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Home My WebLink AboutCOM 0448.000 1998-2000 M<v a,. ~ ` William G. Davis Mawging Director Stephen K. Yamashiro ' Mayor ~ Henry Cho yii'.~,M'itia Deputy Mawging Director l~IIUntg ls~ ~ttfi>ittit 25 Aupuni Street, Raom 215 Hilo, Hawaii %720-4252 (808) 961-8211 Fax (808) 961-6553 KONA: 755706 Kuakini Highway, Suite 103 Kailas-Kona, Hawau 96740 (808)329-5226 Fax (808)326-5663 September 17, 1999 Honorable James Y. Aralcaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 ~ ~7 ~ O n rn ~-p Dear Chairman Arakaki and Members: c 'D L(_ N . O 1, 1, County Council Referral Bill No. 75 , ; ` Applicant: Nanawale Estates Co. , ~ . Request: O to RA-2a ~ co Tax Map Key: 1-4-47:87 ~ J w ' - cD County Council Referral Bill No. 76 Applicant: Nanawale Estates Co. Request: O to RA-2a and A-Sa Tax Map Key: 1-4-59:77 County Council Referral Bill No. 77 Applicant: Nanawale Estates Co. Request: O to FA-2a Tax Map Key: 1-4-76:38 As required by Chapter 4, Sec. 5~.3(C), Hawaii County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regarding We above-referenced requests. Sincerely, Stephen K. amashiro Mayor I.nanaw0l.MAY Comm. No. ~~v Enclosures File No. ZN 6 PW cc: Planning Department Ref. Tol PG Bill 13~- Ref. Date~2 0 19990 1999 tr or Stephen K. Yamashiro Mayor KLIIIIxI~~ D~ ~C~titt PLANNING COMMISSION 25 Aupuni Street, Room 109 • Hilo, Hawaii %720-4252 (808) %1.8288 Fu (808) %1-%IS SEP 1 7 1999 Honorable James Y. Arakaki, Chairman • and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Deaz Chairman Arakaki and Members: County Council Referral Bill No. 77 Applicant: Nanawale Estates Co. Request: O to FA-2a Tax Map Key: 1-4-76:38 The Planning Commission at its duly advertised public heazing on August 19, 1999, considered the County Council's Bill No. 77 to amend the bill relating to a request filed by Nanawale Estates Co. for a Change of Zone by changing the district classification from Open (O) to Family Agricultural (FA-2a), for approximately 9.328 acres of land. The original request was from Open (O) to Family Agricultural (FA-la). The property is located within Nanawale Estates Subdivision bordered by Hapuu Road and Kona Road at Puua, Puna, Hawaii. The Commission voted to send an unfavorable recommendation to the County Council based on the following findings: The Land Use Pattern Allocation Guide (LUPAG) Map component of the General Plan is a representation of the document's goals, policies, standazds and courses of action to guide the coordinated growth and development of the County. It reflects a graphic depiction of the physical relationship among the vazious land uses. The LUPAG Map establishes the basic urban and non-urban land use pattern for azeas within the County. In the case of this request, the subject property falls within the Orchards designation on the LUPAG Map, which would allow for the proposed request. However, in order to consider an area for any type of zoning designation, the Honorable James Y. Arakaki, Chairman and Members of the County Council Page 2 applicable goals, policies, and standards of the General Plan must also be adequately addressed. It is only through such a comprehensive policy analysis approach that evaluations and decisions can be made to better time and stage developments to achieve quality growth determined by the General Plan and related planning documents. The implications of these evaluations and decisions must also be considered as they may have an impact on other similar areas in the County. The subject change of zone request would be consistent with the General Plan LUPAG Map designation and other existing uses in this immediate area, however, due consideration must be given to those elements of the General Plan that the proposed use would not support and complement. The proposed Change of Zone from an Open (O) to a Family Agricultural (FA-2a) zoned district would not conform to the Land Use Element of the General Plan: * Zoning requests shall be reviewed with respect to the General Plan designation, ' district goals, regional plans, State Land Use District, compatibility with adjacent zoned uses, availability of public services and utilities, access, and public need. It is the Planning Commission's opinion that no definitive public need requirements have been met, and there is no affirmative, defmitive justification for removing the property from the Open zoned district. Open zoned properties imply a degree of public trust, and there should be some public benefit to justify a change of zone. Based on the foregoing, it is determined that under present circumstances, the granting of this change of zone request would not result in a more appropriate land use pattern that will further the public necessity and benefit. As required by the County Council, transmitted is a draft ordinance amending Section 25-8-22, the Puna District Zone Map, of the County Zoning Code. Honorable James Y. Arakaki, Chairman and Members of the County Council Page 3 Should you have any questions, please contact Phyllis Fujimoto or Alice Kawaha of the Planning Department at 961-8288. Sincerely, Leonard S. Tanaka, Chairman Planning Commission LNanaw 13. PC cc: Steven S. C. Lim, Esq. Nanawale Estates Co. Department of Public Works Department of Water Supply Corporation Counsel BNanaw07.pkf-8/ 11 /99 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND REPORT COUNTY COUNCIL REFERRAL BILL NO. 77 NANAWALE ESTATES CO. (`HANC.F, nF ZONE APPLICATION (REZ 98-29) Amend the bill relating to a request filed by NANAWALE ESTATES CO. for a Change of Zone by changing the district classification from Open (O) to Family Agricultural (FA-2a), for approximately 9.328 acres of land. The original request was from Open (O) to Family Agricultural (FA-la). The property is located within Nanawale Estates Subdivision bordered by Hapuu Road and Kona Road at Puua, Puna, Hawaii, TMK: 1-4-76:38. CHRONOLOGY 1. On April 16, 1999, the Planning Commission forwarded a favorable recommendation on Nanawale Estates Co.'s application for a Change of Zone from Open (O) to Family Agricultural (FA-la) for approximately 9.328 acres of land in the Nanawale Estates Subdivision. 2. At the June 22, 1999 County Council's Planning Committee meeting, the applicant requested an amendment from FA-la to FA-2a. The County Council deferred action on the matter and referred the amended request and Bill No. 77 back to the Planning Commission for consideration. The applicant has requested the downzoning to FA-2a to avoid the fair share contribution fees requirement which the Council includes as one of the conditions of approval for parcels of one acre or less. In this situation, if the zoning were to remain at one acre (FA-la), the fair share contribution would far exceed the purchase price of the subject parcels. (See Exhibit A -July 15, 1999 Applicant's letter and July 14, 1999 County Council's letter) GF_.NERAi INFORMATION 3. Landowner: The landowner of the subject property is Tile Guaranty Escrow Services, Inc. By letter of authorization, Title Guaranty Escrow Services, Inc. has given permission to Nanawale Estates Co. to apply for the change of zone. APPLICANT'S REQUEST 4. Request: The applicant originally requested the Family Agricultural (FA-la) designation. The applicant is now requesting the Family Agricultural (FA-2a) designation in order to develop an agricultural subdivision limited to four (4) buildable lots, with an average lot size of two acres. The FA district provides for a blend of small scale agricultural operations associated with residential activities and may be chazacterized by farm estates, small acreage farms, or subsistence lots. The FA district is intended to be in areas within the State Land Use Agricultural district, on lands not classified as A or B lands under the Land Study Bureau's master productivity rating, and not classified as prime, unique, or other important agricultural lands. 5. Supportive Information: (See Exhibit B -Change of Zone Application and revised site plan. Please note that all references to FA-la should be FA-2a for four (4) lots approximately two (2) acres in size) STATE AND COUNTY PLANS 6. State Land Use: Agricultural. According to the State Land Use Commission, the State Land Use boundaries within the Nanawale Estates Subdivision were initially designated in 1964 and again in 1969, creating the cun•ent division between the SLU Agricultural and Urban areas approximately along Lehua Road. All properties in the SLU Agricultural designated azea are zoned A-1 a by the County. Within the SLU Urban designated area, properties are zoned RS-10 and A-la. 7. General Plan Consistency: Land Use and Agricultural Elements goals and policies. 8. GP LUPAG MAP: Orchards. Agricultural lands which though rocky in character and content, support productive macadamia nuts, papaya, citrus and other similar agricultural products. 9. County Zoning: Open (O). The Open district applies to areas that contribute to [he general welfare, the full enjoyment, or the economic well-being of open land type use which has been established or is proposed. The subject property was zoned to its Open (O) designation on December 20, 1967 (Ordinance No. 111) when the Zoning Maps -2- for the Puna District were initially adopted. Prior to that date, zoning within the Puna District did not exist. The Nanawale Estates Subdivision received Final Subdivision Approval on January 22, 1969. Preliminary subdivision plans were on file with this department when the original zoning maps for the Puna District were adopted in 1967, and the subject parcel was designated for school use by the developers; however, neither the County nor State has sanctioned such a use. Two other properties within Nanawale Estates, TMK: 1-4-47:87 and TMK: 1-4-59:77, are also zoned Open and were designated for school use/higher education reserve by the developers. 10. SMA: The subject property is not situated within the SMA. DESCRIPTION OF PROPERTY AND SURROUNDING AREAS 11. Subject Property: The subject property is an unimproved, approximate 9.328-acre rectangular parcel on the corner of Hapuu Road and Kona Road. The property is a portion of Unit IV of the 4,289-lot Nanawale Estates Subdivision, which received Final Subdivision Approval on January 22, 1969. Lot sizes within the subdivision range from 8,000 to 16,000 square feet, with the average lot size approximately 8,040 square feet. Since the majority of the lots within the subdivision are less than 1 acre, they are non-conforming in size. 12. Topography: Fairly level with slopes of up to 6 percent. 13. USDA Natural Resources Conservation Service's Soil Survey Report: Soils on the site are identified as Lava Flows, A'a (rLV), which is a miscellaneous land type. This lava has practically no soil covering and is bare of vegetation, except for mosses, lichens, ferns, and a few small ohia trees. 14. Land Study Bureau's Detailed Land Classification System: "E" or Very Poor. 15. ALISH: Existing Urban Development. 16. FIRM: Zone "X", area outside the 500-year flood plain. 17. Floral/Fauna and Archaeological Resources: According to the applicant, the Nanawale Estates Subdivision was graded upon its establishment, therefore, it is unlikely that any archaeological features exist on the property nor that it provide a -3- habitat for endangered plants or animal species. 18. Surrounding Zoning/Land Uses: Surrounding properties are zoned A-la, vacant, and approximately 8,040 square feet in size. There is a single family dwelling to the east on the corner of Pahoa Road and Hapuna Road. The requested FA zoning would complement the existing A-la zoning designation of the surrounding lots. 19. Rezonings in the Vicinity: Within the Nanawale Estates Subdivision on the corner of Mauna Kea Road and Kapuna Road approximately 1/2 mile west of the subject property, TMK: 1-4-83:20 was rezoned from Open to A-la by Ordinance No. 86 84 (REZ 533) effective August 19, 1986 to Donald Kendall. This property, situated in the State Land Use Agricultural District, was not designated as a park or school site. While a public water system was not available to the site, the approximately 49,714 square foot property could not be further subdivided under the State Land Use Agricultural District and proposed A-la zoning, and the request was approved. 20. Open zoned sites: The property is one of three sites designated for school use by the developers, and the request would remove approximately 9.328 acres from the Open zoned district within the Nanawale Estates Subdivision. According to the Department of Education's Facilities Branch, the minimum lot size for schools aze: (1) Elementary, 12 acres including playground, if adjacent to an existing playground, 8 acres; (2) Intermediate, 18 acres including playfield; (3) High School, 50 acres including complete facilities. Therefore, although the subject property was designated as a school site, it does not meet the minimum lot size for a school. In a sepazate rezoning request on TMK: 1-4-59:77, the applicant is proposing to reserve approximately 12 acres to be conveyed to the Nanawale Estates Community Association for future development of educational facilities. The subject property was designated as a school site and not a pazk site, and the request would remove approximately 9.328 acres from the Open designation, but would not impact the availability of park sites in the area. Within the subdivision, there are fourteen (14) sites zoned Open which were designated as pazk sites. All pazcels are vacant, except for TMK: 1-4-50: 23 (Park/Fire site), and owned by the Nanawale -4- Community Association. The total acreage of the fourteen sites is 27.56 acres. TMK Size (in acres) 1-4-50: 23 (Pazk/Fire) 1.849 1-4-64: 108 1.480 1-4-57: 27 1.485 1-4-64: 16 1.485 1-4-74: 108 1.485 1-4-31:39 1.480 1-4-74: 16 1.480 1-4-81:1 1.485 1-4-76: 113 1.485 1-4-85: 42 1.485 1-4-87: 62 1.106 1-4-57: 92 .265 I-4-32: 58 7.411 1-4-82: I 3.579 According to the Department of Pazks and Recreation, except for TMK 1-4-32: 58, all the pazk sites within the subdivision are neighborhood pazks, as defined by the County General Plan. Neighborhoods parks are defined as "........up to 4 acres, within the center of a neighborhood...." As identified above, the Nanawale Estates Subdivision has 14 potential pazk sites totalling approximately 27.56 acres. Parks aze a permitted use within the requested FA designation. 21. Hawaii County Code: The Pazk Dedication Code, which provides a method of calculating land required to be provided in perpetuity by a subdivider, is not applicable to Nanawale Estates. Under Section 8-4 (a)(2), which exempts subdivisions granted tentative approval prior to December 27, 1977, Nanawale Estates is exempt since it received Final Subdivision Approval on January 22, 1969. 22. Buildout Information: At buildout, the Nanawale Estates Subdivision may be projected to have a population of approximately 12,438. This is based on the number of lots in the -5- subdivision (4,289) multiplied by the 1990 Census data of 2.9 persons per household. 23. Building Permit Data: Data from Building Permit records indicate that 426 building permits have been issued in the 4,289-lot Nanawale Estates Subdivision since 1980. Data from the 1998 Experian Realty Directory lists 429 properties within the subdivision with structural improvements. PUBLIC SERVICES AND FACILITIES 24. Access: All roads within Nanawale Estates are private, with the exception of Nanawale Boulevard, Kehau Road, Hapuu Road and Maluhia Road. Access to the property is from Nanawale Boulevard to Hapuu and Kona Roads. According to the Department of Public Works, these roads have less than a 40-foot right-of--way, and the public and private roadways within Nanawale Estates are substandard for the surrounding and proposed zoning. 25. Water: County water is not available to the site. The subject property will be serviced by a private water catchment system. It has been the policy of the Planning Department to sanction change of zone requests only when water from existing County water system facilities or aCounty-approved water system is available for the proposed development. Although the subject property is proposed to be subdivided into four (4) lots approximately 2 acres in size, the applicant has indicated that no subdivision will occur until a County approved water system is available to the site. (See Exhibit C - August 11, 1999 Letter) 26. Wastewater: Wastewater is proposed to be managed by private septic systems installed by individual lot owners in compliance with all applicable State and County regulations. 27. Protective Services: Protective and emergency services are provided at the police headquarters at Keaau and fire substations located in Pahoa and Keeau. 28. Other Utilities/Services: Electricity and telephone are available to the site. -6- A EN I . 'COMMENTS 29. Police Department (July 28, 1999 Memo): "Staff has reviewed the above-referenced application and has no comments or objections to offer at this time." 30. State Department of Transportation Hilo (Received August 11, 1999): "Not applicable." 31. State Land Use Commission (July 30, 1999 Letter): "We have no comments to offer at this time. We appreciate the opportunity to comment on this matter. " 32. Department of Public Works, Engineering Division: (See Exhibit D -July 29, 1999 Memo) ACFN - NO COMMENTS 33. Department of Water Supply, Real Property Tax Office, Department of Parks and Recreation, Fire Department, Department of Education, Department of Land and Natural Resources (DLNR) Land Division, DLNR Historic Preservation Division, DLNR Land Management, Department of Health, Department of Transportation Honolulu, Department of Agriculture, Natural Resources Soil Conservation Services, Nanawale Community Association PUBLIC COMMENTS 34. The department has not received any written public comments or objections on the subject request. -7- CARLSMITH BALL ATTORNEYS AT LAW A PARTNERSHIP INCLUDING LAW CORPORATIONS 121 WAIANUENUE AVENUE POST OFFICE BOX 686 HILO, HAWAII 96721-0888 ~~~G ,1'~~ - ~ i,:. i' TELEPHONE (BOB) 935-8844 ~ ~ V FAX (809) 935-7975 - W W W.CARLSMITH.COM OUR REFERENCE NO. 0373743 July 15, 1999 Vtrginia Goldstein Planning Director Planning Department County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Re: Nanawale Estates Company ? Bill No. 75 -TMK (31 1-4-47:87 (10 99 acresl• Bill No 76 -TMK 1-4 59:77 (23.2 acresl: Bill No. 77 -TMK (31 1-4-76:38 (9.3 acresl Dear Ms. Goldstein: Pursuant to the request of the applicant Nanawale Estates Company, the County Council Planning Committee has deferred action on the above three rezoning requests to amend the minimum lot size for all three applications from one acre up to two acres per lot. This action will require amendments to all three bills, thus requiring a further public hearing at the Planning Cottunission. Please accept this as the Applicant's request to submit the amendments to the Planning Commission for hearing as soon as possible, so that we may return to the County Council for further processing of the three applications. If you have any questions, please feel free to call me. Very truly yours, CARLSJM~'I~TH BALL Steven` S.C.1~ SSL:bny E X H I B I T 2007887.1.037374-3 cc: Nanawale Estates Company ~ ~1~6$,~5~ Peter Hughes HONOLULU KAPOLEI HILO KONA MAUI GUAM SAIPAN LOS ANGELES WASHINGTON, D.C. • MEXICO CITY `OJMTV OF M,w'' BOBBY JEAN LEITHEAD-TODD 1~6i;,., Phone: (808) 961-8261 Councilmem6er i. FAX: (808) 969-3291 OF•M'~N COUNTY COUNCIL County of Hawaii Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 July 14, 1999 TO: Virginia Goldstein Planning Director FR: ~obby Jean Leithead-Todd Planning Committee Chair _ RE: Nanawale Estates Bills 75, 76 and 77 At the June 22, 1999 Planning Committee meeting the aforementioned bills were to be referred back to the Planning Commission if Corporation Counsel deemed it so. Because the applicant sought to downzone from RA-la to RA-2a, we requested an opinion from Corporation Counsel on whether the title could be amended at Council level, and Corporation Counsel concluded "that since the bills' titles will have to be changed, the bills must be re-introduced at the Planning Commission." Therefore, we aze transmitting Bills 75, 76 and 77 with corresponding amended drafts to the Planning Commission for re-introduction with amended titles. The purpose of the downzoning is to avoid the fair shaze contribution fees which the Council adds onto pazcels of one acre or less. In this case, if the zoning were to remain at one acre, the amount of the fair shaze contributions would greatly exceed the purchase price of the subject pazcels, so the applicant is seeking to downzone to prevent this unusual circumstance from happening. In addition to copies of the aforementioned bills, also enclosed is a copy of the Draft transcript from the June 22, 1999 Planning Committee meeting. Please feel free to call me at extension 8261 or Bazbaza Hashimoto at extension 8493 if you have any questions. Thank you. r_~, . ~ COUNTY OF HAWAII STATr. OF HAWAII BILL NO. 77 ORDINANCE NO. AN ORDINANCE AMENDING SECTION 25-8-22 (PUNA DISTRICT ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM OPEN (O) TO FAMILY AGRICULTURAL (FA-la) AT PWA, PUNA, HAWAII, COVERED BY TAX MAP KEY 1-4-76:38. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-22, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows: The district classification of the following area situated at Puua, Puna, Hawaii, shall be Family Agricultural (FA-la): LOT 318 NANAWALE ESTATES SUBDMSION -UNIT 4 (File Plan 1098) Beginning at a point at the north comer of this pazcel of land being also the east corner of Nanawale Estates Subdivision, Unit 4, Lot 317, at the southerly side of Kona Road and running by azimuths measured clockwise from true South: 1. 287° 36' 512.00 feet along the southerly side of Kona Road; thence along Kona Road along a curve to the right having a radius of 30.00 feet, the chord azimuth and distance being: 2. 332° 36' 42.43 feet to a point at the westerly side of Hapuu Road; 3. 17° 36' 720.00 feet along the westerly side of Hapuu Road; 4. 107° 36' 542.00 feet along Nanawale Estates Subdivision, Unit 3-A, Lot 354; 5. 197° 36' 750.00 feet along Nanawale Estates Subdivision, Unit 4, Lots 278, 279, 280, 297, 298, 299 and 317 to the beginning and containing an azea of 9.328 Acres. All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof. SECTION 2. This change in district classification is conditioned upon the following: A. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. The applicants, successors or assigns shall be responsible for complying with all requirements of Chapter 205, Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District. C. All new wastewater systems within the subject property shall comply with the State Department of Health. D. Comply with all other applicable laws, rules and regulations and requirements of all affected agencies for the development of the subject property. E. An initial extension of time for the performance of conditions within the ordinance may be granted by the Platming Director upon the following circumstances: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. _2_ 2. Granting the time extension would not be contrary to the General Plan or Zoning Code. 3. Granting of the time extension would not be contrary to the original reason for the granting of the change of zone. 4. The time extension granted shall be for a period of not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). F. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. -3- SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: - CO ' CIL EMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: REFERENCE: Comm. 278 APPROVED AS TO FORM AND LEGALITY CORPORATION COUNSEL DATED: -4- APPLICATION FOR CHANGE OF ZONE Puua, District of Puna, Hawaii TMK: (3) 1-4-76-38 Prepared for: Nanawale Estates Co., a California corporation Prepared by: Steven S. C. Lim Carlsmith Ball 121 Waianuenue Avenue Hilo, Hawaii 96720 Telephone: (808) 935-6644 November, 1998 ~xHiBir COUNTY OF HAWAL PLANNING DEPARTMENT CHANGE OF ZONE APPLICATION (Type or legibly print the requested information) APPLICANT: NANAWALE ESTATES CO. APPLICANT'S SIGNATURE: See attached authorization lette~A~: ADDRESS: P. o. sox 3006 Bakersfield, CA 93385 LIST APPLICANT'S INTEREST IF NOT OWNER: LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: N`aricy Duff, CEO, Carol Brendt, CFO, and Tom Franconi, Secretary PHONE:(Bus.) 510-527-3729 (Res.) (Fax) LANDOWNER(S): Title Guaranty Escrow Services, Inc. LANDOWNER SIGNATURE(S): See attached authorization letteBATE: (May be by leaer) LANDOWNER(S) ADDRESS: 235 Queen Street, xonolulu, HI 96813 REQUEST: open (0) TO RA-la (Ezis[ing zoning) (Proposed Zoning) TAX MAP KEY: (3) 1-4-76-38 STREET ADDRESS OF PROPERTY: SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 9.328 acres AGENT: Steven S.C. Lim ADDRESS: Carlsmith Ball 121 Waianuenue Avenue Hilo, HI 96720 TELEPHONE:(Bus.) 935-6644 (Res.) (Fax) 935-7975 _ Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Steven S.C. Lim COPIES: Nanawale Estates Co. (See Instructions on Reverse Side) APPLICANT'S LETTER OF AUTHORIZATION Tax Map Key: (3) 1-4-76-38 Puua, District of Puna Island, County and State of Hawaii The undersigned applicant hereby authorizes Carlsmith Ball, to apply for, execute and process any and all County, State and federal governmental permit applications, and to participate in proceedings related to said real property. A photostatic or facsimile copy of this executed authorization shall also be considered as effective and valid as the original. NANAW LE ESTAT CO. By Nancy D}~ff Its ~ ~ ~ . Address: 1730 Sonoma Berkeley, CA 94707 Subscribed and sworn to before me this 5 day of ~u,;v~r~-, bt~.~c.. , 1998. ' - .t,~ Na e• ~ . C~ccix~~~~i Notary Public in and for the State of California My commission expires: fs' .~co / u~ F L, G;p, A .:;any ^"n;~ ~s. z~ FFF OWNER'S LFTTER OF AUTHORIZATION Tax Map Key: (3) 1-4-76-38 Puua, District of Puna Island, County and State of Hawaii The undersigned is the fee owner of the real property above-identified, and hereby authorizes Carlsmith Ball, to apply for, execute and process any and all County, State and federal governmental permit applications, and to participate in proceedings related to said real property. A photostatic or facsimile copy of this executed authorization shall also be considered as effective and valid as the original. TITLE GUARANTY ESCROW SERVICES, INC. By DAYJil wErscy. ~R Its PRESIDENT Address: 235 Queeu Street First Floor Honolulu, Hawaii 96813 Subscribed and swo to before me this day of - : ~-,-„b~' , 1998. (~a.e ee.c e~ ,C _ F Name: Notary Public, State of Hawaii VALERIE K.P. TANAKA Expiration Date: May 21,2000 My commission expires: APPLICATION FOR CHANGE OF ZONE BACKGROUND and COUNTYENVIRONMENTAL REPORT Applicant: Nanawale Estates Co., a Califomia corporation Tax Map Key No.: (3) 1-4-76-38 Puua, District of Puna Island and County of Hawaii 1. PROPOSED DEVELOPMENT 1.1 Ownership Applicant Nanawale Estates Co., is a Califomia corporation, authorized to do business in the State of Hawaii. Ownership of the subject property is held by Title Guazanty Escrow Service, Inc. in trust for Applicant Nanawale Estates Co. 1.2 General Site Description The 406,307 squaze feet (9.328 acres), rectangulaz-shaped, unimproved parcel of land is bordered by Kona Road along its northern boundary, Hapuu Road along its eastern boundary, Plumeria Road along its southern boundary, and single-family residential lots zoned A-1 a along its southern boundary. The Property is located within the Nanawale Estates Subdivision, which was developed in 1962, prior to the adoption of the County's present Subdivision Control, consists of approximately 4,289 residential sized lots, ranging in size from .25-acres to 1-acre. The Property is situated within the State Land Use Agricultural District, is more particulazly described as being Lot 318, a portion of Royal Patent No. 7788, Land Commission Awazd No. 8452, Apana 15 to A. Keohokalole, and is situated at Nanawale Estates Subdivision, Unit ]V, File Plan 1098, Puua, District of Puna, Island and County of Hawaii ("Property") (see Exhibit 2, "Location Map", and Exhibit 3, "Tax Map"). 1.3 Statement of Objectives The Applicant is seeking a Change of Zone for the approximately 9.328-acre Property from Open (O) designation to RA-la (Residential and Agricultural 1-acre) designation to develop an agricultural subdivision limited to nine (9) buildable lots, with an average lot size of 1-acre (see Exhibit 1, "Site Plan"). Background and County Environmental Report Page I Application for Change of Zone (TMK: 1-4J6d8) - Nanawale Estates Co. 2. RELATIONSHIP TO LAND USE PLANS, POLICIES AND CONTROLS 2.1 STATE PLAN The Hawaii State Plan consists of goals, objectives, policies and priority directions to guide the future long-range development of the State. The proposed action conforms with the applicable policies discussed below. State Goal Section 226-4, HRS sets forth three components to this plan: (I) To achieve a strong, viable economy, characterized by stability, diversity, and growth, that enables the fulfillment of the needs and expectations of Hawaii's present and future generations; (2) To achieve a desired physical environment, characterized by beauty, cleanliness, quiet, stable natural systems, and uniqueness, that enhances the mental and physical well-being of the people; (3) To achieve physical, social, and economic well-being, for individuals and families in Hawaii, [hat nourishes a sense of community responsibility, of caring, and of participation in community life. Discussion: The Hawaii State Plan encourages choice and mobility that insure that individuals and groups attain self-reliance and self-determination. Approval of the requested rezoning should satisfy all of the foregoing objectives, by fulfilling an increasing demand for housing for present and future generations of Hawaii residents, thereby increasing the real property tax base in the Puna district. Objectives and policies for socio-economic advancement -housing Objective: • The orderly development of residential areas sensitive to community needs and other land uses. Policies: • Promote design and location of housing developments taking into account the physical setting, accessibility to public facilities and services, and other concerns of existing communities and surrounding aeeas. Background and County Environmental Report Page 2 Application for Change of Zone (TMK: 1.4-76-38) Nanawale Estates Co. • Facilitate [he use of available vacant, developable, and underutilized urban lands for housing Discussion: The Hawaii State Plan, Socio-Economic Advancement- Housing, encourages the orderly development of residential aeeas sensitive to community needs and other land use and the promotion of housing developments taking into account the physical setting, accessibility to public facilities and services, and other concerns of existing communities and surrounding areas. Approval of the requested rezoning should satisfy the foregoing Socio-economic objective and policies relating to housing, by utilizing vacant, developable lands for housing for the continually growing Puna District. Objectives and policies for the economy --Agriculture Objectives • Growth and development of diversified agriculture throughout the State. • An agricultural industry that continues to constitute a dynamic and essential component of Hawaii's strategic, economic, and social well-being. Policies • Assute the availability of agricultural suitable lands with adequate water to accommodate present and future needs. • Increase the attractiveness and opportunities for an agricultural education and livelihood. • Expand Hawaii's agricultural based by promoting growth and development of flowers, tropical fruits and plants, livestock, feed grains, forestry, food crops, aquaculture and other potential enterprises. Discussion: The Hawaii State Plan, Economy-Agriculture encourages the growth and development of diversified agriculture throughout the State by making available agricultural suitable lands with adequate water to accommodate present and future needs. Approval of the requested rezoning should satisfy the foregoing economic objectives and policies relating to agriculture, by utilizing vacant, developable lands and providing opportunities for small-scale agricultural activities. Background and County Environmental Report Page 3 Application for Change of Zone (TMK: I-4-76-38) Nanawale Estates Co. 2.2 State Land Use Law The State Land Use Law provides for the classification of al] lands within the State into one of four land use districts: Urban, Rural, Agricultural or Conservation. The Property is situated in the State Land Use Agricultural District. Pursuant to Section 25-5-50, of the Hawaii County Code, the RA 4 district is intended for areas designated as being in the State Land Use Rural or Urban district. Although the Property is situated within the SLU Agricultural District, the purpose of the residential agricultural (RA) district designation is comparable to that of the Agricultural (A) district designation, in that both designations provide for uses in very low density agricultural-based residential lots in rural areas where urbanization is absent. The proposed action will be improved small-scale lots, with residential/fatm dwelling and accessory uses, which use is not contrary to the purposes of the State Land Use Law designation for the Property. 2.3 Hawaii County General Plan The General Plan provides for the long-range comprehensive development and balanced growth within the County, and includes the Land Use Pattern Allocation Guide ("LUPAG") Map which designates land utilization for the County. The LUPAG map designates the property as Low Density Urban. The Low Density Urban designation is intended for single family residences, ancillary community and public uses, and convenience-type commercial uses. The proposed action would be consistent with the goals, policies and standards of several functional areas or elements of the General Plan as follows: Economic Element: Goals • Provide residents with opportunities to improve they quality of life. • Economic development and improvement shall be in balance with the physical and social environments of the island of Hawaii. • The County of Hawaii shall strive for diversity and stability in its economic system. • The County shall provide an economic environment which allows new, expanded, or improved economic opportunities that are compatible with the County's natural and social environment. Background and County Environmental Report Page 4 Application for Change of Zone (TMK: 1-4-76-38) Nanawale Es[ates Co. Discussion: The requested rezoning would foster the above-cited economic goals of the Hawaii County General Plan by allowing for small-scale farming on the nine pazcels of 1-acre in size parcels, thereby making diversified agriculture a feasible endeavor for the young family or resident with limited income. The requested rezoning would also complement the A-1 a zoning and land use of adjacent pazcels and help to retain the overall rural ambience of the Nanawale Estates Subdivision, thereby promoting the County's economic goals in harmony with its social and physical environments. Land Use Element: Goal • Designate and allocate land uses in appropriate proportions and mix and in keeping with the social, cultural, and physical environments of the County. Policies • Zone urban- and rural-types of uses in areas with ease of access to community services and employment centers and with adequate public utilities and facilities. • Promote and encourage the rehabilitation and use of urban and rural areas which are serviced by basic community facilities and utilities. • Allocate appropriate requested zoning in accordance with the existing of projected needs of neighborhood, community, region and County. • The county shall encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment. Standard • Zoning requests shall be reviewed with respect to General Plan designation, district goals, regional plans, State Land Use District, compatibility with adjacent zoned uses, availability of public services and utilities, access, and public need. Discussion: The proposed rezoning would allocate land uses in keeping with the General Plan goal by expanding the availability of 1-acre parcels for both agricultural and related residential uses. The proposed rezoning would also be compatible with the above-cited standazd, given the Property's ready access to public services and utilities, its proximity to government and employment centers in Hilo, and its close proximity to commercial complexes in the Puna azea. Background and County Environmental Report Page 5 Application for Change of Zone (TMK: I-4-76-38) Nanawale Estates Co. Land Use -Agriculture Goals • Rural-style residential-agricultural developments, such as new small-scale coral communities or extensions of existing rural communities, shall be encouraged in appropriate locations. • Assist in the further development of diversified agriculture in the district. Discussion: Diversified agricultural uses aze highly desirable to Puna residents as a way to maintain the coral character of their communities and a rural lifestyle. Puna has many small-scale, developing, experimental and independent growers and gardeners. Cultivation of anthuriums, papayas, ornamental plants and guava are viable options on the proposed lots. Many of the one to three acres lots located in the Puna district are increasingly being developed for agricultural uses, such and floraculture and nursery stock, small-scale livestock and tropical fruit tree orchazds. The relatively low-cost of many of these lots, provide opportunities for successful intensive farming even though the soil quality is mazginal. The Nanawale Estates Subdivision receives an average of 100" to 125" of rainfall annually which makes individual rain catchment a feasible method of obtaining potable water, thus eliminating the need for over-extension of the County water system. The proposed rezoning would complement the aforementioned goals by allowing for the development of residentiai- agricultural activities such as small-scale farming, making diversified agriculture a feasible endeavor for the young family or resident with limited income. The proposed rezoning would also be an expansion of the existing coral Puna community and would be in keeping with the "rural-style residential-agricultural developments" cited above, since the requested Residential and Agricultural 1-acre (RA-la) designation would limit construction to one single-family dwelling per 1-acre lot. 2.4 HAWAII COUNTY ZONING AND SUBDIVISION The existing County zoning designation for the Property is Open (O). The Nanawale Estates Subdivision was granted final subdivision approval in 1962. Prior to the County's Interim Zoning Ordinance of December 19, 1962, there was no zoning for the Puna district, and the approval of the Subdivision predated the Zoning Ordinance of the County. The developer in submitting final subdivision maps, designated certain areas within the Tract for possible recreational and educational facilities. Background and County Environmental Report Page 6 Application for Change of Zone (TMK: I-4-7638) Nanawale Estates Co. The County zoned the properties Open (O) since it existed as a lazge open space. Under Section 25-5-50, Hawaii County Code, the Residential and Agricultural (RA) district provides for activities or use chazacterized by low density residential lots in rural areas where city-like concentrations of people, structures, streets and urban level or services aze absent, and where small farms are intermixed with low density residential lots. The proposed rezoning would meet this criteria as both parcels are located in rural aeeas with low density residential lots, and where urbanization is absent. 2.5 PUNA COMMUNITY DEVELOPMENT PLAN The Puna Community Development Plan (CDP) prepazed in January, 1992 is intended to provide direction in the implementing of the Hawaii County General Plan, and is designed to void the gap between the general plan policies and the specific concerns of the Puna community. The proposed action would be consistent with the courses of action of the Housing element of the CDP as follows: Housing: Courses of Action • Aid and encourage the development of a wide variety of housing choice for this area. • Encourage the maintenance and rehabilitation of the existing housing stock to maintain the viability of existing communities. Discussion: Puna's population has shown to be one of the fastest growing aeeas in the State, doubling every ten years. The 1990 Census figures indicate a growth rate of 77% in the 1980s. This rapid growth in population and the projected in-migration of population is due primarily to the availability of vacant land and affordable housing as compazed to those in the South Hilo district. The requested rezoning would foster the above-cited housing courses of action of the CDP by encouraging the development of the residential-agricultural lots, thereby providing a variety of housing choices in the subdivision and by meeting the housing demands in the Puna District. Background and County Environmental Report Page 7 Application for Change of Zone (TMK: I-4-76-38) Nanawale Estates Co. 2.6 COASTAL ZONE MANAGEMENT AND SPECIAL MANAGEMENT AREA The Property is not located within the Special Management Area (SMA) of the County of Hawaii. 3. ENVIRONMENTAL SETTING, IMPACTS & MITIGATION MEASURES 3.1 PHYSICAL CHARACTERISTICS/ENVIRONMENTAL SETTING 3.1.1 Climate Bettina Located on the wetter windwazd side of the island, the mean annual rainfall is about 100 to 125". Relative humidity is generally stable and mean annual temperature is about 73 °F. Wind patterns are diurnal-- dominant easterly tradewinds prevail during the day, while in the evening cooler westerly winds sweep down the slopes of Mauna Loa. Seasonal changes aze mild and fairly uniform. Impacts and Mitigation None. The proposed action will not alter the microclimate of the region. 3.1.2 Topography and Soils Bettina The topography of the Property is relatively flat, with an average grade of zero to 6%. The soils in this general azea aze classified as (rLV), Lava Flow, A'a, which is a miscellaneous land type. This lava is rough and broken, and has practically no soil covering. The Land Study Bureau Overall Master Productivity Rating is "E", or "Very Poor". The State Department of Agriculture's Lands of Important to the State of Hawaii (ALISH) map does not classify the azea as containing lands of importance to agriculture. Impacts and Mitigation None. Compliance with the County requirements would further ensure minimal erosion and sedimentation impacts during future development. 3.1.3 Natural Hazards Background and County Environmental Report Page 8 Application for Change of Zone (TMK: 1-4-76-38) Nanawale Estates Co. Settme Flood and Coastal Hazards. The U. S. Corps of Engineers Flood Insurance Rate Map (FIRM) designates the Property in Zone X, or outside the 500-year flood plain. The Property is also located outside of the County of Hawaii Civil Defense Agency's Tsunami Evacuation Zone. l~olcanic and Earthquake Hazards. According to the United States Geological Survey maps, the Property is located within Lava Flow Hazard Zone 2, on a scale of ascending risk 9 to 1. Zone 2 aeeas include the areas on both sides of the northeast and southwest rift zones, where lava flows have covered approximately 20 percent of the area during the past 750 yeazs. The last recorded lava flow in the immediate vicinity occurred in 1840. The Building Code designates the entire island of Hawaii in Earthquake Zone 3 and contains certain structural requirements to address the relative seismic hazazds. Impacts and Mitigation. The Property is not within any flood or tsunami hazards zone. Although the Property is located in the azea flanked by Kilauea volcano, and is subject to down sloping lava flows, the degree of risk to human life is minimal. The Building Code requirements mitigate potential earthquake hazazds. 3.1.4 Air and Noise Quality e t' Air. The air quality in the Puna district is largely affected by air pollutants from natural rather than vehiculaz sources. The most predominant source of natural pollutants is from the Kilauea volcano's east rift eruption located southwest of the Nanawale Estates Subdivision. Emissions from the ongoing eruption can be seen in the form of a volcanic haze which intermittently blankets the azea. Vehicular exhaust is a lesser source of air pollutants. Noise. Noise in the general azea is associated with vehiculaz sources within the subdivision. Noise generated by additional traffic within the proposed 1-acre residential-agricultural lots should be minimal. Impacts and Miti. ae tion The proposed action will not alter the air quality of the region. Fugitive dust specifically arising from future development can Background and County Environmental Report Page 9 Application for Change of Zone (TMK: I-4-76-38) Nanawale Estates Co. be mitigated by observance of standard industry practices for air quality management. 3.2 HISTORICAL/ARCHAEOLOGICAL RESOURCES e i The Property is not among those listed as historic properties in the Hawaii Register, and has not been determined to be eligible for inclusion in the National Register of Historic Places. As discussed eazlier, the Nanawale Estates Subdivision was graded upon its establishment in 1962, and is currently undeveloped, vacant land. Imnacts and Miti. ag lion None. Because the entire Property has been previously disturbed, any surface or subsurface archaeological remains aze unlikely. 3.3 NATURAL RESOURCES 3.3.1 Flora/Fauna tt' Nanawale Estates Subdivision was originally graded upon its establishment in 1962, and during construction of the subdivision roadways. The Property is an unimproved pazcel of land and is absent any agricultural activity. The Property's existing terrain is mazked by a dense overgrowth of ground cover and mature trees, including ohia, pili grass, and by introduced animal species, such as mongoose and rats. Imnacts and Mitigation None. The Property has been entirely previously disturbed, and is unlikely to adversely impact raze or endangered native plants and/or species, since there remains no evidence of same within the Property or the surrounding azea. 3.3.2 Scenic and Open Space Resources Settine The Property has remained in its natural condition. The Property is not listed as a distinctive and identifiable land form distinguished as landmarks or as having a frontyazd vista of distinctive feature as identified in the General Plan within the Puna District. Imnacts and Mitigation The proposed action will not directly impact upon vistas. Although the proposed action will remove the Property from its Background and County Environmental Report Page 10 Application for Change of Zone (TMK: I-4-76-38) Nanawale Estates Co. current "open space" designation, the proposed 1-acre pazcels, will continue to serve as a form of "open space" in the area. 3.4 SOCIO-ECONOMIC RESOURCES t 'n Puna's population has shown to be one of the fastest growing azeas in the State, doubling every ten yeazs. The 1990 Census figures indicate a growth rate of 77% in the 1980s. This rapid growth in population and the projected in-migration is due primarily to the availability of vacant land and affordable housing as compazed to those in the South Hilo district. The requested rezoning would designate and allocate land uses in appropriate proportions and in balance with the social, cultural and physical environment of Puna. IIDD3CtS and Mitig to ion None, as the proposed rezoning meets land use plans, policies and controls which support the designation and allocation of the Property in agricultural and very low density agriculturally-based residential use in keeping with the social and cultural environment of the Puna area. 3.5 SURROUNDING AREAS Settine The Property abuts 1-acre agricultural sized lots along its northern, southern, eastern and western boundaries. The Declazation of Protective Restrictions, Conditions and Reservations for Unit No. 2, Nanawale Estates ("Declazation") provides that the majority of the lots in the tract shall be used for single-family residences. The proposed rezoning is consistent with the Declazation and surrounding single-family residential uses in the Nanawale Estates Subdivision as one single-family dwelling or one farm dwelling will be permitted on any building site in conformance with County zoning regulations. Therefore, no adverse impacts to surrounding uses and properties are anticipated as a result of the proposed development of the Property. I~lpacts and Mitigation None, as no adverse impacts to surrounding uses and properties are anticipated as a result of the proposed development of the Property. Background and County Environmental Report Page I 1 Application for Change of Zone (TMK: I-4-7638) Nanawale Es[a[es Co. 4. INFRASTRUCTURE, PUBLIC FACILITIES AND SERVICES 4.1 Access Settine The Pahoa-Kapoho Road intersects Nanawale Boulevard, the vehiculaz entrance route leading into the Nanawale Estates Subdivision. Nanawale Boulevard is a County owned and maintained road, which has a 40-foot wide paved roadway within a 60-foot wide right-of--way. Access to the Property is along Kona, Plumeria, and Hapuu Roads, which aze private subdivision roadways owned and maintained by the Nanawale Community Association, having a 40-foot wide right-of--way. Imnacts and Mitigation It is not anticipated that the proposed action will generate any significant daily vehiculaz trip counts along the Pahoa-Kapoho Road and Nanawale Boulevazd which aze generated by subdivision residents. 4.2 Water System Settine County water service is currently not available to the Property. The nearest County waterline is located along Nanawale Boulevazd, south of the Property. The proposed lots will be serviced by private water catchment systems to be installed by individual lot owners in compliance with all applicable State and County regulations. Imnacts and Mitigation None. Individual lot owners will install private water catchment systems in compliance with all applicable State and County regulations. The Nanawale Estates Subdivision receives an average of 100" to 125" of rainfall annually which makes individual rain catchment a feasible method of obtaining potable water and will be sufficient to meet the needs of the residential-agricultural lots. 4.3 Wastewater System Settine The Property is not serviced by a municipal system. Wastewater is proposed to be managed by private septic systems installed by individual lot owners in compliance with all applicable State and County regulations. Imnacts and Miti ag tion None required since private septic systems will be installed by individual lot owners in compliance with all applicable State and County regulations. In addition, the Property is unlikely to contaminate Background and County Environmental Report Page 12 Application for Change of Zone (TMK: I.4-76-38) Nanawale Estates Co. groundwater resources since the Property is not located along the lower coastal resource areas of Puna. 4.4 Police and Fire Protection and Medical Services ett~ Protective and emergency services are provided by the County of Hawaii, with the police headquarters located at Keaau, fire substations located in Pahoa and Keaau, and medical, surgical, acute Gaze and skilled nursing facilities available at Hilo Medical Center in Hilo. In addition, the Nanawale Community Association has organized an association patrol in support of its neighborhood and community. ImnactsT and Mitigation None required as adequate police and fire protection and medical services aze available. 4.5 Utilities ettine Electrical power is available from the Hawaii Electric Light Company, and telephone service from GTE Hawaiian Tel. Imuacts and Mitigation None required since adequate utility services aze available. 5. ENVIRONMENTAL ASSESSMENT AND ANALYSIS 5.1 Relationship Between Short-Term and Long-Term Uses and Maintenance of Long-Term Productivity The proposed action will enhance the long-term productivity of the Property by: (1) placing the land into viable residential-agricultural lots and providing opportunities for successful intensive farming while maintaining the rural chazacter of the community and rural lifestyle, and (2) fostering the housing courses of action of the CDP by encouraging the development of the residential-agricultural lots, thereby providing a variety of housing choices in the subdivision and by meeting the housing demands in the Puna District. Background and County Environmental Report Page 13 Application for Change of Zone (TMK: I-4-76-38) Nanawale Estates Co. 5.2 Irreversible and Irretrievable Commitment of Resources As with any development, the proposed action will result in commitment of land, capital, material, public services, and utilities. However, the low density of the proposed action should mitigate the extent to which these resources are encumbered. 6. ALTERNATIVES CONSIDERED 6.1 No Action Alternative Under the "No Action" a]ternative, the Property would continue to remain unimproved, and would not help to implement the objectives of the Puna CDP, which encourages the development of a wide variety of housing choice for Puna district. In addition, the Nanawale Community Association, Inc., through its Board of Directors, supports the proposed action (see Exhibit 6, Nanawale Community Association, Inc. letter). Keeping the area in status quo would be contrary to the goals, policies and standards of the Puna CDP which is intended to provide direction in the implementing of the Hawaii County General Plan policies and the specific concerns of the Puna community. 7, AGRICULTURAL ZONING QUESTIONNAIRE The Applicant has completed and attached the Planning Department's Agricultural Zoning Questionnaire as Exhibit 4. 8. LIST OF SURROUNDING OWNERS A list of the names, addresses and tax map keys of all owners and lessees of record of surrounding properties is attached hereto as Exhibit 5. Background and County Environmental Report Page 14 I r~ e` ~i~i - ff ~r _ ~ c~ _ z C x( Q~ y ' ~ ~ ~ y~ ` ~ ~r 1 ~^~-,c~F~r n ~ ~ i - 1.: Fu x t l+.i p yr _i_ 71 Lbr .~h E~ i f ~.~-r Pl r~ ~ r ~L?. rs o ~ t ~ " ff- 1a. r~ 1- - ' `45 ~ r PL Kati! ~ ~ ~ S a~ ~ ~ ~ ij a ~ ' c~- 4 ~ ~...f .Gc E b~ ~ _ _ Y ~ - t. 4 _ L.L .Il --y . ~ ^ j o...,, ~ ~ ~ ----11; . , u ,yy,' f ~ ~ L ' ~r--- ~ , , ~ a .~„o.. o ~ F .1 J ~ E .~t a - n°J v _ CI rv~I,.n •f rFf r,~ lYanawale Estates PUUA, PUNA, HAWAI I TM.K.1-4-35-66,75-77, 79-89 o..... __........J., rn Surveying and MapP~rg EXHIBIT 2 LOCATION MAP m ~ m i ~ ~ a:~ i ' 1 :t ~ .6 9 _ - p rt' iE ~ .1 i~ i~F k: a oi~ ~ d• a ~ _ 3 • a ° " a b: a E: a ° a} S ° t - ~ O.F j.4 a ° N . t _ . F eso~ .I ,"d ."d ~I '~.i ~J Fi .°A sAI Ri s___ ~i Ri t 'nt A R ol.;_: 1 L y, ;1 , ;o , e , i~ ~ O~q ~'a ' S 3 a' 8 a i a i t 'r n a T a' ~ x r'1 1 t' Sp dt~. nl ~ .1 RI :d n1 ~ " . - mr~ ~ SUBJECT ROPERTY ~i .1 'q: o o e o f o~ as Q i i i ' i liti Yy T i` ~ . . ' ~ ~e ::e ~ < i©` lie i •I"!Fi q'ii o' E'jI p S1 .ii! 1 it ? ii ~ ,.1 R. 5.je~ T _ die Fry F p - - - ~ C 0 ~ e ~ ' I,l ; ; 3' 3 i i i~~ i~ j; B60/ 'd © ~ Q ©ti • ~ ® , (©r © 966 d ! Ii . o~-:: 'F al, el x~yT, _•i ry:,2 ry ~ !1E a Si , f~sl, a~ e~ ~ s o l,i ° v. _ IQ i~ e a' a' o e a e ~ ? o j~ a~` si' :hj ajj: Qi. ;Ij u o1 u u1 ~ Il •M. iQ:.. n; a,;;i s. t x, s'. sl s~,~ j; o~.'.•ti g~1:O~iS ~ ;'"~,0 ONO ©,~..~.Q:i' ~O,O,O,~,O,.Oi~ . 1 i' _i or _ _ , j= _ ,l11 e, Ft - daa ~a d} iit M I:j a 1 dE~' e4.._ 'O V `1 L~ a . . O u.. i i e....a • Y f..r O EXHIBIT 3 TAX MAP ATTACHMENT Agricultural Rezoning PLANNING DEPARTMENT COUNTY OF HAWAII APPLICATION FOR CHANGE OF ZONE 1. If your request is approved, do you intend to subdivide the subject land in accordance with the approved change of zone? Yes If Yes, please answer the rest of question 1 and then co auescion 3. a. How many acres of the requested area do you intend to subdivide? Entire parce b. Into what lot sizes? (9) 1-acre, lot c. If your request is approved, approximately how long after the date of approval do you expect to su'omit your subdivision plans to the Planning Department for preliminary approval? Within one ye. d. Do you intend to build houses on the newly created lots? No If ves, please answer the following questions: On how many of those lots? At what approximate price range? House Lot Total Approximately how long, after approval of the subdivision, would the first house be available for occupancy? If you intend to subdivide, please submit a preliminary schematic subdivision plan together with your change of zone application See Exhibit 1, form. Site Plan 2. If you have no firm plans of subdividing the subject area, do you intend to: a. Se11 or lease the land to someone who has firm plans? b. Se11 or lease the land to someone who has tentative plans? c. Sell or lease the land to someone who has no plans? d. Keep i[? e. Other (please state) EXHIBIT 4 P.D. 2 5/84 ZONINGOUESTIONNAIRE f. If you intend w do either a, b, c, please elabc._..ce on the kind of plans the other party has. Please, also, include in your answer approximately how soon after approval of your rezoning do you expect to transfer the subject land [o another party. 3. Do you think that your request and your further plans for the land will alleviate the local housing situation? Yes How? By expanding the availability of 1-acre parcels for both diversified agricultural and related residential uses. G. Are there any buildings on the subject area? No If so, what kind? What do you intend to do with those buildings if your request is approved? 5. Is the subject land currently being used for any agricultural activity? No If so, olease list the kinds of products grown and on how many square feet or acres of land per product. 6. Was your request to allow for the creation of smaller agricultural lots? Yes If so, did your plan include the following considerations? Yes a. Commodity to be produced? Yes What kinds of commodity? Floraculture and nursery stock, small-scale livestock and tropical fruit tree orchards. b. Suitablility of the proposed lot-size for that commodity? 1-acre c. Sufficient farm size to allow reasonable chance of success in commercial agriculture? 1-acre -2- d. Agricultural leases or other forms of assurance _..at potential buyers or leases would put the subject area into some form of yes agricultural use? Please state the proposed type of arrangement. Lot owners will comply with applicable State and County zoning laws related to agricultural uses. Please submit your agricultural plans for the subject area and present evidence of consideration of the above requirements together with your request for a change of zone. If you do not intend co subdivide the subject land for some sort of Subject proper agricultural purpose, please state your other reasons. to be subdivid 7. To your knowledge, has there been any flooding and/or drainage problem on the subject area? No If so, please describe the problem. 8. Do you think that the roads leading to the subject area needs improvements? No If so, what kind? Access to the proposed parcels will be off of Hapuu and Kona Roads, which are privately owned and maintained by the Nanawale Community Association, having a 40' wide ROW. Is the road adequate for the proposed traffic volume or load? Yes 9. What sort of governmental assistance and/or improvements do you feel will be needed in the subject area when developed? Yes No X a. Schools X b. Roads c. Sewer X d. Drainage X -3- Yes No e. Police Protection X f. Fire Protection X g. Recreational Facilities X h. Public Utilities _ X i. Other X For those checked "yes," please elaborate what type or kinds of improvements and/or assistance are needed. Signature: See attached authorization letter Address: P. O. Box 3006, Bakersfield, CA 93385 Telephone: (510) 527-3729 Date: November 24, 1998 -4- NANA [MALE COMMUNITY ASSOCIATION, INC. RR~ BOX 2250 • PAHOA, HAWAII 96778-9703 • TELEPHONE (808 965-8080 1 ~ Working [o keep ;Yanowale [he Big !s[and's mas[ beautiful community. December 3, 1997 Carlsmith Ball Wichman Case & Ichiki P.O. Box 686 Hilo, Hawaii 95720 RE: Dedicated School Sites Nanawale Estates Subdivision ATT: Steven S.C. Lim Dear Sir: The Board of Directors discussed the school sites and their last board meeting held December 2nd. They were in agreement as far as accepting the 12 acres site for a future elementary school and to support NECO's efforts to sell off the remaining property in one to five acre lots. The only stipulation the Nanawale Community Association has is to reserve the right to collect assessments from the sold lots. If you have further questions, please call. Sincerely, NANAWALE COMMUNITY ASSOCIATION, INC. ~~l~f~~ B. Marwick Administrator EXHIBIT 6 NANAWALE COMMUNITY ASSN. LETTER Aua-I2-99 08:33am Fram-CARLSt11TH BALL + T-227 P.01/01 f-434 CARLSMITH BALL ATTORNEYS AT SAW A PARTNERSHIP INOL{JOING LAW CORPORATIONS 121 WAIANUENUE AVENUE POS7 OFF1Ct: BOX 666 HILO, HAWAII 98721-0686 TELEPryONE (808193s-661s FAX (808) 896-7975 August 11, 1999 Ms. Virginia Goldstein Planning Director ' County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Re: Change of Zone Application (REZ 9$-29) Applicant: Nanawale Estates Co. Request: Open (O) to Family-Agricultural 1-acre (FA-la) Nanawale Estates Subdivision, Puua, District of Puna, Island and County of Hawaii Tax Map Key: (3) 1-4-76-38 Dear Ms. Goldstein: This letter will confirm that the Applicant has committed that no future subdivision of the parcel will occur, without either a County approved water system being available to service the property, or further action by the County Council. Should you have any questions concerning this matter, please do not hesitate to contact me. Thank you for your consideration. Very truly yours, STEVEN S.C SSL:ICYL xc: Nanawale Estates Co. EXHIBIT G PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 19, 1999 A regularly advertised hearing on the applications of NANAWALE COMMUNITY ASSOCIATION, INC. was called to order at 9:25 a.m. in the County Building, Councilroom- Room 201, 25 Aupuni Street, Hilo, Hawaii, with Chairman Leonard Tanaka presiding. PRESENT: Leonard Tanaka ABSENT: Geraldine Giffin ' Richard Baker, Jr. Florence Kubota Lin McIntosh Mildred Mosher James Souza Grant Togashi Virginia Goldstein, Planning Director Alice Kawaha, Staff Planner Phyllis Fujimoto, Staff Planner Fred Giannini, Deputy Corporation Counsel Casey Yanagihara representing Department of Public Works Glenn Ahuna representing Department of Water Supply And approximately 8 people from the public in attendance TANAKA: Okay, Commissioners, if there are no objections, we have, it looks like some people here for the Nanawale Estates applications. If it'd be okay with the Commission, we'd like to hear that application first before we go back to administrative matters on the General Plan Amendments. Okay, seeing none, we'll move to Agenda Item Nos. 3, 4 and 5; and we'll hear the discussions on all three at once. Okay, so these would be Agenda Items 3, 4 and 5, County Council Referral Bill Nos. 75, 76, and 77; and these are applications that we have heard that came before the Planning Commission that were forwarded to the County Council. Basically, the Change of Zone on Bill No. 75 is changing the district classification from Open (O) to Residential and Agricultural (RA-2a). The original request was from Open (O) to Residential and Agricultural (RA-la). On Bill No. 76, similar, the original application was from Open (O) to Residential and Agricultural (RA-la) and Agricultural (A-Sa); and now they're before us changing from Open (O) to Residential and Agricultural (RA-2a). Bill No. 77 the original application was from Open (O) to Family Agricultural (FA-la) and now they're requesting from Open (O) to Family Agricultural (FA-2a). Okay, Ms. Fujimoto. FUJIMOTO: Thank you. Excuse me, taking a look at this location map, this is the Pahoa-Kapoho Road, going towards Pahoa in this direction. This is Nanawale Boulevard. The subject properties are located in Nanawale Estates; and they're indicated by these three dots. The properties are all zoned Open; and surrounding properties are zoned RS-10 here in the yellow and Ag-la, this light green area here. Okay, the Applicant is requesting a change of zone from Open to RA-2 for this property here, Open and RA-2 and Ag-5 for this property here; and Open to FA-2 for this property back here. Okay, these requests were first heard by the Commission in April and the Commission's recommendations were forwarded to the County Council. At the Council's Planning Committee meeting the Applicant amended his request from the original 1 acre to the 2 acre zonings; and thus the Council referred the bills and the amended requests back to the Commission for this hearing today. The Planning Director is recommending a favorable recommendation be forwarded to the County Council on all three requests. Thank you. TANAKA: Okay, before we go on, I'd like to recognize members of the County Council -Julie Jacobson and Curtis Tyler who are here with us today. Thank you. Okay, Commissioners? GIANNINI: Councilman Al Smith TANAKA: Councilman Al Smith is also outside. GOLDSTEIN: And Dominic's aide is here. TANAKA: And Councilman Yagong's aide is also here. So there must be some important things on the agenda today that draws their attention. Commissioners, any questions for staff? Okay, if not, we'd like to call up the Applicant or representative to come forward. And is there, we have three people signed up to testify, Darwin Barve, Barry Orlando, and Councilperson Julie Jacobson. Is there anyone else that would like to testify on this agenda item? Okay, if I could swear you all in at once, please. Would you please raise your right hand. And do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? • TESTIFIERS: I do. TANAKA: Okay, thank you. -2- LIM: Good morning, Mr. Chairman, Members of the Commission. TANAKA: Good morning. LIM: Steven Lim representing the Applicant, Nanawale Estates Company. I think most of you have received, all of you have received a copy of the exhibit we passed out with the exception possibly of the new Commissioner Kubota. KUBOTA: Thank you. LIM: As stated by staff, we're here on a Council referral back. The technical ' reason was because we discussed the three rezoning applications before you and the big issue up there was whether or not the Council would be adding, as it usually does, the impact fee condition onto this rezoning, these three rezonings. We felt from the Applicant's side that they had provided the necessary park, County road, and other facilities to the community to essentially offset the impact fee requirement which currently is approximately $7300 per unit. As you may know, out in the Puna district in Nanawale the sale prices for these lots are going to go, we anticipate something like $6,000 to $7,000. So the impact fee would have been higher than the sale prices of the lots. So at that point we made a decision that we would ask for an amendment of the three rezoning requests to take the minimum lot size from 1 acre up to 2 acres, which basically eliminates the fair share requirement from the rezoning ordinances; and that's why we're back here today. Some of the issues that came up the last time were also, with you also were addressed at the Council level, primazily that there's no need for more lots. I would assume that they're talking about no need for more lots in this subdivision. If the position from the Commission the last time was that there are no need for any more lots in Puna because we have a lot of unsold lots, then that would, you know, I would wish [hat you'd make that clear to everybody because that means that nobody else in the Puna can come in for rezonings for subdivision lots. So I'm assuming that the statement was directed to no more lots in Nanawale Estates Subdivision. That's an approximately 30-year old subdivision, zoning, 10 percent buildout after the 30 years. The increase that we're projecting now formally was approximately 29 lots. Under the 2-acre scenario that we're asking now, i['s down to 14 lots which in this 4300 lot subdivision is an increase of less than 1/2 of 1 percent. So we're submitting that the original reasons for the rezoning requests which are basically that the, both the Applicant and we believe the community association recognizes that after 30 years that some of these lots originally slated for either single family use or school will never be used as schools because of the DOE's recent infusion of capital for Keaau and that we would be better served by all parties to recognize that reality. And that's why we're committed to donate that 12-acre site to the Association for use for private school purposes. -3- As you probably know, the site that we're proposing for dedication is the middle site that Phyllis is pointing to right there. That site has the benefit of being on the County road and also has the benefit of being right in the line of waterline development that the community association recently was able to get HUD funding, I believe, to construct the ball field and lights and water. They would have been better along, because as you may note from the colored exhibits we passed out before the yellow spots where those pieces that are donated by the developer to the association, the largest yellow spot which is further into the project and, Phyllis, it's along the TANAKA: Above the red. GOLDSTEIN: Above the read. LIM: Yeah, it's the largest yellow spot above the one we're talking about. The school site was applied for purposes of a community center and ballfield by the association; and that project was stopped by the community. Otherwise, they would have had the waterline running right past the present property. So believe that we have given up the, probably the most valuable piece out of all three of these for purposes of the school site, you know, recognizing that that's the most likely site that could sustain development of this private school. So we're asking the Planning Commission's renewed support of our application. We feel that the concerns raised by some of the community relating to the infusion of agricultural uses into the project are unfounded. We've made commitments here and at the County Council that the CC&Rs which require that all lots in the subdivision be used for single family residence purposes only will be complied with with respect to the present lots. So I think that the, there was concern by the community that because, you know, they said, well, if you're going to use it for single family uses why do you ask for residential/agricultural and farm/agricultural. I think that's pazt of our concern that the, we know that these are in, some of them, in the State Land Use District and that we have to recognize some component of agricultural with respect to, at least to the technical application. The first two parcels are in the urban district and are surrounded by RS-15, I think i[ is, residential zoned lots, anyway. So we could have gone straight to residential. But we feel that the market is not there for those intense development, those properties, and that the now 2-acre minimum lot sizes would be the best tradeoff for both use and the community. Thank you. TANAKA: Okay, thank you. Commissioners, any questions for Mr. Lim? Mr. Lim, I have one question. At the County level, County Council level, at their Planning Committee, aside from the concern about the impact fees, was there any other concerns that were brought up from the County Council Members? LIM: I think there were some concerns brought up by one member about the need for more lots. There were concerns brought up by the community that were similar to -4- the ones that you've heard before. But I think that's pretty much, there was nothing really that much new that came up at the County Council level. TANAI{A: Okay, thank you. Okay, we'd like to call up those who have signed up to testify. Let's see how many seats we have up here. I'll ask Mr. Lim to sit back. Mr. Darwin Barve first, and Mr. Barry Orlando. Two chairs BARVE: Can I place this on the board? TANAKA: Yeah, go ahead and place it on the easel there. BARVE: Maybe I should let Barry go first. I'll go after Barry. TANAKA: Okay, that's fine. ORLANDO: All right. TANAI{A: Start off with your testimony by first introducing yourself, name and address for the record, please. ORLANDO: My name is Barry Orlando and I'm a resident in Nanawale, have been a resident there for some 18 years. TANAI{A: Speak right into the mike, please. You can hold it up if you need to. ORLANDO: Yeah, well, I have some papers here that I'd like to pass out first. Here's a, you guys can pass these around. And these are to remind, you can just look at those as I speak. They're just to remind you of the fact that the properties we're speaking of are highly valuable in the sense of their natural forest reserve potential. These are by no means previously used and they do in fact represent the only remaining old forest kipuka in Nanawale. I have a number of exhibits that I'm just going to place on the desk here. I think you'll be able to adequately see them. This is an original advertisement put out by the Nanawale Estates Company; and it represents what that company advertised as what we were buying into at the time. There's exhibits, goes, we have their original declaration of CC&Rs which require them to ban us and all other others of the corporation to not have any agriculture in the subdivision. There's a letter from Mr. Hamasu who was the Director of Planning at the time of original approval. There's a copy of the current association's bylaws which again prohibit agricultural use. And this is all relatively new information to you because these were only partially discussed at the, at this level before. And they have been much more thoroughly discussed at this point through the Council, so I want to point out what the differences are. -5- This is a copy of the actual Hawaii County open zone division ordinance which we had some question about what it actually says in our meeting here last time. So this time there doesn't need to be any question about it. Okay, I would like to begin by reminding you that what we are talking about here today is a rezoning request Bill No. 75, that's the ten-acre parcel there which, of course, the maps correspond pretty well, yeah. This ten-acre parcel is specifically the oldest example of ancient growth, kipuka, extremely varied in plant character and age, and the only remaining example of old growth forest. And at this point due to papaya development practically all of lower Puna In fact, in my opinion as a professional ecological consultant, I would say that it is the most valuable remaining example in diversity and endemic and indigenous plants, as well, it has, as well as extraordinary scenic and historical value, of course, with a great diversity of plant and native animal life as well as extraordinary scenic and historical value. Requesting changes that is, from the developer's, Nanawale Corporation's original subdivision zoning requirements and sales promises, advertised representations to their clients, this map here there are advertised representations to their clients, land buyers and Nanawale Association Corporation Members. From Open zoned, from, to, from what is now Open zone, park, educational facility and public utilities land, meant to serve and be an intrinsic part of the community, as they were advertised and still are advertised to change that to single-family residential/agricultural lots for Nanawale Corporation's owned acknowledged purposes • exclusive of community needs and original representations and requirements, is against everything you see on this table. It's against Nanawale's own original CC&Rs, it's against the original letter of approval for the subdivision which requires that what is represented on the maps be retained. It's against Nanawale's own bylaws which require that there be no agriculture. And it's against our own Hawaii County open zoning subdivision law or open zoning district law which requires that if people buy near an open zoned parcel that the County guarantees them retention of that open zoning if they buy with the knowledge and intent that the open zoning enhances the value of their property. Now we're dealing with property here which is going down in value. Mr. Lim's current contention that these properties are worth some place in the range of $6,000 to $8,000 doesn't stand up if you just go out to Pahoa and ask somebody what they'd sell you a lot for. They're worth $2,000 to $3,000 right now. And the more agriculture that comes in, the more traffic that comes in, the more albesia trees that come in due to agricultural bulldozing and other kinds of changing of the current ecological system only lowers the value even further. Since we last met much new information has come to light, and old questions considerably clarified. ' The current change that has been proposed by the developer Nanawale Corporation from the original proposal in front of this board is that these parcels be divided into two acre parcels rather than one acre pieces. The Agricultural zoning request still stands. -6- We have numerous examples that deed restrictions on agriculture in Nanawale have not been enforceable. In fact, deed restrictions anywhere in Puna have not been enforceable. We have many examples of farm attempts, current farms going on, packing plants going on in the subdivision and failed farm attempts which are devaluing the neighboring land by being filled up with albesia trees after being bulldozed and abandoned. I'd like to point out that two acre parcels will anly worsen the problems inherent in rezoning requests, because they will make those pieces more attractive to agricultural use rather than less attractive. The major problems with this request as previously pointed out are: Public Works says that the subdivision roads are now inadequate to allow for "any" further subdivision, and cutting the number of additional lots in half does not address the nature of the problem that subdivision roads could not handle the current number of cars involved in 4,000 lots and no further subdivisions is recommended. In fact, lets see if I have that interesting little map. Oh, yes, this one. This actually shows you graphically what would happen if you took 4,000 cars and tried to TANAKA: You want to put that up on the board maybe and pin it up for the time being? ORLANDO: We could probably look at it briefly, it's kind of flimsy and part, hard to hold out; but if you can, here it is, maybe pass it. But it only requires a brief, brief look. It's easy to see the meaning. The pink, if you had 4,000 TANAI{A: Use the microphone, Mr. Orlando. GIANNINI: The microphone. TANAI{A: Use the microphone, thank you. ORLANDO: If we had 4,000 cars ,which is a minimum number at build out, each lot at build out would have, there would be more than 4,000 cars. If you had 4,000 cars trying to get out of Nanawale, according to Public Works, this is exactly what would happen. This is why Public Works has recommended against it. You'd have cars backed up along all that pink line; that's 4,000 cars with one exit, one way to get out. People wouldn't even make it to work by the end of the work day, they wouldn't even make it to Pahoa. Okay. So Public Works has a very intelligent point; and I don't believe it has been adequately addressed considering that 4,000 lots is already way more than we can handle. The point is adding lots does nothing to alleviate that. -7- The original requirements of subdivision, by all available evidence, required certain parks and open spaces, as clarified by the Director of Planning Edgar A. Hamasu who did the original approval; this is his letter right here; and this is one map. I also have a copy of the original subdivision map which is downstairs and it looks exactly like this one. This is unit one. Now the piece that I am addressing in particularly is, actually, we need to remove that, yeah, is the piece surrounded by Flower, and it's off of Flower, it's the one that, yeah. TANAI{A: Is that Flower and Holiday? ORLANDO: Yeah. TANAI{A: So, okay, referring to us, for ORLANDO: It's up front. TANAKA: Bill No. 75 then for us, okay? ORLANDO: Yeah. Up front in Unit 1; and it's this piece right here which is clearly indicated in the original add as a park. And those things that, what the Director at the time says is that the original requirements of subdivision included that all advertising shall include • wording, giving effect to the above conditions, which are reservation of public open spaces as shown on the drawings. Some place in the stack I actually have the original drawings. But if you'll take my word for it it looks exactly like this; and this is labeled open park, and it's right downstairs. The original letter is not downstairs. This letter is actually an answer to a request that was made to clarify these points; and what Mr. Hamasu has said in here are just that, clarification of these points. So what it shows on that map is what was required and it shows a park. Reserve, reservations, okay, all advertising shall include wording, giving up their Okay, violation of Nanawale Corporation's own CC&Rs and Nanawale Association's bylaws written by Nanawale Corporation, I don't believe it would be in the County's interest, Nanawale Association's interest, anyone else's interest, to aid and abet in [he violation of the original CC&Rs which clearly state Why Nanawale wishes to violate their own CC&Rs, I don't know; but here they are. It says uses of property, "Except as otherwise herein provided, all lots and [rack shall be known and ' described as residential lots and shall be used, shall be known and described as residential lots and shall be used for single family residence purposes only." Well, we have examples now of violations of nonresidential use. We've had continuous problems with them. And, in fact, I'll -8- get on later to showing that the Department of Agriculture has documented these problems and agrees thoroughly that these are problems. The legal implications of your condoning these violations are corporate nature, are, you know, I don't think that that's something that we should be doing, we shouldn't condone them. The direct representation of the original Board of Director's, of Nanawale Corporation's Board of Directors as elucidated in a letter by Mary Jane Thompson the guaranteeing of a quiet purely residential area. Well, we sent out, as I mentioned, but did not have all of the statistics on it, the first time around in this group, we sent out a survey. Of course, it was required that the Duffs and Mr. Lim's organization send out a letter of notification. Now these letters of notification one would assume are required to be sent out for a reason. If people object that's their chance to say they object. Well, on that board, with all the tax in it, we got 300 returns from our survey; and each of those pins stand for, could be 2, 3, 41ots because each reply, the owners, many of them own multiple lots. Counting up the lots, counting up owners, we come up with over 300 replies. The replies are all in groves around the subject properties. So we have obvious opposition to any zoning changes. And one of the main reasons for the opposition states very clearly here in this letter by Mary Jane Thompson who is one of the oldest owners of Nanawale and in fact was sold her lot directly by Mr. Duff. She says, "I am one of the earliest lot owners in Nanawale. I bought my lot on Kehau Street in 1965 from Mr. Duff who was genuinely excited about the possibilities for this quiet residential area, so carefully planned," right here, "so carefully planned parks, churches, school sites." School sites, by the way, many of these letters also expressed the desire to retain school sites, because the possibilities for school sites are not of a County nature, they're of a private, nature. And private schools will provide jobs and will provide diversity vegetation, and that's what people of Nanawale want. So, you know, this is a very representative letter and, you know, she's telling us what Mr. Duff's words, himself, were. And he said that what this map says is what he's selling her, and us, and everyone else after; and it says that these are open spaces and parks and school sites. The requirements of Hawaii County Open Zoning Ordinance TANAKA: Mr. Orlando, the Director has a question about your ORLANDO: Yeah. TANAKA: Presentation up there. GOLDSTEIN: You've got different colored pins on that map. Do they have meaning? ORLANDO: I'm sorry GOLDSTEIN: I mean, do the different colors represent different things or what? -9- ORLANDO: Oh, no, they're colored. The colors are just GOLDSTEIN: It doesn't matter? ORLANDO: Yeah. GOLDSTEIN: Okay. ORLANDO: Right. TANAKA: We thought maybe some were in favor of the rezoning. ORLANDO: No. There was, out of all 300 replies, there was only one in favor of rezoning, 299 against. Okay. And so this leaves us to the requirements of Hawaii County's own open zoning law which quite clearly states that, "The object of this district," open zoned district, is "to protect investments which have been or shall be made in reliance upon the retention of such open type use, to buffer an otherwise incompatible land use or district, and to preserve a valuable scenic vista," which you can see from the pictures is what exactly what we have here, a valuable scenic vista, all of these pieces. As a matter of fact, especially, what Mr. Lim's organization has proposed as the school site is the other aside from the Flower Road one is, yes, that one, is the other remaining piece of old forest kipuka. Okay, so these are the two most valuable park sites right there. And according to open zoning law, as I say, I have 3001etters, many of which they bought specifically because they felt that the amount and placement of the current open zone pieces were being guaranteed to them and that they were in fact some of their only possibilities of retaining their land value in such an overdeveloped subdivision. This is the most, this subdivision is the smallest lots of any in Puna. And that's, again, why the Highways has made its statements. TANKAA: Mr. Orlando, where are you on your testimony? ORLANDO: Pretty close to the end. TANAKA: Okay, thank you. ORLANDO: This requirement has been specifically relied upon, specifically asking for two acre residential agricultural zoning will increase the possibility of agricultural use of lots. And as I said, we haven't been able to enforce it yet. I can hardly see how anybody is going to enforce nonagriculture in the future; and even if enforcement occurs, it is always only after the fact. You can't go in and tell somebody, you can only tell that somebody is going to use something for agriculture after they've bulldozed it and planted it. And then when you tell -10- them they can't use it, it is abandoned; and then when it's abandoned it fills up with albesia trees, and then it lowers the property value of the adjoining properties. Why Nanawale Corporation would ask you to aid them in violating their own corporate rules and promises to buyers, original conditions of subdivision approval and specific representations to buyers of a nonagricultural community, I do not know. It seems to me all of the 300 respondents, and Public Works who expressed their objections to this request, that the reasons for you to reject this subdivision request are abundant and obvious. New information, includes: The complete correlation of the negative respondents addresses, surrounding these specific parcels, that, that's, I didn't have that for you last time. Okay. Bonnie Goodell gave some very interesting testimony. There was a question came up in this, in our meeting last time about what is the relationship between park land in Nanawale and park lands elsewhere on this island since there are no specific rules that we've ever really adopted defining what's necessary. Well, she figured it out; and she figured it out that in Hilo residents enjoy a ratio of approximately nine one-hundredth of an acre per resident. Currently in Nanawale at build out, we would have three one-thousands of an acre. We currently have 23 acres. When you divide that by 4,000 it's three one-thousands. That's about a square foot per person as opposed to nine one-hundredths which is, oh, plenty area to put a blanket down, have a picnic. And that's what Hilo enjoys. We would like to enjoy the same, same thing, especially since it was guaranteed us. Clarification of original requirements of the applicability of the Open zoning Ordinance and zone requirement be retained under the existing conditions of sales and buyers, representations ' and expectations. In other words, open zoning we did, we clarified in the Council meeting what open zoning means and it means what it says. It means it's there to enhance the value of your property. And it was represented to you as an enhancement; and if you bought it as an enhancement, the County is required to retain it. The extraordinary scenic and historic value of this only remaining old forest kipuka land in Nanawale. Evidence of Hawaiian historic burial cave usage currently being discussed with Mr. Kai Marshell of DLNR is an important issue. And if for no other reason this one park site you see pictures of that I passed around of cave entrances and much evidence of historic usage if not direct, if you choose not to directly [urn this application down now it should at least be put off until this matter alone can be clarified. The problems currently being encountered by the close mix of agricultural overspray, noise and other industrial disturbances as testified [o by Mr. Mell Nishima at the County Council -11- meeting, who is a representative of the Department of Agriculture Pesticide Control, was that rules involving overspray have continued, and continue to be a major problem in subdivisions such as Paradise Park where Ag and residential are currently mixed. So to exacerbate this problem by again allowing people to violate their CC&Rs, I mean, you're not allowing them to but there's no way to prevent them from it, only exacerbates the problem of overspray. An overspray occurs in an industrial environment, not so much in residential environment. But in industrial environment it is uncontrollable; and I have pictures here which he provided me with of the number of houses which are currently surrounding these specific parcels, all of which their catchment tanks and roofs and properties would be directly affected by overspray. Some of this overspray would be extremely dangerous chemicals. Commercial/agricultural uses controlled substances. Now the extraordinary scenic and historic value of this only remaining old forest kipuka , okay, problems currently being encountered by close mix of agriculture His experience, okay, is that these problems exists now and have not, and that his Department has not been able to resolve them where they exists now. We, the three hundred responding residents of Nanawale, believe the above, and more, compels you to reject these zoning changes. We would like to especially emphasize no rezoning on Bills 75 and 76, the two pieces in Unit 1 which include the old forest kipuka, and qual, which have the qualities of old forest kipuka and are currently the most proximate to a major amount of residential area already built upon. Thank you. TANAKA: Thank you very much. Commissioners, any questions for Mr. Orlando? MCINTOSH Yes. TANAKA: Commissioner McIntosh. MCINTOSH: When you were here back in April you outlined plans and discussions that you've been having about acquiring this property, another, on behalf of your foundation. It has been another four or five months since then. What kind of progress have you had towards acquiring this property? ORLANDO: Well, it's almost impossible, I've been an environmental consultant on • this island for many years. And when a piece of property is in the process of being asked for rezoning as this is, it is nearly impossible to obtain financing from the groups who are interested, such as Getty Foundation. Many, many groups are interested in filling this gap of small neighborhood preservation of valuable scenic quality. Larger groups such as Nature Conservancy, these fall through the gaps. But until we settle this question of zoning, we're -12- not going to be able to get the financing we need. If the zoning is settled and it remains open, the interest, we have located over 200 foundations which would be interested. So that's the progress we've made. MCINTOSH: Have you made any offer at all to purchase the property contingent even upon the ORLANDO: We have made an offer. The offer we've made is that we have had interest expressed by over 200 foundations, that those are their needs and conditions, they need to see community support, they need to see support from the owner, and they need to see • support from the County. Until those things occur, they can only wish us luck. MCINTOSH; So you, have you or have you not made a written offer to the owner of the property to acquire the property even contingent upon the zoning remaining open? ORLANDO: Yes. We have; and the response was if we come up with $75,000 cash, we can have it. But they would not go along with any conditions of downpayments or timing related to obtaining foundation monies for, you know, grant monies or MCINTOSH: But they said they'd take $75,000. Have you gone back to any of these foundations and say we can buy it for $75,000, as is, where is, will you give us the money? ORLANDO: We have not actually had the time and resources. In my experiences, as, it will be a waste of time. When we settled this question, and as long as the original promises are upheld by you or the Council, then the timing is right; then we go back and we say okay, you've already said you're interested now here's what can we do, how can we get it sealed. MCINTOSH: Is that what, because you're saying that $75,000 is an excessive price based on open zoning, is that what you're saying? ORLANDO: No. It's just more than a nonprofit foundation such as ourselves happens to have on hand; and it's more than the law allows us to have on hand. MCINTOSH: But you're getting financing from a foundation. I would think that the, with a contract in hand that said they will sell us this for this amount of money you could at least start the process. ORLANDO: We have started the process; and we've done it as I've said. We've received interest from these groups expressing exactly what I just said that what they need, to go further, is community support, Council support, and a solid zoning, you know, the zoning question could be settled. They can't promise money or support to a question that is so far up in the air as this is at this point. -13- MCINTOSH: Doesn't make sense. ORLANDO Does that answer your question? MCINTOSH: Yeah, but it doesn't make sense. ORLANDO: Well, can you tell me why it doesn't make sense to you? MCINTOSH: If they're willing to sell the property at a set price and the price is reasonable, the zoning should have nothing to do with a foundation making a decision to give you the money to keep it in a preserve. You could always come back in and change the zoning back to open, even if the zoning went through to some other classification. ORLANDO: Well, I don't know what your experience with these foundations are; but I'm very experienced. And I can tell you from my experience it makes a lot of sense. I mean, it's just the response you get. Whether it seems to make sense or not, it's the response you get. They have so many requests that are clear and already have support, they cannot afford to waste their time on requests which are muddled and unclear. • TANAKA: Okay, I think we understand the point. Any further questions? KUBOTA: Mr. Chairman. TANAKA: Commissioner Kubota. KUBOTA: I have a question of our legal counsel. TANAKA: Okay, go ahead. KUBOTA: This open, open designation GIANNINI: Yeah? KUBOTA: Once it's offered, and forgive me for my lack of knowledge at this point on the rules and regs, I keep hearing once it's designated Open the County must keep it Open. Is that an obligation we must keep it Open or is there a GIANNINI: No, well, there is KUBOTA: Provision for a change? GIANNINI: I don't think there is an obligation to keep it Open. And that's based on Section 25-2-40 of the Zoning Code which states, "This chapter may be amended by changing -14- the boundaries of districts or by changing any other provision in this chapter whenever the public necessity and convenience and the general welfare require such amendment and when such amendment would be consistent with the goals, policies and standards of the general plan." What that simply means is it is always a legislative decision by the County Council as to when districts should be changed and when, you know, when something should be rezoned. So there's no way that you can ever say that a piece of land is zoned in this, in this particular district and must always remain that way simply because it, it's interfering with future legislative decisions by the County legislative body. What Mr. Orlando has been, I believe, has been citing is 25-5-160, is that it, of the County Code which states, "The O (open) district applies to areas that contribute to the general welfare, the full enjoyment, or the economic well-being of open land type use which has been established, or is proposed. The object of this district is to encourage development around it such as a golf course and park, and to protect investments which have been or shall be made in reliance upon the retention of such open type use, to buffer an otherwise incompatible land use or district, to preserve a valuable scenic vista or an area of special historical significance, or to protect and preserve submerged land, fishing ponds, and lakes (natural or artificial tide lands)." I believe what Mr. Orlando's argument is is that when it states, "to protect investments which have been made or shall be made in reliance upon the retention of such open type use," what he is saying is that this subdivision was designed with these open areas and the people that invested in that subdivision by buying those lots relied upon the representation of the developer that there would be adequate open spaces in that subdivision and that those people are therefore entitled on that representation to have those Open areas preserved. And, again, I don't read that as being a requirement that you must always keep those areas Open. It is a factor for you to con, in the consideration in making your representation to the Council and it's ultimately the Council's decision, as to how that factor weighs into these factors that are in Section 25-2-40 as to when the Zoning Code may be amended when the public necessity and convenience and the general welfare require that this land be changed to a different one. Again, I believe, then, I believe again that there is possibly a private right of action maybe against a subdivider as far as selling property or a misrepresentation. But I don't believe that it can be interpreted that land which is zoned as Open must always stay Open. It's no more logical to say that that's true than to say that something cannot ever be changed from Residential into Commercial or for Commercial into Residential or Resort or anything. I think it's just essentially part of a legislative decision that's ultimately made by the County Council. SOUZA: Mr. Chairman? TANAKA: Thank you. Commissioner Souza. ORLANDO: May Ianswer TANAKA: Hang on for a second. Commissioner Souza. -15- SOUZA: Mr. Chairman, a follow up question for Corp. Counsel. On Mr. Orlando's letter here it says that, "The Nanawale Estates Subdivision was granted approval subject to the following conditions". And I imagine at that time the Planning Director and the Commission put on conditions. Are you saying that the conditions today when we put on a bill or on a recommendation has no legal effect? GIANNINI: That's different. That was a subdivision approval, not an act by the Council. When it's in a bill, those conditions can only be amended by the Council itself. See, that's not, that was not an approval based on an ordinance, is it, the one that he refers to? That was a subdivision approval. SOUZA: Here it says the Nanawale Estates Subdivision was granted approval. GIANNINI: Was that by, was that by the Planning Director in those days or was that by that old Commission they used to have GOLDSTEIN: It was probably done by the old GIANNINI: Planning and Traffic Committee? GOLDSTEIN: Planning and Traffic; and I'm not sure that it was a specific condition of the subdivision as it might have been an understanding in those days. But I don't know, I'd have to check the subdivision file itself. GIANNINI: Okay. But conditions, see, what that says is they approved the subdivision and they say that they can only sell lots, I believe that says they can sell lots making certain representations. And, as I say, that might be a, that might be a cause of a private action maybe against the developer or the seller. But a subdivision approval condition like that cannot be binding on a zoning decision by a County Council in the future. It can be a factor taken into it; but that does not bind the County Council to keep, you know, not to ever change the zoning. TANAKA: Are you clear, Commissioner Souza? SOUZA: Okay, enough, enough for that for now anyway. Another question for staff, if I may. Am I understanding, as I see this, that all the lots over here is one acre agriculture? Am I ORLANDO: No, no, zoning FUJIMOTO: Excuse me? TANAKA: Ms. Fujimoto. -16- FUJIMOTO: Yes? I'm sorry. SOUZA: One acre agriculture all the lots presently in there? FUJIMOTO: No, they're RS-10 and A-1 combined. TANAICA: Show us the separation. SOUZA: A-1 would, that would, when you say A-1 that's Agriculture one acre? GIANNINI: Yeah. TANAK.A: Right. FUJIMOTO: Yes, that's correct. This yellow area here is zoned RS-10 and this light green area is all Ag-1. And most lots are about 8,000 to 10,000 square feet in size, average. SOUZA: And on Ag-1 you can have agriculture activities, am I right? FUJIMOTO: Yes. SOUZA: And am I hearing this, that we zone something agriculture but Nanawale Estates is telling them you cannot do agriculture? ORLANDO: That's correct. SOUZA: And what kind of tax on what zoning? ORLANDO: There's State zoning and County zoning involved here. The County zoning is GOLDSTEIN: It's asked of the staff. TANAICA: The question is being asked of staff, okay, not of the public. So don't comment. ORLANDO: Okay. TANAI{A: Ms. Fujimoto? And if you don't know, then we can refer to someone else or we can FUJIMOTO: What kind of taxes? -17- ' SOUZA: Yeah, on Ag land or residential land? FUJIMOTO: This would be based on Ag zoning, and this would be based on residential. TANAKA: So it's based on the zoning. SOUZA: But, again, let me understand this. You're saying that Nanawale Estates are saying that the residents cannot do Ag on their zoned 1-acre Ag land? FUJIMOTO: Okay, that could be a private covenant restriction which the County SOUZA: And they paying tax on Ag land? BAKER: Yes. SOUZA: Something don't sound right here. I mean, it's crazy, absolutely crazy that we the County zone something 1-A and then the Nanawale Estate said no, you cannot use it; what the County tells you can use it for you cannot use it. Therefore, if somebody does Agriculture 1-A then you cannot let them, well, comply with the law, I mean, Nanawale Estate's GOLDSTEIN: The covenants are a private matter. So that when we talk about Ag being permissible because the zoning is Ag, the County itself will not go in to enforce the private restrictions. We would say, and we have said on our part, that when the zoning allows Ag that that's, we won't go in and enforce a private covenant. As a matter of fact, though, there's even worse kinds of conflicts when they're supposed to have some sort of Ag according to the State Land Use and our zoning and the covenants say no, you can't. The guy who buys the property is stuck in the middle. TANAKA: I think the solution for the long term, Commissioner Souza, is similar to what we heard in the last Kona hearing where we had some applications come before us in the Kawaihae area where we see people going in kind of the opposite fashion of what we're hearing today, yeah. But that would mean public hearings, that would mean hearings by the County Council to just rechange the whole zoning designation. MCINTOSH: And the State designation. TANAKA: Yeah. GIANNINI: Yeah. ORLANDO: Right. -18- TANAI{A: So I guess this is something if it was done by the, what was the name of that board or group GOLDSTEIN: The Land Use Commission. If it's in State Land Use Ag TANAI{A: Well, that also. But here on this matter now it wasn't done before a Planning Commission, it was called something else at that time. GOLDSTEIN: Oh, the Planning and Traffic Commission. TANAKA: So that was done, I mean, before my time. GIANNINI: It was in the early, early sixties I think, yeah. ORLANDO: May I speak now? Okay, may Ianswer TANAI{A: Hang on. Commissioner Souza, do you have anything else? SOUZA: One last question from staff and for the, let go for the time, okay, on that RS, those lots zoned in yellow and those in green, the RA-l, what are the differences in County taxes that they pay or FUJIMOTO: Taxes are, I'm sorry, I'm not sure. TANAI{A: I don't think our staff would know the specifics about taxes, Commissioner Souza. SOUZA: Well, again, what I'm trying to say the whole thing just don't sound right -that you can zone Ag land and then you can put, as she said, a covenant to say no, no Ag. I mean, it's crazy. GIANNINI: But those, again, remember the covenants can be enforceable by private parties. One of, a person who buys the lot could, if someone were to buy one of those lots that has that covenant and then starts an agricultural use, somebody else who has the same covenant in his deed could sue to enforce that through the court. Covenants are meant to be privately enforceable, which is why there is always a question of government requiring covenants to be put in or government, any time you involve governments with trying to enforce covenants it becomes a problem. So SOUZA: Again, for the last time, but somehow you circumvent the way you tax the property by not allowing Ag on Ag lots. TANAK.A: We hear your concerns, thank you. Commissioner McIntosh? -19- • MCINTOSH: If I could just clarify that. All, the tax rate in the County of Hawaii is the same regardless of what the zoning is. It's the assessed valuation that is different, the value of the property, depending on what the zone is. You can have Ag, you can have property even in very high priced subdivisions. If you plant a bunch of trees you can dedicate it to Ag and you get a much reduced rate; but it's subject to roll-back taxes. The lowest tax rate in the County actually is grazing land. And so the tax rate is really not the fault of the owner at all. It's a function of how the County assesses the value of the property. But they've always taxed it at exactly the same rate, unless things have changed recently. TANAKA: So the value and the use of the land, too. GIANNINI: So it's the assessment [ha[ differs accordingly. TANAKA: Okay, Commissioner Baker. BAKER: So for, what I'm trying to understand here from Corp. Counsel is we as Commissioners, we're looking at an issue that's according to the zoning laws and what is proper, and laws. As far as the developer with the lot owners, if they have a condition or they set up those guidelines, that is a private matter. If anything is violated within that private matter it becomes between a lot owner to, he could take legal action and sue for failing of any breech of representation or misleading factors; and that's a private matter. GIANNINI: Yeah. BAKER: Correct? GIANNINI: Well, if, yeah. If it's a breech of a covenant, yeah. BAKER: Yeah. And so if these people feel because of the action of the, what they're requesting here is a breech then they have that private matter to pursue? GIANNINI: They could, yes. BAKER: They could if they so choose to. GIANNINI: Right. • BAKER: So for us as Commissioners, we are faced with a decision as far as within our rights and the regulations that are provided for us today. GIANNINI: Yeah; and remember you're making, remember the ultimate decision is a legislative decision to be made by the Council. -20- BAKER: Okay, thank you. TANAKA: That's correct. Okay, last question. If we can move along, we have three other people signed up to testify. Commissioner McIntosh. MCINTOSH: Yeah, I just want to make one comment that, following up on what Commissioner Baker just said. The land is currently zoned open. It implies some sort of public trust. And in order, in my opinion, in order to take it out of agriculture, I mean, out of open, there has to be some public benefit for us to conform to land use law; and that's the way I'm going to be looking at this. And I think that's the way I looked at it the last time it came up, too. TANAKA: Okay ORLANDO: Now, may I? TANAKA: We'll give you one minute to respond, too. I think we all got our answers, so ORLANDO: Okay. I'm just trying to respond before it gets too complicated. I think the basic point was made that what you are legally required to look at is the public interest. I think that's exactly the point, what's the public interest here. The public interest is to not muddy the waters any more than they already are. They're already muddy, that's true. The, actually, the lowest tax is, category is a little more current, it's forestry. It used to be grazing; and that was currently changed to forestry; and it's now down to a 5 acre minimum. I'd like to take it down to a ten-acre minimum. So what we're asking you to do is clarify the waters here. We have a problem between old existing State land use zoning and County zoning. Actually, the County zoning for all of this is residential. State land use zoning is what's represented on that map. But County zoning is all residential except for the one little light green section of larger 3 acre lots that's Ag. So we have Ag in the subdivision now. We've already gotten more than enough Ag. And those lots aren't sold. There's plenty of them that are still for sale. We don't need to muddy the waters any more. We need to look at what is the public interest. And the public interest has been expressed by 300 people, an extraordinary return. And their desire is to retain the value, is to, you know, upgrade and retain the value of their land by retaining the original promises in the subdivision of open zoning. TANAKA: Okay, thank you. Okay, we'd like to ask you to step back; and we'd like to call up Council Member Julie Jacobson. But first we'll hear from Mr. Barve. Okay, you may proceed. -21- BARVE: I think that it sets a bad precedence to take away these open spaces. You know, when the developer first started this subdivision 30 years ago we were promised parks, and churches, and schools; and now what we're getting is 2-acre Ag zoning. I think that it's kind of unfair. Nanawale does have the nicest roads in the Puna district for a private subdivision; and we pay for that through our assessment fees. And for the developer to come back 30 years later and take away these very important parcels which we have for our subdivision use and change it to 2-A is not compatible right now with the situation in our subdivision. We're in a Zone 2 volcanic district where there's possible inundation of lava at any time. We have no water and no possibility of water ever being delivered to our lot in the foreseeable future. It seems like in America there's two kinds of law. There's the law for the rich people and then there's the law for the poor people. And if we let everybody do whatever they want to do then there would be no need for the Planning Commission because everybody would just go ahead and do whatever they wanted to do. So I think it would be best for everyone if you guys give a negative vote to this development that is proposed. Thank you. TANAKA: Thank you. Any questions, Commissioners? If not, Councilman Julie Jacobson. JACOBSON: Thank you. I would like to concur with the opinion of the residents, Mr. Orlando and yourself as well, and urge you to vote against this. I think the big issues as I see them are, well, for starters, a very clear cut one is the issue of the wishes of the residents. And when you have 300 people respond to a survey out of a subdivision of is it 4,000 something? ORLANDO: Uh, 4,3001ots. JACOBSON: That's a pretty good return. I worked on a survey for Hawaiian Acres that got a little bit higher respond, 500 some out of 4,000 lots. So this is a good return; and a strong, and this is a strong, I've never seen anything where you had all but one out of that. So I think that's very compelling. And then the other general issue to me is looking at the big picture and the true cost. Mr. Lim portrayed this as a small concern because it's only 1/2 of 1 percent of the lots all total. But I ' think what we have to look at is in terms of all of the businesses that come before you, and all of it adds up to a significant impact. And for those of you who haven't seen these statistics, since 1992 of subdivision applications and approvals, the total approved lots is 6,982 since 1992. And I didn't get a chance to do the exact math, but you could estimate that approximately 90 percent of the subdivisions that come before the Commission and then eventually get approved, it's about 90 percent. And, again, that's kind of a rough estimate. _22_ So when we look at the big picture, we look at, well, how many lots? He says, well, we have, in Puna alone, over 57,000 lots, that the majority of those would be agricultural; and as far as how many of them are occupied, they said about 10 percent of Nanawale. That's probably a pretty good average. I think Hawaiian Pazadise Park might be somewhat more occupied, it may be pushing in the 20 percent range; but most of the subdivisions aze quite vacant. If we go outside of Puna, I know we've got roughly 10,0001ots or more in Hawaiian Ocean View Estates, and there is just simply no shortage of agricultural lands. • What there is a shortage of is the adequate infrastructure to meet the needs of those azeas. As you pointed out, there is not, at this time, a public water system to it, and which is true of a lot of our areas. So it especially alarmed me that the motivation for this changing from RA-1 to RA-2 was to avoid impact fees, and I think it's really, the need now is to be collecting those, because we are in a vast discrepancy with our resources to meet our infrastructure needs in terms of water, in terms of our sewer, our solid waste; all these areas, we are in a desperate need. And in terms of the true cost to residents that when we just keep increasing the number of lots, we just further depress the values of everyone's land, which eventually decreases the taxes we bring in. And I've seen my taxes decrease on my residential property, on my, excuse me, my land is all zoned Agricultural, but it's all had a decrease in value and a decrease in, and my property taxes have gone down. And I think in terms of, I think Ms. McIntosh really summed it up when she said really when you look at a change of a zoning, you should look at the public need. Because that's the real work that you're to be doing, is what is in the public interest. And there is, we cleazly see that there is a vast surplus of agricultural land, so there is no public need for this. I think that when you look at the evidence that's been presented to you about the, what was promised to these, to these residents, you really have a pretty much a bait and switch situation, that they were promised that ' this land would be in a public use need for them and now they're looking at changing it. We had a comment that we don't really have any future needs for schools in the area because of the new schools in Keaau, and whereas I'm very grateful that we have these schools and we need them. The Puna Community Council has studied the issue of schools and school development in Puna for over 15 years now. It cleazly pointed out that even with the additional schools, they will basically be full to capacity right away, that the need for all this classroom space that's been created is already full. So there will, eventually, be needs for additional schools in Puna, whether they belong in Nanawale is a question yet to be answered. But it's not true that all the school needs for Puna are satisfied certainly for the future when we look at the fact that somewhere between 10 and 20 percent, somewhere between 90 and 80 percent of those 57,000 lots in Puna are yet to be developed. I guess that pretty much covers it. And I just would like to remind you though that you've had a vast outpouring of the public concern about this, you've had a tremendous amount of reseazch go -23- into the work that the residents presented to you on this; and I would encourage you to let this be one of those few that you, that you say no to. Thank you very much. TANAKA: Thank you. Commissioner Baker. BAKER: Yes, you made a statement that you are unfavorable for it to be back to two-acre because of the taxes and all. Would you be in favor if it was cone-acre? JACOBSEN: No. I just think that when I saw that one of the fact, one of the motivations for it was for the developer to avoid impact fees that, it doesn't matter what size they are, the impact fees are essential in this day and age. Because we, if we haven't learned from the past that not having such impact fees and not addressing infrastructure needs I guess I look at my district where we have run away forest fires in an area with no water, and we have a real serious public safety situation. And we have a State government that, at least at the executive level, is not willing to take responsibility for it, and leaving our Council, our County government with a horrendous burden, which I don't see an easy solutions to. And this just seems like it may seem small to you all, but it seems like it's just exacerbating an existing situation. BAKER: I have a second question for you. You mentioned the school and, you know, it's a need for schools. But this lot does not meet any standard size for a school, and it was designated for a school lot. Yet there are 14 areas that aze zoned Open, and there aze a lot of park areas already set up within the subdivision. So as faz as being the public being affected, what great impact on the public would be with this change, do you see? Because if you're familiaz with the area, there are 14 areas that aze set aside. So how do you feel on that? JACOBSEN: Well, in general, I was just commenting on the school because I just felt it had to be clarified that in terms of Puna, in general, we need schools. I wasn't saying, in particular, that they need to be in Nanawale. But in terms of the public interest, again, I'm not the one to be deciding which particulaz uses go about, or are brought about. But the fact of the matter is that this will increase the need, the infrastructure needs; the water, roads, traffic, all of those things will be increased. And when you have citizens under the impression that these things can be for parks, for future, whatever the needs might be Perhaps the need might be a police substation at some time. Perhaps the need might be any number of things. But, clearly, it's not a public interest to create more agricultural lots; and as the residents have told you, they do not wish for that change. They wish to have it in some sort of public, some use that would be enhance the general area for residents. And increasing more lots in an already It will, in ' fact, a particular thing I would expect is just like we've seen in general, is an increasing reduction in the values of property; and that has been going on for quite a few yeazs in Puna. TANAKA: Thank you. Commissioner JACOBSEN: Thank you. -24- TANAKA: McIntosh. MCINTOSH: Yeah, I would just like to compliment Ms. Jacobsen in your honesty in calling a duck a duck, and referring to impact fees as impact fees and not fair shaze assessments or some other gobbledegook to hide the fact that the Council has yet to adopt legislation enabling you to impose impact fees. So I would encourage you to carry this idea to fruition and get an impact fee ordinance on the books so that when you do collect them, you're doing them honestly and up-front. JACOBSEN: Okay, thank you, Ms. McIntosh. TANAKA: Legally. Okay. Any other questions, Commissioners? If not, we ask you to step back. We have one more person signed up to testify, Council Member Curtis Tyler; and I don't think I swore you in yet, Mr. Tyler, if I could. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TYLER: I do. TANAKA: Thank you. TYLER: Good morning, Mr. Chairman, Members of the Commission. TANAKA: Morning. TYLER: It's nice to be on this side of the fence, so to speak. I hadn't intended to testify on this matter, but there were some representations made which I thought I needed to comment on. I believe a question was asked of the Applicant's representative as to what kinds of concerns the Council had, and one or two were mentioned. But there were others that were not mentioned, and that was my initial reason for coming forwazd. And then subsequently, in light of some of your questions and comments, I thought I'd just possibly add some more information for your consideration. A concern that I had, which was not mentioned, is that your Background Report is inaccurate as it relates to the condition of the land. It indicates that the pazcels have been previously grubbed in their entirety and, in fact, with perhaps some minor exception, it has been confirmed that that has not occurred. And, in fact, I think if you look at the pictures that have been circulated today, it's very obvious to those of you who have lived here for any length of time, I'm sure, which is all of you, I think, that this is old growth. This is not some new growth forest. So I want to point that out because I think it's a major consideration as you look at this. The idea that something has been previously grubbed, that there's nothing there of any value, maybe true if an area has -25- been previously grubbed. But this one has not, as the residents have pointed out, as well as others who have come before the Council, so I wanted to bring that up. Also, there has been some concern expressed regarding, since the area has not been grubbed, and because of the frequent occunence of caves in this area and the tube system which runs through this, this particular property as well as others in Puna, as you all know, that there, there are cultural resources, Hawaiian cultural resources that maybe subterranean burials and other kinds of things. And I, personally, have no, have not seen any; but I have not been over there, so I have received phone calls from people who have indicated that this very well may be the case and especially in some of these parcels. But I am not a resident of this area, so I just wanted to share that with you that this has been a concern expressed. Also, the concern regazding the CC&Rs, the conditions, covenants and restrictions, and as your Counsel has indicated, he believes that they, they are privately enforceable. I would point out, however, whether they're privately enforceable or not, that the County Council and, in fact, this body itself, the Planning Commission, has inserted conditions into some of the rezonings which are either part of the covenants or deed restrictions, and all of these run with the land. That is to • say, they are part of the deed, and they are recorded in the Bureau of Conveyances; and many times this body has requested such action. And I would, I would hope that, while I recognize that you are advisory only with respect to the rezoning, I would hope that you would recognize, as a fundamental principle, that if landowners, whether they have done this collectively or as part of their purchase agreement, individually as part of their purchase agreement have a deed restriction, that you respect those deed restrictions. It, I think Mr. Orlando put it probably as succinctly as anyone could that if the issue is muddied because of the, the unwillingness or inability of the public body to enforce deed restrictions, then let's not further muddy the waters by compounding it. And I hope that you would, you would consider that as you make your recommendation and, certainly, as a Council Member, I'll be doing the same; but I thought it might be helpful to you. I must tell you that when the Council, as it always does on one-acre, one-acre and less lots, it's sort of the condition, and I believe I was the one who asked that it be inserted into the final draft for fair share assessments. I was really stunned that the Applicant wanted to go back to just say, well, we'll make it whatever it is less to avoid this. I mean, I think every person who has any iota of common sense is going to know that there's going to be a lot of impacts out there. And most especially since you have before you a letter from the Department of Public Works, in fact, Mr. Yanagihaza, who I think was here or is still here today, he's over there, indicating that the ' Department of Public Works is not in favor of this. And they give you all of the evidence, one, all these paragraphs here, stating exactly what the standazds aze, I mean, what the situation is out there, some of which is misrepresented in your Background Report. And so I, once again, if just not paying attention to the deed restrictions isn't enough, how about, how about the fact that we're looking at a giant cul-de-sac here, which is not permitted by the Zoning Code, which how many countless thousands of person hours have we agonized over. So I think you really need to give some consideration for that. I was really kind of stunned when it happened. -26- And with respect to agency comments, if I may just make a general, a general observation. It seems to me that the reason that we have engineers, the reason that we have attorneys, the reason that we have tax people, and the reason that we have different departments is to obtain their input, because none of us can possibly know or even understand all of the various roles, regulations, ordinances, laws, etcetera, that we have. And when we hear from the Department of Public Works, by its, from the Engineering Division, that there are these kinds of significant, I would call them very significant or substantial, whatever your word is that you're using now, deficiencies that you must, we all, all of us who aze decision makers must pay attention to that. And there also seemed to be some question that, as to the, as to who owned which roadways and whether or not these properties would be served by a public road. And I'll leave that up to you to ask the Staff, but it was just something that had come forwazd as a concern before the Hawaii County Council. In addition, you've heard today, as I'm sure you've heard before, concerns about water catchment systems. And I would call your, I would ask you to, and call your attention to Resolution 247-94 relating, that was a Council resolution relating to that. That was before my time, but I think it has some pertinence with respect to this. A couple of more comments, Mr. Chairman. There was reference made to a letter from Bonnie Goodell and testimony that she submitted to the Hawaii County Council; and I would urge, Mr. Chairman, that you ask your Staff to get a copy of that from the Council Staff, Council Services. It's a very, very interesting letter. You may not agree with all of it, but I think you'll, it' 11 give you some very interesting perspective as you go about your business, both today as well as in the future. I would give you a copy of mine except it has many scribblings on it, and you probably not only couldn't read it. But if you could, you probably wouldn't appreciate some of them. And, finally, with respect to this idea about Open zoning, I think we've heazd some quotes from various sections of the Zoning Code relating to that. And as I recall, your Legal Counsel indicated that the pertinent body could change, that's obviously the Council, could change the zoning from Open if it was in the interest of public necessity, convenience, excuse me, if public necessity, convenience and welfare requires it, something to that effect. The issue here is not what little impact it's going to have directly on the public, whether there's more parks or not. The issue is, in your capacity, as I see it, whether you change this, whether you recommend a change, is there a public necessity, is it in the public convenience, and does the public welfaze require this? That, I think, is the issue. It's not, it's not the one about, well, it's really not going to have all that much effect, or it's only going to have this much effect and But it's whether the public interest requires it; and I think that's really the key issue that we all have to think about. And clearly you've heard today that 299 out of 300 respondents are not in Favor of this, so I just comment that to you. Thank you, Mr. Chairman. I'll be happy to answer any questions. TANAKA: Commissioners, any questions for Councilman Tyler? -27- TYLER: Thank you, sir. TANAI{A: Okay. Thank you. Okay. Is there anyone else in the public that would like to testify? Maybe before we do, we'll at least ask the Applicant to come up and offer his closing comments. Commissioner Baker. BAKER: I'd like to have afive-minute or ten-minute recess. TANAKA: Why don't we make that about ten minutes. BAKER: Okay. MOSHER: Okay. TANAKA: Any second? MOSHER: Second. KUBOTA: Second. MOSHER: Second. BAKER: Oh, yeah. TANAKA: Okay, moved and seconded. We'll take aten-minute recess and reconvene at 11:05. RECESSED The Chairman called a short recess at 10:55 a.m. RECONVENED The meeting reconvened at 11:05 a.m. TANAKA: The meeting of the Hawaii County Planning Commission will now come back to order. We'll now hear from the Applicant. Any closing remarks or responses to the discussions, Mr. Lim? LIM: Thank you very much, Mr. Chairman. I'il try to be brief; I know you want to get this other presentation on the General Plan underway. When I first came before you and when we started out this venture, we realized it would be a difficult row to hoe. The, and the reason why is because you're coming in on a rezoning some 30-plus years after initial development of the project. So things like standards on roadways, park dedications, requirements, all those things that didn't exist before when the project was first set up, now do exist. But I think even given that, the developer originally set out the -28- subdivision and planned out sufficient areas for parks, such that we have sufficient park sites, we have County roads in the project. Right now, the move is on to extend the water line into the project. So a lot of the things that occurred in Nanawale Estates Subdivision with respect to the modern facilities, modern requirements, have happened in large part because of the developer. They also gave the Association the water pipeline easements to set that up. So we believed, and we believed at the Council level when we were making our arguments on the impact fees, was that they, the developer had more than, more than complied with the fair share requirements, even when you measure it against the requirements of today's standards. The move to increase the lot size was not so much to avoid the fair share requirements as it was to avoid that language being in the ordinance. We were arguing for credit against the fair share requirements and arguing that the Council should not put that language in at all since we had, essentially, complied with those requirements. The Council, for consistency purposes, I believe, said to keep it in and that you can come in for credits against those fair share requirements when you come in for your building, your subdivision. We made the decision at that point that because of the very low sales prices on the lots that if that language was, and it had to be shown to the buyers, that no one would really come in and pay the money that we wanted for purposes of the sales when faced with the potential of $7,300 fair share impact fee at the time of the subdivision. So that is why we upped the minimum lot size from Ag-1 to two, not so much to avoid the imposition of fair share but to avoid the language being in the ordinance so that we would then have to explain that to buyers, because we're having, I think everybody in that area is having enough problems trying to sell those lots as it is without having the fair share requirements being put out there on the ordinance. • So I think that, you know, you've been hearing that the community is against the project, and I don't think that's correct. We had the Community Association in favor of our proposal, in large part because we were providing them with the tobic (phonetic) or private school site. The survey that Mr. Orlando takes his numbers off of is, I think, contained in your materials, and it looks like this, and it has a number of statements that at the time when they wrote it maybe they didn't realize that we were going to volunteer, which was primarily the restriction to single family residence uses because the survey letter went out to the Association Members, and it contained standard statements such as this request will open Nanawale further to the papaya industry. We are now faced with having commercial traffic enter the subdivision. Papaya industry includes many sprays of fungicides and pesticides and trucks using our roads, etcetera, etcetera. So it mentions bulldozing, spraying fungicides, insecticides, and the, you know, it's those type of statements that we believe triggered many of the comments that they got. And they didn't pursue a second survey after this initial one. We think a lot of people were worried and are still worried about the potential for the papaya industry to open up on the if you look at the map, on the top part of the project, on Bishop Estate land where they are thinking, I guess, of opening a huge number of acreage to papaya -29- farm operations. And the concern by the Community Association and by the residents that you heard today are that once that gets going, the trucks have no place to go but through Nanawale Estates on the County road; and they don't believe they can stop them. So I think that, you know, those two issues were getting mixed up in the survey; and that's, I think, a large part of the reason. As you heard during Mr. Orlando's presentation, in response to Ms. McIntosh's questions, we had, from the very get-go, talking at the Association meeting before we came to the Planning Commission, discussed the possibility of, well, if you really want to save this one ten-acre site, which is the one that's near Mr. Orlando's house, that he claims has the native flora and fauna, then why don't you just purchase [he property from us? So in March of 1999, we essentially wrote to, we wrote to Mr. Orlando to tell him that we would hold up on it; but we only would hold up on our rezoning request if we received a concrete proposal from them, so please send us your proposal with your Federal I.D. number showing that you've set up this non-profit corporation for preservation of the forest, and that type of thing. And so we waited, and the last correspondence that we have is a May 14 `99 letter to ' Mr. Orlando, where in response to his request, we said, well, the purchase price for that lot is $69,000, not $75,000, and that if you would put that purchase price in cash into escrow, then we'll hold up on the rezonings. So we haven't yet gotten any formal written offer from him and, in addition, I don't believe, you can ask him, but I don't believe he has even set up the corporation to be tax exempt yet, and this is some six months down the road now. So I don't know whether that's a real proposition. But like I told Mr. Orlando, you know, if you were the nature conservancy saying we want to buy the property for preservation of forest, then we'd say okay, we'd drop everything and start dealing with them; but until he can show me that, you know, that there is some real proposal from some real organization, then, you know, we really can't stop for that purpose. The, I guess the last issue that I want to talk about is what's in the public interest, and this relates to the time frame for the development of this project. Usually, you see raw land coming in first time to the Planning Commission for approvals and, you know, there is no history to that project. Essentially, they just want to build a new project. In this case, it's very unusual, I mean, we were talking about a 30-year plus old subdivision. I think we've waited, on the developer's side, long enough to see what's happening to assess, you know, within our lifetime, at least, what's reasonable. And I think maybe that's the decision you have to make, is do you plan in a vacuum? Do you plan for something that may or may not happen even for another 30 years? Or do we try to address the situation as we see it? I mean, I think if we came in five years after the development of the subdivision and asked you to modify some of these things, you know, you would be correct in saying, hey, see, that's a little bit too early. But I think after 30 years, and we only got 10 percent build-out on a 4,300-unit subdivision, that we have to look at it and say, you know, what's real within our lifetime or even past our lifetimes? And I've heard them say, you know, planning is for seven -30- lifetimes and all this other stuff; but to me, at least from our perspective, planning has to be realistic. And you can plan in a vacuum, and it won't help anybody. We want to try to further the public interest and our interest, admittedly, because we want to sell the lots. But we also think that the public interest is going to be served through provision of a very feasible 12-acre school site that the community can put a school, or a community rec building, or whatever else. It's on a public road, it's got water, all the other things. And we could have offered to them the parcel that's way inside the subdivision that, you know, there's no chance of getting water for the reasonable future, but we felt that we wanted to give them what is essentially the most valuable piece out of the three for purposes of a school. You know, because once you have a, at least in our mind, once you have the reasonable possibility of having development go forward, then you have an actual school, then you have real property tax valuation increases, you got revenues, you've got association dues that will come in, and you also have job creation. So it depends, in large part, what your view of the public interest is. In our view, I think our view is we are more reality-based. Maybe we are short-term visionaries. But I think that for purposes of a 30-year old subdivision, when all the things that were supposed to happen didn't happen, we got to start looking at alternatives; and I think that's why we came in for this application. So I thank you for your attention. I know it's a hard decision for you; and the developer, Nanawale Estates Community, Nanawale Estates Company, excuse me, thanks you for your attention. TANAKA: Thank you, Mr. Lim. Commissioner Baker. BAKER: Steve, if what you said is that the survey in your, in your company that you represent feels was not properly represented and all, did you folks try to make an attempt to go out and try to put out your approach to these people and get some kind of response back from them? LIM: We only can, we got calls in, I would estimate, on the initial go-round, we got probably in the neighborhood of 20 calls from people calling in, and they had no objection to this, to the proposals. They just wanted to know whether we wanted to buy their lot or, you know, those types of things. We didn't make a second survey attempt. What we did do though is in our publications for, the required publications for notice, notice for the Planning Commission and Council hearings, we added in statements on our publication that said that the Applicant was committing to utilize it for single family residence purposes only. That was the big issue that was in this survey. Because I think people felt that they bought their lots, and the CC&Rs in the subdivision that cover all lots say use it for single family residence purposes only, except certain lots which can be used for commercial or park or schools, those type of things. So when we mailed out our notices, we then clarified that we would be requiring that the lot, any lots broken up for purposes of our use would be limited to single family residence uses. -31- MOSHER: I have a question, Steve. TANAI{A: Commissioner Mosher. MOSHER: This is regarding your stating that the property had been grubbed in 1962; however, the pictures that we were shown, it's evident that the entire property couldn't have been grubbed. Did you mean just the roadways or was I don't see how an old cave could still be there if it was grubbed or how the old trees could still be there. LIM: Okay. I think that the area of the kipuka that Mr. Orlando was talking about probably wasn't grubbed, looking at the pictures. But I believe that the majority of that parcel plus the other two parcels were, in fact, grubbed. I mean, most of the things that you see in the picture, pictures that were submitted by us, also, on the other parcels, you see albizzia growth which, I don't know if you, you know, or gunpowder trees, they call them. Those, I have one in my pasture that has been there only five years, it's 40 feet tall. So we are talking a space of probably 30-plus years now since the initial grubbing. And we can only act on what the client has informed me, which is that [hey grubbed the entire project and did the roadways, and that was 30 years ago. MOSHER: Were grubbing permits needed 30 yeazs ago? LIM: No, I think they just MOSHER: They could just go in there and LIM: Land clearing, basically, yes. MOSHER: Do what they want. And the pictures of the cave and those trees are in the 10-acre parcel, isn't that correct? LIM: Yes, the one that's on this map, down to the bottom right-hand side. MOSHER: Right. Right. LIM: Right. I think, you know, for purposes of the cultural and historic resources that might be on the property, you know, we can volunteer that the lot deeds would contain a deed restriction that requires them to check with DLNR Historic Sites Division before implementing house pads; that's the concern. I think on the two-acre piece that probably you don't need something like that. But, you know, if that's a concern with the Commission, we would agree to that condition. MOSHER: Okay. Thank you. -32- TANAKA: Commissioner Souza. SOUZA: Mr. Lim, do you know that after you change your request for, from one- acre Agriculture to two-acre, did the Nanawale Community Association take a position on the latest request? LIM: Yes, we are understanding, Mrs. Hadaller was supposed to be here today, but we were understanding that they have no problem with the request. In fact, I guess, you know, the only thing that would be is a little bit worse for them because they would get half of what the assessments that they normally would have gotten under the original proposal. TANAKA: Mr. Lim, thank you for clarifying that issue about the fair share assessment and when you went before the Council, you know, you decided to change from a Ag-lA to -2A. I think we were somewhat under the impression that you were trying to skirt that issue. So thanks for LIM: Yeah. TANAKA: Clarifying that. I just wanted to know, or to clarify, how much land has the developer donated to the Association? LIM: The developer has donated a lot of land, more than I think any other developer in the area. They had 14 park sites of approximately 27-1/2 acres, plus an additional site for the Community Association building, which is the long house that you, if you're familiar with the area, which is the orange dot. All these yellow dots are park sites, which range approximately 1-1/2 acres to two acres a piece. This is a larger parcel of about 10 acres, which was designated for the planned community center, and they were going to get HUD funds to run a water line and everything for, and the building for that parcel. But because of the objections of a couple residents across the street, they pulled back on that project and they built the fire station at this first park site that's along Kehau Road. So what that does, you know, running the water line up to [his first ballpark site will now bring, makes it very easy to bring the water line another big city block or so to the 12-acre piece that we're proposing. TANAKA: Okay. So quite a bit of contributions then. Second question for me is, is it Ms. Hadaller? LIM: Yes, Mrs. Hadaller, Ruth Hadaller is the president of the Association. TANAKA: Okay. And she supports this amendment to your change of zone. How many residents does she represent through the Association, approximately? -33- LIM: I would guess she represents all of them through the Association. The Association is comprised of approximately 4,000-plus members of the, all the lot owners in the subdivision. There's actually only about 430 houses there. So, you know, it's a question of who's there, who's not there. But she does represent, as I understand it, the entire Community Association, which is a114,000 lots. TANAKA: Okay. At least the majority then is in support of your action here. LIM: Yes. I think what happened, you know, to give some bit of history, is we were, on the developer's side, trying to figure out what to do with these lots. And once the Keaau DOE improvements started to go in, both us and the Community Association started to talk about the possibility of doing something with these school sites. And I think that, I know that for some years, at least two or three years prior to our discussions, that the Nanawale Community Association had been working with Pahoa High School and DOE to try to get a school site in there. And once the Keaau funding went that way, you know, they realized, I think, that the Keaau School and the Keonepoko Iki School were going to basically take up all of the Puna DOE money for at least the foreseeable future. And so that's when we got into these discussions about possibly putting the, giving the 12-acre site, which is a minimum DOE required site for an elementary school, to them so that they could at least implement a private school or schools there. TANAKA: Okay. Another question was we've heard from two of the members of the County Council speak to us today on their concerns. Have you had any discussions with the County Council member that represents the district? LIM: Yes, I've had discussions with Mr. Al Smith, and Idon't TANAKA: We were hoping that he would LIM: Know where he went. TANAKA: Be here, but he's not here yet. LIM: But, you know, I think it's fair to state that he hasn't taken a position yet. We didn't go to vote on the Planning Committee level at the Council, so I, you know, hesitate to say what he thinks about it. TANAKA: Okay. Last question for me. You said that in speaking with Mr. Orlando and his group, you offered him a sale price of $69,000 for the piece of parcel. You don't, have anything concrete back from him. If, despite the contributions given to the Association, and basically the community and the public, if there is still a necessity, a public necessity for this land to remain open, was there any communication with Council Members about possibly the Council funding to acquire this land? -34- LIM: No, we haven't taken any steps towards that, nor has anybody TANAKA: Do you think they would be LIM: Mentioned it. TANAKA: Favorable to that, if they felt that there was a strong public necessity ' despite what you have done thus far as a developer? LIM: I don't know what they would say. But my guess would be that they probably have funding requirements for other more real type projects. I mean, you know, there's a lot of social services that are required for funding. And I think that for them to spend money on buying a 10-acre piece that really hasn't been determined by any governmental agency to be pristine to, would be a little hard. TANAKA: So in your opinion, it's not that high on their priority list then? LIM: I don't think it would be. TANAKA: Okay. Thank you. Commissioners, any further questions? MCINTOSH: Yeah, just TANAKA: Commissioner McIntosh. MCINTOSH: Just one. The total acreage involved in the whole development was what, at the beginning? I can't find it any place. Because in the Background Report, we're dealing only with the parcels that are, that are currently being addressed. LIM: I have to MCINTOSH: And Ididn't LIM: Confess. I don't know. MCINTOSH: Have my previous stuff with me to know. TANAKA: Staff; do you have that information? FUJIMOTO: No, I don't. MCINTOSH: It's, I mean, it's -35- FUJIMOTO: I just have the number of MCINTOSH: Eight thousand 8,000-square foot lots. ORLANDO: Approximately 600 acres. MCINTOSH: Oh, so it's only 600 acres? ORLANDO: One-sixth of an acre lot, 4,000 lots. LIM: No, I don't think I have that right in front of me, sorry. MCINTOSH: Okay. Yeah, I would also compliment Mr. Lim on his explanation of the removal of the fair share assessment. However he explains it, the net effect is the same. LIM: That is true. I mean, essentially what we feel like is we could get credits for many of those things because we put in roads, we put in water easements, we put in the parks. We've got more parks, I think, than the requirement is today even. So, you know, it was a situation of I knew we could satisfy it in terms of a credit later on. But I didn't want to have it in the rezoning ordinance because we are going to have a hard enough time selling it without that. MCINTOSH: Can I just satisfy my own curiosity, how you arrived at the asking price for the 10-acre parcel? LIM: I didn't do that, but I am assuming that they based it on comparables. TANAI{A: Commissioner Souza. SOUZA: Just a statement that, interesting to note that Mr. Lim said that looking at the range, long-range plan, that the land that was set aside for public uses, I mean, it's not needed because you only got a 10 percent build-out. By the same token, if you get a 10- percent build-out, why you need more lots? LIM: That's true. I mean, it goes to the question of whether you should have any rezonings in Puna at all. MCINTOSH: Right. SOUZA: That's right. MOSHER: Yeah. -36- TANAKA: Okay. LIM: But like I said, if you're going to do that, if you're going to take that position, then you should make a public policy statement so that everybody knows. TANAKA: Right, Island-wide. LIM: Yeah. TANAKA: Commissioners, any further questions? KUBOTA: I have a TANAKA: Commissioner Kubota. KUBOTA: I have a question of the Director. TANAKA: Go ahead. KUBOTA: You know, going back to the report from DPW, Virginia. GOLDSTEIN: Yes. KUBOTA: You know, the second number two, they are having problems with water in that subdivision, many problems with private water lines or water meter permits. They refer to the Water, Department of Water Supply. And can you Not being privy to previous discussions on this issue, can you explain or give me a rationale as to why the recommendation was made to approve this, a favorable recommendation, this change in zoning and GOLDSTEIN: Because of the water or because of the roads? KUBOTA: Well GOLDSTEIN: Because KUBOTA: It says water. GOLDSTEIN: Public Works KUBOTA: It talks about, it talks about the roads, as well as the water. TANAKA: So your question is both. -37- KUBOTA: December 17th. Well, I understand the roads. I understand the roads, but I don't understand this water bit. My understanding was that water availability is critical to subdivisions. GOLDSTEIN: Yeah. And actually, my recollection, and this is only recollection because when we discussed this, it was a while back, we were considering possibly not going with one of the possible change of zones because there was a question whether water was available or not available. Isn't that right, Phyllis? FUJIMOTO: Yes. Maybe I can explain. GOLDSTEIN: Yeah, I think you FUJIMOTO: Okay, for the two properties Well, let me go back a little bit. Okay. These two properties are situated in the State Land Use Urban District, and for those properties in the Urban District, absence of water, we applied what was called the Council • Reso 247, which allows us to review the requests in line with seven criteria. And these parcels did meet the seven criteria that were outlined, and that was in the Background and the Recommendation; and that was our basis for our decision. TANAKA: Basically, that Reso allows you to approve based on catchment, is that what that is? FUJIMOTO: Yeah. Well, it gives TANAKA: Okay. FUJIMOTO: Standards for water, yes. TANAKA: Okay. FUJIMOTO: In absence of County water system. TANAKA: Okay. And what about the other parcel? ' FUJIMOTO: Okay. The other parcel is situated in the State Land Use Agricultural District, so that Council Reso does not apply. LIM: I guess TANAKA: Commissioner McIntosh. MCINTOSH: Yeah, I guess I need to talk with Casey. I don't understand how, why -38- GOLDSTEIN: Yeah. MCINTOSH: DPW is making comments about Department of Water Supply water lines. How is the Department of Water Supply, I mean, how is DPW having an unmanageable problem with water lines? Because there are a whole bunch of them instead of one big one? YANAGIHARA: The Department of Water Supply main line comes down the County road and ends. What's happening at that TANAKA: Casey, use the map so you can kind of show us where you're talking about. MOSHER: Where's the County roads? YANAGIHARA: The County roads are Nanawale Boulevard. MOSHER: Okay. YANAGIHARA: And Kehau. KUBOTA: Can you point them out with the pointer so that we know exactly what you're talking about? YANAGIHARA: Sorry. Nanawale Boulevard is a County Road, I believe Hapu`u is, also, and Kehau; and there's another small piece in here which is also County, it starts with an • M. MCINTOSH: What about Hapu`u and Maluhia? KUBOTA.: Flower. YANAGIHARA: Pardon? That's all private. MCINTOSH: It says here Hapu`u Road and Maluhia Road are also County roads. YANAGIHARA: Maluhia, yeah, that's the one here. MOSHER: Oh, that little one. YANAGIHARA: Is County. And Nanawale's County, and Hapu`u is County, and I think Kehau is also County. ORLANDO: Yeah, Kehau is County. ' -39- MOSHER: Yeah. YANAGIHARA: And the rest is all private. KUBOTA: So where does the YANAGIHARA: The water, the water, well, Glenn can assist me, but Water Supply's line ends somewhere PUBLIC: Down by Maluhia Road, by the first YANAGIHARA: Well, but whatever the case, it's, if you can imagine the termination of that main line; and then what happens is Water Supply issues all these water meter permits and they gang up all the water meters, you know, those square boxes, all over the place. MCINTOSH: At the end of the main line? YANAGIHARA: At the end of the main line. And then what happens there is people just lay their lines, PVCs or whatever they have, on the surface and just run them alongside the road wherever there is room. MCINTOSH: So you're winding up with the same situation YANAGIHARA: A spag, yeah. MCINTOSH: They had in Coast View. YANAGIHARA: Sort of like a spaghetti. MCINTOSH: Where you could have six YANAGIHARA: Yeah. MCINTOSH: Lines going down the road. YANAGIHARA: Right. Or more. MCINTOSH: So there's no County standard that says water lines have to be buried or encased or YANAGIHARA: Well, we're trying to go to that mode right now. But there are standards for water meter locations, but Glenn can answer that question. -40- MCINTOSH: I guess I'm confused as to why the Water Supply isn't objecting to this, why it's Public Works. And is it because the lines are actually YANAGIHAI2A: Well, it's unmanageable because the water lines are on the surface MCINTOSH: In a right-of-way. YANAGIHAI3A: In the right-of--way. MCINTOSH: Okay. YANAGIHARA: That's a County road, County right-of--way, and it's getting to be a problem or it is a problem, and not only in Nanawale Estates but, you know, other subdivisions. And Glenn can answer why they're allowing this to happen. MCINTOSH: Okay. AHUNA: Thanks a lot, Casey. Basically, the Water Department has a philosophy that every lot in the Island is, you know, can have water. We try to provide the water. When we say water is available, it's not necessarily at the property, it could be someplace else. Now, the issue of the meters being all ganged up has been kind of resolved by a project that we just completed, or about to be completed, I think, it's along Kehau Boulevard where we extended the line and relocated some of these meters so [hey are not all bunched up. Now, we are still granting meters along that road. But they have, the customer has to show us that he has the easements for the property owners that he's going to cross; and also the, there's a private, a lot of private roads in [here, too, so they have to show us that they have the easements before we will grant them the water meters. MCINTOSH: And I have to assume because the recommendation was positive, that a review of rainfall and roof and etcetera for catchment indicates that there is sufficient rainfall in this area to support a single family residence on a catchment system. AHUNA: That's not our recommendation. That would have come from Planning. We don't address that issue. MCINTOSH: That's right, you don't like that, do you? AHUNA: No. MCINTOSH: You don't like that resolution. AHUNA: But I would assume from the rainfall in that area there is sufficient water for a catchment system for a single family house. -41- MCINTOSH: So all these water lines that are being run are actually for guaranteed backup AHUNA: Yeah. MCINTOSH: Sources? AHUNA: Assurances, yeah. MCINTOSH: Okay. AHUNA: I might make a comment, also, that we are going through a process of, I mean, cooperating with the Public Works Department to require that any water meter application, they will have to show us that they have the necessary easements, County, State or private consent from the adjacent landowners. So I think in Kona, in the case of Kona, it's going to have a real big impact. So we are considering that so MCINTOSH: I always thought you did. MOSHER: Yeah. MCINTOSH: Seriously. AHUNA: Well, in a sense that we told the landowner or the customer that they had to acquire the necessary easements. We didn't enforce it, but now we will be. MOSHER: Oh. MCINTOSH: You just didn't see You just didn't see them, you just accepted their AHUNA: Right. MCINTOSH: Representation that they had them. AHUNA: Yeah, and we had them sign an agreement that they are going to do it. MCINTOSH: Okay. ORLANDO: May I make a comment? TANAKA: Hang on. Hang on. -42- ORLANDO: Okay. TANAKA: I'll let you come up if ORLANDO: Thank you. TANAKA: You have new testimony. Commissioner Mosher. MOSHER: I have a question. Are you going to require all of these lines to be underground, or are they just going to remain AHUNA: The requirement MOSHER: Above ground? AHUNA: For the underground would be with the Public Works Department and the State Highway to get the permit to install the, I mean, their consumer water line within public right-of--way. After the meter, we don't really have jurisdiction. So any line that's after the meter is the Applicant's responsibility. And if he's going through a County road or a State highway, he'd have to get a permit from them and construct the water line underground. MOSHER: So many of those lines are just going to remain above ground until someone AHUNA: Well, as long as it's there MOSHER: Changes that? AHUNA: Existing, we won't do anything about it. MOSHER: You can't change it. AHUNA: But any new application that comes in, we're going to look at it more closely now. MOSHER: Okay. TANAKA: So bottom line is water is available then? AHUNA: Yeah, but it's not fronting the property. TANAKA: Right. Okay. Any other questions? Anyone else, new testimony? -43- ORLANDO: We just have one question to what he said was TANAI{A: Come up to the table, and you can direct the questions to the Commission. ORLANDO: What if one of the property owners would not grant the easement for a Public Works water line to access across their property? AHUNA: Like I said, in this situation, the Nanawale, for the line extension that we did along Kehau Street, any application that came in, new application, we would have to have verification that he had the necessary easements through the private road as well as the, you know, public property, I mean private property. ORLANDO: So say there's a hundred lots, and then out of those hundred lots, • 25 people don't want the line going across their lot, can they Can they stop the permit then? AHUNA: We wouldn't allow the water meter to be for that person anyway. ORLANDO: So you have to have a easement, a granted easement AHUNA: Yeah. ORLANDO: From each lot owner. AHUNA: Yeah. ORLANDO: Okay. Thank you. TANAK.A: Is there anyone else in the public that would like to testify on a new testimony? Okay. GIANNINI: That's relevant to this. TANAKA: Yeah, new testimony that is relevant to the Mr. Hayashi, are you still here? JACOBSEN: Thank you so much for letting me come up a second time, I really appreciate it. And I do have another appointment, so I'll keep this quite brief. I guess just three comments to things that have TANAICA: For the record, this is Council Member -44- JACOBSEN: Excuse me. TANAKA: Julie Jacobsen. • JACOBSEN: Yes, thank you. That have come up. To the issue about the Community Association's position versus the testimony that's been provided about the residents' opinion, I think I have a little bit of additional information from several friends of mine that are residents in the Community Association. And their, these comments came out not at all in relation to this project but in relation to community associations, and their relationship to their communities, and the degree to which they represent them. And the comment was made to me of, in relation to my subdivision, they said, "Oh, well, you folks get along really well." And I was commenting to the fact that well sometimes the associations are not seen as representative of their districts. And this person said to me, "Well, down here in Nanawale, we have such heated disagreements that we have to have the police present at most of our community association meetings." So I don't know how it relates exactly to this particular situation. But in terms of, it does throw out the question that you cannot assume that, that a community association leadership is necessarily in sync with its community; and I think that's pretty good evidence that there is a lot of areas of disagreement. And then one other point I wanted to make that I made at the County level when we discussed it was that there were pages, gosh, I remember there was more than one page of properties from Nanawale that came up at the delinquent tax auction; and my understanding is that the ' vast majority of those did not sell. Now, again, I don't have my statistics to tell you exactly how many did or did not sell. So to the issue of really where is the market for these, I think that should be considered. I guess analogy I would make is it's like a store that's having business troubles, and if they are not selling their merchandise and it's building up, and the decision is to increase the inventory to try to solve that problem, and it's just absolutely in defiance of commonsense that the resolution to a problem of surplus is to acquire more, more items for sale. So I guess I just wanted to make those points. Thank you. TANAKA: Okay. Thank you. Mr. Orlando. We ask you to keep it brief, too, please. ORLANDO: Brief, very brief, a couple points. Being aresident, Ican TANAKA: This is ORLANDO: Answer some things TANAKA: Mr. Barry Orlando who is speaking to us now. -45- ORLANDO: Pretty specifically. The water issue. Okay, there is not enough water. Every family who lives in Nanawale desperately needs water, that's why there aze so many lines being run down the roads that do not comply. We have constant problems with lines breaking and leaking and damaging private property along the road, damaging public roadways, constant problems. The lines are run Willy-nilly. If you have more than one person living in a house, rarely will the rainfall actually support it. In my opinion, this is good, because it builds a nice private business for water suppliers and water trucks, okay; but there aren't enough of those to supply the lots that are there. The prices are exorbitant now. To add more need, especially to add the need that atwo-acre lot would require, would be unsupportable. The, I have to concur with Julie about representativeness of the Board. This is not a representative Board. This is a Board of a corporation; these are corporations. And, in fact, what happens in all of these boards is the process of electing the boazd, many of the replies that I got back from my survey were my, how nice, this is the first informative letter we have ever received in our 20 years of owning a piece of land here. We couldn't understand a word of what came out of the Carlsmith, Ball's letter. It referred to County ordinances and didn't give us any information at all. Thank you for giving us some information we can actually go on. Grubbing, yes, it's true that an ohia might reach 30 feet in 30 yeazs, but it won't reach 36 inches diameter in 30 yeazs. None of this land has been grubbed. The subdivider, in my knowledge, and I have read every single page in this subdivision files downstairs, never claimed that it was grubbed; and all you have to do is walk out there to find out. Try walking out there; it's a lot of fun. Take your boots. TANAKA: Okay. Thank you, Mr. Orlando. ORLANDO: In fact, let someone know, because you'll probably disappear down a cave. TANAKA: Is there anyone else in the public that would like to testify? • Commissioner McIntosh? MCINTOSH: Sure. Seeing no further public testimony, I move that we send an unfavorable recommendation on County Council Referral Bill No. 75 since no definitive public need requirements have been met. MOSHER: Second. TANAKA: We have a motion by Commissioner McIntosh, a second by Commissioner Mosher, that we send an unfavorable recommendation, and we're on Bill -46- No. 75 of the County Council Referral, Change of Zone Application 98-27 for Nanawale Estates, for the reasons as stated. Any discussions? Commissioner Baker. BAKER: Yes. I'd like to say that I'll be voting no; and [he last time I voted yes is because of the change of the assessment fees; and I believe that the first time when I looked at it although it was a thorn between what the relationship and the commitment of an open space being taken out I felt that the impact fees and the, would help the area in that some of the changes that this would bring about because I realize that that's an important thing, too. But now that there's no impact fees involved I'll be voting no. GIANNINI: Excuse me GOLDSTEIN: Excuse me. Are you voting no overall to the project or to her specific motion? GIANNINI: Yeah. TANAKA: We have an unfavorable recommendation. GOLDSTEIN: Yeah. TANAKA: So it will be BAKER: Yeah, I'll be voting with the unfavorable. What I mean is the last time I voted yes. GOLDSTEIN: Okay. BAKER: Sorry, I'll clarify myself. TANAKA: Commissioner Souza? SOUZA: Mr. Chairman, last time, if I recall correctly I voted against approval and I continue to do that because basically I don't think it's right that the developer made representations, and those representations aze even listed by the former Planning Director. I don't think it's right to change the, you know, change the game now, the rules for the people. I really feel for the people who bought property close by or in the area that felt that they would have this in open space, or at least for other public uses. The other thing that really bothers me and even, we didn't discuss this at the last meeting, but it bothers me now, that here we're going to approve 2 acres agriculture and we're going to put a covenant on the land saying you cannot do agriculture. That bothers me. It really bothers me. I don't think it's • fair for taxation. I think that's a way that developers can circumvent the taxing system; and I -47- just think it's so unfair that we cannot allow zoning for something and then put a covenant that you cannot allow what you zoned the land for. TANAKA: Commissioner Mosher? MOSHER: I seconded the motion and didn't state my one reason, well, I have many reasons, but I'm quite concerned about the grubbing of the land; and I just don't want to see the old trees and old caves not be considered. TANAKA: Okay. I'll just offer my comments. The last time around I supported the favorable recommendation. I won't tell you how I'll vote, I'll just offer some comments at this time. You know, I think despite the concerns that were mentioned by the people that live in the community, I also, one comment that was made by the applicant is that, you know, this subdivision was designed and built over 30 years ago. And hence we see some of the problems that have come up with the County zoning versus the State zoning, the CC&Rs that are imposed on the residents. So I think that it's dynamic based on what's happening with the economy and the community as well. And so we should have some allowance for changes. I asked Mr. Lim about the, you know, the fair share contribution was something that really alarmed me. As I was reading the reports, and it looks like on the surface that possibly depending upon how you read i[ and interpreted it that maybe the applicant was trying to skirt away from the fair share contribution, although we as Commissioners know that we do not have something set by law or by ordinance for the County Council to do that. Nonetheless there is a requirement for us to provide some kind of funding so that we don't have these problems with DPW and the Department of Water Supply coming before us and saying, hey, we have inadequate infrastructure. Because if that were the case then nothing would happen on the Big Island. We'd be at a standstill. In fact, we'd be going backwards if that happens. I think the property owner has rights also to change with the times. I think that the County should provide their fair share. And if there was a need for a public necessity in further open lands and further than what was already contributed by the developer, then perhaps the County Council should look at that as far as acquiring the land. Any other further discussions? Roll call. FUJIMOTO: Commissioner McIntosh? MCINTOSH: Aye. FUJIMOTO: Cotrunissioner Mosher? MOSHER: Aye. FUJIMOTO: Commissioner Baker? -48- BAKER: Aye. FUJIMOTO: Cormissioner Kubota? KUBOTA: Aye. FUJIMOTO: Commissioner Souza? SOUZA: Aye. FUJIMOTO: Commissioner Togashi? TOGASHI: No. FUJIMOTO: Mr. Chairman? TANAKA: No. FUJIMOTO: Mr. Chairman, there are five ayes and two noes. The motion carried. BILL NO. 76 TANAKA: Okay, we'll go on to the next bill, Bill No. 75, Change of Zone application, oops, 76, I'm sorry, Change of Zone Application 98-28. Again, this is by the Nanawale Estate Company, County Council Referral Bill No. 76. MCINTOSH: I move TANAKA: Commissioner McIntosh. MCINTOSH: That we send a negative recommendation to the County Council on Referral Bill No. 76 due to lack of any affirmative, definitive justification for removing the property from the open zone. SOUZA: Second. MCINTOSH: Thank you. TANAKA: Okay, we have a motion by Commissioner McIntosh, a second by Commissioner Souza, for an unfavorable recommendation to the County Council, Change of • Zone Application REZ 98-28, Nanawale Estates Company, County Council Referral Bill No. 76. Any discussions? Okay, roll call. -49- FUJIMOTO: Commissioner McIntosh? MCINTOSH: Aye. FUJIMOTO: Commissioner Souza? SOUZA: Aye. FUJIMOTO: Commissioner Baker? BAKER: Aye. FUJIMOTO: Commissioner Kubota? KUBOTA: Aye. FUJIMOTO: Commissioner Mosher? MOSHER: Aye. FUJIMOTO: Commissioner Togashi? TOGASHI: No. FUJIMOTO: Mr. Chairman? TANAKA: No. FUJIMOTO: Mr. Chairman, there are five ayes. Motion carried. BILL NO. 77 TANAKA: Okay, we'll move on to the next Bill No. 77. It's a Change of Zone Application 98-29, Nanawale Estates Company, County Council Referral Bill No. 77. MCINTOSH: Mr. Chairman? TANAKA: Commissioner McIntosh. MCINTOSH: I move we send an unfavorable recommendation on Change of Zone Application REZ 98-29, County Council Referral Bill No.77 since no affirmative evidence was submitted to justify removing the property from the Open zone. -50- MOSHER: Second. TANAKA: Okay, we have a motion by Commissioner McIntosh and a second by Commissioner Mosher that we send an unfavorable recommendation to the County Council for the Change of Zone Application REZ 98-29, Nanawale Estates Company, County Council Referral Bill No. 77. Any discussions? Okay, Roll call. FUJIMOTO: Commissioner McIntosh? MCINTOSH: Aye. FUJIMOTO: Commissioner Mosher? MOSHER: Aye. FUJIMOTO: Commissioner Baker? BAKER: Aye. FUJIMOTO: Commissioner Kubota? • KUBOTA: Aye. FUJIMOTO: Commissioner Souza? SOUZA: Aye. FUJIMOTO: Commissioner Togashi? TOGASHI: No. FUJIMOTO: Mr. Chairman? TANAKA: No. FUJIMOTO: Mr. Chairman, there are five ayes. Motion carried. The discussion ended at 11:55 a.m. Respectfully submitted, Sharon M. Nomura, Secretary -51-