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HomeMy WebLinkAboutCOM 0752.000 2006-2008 1 0 Harry Kim ' Dixie Kaetsu Mayor Managing Director Barbara Kossow Deputy Managing Director County of Hawaii 25 Aupuni Street, Room 215 • Hilo, Hawai'i 96720-4252 • (808) 961-8211 Fax (808) 9616553 KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawai'i 96740 (808) 329-5226 Fax (808) 326-5663 October 17, 2007 c- r-` Honorable Pete Hoffmann, Chairman and Members of the County Council County of Hawaii 333 Kilauea Avenue Hilo, HI 96720 Dear Chairman Hoffmann and Members: * ounty Council Initiated Amendment to Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition, As Amended) Permitting Wind Energy Facilities in the Open District Change of Zone (REZ 769) Applicant: Volcano Fairways Development Corporation Request: Amendment to Change of Zone Ordinance No. 94-98 (Condition B - Final Subdivision Approval) Tax Map Key' 9-9-6:8 As required by Chapter 4, Sec. 6-4.3(C), Hawaii County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regarding the above-referenced requests. Sincerely ci4;~ ~J Harry Kim Mayor Enclosures cc: Planning Department Comm. No. Z Ref. To:--L(fLk__"Sj { 13,l u I g o> Ref. Dote OCT 22 2007 ~Y a f~l . ' f.IH County of Hawaii PLANNING COMMISSION Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720 Phone (808) 961-8288 • Fax (808) 961-8742 October 17, 2007 Pete Hoffmann, Chairman and Members of the County Council County of Hawaii 333 Kilauea Avenue, 2nd Floor Hilo, HI 96720 Dear Chairman Hoffmann and Council Members: County Council Initiated Amendment to Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition, As Amended) Permitting Wind Energy Facilities in the Open District The Planning Commission at its duly held public hearing on October 5, 2007, voted to forward a favorable recommendation to the County Council regarding the proposed amendment to Chapter 25 (Zoning Code), Hawaii County Code 1983 (2005 Edition) as amended, which would permit wind energy facilities in the Open (O) zoned district. The Planning Director prepared the attached bill to implement the Council resolution on this subject. Enclosed are transcripts of the hearings and the Background and Recommendation Reports for your information. Sine illiam Graham, Chairman Planning Commission Encs. 1-councilamendzoningcode re: wind energy facilities cc: Planning Department-Kona Lincoln Ashida, Esq. Hawaii County is an Equal Opportunity Provider and Employer f r A HRCC[WindFamis.doo-9/19/07 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION INITIATOR: COUNTY COUNCIL AMENDMENT TO CHAPTER 25 The County Council has submitted an amendment to Chapter 25 (Zoning Code), Hawaii County Code 1983 (2005 Edition), as amended, which would permit wind energy facilities in the Open (O) zoned district. BACKGROUND The County Council has referred a proposed amendment to the Zoning Code to permit wind energy facilities in the Open (O) zoned district. Resolution No. 235 07 requests the Planning Director to initiate an ordinance to amend Chapter 25, article 5, division 16, section 25- 5-162(b), Hawaii County Code (2005 Edition, as amended), to permit wind energy facilities in the Open zoned district (Exhibit 1- July 20, 2007 letter and Resolution 235 07). The Council cites several reasons for the request: • the General Plan (Energy) states that the county must reduce its dependence on imported petroleum and encourage renewable energy production; • power rates in the county are the highest in the nation, partially due to high distribution costs for power transmission from generation centers in East Hawaii to West Hawaii; • private initiatives to enhance energy efficiency and generate renewable power closer to customer load centers should be encouraged, especially in fast-growing areas of West Hawaii; • wind energy facilities are clean, renewable energy sources which produce no emissions or chemical wastes; • the Waikoloa Village Association is exploring opportunities to becomes more energy self- sufficient through photovoltaic and wind power generation; • the Waikoloa Village Association owns a 250-acre parcel of land located within the Open zoned district that is being considered as a site for potential wind power generation; and ATTACH: Cortm. 752 1 Bill 190 f ® wind energy facilities may be compatible with the stated purpose of the Open district. The council further recognizes its mandate to enact zoning ordinances which carry out the provisions of the General Plan, the urgency for developing clean, renewable energy production in light of the county's energy vulnerability and global climate change, and the Waikoloa Village Association's desire to develop a wind energy facility on its property. Under current law, wind energy is permitted in the State Land Use Agricultural district, and is allowed without a Special Permit or Use Permit where the property is also in a County agricultural zoned district. There is currently no way to allow wind turbines, however, where the agricultural property is in an Open zone. RECOMMENDATION The Planning Director supports Resolution No. 235 07 and recommends an amendment to Chapter 25, article 5, division 16, section 25-5-162(b), Hawaii County Code (2005 Edition, as amended) to allow wind energy facilities in the Open zoned district. The Director basically concurs with the council but recommends that wind energy facilities be located in the Open district only with a Use Permit, and within the State Land Use Agricultural district. (Refer to proposed changes in Exhibit 2) The Zoning Code should support wind energy in proper locations. Wind turbines are a great source of renewable energy, but they can have negative visual and noise impacts, and in some places, affect birds. The Use Permit gives the proper level of scrutiny in Open zones, which were typically established to provide open space or to protect ecologically sensitive areas. Open zones in the State Land Use Urban district in Hawaii County are mostly in resort areas, often golf courses, and are not suitable for wind turbines, so the recommendation is to limit the Use Permit to Open zones in the State Land Use Agricultural district. The largest such area is surrounding Waikoloa Village. The Planning Director recommends that the Planning Commission send a favorable recommendation on the draft bill to the Hawaii County Council. The accompanying draft bill to amend Chapter 25 is provided for your consideration. -2- eputy County Clerk D Cnr!it/y .lelh a tC.E{'N,LM'G'IV ~P'f£AdARtA~T 't^ ] rgislative Auditor oT~ Mailing Address: aF< a ar totP~~d Business Address. (Former County Building) 333 Kilauea Avenue, Second Floor 25 Aupuni Street _ Be'4 Franklin Building Hilo, Hawaii 96720 County of Hawai ` -i F/ilo. Nawai'i 96720 ~ Office of the County Clerk Telephone: (808) 961-8255 Facsimile: (808) 961-8912 July 20,2007 To: C. Kimo Alameda, Chair Planning Commission From: Casey Jarman, County Clerk Cd Subject: Resolution 235-07 As directed in the above Resolution, which was adopted by the Council of the County of Hawaii on July 10, 2007, I am forwarding you a copy. Enclosure EXHIBIT Q FY A b~j° C t`l Serving the Interests of the People of Our Island Ilawui'i County is an Equal Opportunity Provider and Employer r r, ~~~<Y,oc y COUNTY O WCa;$6& TJ,l F, w..J'F XICi:NVAN 4 RESOLUTION NO. 235 07 A RESOLUTION REQUESTING THE PLANNING DIRECTOR TO INITIATE AN ORDINANCE TO AMEND CHAPTER 25, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED) RELATING TO ZONING. WHEREAS, the Hawaii County Charter Section 3-15 charges the county council with the responsibility for enacting zoning, subdivision, and other such ordinances when it states, in part: "The county council shall adopt by ordinance a general plan which shall set forth the council's policy for long-range comprehensive physical development of the county. It shall contain a statement of development objectives, standards and principles with respect to the most desirable use of land within the county for residential, recreational, agricultural, commercial, industrial and other purposes and such other matter as may, in the council's judgment, be beneficial to the social, economic, and governmental conditions and trends and shall be designed to assure the coordinated development of the county and to promote the general welfare and prosperity of its people. (a) The council shall enact zoning, subdivision, and such other ordinances which shall contain the necessary provisions to carry out the purpose of the general plan. (b) No public improvement or project, or subdivision or zoning ordinance, shall be initiated or adopted unless the same conforms to and implements the general plan."; and WHEREAS, section 3.1 of the general plan, Energy; Introduction and Analysis, states that the county must reduce its dependence on imported petroleum and encourage renewable energy production on the island when it states, in part: "The County of Hawaii must decrease economic vulnerability and energy costs. To do so, the County must combine the efforts of energy efficiency and the development of natural rc~~ev~ahle erscrl y alWmativcs thai reduce the deper,dcnee ors iYoport d fossil fuels and increase energy self-sufficiency.'; and WHEREAS, power rates in Hawaii County are among the highest in the nation, a fact which the general plan acknowledges is partially due to high distribution costs for transmitting power from the generation centers in East Hawaii to customers in West Hawaii when it states in section 3. 1, in part: "Power rates on this island are among the highest in the nation... The major generating plants are located in East Hawaii. This requires generating more in East Hawaii to compensate for losses in lines going over to West Hawaii. Other factors creating higher costs are the small market and the sparseness of population in a relatively large service area."; and WHEREAS, private initiatives to enhance energy efficiency and generate renewable power closer to customer load centers should be encouraged, especially in the fast-growing areas of West Hawaii; and WHEREAS, wind energy facilities are clean, renewable,energy sources, which produce no emissions or chemical wastes; and WHEREAS, the Waikoloa Village Association is exploring opportunities to become more energy self-sufficient, through photovoltaic and wind power generation; and WHEREAS, the Waikoloa Village Association owns a 250-acre parcel of land located within the Open zoned district that is being considered as a site for potential wind power generation; and WHEREAS, wind energy facilities, with proper approval by the planning department and planning commission through the use permit process, may be compatible with the stated purpose of the Open district; and 2 tWOEREAS, the council reeogiyizes: (1) its mandate established by the Hawaii County Charter to enact zoning ordinances which carry out the provisions of the general plan; (2) the urgency for developing clean, renewable energy production on the island in light of the county's energy vulnerability and global climate change; and (3) the Waikoloa Village Association's demonstrated desire to develop a wind energy facility on its property near Waikoloa; now therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that pursuant to section 6-4.2(c) of the Hawaii County Charter 2000 (as amended) and section 25-2- 43(b) of the Hawaii County Code 1983 (2005 Edition, as amended), the planning director is requested to prepare a bill for an ordinance to amend Chapter 25, article 5, division 16, section 25-5-162(b), Hawaii County Code 1983 (2005 Edition, as amended), to permit wind energy facilities in the Open zoned district; and BE IT FURTHER RESOLVED that pursuant to section 6-4.3(c) of the Hawaii County Charter 2000 (as amended) and section 25-2-43(b) of the Hawaii County Code 1983 (2005 Edition, as amended), the planning commission is requested to review and transmit such proposed bill for an ordinance with recommendations thereon through the mayor to the council for consideration and action; and BE IT FURTHER RESOLVED that the council requests that said proposed bill for an ordinance be transmitted to the council for consideration and action within 120 days from the transmittal date of this resolution to the director; and BE IT FURTHER RESOLVED that the council shall consider said draft bill for an ordinance following said 120-day review period in order to make modifications, additions, or deletions, which are within the council's authority as the legislative branch of the County of Hawaii; and 3 BE IT FINALLY RESOLVED that the County Clerk shall forward copies of this resolution to Mayor Harry Kim, the County Planning Department, and the Planning Cotmnission. Dated at Hilo Hawaii, this lot b day of T„ I , 2007 INTRODUCED BY: COUNCIL M BER, Q TY HAWA `I t COUNTY COUNCIL ROLL CALL VOTE County ofHawai`i AYES NOES ABS EX Hilo, Hawaii FORD X HIGA X I hereby certify that the foregoing RESOLUTION was by HOFFMANN X he vote indicated to the right hereof adopted by the COUNCIL of the IKEDA X ~ounty of Hawaii on July 10, 2007 JACOBSON X NAEOLE X ATTEST: PILAGO X YAGONG X YOSHIMOTO X 7 0 2 .0 !QP v' Reference: C-472/Pc,-34 ;OUNTY C ERK CHAIRMAN *IDG, CER RESOLUTION NO. 235 07 4 F ~Q:dq COUNTY OF HAWAVT STATE OF HAWAVI ..J~ oype Tp Of M~J, BILL NO. ORDINANCE NO. (LN~4NC~ AN ORDINANCE AMENDING CHAPTER 25 (ZONING CODE), HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO WIND ENERGY FACILITIES WITHIN THE OPEN DISTRICT. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Purpose. The purpose of this ordinance is to allow the development of wind energy facilities within the open district through the use permit process; provided the property is within the state land use agricultural district. SECTION 2. Chapter 25, article 2, section 25-2-61 of the Hawaii County Code 1983 (2005 Edition, as amended) is amended as follows: "(a) The following uses shall be permitted within designated County zoning districts only if a use permit is obtained for the use from the commission: (1) Bed and breakfast establishments in RS districts. (2) Crematoriums in all districts. (3) Churches, temples and synagogues, including meeting facilities for churches, temples, synagogues and other such institutions, in RS, RD, RM, RA, FA and A districts; provided that a minimum building site area of ten thousand square feet is required within the RS, RD, RM, and RA districts. (4) Day care centers in RS, RD, RM, RA, FA and A districts, provided that a minimum building site area of ten thousand square feet shall be required within the RS, RD, RM, and RA districts. (5) Golf courses and related golf course uses including golf driving ranges, golf maintenance buildings, and golf club houses in the RS, RD, RM, RCX, RA, FA, A, V, CG, CV, and O districts. (6) Group living facilities that exceed the criteria in subsection 25-1- 5(b), paragraph (b) of the definition of "group living facility" in the RS, RD, RM, RCX, RA, FA, A, CN, CG, CV, and V districts. EXHIBIT r (7) Hospitals, sanitariums, old age, convalescent, nursing and rest homes, and other similar uses devoted to the care or treatment of the aged, the sick, or the infinn in the RS, RD, RM, RCX, RA, FA, A, and V districts, provided that a minimum building site area of ten thousand square feet shall be required within the RS, RD, RM, RCX and RA districts. (8) Major outdoor amusement and recreation facilities in RS, RD, RM, RCX, RA, A, CN, CG, CV, MCX, ML, MG and O districts. (9) Mortuaries in RS, RD, RM, RCX, RA, RA and A districts. (10) Schools in RS, RD, RM, RA, FA and A districts, provided that a minimum building site area of ten thousand square feet shall be required within the RS, RD, RM, and RA districts. (11) Telecommunication antennas and towers in RS, RD, RM, and RCX districts. (12) Yacht harbors and boating facilities in the RS, RD, RM, RCX, RA, V, CG, CV, MCX, ML, MG and O districts. (13) Wind Energy Facilities in the O district; provided that the property is within the state land use agricultural district. [(1] (14) Other unusual and reasonable uses which are not specifically permitted in any zoning district with tyre approval of the director and the concurrence of the council by resolution. (b) Any use which received an approval as a conditionally permitted use prior to September 25, 1984, or which received prior approval through the use permit process, is considered a legal use of the affected parcel and may be expanded or enlarged without obtaining another use permit, provided such expansion, enlargement or addition is in full compliance with this chapter and the applicable district regulations. (c) A use permit shall not be required for any use described in subsection (a) above, if a special permit is obtained for that use, pursuant to section 205- 6, Hawaii Revised Statutes." SECTION 3. Chapter 25, article 5, division 16, section 25-5-162 of the Hawaii County Code 1983 (2005 Edition, as amended) is amended as follows: "Section 25-5-162. Permitted uses. -2- (a) The following uses shall be permitted in the O district: (1) Aquaculture activities and facilities. (2) Cemeteries and mausoleums, as permitted under chapter 6, articlel of this Code. (3) Community buildings, as permitted under section 25-4-11. (4) Existing churches and temples of historical significance. (5) Forestry. (6) Game preserves. (7) Growing pf plants provided such growth does not impair a view intended to be preserved in the O district. (8) Heiaus, historical areas, structures, and monuments. (9) Natural features, phenomena, and vistas as tourist attractions. (10) Private recreational uses involving no aboveground structure except dressing rooms and comfort stations. (11) Public parks. (12) Public uses and structures, as permitted under section 25-4-11. (13) Telecommunication antennas, as permitted under section 25-4-12. (14) Utility substations, as permitted under section 25-4-11. (b) hi addition to those uses permitted under subsection (a) above, the following uses may be permitted in the O district, provided that a use permit is issued for each use: (1) Crematoriums. (2) Golf courses. (3) Yacht harbors and boating facilities; provided that the use, in its entirety, is compatible with the stated purpose of the O district. (4) Wind energy facilities; provided that the property is within the state land use agricultural district." SECTION 4. Material to be repealed is bracketed and stricken. New material is underscored. In printing this ordinance, the brackets, bracketed and stricken material and underscoring need not be included. SECTION 5. If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. -3- SECTION G. This ordinance shall iaise effect upon i'~s approval, INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of Ist Reading: Date of 2 a Reading: Effective Date: -4- PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT SEPTEMBER 21, 2007 A regularly advertised hearing on the COUNTY COUNCIL INITIATED AMENDMENT TO CHAPTER 25 (ZONING CODE), PERMITTING WIND ENERGY FACILITIES IN THE OPEN (O) ZONED DISTRICT was called to order at 2:44 p.m. at the Waikoloa Beach Marriott, Alii I and II, 69-275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Rene' Siracusa C. Kimo Alameda Rodney Watanabe Takashi Domingo Andrew Iwashita Shelly Ogata Alvin Rho Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler, Representative of Department of Public Works And no one from the public in attendance. INITIATOR: COUNTY COUNCIL Amendment to Chapter 25 (Zoning Code), Hawaii County Code 1983 (2005 Edition), as amended, which would permit wind energy facilities in the Open (O) zoned district. GRAHAM: All right. Third item on our agenda today under New Business, Initiator is the County Council, it's an amendment to Chapter 25, the Zoning Code, which would permit wind energy facilities in the Open zoned district. As with the other initiated by the County Council things that come before us, I believe we're going to have a hearing today, and we'll have one in Hilo also at our next one. So we probably will not take any action on making a recommendation today. So we don't have any public here so I assume we have no public testifiers. And it looks like Norman is standing up so maybe Norman is going to give us a little background report on this Agenda Item 3 of the change in the Zoning Code to permit wind energy facilities in the Open zoned district. Norman. 1 EXHIBIT C HAYASHI: Thank you, Mr. Chair. This particular matter is before you as a result of the County Council adopting a resolution requesting that the Planning Director initiate an amendment to the Zoning Code which would allow wind energy facilities within the County's Open zoned district. Currently the Zoning Code, within the County's Open zoned district wind energy facilities are not a permitted use. However, within the State Land Use Agricultural District and if the properties are within the County Agricultural district, wind energy facilities are permitted. The County Council adopted this resolution as a result of, basically to comply with some of the requirements of the General Plan to provide for energy self-sufficiency by the County, as well as to encourage wind energy facilities as they are clean renewable energy sources which produce no emission or chemical waste. This resolution that the Council adopted also was a result of the Waikoloa Village Association exploring opportunities for wind energy facilities within their lands. They have approximately 250 acres of land which are currently zoned Open around the Village and they would like to possibly establish a wind energy facility within their Open zoned district, lands that are zoned Open. The Planning Director as a result of this resolution did draft a proposed ordinance that is before you today. That's listed as Exhibit 2. And basically this would allow wind energy facilities to be permitted within the County's Open zoned district provided that the land is within the State Land Use Agricultural district; and also that in order to, for the wind energy facility to be established within the Open zoned district, they would have to obtain a Use Permit from the Planning Commission. So that's basically what is being proposed in this particular ordinance as a result of the resolution that was adopted by the Council. As the Chair indicated, this matter is also being scheduled for a hearing, a continued hearing, at the October 5`h Planning Commission meeting in Hilo. Are there any questions? GRAHAM: Any questions, Commissioners? Norman, like in the Ag district wind power facilities are already permitted, is that correct? HAYASHI: Yes. GRAHAM: And there's no HAYASHI: Except that GRAHAM: Use permit required or HAYASHI: No. If the property is within the State Land Use Agricultural District and zoned Agriculture, the use is an outright permitted use. The only reason why this ordinance is here before you today, draft ordinance is here before you today, is because although the property may be within the State Land Use Agricultural district, the County's Open district does not allow wind energy facilities as a permitted use. Therefore, in order to have a wind energy facility allowed within an area zoned Open by the County, this ordinance would require that an individual or an association obtain a Use Permit from the Planning Commission. 2 EXHIBIT C GRAHAM: Yeah, I think I understand that. And the only thing that is kind of coming to me, like I live in the Ag district and I know they built a big wind energy facility in North Kohala. If there's no Use Permit required in the Ag district, I guess subject to the setbacks a guy right next door to me who might be only 50 yards away could build a great big wind turbine and that's that, I have no say about it. But in the Open zoned district there will be a Use Permit so that the neighbors and all can speak to it a little bit. So that's why you may be putting it in the Use Permit, huh? HAYASHI: That's correct. GRAHAM: Thank you. Commissioner Woodward? WOODWARD: I might just share a story that I shared with Mr. Darrow earlier. It was just about wind energy in general because I'm sure any of you that have driven by South Point recently have seen those huge, there's 14 huge windmills that they put up there, 300 feet tall with 90-foot blades on them. And at the most recent Chamber of Commerce meetings one of the board members asked me, well, did that have to go through the Planning Department? So I called Norm and he said, no, first of all it's built on Hawaiian Home lands, so they didn't require anything; but even if it had been on Agricultural land it would have been a permitted use. So then I was curious. I said, well, 'cause some people think, well, they're kind of nice, some people think it's an eyesore. But the question was how much power do these things really put out? They got 14 big, really big, windmills. And I talked to a few people and I looked into it, and I was thinking half a percent maybe of the State power grid. It turns out it's more like almost 10 percent. These 14 windmills can supply 10,000 homes with power, just 14 of them. That blew me away, so to speak, to use the wind analogy. But, anyway, now I'm a believer. You know, I thought, well, they're just tinkering around and this really is not the solution to the problem. You know, it's like solar energy which does some good but it's never going to, you know, take care of our reliance on oil. But this has much more potential. So I just wanted to share that with you. It turns out that these things, like I say, just these 14 windmills supplies between 7 and 10 percent of the power grid for the State of Hawaii right now. GRAHAM: You mean the State or the County? WOODWARD: I mean the County, excuse me, the County, yeah. DOMINGO: Mr. Chairman? GRAHAM: Yes, Commissioner Domingo. DOMINGO: Norman, under the Agricultural designation, you know, I often hear a Use Permit is required and/or a Special Permit. What are the differences and what are the implications of a Use Permit and a Special Permit, when you look at both of them? 3 EXHIBIT C HAYASHI: A Special Permit is a permit that is allowed or granted through the Planning Commission for any use that is requested and that is not allowed within the State Land Use Agricultural or Rural districts; and that comes before the Planning Commission. For instance, if you wanted to have a church within a property that is designated Agricultural by the State, and if the property is less than 15 acres and you wanted to establish that church, then you would apply and it will come before this particular body for approval. A Use Permit is a permit that is required for certain uses that are not allowed by the County's zoned district. And the Zoning Code specifies what kind of uses may be submitted and approved through the Use Permit process. So that's basically the difference between the two. One is the State, because of the State Land Use Law you're required to submit the Special Permit for certain uses that are not allowed within the Agricultural and Rural districts. A Use Permit would be on the County level, it's a County zoning, a permit that is approved as a result of what's stated in the County Zoning Code. So that's basically on the County level. DOMINGO: So then an applicant can come in, if a certain use is stipulated and permitted, you can just come in and apply the permit for that and go ahead and build whatever they want to? HAYASHI: That's correct. If you're referring to say if a windmill is proposed within the State Land Use Agricultural district and County Agricultural district, that is an outright permitted use, both on the State and County level. So basically what they would do is come in for a building permit. GRAHAM: Any other Commissioners? DOMINGO: You know, one more thing. GRAHAM: One more thing. Commissioner Domingo. DOMINGO: Thank you. For instance, like telecommunication antennas, you can just go in the Agricultural district and put one up, yeah? HAYASHI: Right now, that's a question that we're still dealing with Prior to this past Legislative session telecommunication antennas were required to obtain a Special Permit if they were within the State Land Use Agricultural district. However, this past session the Legislature adopted the change to the Land Use Law which would allow telecommunication antennas as a permitted use within the State Land Use Agricultural District. There's some matter of interpretation as to what constitutes an antenna or a tower. So that's something we're still trying to deal within our Department. YUEN: Well, the antenna is allowed now, the tower still needs a Special Permit. GRAHAM: Thank you, Mr. Yuen. 4 EXHIBIT C DOMINGO: What does an antenna YUEN: What that means is that you, say there's a telephone pole, or a barn, or another legal structure in the State Land Use Agricultural district. The antenna itself is a little thing that sticks up. Say a cell phone antenna, it's not a very big structure. That is now allowed, you don't need a Special Permit for the antenna. But if you're going to build a tower, you still need a Special Permit. DOMINGO: You know, my concern here is that, you know, like for instance might be the antenna or for windmill, there may be adverse impacts or, you know, it might be aesthetically not blending in with the surrounding environment. And those have been some of the issues expressed in the past. So what I'm concerned is that, you know, if a hearing procedure is established then the people can respond to it and the Commission can make their decision accordingly. And I think the public should have the ability to respond to those things. WOODWARD: They had it, they're just not here. GRAHAM: Thank you, Commissioner Domingo. Commissioner Woodward's comment WOODWARD: One other comment. GRAHAM: Go ahead, Commissioner Woodward. WOODWARD: You could put your antenna on top of the windmill and that would be no problem. GRAHAM: Okay. YUEN: But just so we're really clear here, what's being proposed in this is a Use Permit. So there would be an application that comes to the Panning Commission and public notice. That's for a wind turbine that's in State Land Use Ag and County Open zone. GRAHAM: Okay. I think we have all the parameters. We don't have any public here. Commissioner Alameda, did you have something further? ALAMEDA: Sure, thanks. I just wanted to add my comments. I like the fact that it's still, gets to go through Special Permit because of the visual impacts, the noise, the birds, right? So we still have a chance to say this is okay, this is the right place. So I think it's a good legislation. I'll vote for it, but got to wait. GRAHAM: All right, thank you, Commissioner Alameda. Any further comments from the Commission before we sort of adjourn this agenda item until our next 5 EXHIBIT C meeting in Hilo? All right. Norman, I guess that's all. Thank you for your presentation. The discussion ended at 2:58 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary ATTEST: Noriko Sauer, West Hawaii Secretary 6 EXHIBIT C PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT OCTOBER 5, 2007 A regularly advertised hearing on the COUNTY COUNCIL INITIATED AMENDMENT TO CHAPTER 25 (ZONING CODE), PERMITTING WIND ENERGY FACILITIES IN THE OPEN (O) ZONED DISTRICT was called to order at 9:10 a.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: C. Kimo Alameda Takashi Domingo Andrew Iwashita Shelly Ogata Alvin Rho Rene' Siracusa Rell Woodward Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Jeff Darrow, Staff Planner And approximately 12 people from the public in attendance. INITIATOR: COUNTY COUNCIL Amendment to Chapter 25 (Zoning Code), Hawaii County Code 1983 (2005 Edition), as amended, which would permit wind energy facilities in the Open (O) zoned district. GRAHAM: All right, the first item on our agenda today under unfinished business, the initiator of this unfinished business item is the County Council. And the content is a proposed Amendment to Chapter 25 of the Zoning Code, which would permit wind energy facilities in the Open (O) zoned district. Now because this is a Zoning Code Amendment, we're here to take testimony and only make a recommendation to the County Council who will take final action on this. Jeff, could you give us a little description, please. DARROW: Sure. Thank you, Mr. Chairman. Good morning, Mr. Chairman and Members of the Planning Commission. This is a continued hearing. We heard this matter at our last Kona meeting. This is a County Council initiated amendment to the Chapter 25 of the Zoning Code. The County Council has requested that the Planning Director initiate an amendment to Chapter 25 of the Zoning Code which would permit wind energy facilities in the Open zoned district. The reasons for this request are stated within Resolution 235 07 which is Exhibit 1 within the Background and Recommendation. 1 The Planning Director basically supports the County Council amendment, initiative, but also requests that these wind energy facilities be permitted in the Open zones with a Use Permit, as well as also be located within the State Land Use Agricultural District. So this would be an amendment to two sections within the Zoning Code, Chapter 25-2-61, which is permitted uses requiring a Use Permit. This would be Subsection (a), No. (13), and it would say "Wind energy facilities in the Open district provided that the property is within the State Land Use Agricultural District." Additionally, there would be a change to Section 25-5-162 which are permitted uses within the Open District under Subsection (b), which are those uses that would require a Use Permit. And it would be No. (4) which basically says the same thing, "Wind energy facilities; provided that the property is within the state land use agricultural district." Are there any questions? GRAHAM: Commissioners, are there any questions? WATANABE: Yeah. GRAHAM: Commissioner Watanabe? WATANABE: Jeff, the Director wanted to also make sure that a Use Permit was required, yeah? DARROW: Correct. WATANABE: But where is that change of ordinance? DARROW: This would be in Exhibit No. 2. WATANABE: Did I miss it? Oh, okay. On this page 2, okay. This one. DARROW: The exhibit is actually that. This is the, right there. I'm not sure why it's not listed as Exhibit 2 on yours. You can use this one if you'd like. WATANABE: Oh, okay. I'd like to follow-up? GRAHAM: Go ahead, Commissioner Watanabe, follow-up. WATANABE: The other question is why is it limited to only State Agricultural district? DARROW: The Planning Director in his Background and Recommendation stated that most Open zones that are located within Urban, State Land Use Urban Districts are mainly made up of Resort areas as well as golf courses and are probably not the proper location for wind energy facilities. WATANABE: Okay, thank you. 2 GRAHAM: Okay. Commissioner Domingo, you had a question? DOMINGO: Yes, Mr. Chairman. If one wishes to build a wind energy farm, what would be the requirements today? DARROW: If they're located within the Open zone, they would have to submit a Use Permit to the Planning, oh, and the State Land Use Agricultural district, they would have to submit a Use Permit to the Planning Department, which would be processed and then brought before the Planning Commission for approval,and go through a public hearing process. DOMINGO: That's what's being proposed right now, isn't it? DARROW: Correct. DOMINGO: Before we adopt this measure, what would then be the requirement? DARROW: I believe they would be required to come in for a Plan Approval once there was an approval from the Planning Commission; and then whatever conditions that would be placed on that Use Permit by the Planning Commission, they would have to comply with those requirements. DOMINGO: And that would be permitted in any district? DARROW: Well, right now wind energy facilities are permitted in certain districts, but in the Open zoning district they are not permitted. So this allows them to be permitted within those zoning districts as well as in the State Land Use Agricultural District, but with a Use Permit. GRAHAM: Maybe Mr. Yuen could YUEN: Yeah, I think the question was really at, under current law today before you pass this, and in the State Land Use Ag district, plus County Ag zoning, you can build a wind energy facility with just a building permit. And that's about, that describes about 95 percent of the State Agricultural District, probably more than 95 percent. This amendment only pertains to the very small area within the Agricultural district that's zoned Open, which this is instigated by Volcano, I'm sorry not Volcano, Waikoloa Village Community Association. There's an Open space buffer surrounding Waikoloa Village and the Association is interested in leasing an area within that for a wind energy facility which is not currently allowed under current law. So that's, you know, there's a reason behind some of these things emerging. DOMINGO: Yeah, I realize that, I suspect that. You know, what they say is beware of what you ask for. Now, you know, can you imagine Waikoloa is building up now, and if they decide to establish a wind farm there, you know, what impacts will it 3 cause and what anxieties will be brought up on the people who sit on the Board of Directors or the Association or, you know, who make these kinds of suggestions. And that's why I say beware of what you ask for, because in the future it might come to haunt them. YUEN: Yeah, well, that's why we thought a Use Permit would be a good idea. There are areas, it is unusual for there to be an Open zone, so typically there's some reason behind it. And in the case of Waikoloa, it was, the whole master planning of the community included this Open space buffer around it. They're not that many other areas. Puuanahulu golf course, for example, is now in an Open zone, State Ag. But there are lots of, it's pretty easy to do a wind farm in most of the Agricultural areas of the island because they're not zoned Open. And so all you need us a building permit. So we do, it does come to the Planning Department, the Planning Department looks at it, but we don't make any kind of regulations on it. There's also a setback distance from the edge of the property, but mostly to account for the fall distance of the tower. So those are the current rules. GRAHAM: All right, do we have any other questions for Jeff from the Commissioners? We have no one signed up to testify yet. Is there anyone who wanted to testify on this agenda item today? Well, we don't have public testimony. Commissioner Siracusa? SIRACUSA: And so if there's no public testimony, can we then go on to have a motion so that we can go into discussion? GRAHAM: I believe that'd be correct. Mr. Torigoe, could you just give us a, first, just a little set on how we should do a motion in the sense that we have a proposition initiated by the County Council and then there's a slight modification to it made by the Planning Director. So what would be the appropriate way for us to handle the motion? TORIGOE: Okay, going back to your rules, basically Rule 11-3 (c) discusses Council-initiated amendments, and you've got a 120-day review period, and then the Commission shall transmit the proposed amendment together with its recommendation through the Mayor to the Council. The Commission shall recommend approval in whole or in part, with or without modifications, or rejection of such amendment. So you basically will move to recommend either an approval or a rejection. You can make the recommendation including some modifications. So say if somebody wanted to just go along with what the Director is proposing, then basically it would be recommending an approval with the modifications suggested by the Planning Director. GRAHAM: Thank you, Mr. Torigoe. Commissioner Siracusa? SIRACUSA: Okay, that said, I will make the motion to pass a favorable recommendation to the County Council on the Council-initiated amendment to Chapter 25 of the Zoning Code, Hawaii County Code, 1983 (2005 Edition), as amended, 4 which would permit wind energy facilities in the Open (O) zoned district and require a Use Permit. GRAHAM: Thank you, Commissioner Siracusa. Do I have a second? WATANABE: Second. GRAHAM: Seconded by Commissioner Watanabe. Any discussion from the Commissioners? Jeff, I think we can move to a vote then and conclude this item. DARROW: Thank you, Mr. Chairman. The motion before us is to approve the County Council initiated amendment along with the Planning Director's amendments. With that I'll take the roll. Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes six to zero. GRAHAM: Thank you, Jeff. The discussion ended at 9:21 a.m. Respectfully submitted, Sharon N. Nomura, East Hawaii Secretary 5