How to apply for a variance and what the board checks

A. At the time of filing the application, the applicant must provide notice of application in accordance with subsection 19.520.020 (B)(3)(f). B. Not less than thirty calendar days prior to the public hearing date on an application for a variance, the applicant must give notice by certified mail, return receipt requested, of the date, time, place, and subject matter of the public hearing, in a form prescribed by the director of public works, to the owners and lessees of record adjacent to the subject property, and must submit any updated names and addresses of these owners and lessees derived from the return receipts received on the notices of application previously mailed to these owners and lessees. Not less than ten business days prior to the date of the public hearing, the applicant must submit all certified mail receipts received for the certified mail sent out. For purposes of this section, notice will be considered validly given upon compliance with the following provisions: 1. The applicant must make a good faith effort to mail a copy of the notice of public hearing in a form approved by the director of public works by certified mail, return receipt requested, to all owners and lessees of record located adjacent to and across the street from the subject parcel. 2. The applicant must publish a copy of the notice of public hearing in a form approved by the director of public works once per week for three consecutive weeks prior to the public hearing date in a newspaper of general circulation that is printed and issued at least twice weekly in the County. C. In accordance with the charter of the County of Maui (1983), as amended, the provisions of this article, and the procedures established in this chapter, variances from the provisions of this title may be granted by the board of variances and appeals if the board finds that due to the particular physical surroundings, shape, or topographical condition of the subject property, compliance with the provisions of this chapter would result in hardship to the owner that is not mere inconvenience or economic hardship on the applicant. 1. For all areas of the County outside the Wailuku redevelopment area, the board must grant a variance if the board finds the following: a. There is an exceptional, unique, or unusual physical or geographical condition existing on the subject property which is not generally prevalent in the neighborhood or surrounding area and the use sought to be authorized by the variance will not alter the essential character of the neighborhood. b. Strict compliance with the applicable provisions of this title would prevent reasonable use of the subject property. c. Any conditions creating a hardship are not the result of previous actions by the applicant. 2. Within the Wailuku redevelopment area, variances from strict compliance with this title, the Wailuku redevelopment area design guidelines, or the Wailuku redevelopment plan, may be permitted when the variation is consistent with the objectives of economic revitalization or conservation, including the preservation, maintenance, and management of natural or man-made resources, and when one or more of the following conditions justify the variation: a. Site topography makes full compliance impractical. b. Local practices, customs, and neighborhood character that are long established in the area ensure the continued community and market acceptance of the variation, as evidenced in public testimony. c. The design and plans for the site incorporate improved or compensating features that will provide equivalent desirability and utility. d. The project will further the elimination of slum and blight, repurpose and revitalize historic buildings and assets, and forward the vision, principles, and objectives of the Wailuku redevelopment plan. D. For variances within the Wailuku redevelopment area, mitigative measures must be incorporated into the project to protect the public health, safety, and welfare. The board must not grant variances for property designated for single-family use in the Wailuku-Kahului community plan area. E. The board of variances and appeals must comply with the general plan and the community plan provisions of the County. The board must not grant an application for a variance that requests a use that does not conform with the applicable community plan designation for the subject property. F. On every application for a variance, the board of variances and appeals must review the report submitted by the director of public works and hold a public hearing. At the close of the public hearing, the director of public works must submit a written recommendation to the board which recommends that the board either grant, grant subject to conditions identified by the director, or deny the application for a variance. Unless a formal, contested case hearing on the application has been approved by the board, the board must take action on the application within sixty calendar days from the date of the public hearing. ( Ord. No. 5305 , § 4, 2021; Ord. 2032 § 5 (part), 1991)