(a) The director, as provided in § 26-1.10, may grant a shoreline setback variance upon finding that, based upon the record presented, the proposed structure or activity is necessary for or ancillary to:
(1) Cultivation of crops;
(2) Aquaculture;
(3) Landscaping; provided that the proposed structure or activity will not adversely affect beach processes and will not artificially fix the shoreline; or
(4) Moving of sand from one location seaward of the shoreline to another location seaward of the shoreline; provided that the director also finds that the moving of sand will not adversely affect beach processes, will not diminish the size of a public beach and will be necessary to stabilize an eroding shoreline.
(b) The director may also grant a shoreline setback variance upon finding that, based upon the record presented, the proposed structure or activity meets one of the following standards:
(1) Shoreline-dependent facility standard. A shoreline setback variance may be granted for a structure or activity that is necessary for or ancillary to a shoreline-dependent facility or improvement, including but not limited to public infrastructure, drainage facilities, and boating, maritime, or water sport recreational facilities; provided that the proposal is the practicable alternative that best conforms to the purpose of the shoreline setback rules.
(2) Public interest standard. A shoreline setback variance may be granted for a structure or activity that is necessary for or ancillary to facilities or improvements by a public agency or public utility regulated under HRS Chapter 269, or necessary for or ancillary to private facilities or improvements that are clearly in the public interest; provided that the proposal is the practicable alternative that best conforms to the purpose of this chapter and the shoreline setback rules.
(3) Hardship standard.
(A) A shoreline setback variance may be granted for a structure or activity if hardship will result to the applicant if the facilities or improvements are not allowed within the shoreline setback area.
(B) For the purposes of this subsection, hardship may be found only if all of the following are met:
(i) The structures will neither adversely affect beach processes nor artificially fix the shoreline, and the applicant and landowner would be deprived of reasonable use of the land if required to comply fully with this chapter and the shoreline setback rules;
(ii) The applicant’s proposal is due to unique circumstances, does not draw into question the reasonableness of this chapter and the shoreline setback rules, is consistent and compatible with surrounding land uses, and is unlikely to adversely impact neighboring properties; and
(iii) The proposal is the practicable alternative that best conforms to the purpose of this chapter and the shoreline setback rules. The analysis of the practicable alternatives must include a thorough assessment of potential impacts and consideration of mitigation measures to avoid or minimize impacts, including but not limited to the relocation or reconfiguration of structures and the restoration of coastal resources.
(C) A shoreline setback variance to artificially fix the shoreline may not be granted in areas with sandy beaches or dunes, or where artificially fixing the shoreline may interfere with existing recreational and waterline activities or natural sand and sediment replenishment that occur as part of beach processes, unless the granting of the shoreline setback variance is clearly demonstrated to be in the public interest.
(D) Before granting a shoreline setback variance on the basis of hardship, the director must determine that the applicant’s proposal is a reasonable use of the land. Because of the dynamic nature of the shoreline environment, inappropriate development may easily pose a risk to individuals or to the public health and safety. For this reason, the determination of the reasonableness of the use of land should properly consider factors such as shoreline conditions, erosion, surf and flood conditions, and the geography of the zoning lot.
(E) Hardship may not be determined as a result of a zone change, plan review use approval, subdivision approval, cluster housing approval, planned development housing approval, conditional use permit, or any other discretionary land use permit granted after June 16, 1989.
(1990 Code, Ch. 23, Art. 1, § 23-1.8) (Added by Ord. 92-34; Am. Ord. 10-32) (Am. Ord. 23-3)