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HomeMy WebLinkAboutMIN PC 2022/10/18 2020-2022 Committee on Planning 32nd Session West Hawai`i Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawai`i October 18, 2022 CALL TO The regular meeting of the Committee on Planning was called to order at 2:33 p.m., ORDER: in the Council Chambers, Kailua-Kona, by Ms. Ashley L. Kierkiewicz, Chair. ROLL CALL: Present: Ms. Ashley L. Kierkiewicz, Chair Ms. Rebecca Villegas, Vice Chair Mr. Aaron S. Y. Chung, Member (came in later) Ms. Maile Medeiros David, Member Mr. Holeka Goro Inaba, Member (came in later) Mr. Matt Kaneali`i-Kleinfelder, Member Ms. Heather L. Kimball, Member Ms. Susan L. K. Lee Loy, Member Mr. Herbert M. "Tim" Richards, III, Member (came in later) STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individual registered to speak and came forward when called by the Chair: Dwight Vicente: Res. 576-22 (Comm. 1037); Bill 204 (Comm. 952), and Bill 222 (Comm. 1031),'comment. CHR. KIERKIEWICZ: Mr. Clerk, if we could please start with Order of Resolutions. ORDER OF The Chair directed the Committee to proceed to the next order of business, Order RESOLUTIONS: of Resolutions. PC-32 October 18,2022 Res. 576-22: ACCEPTS A GRANT OF PUBLIC ACCESS AND PRESERVATION EASEMENT FROM KULEANA SPIRITS, INC., TAX MAP KEY: 5-5-006:010 (Area: 43.854 Acres) Provides for the preservation of pedestrian and vehicular public access along the makai property boundary to align with the historic Ho`ea Road in North Kohala. Reference: Comm. 1037 Intr. by: Ms. Kierkiewicz (B/R) Motion to Approve: Ms. Lee Loy moved to recommend adoption of Res. 576-22. Seconded by Mr. Inaba. CHR KIERKIEWICZ: Seeing that this is a request from the Planning Department, if their representative could please come forward and give the Council a high-level overview of what's being requested. Pretty self-explanatory, but just for the record. Aloha Corporation Counsel. (Note: At this time, Deputy Corporation Counsel Jean Campbell came forward to address the members of the Committee.) MS. CAMPBELL: Good afternoon everybody. As Ashley mentioned, Jean Campbell, Deputy Corporation Counsel, representing the Planning Department, and really here sort of only, not in my legal capacity,just on behalf of the Planning Department. Not because there's legal concerns with this easement, but because the Long-Range Planner that worked on this with me is no longer with the County, and so I'm sort of the only person around to give you sort of the big picture background. And as Council Member Kierkiewicz mentioned, the resolution, I think, probably gives you everything that you mostly need to know. This public access easement is across a property that is adjacent to Upolu Airport Road, which its makai boundary is the Upolu Airport itself. The requirement for public access easement is the result of a 2002 settlement agreement with the previous owner, and the access easement was expanded a little bit from public access to also include a preservation element in 2018 together with an SMA (Special Management Area) use permit approval that was granted for the property. And so, the provision of the access easement is a satisfaction of a condition for that SMA approval. It does provide a pedestrian and vehicular public access easement along the makai boundary of the property, and also includes Historic Preservation requirements that were in compliance with a SHPD (State Historic Preservation Division) preservation plan. And I'm happy to answer any questions that you might have. Page 2 PC-32 October 18,2022 CHR KIERKIEWICZ: Thank you, Ms. Campbell. Council Members any questions or comments on the resolution before us? Seeing none, thank you, Ms. Campbell for the overview. Glad that we're finally able to get this over the finish line. With that said, all those in favor please say "aye." Vote on Res. 576-22: The motion to recommend adoption of Res. 576-22, (Approved) was carried by the following voice vote: Ayes: Committee Members Chung, David, Inaba, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz—8. Noes: None. Absent: Committee Member Richards — 1. Excused: None. CHR KIERKIEWICZ: Motion carries. Resolution 576-22 moves forward to the Council with a positive recommendation. Thank you. Mr. Clerk, if we could move on to Bills for Ordinances, I would like to start with Bill 222. Change Order As directed by the Chair and with no objection from the Council Members, the of Business: following item was taken out of order: BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. Bill 222: AMENDS SECTION 25-8-19 (NORTH HILO ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL—20 ACRES (A-20a) TO FAMILY AGRICULTURAL— ONE ACRE (FA-la) AT `O`OKALA, NORTH HILO, HAWAII, COVERED BY TAX MAP KEYS: 3-9-001:023, AND 031 (Applicant: Leonard Cardoza Trust) (Area: 15.404 Acres) The Windward Planning Commission forwards its favorable recommendation for this change of zone request, which would allow the applicant to apply to subdivide the property into seven lots. The property is located to the north(makai) of Mamalahoa Highway, approximately 270 feet east of its intersection with Milo Street, Portion of Humu`ula and `O`6kala, in North Hilo. Reference: Comm. 1031 Intr. by: Ms. Kierkiewicz (B/R) and Comm. 1031.1: From Planning Director Zendo Kern, dated September 26, 2022, transmitting the transcripts from the Windward Planning Commission's September 1, 2022, meeting. Page 3 PC-32 October 18,2022 Motion to Approve: Mr. Lee Loy moved to recommend passage of Bill 222 on first reading. Seconded by Mr. Kaneali`i-Kleinfelder. CHR KIERKIEWICZ: If I could please call up the applicant and/or their representative? Thank you, gentlemen for joining us. If you could please introduce yourselves for the record and provide an overview of the request that Council Members will deliberate on today? And I believe we have Planning Director Zendo Kern available from the Planning Department in Hilo Chambers. Okay, thank you. Gentlemen, you have the floor. (Note: At this time, Planning Consultants Daryn Arai and Sidney Fuke, and the applicant Leonard Cardoza came forward to address the members of the Committee.) MR. ARAI: Good afternoon, Chair Kierkiewicz and members of the Committee. My name is Daryn Arai, I reside in Hilo. I'm here assisting the applicant Leonard Cardoza, who's sitting to my right; also,joining us today is Sidney Fuke who's appearing in the Hilo Chambers. And he's here also assessing me in particular. In a nutshell, this change of zone request of 15 acres from Ag-22 (FA-la) (Family Agricultural), in support of a seven-lot subdivision, is consistent with the General Plan, as well as the Hamakua Community Development Plan, which identify these lands for low-density urban uses. This is particularly right for this type of use if you look at the layout of the property, which first and foremost was used as a service yard for the nearby `O`okala Sugar Mill. So if you look at the aerial photo, there's a series of Cane Hall Roads that crisscross the property. And those very roads can be used to service the proposed lots in this subdivision. But what was really interesting, it's always good to come to Kona to appear before you in person, but it also gives us the opportunity the applicant and I, to talk story on the way out. And what I didn't realize was the mauka portion of this property along the Old Mamalahoa Highway was the former site of the Machida Camp, and that consists of 20 plantation homes. So not only is this proposed request consistent with the land use policies and plans for this particular area, it is also historically appropriate. So with that, we hope that you find this change of zone request, at least it's a favorable recommendation, likewise. So we stand ready to answer any questions that you may have. CHR KIERKIEWICZ: Thank you, Mr. Arai. Opening it up for questions and comments from my colleagues. Mr. Kaneali`i-Kleinfelder. Page 4 PC-32 October 18,2022 MR. KANEALI`I-KLEINFELDER: Thank you, Chair. I have one. Mr. Arai, you said this is 15 acres, but it's listed as 14.968. That is really close to being 15, but at 15, it kicks into State decision-making, correct? MR. ARAI: That is not correct. That would be correct if the proposed request required a State land-use boundary. I'm sorry, the echoing is throwing me off. Sorry. But, where was I? If the rezoning required a State land-use boundary amendment to the urban district, then yes, the 15 acres is the cut off. But this FA-la zoning is consistent with the agricultural designation of these lands. So, it's just a change of zone today. MR. KANEALI`I-KLEINFELDER: Okay. Thank you for the correction. Appreciate it. I yield, Chair. CHR KIERKIEWICZ: Ms. Kimball. MS. KIMBALL: Thank you, Chair. Hello, nice to see you Daryn, and Mr. Cardoza, nice to see you again. I'll just weigh in on this because it is in my district and to orient folks. This was, I don't know if you remember,just a couple short weeks ago, there was a fire in `0`6kala. This is the same general area. In fact it melted the notice sign. I went by and checked it out. I was reflecting on this last night as I was, you know, preparing for today. That had that lot been subdivided and had people living on it and manicuring the lawn and taking care of it, it wouldn't have been open field ready to burn. Like it did, which really, you know, caused a lot of anxiety for a lot of the area residents. As stated, it is in alignment with the General Plan. It is in alignment with the CDP (Community Development Plan), and it's in alignment with historical usage for the area. I think any more than the seven proposed lots, you know, might be a little bit more concerning. But, I think it's a reasonable use of the area and since it's constrained by that water. And the layout of the roads as it is, I think it makes sense. We did get some testimony about any requirements for upgrades to the internal streets. While I do fully support complete streets, I've said this before, it wouldn't actually suit the character of the neighborhood on those internal streets to have curbs, gutter, sidewalk development. It's a more rural area, and there isn't—we're not talking about, you know, major thoroughfares or anything like that. So you know, I think that given recommendations are appropriate. So, thank you, Chair. I yield. CHR KIERKIEWICZ: Thank you, Ms. Kimball. Anyone else? Mr. Inaba. Page 5 PC-32 October 18,2022 MR. INABA: Thank you. Quick question on the fair share. How do you folks what is the funding mechanism for that? How do you intend to pay for the fair share? MR. ARAI: I'm sorry, could you repeat that? MR. INABA: How does the applicant intend to pay the fair share contributions? Is there funds prepared to pay that? MR. ARAI: During the subdivision process, prior to the issuance of final subdivision approval, the applicant must make their obligatory fair share contributions. There is an affordable housing requirement attached to the proposed conditions, and the applicant will be required to satisfy those. The fair share contributions may not apply to those lots that will be set aside to satisfy the applicant's affordable housing obligations. MR. INABA: The applicant does have funds prepared to pay for the fair share contributions that are not a part of the affordable housing lots? Is that correct? MR. ARAI: I would say, yes he does, but maybe you should get it directly from him. MR. CARDOZA: Yes, I do. MR. INABA: And could you introduce yourself, please? MR. CARDOZA: Leonard Cardoza. I'm the owner of the property. MR. INABA: Thank you. And when do you intend to get final subdivision approval? MR. CARDOZA: That's what we're working on right now, I believe. MR. ARAI: The applicant does have a surveyor in mind that he has used in the past, and should he be successful on securing this change of zone, then he will immediately retain the services of that surveyor and proceed with the preparation of a subdivision application. The proposed conditions does require a completion within five years, if I remember correctly, and he intends to accomplish that within that time period. MR. INABA: Thank you, Mr. Arai that was the question. Chair, I yield. Page 6 PC-32 October 18,2022 CHR KIERKIEWICZ: Thank you, Mr. Inaba. Anyone else? Okay, seeing none, there is a motion on the floor to forward Bill 222 to the Council with a favorable recommendation. All in favor please say "aye." Vote on Bill 222: The motion to recommend passage of Bill 222 on first (Approved) reading was carried by the following voice vote: Ayes: Committee Members Chung, David, Inaba, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Richards, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR KIERKIEWICZ: Motion carries. Gentlemen, we will see you in two weeks for first reading. MR. ARAI: Thank you so much. Much appreciated everyone. CHR KIERKIEWICZ: Thanks for being here. Mr. Clerk, let's go back to Bill 204. Return to Order The Chair directed the Committee to return to the order of business. of Business: Bill 204: AMENDS SECTION 25-8-3 (NORTH KONA ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL—FIVE ACRES (A-5a) TO FAMILY AGRICULTURAL —ONE ACRE(FA-la) AT KAILUA-KONA, NORTH KONA, HAWAII, COVERED BY TAX MAP KEY: 7-5-017:043 (Applicant: Siting Chen) (Area: 14.968 Acres) The Leeward Planning Commission forwards its favorable recommendation for this change of zone request, which would allow the applicant to apply for a subdivision of the parcel into 11 lots of at least one acre. The property is located on the south side of Hualalai Road, approximately 0.6 miles east of its intersection with Queen Ka`ahumanu Highway, Wai`aha 1st, Puapua`anui 1st in North Kona. Reference: Comm. 952 Intr. by: Ms. Kierkiewicz (B/R) Postponed: September 6, 2022 (Note: There is a motion by Ms. Lee Loy, seconded by Ms. David, to recommend passage of Bill 204 on first reading.) Page 7 PC-32 October 18,2022 and Comm. 952.1: From Planning Director Zendo Kern, dated August 24, 2022, transmitting the transcripts from the Leeward Planning Commission's July 21, 2022, meeting. ; and Comm. 952.2 From Deputy Planning Director Jeffrey W. Darrow, dated August 25, 2022, transmitting a response letter dated June 13, 2022, from Land Planning Hawaii Inc. (Note: Communications 952.4, 952.5, and 952.6, transmitting proposed amendments to Bill 204, were circulated.) CHR KIERKIEWICZ: Thank you, Mr. Clerk. If I could please call forward the applicant and/or their representative? There's already a motion on the floor. We had heard this one month ago, and there was a lot of questions, concern, and comments that were raised by this body. So wanted to put a pin in it for about a month so that the applicant and their representative could talk story with their representative from the district. And so, that's where we are today. If you could please introduce yourselves for the record? Let's start there and provide an overview of your meeting with Council Member Villegas and how we may proceed. There are several communications that folks, if you take a look at your pinkie folder, I'm introducing on behalf of the applicant, so we can have a broader discussion on that later. Mr. Pipan, you have the floor. (Note: At this time, Planning Consultant John Pipan came forward to address the members of the Committee.) MR. PIPAN: Very good. Good afternoon, thank you Committee Chair Kierkiewicz. Thank you Council Members for having us. Last month, we discussed this at good detail and good length, but we'll provide an overview. And thanks very much to Council Member Villegas for making time for us in your busy schedule to hash out some of the issues that were brought up at our last meeting. This property was previously proposed as an RS-10 (Residential Single-Family) and then an RS-15 development. They got very far in the rezoning process, and it stopped at the Council. They couldn't come to terms on the infrastructure that was required, and that's kind of a recurring thing here. Infrastructure, it's very important here. So we see a couple alternatives for the property playing out. It was attempted to get higher density residential zoning. Forty-some odd units would have been possible with that zoning. It failed. We see the alternative of status quo right now in Ag-5 zoning. Not much in the way of productive agriculture or housing has been accomplished on that property. So, we're left with kind of a Page 8 PC-32 October 18,2022 middle-of-the-road Goldilocks, not too dense, not too sparse, FA-1 a, Family Ag, one-acre zoning. So, we're envisioning, you know, up to 11 farm dwellings on this lot. Eleven properties, 11 families growing their food, you know, going to Farmer's markets potentially a very low-density, low-impact development. Fits in with the zoning that exists to the north and mauka, Ag-la, because Ag-1 is not necessarily allowed in zoning anymore. It's going to be Family Ag-la. We went back and we looked at the concerns that were brought up at Committee last time, the potential impacts to Hualalai Road, connection to the sewer, Ag-tourism. We saw all of these as kind of related. And it's a tough bullet to bite and a tough pill to swallow, but we do think that we can do dry sewers in the subdivision to help ease those concerns about septic systems. Also, we're proposing deed restrictions on agricultural tourism to prohibit that on the resulting lots and short-term rentals. So there wouldn't be any short-term vacation rentals, bed and breakfasts, lodges; anything of the like. And we think that serves to limit the impacts to area infrastructure. Hualalai Road is a little challenged, not up to standard. We see this as fitting in. It fits in with the General Plan, although we've got this line that cuts through. It can be interpreted a lot of different ways. And we hashed this out at the Planning Commission. They saw it as being appropriate, agreeing with the Planning Department's recommendation. We think this is low-density, low-impact, and it provides that much needed boost to housing of all types in the area. So with that, be happy to answer any questions you might have. Thank you. CHR KIERKIEWICZ: Thank you, Mr. Pipan. Council Members, questions or comments. Ms. Kimball. Ms. Villegas. MS. VILLEGAS: Sure. Thank you gentlemen, for meeting with me yesterday and taking the time to take into consideration the different concerns that were raised the last time we heard this here in Committee. And I mean, should we continue talking about the project as a whole, or go ahead and bring in the amendments? CHR KIERKIEWICZ: For Committee to talk about the amendments, I can take them up one by one. MS. VILLEGAS: Sure, because I was going to talk about them, but let's bring them in first, and then we'll talk about it. Page 9 PC-32 October 18,2022 CHR KIERKIEWICZ: Let's start with the first one. May I have a motion to amend Bill 204 with the contents of Communication 952.4? And that has to do with the restrictions. Motion to Amend: Ms. Villegas moved to amend Bill 204 with the contents of Comm. 952.4. Seconded by Ms. Kimball. MS. VILLEGAS: Fantastic, thank you. I just had a quick question for Corp. Counsel. Being a novice as far as deed restrictions, I just want to make sure that this is legal and viable. In reading through the notes from the Leeward Planning Commission's meeting, there were conversations about this neighborhood or subdivision not having any CC&R's (Covenants, Conditions and Restrictions). So, is this deed restriction then, Judge Strance, that legal way to forego to apply this restriction without having CC&R's is, I suppose, what I'm asking for. CHR KIERKIEWICZ: We're just noting for the record, we have Deputy Planning Director Jeff Darrow joining us via Zoom. Aloha, Jeff. (Note: At this time, Deputy Planning Director Jeff Darrow came forward to address the members of the Committee.) MR. DARROW: Aloha, Everyone. MS. VILLEGAS: Aloha, Jeff. (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Committee.) MS. STRANCE: Elizabeth Strance, Corporation Counsel. I do know that it's legal to require deed restrictions as part of the conditions, but I'm not quite sure what the general practice has been with the Planning Department and with what's being proposed now. MS. VILLEGAS: Okay, great. Mr. Darrow, can you comment please? MR. DARROW: Sure. Aloha, Deputy Director with the Planning Department. Normally we do allow deed restrictions as conditions in our change of zone applications. Namely, we've limited down to—in the agricultural district to prohibit CPR's (Condominium Property Regimes) as well as limit increased density, such as `ohana or additional dwellings. In this particular case, looking at Communication 952.4, there's two requested deed restrictions, one having to do with ag-tourism and the other having to do with short-term vacation rental. The short-term vacation rental, I don't think is an issue with CC&R's. I do think we might run into an issue with the ag-tourism Page 10 PC-32 October 18,2022 based on Section 205-4.6 of the Hawaii Revised Statutes. That section talks about private restrictions on agricultural uses and activities. It says that you cannot restrict in any private agreement, any use that is permitted within the State Land Use Ag district under Sections 205-2(d), and 205-4.5, Subsection (a). In this particular case, under 205, we have ag-tourism as a permitted use within the counties that have created an ordinance. Hawaii County has created an ordinance for ag-tourism, so it is considered a permitted use in the State Land Use and County Ag district. MS. VILLEGAS: Thank you, Mr. Darrow. So where does that leave us with this particular amendment? MR. DARROW: In this particular case, legally I don't think it's appropriate to restrict ag-tourism on these properties, but just from a practical standpoint, normally we don't see applications from ag-tourism come before the Planning Department on one-acre lots. We normally see them in conjunction with larger farms that have the capability of bringing in tourism to tour their larger farming activities. I'm not saying it cannot happen, but normally we're seeing bigger farming operations that are utilizing the ag-tourism use in our County. MS. VILLEGAS: Okay, so in the interest of the legality for an amendment, would it make sense then for this amendment to be amended to remove the ag-tourism portion? MR. DARROW: I would suggest that. MS. VILLEGAS: Okay. So do we want to go ahead and withdraw this amendment and then bring it back? And I'm wondering whose responsibility it is to change this amendment? Does that fall to Mr. Pipan, and then we bring that back forward through you? CHR KIERKIEWICZ: So these amendments were provided by the applicant. My office had processed them as Planning Committee Chair. And walking in knowing the conflict with HRS (Hawai`i Revised Statutes), still wanted to put this forward so that we could have the discussion. It was something that was mentioned in Committee as being a potential concern, and so, wanting to make sure that we just have the discussion. Let's see, who made the motion to put this forward? That would be you, Ms. Villegas, so I'd like to give everybody the opportunity to just weigh in before I ask you to withdraw the motion on this amendment. Thank you. Mr. Inaba, you have the floor. Page 11 PC-32 October 18,2022 MR. INABA: Thank you. Thank you, Jeff, for the explanation on legal matters. Corporation Counsel, can we get a formal opinion on what that's just been shared by Deputy Director Darrow? MS. STRANCE: Elizabeth Strance. I'd like to get something to you. I know in the past, we've provided some background information to you regarding the law and spot zoning and things like that. And you know, this would seem to fall within that broad category and concern we've raised previously, but I'm not prepared to answer your question directly, but happy to get something to you before the next Committee or Council meeting. But, my sense after hearing Jeff talk, would be that falls within that concern within the district. MR. INABA: Sorry, falls in what? MS. STRANCE: So, there's sometimes a concern about where, you know, you have spot zoning, and where there's something that's legal in the zoning. Then there's spots here and there where you cannot do things and you run into possible legal challenges of taking and depriving properties of economic interests. So, that's kind of a broad category of concern. And listening to what Jeff had to say, it seems to fall within that concern that we've raised. MR. INABA: Okay, thank you. CHR KIERKIEWICZ: Thank you, Mr. Inaba. Ms. David. MS. DAVID: Thank you, Chair. And Deputy Director, I just wanted a clarification when you were addressing the proposed amendments in 952.4, deed restrictions. That"shall prohibit short-term vacation rentals," and we already talked about the ag-tourism part, but you mentioned restrictions of short-term vacation rentals in CC&R's. I don't believe, correct me if I'm wrong, that this subdivision would have CC&R's, no, right? MR. PIPAN: No plans for CC&R's, no. MS. DAVID: Okay. So in that sense, Deputy, would a deed restriction for any lots that were sold and conveyed, would the prohibition in deed, has that been done before as a condition of subdivision approval? Considering this has no CC&R's. I see that as two different things, Jeff. MR. DARROW: Yeah. So, in the language that we're looking at, I apologize, sometimes I get CC&R's and deed restrictions, you know, interchangeable. But, our actual ordinance under Condition O, refers to restrictive covenants in the deeds. And so, when we look at that, basically, it's a restrictive covenant, CC&R. It's part of a CC&R. Page 12 PC-32 October 18,2022 So they would put this restrictive covenant within the deed, so they'd have to create it. Normally, they have to create it prior to an action, whether that be subdivision or plan approval, whatever action it's taking. In this case, it would be prior to subdivision approval. So, even though they're not planning on making CC&R's, they would have to do a restrictive covenant that would be placed in the deeds. MS. DAVID: In the deeds? MR. DARROW: Correct. And that's normally where you'll find the restrictive CC&R's. You get a copy of them when you purchase your property and then everything comes. So again, it can be the term is being used, restrictive covenant and it's being placed in the deed. So, it's kind of interchangeable in that sense. I don't know, we've seen in the past that it's just been very where they didn't have an association that had, you know, an elaborate set of CC&R's. They just had lots that they created through the subdivision approval, and within the deeds, they created a restrictive covenant. So, we've been limited to that. MS. DAVID: Yeah, I understand the restrictive covenant, and I think my question is—I've seen restrictive covenants where you cannot use certain things or there's a height restriction on the buildings; there's setbacks or similar to that. My question is, a deed restriction that prohibits the owner or the potential owner from his right to do short-term vacation rentals. I don't know. MR. DARROW: I don't know. I mean, that's going to become a legal issue. I personally seen when we did the short-term vacation rental bill, and one of the sections in there said that if there were restrictions in, you know, subdivisions or association or whatever it would be, restricting short-term vacation rentals in that particular condominium unit or subdivision, you couldn't apply. So, we did honor those, and we have seen those on, I wouldn't say common basis, but we see them every so often when we're doing an application for overnight accommodations in a particular area. And a neighbor would come forward and say, "You cannot approve this because there's a restrictive covenant not allowing this in our subdivision." So, I don't think that's illegal to do that. In this particular case, the focus is on this being the agricultural district, and you're restricting a use that's otherwise permitted within this district. I hope that answers your question. MS. DAVID: Okay. Well, yeah, I've never seen a condition like this, and maybe I haven't seen as many applications as you have or a condition like this. So, that was just my question, and I know that Corporation Counsel Strance is going to give us the legal opinion on that one. Maybe not today, but before I go. Page 13 PC-32 October 18,2022 MR. DARROW: If I could elaborate real quickly, I hear what you're saying, that I've never seen it I can say this I've never seen it in an ordinance that has come through us, where we're restricting STVR's or overnight accommodations. Normally, our restrictive covenant deed has to do with second dwellings and CPR's. But I have seen CC&R's and deed restrictions for overnight accommodations or short-term overnight accommodations. MS. DAVID: Right, thank you for that clarification. I think that's my understanding as well, but we'll wait until Corp. Counsel comes forward with some official position. And on that note, I will yield. Mahalo. CHR KIERKIEWICZ: Thanks, Ms. David. Ms. Kimball. MS. KIMBALL: Thank you, Chair. Just wanted to highlight that since this is an amendment to—we're still going to FA (Family Agricultural), yeah, which is still unhosted vacation rentals are still prohibited. So the only type of short-term vacation rentals would be hosted, which are, of course, unregulated at this point in time. I just wanted to make that note. And then in response to your statement just now, Deputy Darrow and Judge Strance's comment from before. But we haven't seen this coming from the Planning Department. I do want to acknowledge, actually, in this case, it's not coming from the Planning Department either. This is being proposed by the applicant. And so, you know, in response to the previous hesitation that our Corporation Counsel has to us at making amendments on conditions, in this scenario, the applicant is actually proposing it. And so I think we treat it in a slightly different way. So with that, I yield, Chair. CHR KIERKIEWICZ: Thank you. Anyone else? Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: To Ms. Kimball's point, it was brought forward by the applicant, so there wasn't any legal repercussions. It would have to be most likely from the applicant saying it's unfair, but they are bringing it forward. Yeah, I mean it does get interesting. But it's interesting that they brought it forward and we have to have this discussion. That is a very good point, Ms. Kimball. Thank you. CHR KIERKIEWICZ: Okay. Anyone else? Ms. Villegas. Withdraw Motion Ms. Villegas withdrew her motion to amend Bill 204 to Amend: with the contents of Comm. 952.4. Page 14 PC-32 October 18,2022 CHR KIERKIEWICZ: Okay. Communication 952.4 has been withdrawn. Thank you. Alright, moving on to the next communication in your pinkie folder. May I have a motion to amend Bill 204 with the contents of Comm. 952.5? Motion to Amend: Ms. Villegas moved to amend Bill 204 with the contents of Comm. 952.5. Seconded by Ms. Lee Loy. CHR KIERKIEWICZ: This one reads, "Each lot owner in the proposed subdivision shall make fair share contributions to an improvement district for Hualalai Road if an improvement district is established." Again, this was coming from the applicant. Mr. Pipan, you have the floor. MR. PIPAN: Yes, thank you, Chair Kierkiewicz. Again, we're just trying to make the bill more palatable to the Council, addressing concerns that were brought up at our previous Planning Committee meeting. And part of those was what are we doing for Hualalai Road? We're already required there's a set of paired conditions, G and H I believe, that would, if we're developing a sole access, with cooperation of the adjacent property on the makai side, off 42, then we're going to dedicate this road widening strip along the properties fronting Hualalai Road to the County at no cost. However, if we're proposing another access onto Hualalai Road, then we're on the hook for improving that entire half width of Hualalai Road to dedicable standards, which is much more pricey and gives us incentive to coordinate development of that sole access with the neighboring property owner. And we're coordinating access to properties to the south too, contributing to the interconnectivity of the transportation network here in Kona. So, this is another way to contribute if sometime in the future, you know, an improvement district is established to really set straight Hualalai Road, provide all the improvements to its entire length. These lot owners would chip in that point, too. We already have fair share contributions totaling for all categories. Almost $200,000 for these lots and part of that will go to area traffic road improvements as well. So it's just another contribution. CHR KIERKIEWICZ: Thank you, Mr. Pipan. Any questions or comments on this amendment? Mr. Inaba. MR. INABA: Yeah, looking at the other sections of the fair share contributions, each of them specify an amount. We don't see an amount of this one. So, how do we intend to come up with that amount later, should an improvement district be established? Page 15 PC-32 October 18,2022 MR. PIPAN: Thank you, Council Member Inaba. I imagine, I don't know how exactly improvement districts are established. You know, there's a whole section of the County Code dedicated to that. I haven't dealt too deeply in that. I would imagine working with Council Member Villegas, something like that could be brought forward to the Council specifying, you know, what it would take in terms of funds to make those improvements. And we'll have to, you know, go through that review process. So, I can't say off the top of my head what improving the entire length of Hualalai Road would cost and then how many lots would be in that improvement district. I think a lot more work would have to be done to get at that number. MR. INABA: Deputy Director Darrow. MR. DARROW: Aloha. MR. INABA: We've been talking about Kaloko recently, and you know, there is funds in the fair share specific to the intersection there. How were those amounts decided, and could the same system apply to determining the fair share contribution for improvements if the district is established? MR. DARROW: This might be a little different. The Kaloko intersection was, you know, uniquely created because of the amount of rezonings that were coming in the Kaloko Subdivision to rather than put it towards regional improvements, they focused the fair share amounts directly to Kaloko intersection. I don't think it was established as an improvement district, more just as a creative way to take the fair share amounts for the region and apply it directly to the impacted intersection. In this particular case, I think they're speaking more about what's referred to in Chapter 12 of the County Code, which is identified as improvements by assessments. It refers to improvement districts that are actually designated by the Council. So the Council would designate an improvement district specifically for the improvement of Hualalai Road and identify everybody that's connected to that and would participate. And then they would identify the lead agency, which in this case according to Chapter 12, appears to be the Department of Public Works, being that it's a road improvement. MR. INABA: Okay, I'm just concerned. So, if an improvement district is created later and we have, you know, families living on these lots, one day they're just going to be told that they have a$20,000 contribution to an improvement district? Page 16 PC-32 October 18,2022 MR. DARROW: Unfortunately, I have not had very little if any, I think Deanna Sako from Finance would be a better person to really answer the specifics of an improvement district. What I can do is, while we're discussing, I can give her a quick call and just see if she can give me a little bit of information on how that actually comes about to be able to get the monies; whether it's through a bond or whether they end up identifying a number of parcels that's going to be involved. And they have to participate being that they access directly off that road. MR. INABA: And at this time, we wouldn't know, necessarily what the scope of the improvement district would be, right? MR. DARROW: Correct. MR. INABA: Is Director Sako available? Okay,perhaps we can come back to this. CHR KIERKIEWICZ: I just texted the Director to see if she can join us in Council Chambers briefly. MR. INABA: Thank you. Yeah, not opposed to the idea, but doesn't make sense in my opinion to put something with no guidance or teeth later. So, I'll wait for the Director. I yield. CHR KIERKIEWICZ: Thank you. Ms. David. Was your light on first, Mr. Kaneali`i-Kleinfelder? MS. DAVID: I'll defer to him. CHR KIERKIEWICZ: Okay, Mr. Kaneali`i-Kleinfelder, go ahead. MS. DAVID: Go ahead, you didn't talk yet. Okay, thank you. Deputy Director, so I get it, it's almost similar to a water improvement district where the people that will benefit from the improvements will either have to buy in or not. Is it handled the same way where all of the parties involved need to either weigh in whether they want to do an improvement district or not? Because I believe on a water improvement district, it had to be over 50 percent of the involved participants before they could move forward. The only reason I'm asking is because I'm looking at this amendment, and it says they will make fair share contributions if an improvement district is established. And that is such a daunting process, that I'm not sure what the benefit of this is going to be. I would like to see or hear from Deanna, because it's a long process, and if the people that are involved do not agree-50 percent of them do not agree in this process, then it doesn't move. So I'm just going along the lines of Council Page 17 PC-32 October 18,2022 Member Inaba, is what is the benefit of this that we're talking about? If it's something that says, if a district is established. So, I'll wait for Deanna and I will yield for now. Thank you. CHR KIERKIEWICZ: Director Sako will be in chambers shortly. Mr. Kaneali`i-Kleinfelder, go ahead. MR. KANEALI`I-KLEINFELDER: Thank you, Chair. I think Deanna can clarify the events of the improvement district process that got shut down by this body regarding that improvement district. But the first step is feasibility study. I mean in this case, you're talking about—as far as I know, Hualalai is a County road. So why on earth are you doing an improvement district for a County road? It's an interesting prospect, but I'm looking at ordinance right now, and you have Condition H, which has some requirements for Hualalai Road. I'm trying to figure out why this amendment, using fair share contributions for an improvement district and how that ties in with Condition H. MR. PIPAN: Yes, thank you for your question. This is intended as being additional to our already required commitment to the fair share requirements in Condition X. So again, rehashing conditions G and H. So, we've got paired conditions here. It's an if-then proposal. So, if we can develop a single access with coordination with the adjacent property on the makai lot, Lot 42, to serve both of those properties. We don't know what's going to be developed there. The property is still in escrow, so we're taking a risk there by saying, "Yes, we can have a single access." If we're able to accomplish that, then we're just dedicating that road widening strip along Hualalai Road. The case where we're not able to just have a single sole access develop with coordination with Lot 42, then we're on the hook for the entire half-section of Hualalai Road improvement. So it's an if-then, yeah? MR. KANEALI`I-KLEINFELDER: So, if a secondary access is developed, then the applicant shall provide improvements to the entire frontage? MR. PIPAN: Yes. MR. KANEALI`I-KLEINFELDER: If not, what does that hinge on? What is that hinging on? Whose approval it is? MR. PIPAN: Just, if there's one access, and this is at final subdivision approval. If we come in and we're showing one access and it's there and there's no other separate access, none of the individual lots are allowed to connect directly to Hualalai Road. Page 18 PC-32 October 18,2022 So, we get our final subdivision approval without improving Hualalai Road, if there's one road accessing both this lot and Lot 42 on the makai side, right? (Note: At this time, the applicant Siting Chen came forward to address the members of the Committee.) MR. CHEN: Thank you, Councilman. I'm Siting Chen, I go by Steve. So, I'm the new owner. Before they tried high-density and then 7,000 square feet. But anyway, it's like 40 something units of development in this area. So for a high- density development, there was a requirement to do the infrastructure for the road, right? But the previous owner did the calculations and they could not do it, so the whole thing was abandoned. So I came in with the idea with quite a few good people, local people and advised them that this would be a good place for, you know, low-density. So, low-impact development. I'm interested in, you know, only one development to build a home for myself, so that's why I got into this. And so a low-density zoning with only 11 units. That's why to reconcile that, we offered to donate, you know, the road that enough space for the road widening in the future, but because it's such a small scale, they will not be able to build the road per se, so we'll be able to contribute fair share. But again, the single access was to try to reduce the impact. So very minimal impact. It's not even a single access, actually half an access, because what we're proposing is an access in conjunction with the neighboring property. So, I talked to the future buyer and they are agreeable with that. They're very flexible. So that way we try to reduce any impact, very minimal. So that's why we reconcile with this kind of restriction for one single access, actually half access with this low profile development. That's the idea. So, we're hoping this works for the community very well for this development. You know, the people objecting the high-density development, understandably right? Because of the impact of Hualalai Road. But with this zoning, there seems to be a lot of people like this idea, and we're getting a lot of good feedbacks. So there seems to be very minimal, in a way, impact on Hualalai itself and we're trying everything to minimize the impact. So if that helps. MR. KANEALI`I-KLEINFELDER: That is helpful. I'm concerned about the fair share contributions being applied to an improvement district. That doesn't make sense to me. And I would say that my knowledge of an improvement district, anyone who benefits from an improvement district has to be that would be owners on both sides of the road. MR. PIPAN: Yes. Page 19 PC-32 October 18,2022 MR. KANEALI`I-KLEINFELDER: Because Hualalai benefits both sides, not just one side. MR. PIPAN: And really that's the intent, not to limit contributions or say that the contributions required in Condition X, the fair share are contingent on this improvement district. This would be an additional sum to the County at that time. Now, if it complicates things, we're fully in favor of having less conditions on this rezone. And if it makes things more complicated, then maybe better without it. It's fully up to you folks. MR. KANEALI`I-KLEINFELDER: I'm still wrapping my head around this condition in the existing ordinance. Without this amendment, although this is touching on it, but this Condition H, it's basically saying this is on you, the cost of improving Hualalai Road if you build a second access road. Is that correct? I know you're decreasing the density. I understand that component. But there's something just not right about these two interplaying with each other. I'm just going to say that. MR. PIPAN: So in that case, it makes sense to just look at G. So, Hualalai Road is a connector road. So provided that the sole access to Hualalai Road is developed as a shared access in coordination with development of the adjacent parcel to the west, the future road widening strip will be dedicated and given to the County. That would cover what we're intending to do. We don't intend to develop a second access. MR. CHEN: So, they're saying that in that condition, it was basically to discourage any secondary access, because any secondary access will make this project not feasible at all, because that will require road widening. So all of that was to deter any possibility of secondary access. That's all, that's what it meant. I understand it's kind of confusing but what I mean is that there's no way that anyone is going to do a secondary access. Simple as that. MR. KANEALI`I-KLEINFELDER: Okay. MR. PIPAN: And part of the difficulty initially with arguing these conditions, crafting these conditions, was we're required to compel action by the neighboring property owner, who we don't even know who they're going to be this time next year. The property is in escrow. It may fall through, who knows. So, making commitments for our project based on commitments of others is very difficult, right? We cannot compel their action. So this gives us an out, but it's not really an out, right? It says we really want to develop this sole access with the neighboring property owner, and really, the project would be infeasible if we had to develop a secondary access. Page 20 PC-32 October 18,2022 MR. KANEALI`I-KLEINFELDER: There's a lot of different things that play within this section. I'm concerned that the fair share contributions being directed to apply to the improvement district. There's a couple different methods, but usually it requires a vote of some sort to each parcel owner who's affected by it. And then whatever the outcome of that vote is, whether it happens or not. And then from there but we have to do a feasibility study first. There's a lot of components. MR. PIPAN: Yes, understood. This is a big assumption if it's established. It may never be established. We've seen conditions like this go to other projects too. For instance, a property along Alii Drive on cesspool, wants to be upgraded to sewer, there's no sewer in the area. A condition of a use permit there would require that owner to contribute to an improvement district, should one be established, to extend the sewer. You know, we've seen this come up in other projects before, so it seemed like a way, not a sure deal that it's going to be established, but should it be established, these guys are on board. MR. KANEALI`I-KLEINFELDER: Whose idea was this? MR. PIPAN: This was mine. MR. KANEALI`I-KLEINFELDER: Interesting. Okay, thank you. I yield Chair. CHR KIERKIEWICZ: Thank you. Director Sako, thank you so much for being incredibly patient. But I'm glad you got to hear some of the dialogue that we're having here at Council. There was some questions that have come up from my colleagues about what's entailed in setting up an improvement district. So if you could just give us a one-on-one on how that works, that would be really helpful. Thank you. (Note: At this time, Director of Finance Deanna Sako came forward to address the members of the Committee.) MS. SAKO: I think as was previously mentioned, you know, normally the majority need to agree to move forward with the improvement district, or some kind of vote. There's like an appeal period,people can maybe not opt out, but protest and say they don't want to join. So normally an improvement district comes, you know, from the community, you know, with them wanting to do this. If this is just an eleven-lot district, that would not be very big, you know. So it would depend on the size and the dollar amount of the improvements to ensure that, you know, it was affordable to each of the lot owners as well. That usually is what determines if they want to vote for it or not. Page 21 PC-32 October 18,2022 So then after that, we would form the district; we would have to plan it; do some kind of study to make sure everybody knows what it's going to cost, and then go out to bid, do the work. And then start billing them for anywhere from 20 to 30 years depending on how much the cost is. And usually we can bill monthly or quarterly. CHR KIERKIEWICZ: Okay. Thank you, Director Sako. I'm going to go to Ms. Kimball. MS. KIMBALL: Thank you, Chair. Yeah,just a couple comments on the amendment. I think the intention is right. The process is inherently flawed. I think we've all kind of come to the conclusion that the improvement district process is going to be burdensome and inappropriate for this. In addition, I have concerns that it wouldn't play well with some of the other conditions, which is the maximum limit on the fair share per property is already set. And so, you're saying there's going to be this additional potential fair share, but we've actually established that there's already a mechanism through Condition S, area maximum. I'm going to propose and Deputy Director, if you can correct me, if there's any reason why this couldn't be done, but wouldn't it be possible under S, where we do have the fair share language that we could put an additional clause in there that says that if the secondary access is required, a fair share would be required dedicated specifically to that road? Is there any reason we couldn't put within the list of fair share items, a very specific usage for that road? MR. DARROW: I mean, that's possible. My thought would be that if the applicant proposed the second access, he'd have to improve it. If you're talking improvements within the road itself, I'm pretty sure he's going to be responsible for whatever's required to set up that access outside of any fair share improvement district. I think what's kind of throwing us off here, is the language in the condition. It refers to the fair share, you know, "make fair share contributions to an improvement district." And I think people are getting confused that the fair share it's speaking about in the conditions, is the same fair share it's talking about paying the improvement district. I think they're not the same. I think the applicant is required to pay the fair share in the ordinance if an improvement district is set up by Council, then whoever is involved in that improvement district would have to participate in the improvements. And correct me if I'm wrong, Deanna, usually these improvement districts are set up not just by one applicant. It's kind of going to be however big that improvement district is. Everybody participates. So if it's the length of Hualalai Road, all the owners can petition the Council or petition whoever, and then if the Council approves that improvement Page 22 PC-32 October 18,2022 district, they'll all participate, and again, they'll have their right to appeal if they don't want to be a part of it. It usually doesn't come into an ordinance other than, if an improvement district is established, then they have to participate. Going forward, hopefully the Council will look at the possibility at creating an improvement district along the entire length of this area of Hualalai Road to make it safer. And by ordinance, this applicant and possibly all lot owners that access at that point would have to participate based on this condition in that ordinance. We have no idea what the amount would be, but it would be completely separate from the fair share condition. MS. KIMBALL: Okay, thank you for that, Deputy. That is clear, and I think maybe that terminology of fair share is ambiguous. It's throwing things off here, but it sounds like, under normal circumstances, if an improvement district were proposed, the folks in that improvement district area would have the right to say, "No, we don't want to participate." But with this condition in the ordinance basically, all of the subsequent lot owners are compelled and obligated to agree to payment if an improvement district is created. Am I understanding you correctly? MR. DARROW: That's what I think the intent of the condition that the applicant has put forth would entail. MS. SAKO: Sorry, I just wanted to say, I think that would conflict with Chapter 12, and probably would invalidate the zoning ordinance, actually, or invalidate something. MS. KIMBALL: Yeah, there's multiple problems with this. You know, I'm going to suggest obviously, that we withdraw this for right now, but I think there's a logic to it. I think we just got to find the right process, which is, that if you're connected to this road, you're obviously going to have to make the frontage improvements, but there may be additional improvements because of the folks entering this area are going to have to traverse across a fairly large portion of it. So, back to the drawing board. Appreciate the effort, but yeah, I think this is not quite going to get us where we need to be. Alright, thank you, Chair. I yield. CHR KIERKIEWICZ: Thank you, Ms. Kimball. Mr. Chung. MR. CHUNG: Yeah, you know, I don't know what provided the impetus for this proposed amendment, but I'll tell you this. That's 45 minutes of my life I'm never getting back already. You know, in my 16 years of being on the Council, I think it's probably the most ridiculous conversation I ever heard, quite frankly. I mean,just going round and round and round, and not getting anywhere. No offense to anyone, because I don't know where this thing came from. Page 23 PC-32 October 18,2022 We cannot approve something like this. That means the Council is validating or being a part of requiring people to now participate in an improvement district. We don't even know what the cost of the improvement district is going to be, right? These guys are going to come back and look at us. If you guys want to put that in your convenance, go ahead, you know. That's a private thing. You guys do that. But we cannot be complicitous to something like this. You guys have every right to do that, but for us to validate something like that, that's wrong. So, that's my two cents. Hopefully, that was short. CHR KIERKIEWICZ: Thank you, Mr. Chung. Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you, Ms. Kierkiewicz. Deanna, thank you for joining us. You and I had a lengthy discussion about improvement districts about a year ago. But in that caseI mean despite everything that's involved in that whole chapter, now, here's another chapter, it's about improvement districts as well. MS. SAKO: Yeah, Chapter 12 is about improvement districts. MR. KANEALI`I-KLEINFELDER: Have you ever seen an improvement district for a County road that exists? MS. SAKO: Normally, it's for a new infrastructure that is then dedicated to the County. And you know, built to County standards and then dedicated to the County. So it would be unusual to make improvements to a County road already. Could it be done? Perhaps. I can check with Bond Counsel, but you know, I did hear something about widening or shoulders or something like that. So it might be possible. But it's how you define the district and what the improvements are that's going to determine if it's allowable or not. But as you said, it's usually for new infrastructure that doesn't already exist. MR. KANEALI`I-KLEINFELDER: I've got to say, Ms. Lee Loy said, "Why do we pay taxes then?" And I'm thinking the exact same thing. We pay fuel taxes to fix roads. We have a highway fund to fix roads. An improvement district that's paid for by the taxpayers to pay for road improvements,just doesn't make any sense to me. If it was not a County road, okay maybe, but right now, this makes absolutely no sense to me. I'm just making sure that I'm on the right path here remembering what I already MS. SAKO: Right. This is not something we would normally do. MR. KANEALI`I-KLEINFELDER: Okay. I'm voting no on this, thank you. Page 24 PC-32 October 18,2022 CHR KIERKIEWICZ: Thank you, I think we've exhausted discussion on this particular amendment. Ms. Villegas. MS. VILLEGAS: Yes, I'd like to make a motion to withdraw. Withdraw Motion Ms. Villegas withdrew her motion to amend Bill 204 to Amend: with the contents of Comm. 952.5. CHR KIERKIEWICZ: Communication 952.5 has been withdrawn. Alright. And Mr. Pipan, for these two, you know, this was a robust discussion. Between now and if this is still in Committee or in Council,but use time going forward to connect with the Planning Department on how we might appropriately word these proposed amendments. Okay, thank you. May I have a motion to amend Bill 204 with the contents of Communication 952.6? Motion to Amend: Mr. Inaba moved to amend Bill 204 with the contents of Comm. 952.6. Seconded by Ms. David. CHR KIERKIEWICZ: And this is related to construction of dry sewer lines. Mr. Pipan. MR. PIPAN: Yes, thanks again. Sorry, we unwittingly stepped on a hornet's nest on the last proposed amendment. Well intentions not going unpunished. So, this one I think is a pretty clear benefit to the County and environment with the incorporation of dry sewers into this subdivision prior to final subdivision. If any home is built prior to connection of those dry sewers, they will have to install a septic system with the approval of the Department of Health, and then eventually connect to the sewer system when it becomes fully connected. So that again, is the intent, and apologies if the wording is not completely there. But again, our intent is to bring it in line with the concerns that were expressed by the Council at our previous meeting, and make it a more acceptable development overall. CHR KIERKIEWICZ: Thank you. Deputy Planning Director Darrow, have you had a chance to review the communication that we are currently discussing? Just want to make sure that you're okay with the language that's being proposed. MR. DARROW: I have reviewed it. The concern is the statement that"Should the dry sewer not be connected to the County sewer system at the time of building permit application,"the lot owner can basically move forward with a septic system and not hook up to the proposed County system. We've had situations in the past where there was no sewer in the area, and this actually had to do with an improvement district, but we won't go back to that. Page 25 PC-32 October 18,2022 Anyway, so, the requirement was that the applicant put in dry sewers, and at the time that sewer was connected, then all the people that built their house and put in septic systems had to vacate the septic and hook up to the County sewer system. I am not 100 percent sure, but I think that was a County requirement in DEM (Department of Environmental Management) rules. So just moving forward on this amendment, I would just want to make sure that there isn't going to be a requirement that once it's hooked up, because the dry sewer is available to those lots, they aren't required to hook up. That may very well be a requirement by Environmental Management. Other than that, I know it took a lot for the applicant to propose this condition and we support it moving forward. CHR KIERKIEWICZ: Thank you, Deputy Director. Questions or comments from my colleagues? Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Sorry. Thank you, Chair. I'm looking at a letter from Land Planning Hawaii, LLC to Mr. Darrow regarding this dry sewer, and more so, the connection to the County sewer system, which is, I guess, no more than 300 feet away. Right, wrong? MR. PIPAN: The existing County sewer system is over 500 feet from the perimeter of the property. MR. KANEALI`I-KLEINFELDER: Okay. Unless I'm on the wrong one. No, this is the right one, Bill 204. Within this letter from yourself, John Pipan to Mr. Darrow with regard to the comment letter sent to the Department of Environmental Management, dated December 21", 2022, which would put it this coming Christmas, which hasn't happened yet. That letter states, the proposed subdivision A is within 300 feet of an existing County sewer system, and therefore, the applicant needs to connect to the sewer system according to (Chapter 23) Section 23-85 of the Hawaii County Code. MR. PIPAN: Yes, that was the initial comment back from DEM, and they're referencing a portion of the County sewer system that's within a dead-end street, a cul-de-sac. And to connect to that portion, we would have to go through developed homes. So that is infeasible. We would have to be connecting to the stub-out at Paulehia Street, much farther makai, again over 500 feet as the crow flies from Dr. Chen's property. So there was a couple of different communications, comments from DEM. They first said you're required to connect to the sewer system because you were within 300 feet. We responded to their comment with the detail that I just related to you. They came back after that with another comment letter saying that, either you connect to the sewer system or comply with the Department of Health (DOH) Page 26 PC-32 October 18,2022 requirements, which in this case, the Department of Health commented that septic systems are okay for one dwelling on each lot. MR. KANEALI`I-KLEINFELDER: I think as a goal right now, our County is trying to get everybody either on septic, which you're accepting or get on the County sewer system so that we're helping our environment. I'm not in love with this amendment, and I'm just I mean we do have a County rule about this. Is there no way for you guys to attach that stub, is it underneath of a house? MR. PIPAN: So, to build the dry sewer within the subdivision is within our build,just barely. That link is going to cost many, tens of thousands, hundreds of thousands of dollars. To extend the sewer line across the neighboring parcel, Lot 42, to where the County sewer system currently exists is totally impossible. It kills the project. We can't make the project pencil out with that expense. So that's why dry sewers become a condition of some of these projects where you can't currently connect to the sewers where they're dry. But when it becomes available you then connect. MR. KANEALI`I-KLEINFELDER: Connect to it? I'm actually going to yield for now and somebody else can go. CHR KIERKIEWICZ: Thank you. Mr. Inaba. MR. INABA: Mr. Pipan, it's physically impossible or financially not feasible? MR. PIPAN: Financially, not feasible. MR. INABA: Okay, so the requirement is that you are supposed to connect because you're within 300 feet, is that right? MR. PIPAN: Yes. MR. INABA: According to DEM? MR. PIPAN: So, the way the Code is written, it's not very detailed. So, we're looking at maps of the sewer system that don't tell you where, you know, you're going to extend through. So in that sense, if we're required to connect to build the entire sewer to Paulehia, we're not going to be able to accomplish the project. So it's financially infeasible, yes. MR. INABA: So like the other amendments, whose idea is this? Because I'm looking at the language that's being struck in this amendment which says in my reading that, individual wastewater systems would be allowed. So now, we're changing and saying that you have to. Who is saying this? Why are we doing this? Page 27 PC-32 October 18,2022 MR. PIPAN: Apologies again if the wording is not quite there. The intent is to give connection to the sewer system to the County for these lots, but we have to consider the potential eventuality that we build the dry sewer within the subdivision, but there hasn't been connection across Lot 42 to complete the sewer connection. So in that case, the lot owner would be allowed to build with the septic system approved by Department of Health. But at the time, again this is (Chapter 21) Section 21-5 of the County Code, Connection to the sewer required. When the sewer line is connected, it's available, they would be required to connect and decommission that septic system. So the intent again is to make this to address the concerns that were brought up at the first—and you know, we're not trying to sneak out of anything here. We're trying to make it better. MR. CHEN: Can I say one word, Councilman Inaba? Yeah, so about this issue, so you're right. The deal is how can you upgrade? A septic tank is acceptable because this lot is one acre, and the minimum requirement is 10,000 square feet. So the overflow time is bigger than the minimum requirement. So a septic tank is accepted. So, it's easy to do that, but some people opt to do the requirement to do a dry sewer connection in addition to the DOH requirements. So the argument is that, you have a dry sewer connection, but once it becomes available, you won't be required to connect. So that's fine. The reason we cannot connect right now is because the 300-feet distance they recommend the distance from the border through somebody's bedroom—go through somebody's bedroom. So, there's no way to build it at 300 feet. So the actual, the practical way to access is over 500 feet from our property. That's why it's way beyond the 300-feet requirement. So the 300 linear feet is not practical, and there's no way to build, you know, under people's bedroom. MR. INABA: So, is it 300 feet or 500 feet? MR. PIPAN: Again, to a dead-end cul-de-sac where the sewer exists surrounded by developed properties, that's within 300 feet from Dr. Chen's property. However, we can't extend from there. We'd have to extend from over 500 feet away. MR. INABA: Okay, so, I mean looking at this now, so we don't keep going in circles with this round, we're going to still allow the individual wastewater systems if the dry sewer is not connected at the time of subdivision approval, right? Page 28 PC-32 October 18,2022 MR. PIPAN: At the time of building permit, we have to build the sewer within the subdivision to get final subdivision approval, that we're committing to. But we don't want to say that no one can build homes and contribute to the much needed housing in the County until the sewer is connected across the adjacent property. So, they would be allowed at that point to install septic systems. MR. INABA: Okay, last question. Jeff, oh, your hand is raised, go ahead. MR. DARROW: I can wait for your question, Councilman Inaba. MR. INABA: Thank you. A simple yes or no. Should they, or are they required to connect and make that connection right now? MR. DARROW: No. MR. INABA: Okay, and you were going to say? MR. DARROW: Well, if I can elaborate on it? That's why I was raising my hand. As the bird flies, from an aerial view, what John is trying to say is, yes, it's within 300 feet. When you're on the ground and you have to take the pipe to where it needs to go, it's 500 feet. The problem is, it has to go through the makai parcel, Parcel 42. They need to develop to bring the sewer from Pualani Subdivision into their property. Earlier there was a question, is this an issue of cost, or is this an issue of not being able develop? I don't think the applicant has the ability to run the sewer line through someone else's property without any sewer easement established, because we have no idea what the design for that property is going to be. So I would think it's also a matter of cost, but I don't think they can actually do it physically on the ground without there being a sewer easement of something through there. Again, the intention is good. The applicant I mean there was a lot of discussion on this regarding the dry sewer line. There came a point when DOH and DEM agreed to allow the applicant to move forward with the individual wastewater systems. The applicant has not submitted an amendment to say they will do the dry sewer line. I'm just requesting that moving forward, maybe prior to our next hearing, that the applicant or myself check with DEM to make sure that they're not going to be the building permits that come in and build their houses with the septic, if later if the connection is made, if they're still going to be required to hook up to that dry sewer. My thought is they may be required to. So that will be still costs of those lot owners. Thank you. Page 29 PC-32 October 18,2022 MR. PIPAN: If I may? Section 21-5, as Deputy Director Darrow is speaking to, would require owners' well dwellings, buildings, properties used for human occupancy, employment, etcetera, to require at their expense to connect directly to the public sewer system within 180 days. This is required by DEM, by again, County Code, Chapter 21. So we're not saying that if they have a septic system, they wouldn't connect to a sewer system, they would. That's the intent. MR. INABA: Okay. Promise, last question. Jeff,you can go ahead first, and I'll ask my question after. MR. DARROW: Thank you. I'll just mention, that I think it would be fair that if we move forward with this condition, that we state that in that condition, so that the applicants or lot owners would not be, you know, blindsided by reality, they have to hook up. MR. INABA: Okay. And then, thank you. And the requirement you talked about, as the bird flies or the actual piping distance, what is the actual legal requirement? Which one? MR. DARROW: It's 300 feet, but again, when we spoke to DEM and expressed the situation, there was no direct sewer easement to the property within 300 feet. So when we expressed the reality that we had to go around and the length was actually 500 feet, that's when they provided an additional comment letter saying that they were okay proceeding with the not hooking up and allowing the individual wastewater systems. MR. INABA: Okay, thank you. I'll be supporting the amendment. CHR KIERKIEWICZ: Thank you, Mr. Inaba. Mr. Chung. MR. CHUNG: Jeff, you guys probably answered this during the course of this discussion, but could you, in six sentences or less, explain the difference between what was originally there and what is being proposed? What's the difference? Start with what was originally there. What are they required to do? Because there was all kinds of Hawaii Administrative Rules referenced and all of that. What are they required to do? MR. DARROW: Okay, originally they were allowed to hook up to a septic system if prior to final subdivision. MR. CHUNG: And that's the individual wastewater system, right? MR. DARROW: Correct. So, they were allowed to hook up to a septic system, individual waste water system if sewer was not made available prior to final subdivision approval. Page 30 PC-32 October 18,2022 MR. CHUNG: Okay, so now this one requires them to install, well the dry sewer. What are dry sewers anyway? That's just the empty pipes, right? MR. DARROW: Yeah, it's preparing for eventual connection to the County sewer. MR. CHUNG: Okay. And if it's not connected to the County sewer, what happens? MR. DARROW: The applicant is, at the time of building permit, lot owners can build their house, put in a septic system. But once the makai property is developed and brings in the sewer to hook up to the dry sewer line, as Mr. Pipan stated, they have 180 days to abandon the individual wastewater and hook up to the now connected County sewer system. MR. CHUNG: So this is actually better then, right? MR. DARROW: Yes. MR. CHUNG: Okay, because they're putting in the hardware, but everything else is the same, right? I mean the septic systems. MR. DARROW: Personally, it's going to be expensive for those lot owners that come in and build prior to this hookup because they're going to pay for their individual wastewater system and then later they're going to pay that connect. MR. CHUNG: Right. The other one they didn't have to put in the hardware, right? Alright, thanks. CHR KIERKIEWICZ: Okay, anyone else? Ms. Villegas. MS. VILLEGAS: I just wanted to point out, I mean there's so many complications to this, and the fact that—and you guys, I went ahead and pulled the file on this piece of property from the prior potential developer that ran it all the way through and then pulled it. That also had a lot to do with the density of that proposed development, and the line for our CDP (Community Development Plan), our urban areas running directly through the property. So I do commend you on bringing something less dense, but there are too many stipulations with this. Lot 42, which is right below it, which is where the sewer line would have to come through is currently zoned RS-10, but that's expired. So they're going to have to come to us. And this is the property that's in escrow that nobody would say who's buying it. There are just too many odd, and not-aligned pipes, as a pun on this specific amendment. Page 31 PC-32 October 18,2022 And I understand. You know, in our meeting when we sat and talked, essentially, it was, you can give this or you can give that, is what you were talking about as far as a compromise for the feasibility of the project. It's putting in the infrastructure for sewer or affordable housing for a couple of lots. All of the amendments that we, you know, the things you kind of offered and then brought forth here today,just don't seem to be sinking. So I want to get through this amendment and close it out; pass it or don't pass it and get back to the project at hand, if we could. CHR KIERKIEWICZ: Any other comments on the amendment before us? Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: This sewer system connection would be a good use of an improvement district. That's my two cents, thank you. CHR KIERKIEWICZ: Mr. Richards. MR. RICHARDS: Quick question about the numbers. What does it cost to put in the dry sewer? MR. PIPAN: Round numbers, back of the envelope, about$300, $400 per linear foot. And we're looking at probably 600 or 700 feet. Let's do that real quick, split the difference. Probably a quarter of a million dollars for the dry sewer, at least, and this is very rough numbers, you know. We have to prepare engineering designs. The costs obviously relates to how deep they have to go for the pipes; the rock they encounter. So, I'd say a quarter of a million dollars, plus. MR. RICHARDS: Okay. I won't disagree, but we're pricing this out of—locals won't be able to afford it. That's the problem. CHR KIERKIEWICZ: Thank you, Mr. Richards. Just observing the conversation, there might be some potential amendments to this amendment. So if I could ask Mr. Inaba to withdraw, so we can wordsmith it further? That would be great. MR. INABA: I withdraw the motion. Withdraw Motion Mr. Inaba withdrew his motion to amend Bill 204 to Amend: with the contents of Comm. 952.6. CHR KIERKIEWICZ: Thank you, we are back to the main motion which is Bill 204, as presented. Mr. Villegas. Page 32 PC-32 October 18,2022 MS. VILLEGAS: Yeah, we've gone through a lot of details and a lot of potential—you know, I respect and I'm grateful for your efforts to come up with solutions. But so far this development, subdivision is half-baked, and you know, there's this sense of urgency to push things through. But things aren't aligning. The property just makai of it, in its state of, you know, in possibly being purchased and possibly going to be workforce housing, I don't want us to end up on the line feeling like we have to then when that comes before us, do a zoning time extension on that property, because then your property is relying on sewer. It just isn't sitting right with me. I respect and I appreciate your desire to build a home here, and while I appreciate the opportunity for us to have more doctors here, I don't like it being tethered to having to compromise for infrastructure opportunities. You know, in our conversation and discovering your wife's occupation in the real estate market, there are amazing real estate agents, but that also brings to light some of the concerns that were expressed by some of my colleagues before about speculation. There's no legal requirement that once you change the zoning, that you're going to even sell these ten lots. You could sit on it for as long as you want, and sell them as the market continues to heighten, which doesn't bring us any more reasonable housing accommodations for people who already live here. Nor does it bring us solutions to our infrastructure challenges. And as Kona continues to grow, it is imperative that infrastructure improvements are aligned with concurrency of development of our roads, our sewers, our schools and workforce housing, because we are pricing people out of the market. And unfortunately, this subdivision will be more of the same. I will also acknowledge my heartburn in this area on Hualalai Road with the already existing challenges with neighboring properties and unpermitted uses and incompatible zoning for what's actually occurring there, and the toll that takes on Hualalai Road. It is a very windy, very dangerous, very narrow road that already has a charter school attached to it. So for all those reasons listed, I'm not going to be supporting this moving to Council with a positive recommendation today. And I would encourage you to continue to look for the most appropriate use for the property, and perhaps that is two lots at five acres. But also removing just letting it be that. Letting it be a home for yourself, as opposed to development of another subdivision that does not authentically contribute to providing more housing or infrastructure improvements for our community. And we're just at that place in time here, and the roadways need to be concurrent and connecting between Pualani Estates and Page 33 PC-32 October 18,2022 whatnot. Yeah, I'm going to have to go with my gut on this. And so, that's my statement. I yield. MR. CHEN: Understand. Thank you. CHR KIERKIEWICZ: Thank you, Mr. Chen. Any other questions or comments? Okay, seeing none, there is a motion on the floor to forward Bill 204 to the Council with a favorable recommendation. Mr. Clerk, if we could please do a roll call. Vote on Bill 204: The motion to recommend passage of Bill 204 on first (Approved) reading was carried by the following voice vote: Ayes: Committee Members Chung, Kaneali`i-Kleinfelder, Lee Loy, Richards, and Chair Kierkiewicz—5. Noes: Committee Members David, Inaba, Kimball, and Villegas —4. Absent: None. Excused: None. (Note: Mr. Inaba voted "kanalua"then "no.") MR. HENRICKS: The motion carries. CHR KIERKIEWICZ: Thank you. Bill 204 is forwarded to the Council with a favorable recommendation. Gentlemen, we'll see you in two weeks. In the meantime, feel free to work with my office and Planning Department on amendments. And Council Member Villegas, we will certainly be in touch and keep in touch with you, because this is your district, and we want to make sure you're apprised of all the developments related this bill. Thank you. We're at the end of our agenda. May I have a motion to adjourn? Page 34 PC-32 October 18,2022 ADJOURN- There being no further business, at 4:17 p.m., Ms. Kimball moved to adjourn the MENT: meeting. Seconded by Mr. Inaba, and carried by the following voice vote: Ayes: Committee Members Chung, David, Inaba, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Richards, Villegas, and Chair Kierkiewicz— 9. Noes: None. Absent: None. Excused: None. CHR. KIERKIEWICZ: Planning Committee is adjourned at 4:17 p.m. Mahalo nui everyone. MR. PIPAN: Thank you very much. MR. DARROW: Aloha. Thank you. Appro •' 111 ( 1 ( Ms A . Kierkiewicz, Chair (Da e) Planning Committee AK/dt Page 35