HomeMy WebLinkAboutCOM 0028.000 2022-2024 JM(Ye0F k`ffY
° ' * Lee E.Lord
Managing Director
Mitchell D.Roth
Mayor Robert H.Command
tJ,TE OFµAQ'♦ Deputy Managing Director '..
61unfV of Pafuail
(Offirr of fhr 4apr
25 Aupuni Street,Suite 2603 • Hilo, Hawaii 96720 • (808)961-8211 • Fax(808)961-6553
KONA: 74-5044 Ane Keohokalole Hwy., Bldg C • Kailua-Kona, Hawaii 96740
(808)323-4444 Fax(808)323-4440
December 7, 2022 ;
:
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Dear Chair Kimball and Council Members:
SUBJECT: Amendment to Change of Zone Ordinance No. 98 91 (PL-REZ-2022-000032)
Applicant: Sunshine Holdings,LLC
Request: Five-Year Time Extension to Condition D, Amendments to
Conditions E, F, I and M, and Deletion of Conditions G and J
Tax Map Key: (3) 7-3-025:012; North Kona, Hawaii
As required by Chapter 7, Sec. 6-7.5 (a)(3), Hawai`i County Charter, transmitted herewith for the
County Council's consideration and action are the Leeward Planning Commission's letter and
enclosure regarding the above-referenced request.
Sincerely,
MITCHELL D. ROTH
Mayor
C:\Users\nsauer\Documents\PC\2022 COR\2022-11-17\Sunshine Holdings\Council Packet\TCouncilSunshineHoldingsPL-REZ-2022-0000321pe
Enclosures
cc: Planning Department
till —1 > Comm. Na.
Ref. To: WC
County of Hawai°i is an Equal Opportunity Provider and Employer. Ref. Date I X2022
Mitchell D. Roth Michael Vitousek,Chair
Mayor Barbara DeFranco,Vice Chair
Michael Dela Cruz
Lee E.Lord
Clement"CF Kanuha III
Managing Director 4
Zaheva Knowles
Mahina Paishon-Duarte
County of Hawaii
LEEWARD PLANNING COMMISSION
Aupuni Center e 101 Pauahi Street,Suite 3 - Hilo,Hawai'i 96720
Phone(808)961-8288 - Fax(808)961-8742
December 6, 2022
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
25 Aupum Street
Hilo, HI 96720
Dear Chair Kimball and Council Members:
SUBJECT: Amendment to Change of Zone Ordinance No. 98 91 (PL-REZ-2022-000032)
Applicant: Sunshine Holdings,LLC
Request: Five-Year Time Extension to Condition D,Amendments to
Conditions E, F, I and M, and Deletion of Conditions G and J
Tax Map Key: (3) 7-3-025:012-, North Kona, Hawaii
The Leeward Planning Commission, at its duly held public hearing on November 17, 2022,
considered the above-referenced application to amend Change of Zone Ordinance No. 98 91,
which reclassified 21.353 acres of land from Agricultural 20-acres (A-20a) to Agricultural
5-acres (A-5a) zoned district. The subject property is located at 73-1735 Kaloko Drive,
approximately 720 feet southeast of its intersection with Kaloko Loa Place, Kaloko Mauka
Subdivision, Kaloko,North Kona, Hawaii.
The Commission voted to forward a favorable recommendation to the County Council based on
the Planning Director's recommendation, with revised Condition J requiring submittal of an
archaeological field inspection instead of the applicant's request to delete Condition J.
The Commission concurred with the following Planning Director's reasons for favorable
consideration of the request. Criteria for granting the favorable recommendation are shown
below in bold print:
The applicant is requesting the following amendments to Change of Zone
Ordinance No 98 91:
■ A five (5)-year time extension to Condition D (Final Subdivision Approval), with
Hawai'i County is an Equal Opportunitv Provider and Employer
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
December 6, 2022
Page 2
the possibility of an administrative time extension.
• An amendment to Condition E (Restrictive Covenants) to delete the requirement
to provide a copy of the recorded covenant prior to receipt of final subdivision
approval and Condition F (Restrictive Covenants) to prohibit the allowance of
condominium property regimes (CPR) and to delete the requirement to provide a
copy of the recorded covenant prior to receipt of final subdivision approval.
® The deletion of Condition G, which required restrictive covenants in the deeds of
all proposed lots to require individual owners to file a conservation plan with the
Kona Soil and Water Conservation District.
■ An amendment to Condition I (Drainage Study) to add the standard requirement
that all development-generated runoff be disposed of on site and not be directed
toward any adjacent property.
■ The addition of new standard condition requiring compliance with Chapter 10 of
the Hawaii County Code (Erosion and Sedimentation Control)
■ The deletion of Condition J (Archaeological Survey) due to the State Historic
Preservation Division's (SHPD) prior determination that "no historic properties
would be affected"by the proposed four(4)-lot subdivision.
■ An amendment to Condition M (Fair Share Requirements) to clarify that the fair
share requirement shall only apply to any additional lots created and to update the
required fair share amounts to current rates.
The non-performance on timed conditions is the result of conditions that
could not have been foreseen or are beyond the control of the applicants, successors
or assigns, and that are not the result of their fault or negligence. The applicant
acquired the subject property under foreclosure on May 11, 2022, with the goal of
completing the proposed, four (4)-lot subdivision as envisioned by the previous owner.
According to the applicant, it is unknown why the former owner could not complete the
proposed subdivision within the timeframe stipulated in Ordinance No. 98 91, however,
the applicant intends to complete the subdivision as represented in the original ordinance,
thus the additional time to complete the subdivision is necessary.
Based on the preceding, the Planning Director has determined that the non-
performance by the former landowner was beyond the current applicant's control and was
not the result of their fault or negligence. Furthermore, as the ordinance was approved in
1998, the Planning Director recommends updating several existing conditions to reflect
current standard language and amending/adding new conditions as requested by the
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
December 6, 2022
Page 3
applicant and recommended by agencies as further discussed below.
Granting of the time extension and amendments would not be contrary to the
General Plan or Zoning Code. The original reasons for the approval of the change of
zone are still applicable and the request is not contrary to these reasons. There have not
been any significant changes to the General Plan or Zoning Code for this area since the
subject rezone approval in 1998. At that time the General Plan LUPAG Map designation
for the property was the same as it is today, Important Agricultural Lands. These are
designated lands with better potential for sustain high agricultural yields because of soil
type, climate, topography, or other factors. The A-5a zoning is compatible with this
LUPAG designation.
Since the approval of the Change of Zone in 1998, the Kona Community
Development Plan (CDP) was developed and adopted by the County Council on
September 25, 2005 as Ordinance No. 08 131 and more recently amended by Ordinance
No. 19 091, effective September 18, 2019. The Kona CDP has goals, objectives, and
policies relevant to housing through its Land Use section that specifically includes similar
goals as the General Plan regarding preservation of natural resources and native species,
as well as watershed protection.
The amended ordinance will retain condition requirements for perpetual
easements, special setbacks, and forest coverage requirements for the purposes of
protecting and maintaining naturally forested areas as well as the requirement to develop
forest management plans as has been standard for change of zone requests in the Kaloko
Mauka Subdivision.
Finally, the A-5a zoning and proposed 4-lot subdivision is compatible with the
rural character of lands located within the Kaloko Mauka Subdivision and will be
developed in conformance with the Zoning and Subdivision Codes. Furthermore,
Condition F will continue to require restrictive covenants prohibiting a second dwelling
unit on each lot. The applicant is requesting the addition of the prohibition of
Condominium Property Regimes (CPRs) on each lot to reflect more recent standard
language for this type of condition. Based on the preceding, the Planning Director
recommends approval of this request.
Based on the preceding, the granting of the time extension and other proposed
amendments would not be contrary to the General Plan, Kona Community Development
Plan and the Zoning Code.
Granting of the time extension would not be contrary to the original reasons
for the granting of the change of zone. The original reasons for granting the change of
zone remain valid today. The proposed request will not unreasonably burden public
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai,i
December 6, 2022
Page 4
agencies to provide infrastructure and utilities to the property. Neither the Department of
Public Works, Engineering Division, the State Department of Transportation nor the
State Department of Health had significant concerns regarding the request. The property
has direct access to Kaloko Drive and any driveways thereto will need to meet with the
requirements of the Department of Public Works. There is sufficient water for the
proposed request and the applicant has paid the water commitment fee for three (3)
additional units of water through June 30, 2025. Conditions of approval will require the
applicant to maintain those water commitments and construct all water system
improvements as may be required by the Department of Water Supply.
The applicant has also requested to amend Conditions E and F to remove the
requirement to record restrictive covenants prior to receipt of final subdivision approval.
According to the applicant, the submission of the recorded documents is redundant and
can be time consuming since a draft of the restrictive covenants must be approved by the
Planning Director prior to its submittal for to Bureau of Conveyances for recordation.
Based on the preceding, the Planning Director recommends approval of these
amendments, as they are not contrary to the original intention of these conditions.
The subject parcel is in an area designated as Zone "X" on the Flood Insurance
Rate Map (FIRM) by the Federal Emergency Management Agency, determined to be
outside the 500-year flood plain. The applicant has requested to amend Condition I
(Drainage Study) to require that all development-generated runoff be disposed of on site
and not directed toward any adjacent properties. This amendment will bring the condition
in alignment with conditions in other recent zone changes in the area and update it to
current standard language. Based on the preceding, the Planning Director recommends
approval of this request.
There are no severe geological or topographical problems which cannot be
properly rectified. The applicant has requested deletion of Condition G, which required
restrictive covenants in the deeds of all proposed lots to require individual owners to file
a conservation plan with the Kona Soil and Water Conservation District. This language
was common for older rezones, as the Soil and Water Conservation Districts were the
organizations that managed soil erosion and sedimentation control. When Chapter 10 of
the Hawaii County Code (Erosion and Sedimentation Control) was amended in the early
2000s, it transferred responsibility for erosion management to the County Department of
Public Works (DPW) through the grading and grubbing permit process, thus the
applicant's proposed addition of the standard Chapter 10 condition is appropriate. DPW
did however note that if long term agricultural operations are to take place, a
conservation program with the applicable soil and water conservation district is more
appropriate and would be an exclusion to a Chapter 10 permit. If the applicant or any
individual lot owner chooses to take advantage of this process, they can do so under the
auspices of current County Code. Based on the preceding, the Planning Director
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
December 6, 2022
Page 5
recommends approval of the requested deletion of Condition G and addition of a new
standard condition requiring compliance with Chapter 10 of the Hawaii County Code
(Erosion and Sedimentation Control).
The applicant is requesting to amend Condition M to clarify that fair share
assessment applies only to the additional lots to be created, and that the values of the fair
share contributions are updated to current requirements. While the applicant proposed
specific language amending the condition to address the preceding, the Planning Director
recommends updating the condition to apply all of the fair share assessment to
Mamalahoa HighwaylKaloko Drive intersection as has been standard with other recent
zone changes in the area.
Finally, while the applicant also requested the possibility of an administrative
time extension for timed conditions of the ordinance, the Department's common practice
is to not add the administrative time extension condition to change of zone amendments
as the original ordinance included that one-time privilege, and that timeframe to use the
time extension has long passed. Furthermore, the applicant has not provided any
compelling reason for the need for additional time. According to the application, the
applicant will immediately submit subdivision plans upon amendment of the ordinance
and with the removal of the requirement to submit recorded restrictive covenants and
removal of the requirement to submit an archaeological study, the 5-year timeframe
should be sufficient to secure final subdivision approval_
Based on the preceding, the granting of the time extension and other proposed
amendments would not be inconsistent with the original reasons for the granting of the
change of zone.
The request is not contrary to Chapter 205A, Hawaii Revised Statutes,
relating to Coastal Zone Management. The project site is located approximately seven
(7) miles from the nearest shoreline and is not situated within the SMA. Thus, the
property will not be affected by coastal hazards and beach erosion. There are no
identified recreational resources, historic resources, public access to the shoreline or
mountain areas, scenic and open space preserves, coastal ecosystems, or marine resources
on the subject property.
In view of the Hawaii State Supreme Court's PASH and "Ka Pa`akai O Ka`aina"
decisions, the issue relative to native Hawaiian gathering and fishing rights must be
addressed in terms of the cultural, historical, and natural resources and the associated
traditional and customary practices of the site:
Investigation of valued resources: No formal archaeological reconnaissance
survey, oral history of kama`aina accounts of the area, historical survey of documentary
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
December 6, 2022
Page 6
records, or botanical study was included in the application.
The applicant is requesting to delete Condition J (Archaeological Survey), which
required the completion of an archaeological survey or study prior to the receipt of final
subdivision approval based on a prior determination by SHPD that"no historic properties
would be affected" by the proposed four (4)-lot subdivision by letter dated April 2, 2005,
completing their HRS Chapter 6E-42 review. In the letter, SHPD indicated that
archeological sites would be unlikely on the subject property given results of an
assessment on the adjoining property and other investigations of properties at a similar
elevation. According to the DPW, approval from SHPD will still be required for specific
grubbing and grading activities, which will be covered under requirements of Chapter 10
(Erosion and Sedimentation Control). Based on the preceding, the Planning Director
recommends approval of this request.
The Department of Land and Natural Resources, Division of Forestry and
Wildlife (DOFAW), provided comments to address the impact of the proposed project on
endangered or threatened flora and fauna that may occur in the project area, specifically
the Hawaiian Hawk (`Io), Hawaiian hoary bats, Hawaiian goose (Nene), and seabirds.
Additionally, DOFAW provided comments regarding the spread of Rapid `Ohi`a Death
and the spread of invasive plant species. A condition of approval will be included to
address the recommendations provided by DOFAW.
The valued cultural, historical, and natural resources found in the rezoning area:
Neither the applicant nor the Department area not aware of any cultural or historic
resources on the property. According to the applicant, while the property is covered in
native forest, there is no evidence of any traditional and customary Native Hawaiian
rights being practiced on the property.
Possible adverse effect or impairment of valued resources: Some native plants
may be destroyed by construction or ground alteration. There is no evidence that the flora
in the area are particularly desired or used for cultural practices.
Feasible actions to protect native Hawaiian rights: According to the applicant, no
gathering is taking place on the site. Thus, to the extent to which traditional and
customary native Hawaiian rights are exercised, the proposed action will not affect
traditional Hawaiian rights; therefore, no action is necessary to protect these rights.
Lastly, this recommendation is made with the understanding that the applicant
remains responsible for complying with all other applicable governmental requirements
in connection with the proposed use, prior to its commencement or establishment upon
the subject properties. Additional governmental requirements may include the issuance of
building permits, compliance with the Fire Code, installation of improvements required
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
December 6, 2022
Page 7
by the American with Disabilities Act (ADA), among many others. Compliance with all
applicable governmental requirements is a condition of this approval; failure to comply
with such requirements will be considered a violation that may result in enforcement
action by the Planning Department and/or the affected agencies.
Based on the preceding findings, the Planning Director recommends a
favorable recommendation be forwarded to the County Council for the applicant's
proposed amendments to Condition D (Final Subdivision Approval), Condition E
(Restrictive Covenants), Condition F (Restrictive Covenants), deletion of Condition
G (Conservation Plan with the Soil and Water Conservation District), amendment
to Condition I (Drainage Study), addition of a condition requiring compliance with
Chapter 10, and deletion of Condition J (Archaeological Survey). The Planning
Director also recommends an amendment to Condition M (Fair Share) to address
the applicant's request and to bring it current with standard language for rezones in
the area. Finally, the Planning Director recommends that existing conditions in the
ordinance be revised to reflect the current standard language for conditions of
approval.
The accompanying draft bill to amend Ordinance No. 98 91 is provided for your consideration.
Please note the proposed conditions of approval attached to the draft bill. Material to be deleted
is bracketed and struck through; new material is underscored.
This recommendation does not, however, sanction the specific plans submitted with the
application as they may be subject to change given specific code and regulatory requirements of
the affected agencies.
The Planning Department's Background report, Recommendation report, PowerPoint
presentation, and public testimony are available for review at the following Laserfiche WebLink
address: htt s: records aiicounty. �yebIink 1 I(11",I 18 603Rc3-,N;•1.asxx
Draft transcripts of the hearing are available for review at the following Laserfiche WebLink
addresses:
Application Hearingzrt1��., recc�l cis.i�< riicunt <t ,'cv biil lc• l �Ic,`I Yid I{its;l'a<;c i.<ls
Public Testimony Udoc/120108,"Pay eLasnx
Sincerely,
l.i,c"a t V'ImLis k Jac G, >:;22 1 9!:ST)
Michael Vitousek, Chairman
Leeward Planning Commission
\\COHO 1\planning\public\wp60\PC\PCC2022-4\LSunshineHoldingsPL-REZ-2022-0000321pc
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
December 6, 2022
Page 8
Enclosure: Draft Bill
cc via email wlencl.: Mr. Sidney Fuke, Planning Consultant
Mr. Micah Christensen, Sunshine Holdings, LLC
Department of Public Works
Department of Water Supply
Jean Campbell, Esq., Deputy Corporation Counsel
Sinclair Salas-Ferguson, Deputy Corporation Counsel