(a) A special management area major permit or a special management area minor permit may be revoked or modified without the consent of the permittee for any of the following reasons:
(1) The permit was granted in violation of HRS Chapter 205A or this chapter;
(2) A material breach of the terms of the permit has occurred;
(3) A material violation of HRS Chapter 205A or of this chapter following the granting of the permit has occurred;
(4) A material mistake of fact or a material misrepresentation was made by the permit applicant in the application or otherwise made by the applicant to the agency or the council relating to the permit application;
(5) A material mistake of fact was made by the council in the issuance of the permit so that the findings required to be made by the council as a prerequisite to the issuance of a permit under HRS § 205A-26 and ROH § 25-4.1 were erroneous; or
(6) A material change in circumstances has occurred following the issuance of the permit that would cause the development, as approved and conditioned in the permit, to pose a significant threat to public health or safety, as determined by the State department of health, the State department of labor and industrial relations, the U.S. Army Corps of Engineers, the U.S. Surgeon General, the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, the U.S. Coast Guard, or any other State or federal agency having jurisdiction over the development or with respect to the type of health or safety threat posed by the development.
(b) The revocation or modification of a special management area minor permit will be processed in accordance with rules adopted by the agency.
(c) The agency may initiate the revocation or modification of a special management area major permit without the consent of the permittee as follows.
(1) Upon determining that adequate reasons may exist under subsection (a) for the revocation or modification of a special management area major permit, the agency shall hold a public hearing on the proposed revocation or modification on a date set not less than 21 nor more than 60 days after the date on which the notice of revocation or modification is mailed to the permittee pursuant to subdivision (2).
(2) The agency shall give written notice of revocation or modification of a special management area major permit to the permittee and any disclosed owner of record of the property that is subject to the permit. The notice must include the following information:
(A) The permit proposed to be revoked or modified, identified by council resolution number and title;
(B) The date, time, place, and nature of the hearing;
(C) The reasons for the proposed revocation or modification; and
(D) In the case of a proposed modification, the nature of the modification proposed.
(3) The agency shall give written notice of the proposed revocation or modification of a special management area major permit, by publication once in a newspaper of general circulation in the city and once in a newspaper of general circulation in the State, not less than 21 nor more than 60 days prior to the date of the public hearing. The notice must state the following:
(A) The location of the affected property by tax map parcel number or street address, or if neither exists, by a general statement of its location;
(B) The permit proposed to be revoked or modified, identified by council resolution number and title;
(C) The date, time, place, and nature of the hearing;
(D) The reasons for the proposed revocation or modification; and
(E) In the case of a proposed modification, the nature of the modification proposed.
(4) The agency shall give written notice of the proposed revocation or modification of a special management area major permit containing the information set forth in subdivision (3) to any pertinent neighborhood boards or community associations, and make a good faith effort to give notice to the owners of all property within 300 feet of the affected property; provided that if the property is subject to condominium property regime, notice may be given to the association of apartment owners of the condominium project.
(5) In conducting the public hearing, the agency shall provide an opportunity for all parties to provide testimony on all issues involved. The agency may adopt rules pursuant to HRS Chapter 91 with respect to the conduct of hearings under this subsection.
(6) Following the public hearing, the agency shall prepare a written report with its findings and recommendation and, if the report recommends revocation or modification, submit the report and a draft resolution implementing the agency’s recommendation to the council within 30 calendar days after the close of the public hearing. For each of the reasons for the revocation or modification included in the notice provided under subdivision (2), the report must state whether the evidence presented at the public hearing supported or did not support revocation or modification for that reason. The report must include a recommendation that the permit be revoked, that the permit not be revoked, or that the permit be modified and, in the case of a proposed modification, the nature of the proposed modification.
(d) The council may initiate the revocation or modification of a special management area major permit without the consent of the permittee by resolution as follows:
(1) The resolution must set forth the following:
(A) The permit proposed to be revoked or modified, identified by council resolution number and title;
(B) The reasons for the proposed revocation or modification, identifying which of the permissible reasons set forth in subsection (a) are applicable;
(C) In the case of a proposed modification, the nature of the proposed modification; and
(D) A direction to the agency to process the proposed revocation or modification in accordance with this section.
(2) After adoption of the resolution, the city clerk shall transmit the resolution to the agency for processing.
(3) Upon receiving the resolution, the agency shall conduct an initial investigation into the reasons set forth in the resolution for revocation or modification of the special management area major permit and, within 60 days of receipt of the resolution, the agency shall give the permittee and any disclosed owner of record of the property that is subject to the permit, written notice of a hearing on the proposed revocation or modification. The written notice must meet the notice requirements of subsection (c)(2), and must include the reasons for the proposed revocation or modification set forth in the resolution, and any other reasons for revocation or modification the agency may have identified during its initial investigation or otherwise.
(4) The agency shall hold a public hearing on the proposed revocation or modification on a date set not less than 21 nor more than 60 days following the date of sending the notice to the permittee and others pursuant to subdivision (3).
(5) The agency shall give written notice of the hearing and conduct the hearing in accordance with subsections (c)(3), (c)(4), and (c)(5).
(6) Following the public hearing, the agency shall prepare and submit to the council a written report and transcript of the public hearing within 30 calendar days after the close of the public hearing. If the agency recommends revocation or modification, the report must include a draft resolution implementing the agency’s recommendation.
(e) The council may, by resolution, revoke, refuse or decline to revoke, or modify a special management area major permit within 90 calendar days after receipt of the agency’s report and draft resolution; provided that council adoption of a resolution for revocation or modification of a special management area major permit requires the affirmative vote of at least two-thirds of the entire membership of the council. If the council fails to act within 90 calendar days of receipt of the report and draft resolution, the permit will be deemed not to have been revoked or modified and the resolution will be deemed to have been filed; provided that pursuant to a written request from the permittee, the council may approve an extension of this 90-day period.
(f) After the filing of a resolution proposing to revoke or modify a special management area major permit, no further resolution may be introduced proposing to revoke or modify the same permit for the same reasons that were stated in the resolution that has been filed; provided that a further resolution may be introduced, no earlier than six months following the filing of the initial resolution if a substantial change in circumstances has occurred following the filing of the initial resolution that would cause the development, as approved and conditioned in the permit, to pose a significant threat to public health or safety, as determined by the State department of health, the State department of labor and industrial relations, the U.S. Army Corps of Engineers, the U.S. Surgeon General, the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, the U.S. Coast Guard, or any other State or federal agency having jurisdiction over the development or the type of health or safety threat posed by the development.
(g) The council may revoke or modify a permit pursuant to this section only for one or more of the reasons specified in subsection (a). The council shall, prior to revocation or modification of the permit, set forth written findings of fact and conclusions of law justifying the revocation or modification. If the council revokes a permit without the consent of the permittee based upon a material mistake of fact or a material change in circumstances, it must first find that the mistake or change in circumstances cannot be adequately addressed by a reasonable modification to the permit. The findings of fact and conclusions required under this subsection may be incorporated into either the final resolution or a separate document adopted by the council.
(h) Before a permit may be revoked or modified pursuant to this section, the council must first hold a public hearing on the proposed revocation or modification, at which the permittee, any disclosed owner of the subject property, and the agency have an opportunity to provide oral testimony of not less than one-half hour each. All other interested parties must also be given an opportunity to provide oral testimony in accordance with council rules. The permittee, agency, and other interested parties may provide additional oral testimony in accordance with council rules at any council or council committee meetings at which the revocation or modification may be considered. Written testimony may also be provided by any interested party.
(i) In conjunction with the written notice of agency hearing, or by written request from the council sent by registered or certified mail with postage prepaid and return receipt requested sent at least 10 days in advance of the date of a council public hearing, the agency or the council may request the permittee to provide information at or before the agency hearing or the council public hearing, respectively, relating to:
(1) The current status of all other permits or governmental approvals necessary for the development approved by the special management area major permit;
(2) The status of the permittee’s compliance with or progress toward compliance with any conditions of the permit; and
(3) The level and timing of expenditures made by the permittee or others with respect to various phases or aspects of the development.
The agency and the council may rely upon the accuracy of the information provided by the permittee in any action or proceeding to revoke or modify the special management area major permit. If the permittee fails or refuses to provide requested information, the agency or the council may find that there has been no progress towards compliance with permit conditions or that no expenditures have been made on the development.
(j) The corporation counsel shall, upon request of the agency or the council, advise the agency or the council with respect to the extent to which the permittee’s rights to construct the development or portion thereof may be vested under law.
(k) Any expenditures made by the permittee or others on a development for which a special management area major permit has been issued following:
(1) The receipt, by the party making the expenditure, of notice of the proposed revocation or modification of the special management area major or minor permit for the development; or
(2) The first published notice of the agency hearing;
whichever first occurs, and before the adoption or filing of the resolution proposing the revocation or modification is not deemed an expenditure made in good faith reliance upon the issuance of the permit for purposes of determining whether development rights are vested.
(l) For the purposes of this section, a modification to a permit includes but is not limited to a modification to the plans for the development or a modification to the conditions imposed upon the development in the permit.
(m) An owner of record of property shall be deemed to have been disclosed if a permit applicant, permittee, or owner gave notice to the agency of the owner’s status either at the time of the permit application or through a formal written notice to the agency of such ownership status at least one week before the date on which the agency is required to give notice to disclosed owners of record.
(1990 Code, Ch. 25, Art. 9, § 25-9.6) (Added by Ord. 95-12) (Am. Ord. 23-4)