Agenda - Planning Commission - 12/03/2015

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Zoning Bulletin November 10, 2015 1 Volume 9 1 Issue 21 The court also found that the second requirement of unique circumstances was not met. The court explained that unique circumstances, as defined under the City Charter, meant "whether specific attributes of the parcel [were] present that justified] the request for a variance." "Thus, an owner's unusual plans for a parcel [did] not, in themselves, constitute `unique circumstances,' " said the court. Here, the court found that the narrowness of the parcel did not alone justify the variance because Kyo-ya had other alternatives that would not require a 74% encroachment into the Coastal Height Setback. Moreover, noted the court, external conditions present in the neighborhood, such as setbacks and the shoreline, were not relevant to the uniqueness of the parcel because they were commonly found in the neighborhood. As to the third requirement, that a variance request not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance, the court found that the fact that there were nonconforming properties in the WSD that were built prior to the enactment of the WSD in 1976 did not provide a basis for a finding that the variance was consistent with the es- sential character of the neighborhood. The court said that nonconformity should not serve as the basis for additional nonconformity. Rather, said the court, "[i]f nonconforming use is so pervasive that it is shared by the majority of properties in a zoning district, the proper remedy is to seek an amendment to the zoning ordinance, not a variance." Moreover, the court found that the Director's find- ings were insufficient to conclude that a 74% encroachment into the Coastal Height Setback was not contrary to the intent and purpose of the zoning ordinance. See also: Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87 Haw. 217, 953 P.2d 1315 (1998). See also: McPherson v. Zoning Bd. of Appeals, 67 Haw. 603, 699 P.2d 26 (1985). See also: Packer v. Hornsby, 221 Va. 117, 267 S.E.2d 140 (1980). Case Note: The Director's partial approval of the variance for Kyo-ya had been conditioned on, among other things, submission of revised plans which showed compliance with the 1:1 Coastal Height Setback as measured from the width the beach would have been had the State of Hawai'i followed through on a 1965 plan to expand the beach. The court noted that any variance must be based on the certified shoreline with a hardship established in consideration of the facts in circumstances in effect at the time of the application. Thus, consideration of hypothetical effects on the land if the shoreland had been extended per the 1965 plan were irrelevant in determining whether Kyo-ya would be deprived of the reasonable use of land, said the court. Zoning News from Around the Nation FLORIDA Pasco County commissioners denied a rezoning request to allow for the grow- © 2015 Thomson Reuters 11