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Home My WebLink AboutCOM 0070.000 2014-2016William P. Kenoi Mayor County of Hawaii Walter K.M. Lau Managing Director Randall M. Kurohara Deputy Managing Director Office of the Mayor 25 Aupuni Street, Suite 2603 • Hilo, Hawaii 96720 • (808) 961-8211 • Fax (808) 961-6553 KONA: 74-5044 Ane Keohokalole Hwy., Bldg. C • Kailua-Kona, Hawaii 96740 (808)323-4444 • Fax(808)323-4440 January 7, 2015 Dru Kanuha, Council Chair and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Kanuha and Council Members: SUBJECT: County Council Initiated (Bill No. 28 1) Amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, As Amended), Relating to Planned Unit Development As required by Chapter 7, Sec. 6-7.5 (a), Hawaii County Charter, transmitted herewith for the County Council's consideration and action are the Windward and Leeward Planning Commissions' letters and enclosures regarding the above -referenced requests. Si cerel , WILLIAM P. KENOI Mayor Enclosures cc: Planning Department County of Hawaii is an Equal Opportunity Provider and Employer, Comm. No Ref. To: Ref. Date -JAN County of Hawaii WINDWARD PLANNING COMMISSION Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720 Phone (808) 961-8288 • Fax (808) 961-8742 JAN 8 7 2015 Dru Kanuha, Council Chair and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Kanuha and Council Members: County Council Initiated (Bill No. 28 1) Amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, As Amended), Relating to Planned Unit Development The Windward Planning Commission, at its duly held public hearing on December 4, 2014, considered County Council Initiated Bill No. 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, as Amended) relating to Planned Unit Development (PUD). The purpose of these proposed amendments is to require review and approval of a PUD by the Planning Commission that holds jurisdiction over that area containing the property for which the application is being sought. The Commission voted to forward a favorable recommendation of Bill No. 281 to the County Council, with reservations. We are enclosing copies of the staff Background, Planning Director's Recommendation, and the transcript of the hearing for your information. Sincerely, Myles MiyaVhainnan Windward Planning Commission LCouncilinitiatedbillno28I wpc Enclosures cc: Planning Department - Kona Hawai `i County is an Equal Opportunity Provider and Employer County of Hawaii LEEWARD PLANNING COMMISSION Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawai'i 96720 Phone(808)961-8288 • Fax(808)961-8742 JAN 0 7 2015 Dru Kanuha, Council Chair and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Kanuha and Council Members: County Council Initiated (Bill No. 28 1) Amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, As Amended), Relating to Planned Unit Development The Leeward Planning Commission, at its duly held public hearing on December 18, 2014, considered County Council Initiated Bill No. 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, as Amended) relating to Planned Unit Development (PUD). The purpose of these proposed amendments is to require review and approval of a PUD by the Planning Commission that holds jurisdiction over that area containing the property for which the application is being sought. The Commission voted to forward a favorable recommendation of Bill No. 281 to the County Council, with qualifications. We are enclosing copies of the staff Background, Planning Director's Recommendation, and the transcript of the hearing for your information. Sincerely, Brandi K. Beaudet, Chairman Leeward Planning Commission LCouncilinitiatedbillno2811pc Enclosures cc: Planning Department - Kona Hawai `i County is an Equal Opportunity Provider and Employer BRPUM11281.dsa-11/25/14 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION COUNTY COUNCIL INITIATED AMENDMENT TO CHAPTER 25 (ZONING CODE), ARTICLE 6, DIVISION 1, AND ARTICLE 5 OF THE ZONING CODE RELATING TO PLANNED UNIT DEVELOPMENTS (P.U.D.) Bill No. 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, as amended) relating to Planned Unit Development (P.U.D.). More specifically, the purpose of the proposed amendments is to require review and approval of a P.U.D. by that Planning Commission that holds jurisdiction over that area containing the property for which the application is sought. PURPOSE OF BILL NO. 281 1. Through Bill No. 281 (Exhibit 1), the County Council is proposing amendments to the Zoning Code within Article 6, Division 1 (Planned Unit Development- P.U.D.), and Article 5, Section 25-5-8 (Other regulations for the RS zoning district). See attached excerpt from Zoning Code -Exhibit 2. 2. In summary, Bill No. 281 seeks to amend sections within the Zoning Code (Chapter 25, Hawaii County Code) to transfer authority for any action upon a P.U.D. application from the Planning Director to the appropriate Planning Commission holding jurisdiction over the P.U.D. project site. The bill would also specify that P.U.D.s conform to applicable community development plan (CPD). 3. Bill No. 281 was introduced based on a finding by the Council that the P.U.D., as a form of development permit, should be subject to a review process that allows opportunities for public involvement with procedural guidelines for approval implemented as part of the decision-making process. What this basically means is that a P.U.D., should this Bill be adopted into ordinance, will no longer be administratively processed and acted upon by the Planning Director and will, instead, be subject to a public hearing and action by the appropriate Planning Commission. WHAT IS A PLANNED UNIT DEVELOPMENT (PUD)? 4. Section 25-6-1 of the Zoning Codes states that the purposed of a P.U.D. "is to encourage comprehensive site planning that adapts the design of development to the -1- land, by allowing diversification in the relationships of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups, while still insuring that the intent of this chapter [Zoning Code] is observed." 5. As described in the American Planning Association's QuickNotes, Understanding Planned Unit Development, (Exhibit 3), P.U.D. is a form of development that can be used to advance a number of important smart growth and sustainability objectives. In other jurisdictions, planned unit developments can take many forms, ranging from the granting of variances in order to create clustered residential subdivisions or mixed-use master planned communities. In Hawai `i County, mixed-use master planned communities are typically developed by approval of the County Council through the Project District zoning process and the P.U.D. process is primarily used to develop residential or agricultural developments where housing units are clustered on smaller lots than the zoning district allows in exchange for the protection of open spaces. For example, under conventional zoning a 50 -acre property that is zoned Agricultural -5 acre (A -5a) could be subdivided to create a maximum of ten 5 -acre lots. The minimum lot size allowed with A -5a zoning is 5 acres. The P.U.D. process could allow the granting of variances from the required minimum lot size of 5 acres so that the same property could be developed with nine 1 -acre lots clustered into one area with a 41 -acre bulk lot maintained for agricultural purposes. This allows for land to be subdivided with consideration for topography and any natural, historic or cultural resources. 6. The Zoning and Subdivision Codes, as a whole, are generally viewed as one -size - fits -all applications that do not take into account the local use and design vernacular of a particular area. A P.U.D. offers the opportunity to allow for certain limited exceptions to standard code requirements in order to encourage comprehensive site planning. 7. Section 25-6-5 of the Zoning Code states that a P.U.D. cannot introduce a use not permitted within the affected zoning district of the project area unless a change of zone application accompanies the P.U.D. for concurrent processing, with the P.U.D. not becoming effective unless the accompanying change of zone is approved. Therefore, unless accompanied by a change of zone, a P.U.D. cannot increase the maximum residential unit density permitted by its zoning district classification. -2- WHERE ARE PVDs PERMITTED? 8. Section 25-6-2 of the Zoning Code requires a minimum land area of two (2) acres for a P.U.D. Beyond this requirement, a P.U.D. may be applied for lands within any zoning district, provided that P.U.D.s on lands designated for Agricultural and Rural uses by the State Land Use Commission must maintain a minimum lot size of one (1) acre and one-half (0.5) -acre respectively. The County does not have jurisdiction over Conservation -designated lands. ANALYSIS OF AMENDMENTS PROPOSED BY BILL No. 281 9. We offer the following general comparison of P.U.D. processing as currently managed by the Planning Director versus the Planning Commission action proposed by Bill No. 281: P.U.D. review components Current Zoning Code Bill No. 281 approving authority Planning Director Planning Commission minimum land area req'd (§25-6-2) 2 acres 2 acres 10 -days notice of Director's 10 -day notice of Planning public notification (§25-6-4) decision Commission hearing Content reqmts for PUD applicantion no change no change public hearing? no yes contested case proceeding permitted? no yes community development plan Requires compliance with criteria for approval of PUD (§25-6-10) (CDP) compliance not specified applicable CDP V hearing in 90 days, decision processing time period Director decision in 60 days within 60 days of close of hearing deemed approved unless written failure to process timely deemed denied object to PUD received option for partial PUD approval yes No Time extension or amendments to Planning Director Planning Commission conditions of approval appeal of PUD decision Board of Appeals Third Circuit Court -3- 10. As detailed above, Bill No. 281 does not introduce a significant change to the information submittals required with a P.U.D. application or to the standards or criteria for approval of a P.U.D. other than to substantially conform to "any applicable community development plan." 11. The amendments proposed by Bill No. 281 would, if adopted, be generally consistent with at least two (2) of the adopted Community Development Plans. Specifically, in the South Kohala Community Development Plan, General Policy 1.6 recommends the Planning Department provide opportunities and forums for public review and comment, for all subdivisions, PUDs, plan developments, and cluster developments, proposed in the District of South Kohala. In addition, Policy LU -3.3 of the Kona Community Development Plan provides for guidelines to supplement the requirements and procedures for P.U.D.s and subdivision set forth in the Zoning Code, Subdivision Code, and Planning Department Rules. RESERVATIONS 12. As previously mentioned, the Zoning Code specifies that the purpose of a P.U.D. "is to encourage comprehensive site planning that adapts the design of development to the land, by allowing diversification in the relationships of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups, while still insuring that the intent of this chapter is observed." (emphasis added). A P.U.D. alone cannot introduce a use that is not permitted within a particular zoning district nor shall its approval compromise the intent and purpose of the Zoning Code. A P.U.D. exists to encourage comprehensive site planning, when the other option is to design a project in compliance with the standard requirements of both the Zoning and Subdivision Codes. 13. There is concern that transferring approval authority for P.U.D.s from the Planning Director onto the Planning Commissions may complicate a process that does have favorable attributes, such as encouraging developments that seek a better fit into the surrounding environment. Zoning controls overall land use. P.U.D.s then manage these permitted land uses to best compliment the area in which the project is situated. There is a perception that a P.U.D. is the master land use or development permit. It is not. If a P.U.D. is denied, the landowner is still able to develop its property in accordance with the M standard requirements of the Zoning and Subdivision Codes. A denial of a P.U.D. does not make a project necessarily go away since it is the zoning of an area that dictates what gets developed and how the land is utilized. RECOMMENDATION For the reasons detailed above, the Planning Director recommends that the Planning Commissions send a favorable recommendation, with reservations, to the County Council regarding Bill No. 281, relating to Planned Unit Development (PUD) permit. -5- Zendo Kern Council Member Council District 5 Mailing Address: Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 Hawai `i County Council Phone: (808) 961-8263 Fax: (808) 961-8912 Email: zkern@co.hawaii.hi.us Planning Committee Chair Environmental Management Committee Chair County of Hawaii if C), Mac TO: Duane Kanuha, Directorm Planning Department o o on FROM: 1111zendo Kern, Chair �s Committee on Planning _ a" N DATE: September 19, 2014 SUBJECT: Referral of Bill 281, an ordinance amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 edition, as amended), relating to planned unit development. Pursuant to Section 25-2-43 (b) of the Hawaii County Code, I am submitting Bill 281, relating to planned unit development, enclosed for your comment and recommendation. I also humbly request that you forward the same to the Windward and Leeward Planning Commissions for their comment and recommendation as well. For informational purposes, Bill 281, relating to planned unit development, was referred for comment and recommendation to the Planning Director and the Windward and Leeward Planning Commissions via voice vote by the Hawaii County Council's Committee on Planning on September 16, 2014. Thank you for your attention to this matter. ZK/nm Enclosures —1 cc: Daryn Arai, Planning Program Manager Noriko Sauer, Leeward Planning Commission Secretary Sarah Hata-Finley, Windward Planning Commission Secretary William Brilhante, Deputy Corporation Counsel Margaret Masunaga, Deputy Corporation Counsel Planning Dept. Exhibit '- Serving the Interests of the People of Our Island 094299 Hawaii County is an Equal Opportunity Provider and Employer KAREN EOFF Vice Chair Council District 8 — North Kona Phone: (808) 323-4280 Fax: (808) 329-4786 Email: keofj@ahawaiicounty.gov HAWAII COUNTY COUNCIL County of Hawaii West Hawaii Civic Center, Bldg. A n 74-5044 Ane Keohokalote Hwy. r, p c7 Kailua-Kona, Hawai 'i 96740 C=co . �-- tV �--1 DATE: August 28, 2014 TO: J Yoshimoto, Council Chair „ v Aand Members of the Hawaii County Council w FROM: Karen Eoff, Vice Chair & Council Member, District 8 SUBJECT: AN ORDINANCE AMENDING CHAPTER 25, ARTICLE 6, DIVISION l AND ARTICLE 5 OF THE HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO PLANNED UNIT DEVELOPMENT Please find attached a bill for an ordinance amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code relating to planned unit development. I am requesting this be placed on the next suitable Committee Meeting agenda. Mahalo. KE/wpb Att. <a;�� Serving the Interests of the People of Our Island Hawal'i County Is an Equal Opportunity Provider And Employer Comm. No. Ref. To: Ref, Date 04 COUNTY OF HAWAII STATE OF HAWAPI B1 NO. 281 - ORDINANCE NO* AN ORDINANCE AMENDING CHAPTER 25, ARTICLE 69 DIVISION 1 AND ARTICLE 5 OF THE HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO PLANNED UNIT DEVELOPMENT* BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Findings and Purpose. The Council finds that planned unit development (P.U.D.) is a form of development permit, and as such, the review process, opportunities for public involvement, and procedural guidelines for approval must be implemented in the decision-making process. The purpose of this ordinance is to amend the Hawai'i County Code to require that P.U.D. permit applications be reviewed and approved by the planning commission that holds jurisdiction over the area containing the property for which the application is sought. SECTION 2. Chapter 25, article 6, division I of the Hawai'i County Code 1983 (2005 Edition, as amended), is amended to read as follows: "Division 1. Planned Unit Development (P.U.D.). Section 25-6-1. Purpose. The purpose of planned unit development (P.U.D.) is to encourage comprehensive site planning that is compatible with the surrounding comrnuni and that adapts the design of development to the land, by allowing diversification in the relationships of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups, while still insuring that the intent of this chapter is observed. Section 25-6-2. Minimum land area required. The minimum land area required for a P.U.D. shall be two acres. Section 25-6-3. Application for P.U.D. permit; requirements. An application for a P.U.D. permit shall be on a form prescribed for this purpose by the director and shall be accompanied by: (1) A filing fee of $500. (2) A written description of the proposed project, including the following information., (A) A description of the property in sufficient detail to determine the precise location of the property involved; (B) A statement of objectives and reasons for the requested M.D. permit, including an analysis of how the request satisfies the standards contained in section 25-6-10; (C) A list of all requested deviations [er-��] from the requirements of chapter 23 (subdivisions) and chapter 25 (zoning), Hawaii County Code; (D) A schedule for the timetable of the proposed development; and (E) An analysis of the relationship of the proposed development to the general plan[.] and anv applicable community development plan (3) Drawings and plans comprising a general development plan covering the entire area of the P.U.D., and providing the following information: (A) Uses, dimensions, and locations of proposed structures; (B) Widths, alignments, and improvements of proposed streets and pedestrian and drainage ways; (C) Any proposed subdivision of property for individual parcel sale; (D) Parking areas; (E) Public areas and uses; and (F) Landscaping and open spaces. (4) Architectural drawings for all buildings [ ffl] demonstrating the design and character of the proposed buildings and uses. (5) A list of the names, addresses and tax map key numbers of all surrounding owners and lessees of property interests in property within the boundaries established by section 25-2-4. (6) Any other information or plans required by rules adopted by the [difeetef] commission in accordance with chapter 91, Hawaii Revised Statutes. Section 25-6-4. Notice of action on P.U.D. application. (a) Upon acceptance of a P.U.D. application, the [diFeetef] commission through the department shall fix a date for [#* a' ' ] action on the application. Within ten days after receiving notice of such date, the applicant shall serve notice of the application on surrounding owners and lessees of record, as provided by section 25-2-4. The applicant shall also serve notice on owners and lessees of record of interests in other properties which the 14im6tEwl commission may find to be directly affected by the P.U.D. permit sought. The applicant shall also post a sign for public notification on the property as provided by section 25-2-12. faus MOF in PA�e MuWien in the Ge 5,, at !east ten deystf:i�� pn�esed-d�:J M The public hearing shall be commenced no later than ninetv days after the acceptance of a P U.D. application by the commission Section 25-6-5. Procedure for processing application when use not permitted in district. An application for a P.U.D. permit that proposes a use not permitted either directly or as a conditional use within a district may be considered by the [d] commission only if a separate application for a change of zone is filed concurrently with or prior to the P.U.D. permit application. The P.U.D. permit application and the change of zone application shall be considered concurrently, and any P.U.D. approved by the [diFee] commission shall be effective only when the change of zone ordinance becomes effective. 2 Section 25-6-6. Actions by [direete j commission on P.U.D. permit applications. [ i the dir-eeter- ' deny the applisatien or- appr-e*@ it subjeet to .] (a) Within ninety days after acceptance of a P.U.D. permit application or within a longer time period as may be agreed to or requested by the app icant the commission shall conduct a public hearing(s) and within sixty days following the close of such public hearing(s), either deny or approve the application subject to conditions as imposed by the commission. (b) The conditions imposed by the [dieetef] commission shall bear a reasonable relationship to the P.U.D. permit issued, and to the approved uses, (plans, ees] and plans of district standards; provided, however, that no improvements or alterations off-site of the project shall be required as a condition of a P.U.D. permit. The conditions may include, but not be limited to the following: (1) Commencement and completion time frame for the project; (2) Boundary and density [elenges] reallocations approved [iff] for the project; (3) Uses that are prohibited or limited; (4) Specifications for the minimum development standards; (5) Specifications for street improvement and dedication; (6) Utilities to be furnished; [and] (7) The extent and limitations upon the [vefianees] uses permitted[-]: and (8) Compliance with representations made by the applicant W If the commission fails to render a decision within the prescribed sixty dav_period the application shall be considered as being_approved provided that no written objection to the P.U.D.,permit application is received by the commission [ , been submifted %ith the original a"heatien. Provided, however-, thM no building pem4t [ . peffrA] WW -Oval OF Pall eppfe*al, the dir-eeler- shWl r-eview the dfavAngs and shall either. appFeve ei: deny " mques4 within thifty days fmm the date ths4 the dFavAngs am -&ed by the denial. if the dkeeteF fails te art upen filed pleAs and- dfawingry withia the thif:�, day •] Section 25-6-7, Reserved. Section 25-6-8. Reserved. 3 y 7, Section 25-6-9. Reserved. Section 25-6-10. Criteria for granting a P.U.D. permit. A P.U.D. permit may be granted by the [deaf] commission upon finding that: (a) The construction of the project can begin and be completed within a reasonable period of time from the date of full approval. (b) The proposed development substantially conforms to the general plan[:] and any applicable community develoument plan (c) Any residential or agricultural development shall constitute an environment of sustained desirability and stability for the district that is in harmony with the character of the surrounding area, that results in an intensity of land use no higher than that otherwise specified for the district, and that maintains the standards of open space at least as high as that otherwise specified for the district in which the development occurs. (d) Any commercial development shall not create traffic congestion which exceeds that which would have been produced under conventional development patterns, practices and standards in the district or interfere with any projected public improvements, shall provide for proper entrances and exits along with proper provisions for internal traffic and parking, and be an attractive center which does not adversely impact upon adjacent and surrounding existing or prospective developments. (e) Any industrial development shall be in conformity with desirable performance standards and shall constitute an efficient and well organized development with adequate provisions for freight service and necessary storage, and shall not adversely impact upon adjacent and surrounding existing or prospective development. (i) The development of a harmonious, integrated whole justifies exceptions, if required, to the normal requirements of this chapter, and the contemplated arrangements or use make it desirable to apply regulations and requirements differing from those ordinarily applicable under the district regulations. Section 25-6-11. Height exceptions authorized. (a) A building approved under a P.U.D. permit may exceed the height limit specified under the zoning district of the property and the height limits under section 25-4-22; provided, that the maximum height of the building shall not exceed seventy-five feet. (b) A building approved under a P.U.D. permit and situated within a zoning district which exceeds the height limits specified under subsection (a) may be permitted at the higher height limits prescribed for that zoning district. Section 25-6-12. ( JalsApprovals issued under P.U.D. permit. (a) No separate or additional [vafiaflee] pest or use permit shall be required for any [ase --9f1 use approved under a P.U.D. permit, and any [vaizAnee-,ff] use approved under a P.U.D. permit shall be considered to be in compliance with the required procedures for obtaining a [vafianee.ef] use permit. (b) Plan approval shall be considered issued when completed drawings are approved under a P.U.D. permit, and no further action is required for the issuance of plan approval under this chapter. 4 Section 25-6-13. Effect of P.U.D. permit on other zoning provisions. Any P.U.D. permit issued shall be subject to all of the conditions imposed in the permit and shall be exempted from other provisions of this chapter only to the extent specified in the permit. Section 25-6-14. Time extensions and amendments. [(a) My request for- a time eMensien eF an ameadmem te a P.U.D. pefmh er- te the aefidit, t days after the meeipt ef the request. in gF&,#iFtg wiy time eK4ensiea eF ameadment-,� .] (a) A P.U.D. permit holder may apply to the commission through the department for an amendment to the permit or any condition or conditions imposed therein (b) In the case of time extensions the P.U.D. permit holder shall file the request not less than ninety days prior to the expiration date of the applicable time condition or conditions settingforth: orth: (I-) The affected condition or conditions: f2) The length of time requested: and (3) The reasons for the request. If the commission fails to act on a properly filed time extension request prior to the expiration date, the activity granted under P.U.D. permit may be continued, unless the commission specifically disallows the activity during the interim period (c) In the case of additions, modifications, and/or deletions of conditions of the P.U.D. permit, the P.U.D. permit holder shall set forth in writing: (1) The affected condition or conditions; (2) The specific amendment or amendments requested; and (3) The reasons for the request. (d) Any such request shall be accoManied by a $250 filing and processing fee along with the original and twenty copies of the request. (e) The hearing and notice procedures and action shall be the same as under sections 6-6 and 6-8 of the Planning Commission Rules of Practice and Procedure provided further that the commission shall conduct a hearing within a period of ninety days from the date of receipt of a properly filed request, or within a longer veriod as may be asreed to by the commission. Section 25-6-15. Appeals. appeals, Any decision of the commission so made within the context of this article shall be appealable to the Third Circuit Court." C] El SECTION 3. Chapter 25, article 5, division 1, section 25-5-8 of the Hawaii County Code 1983 (2005 Edition, as amended) is amended to read as follows: "Section 25-5-8. Other regulations. (a) There may be more than one single-family dwelling on each building site in an RS district provided there is not less than the required minimum building site area for each dwelling. (b) One guest house, in addition to a single-family dwelling, may be located on any building site in the RS district. (c) An ohana dwelling may be located on any building site in the RS district, as permitted under article 6, division 3 of this chapter. (d) If a legal building site in the RS district has less area or average width than is required, then the yard requirements for the building site shall be the same as in the RS district having the largest requirements for which the building site can comply. (e) Exceptions to the regulations for the RS district regarding heights, building site areas, building site average widths and yards, may be approved by the [4kee10F] commission within a planned unit development, or by the director within a cluster plan development." SECTION 4. The following sections of chapter 25, article 5 of the Hawaii County Code 1983 (2005 Edition, as amended) are amended by replacing every reference to "director" with "commission": Section 25-5-27, subsection (d); Section 25-5-38, subsection (d); Section 25-5-49, subsection (d); Section 25-5-57, subsection (d); Section 25-5-67, subsection (e); Section 25-5-77, subsection (e); Section 25-5-87, subsection (d); Section 25-5-98, subsection (d); Section 25-5-108, subsection (c); Section 25-5-118, subsection (b); Section 25-5-128, subsection (b); Section 25-5-138, subsection (b); Section 25-5-147, subsection (d); and Section. 25-5-157, subsection (d), D SECTION 5. Material to be repealed is bracketed and stricken. New material is underscored. In printing this ordinance, the brackets, bracketed and stricken material, and underscoring need not be included. SECTION 6. Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. SECTION 7. This ordinance shall take effect upon its approval. , Hawai `i Date of Introduction: Date of 1 st Reading: Date of 2nd Reading: Effective Date: Roma cow 1025 INTRODUCED BY: COUNCIL MEMB , COUNTY OF HAWAII 7 § 25-5-166 HAWAII COUNTY CODE IF Section 25-5-166. Minimum yards. There shall be no minimum yards in the O district, except as specified as a condition of approval attached to any plan approval. For this purpose, the minimum yard regulations in the adjoining districts shall be used as guides. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-167. Other regulations. Plan approval shall be required for all new structures and additions to existing structures in the O district. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Article 6. Optional Development Regulations. Division 1. Planned Unit Development (P.U.D.). Section 25-6-1. Purpose. The purpose of planned unit development (P.U.D.) is to encourage comprehensive site planning that adapts the design of development to the land, by allowing diversification in the relationships of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups, while still insuring that the intent of this chapter is observed. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-2. Minimum land area required. The minimum land area required for a P.U.D. shall be two acres. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-3. Application for P.U.D. permit; requirements. An application for a P.U.D. permit shall be on a form prescribed for this purpose by the director and shall be accompanied by: (1) A filing fee of $500. (2) A written description of the proposed project, including the following information: (A) A description of the property in sufficient detail to determine the precise location of the property involved; (B) A statement of objectives and reasons for the requested P.U.D. permit, including an analysis of how the request satisfies the standards contained in section 25-6-10; (C) A list of all requested deviations or variances from the requirements of chapter 23 (subdivisions) and chapter 25 (zoning), Hawaii County Code; (D) A schedule for the timetable of the proposed development; and (E) An analysis of the relationship of the proposed development to the general plan. (3) Drawings and plans comprising a general development plan covering the entire area of the P.U.D., and providing the following information: (A) Uses, dimensions, and locations of proposed structures; (B) Widths, alignments, and improvements of proposed streets and pedestrian and drainage ways; (C) Any proposed subdivision of property for individual parcel sale; (D) Parking areas; (E) Public areas and uses; and (F) Landscaping and open spaces. Planning Dept. 25-86 Exhibit a-/ 49 ZONING § 25-6-3 (4) Architectural drawings for all buildings other than single-family dwellings demonstrating the design and character of the proposed buildings and uses. (5) A list of the names, addresses and tax map key numbers of all surrounding owners and lessees of property interests in property within the boundaries established by section 25-2-4. (6) Any other information or plans required by rules adopted by the director in accordance with chapter 91, Hawaii Revised Statutes. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-4. Notice of action on P.U.D. application. (a) Upon acceptance of a P.U.D. application, the director shall fix a date for the director's action on the application. Within ten days after receiving notice of such date, the applicant shall serve notice of the application on surrounding owners and lessees of record, as provided by section 25-2-4. The applicant shall also serve notice on owners and lessees of record of interests in other properties which the director may find to be directly affected by the P.U.D. permit sought. The applicant shall also post a sign for public notification on the property as provided by section 25-2-12. (b) The director shall publish notice of the date of the proposed decision by the director and the date by which written comments must be received by the director in at least two newspapers of general circulation in the County, at least ten days prior to the director's proposed decision. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999; Am. 2005, Ord. No. 05-136, sec. 6.) Section 25-6-5. Procedure for processing application when use not permitted in district. An application for a P.U.D. permit that proposes a use not permitted either directly or as a conditional use within a district may be considered by the director only if a separate application for a change of zone is filed concurrently with or prior to the P.U.D. permit application. The A.U.D. permit application and the change of zone application shall be considered concurrently, and any P.U.D. approved by the director shall be effective only when the change of zone ordinance becomes effective. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-6. Actions by director on P.U.D. permit applications. (a) Except as provided in section 25-6-5, the director shall, within sixty days after acceptance of a P.U.D. permit application, deny the application or approve it subject to conditions. (b) The conditions imposed by the director shall bear a reasonable relationship to the P.U.D. permit issued, and to the approved uses, plans, and variances of district standards; provided, however, that no improvements or alterations off-site of the project shall be required as a condition of a P.U.D. permit. The conditions may include, but not be limited to the following: (1) Commencement and completion time frame for the project; (2) Boundary and density changes approved in the project; (3) Uses that are prohibited or limited; (4) Specifications for the minimum development standards; (5) Specifications for street improvement and dedication; (6) Utilities to be furnished, and (7) The extent and limitations upon the variances permitted. (c) The director may, within the sixty-day period after acceptance of a P.U.D. permit application, grant a partial approval of the request where all plans and drawings have not been submitted with the original application. Provided, however, that no building permit shall be issued, nor shall any construction on the property commence until the drawings have been reviewed and approved by the director and full P.U.D. permit approval has been issued for the portion of development comprising the proposed construction. 25-87 SUPP.1 (1-2006) § 25-6-6 0 HAWAI`l COUNTY CODE 41 (d) When plans and drawings are submitted after a partial approval of a P.U.D. permit application has been issued under subsection (c) above with a request for further partial approval or full approval, the director shall review the drawings and shall either approve or deny the request within thirty days from the date that the drawings are filed by the applicant. In the event of a denial of such request, the applicant may resubmit a revised request for further partial or full P.U.D. permit approval of the application and in accordance with this subsection. (e) If the director fails to act upon a P.U.D. permit application within the prescribed sixty-day period as required by subsection (a) above, the application shall be considered as having been denied and the director shall immediately inform the applicant of such denial. If the director fails to act upon filed plans and drawings within the thirty -day period required by subsection (d) above, the plans shall be considered as having been approved and a full P.U.D. permit issued. (1996, Ord. No. 96-160, sec. 2; ratified and amended April 6, 1999.) Section 25-6-7. Reserved. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999; Am. 1999, Ord. No. 99-112, sec. 12.) Section 25-6-8. Reserved. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999; Am. 1999, Ord. No. 99-112, sec. 14.) Section 25-6-9. Reserved. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999; Am. 1999, Ord. No. 99-112, sec. 15.) Section 25-6-10. Criteria for granting a P.U.D. permit. A P.U.D. permit may be granted by the director upon finding that: (a) The construction of the project can begin and be completed within a reasonable period of time from the date of full approval. (b) The proposed development substantially conforms to the general plan. (c) Any residential or agricultural development shall constitute an environment of sustained desirability and stability for the district that is in harmony with the character of the surrounding area, that results in an intensity of land use no higher than that otherwise specified for the district, and that maintains the standards of open space at least as high as that otherwise specified for the district in which the development occurs. (d) Any commercial development shall not create traffic congestion which exceeds that which would have been produced under conventional development patterns, practices and standards in the district or interfere with any projected public improvements, shall provide for proper entrances and exits along with proper provisions for internal traffic and parking, and be an attractive center which does not adversely impact upon adjacent and surrounding existing or prospective developments. (e) Any industrial development shall be in conformity with desirable performance standards and shall constitute an efficient and well organized development with adequate provisions for freight service and necessary storage, and shall not adversely impact upon adjacent and surrounding existing or prospective development. (f) The development of a harmonious, integrated whole justifies exceptions, if required, to the normal requirements of this chapter, and the contemplated arrangements or use make it desirable to apply regulations and requirements differing from those ordinarily applicable under the district regulations. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) 25-88 ZONING § 25-6-11 Section 25-6-11. Height exceptions authorized. (a) A building approved under a P.U.D. permit may exceed the height limit specified under the zoning district of the property and the height limits under section 25-4-22; provided, that the maximum height of the building shall not exceed seventy-five feet. (b) A building approved under a P.U.D. permit and situated within a zoning district which exceeds the height limits specified under subsection (a) may be permitted at the higher height limits prescribed for that zoning district. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-12. Approval of variances, use permits and plan approvals issued under P.U.D. permit. (a) No separate or additional variance permit or use permit shall be required for any variance or use approved under a P.U.D. permit, and any variance or use approved under a P.U.D. permit shall be considered to be in compliance with the required procedures for obtaining a variance or use permit. (b) Plan approval shall be considered issued when completed drawings are approved under a P.U.D. permit, and no further action is required for the issuance of plan approval under this chapter. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-13. Effect of P.U.D. permit on other zoning provisions. Any P.U.D. permit issued shall be subject to all of the conditions imposed in the permit and shall be exempted from other provisions of this chapter only to the extent specified in the permit. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-14. Time extensions and amendments. (a) Any request for a time extension or an amendment to a P.U.D. permit or to the conditions of a P.U.D. permit may be granted by the director upon finding that no change has occurred in relation to the property since the P.U.D. permit was issued or that the approval is still valid with respect to any changed conditions. (b) The director shall act on any request for a time extension or amendment within forty-five days after the receipt of the request. In granting any time extension or amendment, the director may impose additional conditions to meet the intent of the P.U.D. permit. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-6-15. Appeals. (a) If the director denies a P.U.D. permit, such decision is final except that, within thirty days after the date of the written decision, the applicant may appeal such action to the board of appeals, pursuant to the rules of practice and procedure of the board of appeals. (b) Any person aggrieved by the decision of the director in the issuance of a P.U.D. permit decision may appeal the director's action to the board of appeals, in accordance with this chapter, within thirty days after the date of the director's written decision. (1999, Ord. No. 99-112, sec. 13.) Division 2. Cluster Plan Development (C.P.D.). Section 25-6-20. Purpose. The purpose of cluster plan development (C.P.D.) is to provide exceptions to the density requirements of the single-family residential (RS) district so that permitted density of dwelling units contemplated by the minimum building site requirements is maintained on an overall basis and desirable open space, tree cover, recreational areas, or scenic vistas are preserved. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) 25-89 ZONING § 25-4-69 Section 25-4-69. Recognition of de minimis structure position discrepancy. If the director accepts the application for recognition of de minimis structure position discrepancy, the director shall notify the applicant in writing that the discrepancy is not a violation of the zoning code and that it may remain in place without a variance. (2002, Ord. No. 02-70, sec. 3) Section 25-4-70. Disclosure. A de minimis structure position discrepancy shall be disclosed by the owner to subsequent purchasers of the property in question. (2002, Ord. No. 02-70, sec. 3) Section 25-4-71. Appeals. The director's decision with respect to a de minimis structure position discrepancy is appealable to the board of appeals. (2002, Ord. No. 02-70, sec. 3) Article 5. Zoning District Regulations. Division 1. RS, Single -Family Residential Districts. Section 25-5-1. Purpose and applicability. The RS (single-family residential) district provides for lower or low and medium density residential use, for urban and suburban family life. It applies to areas having facilities, and to carry out the above stated purpose. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-2. Designation of RS districts. Each RS (single-family residential) district shall be designated on the zoning map by the symbol "RS" followed by a number which specifies the required minimum building site area in thousands of square feet. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-3. Permitted uses. (a) The following uses shall be permitted in the RS district: (1) Adult day care homes. (2) Cemeteries and mausoleums, as permitted under chapter 6, article 1 of this Code. (3) Community buildings, as permitted under section 25-4-11. (4) Crop production. (5) Dwellings, single-family. (6) Family child care homes. (7) Group living facilities. (8) Home occupations, as permitted under section 25-4-13. (9) Meeting facilities. (10) Model homes, as permitted under section 25-4-8. (11) Neighborhood parks, playgrounds, tennis courts, swimming pools, and similar neighborhood recreational areas and uses. (12) Public uses and structures, as permitted under section 25-4-11. (13) Temporary real estate offices, as permitted under section 25-4-8. (14) Utility substations, as permitted under section 25-4-11. 25-47 § 25-5-3 HAWAII COUNTY CODE (b) In addition to those uses permitted under subsection (a) above, the following uses may be permitted in the RS district, provided that a use permit is issued for each use: (1) Bed and breakfast establishments as permitted under section 25-4-7. (2) Care homes. (3) Churches, temples and synagogues. (4) Crematoriums, funeral homes, funeral services, and mortuaries. (5) Day care centers. (6) Golf courses and related golf course uses, including golf driving ranges, golf maintenance buildings and golf club houses. (7) Hospitals, sanitariums, old age, convalescent, nursing and rest homes. (8) Major outdoor amusement and recreation facilities. (9) Schools. (10) Telecommunication antennas and towers. (11) Yacht harbors and boating facilities. (c) Buildings and uses normally considered directly accessory to the uses permitted in this section shall also be permitted in the RS district. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999; Am. 2012, Ord. No. 12-28, sec. 3.) Section 25-5-4. Height limit. The height limit in the RS district shall be thirty-five feet. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-5. Minimum building site area. The minimum building site area in the RS district shall be seven thousand five hundred square feet. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-6. Minimum building site average width. Each building site in the RS district shall have a minimum average width of sixty feet, plus two feet for each five hundred square feet of required building site area in excess of seven thousand five hundred square feet, except that no building site shall be required to have an average width of more than one hundred fifty feet. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-7. Minimum yards. The minimum yards in the RS district shall be as follows: (1) On a building site with a required area of seven thousand five hundred square feet to and including nine thousand nine hundred ninety-nine square feet: (A) Front and rear yards, fifteen feet; and (B) Side yards, eight feet. (2) On a building site with a required area of ten thousand square feet to and including nineteen thousand nine hundred ninety-nine square feet: (A) Front and rear yards, twenty feet; and (B) Side yards, ten feet. (3) On a building site with a required area of twenty thousand square feet or more: (A) Front and rear yards, twenty-five feet; and (B) Side yards, fifteen feet. (1996, Ord. No. 96-160, sec. 2; Am. 1997, Ord. No. 97-88, sec. 1; Ord. No. 96-160, ratified and amended April 6, 1999.) SUPP.14 (7-2012) 25-48 ZONING § 25-5-8 Section 25-5-8. Other regulations. (a) There may be more than one single-family dwelling on each building site in an RS district provided there is not less than the required minimum building site area for each dwelling. (b) One guest house, in addition to a single-family dwelling, may be located on any building site in the RS district. (c) An ohana dwelling may be located on any building site in the RS district, as permitted under article 6, division 3 of this chapter. (d) If a legal building site in the RS district has less area or average width than is required, then the yard requirements for the building site shall be the same as in the RS district having the largest requirements for which the building site can comply. (e) Exceptions to the regulations for the RS district regarding heights, building site areas, building site average widths and yards, may be approved by the director within a planned unit development, or cluster plan development. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Division 2. RD, Double -Family Residential Districts. Section 25-5-20. Purpose and applicability. The RD (double -family residential) district provides for moderate density use characterized by the establishment of single or double -family dwellings on each building site. It applies to areas with developed community facilities. It may occupy a transitional area between RS districts and those districts having a more intense use of land. (1996, Ord. No. 96-160, sec. 2, ratified April 6, 1999.) Section 25-5-21. Designation and density of RD districts. Each RD (double -family residential district) shall be designated on the zoning map by the symbol "RD" followed by the number "3.75" which requires that the minimum land area for each dwelling unit shall be three thousand seven hundred fifty square feet. (1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.) Section 25-5-22. Permitted uses. (a) The following uses shall be permitted in the RD district: (1) Adult day care homes. (2) Bed and breakfast establishments as permitted under section 25-4-7. (3) Cemeteries and mausoleums, as permitted under chapter 6, article l of this Code. (4) Community buildings, as permitted under section 25-4-11. (5) Crop production. (6) Dwellings, double -family or duplex. (7) Dwellings, single-family. (8) Family child care homes. (9) Group living facilities. (10) Home occupations, as permitted under section 25-4-13. (1 1) Meeting facilities. (12) Model homes, as permitted under section 25-4-8. (13) Neighborhood parks, playgrounds, tennis courts, swimming pools, and similar neighborhood recreational areas and uses. 25-49 Understanding Planned Unit Development A planned unit development (PUD) is a large, integrated development adhering to a comprehensive plan and located on a single tract of land or on two or more tracts of land that may be separated only by a street of other right-of-way. PUD is a form of development that, although conceived decades ago, can be used today to advance a number of important smart growth and sustainability objectives. PUD has a number of distinct advantages over conventional lot -by -lot development. Properly written and administered, PUD can offer a degree of flexibility that allows creativity in land planning, site design, and the protection of environmentally sensitive lands not possible with conventional subdivision and `s land development practices. Moreover, properly applied, PUD is capable of mixing residential and nonresidential land uses, providing broader housing choices, allowing more compact development, Showcasing a 120 -acre regional permanently preserving common open space, reducing vehicle trips, and providing pedestrian and multi-purpose public park, pedestri- bicycle facilities. In exchange for design flexibility, developers are better able to provide amenities and an -friendly design, and a 1500+ acre infrastructure improvements, and find it easier to accommodate environmental and scenic attributes, wedond system, the Buckwalter PUD PUD is particularly useful when applied to large developments approved in phases over a number of and the B Place urban cen- ears, such as master planned communities. PUDs are t years, p typically approved by the local legislative ton, Southalter ter in Bluffton, South Carolina pro - n- body (city council, board of supervisors, county commissioners) after a comprehensive review and mote multiple aspects of sustainable recommendation by the planning board or commission, which normally includes a public hearing. development. Communities considering adoption of a PUD ordinance should be mindful that while planning boards and commissions are given a good deal of discretionary power in acting on PUDs, appropriate standards are essential. Moreover, a delicate balance must be found between the desire to be flexible in order to take into account unique site characteristics and the need to spell out concrete standards and criteria. WHY PLANNED UNIT DEVELOPMENT IS POPULAR PUD has grown increasingly popular, in part because standard subdivision and zoning ordinances have serious limitations. Many older vintage zoning ordinances prohibit mixed use. Single family, multifamily, and nonresidential uses are often not allowed in the same zoning district. Older conventional ordinances also contain uniform site development standards that tend to produce monotonous outcomes. Subdivision control ordinances deal with narrow concerns, such as street, curb, and sidewalk standards and lot and block layout. The lack of meaningful amounts of well- placed, accessible open space and recreational amenities is another shortfall of conventional development controls. TYPES OF PLANNED UNIT DEVELOPMENT Planned unit developments can take many forms, ranging from modest residential developments where housing units are clustered and open space is provided, to mixed use master planned communities that cover thousands of acres. Planning Dept. Simple Residential Cluster. Simple cluster subdivisions allow smaller lots on some parts of the site Exhibit 3 in exchange for permanently preserved common open space elsewhere on the site. Planning boards or commissions normally require the open space to be configured in a manner to protect sensitive natural features such as streams and riparian areas, vernal pools, ponds, and lakes, and to take into account hazard areas and areas of steep slope. ow Communities may either limit the gross density of the tract to what would be permitted under American Planning Association conventional zoning, or may choose to offer a density bonus allowing more units than would other- -- — - --- - ---- ------ --------- ---- - - --- Making Great Communities Happen A Publication of the American Planning Association I PAS QuickNotes No. 22 as common open space. Theoretically, communities can choose to allow any residential type (or combination of types) on a parcel in the cluster plan—single-family houses, attached houses, town houses, garden apartments, or high rises. As a practical matter, however, cluster subdivisions are developed mostly for single-family homes on individual lots. Mixed Uses. PUD builds on the simple residential cluster idea by allowing nonresidential uses, often at higher densities. Retail and service establishments, restaurants, schools, libraries, churches, recreation facilities, offices, and even industrial uses can be included in PUDs. Downtown or village center development with apartments above shops and live -work arrangements are also possible. The extreme case is the master planned community, which usually involves substantial acreage and combines employment, office, retail, and entertainment centers with associated self-contained neighborhoods. This can include diverse housing types as well as retail, entertainment and office centers. WHICH ORDINANCE, WHICH AGENCY? Individual state planning statutes control how communities handle the deliberative process leading to a decision about a PUD. In most states a PUD provision can be made part of the zoning ordinance or it may be written as a stand-alone ordinance. In either case, the decision to approve, approve with conditions, or disapprove a PUD falls to the legislative branch of local government. Some communities permit a PUD through a discretionary review process, such as a conditional or special use permit. These permits can be approved by the legislative body, planning commission, or board of adjustment, depending on the state enabling legislation and local policies. Some communities provide for the administrative approval of mixed use developments that normally require a discretionary PUD process. The zoning ordinance is the most appropriate place to locate planned unit development regulations. Basic legislative decisions on use and density are normally the responsibility of the legislative body. Street design and infrastructure could also be resolved through PUD approval, though these considerations are normally built into a unified development ordinance. Decisions about plan details can be left to the planning board or commission and planning staff. ZONING FOR PUD Communities face a number of questions when deciding how to fit planned unit development regulations into their zoning ordinances. One alternative is to provide for planned unit development as -of -right. Under this guideline the ordinance would specify the requirements for a planned unit development, and discretionary review and approval procedures would not be necessary. Stand-alone PUD ordinances are now fairly common. Although there are variations, a typical ordinance will include a purpose clause; a statement of the type or types of PUD that are authorized; zoning procedures; and standards for approval. The ordinance may contain definitions. CONSISTENCY WITH THE COMPREHENSIVE PLAN Consistency with the comprehensive plan should be required, especially if the PUD has a major effect on growth and development in the community and on public facilities. This will be true of master planned communities. Many statutes now require zoning to be consistent with a comprehensive plan, and consistency can be required by ordinance even if there is no statutory mandate. ❑ PAS QuickNotes is a publication of the American Planning Association's Planning Advisory Service (PAS). Copyright ® 2009. Visit PAS online at www. planning.org/pos to find out how PAS can work for you. American Planning Association staff: W Paul former, FArcP, Executive Director and CEO,• William R Klein, Ar r, Director of Research and Advisory Services; Tre Jerdon, QuickNotes Editor, • Tim Mennel, Senior Editor,Julie Von Bergen, Assistant Editor, Susan Deegan, Senior Graphic Designer, A Publication of the American Planning Association I PAS QuickNotes No. 22 REFERENCES 1. Published by American Planning Association Mandelkcr. Daniel R. 2007. Planned ilnit Developments. Planning Advisory Service Report no. 545. Chicago: Arnerican Planning Association. Mandelker, Daniel R. 2007. 'Planned Unit Developments and Master Planned Communities: Review and Approval Process"Zoning Practice, March. 2. Other Resources American Planning Association. 2006. "Legal Foundations: Planned Unit Development` Pp. 599-601 in Part 6: Implementation Techniques, in Planning and Urban Design Standards, Hoboken, NJ.: John Wiley and Sons. WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 4, 2014 A regularly advertised hearing on the matter of County Council Initiated Bill 281 (Planned Unit Development) was called to order at 10:31 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Myles Miyasato presiding. COMMISSIONERS PRESENT: Myles Miyasato, Charles Heaukulani, Gregory Henkel, Donald Ikeda, Raylene Moses, and Stephen Ono. ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Staff Planner), Sarah Hata-Finley (Commission Secretary) and Melissa Dacayanan (Planning Commission Support Technician). And approximately 1 member from the public in attendance. INITIATOR: COUNTY COUNCIL (Bill No. 281) County Council Bill No. 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, as amended) relating to Planned Unit Development (PUD). The purpose of these proposed amendments is to require review and approval of a PUD by that Planning Commission that holds jurisdiction over that area containing the property for which the application is sought. MIYASATO: Item 3 on the agenda. Bill No. 281. DARROW: Okay, our last-- MIYASATO: Hold on one second yeah— DARROW:--application— MIYASATO: --just for the record yeah, Sarah, there was no public testimony for the previous item, application. HATA-FINLEY: Yes. MIYASATO: Yeah. DARROW: If I can direct your attention to our last presentation this morning, as mentioned, this is a County Council initiated bill. This is an amendment to Chapter 25, the Zoning Code, Article 6, Division 1, and also Article 5 of the Zoning Code relating to Planned Unit Developments or PUD's. The purpose of this bill is to seek to amend that portion of the Zoning Code relating to Planned Unit Developments. More specifically, the purpose of the proposed amendments is to require review and approval of a PUD by the Planning Commission that holds jurisdiction over that area containing the property for which the application is sought. Bill No. 281 was introduced based on a finding by the Council that the PUD as a form of development, of a development permit, should be subject to a review process that allows opportunities for public involvement with procedural guidelines and approval implemented as part of the decision-making process. This is difficult to see. I might want to ask you to refer to Page 3 of your Background and Recommendation. The main purpose of this is to identify the differences in the current process versus the proposed process. There are similar aspects of the process that remain the same, but there are a number of aspects that have changed. Number one, the approving authority will change from the Planning Director to the Planning Commission. The minimum land area for a PUD remains the same at two acres. There is public notification requirements. The requirements before were in relation to the notice of a Director's decision. Now, they will have to comply with the requirements of the Planning Commission hearing for notice. There is no change to the contents required in a PUD application. There were, originally there was no public hearing for a PUD application. Now there will be a public hearing before the Planning Commissions. Previously, there was no option for a contested case hearing. Now, proposed, there will be the opportunity for a contested case hearing. Criteria for approval will, currently it doesn't, really it's kind of silent about complying with, consistency with current CDP's or community development plans. This will require compliance with the current applicable community development plans. Processing time changes. Originally, it was 60 days with the Director's decision. In this proposed process, it will be 90 days for the first hearing, with the decision coming from the Commission 60 days after close of hearing. Failure to process in a timely manner. Originally it was deemed to be a denial if it wasn't completed within a --timely processed. Now, it will be deemed approved unless there is written objection to the PUD received. Option for a partial PUD approval. Originally, there was this option. The proposed will not allow a partial PUD approval. Time extensions previously would, currently would go before the Planning Director. Proposed would come before the Planning Commission. And lastly, the appeal process, currently it goes before the Board of Appeals based upon Director decision. Now, it would go to Third Circuit Court because it would be a Planning Commission decision. Information requirements. Bill No. 281 does not introduce a significant change to the information submittals required with a PUD application or to the standards or criteria for approval of a PUD other than to substantially conform to any applicable community development plans. 2 These are the reservations that the Planning Director has regarding this bill. The Zoning Code specifies that the purpose of a PUD is to encourage comprehensive site planning that adapts the design of development to the land, by allowing diversification in the relationship of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups, while still ensuring that the intent of this chapter is observed. Emphasis added. A PUD alone cannot introduce a use that is not permitted within a particular zoning district nor shall its approval compromise the intent and purpose of the Zoning Code. A PUD exists to encourage comprehensive site planning, when the other option is to design a project in compliance with the standard requirements of both the Zoning and Subdivision Codes. Just to kind of summarize that --if a PUD comes in, in a residential zoning, you can't add aspects of commercial in that. They would have to come in for a change of zone to introduce commercial. Additionally, if you have RS -10 zoning, and you have a 100,000 square feet, you're allowed ten residential structures, or ten lots, or ten buildings per each 10,000 square feet. This particular planning tool allows to be able to change that concept, so instead of having a building site that has to be at least 10,000, it can be minimized to 7,500 square feet and allowing one larger excess lot to do other, like a park or something like that. Just, it gives, it's a planning tool. And the next reservation is that there is a concern that transferring approval authority for a PUD from the Planning Director onto the Planning Commission may complicate a process that does not, or does have favorable attributes, such as encouraging developments that seek a better fit into the surrounding environment. Zoning controls overall, zoning controls overall land use. PUD, PUD's then manage these permitted land use to the best complement the area in which the project is situated. There is a perception that a PUD is the master land use or development permit. It is not. If a PUD is denied by the Planning Commission, the landowner is still able to development its property in accordance with the standard requirements of the Zoning Code and the Subdivision Code. A denial of a PUD does not make a project necessarily go away since it is the zoning of an area that dictates what gets developed and how the land is utilized. So, it's again, a planning tool. The Planning Director's recommendation for reasons detailed above, the Planning Director recommends that the Planning Commission send a favorable recommendation with reservations, to the County Council regarding Bill No. 281, relating to Planned Unit Developments. That concludes our presentation. Thank you. MIYASATO: Commissioners, any questions for staff? IKEDA: Yes, I do. MIYASATO: Commission Ikeda. IKEDA: Mr. Darrow, I have two questions. It says, I'm reading the bill, an analysis of the relationship of the proposed development to the General Plan and any applicable community development plan. So, what if there's a difference in the CDP and the General Plan? Which one takes precedence? DARROW: In the General Plan, it specifically states that if there is a conflict between the General Plan and specific community development plans, the General Plan is the authority. IKEDA: Okay, then we better tell the public that, because when I was on the Council, they used to challenge us all the time when there was a conflict between the General Plan and the CDP. DARROW: Which, I mean, not to say that everything, we live in a perfect world, but when a CDP is created, if it does conflict in certain areas with the General Plan, it's good to bring those into compliance-- IKEDA: Right DARROW: --as part of the process. IKEDA: No, so I kind of agree with a statement like the last one we went through. The CDP, the Hilo CDP is what 25 years old, it's out of date— DARROW: --yeah— IKEDA: --so it doesn't comply. The second one I have that I'm really against is that, if we fail to give any kind of a, a motion or how shall—it says, I have it written down. If the Commission fails to render a decision within a prescribed 60 -day period, the application should be considered as being approved, provided that no written objections to the PUD permit application is received by Commission. I really object to that. I would think that it should be like it is now; it should be denied. I would, you know, favor being a little more cautious than, you know, being—I think it's being kind of over optimistic or generous by just approving something if the Commission didn't make a decision. And that's my gripes. KANUHA: Mr. Chairman, perhaps I can respond to that and MIYASATO: --yeah— KANUHA: --and maybe add some history. With regard to the two concerns by Commission Ikeda, the difficulty, the difficulty between—well, not the difficulty, but the reason there's language in there that when a PUD is being considered that if taken account, both the General Plan and the community development plan says, is actually becoming more complicated ever since the community development plans have recently been adopted by ordinance. Okay, previously, they were adopted by resolution, which made it clear that the General Plan, because it was adopted by ordinance and Charter, was the prevailing document. Now that we have both documents approved by law, that, the General Plan still prevails but it does complicate things a bit, which is, which is why there was that inclusion for the CDP's. .19 Also, in relation to that is that over the years, they've been several appeals on PUD approvals, and you know, these have been administrative, that's why it doesn't come to the Commission. It's just done by the Department. But, on those appeals, and more recently, those appeals were based on non-compliance with the CDP's because they were ordinances. So, this bill is an attempt to try and at least put that all in the, you know, the same compartment. What was your second question again, Don? IKEDA: Well, my concern was that if no decision was made, it was considered approved, and I have problem with that. KANUHA: Throughout our Codes, we have differing languages, you know, some in, in some areas if no action is taken within the certain period of time, then the application is deemed to be denied. In other areas, if no action is taken within a certain period of time, then the—the application is deemed to be approved. However, the legislature passed an amendment to Chapter 91 in 2007, I believe, which basically requires that if any administrative permit is not approved within a certain time period, then it's to be deemed approved, so we've got really no choice in that. The difficulty we have is that our Codes haven't, we haven't been able to revise our Codes to keep up with changes in the State statute. I think we all have reservations about that, but you know, that's, that's the way the statute reads at the current time. The other thing that I wanted to add --again, this is from a historical perspective --is that when the Zoning Code was first adopted and being implemented, the PUD, the Planning Unit Development component, was always in the Zoning Code. But, at that time, based on the County Charter, the Planning Commission made—heard and made decisions on variances, variances from the Zoning Code. And because the PUD is most considered a form of a variance, back in the day, the Planning Commission at that point in time used to be the ones that issued PUD's. There was a charter amendment—I forget when it was, probably in 1990 or so—which basically took variances away from the Planning Commission and gave it to the Planning Department. So, that's why PUD's went over to the Planning Department as well. But, again, fast forwarding to where we are now, it's becoming, it's becoming a vehicle that's becoming contentious because of, you know again in my opinion, a real lack of understanding of what it is. You know, people think that, that landowners and developers are using the PUD as a rezoning process when actually it's not. The public believes even though the statutes are pretty clear, that there's no density increase through a PUD, but they still think there is, you know, there's some kind of density increase. And you know, and—and, because of those situations, the Council had actually tried to initiate several bills to bring this process all the way back to the Council instead. You know, they wanted some, some mechanism where the public had an opportunity to testify and comment such as they did this morning. Whereas, the process now is just written notification, publication, and so many times, you know, they're not aware of it until the action is, you know, is, is either passed and then those have tended to go to the Board of Appeals. The Board of Appeals has either sustained the decision, most—most cases it's sustained the decision. Then, the Board of Appeals decision has been further appealed to the courts, and the courts have reversed you see, so that's why as a compromise position in working with several of the Council people that wanted to see more transparency in the process, you know, that is why we're, we're supporting this, this amendment to move it up to the Planning Commission. It provides the kind of opportunities for public input, you know, that you folks had this morning. It puts more work on your agenda, but what it does, is it, it hopefully provides a better forum for decision-making and hopefully, you know, less appeals, once the process become more transparent, is basically what it attempts to do. Thank you. MIYASATO: Commissioners— ONO: Yeah— MIYASATO: --Commissioner Ono ONO: --further question, Duane. On the same issue regarding the deemed approved on this written, etc., etc., if this, if this recommendation doesn't go through, does that mean that you also must changed yours as approved? KANUHA: (Nodding affirmatively.) ONO: Okay, that's question number one. KANUHA: Yes, our rules that, that reflect whatever the, the statute or the County Code shows— ONO:--Okay— KANUHA: -- they all have to be approved to be in compliance. ONO: The other that I have a concern, concern about is the appeal, the last bar. How is it that it goes directly to court? KANUHA: All of the decisions of the Planning Commission go to court ONO: Oh, I thought it goes to the Board of Appeals or the Council— KANUHA: Only the administrative, the administrative components go to the Board of Appeals. ONO: So, these individuals that face us, if, if they don't agree with the—I always felt that this was a recommendation to the Council that we, that they decide this, you know, the way we, we rule. So there was an appeal process with the Council. KANUHA: It depends on what you're talking about. If you're speaking about the example we had this morning, which is an SMA permit— Cin ONO: --yeah— KANUHA: Okay, in that case, the Planning Commission is the final decision -maker. So whatever decision they make goes to the court. ONO: --I see, okay. The other question I have regarding this. Yeah, basically, we're going be doing the same thing—the staff will be doing all of the Background and then it'll come to us, okay. I guess my concern is that a—as a commissioner, the expertise is not there. So sometimes you're talking above my head, you know, the presentation. So, to add this to the Commission's decision-making, that's a heavy burden. I kind of sense that it's a heavy burden, and I—I'm very uncomfortable with the recommendation only because I would have difficulty understanding all the legalities and all the you know whatever else. I guess we could turn to counsel for that, but anyway, I am concerned that this is above me in terms of the process. KANUHA: You know, that's why I wanted to provide some historical perspective that it used to be the Planning Commission's permit, you know, back in the day. And when the Charter was amended, it went back to the Department, so it's you know, coming back. This, you're right, it's another, it's another permit that comes before the Commission for their consideration. It's, it's no different than Special Permits or Use Permits and, in this case, you know SMA you know type permits. ONO: Thank you. MIYASATO: Commissioners, any further questions? I have one. You know, Director, you just mentioned about the Charter. That this was placed back, the PUD's was placed back several years back for the decision of the Planning Department. Does this bill, does this bill against, going against the Charter at this point? KANUHA: You know, that's a good question, and that's one of the components that was considered when it was being put forth, so if you, you know, take a look at the bill itself, and I'll give you a specific reference. If you look at Page 2 of the bill itself, Item 25-6-3(2)(C), you're gonna see that the amendment there it says, "A list of all requested deviations" and variances have been struck. So, basically, what you're gonna find in this bill is that any place it talks about variances, is being struck. That way, it separates the PUD from a variance. A PUD not being a variance, and that's why it's, that's why our, our comments are designed to make sure that they're considered more as a planning tool rather than a variance from something, a deviation from something. MIYASATO: Okay, thank you. Commissioners, any further questions or discussion. If not, I'll accept a motion. HENKEL: Mr. Chair, I'd like to move that a favorable recommendation be forwarded to the County Council on the application of Change of Zone Docket No. REZ 14-180 pursuant to the Planning Director's recommendation and conditions. 7 MIYASATO: Do I have a second? MOSES: That's with reservations, correct? To the County Council? MIYASATO: Commissioner Henkel? HENKEL: I'm sorry, Bill No. 281. MIYASATO: Okay. MOSES: With reservations to the County Council. MIYASATO: With reservations? HENKEL: With reservations to the County Council. MOSES: Second. MIYASATO: Motion by Commissioner Henkel and seconded by Commissioner Moses. Any discussion on the motion? Call the roll. DARROW: Thank you, Mr. Chairman. With that, we'll take the roll call. Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: Commissioner Heaukulam? HEAUKULANI: Aye. DARROW: Commissioner Ikeda? IKEDA: No. DARROW: Commissioner Ono? ONO: No. DARROW: And Mr. Chairman. MIYASATO: No. DARROW: The motion does not pass. Oh --yep, does not pass three to three. MIYASATO: Commissioners, any motion? ONO: Before we proceed, can I ask the counsel, what does this mean? That it was denied. That it's going to go through anyway? I mean, if it's by law? The recommendation by the Director is to have it recommended approval. I'm not going to ask for a discussion. I mean, I'm not going to ask for a change in motion. I just wanted clarification. PATEL: Yes, so the motion was to afford a favorable recommendation if I understand correctly. So, so the favorable recommendation, the motion did not carry. There could be a motion to forward an unfavorable recommendation. ONO: I see, I see-- PATEL: Either way, a decision should probably be made. ONO: Okay, thank you. PATEL: So, another motion could potentially be brought. MIYASATO: Commissioners, any further discussion on this matter or would anyone like to put forward another motion? IKEDA: Unfavorable, yeah. I move that an unfavorable recommendation be forwarded to the County Council on Council, Council Bill No. 281, yeah, based on the certain concerns and reservations on the part of the Commission. MIYASATO: Do I have a second? ONO: Second. MIYASATO: A motion made by Commissioner Ikeda and seconded by Commissioner Ono. Any discussion on the motion? Call the roll. DARROW: The motion before us is to send an unfavorable recommendation regarding this County Council initiated bill. With that, we'll take the roll call. Commissioner Ikeda? IKEDA: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: Commissioner Heaukulani? 9 HEAUKULANI: No. DARROW: Commissioner Henkel? HENKEL: No. DARROW: Commissioner Moses? MOSES: No. DARROW: And Mr. Chairman. MIYASATO: Aye. DARROW: The motion does not pass. MIYASATO: Any discussion, Commissioners? If not, would anyone like to make a motion for an executive session? ONO: I move for an executive session, please. MIYASATO: To—reasons? ONO: For the sake of clarification regarding the legality of this-- PATEL: --related to the Commission's powers, duties, privileges, immunities, and liabilities pursuant to HRS 92-4 and -5? ONO: Sounds good. MIYASATO: Do I have a second? IKEDA: Second. MIYASATO: All in favor? COMMISSIONERS: Aye. MIYASATO: Any opposed? We'll go into executive session. At 11:00 a.m., it was moved by Commissioner Ono and seconded by Commissioner Ikeda that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission's powers, duties, privileges, immunities, and liabilities, pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. 10 At 11:01 a.m., the Commission went into executive session. At 11:10 a.m., it was moved by Commissioner Moses and seconded by Commissioner Ikeda that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. The hearing reconvened for regular session at 11:10 a.m. MIYASATO: Okay, call the meeting back to order. Commissioners, back on Agenda Item No. 3, Bill 281. Do I have any discussion? If not, I'll accept a motion. MOSES: I'd like to make a motion to send a favorable recommendation with reservations to the County Council regarding Bill No. 281, relating to the Planned Unit Development, PUD Permit, along with reservations of Commissioners. ONO: Point of order? Don't we have to ask for a motion to reconsider first? No? Okay. MIYASATO: Do I have a second? HENKEL: Second. MIYASATO: Motion by Commissioner Moses, seconded by Commissioner Henkel. Any discussion on the motion? Call the roll. DARROW: Thank you, Mr. Chair. With that, we'll take the roll. Commissioner Moses? MOSES: Aye. DARROW: Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Ikeda? IKEDA: No. DARROW: Commissioner Ono? ON O: Aye. DARROW: And Mr. Chairman. MIYASATO: No. 11 DARROW: The motion passes four to two. The discussion ended at 11:12 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 12 LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 18, 2014 A regularly advertised hearing on the COUNTY COUNCIL INITIATED AMENDMENT TO CHAPTER 25 OF THE HAWAII COUNTY CODE, RELATING TO PLANNED UNIT DEVELOPMENTS was called to order at 09:32 a.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chair Brandi Beaudet presiding. COMMISSIONERS PRESENT: Brandi Beaudet, Thomas Hickcox, Collin Kaholo, Barbara Nobriga, Keith Unger and Thomas Whittemore ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel), Daryn Arai (Planning Program Manager), Jeff Darrow (Planner), Maija Jackson (Planner) and Noriko Sauer (Commission Secretary) And seven people from the public in attendance. INITIATOR: COUNTY COUNCIL (Bill No. 281) County Council Bill No. 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983 (2005 Edition, as amended) relating to Planned Unit Development (P.U.D.). The purpose of these proposed amendments is to require review and approval of a P.U.D. by that Planning Commission that holds jurisdiction over that area containing the property for which the application is sought. BEAUDET: First agenda item for this morning, Initiator: County Council, Bill No. 281, County Council Bill 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983, relating to Planned Unit Development. Daryn? ARAI: Thank you, Mr. Chairman. Good morning, Commissioners. Good morning, everyone. Thank you for attending, and happy holidays. If I may direct your attention to the presentation screen. What you have before you is County Council initiated Bill No. 281, an amendment to Chapter 25 of the Zoning Code relating to Planned Unit Developments. The purpose of Bill 281 is to seek an amendment to the portion of the Zoning Code relating to Planned Unit Developments, or as we call them P.U.D.s. More specifically, the purpose of the proposed amendments is to require review and approval of a P.U.D. by the Planning Commission that holds jurisdiction over that area containing the property for which the application is being sought. The reason for this bill was based on a finding by the County Council that the P.U.D., as a form of development permit, should be subject to a review process that allows opportunities for public involvement with procedural guidelines for approval implemented as part of a decision-making process. I apologize for the small lettering, but if you could refer to Page 3 of your Background and Recommendation report, this matrix is also located at the bottom half of Page 3. And as you can see, the matrix attempts to lay out the components of the P.U.D. process and what the current Zoning Code provides for, and what changes will occur, should Bill No. 281 be adopted into law. So if I could briefly go through them. As it pertains to approving authority, the current Zoning Code, the current authority under the current Zoning Code is the Director; Bill 281 will change that authority to the Planning Commission. Minimum land area of two acres in order to apply for a P.U.D. will not change between the two, current bill and the proposed bill. Public notification: Current Zoning Code requires ten-day notice of the Director's decision; Bill 281 will require ten-day notice of a Planning Commission hearing to be conducted on the application. Content requirements for P.U.D., no changes from current. Public hearing: The current Zoning Code provides that the Director as the approving authority with no public hearing; that will change obviously, should it come to the Planning Commission. Contested case proceedings: None afforded at the Planning Director level; however, as you are aware, and similar to other permits that you hear, a person could file for intervention in a contested case proceeding, should Bill 281 be adopted. Criteria for approval of a P.U.D.: Bill 281 would require compliance with the applicable Community Development Plan in place for the particular district. Processing time period: Under the current Code it requires the Director to act within 60 days; under Bill 281 we will have to conduct a hearing before the Planning Commission within 90 days, with a decision by the Commission 60 days after the close of the hearing on the particular application. Failure to process timely: Under the current Code, if the Director fails to process in a timely manner, the application is deemed denied; however, under Bill 281, as provided for under State Law, if the Commission fails to act within the prescribed time period, it will be deemed approved unless objections to the Planned Unit Development permit is received by the Commission. Option for partial P.U.D. approval: Yes, under the current Code; and that option will no longer be provided under, should it go before the Planning Commission. Time extension or amendments to conditions of approval: That authority currently lies with the Director; again, that will change to the Planning Commission under Bill 281. And appeal of a P.U.D. decision: Current appeals of the Director's decision goes to the Board of Appeals; that will change since all actions of the Planning Commission is appealable to the Third Circuit Court. If I can bring your attention back to the presentation screen. Bill 281 does not introduce a significant change to the information submittals required with a P.U.D. application or to the standards or criteria for approval of a P.U.D. other than substantially conforming to any applicable community development plan. And I made reference to that earlier. We do have reservations regarding Bill 281 in that the Zoning Code specifies that the purpose of a P.U.D. is to encourage comprehensive site planning that adapts the design of development to the land, by allowing diversification in the relationships of various uses, buildings, structures, open spaces and yards, building height, and lot sizes in planned building groups, while still insuring that the intent of the chapter is observed. A P.U.D. alone cannot introduce a use that is not permitted within a particular zoning district nor shall its approval compromise the intent and purpose of the Zoning Code. A P.U.D. exists to encourage comprehensive site planning, when the other option is to design a project in compliance with the standard requirements of both the Zoning and Subdivision Codes. There is concern that transferring approval authority for P.U.D.s from the Planning Director onto the Planning Commission may complicate a process that does have its favorable attributes, such as encouraging developments that seek a better fit into the surrounding environment. Zoning controls overall land use. P.U.D.s then manage those permitted land uses to 2 DRAFT best compliment the area in which a project is situated. There is a perception that a P.U.D. is the master land use or development permit, and that is not the case. If a P.U.D. is denied, the landowner is still able to develop the property in accordance with the standard requirements of the Zoning and Subdivision Codes. A denial of a P.U.D. does not make a project necessarily go away since it is the zoning of an area that dictates what gets developed and how the land is utilized. So for the reasons I stated, the Director recommends that the Planning Commission send a favorable recommendation, with reservations, to the County Council regarding Bill 281, relating to Planned Unit Development permits. Commissioners, do you have any questions? KANUHA: Mr. Chairman? BEAUDET: Yes, sir. KANUHA: I'd just like to add a little historical perspective. You know, long, long ago in a land far away, the Planning Commission used to issue all variances and P.U.D.s at one time in the entitlement process. And I believe there was a Charter amendment in 19 — 1991? — yeah, I think someplace in 1991, which transferred all variances back to the Planning Department; it was considered more of a ministerial activity, so it was transferred back to the Planning Department. And that's why P.U.D.s also got transferred back to the Planning Department. So the perspective there is that it's not a procedure that the Commission has never participated in. And then I think over time we've come to the conclusion that there needs to be a lot more transparency in the approval of P.U.D.s; the current process doesn't provide to that. And I think that has been some of the concerns of the County Council, which is why they initiated this bill, and that's why we are moving it forward. I think the other comment I'd like to make is that the recommendation says that we are recommending approval, with reservations, and, actually, it's more qualifications in my mind than reservations. And I did, it's, we just wanted to point out certain characteristics about the P.U.D. that if the applicant did not apply for P.U.D., you know, there still could be some activity going on without it, you know, it's just that it wouldn't, you wouldn't have the flexibility of creating a more, you know, sustainable or better looking development. So, you know, it's more qualified recommendation rather than recommendation with reservations. Thank you. BEAUDET: Daryn, I have one question. And this is relating to the appeal process. And if you could get some explanation as to the process in appeal why the appeal would go to the Third Circuit Court, and then followed by who accommodates the cost for that. ARAI: The Board of Appeals normally hears appeals of decisions of the Planning Director and Public Works. And so that's basically the scope of their authorities, which is one of the main distinction of why, as a commission, your actions are not, wouldn't be the proper venue, BOA would not be the proper venue just because the scope of their review is typically to the Planning Director and Public Works decisions. is that clear enough? I'm sorry. BEAUDET: Yes, but one, so if, would the appellant be responsible for their own cost in pursuit of the appeal? ARAI: Personally, I'm not familiar with that part. 3 DRAFT PATEL: Excuse me, Chair, maybe I can provide some light. To answer your question, as far as the appellant, just to clarify, are you referencing something comes before the Commission, the Commission denies the P.U.D., the appellant, meaning the applicant, appeals to the Third Circuit Court? BEAUDET: Correct. PATEL: In that instant, yes, normally the appellant when you are appealing, they would be responsible for their own cost. BEAUDET: I just wanted to clarify that. KANUHA: And that, again, Mr. Chairman, that also applies to approval, yeah; if the Commission approves a P.U.D., and, you know, there is a party that's involved in the process that disagrees with the decision, they too can appeal as well. BEAUDET: Thank you. Go ahead. UNGER: Daryn, And the current Zoning, partial approval is allowed in the P.U.D., and then in this new bill it's not. What is the reasoning behind that? ARAI: I'm not sure of the exact reasoning behind it. We just noticed that it was not a component within this bill that was transmitted down by the County Council. So I'm not exactly sure why the particular component was not included in this draft bill. HICKCOX: Mr. Chair? I think that maybe perhaps, after going through some of the reading on this, that what's being sought after along with all of these other things is more stringent compliance to the CDP, right? Correct? That seems to be the direction this is headed for, if I'm not mistaken. BEAUDET: I would agree, but then, again, you know, let's be aware that the zoning conditions as they are, as they currently dictates the density of the proposed development, right, which is in accordance with the CDP to begin with, or should be, right, unless you are asking for rezoning. But if all stays current, densities don't change, rather, if the property were to be developed under the current zoning or under a P.U.D. application. Correct, right? ARAI: Yes. And maybe to further clarify the Community Development Plans, previously Community Development Plans were frequently adopted by a resolution, which is just an expression of policy, you know, policy direction. However, more recently, like these North and South Kohala CDPs, the Kona CDP, those have been adopted by ordinance, so there have been some questions about, by adoption by ordinance, it's then law, and that has been, I believe, an appealable point, or at least made part of an appeal, past appeal. So I think to kind of avoid that type of potential, it's best to just incorporate it within the proposed code amendments; that way, it's clearly articulated and expected as part of the review process. BEAUDET: I think one of the other main primary focuses here with Bill 281 is creating, or increasing, transparency for those concerned in our communities, or in surrounding communities of the area. And I can appreciate that. It also gives, provides community members and neighbors the 4 DRAFI' opportunity to provide their opinions or their thoughts on the application or what's being developed in and around their community. So the way I read it, you know, the focus is there as well. Any more questions of staff, Commissioners? Thank you, Daryn. We have three individuals in the audience who have signed up for testimony. I'd like to call you up: Joel Cooperson, Joel Cohen and Mark Van Pernis. Before we begin, I'd like to swear you in. Do you swear — please raise your right hands — do you swear or affirm to tell the truth on this matter now before the Planning Commission? TESTIFIERS: Yes. I do. BEAUDET: Starting at the far right, if you could please just state your name and your place of residence, and if you could speak into the mike. COHEN: My name is Joel Cohen. I'm a resident of Waimea. BEAUDET: Thank you. Sir? VAN PERNIS: I'm Mark Van Pernis. I live in Makalei Estates in Kona. BEAUDET: Thank you. COOPERSON: My name is Joel Cooperson, and I live at Heights at Hualalai on Hualalai Road. BEAUDET: We are ready for your testimony. If we could start with you, sir. COHEN: Thank you very much for the opportunity to speak before the Commission. BEAUDET: I'm sorry, could you restate your name just for the record? COHEN: Joel Cohen, C -O -H -E -N, middle initial J, speaking as an individual — I'll emphasize that. I hope everybody had received my written testimony, it's pretty general. I think what it really comes down to is the words, "public policy," "long-term thinking," "strategic planning," that we have a consistent process that is open to the public, and has opportunities not just within 100 yards of their, or 100 feet or 500 feet, from their property but anybody that's affected, that the County when there is, not necessarily this two -acre, you know, proposal at Mauna Lani or whatever that most likely decisions to be made very quickly on that, but when we are dealing with large parcels that affect a lot of people and affect water supply and affect a host of things, including things that are not even involved with the County directly, like schools and so forth, but do affect the community on the long haul, that we have to have as open a process as possible. I think by having an open process it basically benefits both the people in the community and also the county as a whole voting legal issues and so forth and so on. I always like to use the expression, "figure it out," and I think that's what's really important that we all work together. I think we all have the same objectives; we live on a beautiful island that we want to protect and we want to take care of, and we don't want to abuse, we don't want people just doing whatever they want to do. However, your people can develop their own property and they can develop it. If they do it in an aloha manner, this is, we are going to grow, but let's grow and make sure that we have certain standards and so forth. DRAFT I wanted to just briefly address the issue of Community Development Plans and the conflicts that had become a political issue, I say, unfortunately. A lot of time went in to these development, these plans, a cross section of community input. I am familiar with one that I think is very well balanced, isn't anything radical in there. My feeling is if there is issues between the General Plan and the CDP, they should really work hand in hand on the long haul, and we need to figure it out so that it occurs that way. There should not be a conflict, as far as I'm concerned. We all have the same objectives to protect the land and do what's right for the county. And I'm hopeful that out of this discussion that there will be more discussion in the area. And the bottom line is public input, making our, can't do anything about the federal government, difficult with the state government, hopefully locally we can figure it out so we can all work together on the same plane and find solutions, positive solutions that everybody can live with and where the county can grow but grow in a pono manner. Mahalo. BEAUDET: Thank you for your comments. Appreciate that. Sir, if you could state your name. VAN PERNIS: I'm Mark Van Pernis. I've been an attorney in Kona for over 30 years. For clients and as a member of a hui I've developed a lot of land. The P.U.D. process is a huge loophole, a goldmine exploited by land planners and attorneys. It's a way to get smaller lots than what the zoning allows. For instance, in one proposed project before the County they proposed 7,000 -square foot lots in an area of 15 and 20,000 -square foot lots. That depreciates the value of all the adjoining property. This is a huge loophole, which this bill closes, and I compliment the County Council on coming up with it. The P.U.D. process saves developers a huge amount of money in infrastructure costs, and that, of course, is at the expense of the county. I'll give you one example where I was involved in litigation in South Kona; the covenants of the subdivision allowed only for five -acre lots, the developer took one of the lots, one large remnant lot, and proposed a three -acre development, huge development, with the Conservation classified land as a remnant lot. The County approved it, the County Planning Director at the time approved that, and there was a huge amount of financial agony by the developer and there was litigation by the neighbors and the development did not take place. This, without the, if they, they had no opportunity to publicly testify about their ranches about the covenants; it was the sole discretions of Planning Director that caused all this problem. You, I'm sure, are familiar with other litigation where the P.U.D. process has been stopped. This allows a developer to present lots not in conformance with the zoning; that's what people call Planned. Unit -. BEAUDET: Excuse me, Mr. Pernis, if I could interject. Before us is the decision to support or not support Bill 281. I think we are all pretty much aware of the P.U.D. process and where it currently is and where it may go. So I would just ask that you keep your comments in support of or not in support of what is the decision today. VAN PERNIS: Well, I am in support of the bill, and ask for it be recommended and passed by the Planning Commission, without reservations. The reality of the P.U.D. is that it's a rezoning and it's a subdivision, and, therefore, there should be public input. And that is not allowed under the current system. This bill resolves that issue, and presents subdivision to you folks for consideration. I would close by saying I emphasize that you folks represent the County of Hawaii and its citizens, not developers. Therefore, I would ask you for an unconditional support of this bill. Thank you. BEAUDET: Thank you, Mr. Pernis. 6 DRAFT COOPERSON: My name is Joel Cooperson. I've been a resident of Kona for over 45 years. Thirty-one and a half of those I taught public schools, Holualoa, Kealakehe Intermediate. I don't want to beat a dead horse — sorry, Mrs. Nobriga — but I think everything that I was going to say was covered; Mr. Kanuha mentioning transparency is extremely important, and Mr. Cohen discussing working together for the betterment of the community is pretty much what I was going to say. So that pretty much covers what I was going to discuss. Mahalo. BEAUDET: Thank you, Mr. Cooperson. Commissioners, any questions or comments for the testifiers? With that, I would like to ask the Commission to move to close this portion of the public hearing. HICKCOX: So move. BEAUDET: Second? NOBRIGA: Second. BEAUDET: All those in favor? ALL COMMISSIONERS: Aye. BEAUDET: Thank you. This portion of the public testimony is now closed. Thank you for your comments. If there are no further comments or discussion on the matter with the commissioners, I would like to ask for a motion for action. HICKCOX: Mr. Chair? BEAUDET: Yes. HICKCOX: I recommend that the Leeward Planning Commission send a favorable recommendation, with reservations, to the County Council regarding Bill 281 relating to the Planned Unit Development, P.U.D., permit. WHITTEMORE: Second. BEAUDET: Thank you. It has been moved by Commissioner Hickcox for a favorable recommendation, with reservations, and seconded by Commissioner Whittemore. Discussion before vote? PATEL: Just to clarify, is that with reservations pursuant to the Planning Director's recommendation? With any additional reservations or? HICKCOX: With the reservations as stated by the Planning Director. BEAUDET: Okay, thank you. Staff? 7 DRAFT ARAI: Could I, when the Director was explaining his position, he made a distinction that it was more of a qualification than a reservation. So I just wanted to make sure how, if it's not that big of a difference, maybe -. BEAUDET: Would you restate that to say, "with qualifications?" Or we need to identify that, if we made the word change? ARAI: If the motion is based on the Director's recommendations, then it will probably be with the clarification that it's a qualification. The only -. One moment. (Secretary's note: Mr. Arai had a brief dialogue with the Planning Director off the record.) So the commissioner's motion and the intent is to basically go with the Director's recommendations and the qualifications that is contained within his report to you, then I would state specifically as "with qualifications." HICKCOX: Mr. Chair? I know I have a motion. May I amend my motion prior to Commission voting? I withdraw my, excuse me, withdraw my initial motion, and resubmit to you that the Leeward Planning Commission send a favorable recommendation, with reservations dealing specifically with qualifications, to the County Council regarding Bill No. 281 relating to Planned Unit Development, P.U.D., permits. WHITTEMORE: I second that. I'll also withdraw my initial second on the first motion. BEAUDET: Okay. So for the record, let me try to summarize, the initial motion as provided by Commissioner Hickcox has been withdrawn, and the second was withdrawn as well by Commissioner Whittemore. Restated motion has been made by Commissioner Hickcox and seconded by Commissioner Whittemore. Before we go on to vote, is there any further discussion by Commissioners? Daryn, would you like to take the roll call? ARAI: Sure, thank you very much. Commissioner Hickcox? HICKCOX: Aye. ARAI: Commissioner Whittemore? WHITTEMORE: Aye. ARAI: Commissioner Kaholo? KAHOLO: Aye. ARAI: Commissioner Nobriga? NOBRIGA: Aye. ARAI: Commissioner Unger? UNGER: Aye. ARAI: And Mr. Chairman? BEAUDET: Aye. ARAI: Mr. Chairman, your motion carries with six aye votes. BEAUDET: Thank you. The discussion ended at 10:05 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission DRAFT