§205A-26  Special management areaguidelines.  In implementing this part, the authority shall adopt thefollowing guidelines for the review of developments proposed in the specialmanagement area:

(1)  All development in the special management areashall be subject to reasonable terms and conditions set by the authority inorder to ensure:

(A)  Adequate access, by dedication or othermeans, to publicly owned or used beaches, recreation areas, and naturalreserves is provided to the extent consistent with sound conservationprinciples;

(B)  Adequate and properly located publicrecreation areas and wildlife preserves are reserved;

(C)  Provisions are made for solid and liquidwaste treatment, disposition, and management which will minimize adverseeffects upon special management area resources; and

(D)  Alterations to existing land forms andvegetation, except crops, and construction of structures shall cause minimumadverse effect to water resources and scenic and recreational amenities andminimum danger of floods, wind damage, storm surge, landslides, erosion,siltation, or failure in the event of earthquake.

(2)  No development shall be approved unless theauthority has first found:

(A)  That the development will not have anysubstantial adverse environmental or ecological effect, except as such adverseeffect is minimized to the extent practicable and clearly outweighed by publichealth, safety, or compelling public interests.  Such adverse effects shallinclude, but not be limited to, the potential cumulative impact of individualdevelopments, each one of which taken in itself might not have a substantialadverse effect, and the elimination of planning options;

(B)  That the development is consistent withthe objectives, policies, and special management area guidelines of thischapter and any guidelines enacted by the legislature; and

(C)  That the development is consistent withthe county general plan and zoning.  Such a finding of consistency does notpreclude concurrent processing where a general plan or zoning amendment mayalso be required.

(3)  The authority shall seek to minimize, wherereasonable:

(A)  Dredging, filling or otherwise alteringany bay, estuary, salt marsh, river mouth, slough or lagoon;

(B)  Any development which would reduce thesize of any beach or other area usable for public recreation;

(C)  Any development which would reduce orimpose restrictions upon public access to tidal and submerged lands, beaches,portions of rivers and streams within the special management areas and the meanhigh tide line where there is no beach;

(D)  Any development which would substantiallyinterfere with or detract from the line of sight toward the sea from the statehighway nearest the coast; and

(E)  Any development which would adversely affectwater quality, existing areas of open water free of visible structures,existing and potential fisheries and fishing grounds, wildlife habitats, orpotential or existing agricultural uses of land. [L 1975, c 176, pt of §1; am L1977, 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 permitoverturned because findings required by paragraph (2) not made.  65 H. 506, 654P.2d 874; 68 H. 135, 705 P.2d 1042.

  Where Kihei-Makenacommunity plan was part of Maui general plan and county planning directordetermined that developer’s proposed action was inconsistent with communityplan, special management area permit application properly denied by directorpursuant to paragraph (2)(C).  88 H. 108, 962 P.2d 367.

  Not violated whererequisite findings were contained in committee report recommending approval ofdevelopment.  6 H. App. 540, 735 P.2d 950.

  Absent a finding thatimpact on public facilities would result in a substantial adverse environmentalor ecological effect, or render the development inconsistent with objectives,policies, and guidelines of Coastal Zone Management Act, planning commission’sfinding that the development would have significant adverse effects and impacton existing highway system in area of the development did not provide asufficient basis for denying permit petition.  9 H. App. 377, 842 P.2d 648.

  Even if thedevelopment was shown to have a substantial adverse effect in accordance withthe statute, planning commission was required under paragraph (2)(A) todetermine whether that effect could be practicably minimized and, whenminimized, 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) mandatedplanning commission to protect and preserve more than just the view of theshoreline; the statute, by its very language, is intended to protect the viewtoward the sea even though the "shoreline" cannot be seen eitherbecause of intervening development or natural growth.  9 H. App. 377, 842 P.2d648.