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HomeMy WebLinkAboutCOM 0998.013 20062008Harry Kim Mayor Dixie Kaetsu Mnnaging Director ~ Barbara Kossow Deputy Managing Director County of Hawaii 25 Aupuni Shee[, Room 2I5 Hilo, Hawaii 96720-0252 • (808) 96IS211 Fax (808) 9616553 KONA: 75-5706 Kuakini Highway, Suite 103 Kailua-Kona, Hawaii 96740 (808) 329-5226 • Fax (808) 326-5663 August ] 1, 2008 Honorable Pete Hoffmann, Chairman f~J ~~ _) m and Members of the County Council f) ~, ~ ..;., County ofHawai`i - __ ~' "~ ~ ~-: 333 Kilauea Avenue _ _ ~. -~ r:, Hilo, HI 96720 - _ _ -~ Deaz Chairman Hoffmann and Members: rv ~- -.. State Land Use Boundary Amendment Application (SLU 08-000019) - = cn -- '~ Request: Agricultural to Urban Change of Zone Application (REZ 08-000078) Request: A-20a to RS-15 Applicant: State of Hawaii, DAGS Tax Map Key: 5-4-8:portion 2 Initiator; County Council Landowner: Kohala LLC Tax Map Key: 5-9-1:18 As required by Chapter 4, Sec. 6-4.3(C), Hawaii County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regazding the above-referenced requests. incerely, Harry Kim Mayor Enclosures cc: Planning Department ~~~. N0. 9 98. i3 Ref. To: unr.~.l Ref. Dare•SFF ~ n 7nna __ ~Ime 2 s8 IM gy '~:- . . Dotes S ~2 0 ~,,.~.,~;o,m County Gaurtcl~ ~ . County of Hawaii PLANNING COMMISSION Aupuni Cen[er • 101 Pauahi SIroe4 Sui[e 3 • Hilo, Hawai `i 96720 Phone (808)961-8288 • Fax (ROS)961-8742 August 11, 2008 Pete Hoffmann, Chairman and Members of the County Council County of Hawaii 333 Kilauea Avenue, 2"d Floor Hilo, HI 96720 Dear Chairman Hoffmann and Council Members: Initiator: County Council Landowner: Kohala LLC Tax MaRKey: 5-9-1:18 The Planning Commission at its duly held public hearing on July 18, 2008, voted to forward an unfavorable recommendation to the County Council for a change of zone for 37.88 acres of land from a Single Family Residential - 15,000 square foot (RS-15) to a Residential and Agricultural 15-acre (RA-15a) district. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua ls`, North Kohala, Hawaii. The Commission concurs with the Planning Director's unfavorable recommendation as follows: The Planning Director is recommending that the Planning Commission forward an unfavorable recommendation for Bill No. 237, Draft 2, initiated by the County Council, which amends Bill 237 to downzone the subject property from R5-15 to RA-15a, instead of the RA-Sa zoning previously initiated by the Planning Director. While the Planning Director understands and sympathizes with public testimony in favor of the council-proposed RA-15a zoning, the Planning Director continues to recommend RA-Sa zoning for the following reasons: Hawaii Caunry is art Equal Opporhtiniry Provider and Employer Pete Hoffmann, Chairman and Members of the County Council Page 2 1. Consistency with other zoning. The current county zoning for the property makai of Akoni Pule Highway is A-5a, basically similar to RA-Sa, for a distance of about 3000' to the southeast of this property, and for about 8 miles to the northwest, almost to Mahukona. (About half the coastal property to the northwest is owned by the State of Hawaii, and for much of the distance, from the coastline to about 300' mauka, the land is in the state land use conservation district). Properties across Akoni Pule Highway are also zoned R-Sa. There has not been a sufficient rationale presented to justify zoning this property in a manner more restrictive than the properties to the northwest and southeast. 2. Notice to the landowner of consequences. The prior zoning ordinance, Ordinance No. 97-102, gives the landowner clear notice that the consequences of not meeting the various time frames could include "rezoning to its original or more appropriate designation." RA-Sa zoning is very similar to Che A-Sa zoning that existed prior to the enactment of Ordinance No. 97-102, the "original" designation, and the landowner cannot claim that there was no fair notice that this rezoning could be initiated after the time frames were not met. On the other hand, there wasn't clear notice that the consequences could include a rezoning to one- third the density that the owner had before Ordinance No. 97-102 was enacted. 3. Adequacy of RA-Sa zoning to protect environmental resources. Development of the 7 lots possible under the proposed RA-Sa zoning will require a SMA major permit from the Planning Commission. With additional protective conditions in the SMA major permit, such as those in the adjoining property to the southeast, the site can be developed in a way that protects the environment and coastal viewplanes. Lastly, the RA-Sa zoning would be consistent with the resolutions from the State of Hawaii Senate of the Fourteenth Legislature and the Senate of the Twenty-First Legislature and the goals and policies of the Natural Beauty element of the General Plan. Tt would also be consistent with the current community development plan for North Kohala, which designated this area as Unplanned and encouraged the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. The North Kohala Community Development Plan is in the process of being updated and is scheduled to go before the Planning Commission for review. The Growth Management section of the pre-final draft states that North Kohala residents have been very vocal about their desire to control the type and quantity of development that happens, and to direct its location to concentrated areas, so as to protect Kohala's rural character, agricultural lands, open space, and cultural resources. One strategy to achieve this goal is to establish a View Plane Protection Program to Pete Hoffmann, Chairman and Members of the County Council Page 3 identify and protect areas of significant beauty along the Kohala Mountain Road and Akoni-Pule Highway corridor. Based on the reasons stated above, the Planning Commission is recommending this unfavorable recommendation to the Hawaii County Council to change the zone from RS- 15 to RA-15a for this property and recommends that the Hawaii County Council adopt Bi11237, Draft 1 from RS-15 to RA-Sa. Bi11237, Draft 1 is provided for your favorable consideration. A copy of the Planning Department's Background and Recommendation Report is also enclosed for your information. Sincerely, Rodney Watanabe, Chairman Planning Commission Lcountycounci Irez08-000079 Enclosures cc: Steven S. C. Lim, Esq. Department of Public Works Department of Water Supply Lincoln Ashida, Esq. ~Yw~ ~~;- .a COUNTY OF HAWAII .`' ~*'o: ORDINANCE NO. STATE OF HAWAII BILL NO. 237 AN ORDINANCE REPEALING ORDINANCE N0.97 102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL -15,000 SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL - 5 ACRE (RA-Sa) AT KAHUA 1ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-001:008. BE ff ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-7, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition), is amended to change the district classification of property described hereinafter as follows: The district classification of the Following azea situated at Kahua 1st, North Kohala, Hawaii, shall be Residential and Agricultural - 5 acre (RA-Sa): Beginning at a point at the North comer of this piece of land, being also the East comer of portion of Government land of Pahinahina and on the Southwesterly side of Kawaihae Mahukona Road, Section II, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,109.73 feet North and 375,771.74 feet East, and running by true azimuths referred to the Meridian of Government Survey Triangulation Station "PUU PILI" and measured clockwise from South: 322° 00' 30.5" 24.31 feet along the Southwesterly side of Kawaihae Mahukona Road; 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; -1- 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 52° 00' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 5. 322° 00' 30.5" 100.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 6. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 7. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 8. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 9. 322° 00' 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 10. 52° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 11. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 12. 232° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 13. 322° 00' 30.5" 151.70 feet along the Southwesterly side of Kawaihae Mahukona Road; -2- 14. 26° 03' 889.95 feet along Lot 9, as shown on Map 4 of Ld. Ct. Cons.-129; Thence along highwater mazk (vegetation line) as of January 7, 1993 for the next thirteen (13) courses, the direct azimuths and distances between points on said highwater mark being: 15. 136° 21' 40" 516.93 feet; 16. 155° 00' 250.00 feet; 17. 128° 30' 95.00 feet; 18. 180° 20' 142.80 feet; 19. 93° 00' 104.00 feet; 20. 154° OS' 253.40 feet; 21. 157° IS' 225.20 feet; 22. 57° 40' 106.30 feet; 23. 176° 35' 213.10 feet; 24. 98° 00' 172.85 feet; 25. 105° 20' 83.55 feet; 26. 89° 00' 181.00 feet; 27. 150° 20' 77.35 feet; 28. 206° 50' 35" 1,075.00 feet along portion of the Government land of Pahinahina to the point of beginning and containing an azea of 37.880 acres, more or less. -3- All as shown on the map attached hereto, mazked Exhibit "A" and by reference made a part hereof. SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2005 Edition), the County Council fmds the following condition is: Necessary to prevent circumstances which maybe adverse to the public health, safety and welfaze; or (1) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. A. Preserve significant historic sites and burials as stated in the historic sites preservation plan as approved by the Department of Land and Natural Resources- State Historic Preservation Division (DLNR-SHPD) letter dated November 29, 2000, and by the approved burial treatment plan. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCE ~- COUNCIL MEM R, COUNTY OF WAI`I Hilo; Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: REfERENC& Comm. 998 -4- `. °y Ada Ada 9 A 5a ~Jp~.. ,.. \ ~9 pJPU L A 5a ~` . __ -.._ . ,. 90 Ada ,. ' ,a ~ Ada _... <_.. i Ada ' n Ade I 9 ~ , '. ~9p~ ` ~~OKU P~ a I `-~_-. - _. _. I i ~~ I A-5a I ~, Ada ~~ A-5a -__.... K NIP H __ ___ _ ____ 6 _. _ 453,109.73 N 5 375,771.74E SINGLE FAMILY RESIDENTIAL 15,000-SQUARE FEET (RS-15) A-5a " HAWAII STATE PLANE TO RESIDENTIAL AND AGRICULTURAL I5-ACRE (RA-15a) COORDINATE SYSTEM, 37.880 ACRES Ade ZONE 1" A-Sa ~ ~ 730 365 0 730 1,460 2,190 2,920 3,650 Feet AMENDMENT TO THE ZONING CODE AN ORDINANCE REPEALING ORDINANCE 97-102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICT ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), WHICH RECLASSIFIED THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL 15,000-SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL 15-ACRE (RA-15a) AT KAHUA 1st, NORTH KOHALA, HAWAII PREPARED BY: PLANNING DEPARTMENT COUNTY OF HAWAII MK: 5-9-001:008 Date: May 15,2008 EXHIBIT "A" (County Council Initiated:l2ss) PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JULY 18, 2008 A regularly advertised hearing on the COUNTY COUNCIL INITIATED CHANGE OF ZONE (REZ 08-000079) was called to order at 10:15 a.m. in the Sheraton Keauhou Bay Resort and Spa, Keauhou III and IV, 78-128 Ehukai Street, Kailua-Kona, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: C. Kimo Alameda Takashi Domingo. Shelly Ogata Alvin Rho Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Maija Cottle, Staff Planner Andrew Iwashita Rene' Siracusa And approximately ten people from the public in attendance. INITIATOR: COUNTY COUNCIL (REZ 08-000079) Change of Zone for 37.88 acres of land from aSingle-Family Residential 15,000-squaze foot (RS-15) to a Residential and Agricultural 15-acre (RA-15a) district. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua ls`, North Kohala, Hawaii, TMK: 5-9-1:8. WATANABE: This is a very interesting one; Agenda Item No. 3 is a very interesting one. We've already addressed this in the past. The original application was one that we struggled with from Kohala LLC, and I think you are all familiar with the circumstances here. It was passed on to the County Council, and now we have a County Council initiated Change of Zone recommendation, REZ 08-000079. Now, earlier I had been informed by the applicant's representative that he had already prepaid for vacation and he wasn't able to back out without, you know, a substantial financial loss; and he'had requested a continuance, I believe, through the August 22"d - I believe it is -yes, August 22"d meeting. It's my understanding that the Director is recommending an unfavorable recommendation on this. I didn't feel it was within my authority to make a decision as to whether we would continue it on our own without approaching all of the Commissioners; so here we are at this juncture where we need to decide whether we need to continue it or not. Typically, we do continue. However, before we take a vote on that, let me take a little latitude here, and let the Director present us with his side. ABSENT & EXCUSED: Lani Bowman YUEN: Yes, and I'm not going to talk about pros and cons of the issue itself very much, but I did want to suggest that the Commission discuss this and take a vote on it today rather than continuing it. And the issue itself has probably set the record for appearing the most times on the agenda of the Commission of any single piece of property. What happened here is, as you know, I initiated a rezone of this property to RA 5-a, and there were a number of split votes essentially at the Planning Commission on that - some of you were in favor and some of you were against -and it went up to the Council with a negative recommendation. I should also mention that the applicant has asked for a time extension on the RS-15, and that has gone up to the Council -and I'm trying to remember - I know it was voted against by the Council at the Planning Committee; I can't remember if it has actually been completely voted down because it would go from the Planning Committee to the first reading. Now, getting back to the rezone to 5 acres, the Council amended that to, rezone to a 15-acre minimum lot size, which would allow - rather than a subdivision to seven lots of the 5-acre zoning - it would allow a subdivision to two lots. That's a Council initiated rezoning, and I advised the Council that, because this was a major amendment to the bill that went up to them, that it should come back to the Planning Commission for - I'm sorry, guys -but for the Planning Commission's review because it is something that the Planning Commission has actually not ever looked at -the question of . whether it should be rezoned to 15 acres. So this is being processed as a Council initiated amendment. The applicant is not the property owner; the applicant in effect is the County Council. The rules are that you have 120 days from the time the Council sends it back, the total timeframe, to send it back up to the Council. So it came on May 2"d to the Planning Department; so the Planning Commission does have until September 2"d. The Planning Department's recommendation is negative for the reasons stated. We still believe in the 5-acre zoning, at proposal, and hope that the Council changes its mind and goes to 5 acres rather than 15 acres when this goes back to them, as it ultimately will with a recommendation. So it's not up to -, normally a rezoning is initiated by the property owner and, yes, if the property owner wants a delay, that's fine. I have to -, a couple of just timing things, the August 22 meeting is quite full on the agenda; we're going to have two Community Development Plans on that agenda to look at. The votes, and just if the people sitting here at the Commission vote consistently with their votes that were taken before, it's possible that this would go up to the Council with a negative recommendation, which is the most that the property owner could hope for at the Planning Commission. That's the only thing the Planning Commission can do, which is have a positive recommendation or a negative recommendation. If the Planning Commission takes a vote and there are not fives votes for a positive or a negative, then it would continue to the August 22 meeting. But I'm making a pitch for the Commission to talk about it, take a vote; if you have five votes for a negative recommendation, it goes up to the Council with a negative recommendation. WATANABE: Mr. Woodward. WOODWARD: Mr. Chairman. Yeah, Mr. Yuen is right; we have beaten this horse to death. I mean, it is probably the single most over-talked item on this Commission. And we sent a default negative recommendation when the Director planned to change it from RS-15 to Ag-5, 2 and then the Council trumped that and decided they are going to make it Ag-15. T've made my feelings known on this. I really think retrospective downzoning is a problem. And I didn't like it when they were talking about zoning it to Ag-5, and I really don't like it when they are talking about, you know, making this 37-acre property only useful for two lots. So I think we've got to decide it today, and send it back to Council. You know, it's in Council's court; I mean, they can do what they want. But I think we need to make a recommendation today. WATANABE: Okay. Do we have any further comments on this? So we'd like to attempt to do this? So okay, let's say we are going to attempt to do this. We haven't had the presentation yet. WOODWARD: Oh, we have somebody to present? WATANABE: Well, we don't have the -. WOODWARD: We've been presented before. WATANABE: We don't have the property owner here, but maybe we can have Mr. Darrow summarize what is, I think -. WOODWARD: Rehash. WATANABE: Yeah. DARROW: I'll make this short and sweet. WATANABE: Vividly in our subconscious. WOODWARD: I've seen this before. DARROW: Okay. A lot of the same pictures. The next agenda item is a County Council initiated Change of Zone, which is actually an amendment to the Planning Director's bill that went up to the County Council with an unfavorable recommendation, which was by a no- action vote. The Planning Director's request was a Change of Zone from RS-15 to RA 5-acre, as the Planning Director has mentioned; the County Council had amended that to from RS-15 to RA 15-acres, and at this time it has come back to the Planning Commission for review. The property is located within North Kohala. This is located just northwest ofKawaihae, more specifically, it's directly across Kohala Ranch Estates. The property is identified with a black outline. The color of the zoning is darker yellow, which signifies the RS-1 S zoning. The colors around the map identify the surrounding zoning; the light green is Agricultural 5 acres, the blue is representing Agricultural 3 acres and the dark green is representing Agricultural 20 acres. County Council is proposing an amendment to the Planning Director initiated bill, Bill 237, which proposes a Change of Zone from RS-15 to RA 5-a; they are further downzoning the property from RS I S to RA 15-a. This is an aerial -just something that we came across - it kind of shows the different developments in the area. Again, we have Kohala Ranch. The subject property is identified right in this particular area fronting the entrance to Kohala Ranch Estates. We have another aerial that shows you the property from a helicopter view. The Plaaming Department's recommendation is to send an unfavorable recommendation to the Hawaii County Council. Are there any questions? , WATANABE: Any questions, Fellow Commissioners? None? Okay. Mr. Woodward. WOODWARD: May I make a motion? WATANABE: I have -thank you -but -. WOODWARD: You have testifiers? WATANABE: Thank you, but I do have someone signed up to testify. WOODWARD: Oh, okay. WAT`ANABE: Mr. Isaacs, yes, would you come up to the table, please. I need to swear you in, Mr. Isaacs. So would you raise your right hand. Do you swear or affirm to tell the math now before the Planning Commission? ISAACS: I do. WATANABE: Thank you. Would you provide us with your full name and address prior to providing your testimony. ISAACS: Michael C. Isaacs, North Kohala, Hawaii. Hawi. WATANABE: Okay, you may begin. ISAACS: I'm here today to represent myself and nine other seniors and kupunas from North and South Kohala, who have testified before the Council, supporting the downzoning of Kohala LLC to Ag-15. I brought a clip of a DVD that Bill Walsh did along the coast in the particular area, and I would like the Commission to look at it. It's very condensed -. WATANABE: Would you assist him, Mr. Darrow? ISAACS: I'm sorry the quality is not good, but that's the best'we could do. But it describes the impact to that particular area over the years, and Mr. Walsh is the moderator. (There was an audio presentation by Bill Walsh, which was too muffled to identify the words.) WOODWARD: Mr. Chairman, I would just like to say this is completely unintelligible to me. I haven't heard a word. I'll ask Mr. Torigoe about electronic testimony. But this is unintelligible, and I think we are wasting our time. 4 WATANABE: Mr. Isaacs, you know, generally when we allow testimony, we put a time limit on the testimony; and I feel that's how long that clip runs, yeah. (Mr. Isaacs turned off the audio presentation at this point.) And with that in mind, you know, generally our time limit is between three to five minutes. I would like to point out, I think we have the general gist of what the clip was about because we did have a report and we did have the opportunity to review that report on numerous occasions, as we already indicated, because we reviewed this particular application a good number of times. So I realize you are looking at the flood situation. Do you have anything further to add to the clip? ISAACS: Yes, I'd like to comment basically on that. WATANABE: Briefly? ISAACS: Very briefly. WATANABE: Okay, thank you. ISAACS: What you are seeing there is accumulation of damage over the years. And normally, normal weather patterns, rain and stuff, the coral gets ruined. What's happened over the years is that as development has increased, so has the damage to the reef at a rate substantial. But what you didn't see is that it does move out to the depth of 65 feet where you have coral reefs out there that are also impacted and dead because of the sediment that is coming down from the developments mauka of Akoni Pule. My point is that the closer you get, the harder it is to mitigate any kind of situation once you start developing, and the damage will be even worse. Thank you. W.ATANABE: Okay, thank you. Do we have any questions for Mr. Isaacs? Seeing none, thank you for your testimony, Mr. Isaacs. It will be reflected in the record. Okay, well, as we've discussed earlier, we've rehashed this particular item on numerous occasions. Mr. Woodward. WOODWARD' Yeah, I would like to support the Planning Director's recommendation that we send a negative recommendation to County Council regarding 12EZ 08-whole bunch of zeros-79. That's pretty much it. WATANABE: Thank you. Do we have a second to that? DOMINGO: Second. WATANABE: Mr. Domingo. Thank you. Okay, we have a motion on the table. Is any discussion necessary? Or shall we take a vote?, Mr. Darrow. DARROW: Thank you, Mr. Chairman. With that, I'll take the roll call, or the vote. Commissioner Woodward? WOODWAIZD: Aye. DARROW: Commissioner Domingo? _ DOMINGO: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: And Mr. Chairman? WATANABE: Aye. DARROW: The motion passes, six to zero. WATANABE: Okay, thank you. This is kind of unusual because we didn't have the landowner's representative here. But Iguess -, the Council initiated this; so they'll get it in writing. The discussion ended at 10:38 a.m. Respectfully submitted, Noriko Sauer, West Hawaii Secretary 6 BRCCInitiatedREZOS-079.jwd 07-07-OS COUNTY OF HAWAII PLANNING DEPART1FiIENT BACKGROUND AND RECOMII'IENDATION INITIATOR: COUNTY COUNCIL CHANGE OF ZONE FROM RS-15 TO RA-15A (IZZ OS 0000791 The Hawaii County Council has proposed amending the Planning Director initiated bill, rezoning this property to RA-Sa, to RA-15a. Because this is, in effect, aCouncil-initiated ..change of zone, this is being processed as such. This involves 37.88 acres of land, which would be rezoned from aSingle-Family Residentia115,000-square foot (RS-15) to a Residential and Agricultural 15-acre (RA-15a) district.. The property involved, owned by Kohala LLC, is located along the southwest (niakai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. LANDOWNER 1. Landowner.: The applicant, Kohala LLC, is the landowner and the successor-in- interest to the original applicant, Gentry-Pacific, Ltd. BACKGROUND INFORMATION \ 2., July 14,1997: Effective date for Change of Zone Ordinance No. 97-102; which rezoned 37.88 acres of land from ati Agricultural 5-acre (A-Sa) to aSingle-Fancily Residential (RS-15) zoned district. 3. August 8,1997: Effective date of Special Management Area Use Permit No. 379, which was approved to allow the development of a 50-lot single family residential subdivision and related improvements. SENATE CONCURRENT RESOLUTIONS 4. S.C.R NO. 179: Senate Concurrent Resolution No. 179, H.D. 1, adopted in 1988, urges the retention of view and open space makai of Kawaihae-Mahukona- Hawi Road from Kawaihae to Upolu Point, Hawaii. 5. S.C.R NO. 146: Senate Concurrent Resolution No. 146, S.D. 1, adopted in 2001, urges the retention and preservation of open space and view planes, historic sites, and traditional access along the coastline of the North Kohala District, Hawaii. STATE AND COUNTY PLANS 6, General Plan Land Use Pattern Allocation Guide (LUPAG) Map: Low Density Urban, Extensive Agricultural and Open along the shoreline. SLUC: Urban. 8• County Zoning: RS=15, but a time extension is needed. See below. 9. North Kohala Community Development Plan: Adopted by the Hawaii Comity Council as Resolution No. 219 86 on November 3, 1986, the North Kohala Community Development Plan encourages the retention of view planes from major highways; through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. . The North Kohala Community Development Plan is currently in the process of being updated. 10. Coastal Zone Management, HRS Chapter 205A: The entire State of Hawaii lies within the Coastal-Zone Management azea. The intent of the Coastal Zone . Management Program i§ to guide and regulate public and private uses in the ,coastal zone management area with respect to recreational resources, historic resources,'public access to the shoreline, scenic and open space resources, coastal ecosystems, marine resources, economic uses, coastal hazards, managing development, public participation,.and beach protection. 11. SMA: The property is situated within the Special Management Area. Special Management Area Use Permit No. 379 was approved to allow the development of a 50-lot single family residential subdivision and related improvements on the subject property. This also needs a time extension. 12. Subject Property: The property is 37.88 acres in size and is roughly rectangular in shape. It is located along a rocky coast of North Kohala approximately 3 miles northwest of Kawaihae directly across of the Kohala Ranch entrance and fronting Waiakailio Bay. 13. Surrounding Zoning/Land Uses: The property borders the ocean to the southwest. Surrounding properties are zoned Agricultural 5-acre (A-Sa). The property to the northwest is owned by the State of Hawaii and is currently vacant, which is zoned A-Sa. Kohala Ranch is located directly across the Akoni Pule Highway with lots along the highway zoned A-Sa. Lots further mauka witlun the Kohala Ranch subdivision aze zoned A-3a. The properties to the southeast, makai of the highway, are zoned A-Sa. Special Management Area Use Permit No. 2006- 000Ol Owas approved to allow a 5-lot subdivision and related uses, and to make landscaping and other infrastructure improvements to two cul-de-sacs associated with the prior subdivision on the properties bordering to the southeast. 14. U.S.D.A. Sofl Type: Kawaihae very rocky, very fine sandy loam, 6 to 12 percent slopes (KOC). 15. ALISH: Unclassified. 16. Land Study Bureau's Detailed Land Classification System: "E" or "Very Poor" for agricultural productivity by the Land Study Bureau. 17. FIRM: Portions of the property along the coastline are located within Flood Zone "VE", which is the Special Flood Hazard Area inundated by the 100-year flood with coastal flood with velocity hazazd where base flood elevations are detemrined (nine feet). Other portions bf the property along the highway are within Zone X, outside ofthe 500-year flood plain: The project site is located within the Tsunami Evacuatiott Zone. BRIEF CHRONOLOGICAL SITM114ARY The County Council has referred a proposed amendment of Bill No. 237-08 to the Planning Director and the Planning Commission for. their review and recommendafion. Bill 237-08 was initiated by the Planning Director to repeal of Ordinance No. 97-102 and amend Section 25-8-7 (North and South Kohala Districts Zone Map) by changing the district classification from RS-15 to RA-Sa for the subject property. The County Council voted fo approve amendments to Bi11237 contained within Communication No. 998.8 introduced by Council Chair Peter Hoffmazi. The amendment would downzone the . subject property from RS-15 to RA-15a, instead of RA-Sa, as proposed by the Planning Director. The following is a brief chronological sununary of the events that have occurred regarding tlis matter: May 31, 2007: The Planning Director sent a letter to Kohala, LLC nrforniing them that based on inaction by the previous and current landowner for Ordinance 97-102 and SMA 379 for almost a 10-year period, including no requests for administrative time extensions, the Planning Director will be initiating the rezoning of the property fiom a RS-15 to a Residential azid Agricultural 5-Acre (RA-Sa) district azrd initiating the revocation of SMA Use Pemut No..379. June 5, 2007: Kohala LLC submitted a request fora 5-year time extension from July 14, 2007 until July 14, 2012 to comply with Condition C (secure Final Subdivision Approval) of Chazige of Zone Ordinazice No. 97-102 and Condition. No. 4 (secure Final Subdivision Approval) of Special Management Area Use Permit No. 379. Change of Zone Ordinazice No. 97-102 was approved by the Hawaii County Council with an effective date of July 14, 1997, which rezoned 37.88 acres from A-Sato RS-15. Condition C limited the amount ofresidential lots to fifty (50) and required the applicant to secure Final Subdivision Approval within five (5) years from the effective date of the ordinance. Additionally, Special Management Area Use Permit No. 379 was approved by the Planning Conunission on August 8, 1997 to allow the development of a 50-lot single family residential subdivision and related improvements. Condition No. 4 required that the applicant secure Final Subdivision Approval within five (5) years from the effective date of the pemut. Additionally, the applicant sent a letter:informing the Planning Director that in the . course of preparing their time extension request and annual report for Ordinance No. 97-02 acid SMA 379, they were informed that the Plamiing Director would be inifiating the rezoning of the property from RS-15 to RA-Sa and the revocafion of SMA 379. The applicant requested that the Planning Director withdraw the actions to rezone the property and revoke SMA 379: January 11, 2008: The Planning Commission considered the Planning Director's initiation of a Change of Zone for 37.88 acres of land from Single Family Residential - 15,000 square feet (RS-1 S) to a Residential and Agricultural - 5 acre (RA-Sa) district and the repeal of Ordinance No. 97-102, which rezoned 37.88 acres of land from anAgricultural - 5 acre (A-Sa) to a Single Fancily Residential -15,000 square foot (RS-15) district. A motion was made to send an unfavorable recommendation to the County Council on both requests. There were four votes in favor of the motion and two against. Because five votes are needed for the Plamiing Conunission to tape action, the four to two vote constituted a "no action" by the Planning Conmussion. The "no action" itself constituted an unfavorable recommendation. Therefore, the Planning Director's request was forwarded to the County Council with an unfavorable recommendation because of the time limits on the Planning Commission's review of such amendments. Previously, on July 20, 2007, the Plazming Conunission had voted 3-3 on a motion to send a favorable reconunendation on the proposed rezoning. • March 5, 2008: The Planning Director prepared a letter dated Mazch 5, 2008 to the Commttee on Planning regazding Bi11237 - Kohala LLC further explaining some of the Director's reasons for initiating the proposed downzoning from RS- 15 to RA-Sa and to respond to letters from the landowner's attorneyalleging procedural irregularities and constitutional issues. (Planning Department Exhibit 1-Letter Dated March 5, 2008 fo Committee on Planning) • Apri118, 2008: The Planning Commission considered the applicant's request for 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 ]and from an Agricultural 5-acre (A-Sa) to a Single Family Residential -15,000 squaze foot (RS-15) district. A motion was.made to send a favorable recommendation to the County Council, with an amendment to reduce the maximum number of lots from 50 to 25. There were three votes in favor of the motion and four against. Because five votes aze needed for the Planning Commission to take action, the three to four vote constituted a "no action" by the Planning Commission. The "no action" itself constituted an unfavorable recommendation. Additionally, the Planning Commission considered the request for an amendment to Condition 4 (time to secure final subdivision approval) of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single family residential subdivision. A motion was made to deny the request did not pass four votes to three. The applicant requested an opportunity for final reconsideration of this matter pursuant to Planning Commission Rule No. 9- 11(F)(3): April 22, 2008: The Hawaii County Council considered Bill No. 237-08 repealing Ordinance No. 97-102 and azuending Section 25-8-7 (North and South Kohala Districts Zone Map) by changing flee district classification from RS-15 to RA-Sa for the subject property at its Apri122, 2008 meeting. The County Council voted to approve atnendments to Bill 237 contained within Conununication No. 998.8 uitroduced by Council Chair Peter Hoffinan (Planning Department Exhibit 2 -Communication 998.8). The amendment proposes to further downzone the subject property from RS-15 to RA-15a, instead of RA-Sa as initiated by the Plamting Dlector. The amendment was itttroduced.to set a "precedent setting measure" for the following reasons: a) To respond to the overwhelming testimony from kupuna and members of the North Kohala cormnmuty, asking for the County Council to do whatever they can to preserve the resources along the North Kohala shoreline. These resources include protecting the coral reef off shore of this particular project; which is currently under 15 to 18 inches of silt and .soil, and is dying or is dead. This was not a result of the applicant but if the reef is not protected from further runof#' or damage, there will be no . chance for recovery. b) For the County Council to make certain that the zoning for this particular area is the nunimum zoning possible without it constituting a "taking." This would be to downzone the property to RA-1$a, which will restrict development in this very sensitive area to a minimum of approximately 2 dwellings on the approximate 38-acre parcel. The property will still have a very adequate economic value to the applicant, and at the same time provide a legitimate way to mininuze the development on shore to prevent any more run off and help save the precious offshore resources in this azea. c) The proposed downzoning is consistent with the updated policies in the Natural Beauty section of tine 2005 General Plan and with the North Kohala Conununity Development Plus. Bi11237, Draft 2 has been sent back to the Planning Director and the Planning Conmlission for their review and reconmiendations. (Planning Department Exhibit 3 - Bi11237, Draft 2) D4ay 22, 2008: The Planning,Conmiission voted to defer the reconsideration of the aniendment request for Condition No. 4 of SMA 379 until the County Comtcil makes a final decision on its initiation of rezoning the subject parcel from a Single Faznily Residential - 15,000 square foot (RS-15) to a Residential and Agricultural -15 acre (RA-15a) zoned district. July 1; 2008: The Planning Committee of the County Council voted 8 to 0 to send a negative reconunendation to the full Council on the landowner's request to extend time on the RS-15 zoning in Ordinance No. 97-102 (Bi11307). RECOMMENDATION .The Planning Director is reconnnending that the Planning Commission forwazd ati unfavorable 'recommendation for Bill No. 237, Draft 2, initiated by the County Council, which amends Bi11237 to downzone the subject property from RS-15 to RA-15a, instead of the RA-Sa zoning previously initiated by the Planning Directoi. While the Planning Director understands and sympathizes with public testimony in favor of the council- proposed RA-15a zoning, the Planning Director continues to recommend RA-Sa zoning for the following reasons: 1. Consistency with other zoning. The current county zoning for the property makai of Akotu Pule Highway is A-Sa, basically similar to RA-Sa, for a distance of about 3000''to the southeast of this property, and for about 8 miles to the northwest, almost to Mahulcona. (About half the coastal property to the northwest is owned by the State of Hawaii, and for much of the distance, from the coastline to about 300' mauka, the land is in the state land use conservation district). Properties across Akoni Pule Highway are also zoned R-Sa. There has not been a sufficient rationale presented to justify zoning this property in a manner more restrictive than the properties to the northwest and southeast. 2. Notice to the landowner ofcoi~sequences. The prior zoning ordinance, Ordinance No. 97-102, gives the landowner cleaz notice that the consequences ofnot meeting the various time frames could include "rezoning to its original or more appropriate designation." RA-Sa zoning is very similar to the A-Sa zoning that existed prior to the enactment of Ordinance No. 97-102, the "original" designation, and the landowner camlot claim that there was no fair notice that this rezoning could be initiated after the time frames were not met. On the other hand, there wasn't clear notice that the consequences could include a rezoning to one-third the density that the owner had before Ordinance No. 97-102 was enacted. 3. Adequacy of RA-Sa zoning to protect enviromnental resources. Development of the 71ots possible under the proposed RA-Sa zoning will require a SMA major permit from the Planning Conunission. With additional protective condifions in the SMA major perniit, such as those in the adjoining property to the southeast, the site can be developed in a way that protects tha environment and coastal viewplanes. Lastly, the RA-Sa zoning would be consistent with the resolutions from the State of Hawaii Senate of the Fourteenth Legislature and the Senate of the Twenty-First Legislature and the goals and policies of the Natural Beauty element of the General Plan. It would also be consistent with the current community development plan for North Kohala, which designated this area as Unplanned and encouraged the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoru Pule Highway from Kawaihae to Hawi. The North Kohala Community Development Plan is in the process of being updated and is scheduled to go before the Planning Commission for review. The Growth Management section of the pre-final draft states that North Kohala residents have been very vocal about their desire to control the type and quantity of development that happens, and to direct its location to concentrated areas, so as to protect Kohala's rural character, agricultural lands, open space, and cultural resources. One strategy to achieve this goal is to establish a View Plane Protection Program to identify and protect areas of significant beauty along flee Kohala Mountain Road and Akoni-Pule Highway comdor. Based on the reasons stated above, the Planning Director is recommending that the Planning Commission send an unfavorable recommendation to the Hawaii County Council to change the zone from RS-15 to RA-15a for this property and reconunends that the Hawaii County Council adopt Bi11237, Draft 1 from RS-15 to RA-Sa. Bill 237, Draft 1 is provided for your favorable consideration. ~ ... COUNTY OF HAWAII a'. .~ •. • ~'a iu~ ORDINANCE NO. STATE OF HAWAII BILL NO. 237 AN ORDINANCE REPEALING ORDINANCE N0.97 102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY. RESIDENTIAL - 15,000 SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL- 5 ACRE (RA-Sa) AT KAHUA iST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-001:008. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-7, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition), is amended to change the district classification of property described hereinafter as follows: The district classification of the following azea situated at Kahua 1st, North Kohala, Hawaii, shall be Residential and Agricultural - 5 acre (RA-Sa): Beginning at a point at the North comer of this piece of land, being also the East corner of portion of Government land of Pahinahina and on the Southwesterly side of Kawaihae Mahukona Road, Section II, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,109.73 feet North and 375,771.74 feet East, and running by true azimuths referred to the Meridian of Government Survey Triangulation Station "PUU PILI" and measured clockwise firm South: 322° 00' 30.5" 24.31 feet 2. 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; along the Southwesterly side of Kawaihae Mahukona Road; -1- _....._ 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 52° 00' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 5. 322° 00' 30.5" 100.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 6. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 7. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 8. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 9. 322° 00' 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 10. 52° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 11. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 12. 232°. 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 13. 322° 00' 30.5" 151.70 feet along the Southwesterly side of Kawaihae Mahukona Road; -2- 14. 26° 03' 889.95 feet along Lot 9, as shown on Map 4 of Ld. Ct. Cons. 129; Thenc e along highwater mark (vegetation line) as of January 7, 1993 fot the next thirteen (13) courses, the direct azimuths and distances between points on said highwater mark being: I5. 136° 21' 40" 516.93 feet; 16. 155° 00' 250.00 feet; 17. 128° 30' 95.00 feet; 18. 180° 20' 142.80 feet; 19. 93° 00' 104.00 feet; 20. 154° OS' 253.40 feet; 21. 157° 15' 225.20 feet; 22. 57° 40' 106.30 feet; 23. 176° 35' 213.10 feet; 24. 98° 00' 172.85 feet; 25. 105° 20' 83.55 feet; 26. 89° 00' 181.00 feet; 27. 150° 20' 77.35 feet; 28. 206° 50' 35" 1,075.00 feet along portion of the Government land of Pahinahina to the point of beginning and containing an azea of 37.880 acres, more or less. -3- All as shown on the map attached hereto, mazked Exhibit "A" and by reference made a part hereof. SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2005 Edition), the County Council fmds the following condetion is: Necessary to prevent circumstances which maybe adverse to the public health, safety and welfare; or (1) Reasonably conceived to fulfill needs directly emanating from the land use proposed with iespect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. A. Preserve significant historic sites and burials as stated in the historic sites preservation plan as approved by the Department of Land and Natural Resources- State Historic Preservation Division (DLNR-SHPD) letter dated November 29, 2000, and by the approved burial treatment plan. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCE ~. COUNCIL MEM R, COUNTY OF WAI`I Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: REFERENCE: Comm. 99, 8 ~~ -4- ~J ~~ h~ A-Sv ~~\ aVpv <y~pJpU L h5a/ ~' -~__` ~~, A-3a ~ A-Ja _. ~ __- - *_ ~ p_,~- -- ~ J/ ~~~ AJe i A•Se 9 9 ~ A '0<aKlr%. L A•Sa A•Se A-Sa °+``; .~~'`~-may ~ t ~: „ $ 453,10973 N 375771J4 E SINGLE FAMILY RE~DENTULL 15,000SOUARE FEET (RS•15) p_y IfAWAS STATE PLANE TO RESIDENTUIL AND AGRICULTURAL 5-ACRE (RA~Sa) COORDINATE SYSTEM, 37.SS0 ACRES ~' ZONE 1" A•5a ~ Q d 5 730 3E5 0 730 1,160 2,19D 2.910 3,650 Feet AMENDMENT TO THE ZONING CODE AN ORDINANCE REPEALING ORDINANCE 97-102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICT ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), WHICH RECLASSIFIED THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL 15,000-SQUARE FEET (RS-15) TO RESIDENTIAL AND.AGRICULTURAL 5-ACRE (RA-5a) AT KAHUA 1st, NORTH KOHALA, HAWAII PREPARED BY: PLANNING DEPARTMENT COUNTY OF HAWAII K 59-001:005 Date: Nla 23, 2007 r. EXHIBIT "A" (Planning Director Inftiated:t233) Qatry KIm Mayor ~~ «' •. .:~: ~.~ ., •- P Aa M~+ f~ltruxt#g txf ~rxftrrxii PLANNING DEPARTMENT I01 Paualu Scat, Suite 3 • Hilo, Hawau 96720-4224 (808)961-8288 • FAJC (808)961-8742 Christopher J. Yueu Director Brad Ktrrokawa, ASLA LEED®AP Deputy Director March 5, 2008 r~s W o~ ~~~ ~ ~: ~, r~ fr Honorable Angel Pilago, Chair - • rn And Members of the Committee on Planning "' ' 3 COMMITTEE ON PLANNING r ~ ~ I-i t 333 Kilauea Avenue, Second Floor -~ ~--' Hilo, HI 96720 - ° ° Deaz Chair Pilago and Members of the Committee on Planning: SUBJECT: BILL 237 - KOHALA LLC TAX MAP KEY: 5-9-001:008 This letter is to further explain some of the reasons for initiating this proposed rezoning of an azea of coastline in North Kohala from RS-15 to RA-Sa, and to respond to letters from the landowner's attorney alleging various procedural irregularities and constitutional issues. The property in question is makai of the Akoni Pule Highway. It is about 2100' long, and 650'-900' wide from shoreline to highway, and consists of 37.88 acres. in this area, the highway comes closer to the sea than further north, and there is a sweeping vista of the coastline and ocean. The General Plan recognizes this area, Waiakailio Bay, as one of 18 listed sites of natural beauty in the North Kohala district. All shoreline property between the highway and the sea northwest of this spot, to Mahukona, for a distance of about eight miles, is currently zoned A-Sa, and the shoreline area is almost completely undeveloped. The shoreline property immediately to the southeast is also zoned A-Sa, and recently received an SMA permit that would allow development of one home per five acre lot. RA-5a zoning is basically very similar to A- sa, allowing one home per five acre lot, but it is more appropriate than A-Sa for this property because it is in the-state land use urban district rather than the agricultural district. ..: m ® ~ C •,,, .C .Q C ..C a x D. t1i 'c a _ mCg bq l~ Comm. No. ~ ~ 3 ~d _..--~- Raf. To, lreamt~d P r oOPI Bab pvis~ H ''i Eo~ol.Qppartuairy Provider and Employer. ~ f i 1 Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 2 March 5, 2008 The most important reason to rezone the property to RA-Sa 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-Sa zoning, rather than fifty homes. There: is also a concern about the potential for ocean water pollution from more intensive development of this coastal azea. The rezoning to RA-5a would be more consistent with zoning to the north and south. North Kohala community members have repeatedly expressed the wish, embodied in two legislative resolutions, that coastal open space be preserved. While development could be limited even more than the proposed RA-Sa, for example, by an RA-20a zoning that limited the development of the property to a single home, this would also have more drastic effect on the landowner's use of the property, and not be consistent with zoning to the north and south. This property was zoned A-Sa prior to 1997, when it received a change of zone to RS-15. A condition of zoning limited development to SO lots. Shortly thereafter, the Planning Commission also granted an SMA permit for the SO lot project. The project was given five years to obtain fmal subdivision approval, with the possibility of a five year administrative time extension that could be given by the Planning Director. That time has expired. After the initiation of this rezoning to RA-Sa, the landowner applied for time extensions on the RS-15 zoning, and on the SMA permit. The Planning Commission would have to decide on the time extension on the SMA permit. Le alit The landowner's attorney has made some claims that the proposed downzoning is illegal. There is a simple answer: it isn't. It is ultimately up to the Council whether this property is zoned RA-Sa, RS-15, or something different. Although there is a legal framework in which this decision is made, and a zoning decision can go too far in limiting a private owner's rights and become illegal, the proposed rezoning to RA-Sa is well within legal bounds. The laws do not compel a decision either way. It is the Council's decision whether or not it is a good idea. But because these legal arguments have been raised; and accompanied by threats of suit, it is useful to briefly discuss the legal limits of zoning. Vested rights. Generally, laws and regulations affecting land use can be changed. So, for example, an ordinance may reduce the height limit for buildings in a certain area, and if an owner applies to build on a vacant property, the owner must comply with the new height limit. And through rezoning, the government has the power to change a ~ , l Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 3 March 5, 2008 landowner's zoning to a less intensive use. The law recognizes, however, that land development proceeds in stages, and that after a certain point, the owner should be allowed to complete a project as planned, and be protected from changes. The term normally used is that the owner has "vested rights" to proceed with a development. In Hawaii land use law, the developer has "vested rights" when there is no further discretionazy action required for the project to proceed, and the owner has expended substantial amounts in reliance upon that final discretionary action. Kauai County v. Pacific Standard Life Ins. Co., 65 Haw. 318 (1982). The "discretionary action" is a key concept. It means a permit or other approval that requires the decisionmaker to exercise judgment ("discretion") in deciding whether or not to issue the permit or approval. In a discretionary action, the decisionmaker must weigh a number of factors against broad standards given by the law. The other type of permit, in contrast to a discretionazy permit, is a "ministerial" permit: one where the factors leading to a decision are described with such precision that nothing is [eft to discretion, where the duty to act is absolute, cleaz, and imperative, 63C Am.Jur. 2d Public Officers sec. 325, and where the only requirement to proceed is that a public officer process an application for compliance with all applicable statutes, ordinances, rules, and regulations, and the conditions attached to such approvals. Life of the Land v. Citv and County of Honolulu, 61 Haw. 390 (1979). A ministerial action will have precise, fixed standazds. A building permit is a typical example of a ministerial permit. The Building Code sets out minimum requirements for a building, such as the spacing of floor joists, the required window area, the width of doorways, and the like. If the building meets these minimum requirements, the building official reviewing the permit has no discretion to refuse to issue the permit. >n land use law, the ministerial approvals, such as building permits and driveway permits, typically follow the discretionary approvals, such as a rezoning. A change of zone, or an amendment to an existing zoning is a legislative act, Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465 (2003). It is discretionary (as are all legislative acts) because the decisionmaker-the County Couttcil-must use its judgment in deciding whether or not to approve the rezoning or the proposed amendment. Kohala LLC has no vested rights to proceed with its development under RS-15 zoning because the time conditions to perform on that zoning have lapsed. It needs several i Honorable Angel Pilago, Chair And Members of the Committee on Plam~ing COMMITTEE ON PLANNING Page 4 March 5, 2008 discretionary approvals to proceed: [he Council's extension of time on its RS-15 zoning, the SMA permit time extension from the Planning Commission, and tentative subdivision approval. There is specific case law holding that whether or not to grant a time extension to a rezoning is a discretionary decision by a legislative body, and that the court will uphold the refusal to extend time if it has any reasonableabasis in fact, which can include general land use considerations. Court House Plaza Co. v. Cit~of Palo Alto, 117 Cal. App. 3d 871 173 Cal. Rptr. 161(1981). Takings. The Supreme Court has upheld the basic concept of zoning restrictions that limit the use, and often the mazket value, of private property, including restrictions that greatly diminish the value of property. If this were not so, the entire system of zoning and other land use regulations would be impossible. Courts have upheld land use regulations that reduce the value of property by as much as 950. Decisions of this type go back as far as the U.S. Supreme Court's decision in Euclid v. Ambler Realty, 272 U.S. 365 (1926). Courts have also repeatedly sustained downzonings that reduce the value of the property to the landowner. In a limited number of circumstances, though, the Supreme Court says that such regulations can go too faz, however, and constitute a "taking" of private property for public use. In that case, the public must pay just compensation to the landowner, similaz to the actual taking of property by eminent domain. The law of "takings" can be complex, but in the typical situation, a zoning ordinance will not be a takings on the grounds that it limits the density of development allowed on a property, unless it does not leave the owner with some beneficial economic use of the property. The ability to build one home on a lot, for example, is enough of a beneficial economic use to defeat a "takings" claim. Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Applying this to proposed Kohala LLC rezoning, the RA-Sa zoning, if later accompanied by an SMA permit for the same density, and a subdivision approval, would allow the 37.8 acre property to be subdivided into seven lots of five acres, and on each lot, a home could be built. This is a significant economic use, and the property, with that level of entitlement, is very valuable. To compaze, the 63 acre property immediately to the southeast, also along the shoreline, was purchased in 2004 for $16.5 million. That 1 Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 5 March 5, 2008 property was in the state land use urban district, county zoned A-5a. The owner of the 63 acre property did not seek rezoning, and has obtained SMA permit approval to subdivide the property into five acre lots. What the owner did with that property is basically what is being proposed for this property. The Kohala LLC property clearly would have a beneficial economic use with the RA-Sa zoning; it would have a market value of several million dollars. , "Equal Protection" There is also a claim that the rezoning to RA-Sa would violate "equal protection", apparently because, according to the landowner's attorney, property has rarely been downzoned to a lower intensity of use in Hawaii County against the wishes of the landowner. Equal protection, in zoning, simply requires that the decision have a rational basis: that is, that there is some logical reason to treat one piece of property differently from another. For this reason, equal protection azguments against zoning decisions rarely succeed, because land generally has unique aspects. In the case of the Kohala LLC property, the proposed RA-Sa zoning would, in fact, be basically the same as the adjacent shoreline property in either direction. This property is mentioned in the Genera] Plan as an example of natural beauty, and is in an area where legislative resolutions call for the preservation of open space, The landowner's attorney incorrectly states that the General Plan policies for natural beauty have not changed since this property was zoned in 1997. In fact, the 2005 General Plan added two new policies that are relevant: "7.3(h) Protect the views of areas endowed with natural beauty by carefully considering the effects of proposed construction during all land use reviews" and "7.3(i) Do not allow incompatible construction in areas of natural beauty." Whether downzoning is raze or not is iirelevant. It is one of the basic land use options available to this county and any other local government. Hawaii County has, in fact, downzoned property against the landowner's wishes. In 1982, several ordinances were passed downzoning property in Keaukaba from V-.75 to RS-10 or A-Sa, in many cases, against the objections of the property owner. Ord. 735, and Ords. 781-786. We are faced with a decision what to do with the zoning on this property because the time for the RS-15 zoning has lapsed. Hawaii County has not actually rezoned any shoreline property in the last seven years, except fora 1.4 acre State-owned property in Kawaihae, where the State dedicated a much larger adjacent area to open space. Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 6 March 5, 2008 The landowner's attorney also mentions "substantive due process" but makes no azgument how this would violate this legal theory. The legal citation is to a case that involves an allegation that the government acted because of racial bias. Personal Liability It is unfortunate that the landowner's attorney feels the need to make threaGS of legal liability against the councilmembers personally. To deal with this briefly: first, if the council does not violate the legal rights of the property owner, there is no basis for a suit. As explained above, a rezoning to RA-Sa would not violate the landowner's legal rights. In addition, even if the legal rights were violated, councilmembers aze not personally liable because they aze absolutely immune from this type of suit when they take legislative actions. Boean v. Scott-Harris, 523 U.S. 44 (1998). Rezoning is a legislative action. Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994); Com v. Cit}r of Lauderdale Lakes, 997 F.2d 1369 (11t° Cir. 1993); Save Sunset Beach Coalition v. City and_County of Honolulu. Procedure The landowner's attorney asks for a deferral on the grounds that the landowner's request for a time extension on the rezoning is still being considered by the Planning Commission. Now, the only reason this is still being considered by the Planning Commission is that the landowner's attorney is deliberately keeping it there instead of sending it to the Council, which has the final say. At the Planning Commission's January 11, 2008 meeting, the landowner's attorney asked the Planning Commission to defer action on their request to extend the time on the zoning. He could have asked the Planning Commission to vote on it, and whether the vote was positive or. negative, he could have had this sent up to the Council at the same time as the request to rezone to RA-Sa, because of the long time that this had been pending at the Planning Commission. The first Planning Commission meeting on this was July 20, 2007. So the fact that the time extension on the RS-15 zoning is at the Planning Commission while the RA-Sa zoning is before the Council is the decision of the landowner's attorney. The argument that the Council should not act until the Planning Commission acts on the SMA permit time extension makes even less sense. Logically, the Council action on the zoning should precede the Planning Commission's action on the SMA permit. The Planning Commission can validly extend time on the SMA permit only if the Council grants the time extension on the zoning. The SMA permit depends upon the zoning. f. ~... ._.. ..._._. Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 7 March 5, 2008 It is not too hazsh to say that this is simply a stalling tactic. The landowner's at[omey also complains that the Planning Department did not post a sign on the property giving notice of the proposed zoning change. I would, of course, recommend that in procedural issues like these the Council seek advice from Corporation Counsel, but posting of signs is clearly not required for zoning changes initiated by the Planning Director. The procedure is different for zoning code amendments initiated by landowner versus zoning code amendments initiated by the Planning Director or the Couticil. Otd. OS-136 required posting of signs to give notice of some kinds of land use changes, which are listed in Ord. OS-136. The Zoning Code section on landowner- initiated rezonings is sec. 25-2-42. Ord. OS-136 amended this section to require posting of signs, in sec. 25-2-42(b): "The applicant shall also post a sign for public notification on the property as provided by section 25-2-12." In contrast, zoning code amendments initiated by the Council and Planning Director are covered by sec. 25-2-43, which was not amended by Ord. OS-136, and which contains no sign posting requirement. Obviously, the fact that one section was changed while the other was not means that signs don't have to be posted for director and council-initiated rezonings. Sec. 25-2-12, which also discusses the posting of signs, calls the person who posts the sign "the applicant". In a landowner-initiated zoning amendment, the landowneris also called "the applicant". See sec. 25-2-42. But in a Council or Planning Director initiated zoning amendment, the Council or Planning Director aze not refetsed to as "the applicant." See sec. 25-2-43. The landowner does not, of course, complain that they were somehow unawaze of the rezoning proposal. They were informed by letter dated May 31, 2007, that this action would be proposed. The first complaint of the lack of sign posting was by letter to the Council dated Febnrary 1, 2008, asking for a deferral. Again, this is a stalling tactic. The landowner's attorney makes a number of other complaints alleging inadequate notice before the Planning Commission. Without going into unnecessary detail, the simple answer is that these involved continued hearings at the Planning Cotmission, where less notice is required. The landowner's attomey was notified well in advance of all hearings, and attended all of them. Conclusion The 1997 ordinance that rezoned this property from A-Sato RS-15 said, in condition V, [hat "should any of [tie conditions not be met or substantially complied with in a timely • r- .~ ~` ~ ~` 9 Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 8 March 5, 2005 fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation." The Director has done exactly that: initiated rezoning to a more appropriate designation, which is basically the same as the original zoning, and recommends that the Council vote in favor of more coastal open space protection by changing the zoning to RA-Sa. Sincerely, ., ~ ~, CHRISTOPHER J. YLI~N Planning Director CJY:pak Wpwin60/Clrtis OB -Pilago, Comminee on Planning -Bill 237 - KoM1ala LA,C cc: Mayor Harry Kim Corporation Counsel Pete HoJJmann Council Chair District 9 - Narth and South Kohala Phone No. Hilo: (808) 961-8027 Phone No. Waimea: (808) 887-2043 Faz No.: (808) 887-2072 E-Mail: phoffmann@co.hawaii.hi.us HAWAII COUNTY COUNCIL County oJHawai `i o Hawaii County Buildin8 Holamua Center m 25Aupuni Street 64-1067 Mamat~oa Hi Ni/a, Hawaii 96720 8~~ Suite C-5 . Waimea, Hawa~i 743 ~ _ 1a , rS TO: Council Members Hawaii County Couhcil Q `s ~ , FROM: Pete Hoffrnann, Council Chair ~b'' f '`1 . '~ - EJ .. v~ Date: April 18, 2008 Subject: Proposed Amendment to Bill No. 237-08 Repealing Ordinance No. 97 102 and Amending Section 25-8-7 (North and South Kohala Districts Zone Map), Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition), by Changing the District Classification From Single Family Residential - 15,000 Square Feet (RS-15) to Residential and Agricultural - 5 Acre (RA-Sa) at Kahua 1st, North Kohala, Hawaii, Covered by Tax Map Key 5-9-001:008. Please find attached a proposed amendment to Bill 237 relating to the change in zoning for property Kahua 1st, North Kohala, Hawaii, Covered by Tax Map Key 5-9-001:008. The proposed amendment is to further downzone the subject property from the planning director's recommendation of Residential and Agricultural 5 acre (RA-Sa) to Residential and Agricultural 15 acre (RA-15a). Therefore, all references in Bill 237 to Residential and Agricultural - 5 Acre (RA-Sa) are proposed to be amended to Residential and Agricultural - 15 Acre (RA-15a). Proposed amendments are illustrated via Ramseyer format with bolding for emphasis only. a 1. The title to Bill 237 is amended to read as follows: m "AN ORDINANCE REPEALING ORDINANCE NO.97 102 AND ~ AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA C DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING .C ':a CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), BY a ~ CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE a W FAMILY RESIDENTIAL -15,000 SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL - ]5] 15 ACRE [{-I?;A3a31 fRA_ Comm. Mai ~ 8.8 Serving the Interests of the People of Our Island Ref. To: (eseofed uM4 I Ref, Date ~! Hawa! `t County Is An Equal Opportunity Provider And Employer w._,......_._._. - _._.~.~._._~..,...~..,,,,.,.,,~.._,.. 15aZ AT KAHUA 1ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-OOI :008." 2. The first paragraph of SECTION 1 is amended to read as follows: "The district classification of the following azea situated at Kahua lst, North Kohala, Hawaii, shall be Residential and Agricultural - [5] 15 acre [~b4--Sad] RA-15a :" 3. The last paragraph of SECTION 1 is proposed to be deleted in its entirety, as reference provided in "Exhibit A" to a (RA-Sa) zoning designation is not consistent with the proposed amendment. Should the proposed amendment to further downzone to (RA-15a) be approved by council, a new map will be created to replace "Exhibit A" and the last paragraph of SECTION 1 will be reinserted. The amendment reads as follows: ca[A n e.._..1... .. rl.e ....~a....7.,.,7 i. I .i L L.'lv A ~Y r ==v+a -. i- ..oF ~e~e w.w°v .. .t Le-~ £7n ...... c'-Pa°a-c'cr°°rl A draft of Bill 237, Draft 2, is attached with the proposed amendments contained in this communication incorporated. Bolding has been retained for illustrative purposes. Thank you. PH/kf Att. -2- -'"--.-+.+....~........a~..~-.ter ~r'_. ..._..__... .... -....r.e.t^ ,_--__ .. ... ~. ~li- ~ F COUNTY OF HAWAII '' ~' STATE OF HAWAII .~ •0% Mrs BILL NO. ORDINANCE NO. _ AN ORDINANCE REPEALING ORDINANCE N0.97 102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) 6F THE HAWAII COUNTY CODE 1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL-15,000 SQUARE FEET (RS-IS) TO RESIDENTIAL AND AGRICULTURAL - l5 [3} ACRE (RA-15 [~]a) AT KAHUA 1 ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-001:008. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-7, Article 8; Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition), is amended to change the district classification of property described hereinafter as follows: The district classification of the following azea situated at Kahua 1st, North Kohala, Hawaii, shall be Residential and Agricultural - 15 [3} acre (RA-15 [3} a): Beginning at a point at the North comer of this piece of land, being also the East corner of portion of Government land of Pahinahina and on the Southwesterly side of Kawaihae Mahukona Road, Section II, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,109.73 feet North and 375,771.74 feet East, and running by true azimuths referred to the Meridian of Government Survey Triangulation Station "PUU PILL" and measured clockwise from South: 322° 00' 30.5" 24.31 feet 2. 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; along the Southwesterly side of Kawaihae Mahukona Road; 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 52° 00' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 5. 322° 00' 30.5" 100.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 6. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 7. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 8. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 9. 322° 00' 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; ] 0. 52° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 11. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 12. 232° . 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 13. 322° 00' .30.5" 15T.70 feet along the Southwesterly side of Kawaihae Mahukona Road; -2- 14. 26° 03' 889.95 feet along Lot 9, as shown on Map 4 of Ld. Ct. Cons. 129; Thence along highwater mark (vegetation line) as of January 7, 1993 for the next thirteen (13) courses, the d irect azimuths and distances between points on said highwater mazk being: 15. 136° 21' 40" 516.93 feet; 16. 155° 00' 250.00 feet; 17. 128° 30' 95.00 feet; 18. 180° 20' 142.80 feet; 19. 93° 00' 104.00 feet; 20. 154° OS' 253.40 feet; 21. 157° IS' 225.20 feet; 22. 57° 40' 106.30 feet; 23. 176° 35' 213.10 feet; 24. 98° 00' 172.85 feet; 25. 105° 20' 83.55 feet; 26. 89° 00' 181.00 feet; 27. 150° 20' 77.35 feet; 28. 206° 50' 35" 1,075.00 feet along portion of the Government land of Pahinahina to the point of ~, beginning and containing an !u azea of 37.880 acres, more or less. ~ -3- ._._._ „„ SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2005 Edition), the County Council finds the following condition is: Necessary to prevent circumstances which may be adverse to the public health, safety and welfare; or (1) Reasonably conceived to fulfill needs directly emanating from the land use proposed with 'respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. A. Preserve significant historic sites and burials as stated in the historic sites preservation plan as approved by the Department of Land and Natural Resources- State Historic Preservation Division (DLNR-SHPD) letter dated November 29, 2000, and by the approved burial treatment plan. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: -4- .. ._r~- --_ - -- AN ORDINANCE REPEALING ORDINANCE NO. 97 102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL - l 5,000 SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL -15 ACRE (RA-15a) AT KAHUA 1ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-001:008. BE [T ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-7, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition), is amended to change the district.classification of property described hereinafter as follows: The district classification of the following area situated at Kahua 1st, North Kohala, Hawaii, shall be Residential and Agricultural -15 acre (RA-15a): Beginning at a point at the North corner of this piece of land, being also the East corner of portion of Government land of Pahiaahina and on the Southwesterly side of Kawaihae Mahukona Road, Section II, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,109.73 feet North and 375,771.74 feet East, and running by true azimuths referred to the Meridian of Govemment Survey Triangulation Station "PUU PILL" and measured clockwise from South: 1. 322° 00' 30.5" 24.31 feet along the Southwesterly side of Kawaihae Mahukona Road; ' 2. 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 52° 00' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 0 5. 322° 00' 30.5" 10 x.00 feet along the Southwesterly side of Kawaihae Ivlahukona Road; 6. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 7. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 8. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; ' 9. 322° 00' 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 10. 52° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 11. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 12. 232° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 13. 322° 00' 30.5" 151.70 feet along the Southwesterly side of Kawaihae Mahukona Road; 14. 26° 03' 889.95 feet along Lot 9, as shown on Map 4 of Ld. Ct. Cons. 129; Thence along highwater mazk (vegetation line) as of January 7, 1993 for the next thirteen (13) courses, the direct azimuths and distances between points on said highwater mazk being: 15. 136° 21' 40" 516.93 feet; -2- ~ ._...,. .......f~- ...~..__..__..._ .. 16. 155° 00' 250.00 feet; 17. 128° 30' 95.00 feet; 18. ] 80° 20' 142.80 feet; 19. 93° 00' 104.00 feet; 20. 154° OS' 253.40 feet; 21. 157° 15' 225.20 feet; 22. 57° 40' 106.30 feet; 23. 176° 35' 213.10 feet; 24. 98° 00' 172.85 feet; 25. 105° 20' 83.55 feet; 26. 89° 00' 181.00 feet; 27. I50° 20' 77.35 feet; 28. 206° 50' 35" 1,075:00 feet along portion of the Government land of Pahinahina to the point of beginning and containing an area of 37.880 acres, more or less. SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2005 Edition), the County Council finds the following condition is: Necessary to prevent circumstances which maybe adverse to the public health, safety and welfare; or (1) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or -3- --__...._e~._..__....,..._.__ .___.,~._._ - (B) Fulfillment of the need for public service demands created by the proposed use. A. Preserve significant historic sites and burials as stated in the historic sites preservation plan as approved by the Department of Land and Natural Resources- State Historic Preservation Division (DLNR-SHPD) letter dated November 29, 2000, and by the approved burial treatment plan. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. -4- fYw~ ~l~ COUNTY OF HAWAII .' STATE OF HAWAII •° ••D OYM~~ BILL NO. z37 ORDINANCE NO. (otter 2) AN ORDINANCE REPEALING ORDINANCE NO.97 102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL - 15,000 SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL -15 ACRE (RA-15a) AT KAHUA 1ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-001:008. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-7, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition), is amended to change the district classification of property described hereinafter as follows: The district classification of the following area situated at Kahua 1st, North Kohala, Hawaii, shall be Residential and Agricultural - 15 acre (RA-15a): Beginning at a point at the North corner of this piece of land, being also the East corner of portion of Government land of Pahinahina and on the Southwesterly side of Kawaihae Mahukona Road, Section II, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,109.73 feet North and 375,771.74 feet East, and running by true azimuths referred to the Meridian of Government Survey Triangulation Station "PUU PILL" and measured clockwise from South: 322° 00' 30.5" 24.31 feet 2. 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; along the Southwesterly side of Kawaihae Mahukona Road; Planning Dept. Exhibit ~~ ry ~ ~ 1 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 52° 00' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 5. 322° 00' 30.5" 100.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 6. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 7. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 8. 232° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona ' Road; 9. 322° 00' 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 10. 52° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 1. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 12. 232° . 00' 30.5" 40.00 feet along the Southwesterly side ' of Kawaihae Mahukona Road; 13. 322° 00' 30.5" 151.70 feet along the Southwesterly side of Kawaihae Mahukona Road; -2- 14. 26° 03' 889.95 feet along Lot 9, as shown on Map 4 of Ld. Ct. Cons. 129; Thence along highwater mark (vegetation line) as of January 7, 1993 for the next thirteen (13) courses, the direct azimuths and distances between points on said highwater mazk being: . 15. 136° 21' 40" 516.93 feet; 16. 155° 00' 250.00 feet; 17. 128° 30' 95.00 feet; 18. 180° 20' 142.80 feet; 19. 93° 00' 104.00 feet; 20. 154° OS' 253.40 feet; 21. 157° 15' 225.20 feet; 22. 57° 40' 106.30 feet; 23. 176° 35' 213.10 feet; 24. 98° 00' 172.85 feet; 25. 105° 20' 83.55 feet; 26. 89° 00' 181.00 feet; 27. ] 50° 20' 77.35 feet; 28. 206° 50' 35" 1,075.00 feet along portion of the Government land of Pahinahina to the point of beginning and containing an area of 37,880 acres, more or less. SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2005 -3- (. Edition), the County Council finds the following condition is: Necessary to prevent circumstances which maybe adverse to the public health, safety and welfare; or (1) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. A. Preserve significant historic sites and burials as stated in the historic sites preservation plan as approved by the Department of Land and Natural Resources- State Historic Preservation Division (DLNR-SHPD) letter dated November 29, 2000, and by the approved burial treatment plan. SECTION 3. In the event that any portion of this ordinance is declazed invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. I1~F~~~~ItBY: ;~~ ~~ ~~,w.~ C~tiAEIo1BER, CO Y OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: 1ifFERL-NCE: Comm: 996.11 _4_ {' } ;~ v A3a A3a A 5a ~Jp~. ,. ~9,9~ F~PU l - A 5a ': "'n _. .... .. - ----- ~ 9p A3a `'•.. ' E ~ A3a •. A-5a i I A3a a Asa ~'D< ~' ~~~UKU PL 'g _ __ I I A-yg '' A-5a I __-___. __--___._ K U ~ A-5a _ J ---a-I_---_--_ _ _ _ __ 453,109.73 N ~ i 375,771.74E SINGLEfAMILY RESIDENTUL 15,000•SGUARE FEET (RS•15) A-Sa ° HAWAII STATE PLANE TO RESIDENTIAL AND AGRICULTURAL 15•ACRE (RA•15a) COORDINATE SYSTEM, 37.880 ACRES A38 , .. _ ~,-~k~., ZONE 1 ° :. A-5a y~ 5 730 365 0 730, 1,460 2,190 2,920 3,650 Feet AMENDMENT TO THE ZONING CODE AN ORDINANCE REPEALING ORDINANCE 97-102 AND AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICT ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION), WHICH RECLASSIFIED THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL 15,000-SQUARE FEET (RS-15) TO RESIDENTIAL AND AGRICULTURAL 15-ACRE (RA-158) AT KAHUA 1st, NORTH KOHALA, HAWAII PREPARED BY: PLANNING DEPARTMENT COUNTY OF HAWAII MK: 5-9-001:008 ~ Date: May 15,2008 EXHIBIT "A" (county Council Iniliated:1233) ~! - - - - w BRCCInitiated2EZ08-079.jwd 07-07-03 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION INITIATOR: COUNTY COUNCIL CHANGE OF ZONE FROM RS-15 TO RA-15A (REZ 08-000079) The Hawaii County Council has proposed amending the Planning Director i~utiated bill, rezoning this property to RA-Sa, to RA-15a. Because this is, ineffect, aCouncil-initiated change of zone, this is being processed as such. This involves 37.88 acres of land, which would be rezoned from aSingle-Family Residential 15,000-square foot (RS-15j to a Residential and Agricultural 15-acre (RA-15a) district. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua ly`, North Kohala, Hawaii, TMK: 5-9-1:8. LANDOWNER Landowner: The applicant, Kohala LLC, is the landowner and the successor-in- interest to the original applicant, Gentry-Pacific, Ltd. BACKGROUND INFORMATION 2. July 14, 1997: Effective date for Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residential (RS-15) zoned district. August 8, 1997: Effective date of Special Management Area Use Permit No. 379, which was approved to allow the development of a 50-lot single family residential subdivision and related improvements. SENATE CONCURRENT RESOLUTIONS 4. S.C.R. NO. 179: Senate Concurrent Resolution No. 179, iLD. 1, adopted in ] 988, urges the retention of view and open space makai of Kawaihae-Mahukona- 1-Lawi Road from Kawaihae to Upolu Point, Hawaii. 5. S.C.R. NO. 146: Senate Concurrent Resolution No. 146, S.D. 1, adopted in ?001, urges the retention and preservation of open space and view planes, historic sites, and traditional access along the coastline of the North Kohala District, Hawaii. STATE AND COUNTY PLANS 6, General Plan Land Use Pattern Allocation Guide (LUPAG) Map: Low L Density Urban, Extensive Agricultural and Open along the shoreline. 7. SLUC: Urban. 8. County Zoning: RS-l 5, but a time extension is needed. See below. 9. North Kohala Community Development Plan: Adopted by the Hawaii County Council as Resolution No. 219 86 on November 3, 1986, the North Kohala Conununity Development Plan encourages the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. The North Kohala Community Development Plan is currently in the process of being updated. 10. Coastal Zone Management, HRS Chapter 205A: The entire State of Hawaii lies within the Coastal Zone Management area. The intent of the Coastal Zone Management Program is to guide and regulate public and private uses in the coastal zone management area with respect to recreational resources, historic resources, public access to the shoreline, scenic and open space resources, coastal ecosystems, Ynarine resources, economic uses, coastal hazards, managing development, public participation, and beach protection. 11. SMA: The property is situated within the Special Management Area. Special Management Area Use Permit No. 379 was approved to allow the development of a 50-lot single family residential subdivision and related improvements on the subject property. This also needs a time extension. DESCRIPTION OF SUBJECT PROPERTY AND SURROUNDING AREA 12. Subject Property: The property is 37.88 acres in size and is roughly rectangular in shape. It is located along a rocky coast of North Kohala approximately 3 miles northwest of Kawaihae directly across of the Kohala Ranch entrance and fronting Waiakailio Bay. 13. Surrounding Zoning/Cant! Uses: The property borders the ocean to the southwest. Surrounding properties are zoned Agricultural 5-acre (A-Sa). The property to the northwest is owned by the State of Hawaii and is currently vacant, which is zoned A-Sa. Kohala Ranch is located directly across the Akoni Pule Highway with lots along the highway zoned A-Sa. Lots further mauka within the Kohala Ranch subdivision are zoned A-3a. The properties to the southeast, makai of the highway, are zoned A-Sa. Special Management Area Use Permit No. 2006- 000OI Owas approved to allow a 5-lot subdivision and related uses, and to make landscaping and other infrastnicture improvements to two cul-de-sacs associated with the piZOr subdivision on the properties bordering to the southeast. 14. C1.S.D.A. Soil Type: Kawaihae very rocky, very fine sandy loam, 6 to 12 percent slopes (KOC). I5. ALISI-I: Unclassified. 16. Land Study Bareau's Detailed Land Classification System: "E" or "Very Poor" for agriculhiral productivity by the Land Study Bureau. 17. FIRM: Portions of the property along the coastline are located within Flood Zone "VE", which is the Special Flood Hazard Area inundated by the 100-year flood with coastal flood with velocity hazard where base flood elevations are determined (nine feet). Other portions of the property along the highway are within Zone X, outside of the 500-year flood plain. The project site is located within the Tsunami Evacuation Zone. BRIEF CHRONOLOGICAL SUMMARY The County Council. has referred a proposed amendment of Bill No. 237-08 to the Plamzing Director and the Planning Commission for their review and recommendation. Bill 237-08 was initiated by the Planning Director to repeal of Ordinance No. 97-102 and amend Section 25-8-7 (North and South Kohala Districts Zone Map) by changing the district classification from RS-15 to RA-Sa for the subject property. The County Council voted to approve amendments to Bill 237 contained within Communication No. 998.8 introduced by Council. Chair Peter Hoffinan. The amendment would downzone the subject property from RS-15 to RA-15a, instead of RA-Sa, as proposed by the Planning Director. The following is a brief chronological summary of the events that have occurred regarding this matter: May 31, 2007: The Planning Director sent a letter to Kohala, LLC informing their that based on inaction by the previous and current landowner for Ordinance 97-102 and SMA 379 for almost a 10-year period, including no requests for administrative time extensions, the Planning Director will be initiating the t rezoning of the property from a RS-15 to a Residential and Agricultural 5-Acre (RA-Sa) district and initiating the revocation of SMA Use Pern~it No. 379. June S, ?007: Kohala LLC submitted a request fora 5-year time extension from .1uly 14, 2007 until July 14, 2012 to comply with Condition C (secure Final Subdivision Approval) of Change of Zone Ordinance No. 97-102 and Condition No. 4 (secure Final Subdivision Approval) of Special Management Area Use Permit No. 379. Change of Zone Ordinance No. 97-102 was approved by the Hawaii County Council with an effective date of July 14, 1997, which rezoned 37.88 acres from A-Sato RS-l 5. Condition C limited the amount of residential lots to fifty (50) and required the applicant to secure Final Subdivision Approval within five (5) years from the effective date of the ordinance. Additionally, Special Management Area Use Permit No. 379 was approved by the Planning Commission on August 8, 1997 to allow the development of a SO-lot single family residential subdivision and related improvements. Condition No. 4 required that the applicant secure Final Subdivision Approval within five (5) years from the effective date of the permit. Additionally, the applicant sent a letter informing the Planning Director that in the course of preparing their time extension request and annual report for Ordinance No. 97-02 and SMA 379, they were info~7ned that the Plamling Director would be initiating the rezoning of the property from RS-15 to RA-Sa and the revocation of SMA 379. The applicant requested that the Planning Director withdraw the actions to rezone the property and revoke SMA 379. January 11, 2008: The Planning Commission considered the Planning Director's initiation of a Change of Zone for 37.88 acres of land from Single Family Residential - 15,000 square feet (RS-15) to a Residential and Agriculhiral - 5 acre (RA-Sa) district and the repeal of Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural - 5 acre (A-Sa) to a Single Family Residential - 15,000 square foot (RS-15) district. A motion was made to send an unfavorable recommendation to the County Council on both requests. There were four votes in favor of the motion and two against. Because five votes are needed for the Planning Commission to take action, the four to two vote constituted a "no action" by the Planning Commission. The "no action" itself constituted an unfavorable recommendation. Therefore, the Planning Director's request was forwarded to the County Council with an unfavorable recommendation because of the time limits on the Planning Commission's review of such amendments. Previously, on ,luly 20, 2007, the Planning Commission had voted 3-3 on a motion to send a favorable recommendation on the proposed rezoning. March 5, 2008: The Planning Director prepared a letter dated March 5, 2008 to the Committee on Planning regarding Bill 237 - Kohala LLC further explaining some of the Director's reasons for initiating the proposed downzoning from RS- 15 to RA-Sa and to respond to letters from the landowner's attorney alleging procedural irregularities and constitutional issues. (Planning Department Exhibit 1 -Letter Dated March 5, 2008 to Committee on Planning) April 18, 2008: The Planning Commission considered the applicant's request for 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 from an Agricultural 5-acre (A-Sa) to a Single Family Residential - 15,000 square foot (RS-15) district. A motion was made to send a favorable recommendation to the County Council, with an amendment to reduce the maximum number of lots from 50 to 25. There were three votes ui favor of the motion and four against. Because five votes are needed for the Plamling Commission to take action, the three to four vote constituted a "no action" by the Planting Commission. The "no action" itself constituted an unfavorable recommendation. Additionally, the Planning Commission considered the request for an amendment to Condition 4 (time to secure final subdivision approval) of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single family residential subdivision. A motion was made to deny the request did not pass four votes to three. The applicant requested an opportunity for final reconsideration of this matter pursuant to Planning Commission Rule No. 9- 11(F)(3). April 22, 2008: The Hawaii County Council considered Bill No. 237-08 repealing Ordinance No. 97-102 and amending Section 25-8-7 (North and South Kohala Districts Zone Map) by changing the district classification from RS-15 to RA-Sa for the subject property at its April 22, 2008 meeting. The County Council voted to approve amendments to Bill 237 contained within Communication No. 998.8 introduced by Council Chair Peter Hoffman (Planning Department Exhibit 2 -Communication 998.8). The amendment proposes to further downzone the subject property from RS-15 to RA-15a, instead of RA-Sa as initiated by the Plamung Director. The amendment was introduced to set a "precedent setting measure" for the following reasons: a) To respond to the overwhelming testimony from kupuna and members of the North Kohala community, asking for the County Council to do whatever they can to preserve the resources along the North Kohala shoreline. These resources include protecting the coral reef off shore of this particular project, which is currently under 15 to 18 inches of silt and soil, and is dying or is dead. This was not a result of the applicant but if the reef is not protected from further runof~or damage, there will Ue no chance for recovery. b) For the Cotuity Council to make certain that the zoning for this particular area is the minimum zoning possible without it constituting a "taking." "This would be to downzone the property to RA-lSa, which will restrict development in this very sensitive area to a minimum of approximately 2 dwellings on the approximate 38-acre parcel. The property will still have a very adequate economic value to the applicant, and at the same time provide a legitimate way to minimize the development on shore to prevent any more run off and help save the precious offshore resources in this area. c) The proposed downzoning is consistent with the updated policies in the Natural Beauty section of the 2005 General Plan and with the North Kohala Community Development Plan. Bill 237, Draft 2 has been sent back to the Planning Director and the Planning Commission for their review and recommendations. (Planning Department Exhibit 3 - Bi11237, Draft 2) May 22, 2008: The Planning Cotnntnission voted to defer the reconsideration of the amendment request for Condition No. 4 of SMA 379 until the County Council makes a ftnal decision on its initiation of rezoning the subject parcel from a Single Family Residential 15,000 sduare foot (RS-15) to a Residential and Agricultural - 15 acre (RA-15a) zoned district. July 1, 2008: The Pl.atming Conunittee of the County Council voted 8 to 0 to send a negative recommendation to the fitll Council on the landowner's request to extend time on the RS-15 zoning in Ordinance No. 97-102 (Bill 307). RECOMMENDATION The Planning Director is recommending that the Plamiing Commission forward an unfavorable recommendation for Bill No. 237, Draft 2, initiated by the County Council, which amends Bi11237 to downzone the subject property from RS-15 to RA-15a, instead of the RA-Sa zoning previously initiated by the Planning Director. While the Planning Director understands and synnpatluzes with. public testimony in favor of the council- proposed RA-1 Sa zoning, the Planning Director continues to recommend RA-Sa zoning for the following reasons: 1. Consistency with other zoning. The cut•t•ent county zoning for the property makai of Akoni Pule Highway is A-Sa, basically similar to RA-Sa, for a distance of about 3000' to the southeast of this property, and for about 8 miles to the northwest, alnnost to Mahukona. (About half the coastal property to the northwest is owned by the State of Hawaii., and for much of the distance, from the coastline to about 300' mauka, the land is in the state land use conservation district). Properties across Akotu Pule Highway are also zoned R-Sa. There has not been a sufficient rationale presented to justify zoning this property in a manner more restrictive than the properties to the northwest and southeast. 2. Notice to the landowner of consequences. The prior zoning ordinance, Ordinance No. 97-102, gives the landowner clear notice that the consequences of not meeting the various time frames could include "rezoning to its original or more appropriate designation." RA-Sa zoning is very similar to the A-Sa zoning that existed prior to the enactment of Ordinance No. 97-102, the "original" designation, and the landowner cannot claim that there was no fair notice that this rezoning could be initiated after the time frames were not met. On the other hand, there wasn't clear notice that the consequences could include a rezoning to one-third the density that the owner had before Ordinance No. 97-102 was enacted. 3. Adequacy of RA-Sa zoning to protect environmental resources. Development of the 7 lots possible under the proposed RA-Sa zoning will require a SMA major pernlit from the Planning Commission. With additional protective conditions in the SMA major pern~it, such as those in the adjoining property to the southeast, the site can be developed in a way that protects the environment and coastal viewplanes. Lastly, the RA-Sa zoning would be consistent with the resolutions from the State of Hawaii Senate of the Fourteenth Legislature and the Senate of the Twenty-First Legislahue and the goals and policies of the Natural Beauty element of the General Plan. It would also be consistent with the current community development plan for North Kohala, which designated this area as Unplanned and encouraged the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. The North Kohala Community Development Plan is in the process of being updated and is scheduled to go before the Planning Commission for review. The Growth Management section of the pre-final draft states that North Kohala residents have been very vocal about their desire to control the type and quantity of development that happens, and to direct its location to concentrated areas, so as to protect Kohala's rural character, agriculhu-al lands, open space, and cultural resources. One strategy to achieve this goal is to establish a View Plane Protection Program to identify and protect areas of significant beauty along the Kohala Mountain Road and Akoni.-Pule Highway corridor. Based on the reasons stated above, the PLalming Director is recommending that the Planning Commission send an unfavorable recommendation to the Hawaii County Council to change the zone from RS-15 to RA-lSa for this property and recommends that the Hawaii County Council adopt Bill 237, Draft 1 from RS-15 to RA-Sa. Bill 237, Draft 1 is provided for your favorable consideration. I` ~ ~ - BRCC'InitiatedREZ08-079 jwd 07-07-08 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION INITIATOR: COUNTY COUNCIL CHANGE OF ZONE FROM RS-IS TO RA-ISA (REZ 08-000079) The Hawaii County Co~mcil has proposed amending the Planning Director initiated bill, rezoning this property to RA-Sa, to RA-15a. Because this is, in effect, aCouncil-initiated change of zone, this is being processed as such. Tlus involves 37.88 acres of land, which would be rezoned from aSingle-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 15-acre (RA-15a) district. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 151, North Kohala, Hawaii, TMK: 5-9-1:8. LANDOWNER Landowner: The applicant, Kohala LLC, is the landowner and the successor-in- interest to the original applicant, Gentry-Pacific, Ltd. BACKGROUND INI'ORMATION 2. July 14, 1997: Effective date for Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residential (RS-15) zoned district. 3. August S, 1997: Effective date of Special Management Area Use Perniit No. 379, which was approved to allow the development of a 50-lot single family residential subdivision and related improvements. SENATE CONCURRENT RESOLUTIONS 4. S.C.R. NO. 179: Senate Concurrent Resolution No. 179, H.D. 1, adopted in 1988, urges the retention of view and open space nlakai oFKawaihae-Mahukona- Hawi Road from Kawaihae to Upolu Point, Hawaii. 5. S.C.R. NO. 146: Senate Concurrent Resolution No. 146, S.D. 1, adopted in 2001, urges the retention and preservation of open space and view planes, historic sites, and traditional access along the coastline of the North Kohala District, Hawaii. STATE AND COUNTY PLANS 6, General Plan Land Use Pattern Allocation Guide (LUPAG) Map: Low ,. _e_.,.,~. _ ~ _. ~~ .~:. ~ ~. . _s era _s :.:.. Density Urban, Extensive Agricultural and Open along the shoreline. 7. SLUC: Urban. 8. County Zoning: RS-15, but a time extension is needed. See below. 9. North Kohala Community Development Plan: Adopted by the Hawaii County Council as Resolution No. 219 86 on November 3, 1986, the North Kohala Conununity Development Plan encourages the retention of view planes from major highways, tluough comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. The North Kohala Comrnwiity Development Plan is currently in the process of being updated. 10. Coastal Zone Management, HRS Chapter 205A: The entire State of Hawaii lies within the Coastal Zone Management area. The intent of the Coastal Zone Management Program is to guide and regulate public and private uses in the coastal zone management area with respect to recreational resources, historic resources, public access to the shoreline, scenic and open space resources, coastal ecosystems, marine resources, economic uses, coastal hazards, managing development, public participation, and beach protection. 11. SMA: The property is situated within the Special Management Area. Special Management Area Use Permit No. 379 was approved to allow the development of a 50-lot single family residential subdivision and related improvements on the subject property. This also needs a time extension. DESCRIPTION OF SUBJECT PROPERTY AND SURROUNDING AREA l 2. Subject Property: The property is 37.88 acres in size anal is roughly rectangular in shape. It is located. along a rocky coast of North Kohala approxunately 3 miles northwest of Kawaihae directly across of the Kohala Ranch entrance and fronting Waiakailio Bay. 13. Surrounding Zoning/Laud Uses: The property borders the ocean to the southwest. Surrounding properties are zoned Agricultural 5-acre (A-Sa). The property to the northwest is owned by the State of Hawaii and is currently vacant, which is zoned A-Sa. Kohala Ranch is located directly across the Akoni Pule Highway with lots along the highway zoned A-Sa. Lots further mauka within the r Kohala Ranch subdivision are zoned A-3a. The properties to the southeast, malcai of the highway, are zoned A-Sa. Special Management Area Use Permit No. 2006- 000OI Owas approved to allow a 5-lot subdivision and related rises, and to make landscaping aiid other infrastructure improvements to two cul-de-sacs associated with the prior subdivision on the properties bordering to the southeast. 14. U.S.D.A. Soil Type: Kawaihae very rocky, very fine sandy loam, 6 to 12 percent slopes (KOC). 15. ALISH: Unclassified. 16. Land Study Bureau's Detailed Land Classification System: "E" or "Very Poor" for agricultural productivity by the Land Study Bureau. 17. FIRM: Portions of the property along the coastline are located within Flood Zone "VE", which is the Special Flood Hazard Area inundated by the 100-year flood with coastal flood with velocity hazard where base flood elevations are determined (nine feet). Other portions of the property along the highway are within Zone X, outside of the 500-year flood plain. The project site is located within the Tsunami Evacuation Zone. BRIEF CHRONOLOGICAL SUMMARY The County Council has referred a proposed amendment of Bill No. 237-08 to the Planning Director and the P1atuling Commission for their review and recommendation. Bill 237-08 was initiated by the Planning Director to repeal of Ordinance No. 97-102 and amend Section 25-8-7 (North and South Kohala Districts Zone Map) by changing the district classification from RS-1 S to RA-~a for the subject property. The County Council voted to approve amendments to Bill 237 contained within Communication No. 998.8 introduced by Council Chair Peter Hoffma~~. The amendment would downzone the subject property from RS-15 to RA-15a, instead of RA-Sa, as proposed by the Planning Director. The following is a brief chronological summary of the events that have occun•ed regarding this matter: May 31, 2007: The Plamung Director sent a letter to Kohala, LLC informing them that based on inaction by the previous and current landowner for Ordinance 97-102 and SMA 379 for almost a 10-year period, including no requests for administrative time extensions, the Planning Director will be initiating the rezoning of the property from a RS-15 to a Residential and Agricultural 5-Acre (RA-Sa) district and initiating the revocation of SMA Use Pernlit No. 379. June 5, 2007: Kohala LLC submitted a request fora 5-year time extension from July 14, 2007 until July 14, 2012 to comply with Condition C (secure Final Subdivision Approval) of Change of Zone Ordinance No. 97-102 and Condition No. 4 (secure Final Subdivision Approval) of Special Management Area Use Permit No. 379. Change of Zone Ordinance No. 97-102 was approved by the Hawaii County Council with an effective date of July 14, 1997, which rezoned 37.88 acres from A-Sato RS-15. Condition C 1united the amount of residential lots to fifty (50) and required the applicant to secure Final Subdivision Approval within five (5) years from the effective date of the ordinance. Additionally, Special Management Area Use Permit No. 379 was approved by the Plamiing Commission on August 8, 1997 to allow the development of a 50-lot single family residential subdivision and related improvements. Condition No. 4 required that the applicant secure Final Subdivision Approval within five (5) years from the effective date of the permit. Additionally, the applicant sent a letter informing the Planning Director that in the course of preparing their time extension request and annual report for Ordinance No. 97-02 and SMA 379, they were informed that the Planning Director would be initiating the rezoning of the property from RS-15 to RA-Sa and the revocation of SMA 379. The applicant requested that the Planning Director withdraw the actions to rezone the property and revoke SMA 379. January 11, 2008: The Plaiuling Commission considered the Planning Director's initiation of a Change of Zone for 37.88 acres of land from Single Family Residential - 15,000 square feet (RS-15) to a Residential and Agriculhiral - 5 acre (RA-Sa) district and the repeal of Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural - 5 acre (A-Sa) to a Seigle Family Residential 1.5,000 square foot (RS-15) district. A motion was made to send an unfavorable recommendation to the County Council on both. requests. There were four votes in favor of the motion and two against. Because five votes are needed for the Planning Commission to take action, the four to two vote constituted a "no action" by the Platming Commission. The "no action" itself constituted an unfavorable recommendation. Therefore, the Planning Director's request was forwarded to the County Council with an unfavorable recommendation because of the time limits on the Planning Commission's review of such amendments. Previously, on July 20, 2007, the Platuling Commission had voted 3-3 on a motion to send a favorable recommendation on the proposed rezoning. March 5, 2008: The Planning Director prepared a letter dated March 5, 2008 to the Conunittee on Planning regarding Bill 237 - Kohala LLC further explaining some of the Director's reasons for initiating the proposed downzoning from RS- I S to RA-Sa and to respond to letters from the landowner's attot-~zey alleging procedural irregularities and constitutional issues. (Planning Department Exhibit 1 -Letter Dated March 5, 2008 to Committee on Plauniug) April 18, 2008: The Plannning Commission considered the applicant's request for 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 from an Agriculhtral 5-acre (A-Sa) to a Single Family Residential - 15,000 square foot (RS-15) district. A motion was made to send a favorable recommendation to the COLlnty COUt1C11, with an amendment to reduce the maximum. number of lots from 50 to 25. There were three votes in favor of the motion and four against. Because five votes are needed for the Planning Convnission to take action, the three to four vote constituted a "no action" by the Planning Commission. The "no action" itself constihrted an unfavorable recommendation. Additionally, the Plamling Conunission considered the request for an amendment to Condition 4 (time to secure final subdivision approval) of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single family residential subdivision. A motion was made to deny the request did not pass four votes to tlu•ee. The applicant requested an opportunity for final reconsideration of this matter pursuant to Planning Commission Rule No. 9- 11(F)(3). April 22, 2008: The Hawaii County Council considered Bill No. 237-08 repealing Ordinance No. 97-102 and amending Section 25-8-7 (North and South Kohala Districts Zone Map) by changing the district classification from RS-15 to RA-Sa for the subject property at its Apri122, 2008 meeting. The County Council voted to approve amendments to Bill 237 contauied within Conmiunication No. 998.8 introduced by Council Chair Peter Hoffman (Planning Department Exhibit 2 -Communication 998.8). The amendment proposes to further downzone the subject property from RS-15 to RA-15a, instead of RA-Sa as initiated by the Plannuig Director. The amendment was introduced to set a "precedent setting measure" for the following reasons: a) To respond to the overwhelming testimony from kupuna and members of the North Kohala community, asking for the County Council to do whatever they can to preserve the resources along the North Kohala shoreline. These resources include protecting the coral reef off shore of this particular project, which is currently under 15 to 18 inches of silt and soil, and is dying or is dead. This was not a result of the applicant but if the reef is not protected from further nrnoff or damage, there will be no chance for recovery. b) For the County Council to make certain that the zoning for this particular area is the minimum zoning possible without it constituting a "taking." This would be to downzone the property to RA-15a, which will restrict development in this very sensitive area to a minimum of approximately 2 dwellings on the approximate 38-acre parcel. The property will still have a very adequate economic value to the applicant, and at the same time provide a legitimate way to minimize the development on shore to prevent any more run off and help save the precious offshore resources in this area. c) The proposed downzoning is consistent with the updated policies in the Natural Beauty section of the 2005 General Plan and with the North Kohala Community Development Plan. Bill 237, Draft 2 has been sent back to the Planning Director and the Plarming Commission for their review and recommendations. (Planning Department Exhibit 3 - Bi11237, Draft 2) .«..3: ,.. ~. .'f7~ May 22, 2008: The Plamiing Commission voted to defer the reconsideration of the amendment request for Condition No. 4 of SMA 379 until the County Council makes a final decision on its initiation of rezoning the subject parcel from a Single Family Residential - 15,000 square foot (RS-15) to a Residential and Agricultural - 15 acre (RA-15a) zoned district. July 1, 2008: The Planning Committee of the County Council voted 8 to 0 to send a negative recommendation to the frill Council on the landowner's request to extend time on the RS-15 zoning in Ordinance No. 97-102 (Bill 307). RECOMMENDATION The Planning Director is recommending that the Planning Commission forward an unfavorable reconmiendation for Bill No. 237, Draft 2, initiated by the County Council, which amends Bi11237 to downzone the subject property from RS-15 to RA-15a, instead of the RA-5a zoning previously initiated by the Plamling Director. While the Planning Director understands and sympathizes with public testimony in favor of the council- proposed RA-15a zoning, the Planning Director continues to recommend RA-Sa zoning for the following reasons: 1. Consistency with other zoning. The cun-ent county zoning for the property makai of Akoni Pule Highway is A-Sa, basically similar to RA-Sa, for a distance of about 3000' to the southeast of t11is property, and for about 8 miles to the northwest, almost to Mahukona. (About half the coastal property to the northwest is owned by the State of Hawaii, and for much of the distance, from the coastline to about 300' mauka, the land is in the state land use conservation district). Properties across Akoni Pule Highway are also zoned R-Sa. There has not been a sufficient rationale presented to justify zoning this property in a matmer more restrictive than the properties to the northwest and southeast. 2. Notice to the landowner of consequences. The prior zoning ordinance, Ordinance No. 97-102, gives the landowner clear notice that the consequences of not meeting the various time frames could include "rezoning to its original or more appropriate designation." RA-Sa zoning is very similar to the A-Sa zoning that existed prior to the enactment of Ordinance No. 97-102, the "original" designation, and the landowner cam~ot claim that there was no fair notice that this rezoning could be initiated after the time frames were not met. On the other hand, there wasn't clear notice that the consequences could include a rezoning to one-third the density that the owner had before Ordinance No. 97-102 was enacted. 3. Adequacy of RA-Sa zoning to protect environmental resources. Development of the 7 lots possible under the proposed RA-Sa zoning will require a SMA major permit from the Plalming Conunission. With additional protective conditions in the SMA major perniit, such as those in the adjoining property to the southeast, the site can be developed in a way that protects the environment and coastal viewplanes. Lastly, the RA-Sa zoning would be consistent with the resolutions from the State of Hawaii. Senate of the Fourteenth Legislature and the Senate of the Twenty-First Legislariu-e and the goals and policies of the Natural Beauty element of the General Plan. It would also be consistent with the cun•ent community development plan for North Kohala, which designated this area as Unplazmed and encouraged the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway ftom Kawaihae to Hawi. The North Kohala Community Development Plan is in the process of being updated and is scheduled to go before the Planning Commission for review. The Growth Management section of the pre-final draft states that North. Kohala residents have been very vocal about their desire to control the type and quantity of development that happens, and to direct its location to concentrated areas, so as to protect Kohala's rural character, agricultural lands, open space, and cultural resources. One strategy to achieve this goal is to establish a View Plane Protection Program to identify and protect areas of significant beauty along the Kohala Mountain Road and Akoni.-Pule Highway corridor. Based on the reasons stated above, the Planning Director is recommending that the Plaru~ing Commission send an unfavorable recommendation to the Hawaii County Council to change the zone from RS-15 to RA-15a for this property and recommends that the Hawaii County Council adopt Bill 237, Draft 1 from RS-15 to RA-Sa. Bi11237, Draft 1 is provided for your favorable consideration.