§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]



 



Case Notes



 



  Grant of permit
overturned because findings required by paragraph (2) not made.  65 H. 506, 654
P.2d 874; 68 H. 135, 705 P.2d 1042.



  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.



  Not violated where
requisite findings were contained in committee report recommending approval of
development.  6 H. App. 540, 735 P.2d 950.



  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.



  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.



  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.