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Home My WebLink AboutBIL 007 Draft 01 2022-2024COUNTY OF HAWAI‘I STATE OF HAWAI‘I BILL NO. ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 98 91, WHICH RECLASSIFIED LANDS FROM AGRICULTURAL – 20 ACRES (A-20a) TO AGRICULTURAL – 5 ACRES (A-5a) AT KALOKO, NORTH KONA, HAWAI‘I, COVERED BY TAX MAP KEY: 7-3-025:012. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI‘I: SECTION 1. Section 2 of Ordinance No. 98 91 is amended as follows: “SECTION 2. In accordance with Section 25-2-44, Hawai‘i County Code 1983 (2016 Edition, as amended), the County Council finds the following conditions are: (1) Necessary to prevent circumstances which may be adverse to the public health, safety, and welfare; or (2) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: Protection of the public from the potentially deleterious effects of the proposed use, or Fulfillment of the need for public service demands created by the proposed use. The [applicant]Applicant, its successors, or assigns (“Applicant”) shall be responsible for complying with all of the stated conditions of approval. The [applicants, successors or assigns] (Applicant) shall be responsible for complying with all requirements of Chapter 205, [Hawaii] Hawaiʻi Revised Statutes, relating to permissible uses within the State Land Use Agricultural District. [The required water commitment payment shall be submitted to the Department of Water Supply in accordance with its “Water Commitment Guidelines Policy” within ninety (90) days from the effective date of this ordinance.] The Applicant is responsible for maintaining valid water commitments to support the proposed use until such time that required water facilities charges are paid in full. The Applicant shall construct necessary water system improvements as required by the Department of Water Supply. Final Subdivision Approval of the proposed agricultural subdivision shall be secured from the Planning Director within five (5) years from the effective date of this amended ordinance. The [applicants]Applicant shall reserve the following easements and special setbacks in perpetuity for purposes of protecting and maintaining naturally forested areas and delineate such easements and setbacks on plans submitted for subdivision review: a 60-foot wide “forest reserve easement” along the existing public street frontage of the subject property, exclusive of sight easements required by the Department of Public Works and access points permitted by the Department of Public Works. a 30-foot wide “forest reserve easement” along all lot lines not covered by the 60-foot wide easement; and a 60-foot wide structural setback in lieu of the required 30-foot setback along the property's public street frontage to provide an additional buffer. Restrictive covenant(s) in the deeds of all the proposed agricultural lots fronting Kaloko Drive shall specify and uphold the easements and setbacks set forth in Condition D. The restrictive covenant(s) shall also specify that, including the area comprising the forest reserve easements described in Condition D, no less than sixty-seven percent (67%) of the entire lot area shall be retained in forest. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Director for review and approval prior to the issuance of Final Subdivision Approval. [A copy of the approved covenant(s) shall be recited in an instrument executed by the applicants and the County and recorded with the Bureau of Conveyances approval prior to the issuance of Final Subdivision Approval.] A copy of the recorded document shall be filed with the Planning Department upon its receipt from the Bureau of Conveyances. Restrictive covenant(s) in the deeds of all the proposed agricultural lots within the subject property shall prohibit the construction of a second dwelling unit and condominium property regimes (CPR) on each lot. A draft [copy] of the proposed covenant(s) to be recorded with the State of Hawai‘i Bureau of Conveyances shall be submitted to the Planning Director for review and approval prior to the issuance of Final Subdivision Approval. [A copy of the approved covenant(s) shall be recited in an instrument executed by the applicants and the County and recorded with the Bureau of Conveyances prior to the issuance of Final Subdivision Approval.] A copy of the recorded document shall be filed with the Planning Department upon its receipt from the Bureau of Conveyances. [Restrictive covenant(s) in the deeds of all the proposed agricultural lots within the subject property shall require the individual owners of the proposed lots to file a conservation plan with the Kona Soil and Water Conservation District, with a copy of the approved plan submitted to the Planning Department, prior to any land alteration activities within any of the respective agricultural lots. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Director for review and approval prior to the issuance of Final Subdivision Approval. A copy of the approved covenant(s) shall be recited in an instrument executed by the applicants and the County and recorded with the Bureau of Conveyances prior to the issuance of Final Subdivision Approval.] A Forest Management Plan for the proposed lots within the subject property shall be prepared and submitted for review and approval by the Planning Director in consultation with the State Department of Land and Natural Resources, the State Department of Health, the State Department of Agriculture and the U.S. Department of Natural Resources Conservation Service. The Forest Management Plan shall require the following: Include at a minimum, the best forest and reforestation practices, program for implementation and other applicable forestry management criteria, including those of the State Department of Land and Natural Resources, such as the Forest Stewardship Program or the Soil Conservation Service Management Program. The Forest Management Program shall include a restrictive covenant for the proposed lots within the subject property which shall be recorded with the Bureau of Conveyances and/or Land Court. A copy of the covenants shall be submitted to the Planning Director for review and approval prior to the issuance of Final Subdivision Approval. A copy of the approved covenant(s) shall be recited in an instrument executed by the [applicants]Applicant and the County and recorded with the Bureau of Conveyances prior to the issuance of Final Subdivision Approval. If more than twenty percent (20%) of the subject property has been cleared or grubbed prior to the submittal of the Forest Management Plan or the recording of the restrictive covenant(s), the reforestation program for any cleared or grubbed area(s) in excess of the 20% within the subject property shall be substantially implemented prior to the issuance of Final Subdivision Approval. This Forest Management Plan shall govern the proposed lots within the subject property for a period of fifty (50) years and its termination may be considered after the 50-year period has elapsed by amending this ordinance requiring County Council approval by ordinance. All development-generated runoff shall be disposed of on site and shall not be directed toward any adjacent properties. A drainage study of the subject property, if required, shall be prepared for review and approval by the Department of Public Works, prior to submittal of plans for subdivision review. Drainage improvements, if required, shall be constructed in a manner meeting with the approval of the Department of Public Works prior to the issuance of Final Subdivision Approval. J. All earthwork and grading shall conform to Chapter 10, Erosion and Sedimentation Control, of the Hawaiʻi County Code. [J.] K. [An archeological study/survey of the subject property shall be prepared and submitted for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD), prior to the submittal of plans for subdivision review or any land alteration activity, whichever occurs first. Should significant historical sites be found within the subject property which merit preservation or the implementation of mitigative measures, the applicants shall prepare and submit an archeological preservation/ mitigation plan for review and approval by the Planning Director, in consultation with the DLNR-HPD, prior to the issuance of Final Subdivision Approval or any land alteration activity, whichever occurs first.]An archaeological field inspection shall be submitted for the review and approval of the State Department of Land and Natural Resources – State Historic Preservation Division prior to the issuance of any land alteration permits or the submittal of plans for Final Subdivision Approval, whichever occurs first. If the Archaeological Field Inspection identifies historic properties, an Archaeological Inventory Survey shall be prepared. The Applicant shall implement any preservation measures, which shall be shown on the final plat map, as recommended in the Archaeological Inventory Survey or subsequent preservation plans. [K.]L. [Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR HPD when it finds that sufficient mitigative measures have been taken.]In the event that surface or subsurface historic resources, including human skeletal remains, structural remains (e.g. rock walls, terraces, platforms, etc.), cultural deposits, marine shell concentrations, sand deposits, or sink holes are identified during the demolition and/or construction work, the Applicant shall cease work in the immediate vicinity of the find, protect the find from additional disturbance and contact the State Historic Preservation Division at (808) 933-7651. Subsequent work shall proceed upon an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. [L.]M. Access(es) to the subject property from Kaloko Drive shall be constructed in a manner meeting with the approval of the Department of Public Works. N. Should any state or federally listed or endangered species be found on the subject property, the Applicant shall comply with all applicable requirements of DOFAW and/or the USFWS. [M.]O. [The applicant shall make its fair share contributions to mitigate the potential regional impacts of the subject property with respect to roads, parks and recreation, fire, police and solid waste disposal facilities. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of residential lots proposed to be subdivided by the amounts allocated herein below for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of proposed residential lots in each such increment. The fair share contribution, in a form of cash, land, facilities or any combination thereof, acceptable to the director in consultation with the affected agencies, provided that the fair share contribution to address the potential road impacts shall be in the form of cash and shall be applied to improving the Kaloko Drive/Hawaii Belt Road intersection. The fair share contribution shall have a maximum combined value of $7,239.16 per single-family residential unit. Based upon the applicant’s representation of intent to develop up to four (4) residential units, the indicated total of fair share contribution is $28,956.64 for single-family residential units. However the total amount shall be increased or reduced in proportion with the actual number of units according to the calculation and payment provisions set forth in this Condition L. The fair share contribution shall be allocated as follows: $3,490.85 per single-family residential unit for an indicated total of $13,963.40 to the County to support park and recreational improvements and facilities; $168.40 per single-family residential unit for an indicated total of $673.60 to the County to support police facilities; $332.61 per single-family residential unit for an indicated total of $1,330.44 to the County to support fire facilities; $145.62 per single-family residential unit for an indicated total of $582.48 to the County to support solid waste facilities; and $3,101.68 per single-family residential unit for an indicated total of $12,406.72 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of the change of zone, based on the percentage change in the Honolulu Consumer Price Index (HCPI). In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the director. For purposes of administering Condition L, the fair market value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be subject to review and approval of the director, upon consultation with the appropriate agencies. Upon approval of the fair share contributions or in lieu contributions by the director, the director shall submit a final report to the Council for its information that identifies the specific approved fair share and/or in lieu contributions, as allocated, and further implementation requirements.] The Applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to roads. The fair share contribution shall become due and payable prior to receipt of Final Subdivision Approval. The fair share contribution shall be based on the actual number of additional lots created. The fair share contribution to address the potential road impacts shall be in the form of cash and/or in-kind services approved by the County Council and shall be applied to improving the Kaloko Drive/Māmalahoa Highway intersection. Based upon the Applicant’s representation of intent to subdivide and develop up to three (3) additional lots, the fair share contribution is $15,636.59 per additional lot, for a combined total of $46,909.77. The fair share contribution shall be adjusted annually by the Hawai‘i County Planning Department, beginning three (3) years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI). Upon approval of the fair share contribution, the Planning Director shall submit a final report to the County Council for its information that identifies the specific approved fair share contributions, as allocated, and further implementation requirements. [N.]P. The Applicant shall comply [Comply] with all applicable laws, rules, regulations and requirements of the affected agencies for approval of the development within the subject property. [O.]Q. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fee Ordinance. [P.]R. [An initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year).]If the Applicant should require an additional extension of time, the Planning Director shall submit the applicant’s request to the County Council for appropriate action. [Q.]S. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation.” SECTION 2. Material to be deleted is bracketed and stricken. New material is underscored. SECTION 3. Severability. If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAI‘I , Hawai‘i Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: