Loading...
HomeMy WebLinkAboutCOM 0032.037 2006-2008 tva~ g~ Kim Christopher J• Yueu Mayor Director s:, ~,~.«•w'y. Brad Kurokawa, ASLA LEED®AP ~~~~l~i ~1 ~~S~tltl• Deputy Director PLANNING DEPARTMENT 101 Pauahi Street, Sui[e 3 Hilo, Hawau 96720-0224 (808) 961-8288 • FAX (808) 961-8742 September 12, 2007 Honorable Pete Hoffmann, Chairman , and Members of the County Council County of Hawaii 333 Kilauea Avenue - Hilo, HI 96720 ~ Dear Chairman Hoffmann and Members: Planning Director Initiated Amendment to Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition, as amended) To Create a "Superstore" Zoning District, Which Would be the Only Zoning District Where a "Superstore" Would be Allowed Enclosed for your reference is the Background and Recommendation Report for the Council's request for an amendment to Chapter 25 (Zoning Code), Hawaii County Code 1983 (2005 Edition), as amended, relating to Retail Establishments. Should you have questions regarding this matter, please contact me at 961-8288. Sincerel~3 o- /./G/~` CHRISTOPHE . Yi_JEN Planning Director Lpdini[iatedsuperstoresOlsyhf Enclosure Comm. tJo. ~ • ~J Ref. To: R6f, Dote ,~P 19 200 Hawaii County is an Equal Opportunity Provider and Employer. A . BRCCtrritiafedSuperstore.doc-3/21/07 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION INITIATOR: COUNTY COUNCIL AMENDMENT TO CHAPTER 25 The County Council is initiating an amendment to Chapter 25 Zoning, Hawaii County Code 1983 (2005 Edition) as amended, relating to Retail Establishments. The proposed amendment would not permit "superstores" in any zoning district. "Superstore" is defined as a business exceeding 90,000 gross squaze feet, offering for sale more than 25,000 different stock keeping units, and dedicating more than 20,000 gross square feet of floor azea to the sale of groceries. PROPOSED ACTION 1. Background: The County Council has refereed a proposed amendment to the Zoning Code to the Planning Director and Planning Commission for their review and recommendation. The proposed amendment would ban "superstores" on the island. A "superstore" is defined as a "business exceeding 90,000 gross squaze feet, offering for sale more than 25,000 different stockkeeping units, and dedicating more than 20,000 gross square feet of floor area to the sale of groceries." A "stockkeeping unit" is an individual type of sales item. For example, "Campbell's Tomato Soup" is one stockkeeping item, even if the store has fifty cans. The proposed ordinance does not define "grceeries", but the councihnember who was the principal sponsor clarified that it means food and liquor. The proposed ordinance would amend the Zoning Code to define "superstore", then state in the definition that a superstore is not allowed in any inning district. The Council resolution and proposed ordinance aze attached as Exhibit A. In essence, the bill proposes to ban the combination of a lazge departmer?t store with a grocery store. According to the principal sponsor, the main type of store that this would ban is a Wal-Mart Supercemer. There aze about 1,000 such stores on the mainland. Target also operates a type of store similaz to a Wal-Mart Supercenter in variety of items and grocery space. According to the councilmember who introduced the -1- bill, the combination of the number of stockkeeping units and the area in groceries means that the ban would not apply to a Sam's Club or the current Costco operation, because they have fewer stockkeeping units, or large department stores that do not sell groceries, such as the two current Wal-Marts on the island. The Planning Department has not independently verified these statements about floor azea devoted to groceries or number of stockkeeping units. Under the current Zoning Code, a "superstore" is not specifically defined, and would be treated simply as a type of retail establishment. A "retail establishment" is a permitted use in CG (General Commercial), CV (Village Commercial), CN (Neighborhood Commercial), V (Resort), MCX (Industrial-Commercial Mixed) and PD (Project District) zones. It would violate the spirit of the Zoning Code to locate a large retail business that is intended to be a magnet for customers from a large region in a CN or CV zone, but it is not specifically prohibited. As a practical matter, a "superstore" as defined would need 10-15 acres of land, and there aze probably no CN zoned sites that aze lazge enough. In the Kona azea, there are lazge vacant CG and MCX zoned sites in Makalapua Center, Honokohau Business Park, the new incremem of Kaloko Industrial Park, the Queen LiGuokalani Trust land neaz the Old Kona Airport Park, and the unimproved incremem of Lanihau Shopping Center froming Henry Street which have appropriate zoning and adequate space to build a superstore. In the South Kohala district, there is a lazge vacant CV zoned site on the south side of Waikoloa Road near Waikoloa Village that is lazge enough to accommodate a superstore, but it is doubtful that the population in the area would make this type of store commercially viable in that location. Within Hilo, outside of the Department of Hawaiian Home Lands (DHHL) groperty which will be discussed below, there aze no lazge vacant sites that are appropriately zoned. The Kea'au Gateway azea, zoned in 2002, has 32 acres zoned MCX and is an adequate size for a superstore. Other areas of the island do not have lazge vacant commercially-zoned sites. -2- The Council resolution contains a number of asserted reasons for the proposed superstore ban: "traffic congestion, overburdening of existing infrastructure, deterioration of fragile ecosystems, and decimation of small businesses." In response to a request from the Planning Department to provide supporting information, the councilmember provided some items, mainly an article about big box development in general, attached as Exhibit B, some news articles about mainland cities such as San Diego that have banned superstores, and considerable information about Turlock, California. The city of Turlock enacted a ban, primarily based on the analysis that they wanted to protect neighborhood shopping centers which were centrally located in the town, and believed that they might fail if they lost the "anchor" grocery tenant. The superstore, on the other hand, would, according to the analysis, be located along the state highway, and draw traffic to that location, away from the town center. Recently, the DHHL announced that Wal-Mart was the only bidder for a lazge DHHI, site located on Maka'ala Street in Hilo, behind the currern Wai-Mart. The lease terms are still being negotiated. Wal-Mart announced that it planned to open a "Supercenter" on the site, consisting of about 200,000 square feet of retail space. (The current Hilo Wal-Mart occupies about 140,000 squaze feet of gross retail space) This "Supercentei" would have enough grocery space to fall under the definition of "superstore" in the proposed ordinance. Wal-Mart was indefinite about the fate of the existing store. The Maka'ala Street DHHL site is zoned ML (Limited Industrial), and is designated High Density Urban in the General Plan. Under the County's Memorandum of Agreement (MOA) with DHHL attached as Exhibit C, the Courny agreed with DHHL's position that it can decide the use of its lands without following County zoning. DHHL is supposed to have a planning process, however, and conform to their overall land use plan. While it is cleaz as a legal matter that DHHL. residential, pastoral, and agricultural leases are exempt from County zoning, the question of commercial and industrial uses on DHEII, property is not entirely free from doubt. The County believed, based on several corporation counsel opinions, that the MOA conformed to legal requirements, lazgely -3- because of statements made by the Hawaii Supreme Court in Keno'o v. Watson. 87 Haw. 91. It is worth recalling the history that led to the current commercial development pattern in the Hilo area. In the late 1970's, a development group known as "Redevco" sought approval to develop what is now Prince Kuhio Plaza on DHHL property. At that time, DHHL did not claim that the project was exempt from County zoning, and applied for a General Plan LUPAG map amendment and a change of zone. The LUPAG map amendment was necessary because the General Plan at the time identified downtown Hilo as the primary site for commercial development. After a long struggle, the General Plan amendment passed and the site was rezoned. In the mid-1990's, DHHL applied for rezoning of the site that is now the "Wal-Mart Center" from ML to CG. It was understood that Wal-Mazt would be the eventual tenant. No General Plan amendment was necessary because the site had been changed to High Density Urban in 1989. After considerable controversy at the Council, DHHL decided that it could develop the site without following County zoning, and withdrew the application. It developed the site, the Coumy acceded in DHHL's right to develop, but did not process building permits, on the grounds that ifDHHL was exempt from zoning, it was exempt from building permits as well. The General Plan does not offer any specific guidance on the topic of "superstores", or more generally, big-box type retail establishments. The General Plan describes various types of shopping centers: neighborhood, community, and regional centers. A superstore would be classified as a regional center. In the more rural areas of the island such as Hanrakua, the General Plan discourages strip or spot commercial development outside of the existing town centers. In that way, it encourages growth azound the existing towns. The General Plan would not support rezoning to allow a superstore or other large commercial enterprises outside of the designated urban areas. It does not, however, forbid the use of existing zoned azeas such as those described above or the potential commercial rezoning of designated azeas. -4- RECOMMENDATION The Planning Director gives an unfavorable recommendation on the bill proposing a ban on superstores. If the Council would like to give closer scrutiny to such stores because of traffic or other impacts, the Planning Director proposes an alternative approach: that the Zoning Code be amended so that a superstore is a permitted use only in a "Superstore" zoning district. In other words, to establish a superstore, the business would have to rezone an azea to the "Superstore" zone; it could not just open up in an MCX, CG, or other zone. The proposed superstore ban prompted a great deal of public testimony pro and con at the Council, much of it focused specifically on Wal-Mart. This corporation has been comroversial for a number of reasons, including anti-union practices, wages, poor health benefits, relationships with foreign suppliers and treatment of foreign workers, and its impact on small-town businesses. Although the proposed bill itself does not single out any one corporation by name, because so much public testimony was duetted at Wal-Mart, it may be useful to explain some general rules for the benefit of the public. The land use system focuses on what should happen on a particulaz piece of property, where certain uses should take place, how the uses should be done (for example, design controls or pazking requirements), but is concerned with who is doing the project only to a very limited degree. Section 25-2-10 of the Zoning Code states that approvals run with the land and "shall not be granted if the action sought would not be equally acceptable under a variety of owners." This is the general rule in American land use law. There aze limited circumstances where the identity of the applicant may be relevant: for example, the State Land Use Commission has, at times, required proof that the applicant has the financial ability to carry out a project to avoid purely speculative applications, but the general rule is still that the decisions shall not be made on the basis of who is the applicant. Much public testimony was given on the topic of competition and the potential effect of superstores on existing businesses. Generally, business competition is regazded as a good thing: in fact, essential to the current economic system. It is inherent in business competition that some -5- businesses will thrive and others fail. Laws exist outside of the zoning and land use system to control competition that society deems unfair: anti-trust laws, truth-in-labeling laws, and the like. The land use system is not supposed to limit competition to favor certain businesses against others. It is a legitimate use of the land use and zoning powers to establish preferred locations for businesses, and to prevent businesses from getting started in undesiteable locations. For example, it is a perfectly legitimate use of zoning power for a community that is trying to preserve and enhance an existing downtown business core to use zoning to prevent big-box merchants from building at a highway crossroads away from the downtown, so that the downtown remains the primary commercial center. This is the type of zoning battle that has been fought in many communities against big retailers such as Wal-Mart, but it should be based on a policy about the use of land, and the proper location for businesses, not the belief that one group of business owners are more deserving than another. Other laws set the requirements for wages, hows, and health care that corporations must meet. Zoning and other land use laws do not set these standards. Criven these general principles, the Planning Director cannot give a favorable recommendation to an ordinance that would ban superstores everywhere on the island. The combination of a Large departmem store with a section that sells food, under the same roof and with the same ownership, cannot be said to be a bad thing in itself and under all circumstances. It is simply a different form of retail enterprise. It is not something like an illegal drug lab, a casino, or a brothel that a community may ban because it believes it is a harmful activity in itself. An island-wide ban could have the paradoxical effect of creating a monopoly for Wal- Mart in the "superstore" category, given that Wal-Mart will apparently build a superstore on DHI~. property. Unless DIIHL leases another site to a superstore competitor, that would be the only site where a superstore could be built on the island if this ban is enacted. There is reason to be concerned about the location of superstores. They are typically very large in comparison with other retail businesses and can attract very large traffic volumes to a particular area. One particular concern is that a superstore can bring traffic from a large region to an azea that may not have been planned to be a regional commercial center. Some of our MCX zoned areas, for example, may have been planned with the idea that they would have mixed -6- industrial and commercial uses, not one major traffic generator. For these reasons, the Planning Director is offering an alternative bill, attached as Exhibit D. This bill would have a similar definition of "superstore", and provides that a superstore can be allowed only in a new type of zoning district, called the "Superstore" district. The Superstore district would also allow most commercial uses that aze currently allowed in an MCX (mined commercial industrial) district, because a developer may want to develop other businesses on the site. The Superstore district could be rezoned only from a site currently zoned CG or MCX (mixed commercial-industrial), or on property that would qualify to be rezoned to CG or MCX under the General Plan. These would be sites that are designated as High Density Urban on the LUPAG map, or "Industrial-commercial" on Table 14-5 of the General Plan, page 14-12. The High Density Urban areas are in Hilo and Kailua-Kona. The Industrial-Commercial areas on Table 14-12 are Keaau-Gateway Center, Hawaiian Pazadise Pazk, Hilo Iron Works, Walakea Houselots, Kona Industrial Subdivision and adjacent azea, and Honokohau. Of course, it would be up to the Council at the time of rezoning to determine whether the specific site is suitable for a superstore. For example, the Waiakea Houselots azea clearly would not be suitable because it consists of small lots on relatively narrow roads. This alternative bill is not actually before the Planning Commission for action at the May 24, 2007 meeting because it was not agendized for this meeting. It will be on the agenda for the June 5, 2007 meeting. The Planning Director recommends that the Planing Commission send an unfavorable recommendation to the Hawaii County Council. The accompanying draft bill to amend Chapter 25 is provided for your consideration. a; lI,! COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 1 ' ° A RESOLUTION PROPOSING AN AMENDMENT TO CHAPTER 2S, ZONING CODE, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO RETAIL ESTABLISHMENTS WHEREAS, the County of Hawaii is a unique and special island community with a quality of life, natural beauty, and rural chazacter admired worldwide; and WHEREAS, the protection and preservation of our unique quality of life, natural beauty, and rural chazacter are dependent on proper planning and reasonable growth policies consistent with existing natural conditions and inherent limitations on population and development within an island community; and WHEREAS, the experience of communities across the United States has shown that the development of "superstores," retail businesses significantly lazger than any retail store operating within acommunity -generally occupying more than 90,000 gross squaze feet, offering for sale more than 25,000 different stockkeeping units ("SKU'~, and dedicating more than 20,000 gross square feet of floor area to the sale of groceries -results in tremendous adverse community impacts including traffic congestion, increased demand on government infrastructure, negative environmental consequences, and harmful, often fatal, impacts on small businesses; and WHEREAS, it is the policy of the County of Hawaii General Plan to encourage community-based and pedestrian-friendly design and development to preserve the rural character of Hawaii Island and to support small business development that is consistent with its rural, agricultural, and historic character; and WHEREAS, the council finds that the development of "superstores" would contradict the "smart growth" policies that Hawaii County is striving to implement and would undermine existing plans to manage traffic congestion, encourage pedestrian-friendly small-town community design, and support small businesses that have been an integral part of our island landscape; and WHEREAS, chapter 2S, article 1, section 25-1-5, Hawaii County Code 1983 (2005 Edition, as amended) -particularly in its definition of "Retail establishment" -does not adequately address the negative impacts of "superstores" demonstrated in communities across the mainland United States; and WHEREAS, chapter 2S, article 2, subsection 25-2-43(b), Hawaii County Code 1983 (2005 Edition, as amended), provides, in pertinent part, that "[t]he council shall refer any proposed council-initiated amendment to this chapter to the director and the commission with requests for their respective comments and recommendations thereon, prior to the first reading of any such amendment..." EXHIBIT NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the Planning Director and the Planning Commission is directed to process the proposed amendment to chapter 25, article 1, section 25-]-5, Hawaii County Code 1983 (2005 Edition, as amended), attached hereto as Exhibit "A". BE IT FURTHER RESOLVED that the Planning Director and Planning Commission shall each submit comments and recommendations on the proposed amendment to the council within one hundred twenty (120) days from the date that the amendment is transmitted by the council, pursuant to chapter 25, article 2, subsection 25-2-43(b), Hawaii County Code 1983 (2005 Edition, as amended). BE IT FINALLY RESOLVED that the County Clerk is requested to transmit copies of this resolution to Planning Director Christopher Yuen; the Planning Commission, and Mayor Harry Kim. Dated at Kona , Hawaii, this 7th day of February , 2007. INTRODUCED BY: r C CIL MEMB OUNTY O AWAI`I COUNTY COUNCIL ROLL CALL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawaii FORD HIGH X 1 hereby certify that the foregoing RESOLUTION was by NOFFMANN the vote indicated to the right hereof adopted by the COUNCIL of the IKEDA County ofHawai`ion February 7 2007 R JACOBSON R NAEOLE g ATTEST: P1LAG0 g YAGONG g YOSHIMOTO ' 6 3 0 0 C-32 FC-6 ~{;(A~U ~:,,w,.e,,,., - Reference: COffNTY CLERK CHAIRMAN SIDING FFICER ~ RESOLUTION NO. c 2 trw~ COUNTY OF HAWAII STATE OF HAWAII pj~Mr BILL NO. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 25, ZONING CODE, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO RETAIL ESTABLISHMENTS BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. P ose. The purpose of this ordinance is to preserve and protect the quality of life, natural beauty, and rural chazacter of our unique island community from adverse impacts caused by lazge "superstores" that were not envisioned or considered under current provisions of the Hawaii County Zoning Code. The establishment of limits on retail use - through the restriction on operation, renovation, or expansion of retail establishments that may be or become a "superstore" -protects Hawaii County residents from the type of adverse impacts, such as traffic congestion, overburdening of existing infrastructure, deterioration of fragile ecosystems, and decimation of small businesses, that have been occurring in the mainland United States. This ordinance is not intended to preclude any particulaz retailer, company, end-user, or tenant from doing business in the County of Hawaii, but rather is intended to regulate land use and environmental protection through the preclusion of "superstore" uses in the County of Hawaii by any and all retailers, companies, end-users and tenants. SECTION 2. Chapter 25, article I, section 25-1-5, Hawaii County Code ] 983 (2005 Edition, as amended), is amended by amending the definition for "Retail establishment" to read as follows: ""Retail establishment" means an establishment which sells commodities or goods to the consumer and may include display rooms and incidental manufacturing of goods for retail sale on premises only. Typical retail establishments include convenience stores, grocery and specialty food stores, general department stores, drug and pharmaceutical stores, hazdwaze stores, pet shops, appliance and apparel stores, tour, travel and ticket agencies and other similar retail activities. The term does not include open storage yazds for new or used building materials, yards for scrap, salvage operations for storage or display of automobile parts, service stations, repair gazages, [er] veterinary clinics and hospitals, or "superstores" as defined in this section, as s~erstores shall not be permitted in any zoning district in the County of Hawai`i." EXHIBIT A .SECTION 3. Chapter 25, article I, section 25-1-5, Hawaii County Code 1983 (2005 Edition, as amended), is amended by adding a new definition for "Stockkeeping Unit" or "SKU" to read as follows: ""Stockkeepina Unit" or "SKU" means an identifier that is used by merchants for the systematic trackine of products and services offered to customers, including, but not limited to Universal Product Code (UPC) bazcodes, European Article Number (EAN) bazcodes. and Globa] Trade Item Number (GITN) trackine numbers: ' SECTION 4. Chapter 25, article 1, section 25-1-5, Hawaii County Code 1983 (2005 Edition, as amended), is amended by adding a new definition for "Superstore" to read as follows: ""Superstore" means a business exceedine 90,000 rg oss square feet, offering for sale more than 25.000 different stockkeeping units, and dedicating more than 20,000 gross sguaze feet of floor area to the sale of groceries." SECTION 5. Materiai to be repealed is bracketed and stricken. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 6. If any provision of this ordinance or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications ` of the ordinance that can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance aze declazed to be severable. SECTION 7. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hawaii Date of Introduction: Date of I st Reading: Date of 2nd Reading: Effective Date: 2 ' ®I~ r l a (And How to Control It) I eople love what's inside super- Defense Fund sued the ci[y of commercial developments can devas- stores. They hate what's on the Northfield, Minnesota, over i[s approval Lace the economic vitality of a down- outside.' In those words, Edward of a sprawling Target store on the out- [own or Main Street. Arthut Frommer, T. McMahon, a na[ional expert on skirts of cown.s who launched the widely-read ttavel smart growth, captures the love-hate re- What's behind these battles? In the guide series, has observed: ~ lationship Americans have with big- view of many, big-box stores impose hid- ~ box superstores. It's hard to argue with den costs that don't appear on [he price The desttuction of America's the popularity of Wal-Mart, Target, mgsoftheproductstheyselLtmfficcon- downtowns has occurred all Home Depot, Lowe's, and their many ges[ion; loss of trees, open space and over the country as a direct re- imi[ators. As Wal-Matt itselfpoinrs out, farmland; displaced small businesses; suit of mall development on "All cusxomers appreciate good service, substitution of jobs [hat support farm- the outskirts, and especially low pricing, and great selection." With lies with low-paying jobs [hat don't; air because of the cons ruction $200 billion in sales in 2001, Wal-Man's and water pollution; dying downtowns there of mammoth stores of [he j new s[atus as the world's biggest busi- with vacant buildings; abandoned shop- continued on page 8 I ness speaks for itselEz So does the rapid ping centers; a degraded sense of com- growth of such companies as Home De- munity;andsprawLThelistofproblems Constance E. pot, Target, and Lowe's, whose sales linked to big-box stores is long. Beaumont is Di- reached$45billion,$296illion,and$18 Wherheronelovesorhatesbig-box rector for State & billion, respectively, in 20006 And ye[, stores, it is indisputable that their effects Local Policy of the at any given moment, hundreds of are long-term and significant. Local National Trust far j assroots o niza[ions across the coon- ublic officials owe it to their constitu- gr rga P Historic Preserva- try ace fighting tooth and nail to keep ents to consider these effects-and to lion. She is alsothe these retail behemoths out oftheir com- become familiar with [ools available for author of How Su- muni[ies. "Is the worst of [he suburbs mi[igatingthem-beforeapprovingbig- petsto/e Sprawl [he best we can hope for?" asks a flier box stores. Such tools include impact Can Harm Com- distributed by citizens in New Orleans assessments, design standards, planning munitiesand BettelMode/s forSupersto/es: protesting a proposed 799,000 square- mora[oria, retail size limits, intergovem- Alternatives fo Big-Box Sprawl. foo[ Wal-Mar[ store in the historic mental agreements, and the withdrawal Lower Garden District a "We're not of subsidies for retail sprawl. Leslie Tucker is gaining a store; we're losing our Local Policy Ana- community," lamen[s a citizens' group Impact Assessments lystforthe Nation- - in Decorah, Iowa, in an ad placed in The idea behind "impact assessments" al Trust for Historic USA Today s Opponents of a proposed is a simple one: communities should Preservation. She Home Depo[ in Mountain View, Cali- look closely at how Large development holds a B.A, from forma, have opened their own office, projec[swillaffecttheirtowns,andmiti- the University of socked wi[h lawn signs, literature, and gate potential harm wheneverpossible. Alabama and a petitions, to protest the giant store.b "I While environmental impact state- master's degree in Don't Shop a[ Sprawl-Marts," reads a menu are standard fate for large historic preserva- bumper sticker in Greenfield, Massa- projects, economic impact assessments lion from Savannah College of Art and chusetts.' A group called Mainstreet are less common, even though major Design. EXHIBIT 4 March/April 2002 Vol. 43, No. Z 7 iIIV°~OX SPRAWL Development proposals in the Wal-Mar[sued the planning board continued from page 7 Village of Lake Placid are regulated for denying its request to build, but in by the [own of North Elba, whose zon- February 1998, a court upheld the Wal-Mart variety. In addition ing law calls for "any undue adverse board's decision.'^ to disfiguring those outskirts, impact on the na[ural, physical, social Other jurisdictions have rejected they have forced out of business and economic resources of the Village/ big-box stores or put conditions on their nearly every major category of Town [to] be avoided."" In [his case, approval as a result of impact assessmen[ downtown shop.' the town's planning board rejected findings. In Vermont, for example, [he the proposed superstore because its state environmental board denied per- To see how an economic impact negative economic impacts threaten- mission for a developer [o build a assessment can help protect local tom- ed to harm Lake Placid's commun- superstore outside St. Albans after an munity character, consider [he experi- ity character.12 The economic impact impac[ assessment estimated that the enceofLakePlacid,NewYork. When study conducted for the proposed 100,OOOsquare-footstorewouldcostthe Wal-Mart proposed to build an 80,000 Wal-Mart said that it could take up public $3 for every $1 of public benefit. square-foot sore surrounded by nine to 14 years to refill retail space likely The big-box retailer appealed [his deci- acres of asphalt in a scenic preservation to become chronically vacant due to Sion to the Vermont Supreme Court, but dis[rict on the edge of this small resort [he super-store's construction: in 1996, the tour[ validated the board's town, local residents recoiled. Among ruling.15 The court observed, "A other things, they feared chat the big- Such chronic vacancies...would municipality's ability to pay for [public] box sprawl typically generated by Wal- almost inevitably result in services depends on its tax base, that is, Marls would make Lake Placid less at- fewer tourists visiting the area, the appraised value of property [on [he tractive to tourism, a s[aple of the local which would in turn result local tax rolls). To the extent that a economy. "People come to our unique in less sales ovecall, resulting pro}ecc's impact on existing retail stores valley for a sense of renewal...[o get in a net downward spiral in negatively affects appraised property away from the pressures of urban life," the psychological, visual, and values, such impact is a fac[or that re- explainedone resident. "With i[s strip- economic character and condi- la[es to the public heal[h, safety, and mall architecture, traffic lights, and the [ions of the...downtown.... welfare."16 bulldozing of thousands of trees fora These potential impacts would Bozeman, Mon[ana, now requires parking lot greater than all the tom- have a significant unmiti- economic, as well as traffic and envi- bined spaces available downtown, the gacable adverse impac[ on the ronmental, impact analyses for all new Wal-Mart will deface out view of charac[er and culture of [he retail stores over 50,000 square feet.~t Whiteface Mountain. The business re- community by resulting in va- When abig-box retailer proposed [o quired to support a store of this size can[ storefronts land] a loss of expand its existing sore from 125,000 threatens Lake Placid and its neighbor- "cri[ical mass" in existing down- to 205,000 square feet, the city commix- ing villages."10 town areas...." sinned an economic impact study. The study recommended that the retailer be asked to help pay for a shuttle service conning from its store to the downtown, and to contribute to a promotional campaign benefitting existing stores rnwrti [ as well as the superstore.'s p Design Standards ' 1° - Another reason for citizen opposi- tion to big-box stores is their design: nondescript, enormous, "off the shelf' buildings set in a sea of asphalt, wi[h no windows, rooflines, or attempt to respect the architectural character of the local community. Thousands of communities have enacted design standards to improve the appearance of commercial development. Cathedral City, California; Evanson, Wyoming; and Cape Cod, Massachusetts, are just _ a few of the local jurisdictions that have Pedestrian-friendly downtowns and small-town Main Streeu, such as this one in used design standards to improve [he Leesburg, Ua., provide alternatives to big-hox sprawl. Phom by Constz°~e E. Bezumonr. character of big-box stores.19 8 Municipal Lawyer Evanston's design standards grew 'c a t~~ ,t~~~y s~ "ai out of public hearings conducted dur- ~ ~ ~ r . ing a temporary mora[orium on big-box stores after a retailer announced plans to vacate an existing store and build a bigger one. The city denied the retailer's request for an amendment to Evanston's ordinance limiting retail stores to 30,000 square feet, and then adopted strict design standards co ensure that [he proposed store, as well as all future big- box stores, would be compatible with the town's architectural heritage.10 The standards require all stores over 25,000 square feet to use red or light brick, simulated brick, grey sands[one, native stone, cultured stone or wood on at leas[ 30 percent of the main facade (tin- Tra enerated 6i -box stares in narthem Vir 'nia. Accessible on1 derblock is not allowed on the facade); ~ g ~ g S' y by car, big-box use earth cones for facades instead of stares genera[e pressure w widen roads for miles around and are generally inaccessible jarring colors; and breakup monotonous People who cannot afford to drive. Thom 6y Consrzn« E. Bea"moot. building facades with interesting roof the suburbs and under-served the cities," land, abig-box building supply store has lines and architectural details.Z' says Bur[ Flickinger, III, managing di- moved solo a new structure bu[ allowed On Cape Cod, stores with fool- rec[or of Reach Marketing of Westpott, its previous one across the sttee[ to s it prints1z of over 50,000 square feet must Connec[icutzs Even though Wal-Mart vacant for the past five years. In apre- either be designed, or screened with has vacated 426 of its stores, the tom- emptive strike against big-box blight, vegetation, to avoid nega[ive visual pany plans to build 46 million square Buckingham Township, Pennsylvania, impacts on their surtoundings; strip de- feet of new retail space [his year.29 passed an ordinance requiring develop- velopment is prohibi[ed; and parking must go co the side or rear of buildings The idea behind "impact assessments" is a simple one: communi- wherever possible. "Developmen[s of regional impacts"-projects exceeding ties should look closely at how large developments will affect lo,ooo square feet-are subject to spe- melt tDWtIS, and mitigate potential harm whenever possible. cial scru[iny and must show the Cape Cod Commission that their benefits While environmental impact statements are standard fare for outweigh their detriments.23 Under a new policy expected [o be approved large projects, economic impact assessments are less common, soon, stores will be limited to footprints even though major commercialdevelapmentscandevastate of 15,000 square fee[ unless they locate in "growth incentive zones" or are fully the economic vitality of a downtown or Main Street. screened.zo As retailers close older, smaller ers to put money into an escrow account Blg-Box Blight, Retail GIUt, stores and open larger new ones farther to cover demolition costs in case the and Retail Size Limits out in the countryside, terms like "re- superstores they build ever become va- Many communities share Cape Cod's tail graveyards" and "greyfields" have cant J° Peachtree City, Georgia, requires view that retail sprawl is "inefficient and emerged to describe the growing prob- that con[racts between property own- unsustainable."35 As the Cape's regional lem of vacant superstores. Local officials ers and big-box tenants stale [hat the plan explains, "The surplus of re[ail op- are concerned that these outlets breed tenant may not vacate the building and era[ionsboth locally and na[ionally in- crime and vandalism, depress nearby then prevent the landlord from leasing dicates that over-retailing does not add property values, and saddle municipals- the property to another [enant." Un- to the region's economic pie.Itends up lies with financial and legal liabili[ies. der an agreement negotiated by hurting smaller, locally-owned buss- Snellville, Georgia, has three big-box Evanston, Wyoming, in 2001, abig-box nesses and creating bligh[ when exist- sores siting empty. In Bards own, retailer mus[ help the city find tenants ing retail buildings are vacated."26 The Kentucky, an old Wal-Mar[ built di- forastore itvacatesso that i[won't iust U.S. had only five square feet of re[ail reuly across the s[reet from My Old stand emp[y.Jz space per person in 1980; today, that Kentucky Home, a state park and ma- Limits on the size of stores offer an number is 20 square feet.21 "Developers jot tourist attraction, stood vacant for increasingly popular way to prevent and retail chains have over-saturated almost ten years. In Hagerstown, Mary- continued on page 30 March/April 2002 VoI. 43, No. 2 9 ~tco~ox SPRAWL Planning fdloratoria governments that dole out financial A number of municipalities have en- incentives to big-box stores.g1 "The deck continued from page 9 acted temporary development morato- is stacked against local merchants. No- overbuilding, which often overwhelms ria to give local planning agencies time body speaks up for [hem."4t Under its communities with vastly more retail to develop standards for [he design, lo- smart growth policy, Maryland has de- space than [hey can absorb. From cation, and size of big-box stores. One tided i[ no longer makes sense [o force Walpole, New Hampshire, where stores example is Fort Collins, Colorado, taxpayers to subsidize wasteful and are capped at 52,000 square feet, [o which adoptedasix-monthmora[orium inefficient development, so the state Coconino County, Arizona, where they in 1994 on all stores over 80,000 square has pulled [he plug on subsidies for are limited to 70,000 square feet, tom- feet.'s Concerned that such operations sprawl. Developers can still build such munitiesacrossthecountryhaveadopt- might create an "irreversible negative development, but [he slate will no ed limits on the size of big-box stores." impact" on the city, Fort Collins cre- longer subsidize [he construction of new Another promising approach is to limit a[ed a special task force comprised of roads or water and sewer lines [o middle- the footprint of new stores. Gaithers- developers, citizens, planners and oth- of-nowhere "sprawl sites;" instead, slate burg, Maryland's ordinance allows ers to devise design guidelines for funds are directed toward designated larger stores, but limits their footprint superstores. The guidelines ultimately "Priority FundingAreas,"which include to 80,000 square feet.74This policy has adopted: existing communities and areas for resulted in several two-story big-box which new growth is planned by local buildings. Likewise, multi-story big- • prohibit long blank walls that dis- govemments.41 box retailers can be found in New courage pedestrian activity; York Ciry, Chicago, Seattle, Pasadena, • mandate display windows, awnings, The uC18SS~ ISSUe and other communities. and other features to add visual in- A common complaint is chat big-box Ceres[ to the stores; and builders often try to pi[ one class of IntergovemmentalAgreeraents require sidewalks linking stores to people against another in their efforts One of the biggest challenges facing transit stops, street crossings, and to get controversial projects approved, communities arises when big-box buildingentrances.J9 in an argument[hatgoessome[hinglike developers pit adjoining jurisdictions against each other. Many towns fear Another reason for citizen opposition tobig-box stores is their [hat if they impose any conditions on big-box superstores, the scores wilt design: nondescript, enormous, "off the shelf" buildings set in simply move to the neighboring tom- a Sea of asphalt, with no windows, rooflines, or attempt to munity, where anything goes. Their neighbor gees all the sales and property respect the architectural character of the local community. tax revenues; they get alt the traffic. Scace law can help towns avoid be- Thousands of communities have enacted design standards coming pawns in intergovernmental to improve the appearance of commercial development. bidding wars. Acting pursuant to Oregon policy, HoodRiver(asmallcityontheColum- More recently, Easton, Maryland, this: It's "elitist" [o oppose big-box bia River Gorge in Oregon) has ex- adopted a 90-day moratorium on big- stores, which greatly benefit lower in- ecuted an Urban Growth Management box stores before adopting a 65,000 come people by giving [hem high-qual- Agreement with [he County of Hood square-foot cap on such developments; ity goods at rock-bottom prices. This River that requires the county [o adopt likewise, Rockville, Maryland, used a argument would ring less hollow had regulations similar to those of the six-month moratorium to develop an retailers no[effectively"redlined"older city.~s The city's big-box ordinance in- ordinance with a similar cap?' cities and [owns, where many low- cludes tree-planting requirements in- income people live. The argument tended to break up the "sea of asphalt" Withdrawal of Subsidies would also warrant more credence if lookinparkinglots,andabanonstores for Big-Box Sprawl big-box stores were more willing to with footprints of over 50,000 square Kenneth Slone, an economist at Iowa locate in places that are accessible by feet.16 As is true elsewhere in Oregon, State University who has studied transportation modes affordable to city policy prohibits sewer line exten- superstores for years, is appalled at the people with modest incomes. At lions outside designated urban growth number of local governments that ac- present, most big-box stores are far from boundaries unless a health hazard ex- tually subsidize these operations. Ina town, totally inaccessible [o anyone ists.'r To avoid "leap-frog" development 2001 study, he asks, "Is it fair to give who is too poor, too young, too disabled, (random development chat jumps hap- raxpayers' money to big corporations or too old to drive. hazatdly over undeveloped areas), Hood that will [hen use it to help put existing However, that situation is not al- Rivet will only annex land that is con- firms out of business?," alluding to a ways [he case. To its credit, Target's [iguous ro the city. "zero sum game" being played by city willingness to recycle an empty depart 30 Municipal Lawyer ment store in downtown Pasadena, New Orleans, at www.urban conservancy.org. http://www.capecodcommission.orglref.htm. California, demonstrates that big-box S. Advertisement, USAToonv,April9, 1999, 25. Cape Cod Commission Regional Pot icy retailers can make a profit and still put atpage ]2A. Plan (1996), atpage 58, a[http://www.capecod stores in locations that ate accessible [0 6. Joshua L. Kwan, Mountain View Campaign commission.org/rpp/rpptoc.htm. customers by foot, bus, and car. And in Attempting [o Stop Plan for Home Depot, THE 26. Id. Rutland, Vetmon[, Wal-Mart drew MERCUAY News, at http://www.mercury 27. Telephone interview with Burt Flickinger, praise from preservationistsforagreeing centercom(January14,2002). III, Managing Director, Reach Marketing to recycle a smaller than usual store (a 7. Bumper sticker produced by Sprawl•Bust• (January 22, 2002). former 75,000 square-foot Kmart in the ers, Greenfield, MA; see http://www.sprawl- 28. ld. busters.com. 29. Telephone interview with Cindy May, Pub- downtown) instead of paving over a 8. Linda Mack, Group Plans to Rally Tonight lit Relations for Wal•Mart Realty Division farm for an edge-of-[own store that AgninstTargetinNorthfieW,MiNNEAFOUSSTAR (February 12, 2002); see also http://www.wal- wouldhave harmed [he city's downtown TRIBUNE, June 1, 2000. martrealty.com. economy. 9.PrefiledtestimonyofArthurFrommerinThe 30. Buckingham Township,PA,Ordinance98- StAlbaraGroupfdWaLMartStores,lnc., Land 02,§5(1998). Making Choices That Use Permit #6F0471, June 13, 1994, Exhibit 31. PEacHTatE Cm, GA., CODE, Zoning, Arv Save Communities C•8, atpage 4. title X, Appendix A, § 1006 General Commer- Can't we have stores with both low 10. Letter from Naj Wikoff to National Trust cial District (1994)• prices and community-friendly design? for Historic Preservation (April 14,1994) (on 32. Evanston, Wyo., Resolution0l•09, A Reso- filewith the author). lution of the City of Evanston, Wyoming au- Of course we can. Communities have 1 JOINT VILLAGE OF LAKE PLACID/FOWN OF thorizing the execution of a Memorandum of choices. They can put policies in place NORTH ELBA LAND UsE CouE, Part V, Appen• Understanding with Wal-Mart Scores, Inc. that will enhance their ability to nego- dix E (Development Considerations). (Febmary 28, 2001). bate for the kind of development they 1Z. Town of North Elba PlanningBoard,Smte- 33. The full text of these two ordinances want, of [hey can adopt an "anything ment of Fmdmgs and Decision, Proposed Wal- is available a[ http://www.newrules.org/ goes" policy and be at the mercy of Matt Store, January 9, ]996 at page 15. retail/size.html, along with others dealing whatever comes along. Retail chains 13.1d. a[ 14. with retail stores, including community im- have choices, too. They can insist on 14~ Wal•Mart Stores, Inc. v. Planning Bd. of pact review laws, neighborhood serving look-alike, big-box sprawl wherever Town of North Elba, 238A.D.Zd93(N.Y.App. zones, and more. [hey build, or they can respect the de- Div. 1998). 34~ Gaithersburg, MD., Neighborhood Three sire of distinctive communities to pre- 15. In re Wal-Mart Stores, Inc. 702 A.2d 397 Land Use Plan, at page 25 (1997). serve the scenic vistas, historic places, (Vt. 1997). 35. Telephone Interview with Cory Johnson, I6. Id. at 401. City of Hood River Planning Department (Feb- and downtowns that people love. ] 7. Telephone Interview with Clark johnwn, mary 5, 2002). For more information on ways to City Manager, Bozeman, Montana (January l6, 36. Hood River, OR., Ordinance No. 1819 reduce superstore sprawl, see: Better 2002); Ron Tschida, Economic Impact Sndies (2001). Models for Superstores: Alternatives to Big m 6e Routine far Box Stores, BOZEAAAN DAttr 37. Telephone Interview with Cory Johnson, Box Sprawl and Htxv Superstores Can CHRONICLE, Dec. 19, 2001, at page 1. City of Hood River Planning Department (Feb- Harm Communities (And What Citi- 18. Bay Area Economics, Econmmic Impacts mary 5, 2002). Tens Can Do About It), both available Analysu of Wal-Mart Expansion, at page iv 38. Fort Collins, Colo., Ordinance No. 111 through the National Tmst's web site (February 1, 2001), at http://www.bozeman. (July, 1994). p ~ (g net/planning/Bowman%20Wa1-Mart%20 39. Fort Collins, Colo., Design Standards and at wuatt.nth o to Publications); Impacts%ZOStudy.PDF. Guidelines for Large Retai! Establishments, Ciry The Home Toum Advantage, by Stacy 19. City of Cathedral City, California, Design of Fon Collins Community Planning and En- Mi[chell (Minneapolis: Institute for Guidelines (September 1989, amended May vironmental Services (1995). Local Self-Reliance, 2000), available a[ 1997); Evanston, Wyo., Ordinance 00-08, 40. Easton, MD., Ordinance No. 390 www.ilsr.org; and Better Models for De- Design Review Standards (2000); Cape Cod, (amended) (Sept., 1999) and Ordinance No. velopment, by Edward T. McMahon, ac MA, Designing the Future [o Honor tM Past, 399 (March, 2000); Rockville, MD., Ordinance www.conservadonfund.org. Design Guidelines for Cape Cod, Second Edi- No. 13-00 (August, 2000); all at www.new tion, 1998. mles.org/retail/rockville.html. NOteS 20. Telephone interview with Paul Knopf, Di- 41. Stone, Kenneth E., and Georgeanne M. I. Telephone interview with Edward T. rector of Planning, Evanston, Wyoming (Feb- Artz, The Impact of Big-Box Building Materials McMahon (February S, 2002). mary 2, 2002). Stores on Host Towns and Surrounding Counties 2. Wal-Mart web site a[ http://www. 21. Evanston, Wyo., Ordinance 00-06(2000) inaMidwes[ernState,August2001,atpage28; walmartstores.com. (amending Evanston City Code, Ch. 24, telephone interview with Kenneth E. Stone 3. Home Depot Annual Report 2000, athttp:/ 24.15 (b) and (c)). (January 14, 2002). /www.homedept.com; Target Corporation 22.The"footprint"ofabuildingis defined by 42. Telephone interview with Kenneth E. Stone Annual Report 2000, athttp://www.targetcotp. the square footage of the ground Floor only. (January 14, 2002). tom/investor-relations; Lowe's Annual Report 23. Telephone interview with John Lipman, 43. Maryland Department of [he Environment, 2000, a[ http://www.lowes.com/Ikn?action= Deputy Director, Cape Cod Commission Managing Maryland's Growth: What You Need to pg&p=AboutLowes/annualreport&topic= (January 28, 2002). Know AboutSmart Growth, atpage9(May 1997); aboutLowes 24. Id.; see also "A Guide to the Review Pro- further information is available at http://www. 4. Flier distributed by Urban Conservancy in cess for Developments of Regional Impact;' at opsmte.md.uslsmartgrowth/index.html. P. March/April 2002 Vol. 43, No. 2 37 Memorandum of Agreement Between the County of Hawaii and the Department of Hawaiian Home Lands I. Pu ose The purpose of this Memorandum of Agreement (MOA) is to clarify the respective roles, responsibilities, and obligations of the County of Hawaii (County) and the Department of Hawaiian Home Lands (DHHL) relating to land use planning, infrastmcture maintenance, enforcement of laws, and collection of taxes and other fees on Hawaiian home lands. II. Guiding Principles The following general principles have guided the development of this MOA: A. The Hawaiian Homes Commission is responsible for determining land use on Hawaiian home lands. The County may not use its land use and zoning powers to prevent the Hawaiian Homes Commission from controlling the use of Hawaiian home lands. B. The County and DHHL share common goals in planning for the use of Hawaiian home lands: both support the orderly development of those lands for the benefit of native Hawaiians and both aze committed to the integration of planning by DHHL and Hawaii County. C. The County should manage and maintain all infrastructure built to County.. standards D. The County is authorized to enforce criminal laws and applicable County ordinances and regulations on Hawaiian home lands. E. Hawaiian homestead lessees are residents of the County of Hawaii and should be treated in a manner consistent with all other residents of the County. F. Hawaiian homestead lessees should pay all taxes and fees required by law. G. The County and DHHL acknowledge that there are areas where agreement will not be reached, and agree to continue to work together toward a mutually acceptable resolution of such issues. III. Relating to Planning and Land Use A. DHHL will implement its Planning System which includes plans with DHHL land use designations such as the Hawaii Island Plan, various Development and Subdivision Plans, and Homestead Community Plans. In the formulation, updating, and amendment of these plans, DHHL will consult with the relevant County departments, and shall give due consideration and weight to their EXHIBIT COHlDHHL Memorandum of Agreement Page 2 comments, and to the Hawaii County General Plan, and other officially adopted plans such as Community Development Plans. All land uses on DHHL property will be placed according to the applicable DHHL plans. B. The County will consult with DHHL over the appropriate designations of DHHL property in the Hawaii County General Plan LUPAG maps, and shall give due weight and consideration to the comments of DHHL, and to officially adopted DHHL plans. C. Based on its plans and DHHL land use designations, DHHL will determine the appropriate County zoning districts that shall apply to the property in question. DHHL will communicate these zoning districts to the County. D. All normal land use controls will be applied by Hawaii County to DHHL property according to the zoning district selected by DHHL. Except as specifically provided in the Agreement, DHHL will follow all normal land use procedures, regulations, and standazds applicable to the zoning district. E. All land use permit applications on Hawaiian home lands must be accompanied by written consent from DHHL before the County can begin processing those applications. F. The standards of the various zoning districts selected will apply to DHHL property. DHHL and its lessees will go through normal County administrative variance procedures if they seek exemptions from standazds. G. For uses allowed in the vazious zoning districts that require special permits or use permits, DHHL and its lessees will go through the applicable County permit procedures. At some time in the future, DHHL may implement its own use permit procedure for Hawaiian home lands. If DHHL grants use permits, it will be responsible for enforcing violations of those permits. The County will be notified when DHHL has formulated its use permit system. H. The County will advise DHHL of all violations by its lessees. The County will enforce land use codes and regulations on Hawaiian home lands in the same manner as with other landowners. DHHL will cooperate with the County in enforcing the terms of its leases requiring conformity to applicable laws and regulations, if requested by the County. Ongoing violations and failure to comply will be referred to DHHL after the County has exhausted all remedies short of pursuing legal action to address the violation. DHHL may institute lease enforcement proceedings in advance of, or in lieu of, County enforcement actions. COH/DHHL Memorandum of Agreement Page 3 IV. Relatine to Public Facilities and Infrastructure Servine Hawaiian Home Lands A. In the development of future projects, DHHL will construct public facilities in accordance with County standards. Where departures from County standards are desired, DHHL will pursue exemptions and other administrative variances from the appropriate County department, in accordance with procedures established for all property owners. Should DHHL choose not to construct infrastructure in accordance with County standards, the County may view such improvements as private facilities for repair and maintenance purposes. B. The County will accept operation, repair, and maintenance of all future DHHL infrastructure constructed according to County standards. C. Existing infrastructure shall be subject to County inspection prior to being accepted by the County for operation, repair, and maintenance. The County may require DHHL to repair any damage such as leaks, holes, sags, or deterioration affecting the operation of the existing infrastructure, identified as a result of the inspection. D. In the case of existing infrastructure that is not constructed to County standards, the County and DHHL will work to establish minimum standards for residential, agricultural, and pastoral subdivisions. Existing projects will be evaluated based on these new standards. The County may require DHHL to upgrade the infrastructure to the minimum standard prior to being accepted by the County for operations, repair, and maintenance. E. The County will maintain infrastructure according to its own standards, resources and schedules. Any decisions as to upgrades or rehabilitation will be at the County's discretion. F. Should DHHL elect to convert its land to a more intensive land use, DHHL will be responsible for upgrading the onsite infrastructure to accommodate the new use, and will consult with the County regarding the need to upgrade offsite infrastructure. DHHL and the County shall negotiate the extent to which DHHL will be responsible for any such offsite improvements requested by the County. DHHL shall be responsible for project-related offsite improvements to the extent that these would be required of other developers with similar projects. If offsite improvements benefit other property, DHHL and the County shall cooperate so that DHHL bears only its fair share of these improvement costs. G. The County will treat DHHL lessees in the same manner as other property owners with respect to conformity with laws, ordinances, and regulations. The County will advise DHHL of violations, and will refer cases of ongoing violation to DHHL after the County has exhausted all remedies short of pursuing legal action COH/DHHL Memorandum of Agreement Page 4 to address the violation. DHHL reserves the right to institute lease enforcement proceedings in advance of, or in lieu of, County enforcement actions. V. Relating to the Enforcement of Criminal Violations on Hawaiian Home Lands A. The County is authorized to and will enforce violations of criminal law on Hawaiian home lands. B. County law enforcement agencies and DHHL will work to establish procedures regarding sharing information and providing testimony relating to arrests made on Hawaiian home lands needed for contested case hearings and other administrative and/or judicial proceedings. VI. Relating to Real Property Taxes ' A. Homestead lessees on Hawaiian home lands are responsible for the payment of real property taxes in accordance with the Hawaiian Homes Commission Act, 1920, as amended, and applicable County ordinances. _ B. The County agrees to waive the penalty and interest on all delinquent real property taxes owed by Hawaiian homestead lessees as of December 31, 2001. Such waiver will apply to payments made by February 20, 2002, or to payments advanced by DHHL pursuant to paragraph C. C. For those homestead lessees with real property tax balances, excluding penalty and interest, of more than $500, if payment is not made by February 20, 2002, DHHL will advance full payment of all real property taxes, excluding penalty and interest, to bring those bills current, within 60 days of receipt of an updated real property tax listing. This date may be extended by mutual agreement of the parties. D. It is understood that the County's waiver of interest and penalty charges on delinquent real property taxes owed by homestead lessees as of December 31, 2001, and DHHL's advance of full payment of real property taxes, excluding interest and penalty, in accordance with pazagraph C, is a one-time only offer. E. In order to alleviate or reduce further delinquencies; the County will notify DHHL on an annual basis of any delinquent property owners. F. The parties will continue to meet on an annual basis to evaluate the extent of delinquencies by Hawaiian homestead lessees on the Island of Hawaii and take action, if necessary, to keep delinquencies from recurring. COH/DHHL Memorandum of Agreement Page 5 G. The County and DHHL shall work to establish a customer trust fund by July 1, 2004 to collect real property tax payments as part of the mortgage/loan payments in order to make smaller, regularpayments. VII. Areas for Further Collaboration The parties agree to work further on the following issues: A. The creation of new County zoning districts for farming and pastoral activities. B. The development of infrastructure standards for rural land uses such as agricultural and pastoral activities. C. The establishment of procedures for sharing evidence, information, and testimony involving criminal violations on Hawaiian home lands. D. The implementation of actions to prevent and/or address future real property tax delinquencies by Hawaiian homestead lessees. VIII. Termination To achieve the objectives of this MOA, either party may, by mutual agreement in writing, further clarify or waive any term or condition of this agreement, provided such action does not violate any statutes, ordinances, or binding rules or regulations. DHHL and the County reserve the right to terminate this MOA upon one hundred eighty (180) days notice in writing to the other party. In agreement thereof, the parties have entered into this Memorandum of Agreement on this day of , 2002. COUNTY OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS r r B {/1^~ By Harry K yor R and C. oon, Chairman H~aii mes Commission APPROVED A5 TO FORM: _ Corporation Counsel D puty Attorney General ' COUN'T`Y OF HAWAII STATE OF HAWAII •~M 1N''S BILL NO. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 25, ZONING CODE, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO RETAIL ESTABLISHMENTS BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Purpose. The purpose of this ordinance is to provide greater scrutiny over the establishmem of large departmern stores that include a grocery section-defined as "superstores" in this ordinance-by limiting them to a new zoning district, the "Superstore" district. SECTION 2. Chapter 25, article 1, section 25-1-5, Hawaii Coumy Code 1983 (2005 Edition, as amended), is amended by adding a definition for "groceries" to read as follows: "'Groceries' means food and drink for human consumption, including beer, wine, and liquor."' SECTION 3. Chapter 25, article 1, section 25-1-5, Hawaii Coumy Code 1983 (2005 Edition, as amended), is amended by amending the definition for "Retail establishment" to read as follows: ""Retail establishmem" means an establishmem which sells commodities or goods to the consumer and may include display rooms and incidental manufacturing of goods for retail sale on premises only. Typical retail establishmems include convenience stores, gocery and specialty food stores, general departmem stores, drug and pharmaceutical stores, hazdwaze stores, pet shops, appliance and apparel stores, tour, travel and ticket agencies and other similaz retail activities. The teen does not include open storage yazds for new or used building materials, yazds for scrap, salvage operations for storage or display of automobile parts, service stations, repair gazages, [erg veterinary clinics and hospitals or `superstores' as defined in this section. `Superstores' shall be permitted only in the `Superstore' zonin dig strict." EXHIBIT SECTION 4. Chapter 25, article 1, section 25-1-5, Hawaii County Code 1983 (2005 Edition, as amended), is amended by adding a new definition for "Stockkeeping Unit" or "SKU" to read as follows: ""Stockkee~n¢ Unit" or "SKU" means an identifier that is used by merchams for the systematic tracking of products and services offered to customers including but not limited to Universal Product Code (iJPCI bazcodes European Article Number LEANT bazcodes and Global Trade Item Number (GITN) tracking numbers." SECTION 5. Chapter 25, article 1, section 25-1-5, Hawaii Courrty Code 1983 (2005 Edition, as amended), is amended by adding a new definition for "Superstore" to read as follows: ""Superstore" means a business exceeding 90.000 gross square feet. offering for sale more than 25 000 different stockkeepin¢ units and dedicating more than 20 000 gr~square feet of floor azea to the sale of groceries counting the floor area occu_.pied by shelves and aisles." SECTION 6. Chapter 25, article 3, subsection 25-3-1(a) , Hawaii County Code 1983 (2005 Edition, as amended) is amended to read as follows: "Section 25-1. Designation of districts. (a) The caning districts of the County shall consist of the following districts: (1) RS, Bugle-family residemial districts (article 5, division 1). (2) RD, double-family residential districts (article 5, division 2). (3) RM, muhiple-family residernial districts (article 5, division 3). (4) RCX, residential-commercial mixed use districts (article 5, division 4). (5) RA, residemial and agricultural districts (article 5, division 5). (6) FA, family agricultural district (article 5, division 6). (7) A, agricultural districts (article 5, division 7). (8) IA, intensive agricuhural districts (article 5, division 8). (9) V, resort-hotel districts (article 5, division 9). (10) CN, neighborhood commercial districts (article 5, division 10). (11) CG, general commercial districts (article 5, division 11). (12) CV, village commercial districts (article 5, division 12). (13) MCX, industrial-commercial mixed use districts (article 5, division 13). (14) ML, limited industrial districts (article 5, division 14). (15) MG, general industrial districts (article 5, division 15). (16) O, open districts (article 5, division 16). (17) [Special districts (articles 6 and 7)] S. Superstore districts (article 5, division 171. (181 Special districts (articles 6 and 71." SECTION 7. Chapter 25, article 4, subsection 25-4-51(a) , Hawaii County Code 1983 (2005 Edition, as amended) is amended to read as follows: "'Section 2~4-51. Required number of parking spaces. (a) The number of parking spaces for each use shall be as follows: (1) Bed and breakfast establishments: one for each guest bedroom, in addition to one for the dwelling unit. (2) Bowling alleys: four for each alley. (3) Commercial uses, including retail and office uses in RCX, CN, CG, CV, MCX, S V, RA, FA, A and IA districts: one for each three hundred square feet of gross floor area. (4) Day caze centers: one for each ten care recipients of design capacity or one for every two hundred square feet of Boss floor azea, whichever is greater. (5) Dwellings, multiple-family: one and one quarter for each unit. (6) Dwellings, single-family and double-family or duplex: two for each dwelling unit. (7) Funeral homes and mortuaries: one for each seventy-five square feet of gross floor area. (8) Goif cowses: fow for every hole. (9) Hospitals: one for each bed. (10) Hotels and lodges: (A) For hotel guest units without a kitchen, one for every three units; (B) For hotel guest units with a kitchen, one and one quarter for each unit. (11) Industrial uses in ML, MG, MCX, S RA, FA, A and IA districts: one for each four hundred square feet of gross floor area. (12) Laundromats, cleaners (coin operated): one for every fow machines. (13) Major outdoor amusemerrt and recreation facilities: one for each two hundred square feet of gross floor area within enclosed buildings, plus one for every three persons that the outdoor facilities are designed to accommodate when used to the maximum capacity. (14) Meeting facilities, including churches: one for each severny-five square feet of gross floor area. (15) Nwsing homes, convalescent homes, rest homes and homes for the elderly: one for every two beds. (16) Parks: as determined by the director. (17) Recreation facilities, outdoor or indoor, other than herein specified: one for each two hundred square feet of gross floor azea, plus three per cowl (racquetball, tennis or similaz activities). (18) Rooming and lodging houses, religious, fraternal or social orders having sleeping accommodations: one for each two beds. (19) Schools (elementary and intermediate): one for each twenty students of design capacity, plus one for each fow hundred square feet of office floor space. (20) Schools (high, language, vocational, business, technical and trade, college): one for each ten students of design capacity, plus one for each four hundred square feet of office floor space. (21) Sports arenas, auditoriums, theaters, assembly halls: one for every four seats. (22) Swimming pools (community): one for each forty square feet of pool azea. (23) Warehouse and bulk storage establishments where there is no trade or retail traffic: one for each one thousand square feet of gross floor area." SECTION 8. Chapter 25, article 5, section 25-4-54, Hawaii Courny Code 1983 (2005 Edition, as amended), is amended by amending subsection (c) to read as follows: "Section 25454. Standards and improvements to off-street parking spaces. (a) All pazking spaces shall be azranged so as to be individually accessible. (b) Except for one duplex dwelling or two single-family dwellings on any single building site, access to any individual pazking space shall not be directly from or to a street but must be reached from an on-site access driveway of proper design and width to allow for passage of vehicles and necessary turning movements. (c) In V, CN, CG, CV, MCX, S ML, MG, RD, RM and RCX districts, pazking spaces shall be paved. (d) For any permitted use in the RS, RA, FA, A or IA districts, the pavement of pazking spaces is not required, and any material may be used for the pazking spaces that will eliminate erosion, mud and standing water. (e) For any parking space containing a building column, that column may intrude six inches into the required width, provided that the building cohunn shall not be located at the entry of the parking space. A wall shall not be considered a building column." SECTION 9. Chapter 25, article 5, Hawaii County Code 1983 (2005 Edition, as amended), is amended by adding a new division to read as follows: "'Division 17. S, Superstore Districts. Section 255-168. Purpose and applicabr~ity. (a) The purpose of the S (superstore) district is to provide the appropriate locations for large departmem stores that aze combined with grocery departments, in a single building. (b) An S district may be established by a change of zone from an azea within a CG or MCX district, or by change of zone within any other azea where CG or MCX zoning would be consiste~rt with the General Plan. Section 255-169. Designation of S districts. Each S (superstore) district shall be designated by the symbol "S" followed by a number which indicates the minimum building site area, in thousands of square feet, required for each building site. Section 25-5-170. Minimum land area required. The minimum land azea required for an S district shall be 15 acres. Section 25-5-171. Permitted uses. (a) The following uses shall be permitted uses in the S district: (1) Amusement and recreation facilities, indoor. (2) Art galleries, museums. (3) Art studios. (4) Automobile sales and remals. (5) Automobile service stations. (6) Bazs, nightclubs and cabazets. (7) Broadcasting stations. (8) Business services. (9) Caz washing. (10) Catering establishmems. (11) Cemeteries and mausoleums, as permitted under chapter 6, article I of this Code. (12) Churches, temples and synagogues. (13) Commercial parking lots and gazages. (14) Community buildings, as permitted under section 25-4-11. (15) Convenience stores. (16) Data processing facilities. (17) Display rooms for products sold elsewhere. (18) Farmers markets. (19) Financial institutions. (20) Food manufacturing and processing. (21) Home improvemem cemers. (22) Ice storage and dispensing facilities. (23) Laboratories, medical and research. (24) Laundries. (25) Manufacturing, processing and packaging establishmems, light. (26) Medical clinics. (27) Meeting facilities. (28) Model homes. (29) Mortuaries. (30) Motion picture and television production studios. (31) Offices. (32) Personal services. (33) Photographic processing. (34) Photography studios. (35) Plant nurseries. (36) Public uses and structures, as permitted under section 25-4-1 I. (37) Publishing plants for newspapers, books and magazines, printing shops, cartographing, and duplicating processes such as blueprinting or photostating shops. (38) Repair establishments, minor. (39) Restaurants. (40) Retail establishments. (41) Sales and service of machinery used in agricultural production. (42) Schools, business. (43) Schools, photography, art, music and dance. (44) Schools, vocational. (45) Self-storage facilities. (46) Superstores. (47) Telecommunications antennas, as permitted under section 25-4-12. (48) Temporary real estate offices, as permitted under section 25-4-8. (49) Theaters. (50) Utility substations, as permitted under section 25-4-11. (51) Veterinary establishments in sound-attenuated buildings. (52) Warehousing. (563) Wholesaling and distribution operations. (b) In addition to those uses permitted under subsection (a) above, the following uses may be permitted in the S district, provided that a use permit is issued for each use: (1) Crematoriums. (2) Major outdoor amusement and recreation facilities. (3) Yacht harbors and boating facilities. (c) Buildings and uses normally considered directly accessory to the uses permitted in this section shall also be permitted in the S district. Section 255-172. Height limit. The height limit in the S district shall be forty-five feet. Section 255-173. Minimum building site area. The minimum building site area in the S district shall be twenty thousand square feet. Section 25-5174. Minimum building site average width. Each building site in the S district shall have a minimum building site average width of ninety feet. Section 255175. Minimum yards. The minimum yards in the S district shall be as follows: (1) Front yards, twenty feet; and (2) Side and rear yards, none, except where the adjoining building site is in an RS, RD, RM or RCX district. Where the side or rear property line adjoins the side or rear yard of a building site in an RS, RD, RM or RCX zoned district, there shall be a side or rear yard which conforms to the side or rear yard requirements for dwelling use of the adjoining district. Section 255-176. Landscaping of yards. (a) All from yazds in the S district shall be landscaped, except for necessary access drives and walkways. (b) Any required side or rear yard in the S district adjoining a building site in an RS, RD, RM or RCX district, shall be landscaped with a screening hedge not less than forty-two inches in height, within five feet of the property line, except for necessary drives and walkways. Section 25-5177. Other regulations. Plan approval shall be required for all new structures and additions to existing structures in the S district." SECTION 10. Material to be repealed is bracketed and stricken. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 11. If any provision of this ordinance or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of the ordinance that can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 12. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII , Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: