Agenda - Planning Commission - 03/05/2009

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January 25, 2009 I Volume 3 I No.2 Zoning Bulletin 1995, the State essentially approved of the use of Lakeside's dock for pers.onal boating and boat docking. I While the court found that Lakeside had a State-regulated right to boat, it also found that the. town did not have authority to enact the Or- din~nce. Although municipalities had the authority to develop "innova- tive land use controls to accomplish environmental objectives," regulate "public" docks, and regulate wetlands, the court found that the Ordi- nance's regulation of personal boating and boat docking on State-owned waters was beyond that authority. And, while the State's Comprehensive Shoreland Protection Act did allow municipalities to adopt land use con- trol ordinances that were more stringent than State standards for shore- land protection, that Act had no provisions regulating the use of docks for boating or boat docking as part of shoreland protection. In fact, found the court, the State Department of Environmental Services guide- lines provided that only federal and state governments had authority to impose on-lake regulations-including dock and mooring regulations- upon State-owned public water. Moreover, commented the court, "vest- ing localities 'with broad authority to enact piecemeal on-water regula- tion of recreational boating and boat docking would threaten the State's need and desire for uniform regulation... of public waters." See also: North Country Environmental Services, Inc. v. Town of Bethle- hem, 150 N.H. 606, 843 A.2d 949 (2004). i See also: Dugas v. Town of Conway, 125 N.H. 175, 480 A.2d 71 (1984). Discretion in Exercise of Power-Planning director finds change in nonconforming use is permitted so long as director-imposed use limits apply Residents oppose use change, arguing use limits are beyond the director's authority . Citation: Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., 2008 WL 5265526 (Haw. Ct. App. 2008) HAWAI'! (12/19/08)-Hans Hedemann Surf, Inc. ("Hedemann") op- erated a surfing school (the "Surf School") out of a shop (the "Shop") in a hotel (the,"Hotel") on a beach in the city. Hedemann rented and sold equipment from the Shop, but primarily used it as "an assembly point for its clients." The clients used the Hotel's property outside the Shop to reach the ocean where surf lessons were conducted. Community organizations, including Save Diamond Head Waters, LLC, and neighborhood residents (collectively, "SDHW") opposed the Surf School's use of the Shop. They complained of noise, congestion, 4 @ 2009 Thomson Reuters 82