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<br /> Gary Safarik, Chairman <br /> <br /> and Members of the County Council <br /> <br /> Page 4 <br /> While the County believes that the Kelly v. Oceanside 1250 Partners decision was <br /> wrong, it creates a dilemma with respect to similar projects such as Waikoloa Highlands. <br /> If the development goes ahead, it could be challenged in court. If this happens after final <br /> subdivision approval, it could affect the rights of many individual lot owners (as <br /> happened in Hokulia). <br /> In addition, while the property is in the agricultural district, any homes occupied <br /> on the one-acre lots must be "farm dwellings" under state law. In 1976, H.R.S. sec. 205- <br /> 4.5 was amended to provide that on lands with soil rating A or B, on lots created after <br /> June 4, 1976, homes had to be "farm dwellings." On lots existing as of June 4, 1976, the <br /> homes can be "single-family dwellings." A subsequent rule of the Land Use Commission <br /> determined that on post-June 4, 1976 lots on C, D, and E soils, homes had to be "farm <br /> dwellings" as well. A "farm dwelling" is defined as asingle-family dwelling located on <br /> and used in connection with a farm, including clusters ofsingle-family farm dwellings <br /> permitted within agricultural parks developed by the State, or where agricultural activity <br /> provides income to the family occupying the dwelling. <br /> Given the one-acre lot size, and the golf course, it is very likely that the <br /> purchasers of the lots will expect to occupy homes primarily as a residence, and not in <br /> connection with a farm or other income-producing agricultural activity. The project has <br /> not been planned to include a commercial farm. Rather than create more issues with <br /> residences that may not be farm dwellings, and given the unsettled state of the law at <br /> present, it would be better for the project to be reclassified to the Rural State Land Use <br /> district, where the homes do not have to be farm dwellings. <br /> Granting of the time extension would not be contrary to the to the original reasons <br /> for the granting of the change of zone. The original reasons for the approval of the <br /> change of zone are still applicable today and the request is not contrary to these reasons. <br /> From a land use perspective, it is still a more feasible alternative to create aresidential- <br /> agricultural subdivision and golf course on these non-productive lands. <br /> Based on the discussion above, the Planning Director concludes that approval of <br /> the requested amendment to Condition B, with added conditions, would not be contrary <br /> to the General Plan or Zoning Code nor the original reasons for granting of the change of <br /> zone. In addition, the Planning Director is recommending that existing conditions in the <br /> ordinance be revised to reflect the current standard language for conditions of approval <br /> and a fair share contribution condition be added. <br /> <br />