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HomeMy WebLinkAboutCOM 0998.007 2006-2008 CARLSMITH BALL LLP A LIMITED LIABMM LAW PARTNERSHIP 121 WAIANUENUE AVENUE P.O. Box 686 Hno, HAWAII 96721-0686 TELEPHONE 808.935.6644 FAX 808.935.7975 W W W.CARLSMrrH.COM SLIMOCARLSMmi.COM OUR REFERENCE NO.: 05BB225-1 April 7, 2008 0 VIA HAND DELIVERY 0 n C. Honorable Angel Pilago, Chair = .a and Members of the Committee on Planning Hawaii County Council 333 Kilauea Avenue, Second Floor y- rv Hilo, HI 96720 ro Re: Kohala LLC - Bill No. 237 Tax Map Key No. (3) 5-9-001: 008 (37.88f acres) at North Kohala, Hawaii Planning Director-Initiated Downzoning Change of Zone (REZ 07-000067) From RS-15 District to RA-5-a District. and Repeal of Ordinance No. 97-102 Dear Chair Pilago and Members of the Committee on Planning: We represent Kohala LLC, the owner of the above referenced property located in North Kohala (the "Subject Property On April 1, 2008, upon immediately being informed of the Committee on Planning agenda for April 8, 2008, I submitted a letter informing the Committee on Planning that Kohala LLC and I would be unable to attend. We requested deferral to the next meeting scheduled for April 21, 2008. By letter dated April 4, 2008, Chairman Angel Pilago informed our office that despite our request, he would recommend that full discussion and action be taken on the above-referenced matter at the April 8, 2008 meeting. As I cannot attend the Committee on Planning meeting, I wish to submit this written testimony and again request that Kohala LLC be allowed to make its full presentation on this important matter at the next scheduled meeting on April 21, 2008. We are writing to inform you of serious legal issues that will arise should the Hawaii County Council approve the Planning Director's request to downzone the Subject Property from RS-15 to RA-5a and repeal Ord. No. 97-102 (collectively the "Downzoning"). The proposed Downzoning is illegal, the procedures followed to effect the proposed Downzoning are illegal, and the failure to consider reasonable alternatives to the proposed Downzoning is likewise illegal. We appreciate your consideration of these issues and believe that after consultation with Corporation Counsel, you and the other members of the Hawaii County Council, will agre at~ A Gomm. No. ' I Ref. Tol fro i Ow ~ Ref. Dote HONOLULV KAPOLEI HILO KONA MAN GUAM SAIPAN LOS ANGELES Honorable Angel Pilago, Chair April 7, 2008 Page 2 the numerous legal defects with the proposed Downzoning mean that the Council cannot comply with the Planning Director-Initiated Downzoning at this time. The Downzoning is illegal for the following reasons: (a) it amounts to a taking without compensation; (b) it is a violation of Kohala's rights of substantive due process; (c) it is a violation of Kohala's rights of procedural due process and possibly in violation of Kohala's rights to equal protection under the laws; and (d) it contravenes Hawaii's Environmental Protection Act, Chapter 343, Hawaii Revised Statutes. 1. Taking Without Compensation Currently Kohala has the right to develop 50 single family lots on the Subject Property. Under the Downzoning, Kohala would be able to develop no more than 7 single family lots. In other words, in enacting the Downzoning the Council would make Kohala suffer an 85% reduction in the number of permitted lots, a huge taking of Kohala's property interests. This matter is best explained by Professor David L. Callies, property law professor at the William S. Richardson School of Law and published author of numerous books and articles on the law of takings. Please see Professor Callies' letter to me, dated March 25, 2007, enclosed herein as Exhibit A. II. Substantive Due Process Violations The right of substantive due process (protected under the U.S. and Hawaii State Constitutions) means that an individual is protected from unfair and arbitrary governmental action. Governments cannot be discriminatory and apply laws with an "evil eye" or "an unequal hand." The Downzoning smacks of bias; it is unfair, irrational and arbitrary, and if passed will give rise to Kohala's claim for denial of its rights of substantive due process.] Why is Kohala being targeted as the sole landowner to face such an involuntary downzoning? The County simply does not do this. In fact, over the past 8 years, the County has not processed any involuntary downzonings. According to the Planning Director, the last involuntarily downzonings occurred in 1982, more than 25 years ago, and even those 1982 downzonings were in response to the General Plan amendment in 1979. This history is more fully described in my letter of March 18, 2008, to Chairman Rodney Watanabe and copied to you. Since Kohala's first appearance in front of the Planning Commission in July 2007, we have been asking "why Kohala LLC?" Seven months later, with the benefit of a lot more research into the Planning Department's files, we still do not understand why the Planning Director has decided to make Kohala LLC the sole target for the Downzoning. i A very recent Ninth Circuit decision made clear that property owners have independent causes of action with respect to takings claims and due process claims. In other words, Kohala is free to file an action on its takings claim (taking of property without just compensation) separate from any due process claim (victim of irrational and arbitrary land use regulations). See Crown Point Development, LLC v. City of Sun Valley, 315 F.3d 851 (9th Cir. 2007). Honorable Angel Pilago, Chair April 7, 2008 Page 3 A. Nothing Has Changed Because of the 1979 General Plan amendment, the 1982 downzonings made sense. The General Plan designation of the properties had changed to less intensive uses and the downzonings were enacted to bring the properties into compliance with the amended General Plan. Such is the proper procedure the County must follow when passing downzoning ordinances. However, in Kohala's case there was no General Plan amendment to trigger the Downzoning. Despite the opportunity to amend the General Plan in 2005, the LUPAG designation of the Subject Property is the same today as it was when Ord. 97-102 was passed; mostly Low Density Urban with a portion of Extensive Agriculture and a swath of Open along the shoreline. Nothing has changed, therefore the Downzoning is illegal 2 The State Land Use designation for the Subject Property is, as it was at the enactment of Ord. No. 97-102, Urban. Therefore, the Low Density Urban LUPAG designation is appropriate and accordingly was not changed during the 2005 General Plan amendment. In contrast, property directly to the north (TMK No. (3) 5-9-003: 001), is within the State Land Use Conservation District. Thus, in 2005 it was recognized that the Extensive Agriculture LUPAG designation was not appropriate, and it was changed to Conservation. See E-6 on North Kohala map 2 and Bill 163, enclosed herein as Exhibit B. Similarly, property to the south was changed from Medium Density Urban to Low Density Urban (See E-5). Most importantly, the Subject Property was not touched. If the County truly believed that RS-15 zoning was no longer appropriate, why did it fail to alter the LUPAG designations in 2005, when obviously it was scrutinizing the zoning and LUPAG designations in the surrounding areas? Today, just like in 1997, the Subject Property is identified as an area of Natural Beauty under the General Plan. Obviously that designation is consistent with RS-15 zoning, otherwise Ord. 97-102 would never have been enacted. In his Background Report, the Planning Director attempts to support the Downzoning by explaining that the surrounding properties are zoned A- sa. What he fails to mention is that the surrounding properties were zoned A-5a in 1997, when Ord. 97-102 was enacted. See Zoning Map attached to Ord. 97-102, enclosed herein as Exhibit 2 In 1997 the Planning Director made specific findings that the Kohala LLC proposed 50-lot RS-15 zoned residential subdivision complied with the General Plan: The proposed development is consistent with the County General Plan and Zoning Code. The proposed project does conform to the General Plan Land Use Patten Allocation Guide (LUPAG) Map, which designates this area for Low Density Urban. Lot Density designation refers to single family residential in character, ancillary community and public uses and convenience type commercial uses. This designation does not refer to density limitations however, this designation generally has been at a density of 4 units per acre. The average density relating to the proposed request (50 lots over 38+ acres) would amount to 1.5 units per acre. Therefore, it is determined that the request is consistent with the urban form depicted on the LUPAG Map for this area of North Kohala. See SMA Permit No. 379 at 4. Honorable Angel Pilago, Chair April 7, 2008 Page 4 C. The Planning Director's Background Report insinuates that the Downzoning will somehow be more consistent with the Natural Beauty goals under the 2005 General Plan. The General Plan's Natural Beauty goals are exactly the same today as they were when Ord. 97-102 was enacted. The same can be said for the Natural Beauty Standards. The Natural Beauty policies are almost identical today as they were in 1997, and the minor changes cannot fairly be called significant, especially in light of the overall maintenance of the entire Natural Beauty section. 111. Procedural Due Process and Equal Protection The Council may not pass laws without following proper procedures. Alarmingly, from the start, the Downzoning has been pushed along with less than scrupulous regard for public notice or landowner notice requirements. These issues are set forth more fully in my letter to the Planning Commission dated December 7, 2007, and to County Clerk Jarman, dated February 1, 2008, copies of which are enclosed herein as Exhibits D and E respectively. Procedural irregularities give rise to Kohala's claim that its rights to procedural due process have been violated. Uneven application of County procedures and disregard of Kohala's numerous attempts to find a workable solution to address the Planning Director's concerns, raise questions over whether Kohala is being provided equal protection under the laws. Despite its strong legal position, Kohala remains open to working with the County to find a legal and fair way of addressing the concerns raised in the Planning Director's Background Reports. Kohala has offered to voluntarily bring its permitted lot count from 50 to 25. To date, Kohala's attempts have been rebuffed, strengthening its belief that the Downzoning is not a fair and rational legislative action, but rather an irrational, isolated and targeted attack. IV. Non-Compliance with Haw. Rev. Stat. § 343 Requirements By the Planning Director's own words, an environmental assessment must be prepared prior to this proposed Downzoning. Therefore, the Downzoning cannot be enacted until an EA/EIS is conducted. See Planning Director's memorandum to County of Hawaii staff dated October 3, 2007, enclosed herein as Exhibit F. The Planning Director's memorandum states that: [A] rezoning or a county council state land use boundary amendment is not the type of approval that will create the need for an EA, because state law defines the EA trigger as an "agency action", and the county council is not an "agency" under Chap. 343. It is not part of the executive branch of government. However, a rezoning is almost invariably followed by a subdivision or plan approval, which is an "agency action." Because Chap. 343 says that an EA should be done at the earliest practicable time, if a rezoning has a "trigger" for an EA, and if it is Honorable Angel Pilago, Chair April 7, 2008 Page 5 not exempt, and if the rezoning is going to be followed bya subdivision or plan approval, then the EA should be done prior to the rezoning. In the case of a rezoning that would not be followed by a subdivision or plan approval (which is probably rare), no EA will be required, even if there is a trigger. (Emphasis added.) Exhibit F at 3. By the Planning Director's admission, it is anticipated that the Downzoning would be followed by a subdivision of the Subject Property into 7 lots. Therefore, processing of an EA pursuant to the requirements of HRS Chapter 343 must be conducted prior to the Downzoning being enacted by the Council. Failure to follow stated County procedure with respect to rezonings and the preparation of an EA will only further Kohala's claims of substantive and procedural due process violations. V. Conclusion We respectfully request that the Planning Committee take these serious issues into consideration. The proposed Downzoning is illegal, unfair and unnecessary. Kohala has demonstrated a willingness to work in collaboration with the County to find acceptable and legal development criteria for the Subject Property. However, in the absence of any such collaboration, Kohala has also demonstrated a willingness to fight hard to retain its valuable and Constitutionally protected rights. At a minimum we ask you and the Council to defer action on the proposed Downzoning at least until the required EA has been prepared. Very truly yours, Steven S. . Li SSL/ghs Attachment(s) cc: Kohala LLC Amy Self, Esq., Attorney for the Planning Director Casey Jarman, Esq., County Clerk Lincoln Ashida, Esq., Corporation Counsel 4816.0888-8322.2 ' See, Planning Director's Background Report, at 7 (July 10, 2007): "More specific viewplane controls could be established if an Special Management Area permit is applied for (Subdivision of the property to 5-acre lots would still need an SMA Permit)." (emphasis added); Planning Director Getter to Committee on Planning, dated March 5, 2008, at 2, "The most important reason to rezone the property to RA-5a is to limit the total amount of development to preserve some of the open space in the area. This would be much easier to do in a development of seven homes, as would be allowed under the RA-5a zoning, rather than fifty homes." (emphasis added.) Steven S.C. Lim Carlsmith Ball LLP 121 Waianuenue Ave. P.O. Box 686 Hilo, Hawaii 96721 March 25, 2008 In Re: Kohala LLC Property Dear Steve, You have asked that I review certain documents, memoranda and correspondence in connection with the proposed development by Kohala LLC of a 50-lot single-family home development on a parcel containing approximately 37 acres in the County of Hawaii. I understand that the State Land Use Commission has classified the land in the urban district and the County has classified the land in the RS-15 Single Family Residential district, but that the County, at the insistence of the County Planning Director, may soon reclassify the parcel as RA-5a, Residential and Agricultural district. The result would be to reduce the number of allowable single-family lots from at least 501 to 7. I further understand that Kohala LLC purchased the subject parcel shortly after it was rezoned to its present classification, and that the parcel is being reclassified ostensibly because of the lapse - nearly 5 years ago - of a zoning condition requiring the landowner to obtain final subdivision approval for the proposed 50-lot residential development within five years of the said rezoning. Lastly, I further understand that the applicable plans for said parcel are virtually unchanged from the date - more than 10 years ago - that the County reclassified the parcel to its present zoning district, that the principle reasons given by the Planning Director (besides the lapse of the subdivision condition) have mainly to do with open space, view preservation and natural beauty, but that the County Planning Commission found that the proposed 50-lot development would "not have any adverse environmental or ecological effect" nor any "substantial adverse impacts on the surrounding area" and would in fact be "consistent with the objectives and policies of Chapter 205A, HRS, relating to Coastal Zone Management" during the course of evaluating - and granting - a request for a coastal zone special management area permit, also approximately 10 years ago. There are at least two principle problems with the proposed downzoning which decreases the allowable residential density by over 85%: the downzoning raises (1) serious partial regulatory taking issues under the 5`h Amendment to the U.S. Constitution, and (2) serious substantive due process of law issues under the 14`h Amendment to the U.S. Constitution. The documents you provided also indicate that the County's actions with respect to Kohala LLC may give rise to grave procedural due process issues under ' Although approximately 107 lots would be pemtined on the 38-acre property under RS-15 zoning, I understand that the actual pemnitted density under Ordinance 97-102 and SMAP No. 379 is 50 lots. EXHIBIT A Steven S.C. Lim March 25, 2008 Page 2 the 14th Amendment. However, this analysis will briefly address the takings and substantive due process issues only. Partial Takings. The taking of private property without compensation is unconstitutional under the Fifth Amendment to the U.S. Constitution ("...nor shall private property be taken for public use, without just compensation.'). While arguably drafted principally to protect private landowners from physical takings without compensation, since at least 1922 and the decision of the U.S. Supreme Court in Pennsylvania Coal Co. v. Mahon 260 U.S. 393 (1922) a regulation of land which goes "too far" is also a taking for which government must pay compensation. A partial taking by regulation occurs when a land use regulation deprives a landowner of use and value beyond the normal reduction, if any, caused by the necessary exercise of the police power for the health, safety and welfare of the people, but stops short of depriving the owner of all economically beneficial use. The government's rationale for the regulation and the economic effect of the regulation on the landowner are critical factors which a reviewing court weighs in deciding whether a landowner has suffered a partial taking of property. When the County Planning Director suggests - as he does several times in the documents which I reviewed - that the U.S. Supreme Court found no regulatory taking so long as there was a single house permitted on a parcel of land, he vastly overstates the reach of the case he cites: Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Such a single-house use defeats only a total or "categorical" regulatory taking claim under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). As the Lucas case suggested in footnote eight of its opinion, an owner who has suffered less than a full deprivation of economically beneficial use "...might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, '[tjhe economic impact of the regulation and the extent to which the regulation interfered with the distinct investment-backed expectations' are keenly relevant to the takings analysis generally." The case cited by the Court, and from which it quotes above is Penn Central Transportation Co. v. New York City. 438 U.S. 104 (1978), in which the Court set out the framework for deciding partial regulatory taking cases. The Court suggested "several factors" which have "particular significance" when it engages in "these essentially ad hoc, factual inquiries": 1. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with the distinct, investment- backed expectations; 2. The character of the governmental action; Steven S.C. Lim March 25, 2008 Page 3 3. Whether the taking is physical or if "the interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Penn Central, 438 U.S. at 124. Adjusting the benefits and the burdens - the relevant part of the third criteria - is probably of little importance after Lucas given the Court's language there excoriating regulation which merely confers a public good and for which the Court clearly states the public as a whole should pay rather than a single landowner. From some of the language which the Planning Director uses, and given some of the material he cites, one is left with the impression that this sort of "public good" is what he would prefer to accomplish if he could. That leaves the economic effect on the landowner and the character of the government's action as the primary focus of a partial regulatory taking case. In the present situation, it is difficult to avoid concluding that Kohala LLC had distinct investment-backed expectations to build at least 50 homes on 50 lots, as approved by the Planning Commission under the aforementioned SMAP. In other words, the economic effect on the landowner is substantial, and its distinct - indeed, quite reasonable under the circumstances - investment-backed expectations would be dashed should the County downzone the parcel as recommended by the Planning Director. Certainly the Court has used the investment-backed expectation standard in conjunction with the other Penn Central standards, thus holding in Hodel v. Irvin. 481 U.S. 704 (1987) that the 1983 Indian Land Consolidation Act took property without compensation even though the plaintiff had no investment-backed expectations whatsoever, because the Court deemed the economic impact on the plaintiff otherwise "substantial" and the character of the governmental action "extraordinary." Hodel. 481 U.S. at 709. The "character of the government action" standard has "morphed" into something different from the Court's original meaning in Penn Central. As the Hodel case cited in the preceding subsection indicates, it no longer means whether the taking was physical or regulatory (what the Court arguably meant in Penn Central) but rather the police power basis for the governmental action. Thus, the "extraordinary" nature of the governmental action in Hodel helped persuade the Court that a partial regulatory taking had occurred. So also a court in Maine emphasized the importance of the character of the governmental police power action in preserving sand dunes (citing Penn Central) in Fichter ex rel v. State Board of Environmental Protection, 2000 WL 33676710 (Me.Super.). In the present case, all the reasons posited by the Planning Director in favor of the downzoning of the subject parcel are related to the general welfare, rather Steven S.C. Lim March 25, 2008 Page 4 than health and safety, as noted in this letter's opening paragraphs. This is the weakest leg of the police power - welfare - as well as the least defensible - aesthetics/views. As the California court of appeals noted in its decision in the First Lutheran case on remand, courts are willing to balance the equities more in favor of government when the challenged regulation is for health and safety purposes rather than welfare, and in favor of the landowner when the challenged regulation is for welfare purposes rather than health and safety. For all these reasons, Kohala LLC can make a very good case for a partial regulatory taking of its property without compensation in violation of the Fifth Amendment under the Penn Central standards and criteria which govern such partial takings according to the U.S. Supreme Court in Lucas and Palazzolo. Due Process. At the heart of a claim for denial of substantive due process is protection against arbitrary and capricious governmental actions regardless of the process used to implement such actions. In other words, regardless of the "trigger" that leads the County Planning Director to seek downzoning of the subject parcel - the running of the 5-year time period for obtaining subdivision approval - rezoning is essentially a legislative act that must be done fairly, rationally and without bias. Thus, for example, if it is true that Kohala LLC stands virtually alone in the class of landowners subject to such rezonings because it is the only landowner whose property has so been downzoned over landowner objections, then the process does not appear either fair or rational. The irrationality and unfairness of the proposed downzoning is further demonstrated by the fact that it has not been preceded by any parcel-specific changes to the General Plan, despite the fact that the County of Hawaii did a wholesale amendment to the General Plan in 2005. From the materials you provided, I understand that the series of downzonings that took place in the County of Hawaii in the early 1980s was in response to such a General Plan amendment in 1979. Questions over fairness were at the heart of at least two U.S. Supreme Court cases finding government regulation unconstitutional on fairness grounds, one explicitly on substantive due process grounds, and one implicitly so. In Eastern Enterprises v. Anfel, 524 U.S. 498 (1998) the Court held that economic regulation could effect a taking of property. Justice Kennedy's concurring opinion was based on the ground that the petitioner had been deprived of its substantive right to due process because of the large financial burden placed on the petitioner. In City of Monterey v. Del Monte Dunes at Monterv. Ltd., 526 U.S. 687 (1999) the Court expressed concern about the significantly protracted manner in which the petitioner's applications for development were treated by the City, even though it ultimately decided the case on Fifth Amendment taking grounds. It is therefore reasonable to characterize the County of Hawaii's singling out of Kohala LLC as a situation which at least raises significant substantive due process issues of fairness and rationality, particularly since, as noted in the opening paragraph of this letter, virtually nothing about the parcel and its present zoning classification has Steven S.C. Lim March 25, 2008 Page 5 changed over the past 10-plus years, with the exception of the naming of a 5-year time period. This is hardly the stuff of rational bases upon which to make a legislative determination for a change in zone classification resulting in a drastic density decrease from 50 lots and residences to seven. If I can be of further assistance in defining applicable constitutional and legal principles to this matter, let me know. avid L. Callies, FAICP, ACREL Kudo Professor of Law William S. Richardson School of Law The University of Hawaii at Manoa 4u` AO ' l ~ ~r SN ft. 1 L O u4r ~ P~ya ~ F. 1 TI. ' t F lYt.. I ` O I{ ~'Q )FN. \ A Ilk r. SL$ F f y Sa s ~ r^• W SDKs c 4' a z rod ~ o W y ~ C tl d ~ O W m A N J r K ~ U ~ ~ c 2 d 6 m 6 ~ _ aa`3~ c m `m ° G y. 2 uzr~y 'o c T m w y Qm m a Q m o o Q T m V E tt `l ? S! m O R] l0 m O O p 'O 'O rz C N E¢ m N m m m p m °p m o ` $ m m a c ° n O o W i(m K Tc U m' v o A m o a a o. e P m. = rn w2wwg Wfo uu~JEOaaa aa~ g ~ a:n (or a a wwww EXHIBIT B NORTH KOHALA DISTRICT North Kohgla 1 Man ffCI to E-3) E-1 Intensive and Extensive Agriculture to Rural Location: Halawa Rationale: To recognize the current State Land Use Rural District at Halawa. E-2 Urban Expansion Area to Low Density Urban Location: North side of Hawt Rationale: The lands between Rawt and the Kohala High and Elementary School are more suited for Low Density Urban uses E-3 Intensive Agriculture to Low Density Urban Location: West of Kahei House Lots in Hawi Rationale: The area is used for single family residential uses, therefore, the Low Density Urban designation is more appropriate for the area. North Kohals 2 Map (E4 toE-J) E4 Extensive Agriculture to Rural Location: Portion of the Kohala Estates Subdivision Rationale: This portion of the Kohala Estates Subdivision is residential- agricultural in character and will therefore fit the description of Rural. E-3 Medium Density Urban to Low Density Urban Location: Kohala Makai area situated northwest of the North and South Kohala district boundary Rationale: The area was subdivided into single family residential sized lots. BILL 163 DRAFT 1 1/16/2002 12 E-6 Extensive Agriculture to Conservation Location: Along the makai side of Akoni Pule Highway in the vicinity of the Koha/a Ranch entrance Rationale: The area is currently within the State Land Use Conservation District. E-7 Extensive Agriculture and Urban Expansion to Conservation Location: South of Mahukong the majority being makai of Akom Pule Highway Rationale: The area is currently within the State Land Use Conservation District. 13 NORTH KOHALA DISTRICT North Kohala 1 Map (E-1 to E-3) E-1 Intensive and Extensive Agriculture to Rural Location: Halawa Rationale: To recognize the current State Land Use Rural District as Halawa. Modification: Intensive and Extensive Agriculture to Rural Agriculture E-2 Urban Expansion Area to Low Density Urban Location: North side of Hawi Rationale: The lands between How and the Kohala High and Elementary School are more suited for Low Density Urban uses. E-3 Intensive Agriculture to Low Density Urban Location: West of Kahei Houselots in Hawi Rationale: The area is used for single family residential uses, therefore, the Low Density Urban designation is more appropriate for the area E-3a Initiation: Intensive Agriculture to Rural-Agriculture Location: Malin Ridge Rationale: Subdivision has one-sere lots similar to RA Designation North Kohala 2 Mao (E-4 to E-7) E-4 Extensive Agriculture to Rural Location: Portion of the Kohala Estates Subdivision Rationale: This portion ofthe Kohala Estates Subdivision is residemial-agricultural in character and will therefore fit the description of Rural Modification: Extensive Agriculture to Rural Agriculture E-5 Medium Density Urban to Low Density Urban Location: Kohala Makai Area situated northwest of the North and South Kohala district boundary Rationale. The area was subdivided into single family residential sized lots. E-6 Extensive Agriculture to Conservation Location: Along the makai side ofAkoni Pule Highway in the vicinity of the Kohala Ranch entrance Rationale: The area is currently within the State Land Use Conservation District. E-7 Extensive Agriculture and Urban Expansion to Conservation Location: South of Mahukona, the majority being makai ofAkoni Pule Highway Rationale: The area is currently within the State Land Use Conservation District BILL 163 DRAFT 2 6/4/2004 9 NOTE: REFER TO DRAFT 2 LUPAG, FACILITIES AND OTHER MAPS BILL 163 DRAFT 3 11/10/2004 COUNTY OF HAWAII GENERAL PLAN • 82 COUNTY OF HAWAII STATE OF HAWAII BILL NO. •(9~ n ORDINANCE NO. 9:' 102 AN ORDINANCE AMENDING SECTION 2S-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAPI ARTICLE 8, CHAPTER 2S (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-Sa) TO SINGLE FAMILY RESIDENTIAL (RS-15) AT KAHUA 1ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY S-9-01:08. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 254-7, Article 8, Chapter 25 (Toning Code) of the Hawaii County Code, is amended to ghop the district classiRcadon of property described hereinafter as follows: The district classification of the following area situated at Kahus 134 North Kohals, Hawaii, shall be Single Family Residential (RS-15): Beginning at a point at the North caner of this piece of land, being also the East corner of portion of Government land of Pahimhiaa and on the Southwesterly side of Kawaihae Mahukom Road, Section II. Project No. A-270-01-62, the com*= tes of which referred to Hawaii State Plane Coordinate System Zone 1 being 4S3,109.73 feet North and 37S,771.74 fat East, and running by true azimuths referred to the Meridian of Government Survey Triangulation Station "PIN PILP' and measured clockwise Rom South: 1. 3220 00' 30.5" 24.31 fat along the Southwesterly side of Kawaihae Mahukona Road; 2. 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawatlm Mahukona Road: 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawalm Mabukona Road; 4. 524 00' 30.5" 10.00 fat along the Southwesterly side of Kawsihae Mahulwna . Read, EXHIBIT C A f• A•20• A-20• A - t A•f• A•20• eh A•f• D/ A *a A to A *a A -50 A-I. A-9• A 1. A-f. A•f• !N A-f. A•f. A•1. A•f• A•f. A•.. A-f• A I. "•f" .•b AKONI PULE HIGHWAY 7s p7ey+ ww 433101.73 N ¦r 375,771.74 E 'HAWAII STATE PLANE COORDINATE SYSTEM. A - f• ZONE 1" A-f. A•f. AGRICULTURAL (A°5a) TO SINGLE FAMILY RESIDENTIAL (RS-15) AREA: 37.880 ACRES AMENDMENT TO THE ZONING CODE AMENDING SECTION 25-8-7• (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE. BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-5a) TO SINGLE FAMILY RESIDENTIAL (RS-15) AT KAHUA 1ST, NORTH KAHALA, HAWAII. PREPARED BY : PUNNING DEPARTMENT COUNTY OF HAWAII TMK : 5-9-01: a APRIL 14• 1997 EXHIBIT "A' IOp^"`''Ap^OLDI s i CARLSMITH BALL LLP A Lmrrm LAER.[IY LAw PArmusHw 121 WALANuEmE AvENuE P.O. Box 686 HR.O, HAWAII 96721-0686 TELEPH"808.935.6644 FAx808.935.7978 W W W.CARLSMT174 COM SUMSCARESMUH.COM OUR REFERENCE NO.: OSM25.1 December 7, 2007 William Graham Chairman, Hawaii County Planning Commission Aupuni Center 101 Pauahi Street Suite 3 Hilo, Hawaii 96720 Re: Scheduled December 12, 2007 Planning Commission Continued Hearing on: (1) Planning Director Initiated Change of Zone (REZ 07-000067), Repeal of Ord. No. 97-102 and Revocation of SMA Use Permit No. 379; and (2) Kobala LLC Initiated Amendment to Condition C of Ord No. 97-102 and Amendment to Condition 4 of SMA Use Permit No. 379 Dear Mr. Graham: I am writing to inform you of an error in the noticing and scheduling of the Planning Commission's (the "Commission") hearing on the above referenced matters to December 12, 2007. Kohala LLC ("Kohals") never agreed to the December 12, 2007 hearing date as required under the Stipulation to Continue August 31, 2007 Hearing ("Stipulation"), a copy of which is enclosed herein as Exhibit A• filed by Kohala and the Planning Department (the "PD") August 30, 2007. In addition, we are not aware of the Commission's approval of the December 12, 2007 hearing date, also required under the Stipulation. In short, the PD's unilateral announcement that the next hearing will be held on December 12, 2007 came as a complete surprise to Kohala, although, in light of the PD's arbitrary and aggressive actions in this matter perhaps nothing should come as a surprise at this point. In light of the procedural defects related to the failure to comply with the Stipulation, and other concerns detailed herein, Kohala believes the Commission cannot hear the above referenced matters on December 12, 2007, and that the proposed hearing must be continued. Under the Stipulation, Kohala and the PD agreed to continue the Commission hearing "from August 31, 2007 to the Planning Commission hearing tentatively scheduled to be held in West Hawaii on October 19, 2007, subject to continuance to a later date in West Hawaii by agreement of the parties and approval by the Planning Commission." (emphasis added.) This continuance was approved by a 6/0 vote of the Commission on August 31, 2007. See Hearing EXHIBIT D William Graham December 7, 2007 Page 2 Transcript August 31, 2007 at p. 8, a copy of which is enclosed herein as Exhibit B (hereinafter the "8!31/07 Transcript"); see also the Commission's letter dated September 21, 2007, a copy of which is enclosed herein as xhibit C notifying Kohala of the Commission's vote to continue and stating "We will notify you of the details of the continued hearing when they are confirmed." Kohala never agreed to the abruptly scheduled December 12, 2007 hearing date; selection of December 12 appears to be Planning Director Christopher Yuen's unilateral decision. Mr. Yuen never informed Kohala of his intention to seek a December hearing date. Therefore, Mr. Yuen's letter: dated November 15, 2007 and received by my office on November 19, 2007, copies of which are enclosed herein as Exhibits D and Fes, informing Kohala of his decision to schedule the zoning and SMA matters for the December 12, 2007 hearing continue the series of unpleasant surprises Mr. Yuen has sprung on Kohala, starting with his May 31, 2007 letter informing Kohala of his unprecedented intent to seek a downzoning and revocation of SMA Permit No. 379. W. Yuen's May 31 letter was not preceded by so much as a phone call to Kohala regarding his intentions. Similarly, no contact preceded Mr. Yuen's November 15 letters to Kohala. The Stipulation required Kohala and the PD to agree to the date of the next Commission hearing. Kohala never agreed to December 12, 2007. In fact, email correspondence between Kohala and Norman Hayashi of the PD evidence that the PD understood the Stipulation's requirement for both parties to agree to the next hearing date, and that the PD would not take action until Kohala suggested a date for the next Commission hearing. See entails enclosed herein as ExMhit Furthermore, there is nothing documenting the Commission's approval of the December 12, 2007 hearing as required under the Stipulation. In addition to non-compliance with the Stipulation, other procedural defects should prevent the Commission from holding the December 12, 2007 hearing. Mr. Yuen's letter informing Kohala of the December hearing was provided too late to comply with Hawaii County Code § 25-243 (Amendments initiated by the council and director), which provides as follows: Notice to owners of any properties specifically subject to the proposed amendment shaU be provided by mail from the director, no later than thirty days prior to the commission's public hearing on the amendment. Hawaii County Code § 25-2-43(d). In order for the parties to participate in the Commission's public hearing on December 12, 2007, Kohala, as an owner of property specifically subject to the proposed amendment, should have received Mr. Yuen's notice of the upcoming hearing no later than November 12, 2007 (30 days prior to December 12, 2007). However, Mr. Yuen's notice letter to Kohala is dated November 15, 2007. See Exhibit E. In this instance Mr. Yuen's attempt to use the element of surprise to gain an advantage over Kohala has backfired, as the November 15, 2007 letter failed to provide Kohala requisite notice. William Graham December 7, 2007 Page 3 Compliance with Hawaii County Code § 25-243 (d) would be of less concern if the parties had agreed, either through a stipulation or otherwise, to a date certain for the Commission's continued hearing. However, nothing in the Stipulation, the 8/31/07 Transcript, or subsequent communications with the PD, set forth a date for the next Commission hearing. Thus, Mr. Yuen's failure to properly notice Kohala of the December 12, 2007 hearing means the Commission must continue these matters at the December 12, 2007 hearing. i Had Mr. Yuen provided Kohala proper thirty days notice, as required under Hawaii County Code § 25-243 (d), Kohala could have prepared the proposed Findings of Fact, Conclusions of Law and Decision and Order contemplated under the Stipulation Re Submittal of Proposed Findings of Fact, Conclusions of Law and Decision and Order, filed with the Commission on August 16, 2007 (the V&0 Stip"), a copy of which is enclosed herein as E 'bit G. Under the D&O Sdp the deadline to file proposed Findings of Fact was extended from August 17, 2007 to no later than twenty (20) calendar days prior to the final action by the Planning Commission on the Planning Director Initiated Revocation of Special Management Area (SMA) Use Permit No. 379, and Applicant Kohala LLC's request for Amendment to Condition 4 Special Management Area Use Permit No. 379. l The expectation that the next Commission hearing would be agendized at least thirty days in advance was articulated at the August 31, 2007 Commission hearing. Obviously a minimum of thirty days' notice would be required to allow sufficient time for the submittal of proposed Findings of Fact Please forgive the length of the following quotation, but it evidences the Commission's understanding of the interplay between the proposed findings of Fact and the timing of the next Commission hearing. LIM: That's correct We submitted a stipulation regarding submittal of proposed findings of fact, conclusions of law and decision and order which was signed by the attorney for the Planni g Director on August 15 and by myself on August, I think it's 10 or 16'", I can't tell which one. But basically that conforms with what Mr. Torigoe has represented in that the Chapter 91-11. Section 91-11 proposed findings would be, we would consider the Planning Director's background and recommendation as being the Planning Director's proposed decision. And then we would have an extension of the deadline within which to submit any other findings of fact which would probably be primarily the applicant's from August 17, 2007 to not later than 20 calendar days prior to the final action by the Planning Commission on this matter. And that's all laid out in the stipulation. ' Kohala also questions whether the PD complied with the public notice provisions under Hawaii County Code § 25-2-43 (c), which requires notice of a public hearing to be published in at least two newspapers, once a week for three consecutive weeks, with the last notice at least ten days prior to the hearing. William Graham December 7, 2007 Page 4 r GRAHAM: Okay. Thank you, Mr. Lim. IWASHITA: Mr. Chair? GRAHAM: Yes, Commissioner Iwashita? IWASHITA: Just thinking about it, the way the deadline is worded I guess I'm a little concerned is, how we're doing ahead of time when the final action by this body is going to be and if we use that, you know, to measure the time back LIM: Typically what we're expecting was, you know, we don't know how long the hearing is going to last in between the final action. And I think that we were trying to estimate out that it usually takes the Planning Staff, they usually start setting up the age a at least 30 days ahead of time, so we would know what the date would be. IWASHITA: Oh, so we're continuing this to October 17th. Does d4 now mean that the, I believe that's the date, so it's September 27 or something like that? Is that LM [sic]: Well, we're expecting that we're going to have some discussions with the Planning Director on this matter. So it may be that it gets continued further, and that's why the stipulation has that additional, you know, continuance. GRAHAM: Just to try to be clear on this - then if I'm It ri ri ght then we're sort of assuming at this point that when you refer to the final decision tentatively we're talking about the October meeting but that we're not cementing it to that at this point because there will be further discussions between you and the Planning Director, is that correct? LIM: That is correct. GRAHAM: Thank you. IWASHITA: So for the moment it is the 27'h or 20 days before the 17 . That's, okay. 8/31/07 Transcript at p. 7-8 (emphasis added.) Had Mr. Yuen followed the requirements under the Stipulation regarding agreement of the parties and approval of the Commission, all parties would have had sufficient time to prepare proposed Findings of Fact for the Commission's review. However, rather than contacting Kohala to determine a mutually acceptable hearing date, Mr. Yuen unilaterally selected December 12, 2007 for the hearing and then failed to timely notify Kohala of this decision. Mr. Yuen's later- than-last-minute notification ensured that compliance with the D&O Stip was impossible. William Graham December 7, 2007 Page 5 i In addition to the problems arising from Mr. Yuen's insufficient notice, Kohala wishes to highlight Mr. Yuen's bad faith negotiations with Kohala. Although the Commission and Kohala anticipated potential resolution of the zoning and SMA matters through discussions between my office and Mr. Yuen, Mr. Yuen apparently thought otherwise. My office made numerous attempts to schedule a meeting with Mr. Yuen, making email requests on the following dates: July 23, 2007, August 31, 2007, September 10, 2007, September 19, 2007, October 15, 2007 and November 15, 2007. The parties finally met briefly on November 21, 2007, six days after Mr. Yuen had set the matter for the next Commission hearing. In other words, Mr. Yuen had no intention of even considering a fairly negotiated resolution of these matters; his meeting with Mr. Lim was a fagade for the Commission's benefit. Kohala's December 6, 2007 request to Mr. Yuen for a continuance was rejected. For the reasons stated above, Kobala does not believe the Commission can hold a hearing on these matters on December 12, 2007. Kohala requests a continuance of the December 12, 2007 hearing to a date that is in compliance with the Stipulation, with proper notice to be provided to all parties. Very truly yours, STEVEN C.L JAB Enclosures cc: Ivan M. Torigoe, Esq., Attorney for Planning Commission William Brilhante, Esq., Attorney for Planning Department Amy Self, Esq., Attorney for Planning Department Jennifer A. Benck, Esq., Carlsmith Ball LLP 4934d3T9-5330.1 AUG-3D-2007 11) 05:52 PH CORPORATION COUNSEL FAX NO, 8818822 P. 02 CARLSUM BALL LLP STEVEN S.C. LIM 2505 121 Wainuenue Avenue Hilo, lit %720 Tal No. 808.933.6644 Pax No. 808.935.7975 Attorney fox Applicant Koh" LLC BEFORE THE PLANNING COMMISSION OF THE COUNTY OF HAWAII In the Matter of the Planning Director Initiated: SPECIAL MANAGEMENT AREA USE (1) Change of Zone (REZ 07-000067) Prom RS- PERMIT NO. 379 15 to RA-5a district, (2) Repeal of Ordinance No. 97-102 fmm A-5a to RS-15 district, and (3) STIPULATION TO CONTINUE AUGUST Revocation of Special Management Area 31, 2007 HEARING (SMA) Use Permit No. 379 to allow a SO-lot single-family residential subdivision and Applicant Requested: (1) Amendment to Condition C of Change of Zone Ordinance No. 97-101 and (2) Amendment to Condition 4 Special Management Ares Use Permit No. 379 Property situate at Kabus 1 st, North Kohals, TMK: (3) 5-9.001008 STIPULATION TO CON77N[flE Amm 31- jQ,Q'j HzAmG Applicant Kohala, LLC, by and through its counsel, Steven S.C. Lim of Carlsmith Ball LLP, end Christopher I. Yuen, Planning Director, County of Hawaii, by and through his attorney, William Brilhante, Deputy Corporation Counsel, hereby stipulate and agree to continue the Planning Commission hearings In the Matter of the Planting Director Initiated (1) Change of Zone (REZ 07-000067) from RS-15 to RA-5a district, (2) Repeal of Ordinance No. 97.102 from A-Sa to RS-15 district, and (3) Revocation of Special Management Area (SMA) Use Permit No. 319 to allow a 504ot single-family residential subdivision, and Applicant Requested (1) Exhibit A ,AUG-30-2007 TNU 05:52 Ph CORPORATION COUNSEL FAX NO. 9818822 P. 03 Amendment to Condition C of Change of Zone Ordinance No. 97-102 and (2) Amendment to Condition 4 Special Management Area Use Petaiit No. 379 fiom Auguat 31, 2007 to tha Planning Commission hearing tentatively Scheduled to be hold in West Hawaii on October 19, 2007, Subject to continuance to a later hearing date in Want Hawaii by agfeemem of the parties and approval by the Planning Commission. DATED: Hilo, Hswaii, MUG 3 0 =7 STEVEN B.C. AtoneyfoLLC DATED: Hilo, Hawaii, Wl1 I&W_JK FYANTE AttonSylor Cbriatophar J. Yuen Flaming Director, County of Hawaii la aw Maas of the Pinang Director lahirred: (1) Chap of Zone (X5Z 07-M"7) tram R3.1 s to RA-5s & WA (2) Repm l of OrdLuace No. 97.102 from "a to MIS district, and (3) Revocation of special Maoepmaor Arne (SMA) Uee Pwmit No. 379 to allow a SO-lot single-ficuily mWeaWl wbdivicice., yid Appiicaa Regiama1d: (1) Amead,neat to CwAklal C of Chanp of Zone Ordhlacs No. 97-102 and (2) Amendma t to Cosddion 0 Special Manapmmt Arm Use Permh No. 379; STVULA770N TO CONTOM AUGUST 31, 2007 HMARMO 03"1524Ot9.10102540001 .2- PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 31, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 12 noon at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Takashi Domingo C. Kimo Alameda Shelly Ogata Andrew Iwashita Rene' Siracusa Alvin Rho Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director And 4 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Change of Zone (REZ 07-000067) for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Repeal of Ordinance No. 97 102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. C. Revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1'r, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866/SMA 379) a. Amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97 102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. b. Amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua V% North Kohala, Hawaii, TMK: 5-9-1:8. 1 Exhibit B GRAHAM: Our next item of business which I believe in the last Commission hearing when I was not here involved both Items 4 and 5, Unfinished Business. Four is initiated by the Planning Director. Five is by Applicant Kohala LLC. It relates to a Change of Zone and a Special Management Area Permit; and this is in the, just below the Kohala Ranch Subdivision in Kahua 1, North Kohala And I think the Planning Department is going to put up some maps at this time and we'll just wait a few minutes till they're ready to go. Basically the Applicant Kohala LLC is asking for an amendment to a Change of Zone Ordinance as well as to an SMA Permit. And the amendments would allow additional time to meet the requirements. The Planning Director's initiation is to change the zone on that land, and also to repeal a Special Management Area Use Permit, and repeal the ordinance which originally set the zoning on that land. DARROW: We're ready to go? GRAHAM: Jeff, go ahead. DARROW: Thank you. I'll just make this brief. I'll just do a brief presentation. The location of this application is within the North Kohala District of Hawaii, more specifically we're looking near Kawaihae area This would be Kawaihae in this area. Just for reference, this is the Kohala Ranch Subdivision area. The white line running in a north-south direction on the bottom of the map is the Akoni Pule Highway. And the area of the application is identified with a blue dot. There are two applications that we are combining together. These have to do with Change of Zone 97 102, which is a Rezone 866, and Special Management Area Use Permit No. 379. The Planning Director is recommending that Special Management Area Use Permit No. 379 be revoked. It was originally approved to allow a 50-lot subdivision on this property. Additionally, the Planning Director is initiating downzoning of the property from Single Family Residential 15,000 square feet to Residential-Agricultural 5 acres; and this is for approximately 38 acres of this area. Originally the property was rezoned from Agricultural 5 acres to Single Family Residential 15,000 square feet and, again, allowed The Special Management Area Use Permit was approved to allow a 50-lot subdivision. The applicant, apparently the property was sold in between this time. The applicant, nobody had requested a time extension for the Change of Zone as well as for the SMA Permit, and so ten years after-the-fact of the original approvals there is a request now for a time extension to Condition C of the Change of Zone as well as to Condition 4 of the SMA Use Permit. At our last hearing the parties involved had gone into deliberations regarding this matter and there has been a letter submitted by the applicant dated August 7'4 requesting a continuance of this hearing until the October meeting in Kona, because of the fact that he is requesting for certain Planning Department records to subpoena It is my understanding today that we do have somebody signed up to testify, but their has been a request from the applicant to continue both these matters until our October meeting. 2 GRAHAM: Thank you, Jeff. Any questions of Jeff from the Commissioners? Maybe we can take our public testimony right now then. Ms. Byre, would you come forward. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? BYRNE: I do. GRAHAM: Thank you. And go ahead with your testimony and start with your name and address, please. BYRNE: Sure. My name is Gail Byrne, address is 68-3551 Awamoa Place, Waikoloa, Koh"- and I'm here delivering testimony from five North Kohala non-profits and the organizations and together our membership represents about 400 families in North Kohala. And we're here to support the Planning Director's recommendation to repeal the Ordinance 97 102 and revoke the Special Management Area Permit No. 379. We are also urging the Planning Commission and the Planting Director to consider the more restrictive zoning which would be consistent with what the community has asked for over 30 years. And I have copies of a letter signed from the five organizations here enough for each I don't know how we, what's the appropriate way to deliver this? It's kind of summarizing some of the points I wanted to hit today. I think there's nine in there. And then there's a second batch here. This summarizes, the second batch summarizes the 30 years worth of, documented work that the community has done to preserve the area makai of Akoni Pule Highway in open space and their continuing desire to do so. So, again, we're here to affirm and support the Planning Director's recommendations and ask for zoning in that area of at least RA 20 if it's possible. Again, it's consistent with what the community has asked for for 30 years in previous General Plan reviews and planning documents, multiple resolutions. During the last General Plan review petitions were submitted to the County requesting the County to zone this area Open. And some of this stuff I have in the box. I was going to thump down, about 2,000 signatures asking for this area to be in Open or Conservation. There's another 6,000 signatures here that requested the County to put a building moratorium on this area or the whole coast makai of Akoni Pule Highway, including this parcel. So there's a long history of community support planning documents for more restrictive zoning. And you guys are aware that this year the County Council passed a rezoning moratorium for North Kohala that specifically states there will be no rezoning into districts smaller than Ag-20a. I understand that might not be quite applicable to this particular situation; but that moratorium is different than the moratorium that was developed for Kona or South Kohala, and specifically with regard to the wording around Ag 20-a because it reflects the community's conversations with their Council Member for better protections specifically along the coast. Some of you may be aware that recent water quality surveys, and some of them hit the front page of a paper just a few weeks ago showing that the reefs in this area or the marine environment being heavily impacted already by upslope development. And additional development of any kind only contribute to this problem, especially because development on this parcel borders the ocean. My background is in civil engineering and I spent eight years working on development 3 land use issues and best management practices around development and looking at what we could do to mitigate these kinds of effects. And I'm here to tell you in my professional experience you can't over time. There are cumulative impacts. And the Water Quality Study completed in 2006 by professors at the University of Hawaii Hilo strongly criticized the degradation of water quality occurring along the Kohala Coast as a result of increased development. There's also spotty data in there. You know, we mentioned in our testimony that, you know, under the Clean Water Act the County has an obligation to ensure that any pollution resulting from development is not overwhelming the environment's ability to assimilate that pollution. And if that's not done, the County and the State will be held accountable; and usually you have to go back and go through a much more expensive process of retrofitting and trying to fix a problem which is almost always very difficult or impossible to do. So we have an opportunity right here now to act proactively and prevent a lot of costly clean-up. And we've already got a problem. It's right here. We've seen it in the papers. I think specifically with respect to the criteria that you guys have to look at on whether you can grant these time extensions, my understanding is that the applicant does not meet the criteria for a time extension. You know it's not, this project is not at all consistent with the General Plans that have been developed; and it's certainly not consistent with the outputs of the North Kohala Community Development Process. It's on-going right now. It's part of the General Plan. The highest, over and over what that community has voiced is keep those areas open to the extent possible from any development. You know, there has been plenty of time to ask for an extension. It has been expired for five years, is my understanding. And, you know, the original conditions and contexts have changed under which this original permit was granted We are now seeing the cumulative effects of development around here. We now understand better some of these impacts. And so the conditions and context in which the original permit were granted have changed So I don't think the applicant meets the criteria for a time extension in any regard. So that was the testimony provided by the groups. I just want to say a few personal roads, words. I've a Masters Degree in Civil Engineering and so I love concrete in certain types of developments, I really do. And I actually invest in some real estate but not in sensitive areas. And I also know there are no guarantees in any kind of investment; and I don't expect the taxpayers to bail me out when I make a bad decision or I don't follow-through when I need to. So that's just my, that's my own personal testimony there. So, again, you know, the folks in North Kohala really appreciate what the Planning Director is recommending here and thank the Planning Commission for your time. GRAHAM: Thank you, Ms. Byre. Do we have some questions from any of the Commissioners? In regard to what you said, I might ask Mr. Yuen if we do take this matter up at a future hearing - apparently the State and perhaps the Federal government also has been really studying this whole sedimentation area from Honokua Gulch going north along the coastline - Could you at the Planning Department look to see if there's any reports on what's going on there, 4 r and what has caused it, and, you know, what's recommended so that we could have that as part of our folder for dealing with this application at the next hearing if we do? WEN: We can certainly try, we'll get you what's available. GRAHAM: Thank you. WEN: There were some, there were a couple initial investigations and then there has been some follow-up that's not actually, I think, in the form of a report. I did attend the meeting and have had some discussions with people about the major runoff incident earlier this year. GRAHAM: Thank you. Thank you, Ms. Byrne. Would the applicant come forward at this time. Mr. Lim, do you swear or affirm to tell the truth on this matter today before the Hawaii County Planning Commission? LIM: I do. GRAHAM: Thank you. And could you give your name and address and then carry forward with your testimony. LIM: Steven Lim representing Kohala, LLC, PO Box 121, Hilo, 96721. Mr. Chairman and Members of the Commission, we had half a hearing the last time. We've, I think, requested some additional time to both get some of the documentation that we had subpoenaed from the Planning Department and also to engage in further discussions with the Planning Department on this matter. And as a result of that, I think we've submitted a stipulation to continue the August 31, 2007, hearing. We last sent it to the Corporation Counsel's office and I'm assuming it was forwarded here. GRAHAM: Jeff? DARROW: The continuance letter till October, correct? LIM: Right, right. We had executed a stipulation to continue to the Planning Commission's meeting in West Hawaii on October 19, 2007, subject to continuance to a later date in West Hawaii by agreement of the parties and approval by the Planning Commission. So that's what the last thing that we sent in to the County, yesterday, I believe it was. GRAHAM: Thank you, Mr. Lim. So your request at this time is that Planning Commission continue this matter? LIM: That's correct. GRAHAM: To the October hearing? LILT: That is correct. I GRAHAM: All right. Commissioner Watanabe? 5 WATANABE: I'll move to continue to the October 19'x' meeting of 2007. GRAHAM: Is there a second? ALAMEDA: Second. GRAHAM: All right. Seconded by Commissioner Alameda Mr. Yuen, since the Planning Director is involved in Item No. 4, I guess, on this one, are we looking to continue both of these items or I imagine Mr. Lim only speaks for the Kohala LLC application. WEN: They should be dealt with at the same time. So we agree. It's not a big rush. There's nothing happening on the property, so we agree that both Numbers 4 and 5 should be continued to October. GRAHAM: Thank you. And, Mr. Torigoe, are there any legal considerations we should be aware of? TORIGOE: No. Basically the deadlines will not start running until, as long as there's an agreement the deadlines will be okay, I think. GRAHAM: Thank you. Any questions, any further questions of Mr. Lim or any comment by the Commissioners? We do have a motion right now before us. IWASHITA: I just GRAHAM: Yes, Commissioner Iwashita. IWASHITA: We're treating this as a contested case kind of scenario? GRAHAM: I don't think it's specific that we're treating it. This is whenever there's a decision by this body I think the legal ramifications are such that it is as if it were a contested case hearing. IWASHITA: So, I'm just concerned that we meet all the procedural requirements, - since we're not hearing it all at once and the Commissioners present might be different, you know, in October than present today - whether or not we need to address any procedural requirements. GRAHAM: So would you like me to query Mr. Torigoe, I guess, of any further IWASHITA: Yes. GRAHAM: Any further procedural considerations? TORIGOE: I believe that after the last hearing between Mr. Lim and the Director we had an agreement that, and I assume that the question is really aimed primarily at FIRS 9141 matters about having a proposal for a decision in front of the Commissioners before the decision 6 is made. I think there was an understanding that the, let's see, the Planning Director had submitted his recommendations and that would be sufficient but correct me if I'm wrong, I think if you can just straighten that out and that there would not be a requirement of further filings beyond those which we've already talked about, that is that the parties will be filing findings of fact and conclusions of law and being able to respond. So, and I think there's a stipulation regarding submittal of those findings and conclusions that was submitted and it was dated, looks like, received August 16N in the Planning Department. GRAHAM: Okay. All right. Mr. Lim, are you in conformance with all what you hear? LIM: That's correct. We submitted a stipulation regarding submittal of proposed findings of fact, conclusions of law and decision and order which was signed by the attorney for the Planning Director on August 151A and by myself on August, I think it's 16* or 16w, I can't tell which one. But basically that conforms with what Mr. Torigoe has represented in that the Chapter 91-11. Section 91-11 proposed findings would be, we would consider the Planning Director's background and recommendation as being the Planning Director's proposed decision. And then we would have an extension of the deadline within which to submit any other findings of fact which would probably be primarily the applicant's from August 17, 2007 to not later than 20 calendar days prior to the final action by the Planning Commission on this matter. And that's all laid out in the stipulation. GRAHAM: Okay. Thank you, Mr. Lim. IWASHITA: Mr. Chair? GRAHAM: Yes, Commissioner Iwashim? IWASHITA: Just thinking about it, the way the deadline is worded I guess I'm a little concerned is, how we're doing ahead of time when the final action by this body is going to be and if we use that, you know, to measure the time back LIM: Typically what we're expecting was, you know, we don't know how long the heating is going to last in between the final action. And I think that we were trying to estimate out that it usually takes the Planning Staff, they usually start setting up the agenda at least 30 days ahead of time, so we would know what the date would be. IWASHITA: Oh, so we're continuing this to October 171°. Does that now mean that the, I believe that's the date, so it's September 27'" or something like that? Is that LM: Well, we're expecting that we're going to have some discussions with the Planning Director on this matter. So it may be that it gets continued further; and that's why the stipulation has that additional, you know, continuance. GRAHAM: Just to try to be clear on this - then if I'm hearing right then we're sort of assuming at this point that when you refer to the final decision tentatively we're talking about the October meeting but that we're not cementing it to that at this point because there will be further discussions between you and the Planning Director, is that correct? 7 LIM: That is correct. GRAHAM: Thank you. IWASHITA: So for the moment it is the 27 h or 20 days before the 17'^. That's, okay. GRAHAM: Okay? So if we're all clear, I think we could have Jeff take the vote on our motion before us, which is to continue the hearing. And this is Items 4 and 5, Jeff? DARROW: This is Items 4 and 5. What I'll be doing, we actually have five voting sheets for this. So if it's okay if we can do one vote, and I'll do all the votes on all five of theta. We have two for the SMA, we have one for the Planning Director's initiated rezoning and two for the rezoning. GRAHAM: Okay. So my understanding is both the applicant and the Planning Director are supportive of this continuation and that Jeff plans to take five votes for one. If there's any Commissioner who would prefer otherwise, would you please indicate so at this time. All right. Thank you, Jeff, go ahead. DARRO W: Sorry to, I need to get the Commissioners who WATANABE: Yeah, I'll take it as a friendly amendment for the five. DARROW: Okay. And also the Commissioner who seconded the GRAHAM: Yes. Commissioner Alameda, are you, I believe you seconded ALAMEDA: Yes to your request. GRAHAM: Yes. DARROW: Okay. Thank you. Okay, with that I'll take the roll. The motion before us is to continue both Agenda Items 4 and 5 until our October 19th Kona meeting. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Rho? 8 r RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW- The motion passes six to zero. GRAHAM: All right. Thank you, Mr. Lim. LIM: Thank you very much. The discussion ended at 12:22 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary ATTEST: Noriko Sauer, West Hawaii Secretary l 9 SECEIVED SEP 2 4 ZW County of Hawaiai PLANNING.COhUdMION AupuN Cu go a 101 POr31 SUM4 Sails 3 • labh fUmN %730 Phsm(303)951423a • Fu(SW)%14742 September 21, 2007 Steven S. C. Lim, Esq. Carlsmith Ball, LLP 121 Waianuenue Avenue Hilo, HI 96720 Dear Mr. Lim: Special Management Area Use Permit No. 379 Request: Time Extension to Condition 4 of SMA 379 Change of Zone No. 866 Request: Time Extension to Condition C of Ord. 97-102 Applicant: Kohala LLC i Tax Map Key: 5-9-1:8 Planning Director Initiated Change of Zone (REZ 07-000067) Request: RS-15 to RA-5a Repeal of Change of Zone Ordinance No. 97-102 (REZ 866) Revocation of Special Management Area Use Permit No. 379 Tax MM Key; 5-9-1:8 The Planning Commission at its duly held public hearing on August 31, 2007, voted to continue the above-referenced requests to the October Commission meeting in West Hawaii, which is tentatively scheduled for October 19, 2007. We will notify you of the details of the continued hearing when they are confirmed. Should you have questions regarding the above, please contact Norman Hayashi of the Planning Department at 961-8288, x205. Sincgy} , William r, Chairman Planning Commission Lhohalaa[Olpc 1 cc: Planning Department-Kona Hawaii Comfy is an Equal Chporamiiy Provider and Employer Exile i Her" Kim CbrMopbwj.llm Me- ~ Df w Brad Katekewa,ASLA pf LEMAP Inuttiv of Anf rani PLANMG DEPARTMENT 101 FftW$uab saw? • 1010.Hwd 96720+n4 (SM96147811 • FAX(aan9614742 November IS, 20D7 Kobela LLC c% Steven S. C. Lim, Esq. 121 Waianuawe Avenue Hilo, HI 96720 Dear Mr. Lim: Change of Zone No. 866 Request: Time Extension to Condition C of Ord. 97-102 Special Management Area Use Permit No. 379 Request: Time Extension to Condition 4 of SMA 379 Applicant: Kohala LLC Tax Mini Key. 5-9-1:8 This is to inform you that the above items have been scheduled for a continued public hearing by the Planning Commission. Said hearing, among others, will be commencing on Wednesday, December 12, 2007, at 9:00 a.m., in the Waikoloa Beach Marriott Hotel, W273 Waikoloa Drive, Wailooba, Hawaii, and contiatting on Ti nraday, December 13, 2007, as needed. Your presence or the presence of as authorized representative will be appreciated in order that aU questions relative to the request may be clarified In accords= with the Hawaii County Zoning Code, Chapter 25-2-4, you are required to notify the surrounding property owners and lesseas of record of the continued heariag. A copy of the public notice is attached for your information Should you have any questions regarding the above, please do not hesitate to contact Norman Hayashi of this department at 961-8288. Sincerely, ~[l CHRTS tOPHER J UE Planning Director Att. cc: Ms. Alice Kawaha Ms. Gail Byme I Harm) Canty it w 84x01 Oppoffmao PwMdwand Exydayen D Exhibit f NOTICE OF PUBLIC MEETING AND HEARINGS PLANNING COMMISSION COUNTY OF HAWAH NOTICE IS HEREBY GIVEN of matters to be considered by the Planning Commission of the County of Hawaii in accordance with the provisions of Chapters 91 and 92, Hawaii Revised Statutes, Section 6-4.3 of the Charter of the County of Hawaii, and the Planning Commission's Rules of Practice and Procedure. DATE: Wednesday, December 12, 2007 And continuing on Thursday, December 13, 2007, as needed. TIME: 9:00 a.m. PLACE: Waikoloa Beach Marriott Hotel 69275 Waikoloa Drive Waikoloa, Hawaii JIUS S- 9:00 ann. 1. INITIATOR: PLANNING DIRECTOR a Continued bearing on the Planning Director's vitiation of a Change of Zone (REZ 07-000067) for 37.88 acres of land 8om a ShWo-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Continued hearing on the repeal of Ordinmux No. 97-102 which rezoned 37.88 acres of land from an Agricultural S-acre (A-5a) to a Single-Family Residential tS,0W4quwe foot (RS-IS) district. C. Continued bearing on the revocation of Special Management Area (SMA) Use Pemait No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property imroived, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pub Highway and the Kohala Ranch Subdivision, Kahus 1 North Kohala, Hawaii, T MX: 5-91:8. 2. APPLICANT: KOHALA LLC (REZ 866ISMA 379) IL Continued hearing on an amendment to Condition C (time to saute final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of laud from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district b. Continued hearing on an amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kabua 1", North Kohals, Hawaii, TMX: 5-9-1:8. 1 I NEIV DUSINESS - 9:30 am. 3. APPLICANT: HAWI JODO MISSION (USE 07-000001n Use Permit to allow the establishment of an elementary school (K-6) on 0.95 acre of land within the County's Single-Family Residential 13,000-square foot (RS. 15) district. Tae property is located along the south side of the Akoni Pule Highway (Highway 270), adjacent to and east of the existing Hawi Jodo Mission Church, Hawi, North Kohala, Hawaii, TMK: 5-5-11:39. 4. APPLICANT: KONA VISTAS LLC (REZ 470) Request for amendment to Condition I (time to secure Fidel Plan Approval) of Ordinance No. 02 131, which reclassified certain lands from Unplanned (U) to a Multiple Family Residential 5,1100- square toot (RM 5) and a Single-Family Residential 15,000-square toot (RS-15) district. The property includes the existing Kona Vistas Subdivision simated mania ofKuakim Highway (Highway 11), Holuaioa 11 and 2o4North Kona, Hawaii, TMK: 7-&21:4,9-13 and 15-17. IU BUSINESS -10:15 am. 5. INITIATOR: PLANNING DIRECTOR Amendment to Section 25-245, Chapter 25 (Toning), Hawaii County Code 1993 (2005 Edition, as amended) with respect to Nonsignificant Zoning Changes. ELECTION OF 2009 OFFICERS WORKSHOP FOR PLANNING COMMISSIONERS • Update of Planning Department activities, including status of the on-going community development plans. November 16, 2007 .gQ?yUMTRATIVE MATTERS ANNOUNCE dEM The purpose of the public bearings is to afford all interested persons a reasonabis opportunity to be heard on the above requests. Pursuant to Rule 4, Contested Case Procedure, of the County of Hawaii Planning Commission Rules of Practice and Procedure, soy person seeking to intervene as a parry to a contested ease bearlog on Item no. 3 above Is required to file a written request which most be received In the oillee of the Planning Department no later thaw seven (7) calendar days prior to the Planning Commission's first public meeting on the matter. Such written request shall be In cemformkty, with Role 4, in a form as provided in Rate 4 Appendix A "Petition for Standing in a Contested Case Hearing." The written petition/request shall be 2 r filed with the Planning Commission at Aupuad Center, 101 Pauahi Street, Suite 3, Hilo, Hawaff %720, and accompanied by a tiling fee of $100 payable to the Director of Finance. Any party may retain counsel if that person so desires. Role 4 may be inspected or purchased (52.50) at the above-Cited loeatloo, Rule 4 may also be viewed at the County of Hawaii websfte OjmWwww.co i.hi.u s). SuuWWWBa Testimony: According to Rule 1 (General Rules) of the Planting Commission, a person desiring to submit oral or written testimony shall indicate ber/his name; residence address:, and whether the testimony is on her/his behalf or as a representative of an organization or individual. if testimony is being submitted on behalf of an organization, documentation showing membership ratification should accompany the testimony. Written testimony shall be submitted with an original and nine copies prior to testifying. The Commission would appreciate timely submittal to the Planning Department at least one week prior to the hearing date to allow for retailing and thorough Commission review. Testimony that is irrelevant or unduly repetitious may be limited by the Chairperson pursuant to Rule 1. Ngjkj to Lobbyists: If you are a lobbyist, you trust register with the Hawaii County Clerk within live days of becoming a lobbyist (Article 15, Section 2-91.3(b), Hawaii County Code). A lobbyist mans "any individual engaged for pay or other consideration who spends more than five bonre in any month or $275 in any six-month period for the purpose of attempting to influence legislative or administrative action by communicating or urging others to communicate with public officials." (Article 15. Section 2-91.3(ax6). Hawaii County Code) Registration foam and expenditure report documents are available at the Office of the County Clerk, 333 Kilauea Avenue, 2"4 Floor, Hilo, Hawaii 96720. Maps showing the general locations and boundaries of the areas under consideration and/or plane of the proposed developments are on file and open to hmepection during office hours at the Planing Department, Aupuni Center, 101 Pauahi Street, Suite 3, Hilo, Hawaii and at the Kons office of the Planning Department, 75-5706 Kuakini Highway, Suite 109, Kailua-Kona, Hawaii. Any disabled person requiring special assistance or person requiring auxiliary aid ad/or services to participate in the hearing should contact the Planning Department at %1-8288 five (5) working days prior to the hewing so that appropriate arrangements can be made. Hawaii County is an Equal Opportunity Provider and Employer. PLANNING COMMISSION William Graham, Chair C, Kimo Alameda, I" Vice Chair Rodney Watanabe, 2°d Vice Chair (Hawaii Tribune Herald: November 22, 2007) (West Hawaii Today: November 22, 2007) ~h 3 RECEIVE I) 1,u-j i y?OQ~ Harry Kim chridoplow J. Yam MQOr fx m Brad Kurakawa, ASLA LZWOAP dlmmty of PItfuuii °ijiryD/"tA1 PLANNING DEPARTMENT tat PMMW aaat, Sdw>I • mto, thwas 96TZ4A4 r6a61961.1208 • PAX(SW961.8742 November 15, 2007 Kohala LLC do Steven S. C. Lim, Esq. 121 Wainnuenue Avenue Hilo, HI 96720 Dear Mr. Lim: Change of Zone (REZ 07-000067) RS-15 to RA-5a Repeal of Ord. 97-102 Revocation of SMA 379 Initiator. Planning Diroctor Landowner. Kohala LLC Zag Man Km 5-9-1:8 This is to inform you that the Planning Director's initiation on the above matters is scheduled for a continued public hearing by the Planning Commission. Said hearing, among others, will be commencing on Wednesday, December 12, 2007, at 9:00 am.. in the Wallmloa Beach Marriott Hotel, 69-275 Waikoloa Drive, Waikolos, Hawaii, and continuing on Thursday, December 13, 2007, as needed Your presence or the presence of an authorized representative will be appreciated in order that all questions relative to the request may be clarified. A copy of the public notice is attached for your information Should you have any questions regarding the above, please do not hesitate to contact Norman Hayashi of this department at 961-8288. Sincerely, (CHRISTOPHER J. YUEN Planning Director Art. cc: Ms. Alice Kawaha Naw N Covey 4 m Egad OyyotiwNy Pmvidermd EmPbyes Exhibit E r NOTICE OF PUBLIC MEETING AND HEARINGS PLANNING COR04MION COUNTY OF HAWAII NOTICE IS HEREBY GIVEN of matters to be considered by the Planning Commission of the County of Hawaii in accordance with the previsions of Chapters 91 and 92, Hawaii Revised Statutes, Section 6-4.3 of the Charter of the County of Hawaii, and the Planning Commission's Rules of Practice and Procedure. DATE: Wednesday, December 12, 2007 And continuing on Thursday, December 13, 2007, as needed. TIME: 9:00 am. PLACE: Wail oloa Beach Marriott Hotel 69-275 Waikolos Drive Waikolos, Hawaii LrbMMHED BUSINESS - 9:00 am. 1. INITIATOR: PLANNING DIRECTOR A. Continued hearing on the Planning Director's initiation of a Change ofZone (REZ 07-000067) for 37.88 acres of lard from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) diatricL b. Continued hearing on the repeal of Ordinance No. 97-102 which rezoned 37.88 acres of land ft m an Agricultural 5-sore (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district C. Continued hearing on the revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-W single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side ofAkoui Pule Highway and the Kohals Ranch SubdivisiM Kahua 1'% North Koh" Hawaii, TMK: 5-9.1:8. 2. APPLICANT: KOHALA LLC (REZ 866/SMA 379) L Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land Auto an Agricultural 5-acre (A-5a) to a Single-Family Residential I5,00a"ure foot (RS-15) distria b. Continued hearing on an amendment to Condition 4 (time to secure feral subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohals Ranch Subdivision, Kahua I", North Kohala, Hawaii, TMK 5-9-I:8. i 1 Il NEW BUSINESS - 9:30 JA 3. APPLICANT: HAWI JODO MISSION (USE 07-000009) Use Permit to allow the establishment of an elementary school (K-6) on 0.95 acre of land within the County's Single-Family Residential 15,000-squaro foot (RS. 15) district. The property is located along the south side of the Akoui Pule Highway (Highway 270), adjacent to and east of the existing Hawi Jodo Mission Church, Hawi, North Kohala, Hawaii, TMK: 5-5-11:39. 4. APPLICANT: KONA VISTAS LLC (REZ 470) Request for amendment to Condition I (time to secure Final Plan Approval) of Ordinance No. 02 131, which reclassified certain lands from Unplanned (1J) to a Multiple-Family Residential 5,000- square foot (RM-5) and a Single-Family Residential 15,000-square foot (RS-15) district The property includes the existing Kona Vistas Subdivision situated maulm of Kunkini Highway (Highway 11), Holualoa 1" and 2's-North Kona, Hawaii, TMK: 7-&21:4,9-13 and 15-17. W B 1 .)).NESS - 10:15 am. 5. INPPIATOR: PLANNING D=CTOR Amendment to Section 25-2-45, Chapter 25 (Zoning), Hawaii County Code 1983 (2005 Edition, as amended) with respect to Nonsigai5cant Zoning Changes. i . ELECTION OF 2008 OFFICERS WORKSHOP FOR PLANNING COMMISSIONERS e Update ofPhuming Department activities, including status of the on-going community development plans. Novae 16,2007 A M CTRATIVE MAE= ANNOUNCEMENTS ~#DJOURNMENT The purpose of the public hearings is to afford all interested persons a reasonable opportunity to be heard on the above requests. Pursuant to Rule 4, Contested Case Procedure, of the County of Hawaii Planning Commission Rohts of Practice and Procedure, any persno seeking to intervene as a party to a contested case hearing on Item no. 3 above Is required to file a written request which most be received in the office of the Planning Department no later than seven (7) calendar days prior to the Planning Commisdoo's first public meeting on the matter. Such written request shall be in conformity with Rule 4, In s form as provided in Role 4 Appendix A ( "Petition for Standing In a Contested Case [leering." The written petition/request shall be I 2 ~ r r filed with the Planning Commission at Aupual Center, 101 Paoahi Street, Suite 3, Hilo, Hawaii %720, and accompanied by a tiling fee of 5100 payable to the Director of Flnaate. Any party may retain counsel If that person so desires. Rub 4 may be Inspected or purchased (52.30) at the above-shed location. Role 4 may she be viewed at the County, of Hawaii website fhtto://www.co.hawaii.l jgu Sub 'tuna Testimony: According to Rule 1 (General Rules) of the Planning Commission, a parson dashing to submit oral or written testimony shell indicate her/his name; residence address; and whether the testimony is on her/his behalfor a a representative of an organization or individuaL If testimony is being submitted an behalf of an organization, documentation showing membership ratification should accompany the testimony. Written testimony shall be submitted with an original and nine copies prior to teadfying. The Commission would appreciate timely submittal to the Planning Department at lest one week prior to the hearing data to allow for mailing and thorough Commission review. Testimony that is irrelevant or unduly repetitious may be limited by the chairperson pursuant to Rule 1. Notice to Lobbvists: If you are a lobbyist, you must register with the Hawaii County Clerk within five days of becoming a lobbyist (Article 15, Section 2-91.3(6), Hawaii County Code). A lobbyist means "any individual engaged for pay or other consideration who spends more than five bouts in any mouth or $275 in any six-month period for the purpose of attempting to influence legislative or administrative action by communicating or urging others to communicate with public officials." (Article 15, Section 2-91.3(a)(61 Hawaii County Code} 1. Registration fames and expenditure report documents are available at the Office of the County Clerk, 333 Kilauea Avenue, 2ed Floor, Hilo, Hawaii 96720. Maps showing the general locations and boundaries of the areas under consideration and/or plans of the proposed developments am on file and open to inspection during office hours at the Planning Depaztnent, Aupuni Canter, 101 Pauaht Street, Suite 3, Hilo, Hawaii and at the Kona office of the Planning Department, 75-5706 Kuakini Highway, Suite 109, Kailua-Kona, Hawaii. Any disabled person requiring special assistows or person requiring auxiliary aid and/or services to participate in the hearing should contact the Planning Department at 961-8288 five (5) working days prior to the hearing so that appropriate arrangements can be made. Hawai 7 County it an Equal Opportunity Provider and Employer. PLANNING COMMISSION William Graham, Chair C. Khoo Alameda, 1' Vice Chair Rodney Watanabe, 2"4 Vice Chair (Hawaii Tribune Herald: November 22, 2007) (West Hawaii Today: November 22, 20M I I 1 3 Re: Kohala LLC Page I of I Katharine Y. Lugo From: Norman Hayaehiinhayeshioco.AawalLhLuaI Sent: Tuesday, September 18, 2007 3:48 PM To: Steven S.C. Lim Cc: Katharine Y. Lugs; Janngw A. Bank; Baba N. Yung Subject: RE Kohut LLC OK will waft to hear back hom m --original Mcssage- Froms %am S.C. Lkn (ma8to:samocarlsmith.mn) Sent: Tuesday, September 18, 2007 3:02 PM To: Hayaahl, Norman Cc: Katherine Y. Lugs, JMft A. Bends; Baba N. Yung Subject: Re: Kohals LLC We have net hoard back on our rerqueat rar a meedag with Mr. Yum yet, so we need mme thus, Please. Oritioal (chute From: Hayashf, Nwmm goo mas_hpeahh®co.hewali.hLusa To: Stever S.C. Lim Sent- Tue Sep 10 14:29:36 2007 Subject Kchols LLC Stew, Are you ready to sd bock on for the October 19th PC Weds? Or, do you west to hold off till WNq { 9/18/2007 Exbibjt F m F Box AC, i CARLSMITH BALL LLP r, r ..r• (,.n n Ofl 7 7 ~!i I w A I.aalsD LIAMrrrY CAx PAa7Naoror M WA ANUMM AYOM PA.90xeti HRA HANK gan4du Tomm seL43UM PAxULSM.7m W W W.CAW9MiM.COM LETTER OF TRANSMnTAL To: William Graham DATE: Augnst 16, 2007 Chsimesa Planning Commission Rtt Kabala. LLC . SMA Permit No. 379 101 Paudd Streak Suite 3 Ts (3)1-9-001:002 Hilo, Hawaii %720 ATTN. PHYLLIS FUJMOTO ® Mailed QX Hand Delivered 0 THE FOLLOWING IS (ARE)1RANSWrrW HEREWITH: COMB VAn man Original + Stipulation re Submittal of Proposed Findings of Fact, 12 Conclusions ofLaw and Decision and Order ® For Your Information ® For Review and Comment ® For Your Files ® For Necessary Action ® Per Your Request 0 For Signature end Return (Black Ink) Q Per Our Conversation XQ See Remarin Below REMAnro: Enclosed for flung are the original + 12 copies of the above referenced docr umm Should you have any questions, please feel free to caused ns. Tbank you. By 4._ Fes' Steven S.C. Lim Enclosure(s) I Eih bit ( CARLSMITH BALL LLP STEVEN S.C. LIM 2505 121 Waismucaut Avenue Hilo, HI 96720 Tel No. 808.933.6644 Fax No. 808.935.7975 Attorney for Applicant Kohala, LLC BEFORE THE PLANNING COMMISSION OF THE COUNTY OF HAWAII In the Matter of the Planning Director Initiated: SPECIAL MANAGEMENT AREA USE (1) Change of Zane (REZ 07-000067) fium RS- PERMIT NO. 379 IS to RA-S& diateid, (2) Repeal of Ordinamx No. 97-102 ilom A-Sa to RS-15 district, and (3) STIPULATION RE SUBMITTAL OF Revocation of Special Management Area PROPOSED FINDINGS OF FACT, (SMA) Use Permit No. 379 to allow a 50-lot CONCLUSIONS OF LAW AND single-family residential subdivision DECISION AND ORDER and Applicant Requested: (1) Amendment to Condition C ofChaage ofZ one Ordinance No. ! 97-102 and (2) Amendment to Condition 4 Special Management Area Use Permit No. 379 Property situate at Kahaa 1st, North Kohala, TMK: (3) 5-9-001:008 STIPULATION RE SUHMITTAL OF PROPOSED EMU= OF LAS L CONCLUSIONS OF LAW AND DECISION AND OR= Applicant Kohsla, LLC, by and through its counsel, Steven S. C. Lim of Carismith Ball LLP, and Christopher J. Yuen, Planning Director, County of Hawaii, by and through his anomey, William Brilbante, Deputy Corporation Counsel, bereby stipulate and agree to the following: (1) To extend the deadline within which all parties are to submit their respective proposed Findings of Fact, Conclusions of Law, and Decision and Order from August 17, 2007 to no later than twenty (20) calendar days prior to the final action by the Planning Commission on the Planning Director Initiated Revocation of Special Management Area (SMA) Use Permit No. 379, and Applicant Kohals LLC's request for Amendment to Condition 4 Special Management Area Use Permit No. 379; and (2) All parties may submit exceptions to the proposed Findings of Fact, Conclusions of Lew, and Decision and Order no later than twelve (12) calendar days prior to the final action by the Planning Commission on the Planning Director Initiated Revocation of Special Management Ares (SMA) Use Permit No. 379, and Applicant Kohala LLC's request for Amendment to Condition 4 Special Management Area Use Permit No. 379. DATED- Hilo, Hawaii, Y~ 16 0-;~- Q" SHTEPVANR &C. Attorney for Applicant Kobela LLC DATED: Hilo, Hawaii, Attorney J. Yuen Planning Director, County of Hawaii In the Maser of tba Plmaft Deedw Initialed: (1) Chow of Zone (REZ 07-000067) tram RS-13 to RA-S& diuriat; (2) Repeat afOMimum No. 97-102 nom A-1a to RS-15 diatriet, and (3) Revmdon of Spacial Maosyato at Area (SMA) Use Pamb No. 379 0 albr a Wbt sinaled4mfiy residential wbdivixi end Applieaot Regemtedr (1) Ammdmam b CaaMm C of Cbmaa of Zeno Ordinanea No. 97-102 and (2) Aamdmam to Condition 4 Special INamysmmt Arm Un Perrmt Nw 379; STIPULATION RE SUBMfITAL OF PROPOSED FINDINGS OF FACE. CONCLUSIONS OF LAW AND DECISION AND ORDER -2- • _ _ - _ ~1RIRRRRRR~R~RIARIRRRy1RRRRR~~II~~RRR~~, CARLSMITH BALL LLP ee A1JRa7FD LfA"ILrry GWPARiNEL4ar V L 121 WAlAm)WMAVWUa 20 FEB 1 PIS 2 45 ROL sex 686 HAq HAWAa 96MON6 CO1:A' C' TURNMtNUX6666 FAxe0&93s.7M COUNT`. ~1= H;,tNRJI W W W.CARLSMffH.CDM SUMOCARIAMMM.CO6t OUR R8P Wa No., osausl February 1, 2008 Casey Jarman Hawaii County Council-Clerk y 25 Aupuni Street, Hilo, Hawaii 96720 Re: Planning Director (REZ 07-000067/REZ 866): (1) Planning Director Initiated Change of Zone for 37.88 Acres of Land From Single-Family Residential 15,000-Square Foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) District; and (2) Repeal of Ordnance No. 97-102, Which Rezoned 37.88 Acres of Land From an Agricultural 5-acre (A-5a) to a Single-Fam ft (residential 15, Foot (R& 15) District Dear Ms. Jarman: We represent Kohala LLC ("Kobala"), the owner of approximately 37.88 acres of land located at Tax Map Key (3) 5-9-001: 008 (the "Subject Phperty"). In connection with the Planning Commission's ("Commisaloa") hearings on the above referenced Planning Director initiated proposed repeal of Ord. No. 97-102 and downzoning of the Subject Property (collectively the "Dowazoaing"), I am writing to inform you of deficiencies in the public notice required under Hawaii County Code, § 25-2-43 (c). In addition to public notice defects, Kohala was not properly noticed on all Commission bearings, as required by Haw. Ct. Code § 25-243 (d). Finally, Kohala is not aware of any sip posting for the proposed Downzoning, as required by Haw. Ct. Code § 25-2-12 and Planning Commission Rule 11-4. As a result of these defects, the Downzoning cannot now be heard by the Hawaii County Council. Instead, the Downzoning must be returned to the Commission for further hearings, which will have to be properly noticed. Kohala recognizes that these jurisdictional Comm W. Tam Ref. Data EXHIBIT E Casey Jarman February 1, 2008 Page 3 defects may seem like mere technicalities. However, should the Downzoning be enacted by the Hawaii County Council, Kohala's currently entitled 50-lot subdivision will be reduced to approximately 7 lots. In light of the potentially devastating effect of the Downzoning, Kohala is obligated to raise these deficiencies in an attempt to protect its valuable and Constitutionally protected property rights. Notice of the first Commission hearing on the Downzoning was published three times in two newspapers, as required by Haw. Ct. Code, § 25-2-43 (c). However, no subsequent hearing were so noticed. In the same way that a property owner who initiates a zoning change is legally obligated to serve notice on surrounding owners and lessees of record, as provided under Haw. Ct. Code § 25-242 (b), in this case the Planning Director, as the initiating party, had the legal duty to publish proper notice informing the public of his proposed zoning amendments. This duty is clearly set forth in Haw. Ct. Code § 25-243 (c), which states as follows: Notice by mail to surrounding property owners and lessees of record or properties within the boundaries shall not be required In lieu of mailing written notice to surrounding property owners and lessees of record, the director shall publish notice of the commission's public hearing in at least two newspapers of general circulation in the County, once a week for three consecutive weeks, with the last notice to be at kart tea day prior to the hearing. The notice shall specify the time, date and place of the hearing, its purpose and a description of any property which may be involved. Haw. Ct. Code § 25-243 (c). Notice of the December 12, 2007, hearing was published one time only, despite the fact that at the prior hearing, held August 31, 2007, the Downzoning had been continued indefinitely. Unlike other hearings where a firm date for a continued hearing is established, and interested members of the public are therefore provided an opportunity to attend the scheduled continued hearing, in this instance no such date was determined at the August hearing. Therefore, it was impossible for any interested person in attendance at the August hearing to know when the Downzoning matter would next be before the Commission. In fact, because an October hearing date was discussed at the August hearing, it is likely that any person interested Casey Jarman February 1, 2008 Page 4 in the Downzoning would have checked the Commission agenda and/or newspapers in anticipation of the October hearing and, seeing nothing listed, assumed the Downzoning matter was settled and no longer being considered by the Commission. The possibility of an October hearing was discussed at the August 31, 2007 hearing, where Kohala and the Planning Director stipulated to continue the matter to October 19, 2007, "subject to a continuance to a later hearing date in West Hawaii by agreement of the parties and approval by the Planning Commission." See Stipulation to Continue August 31, 2001 Hearing, a copy of which is attached hereto as Ex it The Commission sent a confirming letter to Kohala, dated September 21, 2007, stating that the matter had been continued to the October Commission hearing date, "tentatively scheduled for October 19, 2007." The Commission assured Kohala that the Commission would "notify you of the details of the continued hearing when they are confirmed." See Commission letter, a copy of which is attached hereto as fthibit B. The Downzoning was not before the Commission in October, and the only notice Kohala received of the December hearing was the Planning Director's letter dated November 15, 2007, stating that the Downzoning was scheduled to be before the Commission on December 12, 2007. Despite the Stipulation's open-ended language regarding the date of the continued hearing, notice of the December 12, 2007 hearing was published one time only. Kohala asserts that notice of the December hearing should have been published at least three times, as required under Haw. Ct. Code § 25-2-43 (c). A partial procedural history on the Downzoning and relevant hearing and notice dates are listed on the chart attached hereto as Exhibit C, Kohala never agreed to the December 12, 2007 hearing date, nor was Kohala informed of the Commission's approval of the December 12, 2007 hearing date, both of which were required under the Stipulation. 1 In addition, Kohala was not timely noticed on the December 12, 2007 hearing. The Planning Director's letter to Kohala regarding the December hearing was dated November 15, 2007, too late to comply with Haw. Ct. Code § 25-2-43 (d), ' On December 7. 2007, Kohals sent a letter to the Commission stating numerous concerns with respect to the Commission and Planning Director procedures on the Downzoning. Casey Jarman February 1, 2008 Page 5 which requires the Planning Director to provide property owners notice "no later than thirty days prior to the commission's public hearing on the amendment." Despite these procedural defects, the Commission held a hearing on the Downzoning on December 12, 2007, and there continued the matter to January 11, 2008 2 A final point Kohala wishes to raise is the Planning Director's failure to post signs at the Subject Property to notify the public of the proposed Downzoning. Under Haw. Ct. Code § 25-2-12 and Commission Rule 11-4 (a), such signs must be posted within ten days of acceptance of an application for zoning amendment. The Planning Director initiated the proposed Downzoning in June, 2007. Kohala is not aware of any public notification signs being posted at the Subject Property. For the reasons stated above, Kohala does not believe the Downzoning can be heard by the Hawaii County Council at this time. Instead, the Downzoning must be returned to the Commission for a further, properly noticed, hearing. In addition, an appropriate sign alerting the public to the Planning Director's proposed zoning amendment should be posted on the Subject Property. Very truly yours, STEV S. . LIM JAB Enclosures cc: Ivan M. Torigoe, Esq., Attorney for Planning Commission William Brilhante, Esq., Attorney for Planning Department Amy Self, Esq., Attorney for Planning Department Jennifer A. Benck, Esq. 7 Planning Director's notice to Kohala of the January 11, 2008 hewing was mailed December 17, 2007, and therefore did not comply with the thirty day notice requirement under Haw. Ct. Code § 25-2-43 (d). r_r~ sa~r,i ~r J. 'ezcu nt ecra hoc' ` • acrd iCarokaws, ACLA LEEM AP (90untg of'NafVU [ De"Diremr PLANNING DEPARTMENT lol Pauaw suce4 Sufte 3 - Hilo. Hawaii 96720.4224 (808)961-8288 - PAX(808)961-8742 MEMORANDUM NO, 07-20 October 3, 2007 TO: PLANNERS, ZONING CLERKS, AND EMS FROM: CHRISTOPHER J. YUEN PLANNING DIRECTOR SUBJECT: EA LAW Because of two recent events, we have to re-evaluate our practices in reviewing applications to see whether an environmental assessment is needed under Chap. 343, Hawaii Revised Statutes, particularly when a land use application for private development will need improvements within the state or county road right-of-way. The two events the state DOT's May 2007 memo and the State Supreme Court's recent opinion in the Superferry case. DOT's memo said that they would not process applications from landowners for improvements within the state r.o.w., typically for such things as driveways and turn lanes, which are associated with private development on the adjoining land, unless the owner could show that there had been compliance with Chap. 343 when the permits for the land use were granted (typically by the county.) The end result of the Superferry decision and the DOT memo, along with an earlier Hawaii Supreme Court case (Kahan Sunset) is that when we look at a land use application, such as a special permit, SMA permit, or a rezoning, we have to see whether any new construction on state or county land (including adjoining road rights-of-way) must accompany the development. Very often, it will. There will usually be a need for a new driveway access across the unimproved shoulder of a road, for example. A larger project may need turn lanes constructed within the right-of-way. Now, typically, these kinds of minor road improvements will be on the "exempt list" for DOT or DPW. This is a list of types of improvements that are normally "exempt" and do l-la%Wli County u• as Equal Oppoilwa j Provider and tmnlaver. PLANNERS, ZONING CLERKS, AND EMS Page 2 October 3, 2007 not need an EA, such as paving of shoulder areas. So if DOT or DPW did this type of work it would be considered exempt and would not need an EA. If it is done by a private party in connection with a development, however, the entire development has to be considered. The development can be exempted only if it is the type of development that is in one of the "exempt classes of action" under the OEQC Rules. These are general classes, such as construction of a single-family home not in connection with more than one home. Planners will have to review the application to see if there is construction on state or county land involved. This may be shown on the site plan. Planners also have to use common sense in looking at the application. For example, if access to the property will require constructing a new road over a "paper" government road, this will trigger this Chap. 343 review. If we process an application without requiring an EA because there was no road improvement or other EA trigger in the application, but it turns out that during the course of the consideration of the application that there is likely going to be an EA trigger (because there is a comment letter from DPW asking for road improvements, for example) we will continue processing the application, because it is not clear until the permit or rezoning is granted that this will actually be a requirement. In that case, if the improvement is a condition of the approval, the EA will have to be done before the next stage in the process. For example, if the property was rezoned, the EA should be done before the preliminary subdivision plat is submitted. If the road improvement is a condition of tentative subdivision approval, the EA should be done before final subdivision approval, and the tentative approval should include it as a condition. The end result of this is likely that more applications will need environmental assessments, and, because the entire project has to be considered, some will need full EIS's, even though the only "trigger" is a minor construction on the state or county right- of-way. In most cases, the Planning Department will then be responsible for submitting the environmental assessment, because we are the agency that received the initial application. We will usually continue our regular practice of having the private applicant actually prepare the information that goes into the EA. We still have to find it acceptable and be the entity that actually submits it, however. We will also make the determination whether there must be a full EIS. PLANNERS, ZONING CLERKS, AND EMS Page 3 October 3, 2007 I understand that this may cause a big increase in work for some projects. We have to do this, however, because we have to implement the state environmental impact statement law, Chap. 343. I expect to have further staff training on this topic soon. In the meantime, however, attached is a checklist for reviewing new applications to see if there will be a requirement for an environmental assessment. This is a checklist for applications that go to the Planning Commission, such as special permits, SMA permits, rezonings, use permits, and state land use boundary amendments, and for new subdivision applications. Planners who are reviewing these applications should go through the checklist. When completed, a copy of the checklist, initialed by the planner and dated, must be kept in the file of the application. Planners must keep a copy of the DPW and DOT "exempt lists", and the "exempt categories" handy so that they can make a determination whether these apply. (These are included with the memo.) . I am available for consultation on issues involving EA's and applications but long term this has to be handled by the planners who are reviewing applications. One further fine point on this: technically, a rezoning or a county council state land use boundary amendment is not the type of approval that will create the need for an EA, because state law defines the EA trigger as an "agency action", and the county council is not an "agency" under Chap. 343. It is not part of the executive branch of government. However, a rezoning is almost invariably followed by a subdivision or plan approval, which is an "agency action." Because Chap. 343 says that the EA should be done at the earliest practicable time, if a rezoning has a "trigger" for an EA, and if it is not exempt, and if the rezoning is going to be followed by a subdivision or plan approval, then the EA should be done prior to the rezoning. In the case of a rezoning that would not be followed by a subdivision or plan approval (which is probably rare), no EA will be required, even if there is a trigger. I'm sorry for the complexity of this topic, but again, that is the result of state law. CJY:pak WpwinWadShfrMe m RA Uw.dm Attachments cc: Mayor Harry Kam Corporation Counsel Department of Public Works ry {`'n,1 f.. it 6c 1 ~ `I t lilt ch,aT) 1 ,.eI } 7~[Cfe 41t Il 1P.!Ol ~t4Q)Y)i' 6i fiF~F f[ •-.41. 1.ibrm'Q'l..c~ ~YS) (dy ~ Fi. ~/ryry LEi•311~10~k~ Tt33Xlyiv rff pa~a aii DepulyDimcior PLAIC%NG DEPARTMENT 101 Pauahi Street, Suite 3 • Hilo, Hawaii 967704224 (808) 961-8288 • FAX(909)961-8742 MEMORANDUM NO. 07-20 October 3, 2007 TO: PLANNERS, ZONING CLERKS, AND EMS FROM: CHRISTOPHER J. YUEN PLANNING DIRECTOR SUBJECT: EA LAW Because of two recent events, we have to re-evaluate our practices in reviewing applications to see whether an environmental assessment is needed under Chap. 343, Hawaii Revised Statutes, particularly when a land use application for private development will need improvements within the state or county road right-of-way. The two events the state DOT's May 2007 memo and the State Supreme Court's recent opinion in the Superferry case. DOT's memo said that they would not process applications from landowners for improvements within the state no.w., typically for such things as driveways and turn lanes, which are associated with private development on the adjoining land, unless the owner could show that there had been compliance with Chap. 343 when the permits for the land use were granted (typically by the county.) The end result of the Superfeny decision and the DOT memo, along with an earlier Hawaii Supreme Court case (Kahana Sunset) is that when we look at a land use application, such as a special permit, SMA permit, or a rezoning, we have to see whether any new construction on state or county land (including adjoining road rights-of-way) must accompany the development. Very often, it will. There will usually be a need for a new driveway access across the unimproved shoulder of a road, for example. A larger project may need turn lanes constructed within the right-of-way. Now, typically, these kinds of minor road improvements will be on the "exempt list" for DOT or DPW. This is a list of types of improvements that are normally "exempt" and do EXHIBIT F t ~il!%tiJ': ~~y.: ~ G:]%J.`[',:lrr- ei rdr•l. ,C. ily'n'Jyc PLANNERS, ZONINC CLERKS, AND EMS Page 2 October 3, 2007 not need an EA, such as paving of shoulder areas. So if DOT or DPW did this type of work it would be considered exempt and would not need an EA. If it is done by a private party in connection with a development, however, the entire development has to be considered. The development can be exempted only if it is the type of development that is in one of the "exempt classes of action" under the OEQC Rules. These are general classes, such as construction of a single-family home not in connection with more than one home. Planners will have to review the application to see if there is construction on state or county land involved. This may be shown on the site plan. Planners also have to use common sense in looking at the application. For example, if access to the property will require constructing a new road over a "paper" government road, this will trigger this Chap. 343 review. If we process an application without requiring an EA because there was no road improvement or other EA trigger in the application, but it turns out that during the course of the consideration of the application that there is likely going to be an EA trigger (because there is a comment letter from DPW asking for road improvements, for example) we will continue processing the application, because it is not clear until the permit or rezoning is granted that this will actually be a requirement. In that case, if the improvement is a condition of the approval, the EA will have to be done before the next stage in the process. For example, if the property was rezoned, the EA should be done before the preliminary subdivision plat is submitted. If the road improvement is a condition of tentative subdivision approval, the EA should be done before final subdivision approval, and the tentative approval should include it as a condition. The end result of this is likely that more applications will need environmental assessments, and, because the entire project has to be considered, some will need full EIS's, even though the only "trigger" is a minor construction on the state or county right- of-way. In most cases, the Planning Department will then be responsible for submitting the environmental assessment, because we are the agency that received the initial application. We will usually continue our regular practice of having the private applicant actually prepare the information that goes into the EA. We still have to find it acceptable and be the entity that actually submits it, however. We will also make the determination whether there must be a full EIS. PLANNERS, ZONING CLERKS, AND EMS Page 3 October 3, 2007 I understand that this may cause a big increase in work for some projects. We have to do this, however, because we have to implement the state environmental impact statement law, Chap. 343. I expect to have further staff training on this topic soon. In the meantime, however, attached is a checklist for reviewing new applications to see if there will be a requirement for an environmental assessment. This is a checklist for applications that go to the Planning Commission, such as special permits, SMA permits, rezonings, use permits, and state land use boundary amendments, and for new subdivision applications. Planners who are reviewing these applications should go through the checklist. When completed, a copy of the checklist, initialed by the planner and dated, must be kept in the Me of the application. Planners must keep a copy of the DPW and DOT "exempt lists", and the "exempt categories" handy so that they can make a determination whether these apply. (These are included with the memo.) I am available for consultation on issues involving EA's and applications but long tern this has to be handled by the planners who are reviewing applications. One further fine point on this: technically, a rezoning or a county council state land use boundary amendment is not the type of approval that will create the need for an EA, because state law defines the EA trigger as an "agency action", and the county council is not an "agency" under Chap. 343. It is not part of the executive branch of government. However, a rezoning is almost invariably followed by a subdivision or plan approval, which is an "agency action" Because Chap. 343 says that the EA should be done at the earliest practicable time, if a rezoning has a "trigger" for an EA, and if it is not exempt, and if the rezoning is going to be followed by a subdivision or plan approval, then the EA should be done prior to the rezoning. In the case of a rezoning that would not be followed by a subdivision or plan approval (which is probably rare), no EA will be required, even if there is a trigger. I'm sorry for the complexity of this topic, but again, that is the result of state law. CJY:pak Wpwin60/Pat/Smff Me= rc EA Iaw.doc Attachments cc: Mayor Harry Kim Corporation Counsel Department of Public Works CHAPTER 343 REVIEW CHECKLIST FOR NEW APPLICATIONS THAT GO TO PLANNING COMMISSION AND NEW SUBDIVISIONS 1. Has an EA or EIS already been done for the project? If yes, stop, the requirement has already been taken care of. 2. Is there an EA trigger? --use of state or county lands, including construction within r.o.w. --use of state or county funds --use within conservation district --use within shoreline setback --use within historic site on national or Hawaii register (see list in GP) --reclassification of conservation land --building of certain helicopter facilities, see HRS sec. 343-5 --amendment to county GP or CDP not initiated by county --construction of new W WTP serving > 49 residences --construction of new fossil-fuel power plant > 5MW --expansion of existing fossil-fuel power plant by > 5MW --new landfill --new waste-to-energy facility --new oil refinery If no trigger, check _ here. Stop, no EIS/EA needed. If trigger, check off trigger category or categories, go to #3. 3. Is the trigger on an exempt list or is it an exempt class of action? Review exempt lists and exempt classes of action. If no, stop. Project needs EA or EIS. Write applicant, explain. Reject application. If PPM, process but send applicant a letter explaining they must do EA and that no TA until this is done. If yes, list exempt list item or class of action here-, go to A. 4. Is the project as a whole similar to an exempt class of action? if no, stop. Project needs EA or FIS. Write applicant, explain. Reject application. If PPM, process but send applicant a letter explaining they must do EA and that no TA until this is done. If yes, go to #5. 5. Contact the agency whose exempt list it falls under. Let them know that we are considering exempting the project per the category. Ask for any objection. If no objection, go to #6. If there is objection, see planning director. 6. Is the project in an unusually sensitive area, or are there successive actions planned that may have a cumulative effect? If yes or if in doubt, see planning director. If no, go to V. 7. Write brief letter to agency whose exempt list it falls under mentioning that we consulted with the agency and have determined this project is exempt from EA requirements under exempt list item CC applicant. Process is now finished. Checklist completed by - Date: r7-.E-s4 'r CLASSES oy jtcnow §11.200-8 Exempt Classes of Action A. Chapter 343, HRS, states that a list of classes of actions shall be drawn up which, because they will probably have minimal or no significant effect on the environment, may be declared exempt by the proposing agency or approving agency from the preparation of an environmental assessment provided that agencies declaring an action exempt under this section shall obtain the advice of other outside agencies or individuals having jurisdiction or expertise as to the propriety of the exemption. Actions declared exempt from the preparation of an environmental assessment under this section are not exempt from complying with any other applicable statute or rule. The following list represents exempt classes of action: t. Operations, repairs, or maintenance of existing structures, facilities,, equipment, or topographical features. Involving negligible or no expansion or change of use beyond that previously existing; 2. Replacement or reconstruddon of existing structures and facilities where the new structure will be located generally on the same site and will have substantially the same purpose, capacity, density, height, and dimensions as the structure replaced; 3. construction and location of single, new, small facilities or stmctures and the alteration and modification of the same and Installation of now, small, equipment and facilities and the alteration and modification of same, including, but not limited to: a. Single-family residences teas then 3,500 square feet not in conjunction with the building of two or more such units; b. Multi-unit structures designed for not more than feu dwelling units if not In conjunction with the building of two or more such structures; c. Stores, offices, and restaurants designed for total occupant load of twenty persons or less per structure, if not in conjunction with the building of two or more such structures; and d. Water, sewage, electrical, gas, telephone, and other essential public utility services extensions to serve such structures or facilities; accessory or appurtenant structures including garages, carporks, patios, swimming pools, and fences; and, acquisition of utility easements; 4. Minor alterations in the conditions of land, water, or vegetation; 5. Basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource; 6. Construction or placement of minor structures accessory to existing facilities; 7. Interior alterations involving things such as partitions, plumbing, and electrical conveyances; 6. Demolition of structures, except those structures located on any historic site as designated in the national register or Hawaii register as provided for in the National Historic Preservation Act of 1966, Public Law 89-666, 16 U.S.C. §470, as amended, or chapter 6E. HRS; 9. Zoning variances except shoreline set-back variances; and 10. Continuing administrative activities Including, but not limited to purchase of supplies and personnel-related actions. 8. All exemptions under the classes In this section are Inapplicable when the cumulative impact of planned successive actions In the same place, over time, is stgnifirmt, or when an action that Is normally insignificant in Its impact on the environment may be significant in a particularly sensitive environment. C.OMPREIiEWSIVE M-MPT(ON LIST rOP THE DEPARTMENT OF PUBLIC WORKS COUNTY OF HAWAII REVIEWED AND CONCURRED IN BY THE ENVIRONMENTAL COUNCIL ON JUNE 21, 1996 Purauant to Section 11.200.8, Hawaii Administrative Rules, the following types of actions, where they tan within the given classes of action, shall generally be exempt from the preparation of an environmental assessment. EXEMPTION QA SS 1: Operations, repairs or maintenance of existing structures, facilities, equipment or topographical features, Involving negligible or no expansion or change of use beyond that previously existing. 1. Operate, repair and maintain traffic control devices, i.e. traffic signals, street lights, traffic signs and pavement markings (8/21196). 2. Highway lighting systems (2/6/86). 3. Roofing 1216185). 4. Repair and maintenance of exlstimq structu se (216785). s S. Guardrail Installation (2/6/86). 8. Acquisition of land or easements on which existing facilities are situated 12161851. 7. Operate, rep* and maintain all County automatlw and construction equipment assigned to du department (2/61881. 8. Operate, rap* and nalintskn *111 County parking meters ( mAw. 9. Operate. repair end maintain all County owned areas kctudlng, but not limited to, Perking knts, road rkilm of-way, dndnageways and easements. This mainanance slia8Include removal end trimming of as vegetation, as needed. In order to minimize any encroachmerm or obstructions wMk the road dght.of-way (8121/96). 10. Opwgty. apW snd maintain an wastewater fec{fitles kakx2ng sewer lines. pump stations anod treatment plant components (8/21/96). 11. Operate, repair and maintain all sold waste fscftn Including transfer stations and disposal facility components (8/21/96). FYFMON CLASS 2: Repacament or reconstruction of existing structures and faclIttles where the new structure will be lasted generally on the same site and will have substantially the same purpose, capacity, density, height and dimensions ss the structure replaced. 1. Replacement or reconstruction of existing asphaltic concrete paved roads or of existing gravel roads by resurfacing with asphaltic concrete Pavement. The completed road will be located within the existing right-of-way and will have substantially the same purpose, capacity end dimensions as the road prior to construction 12/5/85). (-,omprshensiv* Exemption last Department of Public W044. County of Hawaii June 21, 1995 Page 2 of 3 2. Modernization of an existing highway for safety purposes by resurfacing, widening leas than a single lane wkhk adding shoulders, adding auxiliary lanes for loca8zed purposes (wesvkng, climbing, speed changes, etc.) and correcting substandard curves and Intersections (2/5/8S). 3. Replacement or reconstruction of exisdng gravel parking lots not exceeding 20 amps by resurfacing with asphaltic concrete (2/5/851. 4. Replacement or reconav adon of all wastewater facilities Including sewer lines, pump stations and treatment plant components (8!21/95). 5. Replacement or reconstruction of all sold waste facilities Including transfer sadore and disposal facility components IB/21/9S). 8. Rapiseament, reconstruction or extension of wow, "wags, electrical. gas, tiephons, street light and other essendai Public utility swvke extensions within the County road dgMa.ol.way QgMUJON CLASS 3: Consvuction and location of skngde, now, small facigdss or mmurras and the alarstion and modification of some and knaftdon of now, small equipment and facilities and the skeatkn and modiNcadon of same including but not limited to : (a) single family residency not in conluncion with the bupdkno of two 13) or more such unhal N muhFunit structures deigned for not more then four (M dwelling undo, if not in cer*wodon whh to building of two f2l or more such svucturm (c) stores, offices and restawants designed for teal occupant load of twenty 120) Persons or In& if not lit conlunodon wlth do burg of two 12) or more such stnwwrw (d) watw, sewage, sloovical, on, tehphons, and other eesendi Public uWW tevke exanians to serve such strucpKSs and Willfts. and le) accessory or appwtansnt strucam" kWudkng garages, ewpora, patios. swimming pools and fences. 1. Play or" and play courts 12/5/85). 2. Fonckng (2/5/851. 3. Install traftk control devices, 6e. traffic agnsls, street lights. Craft signs and pavement markings (8/21195). 4. Install wastewater facilities kwkxW g "war lines, pump stations and treatment plant components 10/21/95). 5. Install solid waste facilities Including transfer stations and disposal facility components (6121/95). 8. New installation of water, sewage, electrical, gas, telephone, sweet light and other essential public utility service extensions wlthkn the County mad rightoof-way, 18121195). EXENf.MQN °S 4: Minor alteration In the condition of land, water, or vegetation. 1. Install and/or remove all County parking meters (2/5/88). Comprehensive `xemptlore Llai Department of Public Works County of Howell June 21, 1996 Page 3 of 3 2. Maintenance and removal of all vegstation from within the County road rights-of-way that pose a hazard to the health and welfare of the public 18/21 /961. . 3. Maintenance and removal of sell vegetation from within sAssi g sewer One and drainage easements (8/21185). 4. Maintenance and removal of vegetation in order to conduct survey work (8/21/96). FxEast+rtoN CUSS b: Basic data collection, research, experimental management, and reaotsce evaluation activities which do not no* In s serious or major disturbance to an environmental resource. 1. PeAam pto&nkwy auras (e.g. reconnaissance, location work, level circuits, topographic and hydrographic work) 12/6/88). FAMMI CLASS N: Construction or placement of minor structures accessory to existing faclidss. 1. brtaior attentions involving such things as partitions, piwnbkg. and electrical conveyances 12!8/86!. 2. Installation of culverts under an OWN Ing County road to eliminate flooding (2/6185). 3. Installation of one or two tons on am& aids of tie rout drywall now within the County right-ohwav to dminato or reduce beaked flooding. ponding or puddling !25/861. 4. Modification of existing wastewater facilities to Include sewer Ones, pump stations and treatment plant componsrns 18/21195). 5. Modification of exkstkg sold wash facilities including transfer stations and disposal facility components 18121/85). B hang traffic control dsvkss. I.s. traffic sigrub, street OOhn, tratfio signs and pavement markings 18121/85). 7. kn ii wastw,"W facilities including sswee Ones, pump stations and treatment plant components (8121195). 8. Instill solid waft facilities including transfer stations and disposal facility components (8!21/961. 9. New mawation of water, sawsge, electrical, gas, telsphmm street W and other essential public utility service U aions within the Canny road ripl4100"aq (81211851. As stipulated in Section t t •200.8(bl, Howell Administrative Rules, all exemptions under this list are inapplicablo when the cumulative impact of planned successive actions of the some types, in the same place, over time, is significant, or when an action that is normally Insignificant in its impact on the environment may be significant in a partictdarly sensitive environment. COMPREHENSIVE EXEMPTION LIST FOR THE STATE OF HAWAII DEPARTMENT OF TRANSPORTATION AMENDED, NOVEMBER 15,2000 NOTE: The present list, reviewed and concurred in by the Environmental Council Docket 92-EX-01), State of Hawaii, amends and supersedes the December 16, 1992, exemption list for the Department of Transportation. Pursuant to Section 11-200-8 (a), Hawaii Administrative Rules, the following types of actions, where they fall within the given classes of action, shall generally be exempt from requirements regarding the preparation of an environmental assessment. EXEMPTION CLASS 1: Operations, repairs or maintenance Of existing structures, facilities, equipment or topographical features, involving negligible or no expansion or change of use beyond that previously existing. A. STRUCTURES 1. Buildings: repainting, reroofing, and repairs to and maintenance of furnishings, framework, walls, roof sheathing, flooring, floor coverage, windows, doors, electrical, plumbing, and communication systems, elevators, escalators, conveyors, heating/ventilation/air conditioning units, pedestrian bridges and underpasses. 2. Termite and past control treatment using Environmental Protection Agency and State Department of Agriculture approved pesticides under the supervision of certified applicators. 3. Repairing and maintaining protective walls damaged by aircraft blast. 4. Grooving of existing concrete pavements, bridge decks, taxiways and runways to improve skid resistance and safety. 5. Cleaning, chipping, painting, patching of damaged concrete and replacement of structural members to existing roadway structures, including tunnels and parking structures. 6. Modification required to existing buildings and equipment to meet new codes and regulations, i.e., Occupational Safety 6 Health Administration, building, fire, security, Federal Aviation Administration, accessibility for the handicapped, environmental compliance, etc. 7. Repairs and modifications to sewage and water pumping stations and treatment facilities to maintain established codes and standards provided that modifications that expand the capacity or geographical service area of existing facilities shall not be exempt. B. FACILITIES 1 . Resurfacing, sealing, and/or repairing of roadways, roadway shoulders, parking areas, taxiways, runways, walkways, bikeways and harbor storage and container areas. 2. Repair or replacement of fender systems, utilities, manholes, air and water navigational aids, and pipelines, excluding underwater pipelines. 3. Repairs or improvements to hatch frames and covers, residences, loading docks and mooring facilities. 9. Repairs to rockwalls, curbings, perimeter seawalls, groins, dikes, breakwaters, loading docks, and storm drains. 5. Temporary parking on highway remnant properties. 6. Temporary storage of construction equipment and materials on highway remnant properties. C. EQUIPMENT 1. Repair and maintenance of automobiles, trucks, maintenance and construction equipment used by the department in the performance of duty. 2. Repair and maintenance of machinery such as tools, mowers, pumps, generators, etc. D. TOPOGRAPHICAL FEATURES 1. Planting, trimming, mowing, and irrigating State Department of Transportation airport, harbor, and highway areas. 2. Clearing and grading, for which grading permits are not required, to maintain safety and security standards for aircraft and vehicular traffic. 3. Clearing of swales and drainage conduits to maintain existing flow characteristics. 9. Clearing of shoreline areas of debris or other objectionable material such as oil and derelict craft. 5. Requests to the Department of Land and Natural Resources or General Services Administration for setting aside of State lands to the Department of Transportation. 6. Requests to the Department of Land and Natural Resources for transfer of State lands by Governor's Executive Order between the Department of Transportation and other State agencies. 7. Subdivision of lot (s) not previously subdivided into highway parcel (s) and highway remnant (s). 8. Subdivision of portion of highway due to encroachment or determined surplus. 9. Consolidation of residential-zoned highway remnant parcels into one lot (residential). 10. Leases of property for continuing aeronautical uses or complementary airport purposes. 6. Installation and removal of sprinkler systems. 7. Utility service connection and installation along and across State highway or roads, and in airports and harbors. EXEMPTION CLASS 9: Minor alteration in the conditions of land, water, or vegetation. 1. Minor ground adjustments which do not require grading permits for the purpose of eliminating hazards to vehicular traffic and aircraft operations or to compromise air navigational aids. 2. Landscaping: trimming and/or transplanting of trees: sodding of bare areas for dust and erosion control. 3 . Paving of shoulder areas within existing highway rights-of-way for driveways and subdivision street connections. These shoulder pavings will provide vehicular access to the highway pavement lanes from the adjacent common property line for residential and commercial driveways and subdivision street connections. These actions will not alter the character of the highway facility. 9. Landscaping limited to installation of underground sprinkler or drip irrigation system and planting of groundcover, shrubs, and trees involving minimum or no grading on property under the jurisdiction of the Department of Transportation. 5 . Paving of previously graded parking and storage yard areas under the control of the Department of Transportation. EXEMPTION CLASS 5: Basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource. 1. Conduct topographic, sounding, wave, littoral transport and location surveys. 2. Conduct foundation surveys. 3. Conduct traffic surveys (including transit patronage surveys). 4. Conduct graves surveys. 5. Conduct noise monitoring surveys. 6. Conduct drainage studies. 7. Conduct inventories. S. Conduct building evaluations. 9. Conduct economical analyses (master planning updates). 10. Conduct archaeological surveys, excluding excavation. 11. Conduct air quality surveys. 12. Conduct ecological surveys for which no permit is required. 13. Conduct water quality surveys. 14. Conduct ridesharing demonstrations. 15. Conduct subsurface investigations (borings) provided cultural remains are not disturbed. EXEMPTION CLASS 6: Construction or placement of minor structures accessory to existing facilities. 1. Installation of flare screens, safety barriers, guard rails, energy attenuators and other appurtenances designed to protect the motoring public. 2. Installation of traffic signals, pavement marks, and striping for traffic safety and control. 3. Installation of directional, informational, and regulatory signs. 4. Installation of light standards.. 5. installation of screens around trash bin areas and for noise control. 6. Installation of reefer outlets. 7. Procure and install works of art. 0. Alteration or addition of improvements with associated utilities, which are incidental, to existing harbor and boat ramp operations, in accordance with master plans that have met the requirements of Chapter 393, Hawaii Revised Statutes. Such improvements and associated utilities include concessions, comfort stations, pavilions, paving, rockwalls, fencings, walkways, _ loading docks, warehouses, piers, offices, container freight stations, cranes, fuel lines, lighting, sprinkler and drainage systems. 9. Construction of bus shelters, telephone booths and sidewalks. 10 Striping of existing paved roadways or paved shoulders to create a bikelane when no additional construction is required. EXEMPTION CLASS 7: Interior alterations involving things such as partitions, plumbing, and electrical conveyances. 1 Installation of office partitions and electrical outlets as required. 2. Expand utilities as need dictates in existing structures. 3. Maintaining of existing utilities. EXEMPTION CLASS B: Demolition of structures, except those structures located on any historic site as designated in the National Register or Hawaii Register as provided for in the National Historic Preservation Act of 1966, Public Law 89- 665, or Chapter 6E, Hawaii Revised Statutes. 1. Demolition of existing structures under Department of Transportation jurisdiction except seawalls and other coastal structures and those structures located on any historic site as designated in the National Historic Preservation Act of 1966, Public Law 89-655, or Chapter 6E, Hawaii Revised Statutes. EXEMPTION CLASS 9: Zoning variances except: use, density, height, parking requirements and shoreline setback variances. None. NOTE: Pursuant to Section 11-200-8 (b), Hawaii Administrative Rules, all exemptions under this list are inapplicable when the cumulative impact of planned successive actions of the same type, in the same place, over time, is significant, or when an action that is normally insignificant in its impact on the environment maybe significant in a particularly sensitive environment.