; and (5) Other information as may be required by the decision-maker. [Eff NOV 11 2011 l (Auth: HRS §§206E-4, 206E-5, 206E-7) (Imp: HRS §§206E-4, 206E-5, 206E-7) §15-217-83 Master plan. (a) Purpose. The provisions of this section is intended to provide for a flexible approach to development, encourage investment in new development and commitment to the master planning of large land holdings. A further purpose of this section is to derive public benefits, such as reserved housing, public parking, off-site infrastructure and other public facilities from master plan developers, in exchange for greater development flexibility for a specified period. (b) Applicability. Developers of project sites over five acres are eligible to apply for a master plan permit. (c) Contents. A master plan permit may authorize only the following: (1) A development approval period up to ten years; 217-83 29 7 6 §15-217-83 (2) The provision of reserved housing outside of the mauka area; and (3) Public facilities, beyond that required by the mauka area plan or the mauka area rules, including, but not limited to, parks and open space, public infrastructure, and public art. (d) Findings. The authority shall make the following findings of fact in order to approve a master plan permit: (1) That the master plan implements and is consistent with the mauka area plan and mauka area rules; and (2) That the master plan will either enhance or provide necessary public facilities, as provided for in section 15-217-83 (f) (master plan) . (e) Submittal requirements. Each master plan permit application shall include, at a minimum, the following: (1) Plans and supporting information sufficient to clearly indicate the pattern and implications of development within the master plan area; (2) Proposed development approval timeframe; (3) Proposed number, location, type and size of reserved housing; (4) Proposed public facility improvements; and (5) Such other information as may be required by the executive director or authority. (f) Public facilities. All public facilities above those required by these rules and other administrative rules of the Hawaii community development authority may be voluntarily offered by the master plan applicant. (g) Time extension. The authority may authorize a master plan approval time extension for up to a five-year time period. A maximum of two time extensions may be authorized. [Eff NOV 11 2011 (Auth: HRS §§206E-4, 206E-5, 206E-7) (Imp: HRS §§206E-7, 206E-33) 217-84 29 7 6 §15-217-84 §15-217-84 Floor area ratio transfer. (a) Purpose. The purpose of this section is to offer a discretionary review process for the transfer of floor area within the mauka area from a sending site to a receiving site. More specifically, the purposes are to encourage the transfer of floor area to properties with lot dimensions that allow for additional floor while complying with the building envelope requirements set forth in Figures BT.1 to BT.10, dated September 2011, made a part of this chapter, and attached at the end of this chapter, and building height requirements set forth in Figures NZ.l to NZ.7, dated September 2011, made a part of this chapter, and attached at the end of this chapter. (b) Generally. The proposed creation and redemption of floor area ratio transfers will take place ·solely on a voluntary basis between consenting parties. Landowners are not required to create or convey floor area ratio transfers. However, floor area ratio transfers must be created, conveyed, or redeemed in accordance with this section to be recognized by the authority. (c) Land not eligible. Floor area ratio transfers shall not involve an existing public park or open space. (d) Mandatory conjoined application. All requests to create, convey and redeem floor area ratio transfer credits shall be accompanied by and occur in conjunction with the following: (1) A project agreement including any accompanying permit approval request including, but not limited to, an improvement permit, a development permit, conditional use permit, variance, and master plan permit; and (2) A proposal to create, convey and redeem floor area ratio transfer credits shall be accompanied on forms promulgated by the executive director, and which contains the following information: (A) Particular to sending site(s): 217-85 29 7 6 §15-217-84 (i) A cover letter identifying the landowner's name, mailing address, and contact information and briefly explaining what the landowner seeks to accomplish; (ii) A certificate of title demonstrating ownership of the proposed sending site(s) and receiving site; (iii) A draft covenant that provides the protections and restrictions on the proposed property consistent with section 15-217-84 (h) ; (iv) A baseline documentation report that establishes the current condition of the proposed sending site(s) and which contains, at a minimum: (1) general location map; (2) a legal description and sketch of parcel boundaries; and (3) documentation (such as maps, written summaries, and photographs) of existing conditions that relate to the proposed easement restrictions as well as the proposed rights to be retained by the landowner; and (v) An affidavit, signed by the landowner and preparer of the submittal, attesting to the accuracy of the information contained in the baseline documentation report; and (B) Particular to a receiving site. Plans, diagrams and supporting text which clearly identifies and illustrates the location and extent of proposed floor area transfer credit. 217-86 29 7 6 §15-217-84 (e) Decision-maker. The authority shall review and act upon all applications for floor area ratio transfers to create, convey and redeem floor area ratio transfer credits after receiving a recommendation from the executive director. (f) Findings. The authority must make the following findings of fact in order to approve an application to create, convey and redeem floor area ratio transfer credits: (1) That the receiving site allows for additional floor area while complying with the building envelope requirements set forth in Figures BT.1 to BT.10, dated September 2011, made a part of this chapter, and attached at the end of this chapter, and building height requirements set forth in Figures NZ.1 to NZ.7, dated September 2011, made a part of this chapter, and attached at the end of this chapter; and (2) That the creation, conveyance and redemption of floor area ratio transfer credits, as proposed or as modified by the authority, enables the subject lots to fulfill the development objectives of the mauka area plan and mauka area rules. (g) Limitations. The creation, conveyance and redemption of floor area ratio transfer credits shall be limited by the following parameters: (1) Floor area ratio transfer credits shall not be created or redeemed in conjunction with a variance approval to exceed any maximum building height, building footprint or reduce any setback related to Figure 1.6 (view corridors), dated September 2011, made a part of this chapter, and attached at the end of this chapter; (2) No more than fifty per cent of the mauka area plan and mauka area rules maximum permitted floor area ratio shall be transferred from any sending site; provided, however, that contiguous lots may transfer 217-87 29 7 6 §15-217-84 one hundred per cent of the maximum permitted floor area ratio; and (3l Floor area ratio transfer credits shall be created and redeemed concurrently. No floor area ratio transfer credit may be reserved for future conveyance to a sending site. (hl Covenant running with the land required. In order to establish floor area ratio transfer credits, the sending site landowner must record a covenant running with the land over the sending site(sl consistent with this section. The covenant must .meet the following criteria: (ll The covenant shall run with the land on the sending site(sl; (2l The covenant shall restrict the floor area ratio of the sending site(sl to the ratio established by the transfer; and (3l The covenant shall name the authority as an intended beneficiary with the right to enforce such covenant. (il Record keeping. The executive director will maintain a register of all floor area ratio transfer credits both created and redeemed pursuant to this section. On an annual basis, the executive director will update this register to reflect all known transfers and redemptions of floor area ratio transfer credits. [Eff NOV 11 2011 J (Auth: HRS §§206E-4, 206E-5, 206E-7l (Imp: HRS §§206E-4, 206E-5, 206E-7l §15-217-85 Completeness review. (al Purpose. The purpose of the completeness review is to determine whether all required information is provided in a permit application. A completeness review shall not constitute a decision as to whether an application complies with the provisions of the rules. (bl Applicability. This section applies to all applications for permits provided for in the rules. (cl Application materials. No application may be deemed complete unless all of the information required by forms published by the HCDA is included and all filing fees have been paid. The executive 217-88 29 7 6 §15-217-85 director shall ensure that application materials are made available in hardcopy format at the HCDA office and electronically via the internet. (d) Jurisdiction. All applications shall be reviewed by the executive director for completeness. At the time of proposed filing and fee payment, the executive director may reject any application that omits information required by forms published by the HCDA. Once accepted for filing, the executive director's final determination on completeness of an application is appealable to the authority pursuant to section 15-217-88 (appeals). (e) Commencement of time limit for application decision. Whenever the rules establish a time period for processing an application, such time period does not commence until the executive director has issued a certificate of completeness. (f) Multiple permit approvals. When a proposed project requires more than one permit approval, the applicant shall apply for all such permit approvals concurrently. (g) Completeness review process: (1) The executive director shall provide a written determination on the completeness review within forty-five working days of receipt of the permit application. If a permit is deemed complete, the executive director shall issue a certificate of completeness. If the application is determined not to be complete, the executive director's determination shall specify those parts of the application that are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application; (2) If the application requires review by any other local, state, or federal agency or entity, the executive director may require the written comments from such agency or entity prior deeming the application 217-89 2976 §15-217-85 complete and until such time that the executive director receives all such comments, the forty-five day period shall be tolled; (3) Upon receipt of any application that has been resubmitted, a new forty-five day period shall begin, during which period the executive director shall determine the completeness of the application; (4) If the applicant contests the executive director's determination of an incomplete application, the applicant may appeal the executive director's determination to the authority pursuant to section 15-217-88, (appeals). If the authority does not render a decision on the appeal within thirty working days after submittal of the requisite appeal form and filing fee, the application with the submitted materials shall be deemed complete for the purposes of this section; and (5) Nothing in this section precludes an applicant and the executive director from mutually agreeing to an extension of any time limit provided by this section. (h) Time limits. A certificate of completeness is deemed issued if the executive director fails to act within the time period required for completeness review. In computing time periods of this section, the day upon which the application was submitted is not to be included. Further, the last day is to be included unless it is not a working day, in which event the period runs until the next working day. (i) Information requests. After the executive director issues a certificate of completeness or deemed as complete per section 15-217-85(c) (completeness review), the executive director or authority may, in the course of processing the application, request the applicant to clarify, amplify, correct, or otherwise supplement the information required for the application, if such would be required by the decision-maker to render a 217-90 2976 §15-217-87 final determination on the merits. [Eff NOV11 2011 (Auth: HRS §§206E-4, 206E-5, 206E-7) (Imp: HRS §§206E-4, 206E-5, 206E-7) §15-217-86 Automatic approvals. (a) The following permits shall be deemed approved and require no public hearing if a certificate of completeness has been issued and no decision is rendered within the following review periods: (1) Rules clearance (sixty calendar days); (2) Improvement Permit (ninety calendar days); (3) Development permit (one hundred eighty calendar days); (4) Conditional use of vacant land permit (ninety days) ; (5) Conditional use permit (one hundred eighty calendar days); (6) Variance (one hundred eighty calendar days); and (7) Master plan (two hundred calendar days). (b) Whenever a proposed project requires more than one permit, the longest review period of section 15-22-86(a) shall apply for determining the deemed approved date. [Eff NOV 11 2011 ] (Auth: HRS §§206E-4, 206E-5, 206E-7) (Imp: HRS §§206E-4, 206E-5, 206E-7) §15-217-87 Approval period. (a) Rules clearance approvals shall have an effective approval period of one year. (b) Improvement permits, development permits, conditional use of vacant land, conditional use permits and variance approvals shall have an effective approval period of two years, unless extended under these rules. (c) Master plan permits shall have an effective approval of ten years, unless extended pursuant to section 15-217-83(g). (d) Prior to expiration and upon submittal of a written request and payment of the applicable filing 217-91 29 7 6 §15-217-87 fee, an improvement permit may be extended by the executive director for a period of up to one year. The executive director may issue up to two extensions. Development permits may be extended by the authority for a period of up to one year. The authority may issue up to two extensions for development permits. (e) In computing the approval period, the day upon which the approval was granted is not to be included. Further, the last day is to be included unless it is not a working day, in which event the period runs until the next working day. [Eff NOV11 2011 ] (Auth: HRS §§206E-4, 206E-5, 206E-7) (Imp: HRS §§206E-4, 206E-5, 206E-7)