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HomeMy WebLinkAboutCOM 0818.000 2022-2024 / •OJ4 OF N ! =.�. Deanna S.Sako /'%• Managing Director Mitchell D.Roth +: � ';<,.41„�r i•• Mayor •-- -'"4" •�_ _`_-..,..: Robert H.Command ''•.,�1�•:.................. =+,4r`.. Deputy Managing Director TE OF'08'� O uutu Offirt of flirt Altavor 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 • March 19, 2024 l rn Heather Kimball, Council Chair • and Members of the County Council co ;: County of Hawai`i - 25 Aupuni Street °f Hilo, HI 96720 `? Dear Chair Kimball and Members: SUBJECT: Change of Zone Amendment Application No.PL-REZ-2023-000051 Amendment to Change of Zone Ordinance No. 00 90 (REZ 684) Applicant: Lili`uokalani Trust Request: Amendment to Delete Conditions B, C, D,F, and K; If Deletion of Conditions B and,C is not Possible,Applicant Requests a Ten (10)- Year Time Extension to Condition B (Time to Secure Final Plan Approval) and a Seven (7)-Year Time Extension to Condition C (Time to Complete Construction) Tax Map Key: (3) 7-4-015:015 (por.), Kailua Kona,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 enclosures regarding the above-referenced request. Sincerely, 0 A /IA.- yMITCHELL D. ROTH Mayor TCounci I Li liuokalaniTrustPL-REZ-2023-000051 1pc Enclosures cc: Planning Department Comm. No. • Ref. To: �• (`� `St County of Hawai`i is an Equal Opportunity Provider and Employer. Ref. Date .0 ® 5 • �tv'o�............... Barbara DeFranco Chair Mitchell D.Roth :•�o�• .= •. Mayor • '- �l Mahina Paishon-Duarte,Vice Chair `•;�3. /, :*' Dean Au Deanna S. Sako s "*'s Michael Dela Cruz Managing Director Clement"Cr Kanuha III OF • County of Hawaii LEEWARD PLANNING COMMISSION Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawai`i 96720 Phone(808)961-8288 • Fax(808)961-8742 March 15, 2024 • Heather Kimball, Council Chair and Members of the County Council County of Hawai`i 25 Aupuni Street Hilo, HI 96720 Dear Chair Kimball and Council Members: SUBJECT: Change of Zone Amendment Application No.PL-REZ-2023-000051 Amendment to Change of Zone Ordinance No. 00 90 (REZ 684) Applicant: Lili`uokalani Trust Request: Amendment to Delete Conditions B, C,D,F, and K; If Deletion of Conditions B and C is not Possible,Applicant Requests a Ten (10)- Year Time Extension to Condition B (Time to Secure Final Plan Approval) and a Seven (7)-Year Time Extension to Condition C (Time to Complete Construction) Tax Map Key: (3)7-4-015:015 (por.),Kailua Kona,North Kona,Hawaii The Leeward Planning Commission (Commission), at its duly held public hearing on February 29, 2024, considered the above-referenced application for a Change of Zone Amendment application to delete Condition B (time to submit and secure Final Plan Approval), Condition C (time to commence construction), Condition D (Eho Street extension improvements), Condition F (Eho Street/Queen Ka`ahumanu Highway intersection improvements), and Condition K (Administrative Time Extension). If deletion of Conditions B and C is not possible, the applicant is requesting a ten (10)-year time extension to Condition B to Secure Final Plan Approval and to amend Condition C to allow construction to commence within two (2) years of receipt of Final Plan Approval and be completed within five (5) years thereafter of Ordinance No. 00-90. The subject property is located along the makai side of Queen Ka`ahumanu Highway between Eho Street and Kona Coast Shopping Center, Keahuolu,North Kona, Hawai`i. The Commission voted to forward a favorable recommendation to the County Council based on the Planning Director's recommendation. Hawaii County is an Equal Opportunity Provider and Employer • Heather Kimball, Council Chair and Members of the County Council County of Hawaii March 15, 2024 Page 2 The Commission concurred with the Planning Director's following reasons for a favorable consideration of the request. Criteria for granting the favorable recommendation are shown below in bold print: The applicant is requesting to delete five conditions of Change of Zone Ordinance • No. 00 90 written as follows: ■ Condition B (time to submit and secure Final Plan Approval): final Plan Approval of the development shall be secured from the Planning Department within ten years from the effective date of this amendment. To assure adequate time for plan approval review and in accordance with Chapter 25-2-72 (Zoning Code), plans shall be submitted a minimum of forty-five days prior to the date by which plan approval must be secured. Plans shall indicate internal driveway circulation with the adjacent Kona Coast Shopping Center; ■ Condition C (time to commence construction): construction shall commence within one year from the date of receipt of Final Plan Approval and be completed within two years thereafter; ■ Condition D (Eho Street extension improvements): improvements to Eho Street extension, including curbs, gutters and sidewalks, shall be constructed within the existing 60-foot wide roadway easement from Eho Street to Queen Kaahumanu Highway meeting with the approval of the Department of Public Works. These improvements shall be completed prior to issuance of a certificate of occupancy for any portion of the commercial development; ■ Condition F (Eho Street/Queen Ka`ahumanu Highway intersection improvements): improvements to Eho Street-Queen Kaahumanu Highway intersection shall meet with the approval of the Departments of Transportation- Highways Division and Public Works; ■ Condition .K (Administrative time extension): an initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: Alternatively, if the deletion of Conditions B and C is not possible, the applicant is requesting time extensions with specific amendment language as follows (material to be deleted is bracketed and struck-through; new material is underlined): Heather Kimball, Council Chair and Members.ofthe County Council County of Hawai`i March 15, 2024 Page 3 (B) final Plan Approval of the development shall be secured from the Planning Department within ten years from the effective date of this [mod] amended ordinance. To assure adequate time for plan approval review and in accordance with Chapter 25-2-72 (Zoning Code), plans shall be submitted a minimum offorty-five days prior to the date by which plan approval must be secured. Plans shall indicate internal driveway circulation with the adjacent Kona Coast Shopping Center; and (C) construction shall commence within [ems] two years from the date of receipt of Final Plan Approval and be completed within [tee]five years thereafter; The applicant's stated reasons for the request are as follows: Deletion of Conditions B and C: The applicant is requesting deletion of these timed construction performance conditions B and C to allow the entire parcel to be developed as the market demands and not with artificial timeframes on a smaller portion of the property for the following reasons: 1. The applicant believes that the property and surrounding area has always been slated for industrial/commercial uses as evidenced by its original MG-la zoning in 1967 and the remainder of the property's CV-10 zoning since 1971 and that continuation of the CV-10 zoning would be the most suitable land use designation. 2. The applicant has completed all the ordinance required off-site infrastructure improvements and other off-site infrastructure required for commercial development is available to the property; 3. The absence of any on-site development issues (drainage, archaeological/cultural, etc.) 4. The CV-10 zoning's continued consistency with the General Plan and Kona CDP. ■ Deletion of Conditions D and F: The applicant has completed improvements to Eho Street as required under Condition D and dedicated the improved roadway to the County via resolution. The applicant has also completed improvements to the Eho Street/Queen Ka`ahumanu Highway intersection meeting with the approval of the Department of Public Works (DPW) and the Department of Transportation (DOT) as Heather Kimball, Council Chair and Members of the County Council County of Hawai`i March 15, 2024 Page 4 required by Condition F, thus the applicant requests deletion of these completed conditions. ■ Deletion of Condition K: The Zoning Code was recently amended to prohibit the addition of conditions to any change of zone ordinance which allows the Planning Director to grant an administrative time extension (see HCC Section 25-2-44(c)),thus the applicant is requesting deletion of Condition K. The non-performance 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 subject 0.874-acre rezone area is part of a larger 4.61-acre property situated directly south (makai) of the Queen Kaahumanu Highway and adjacent to the west of the Kona Coast Shopping Center. For context, the rezone area was part of a larger area that was originally zoned General. Industrial (MG-la) in 1967 as part of the County's comprehensive rezoning program. In 1971, the County Council approved Ordinance 400 which reclassified 7.546 acres of land from MG-la to CV-10 (for 6.143 acres of land) and to Open (for 1.403 acres of land). The Open zoned area was set aside to accommodate the planned widening of the highway and included the subject 0.874-acre rezone area. It should be noted that Ordinance 400 had no conditions of approval. It was later determined that the entire 1.403-acre Open zoned land area was not needed for highway widening, thus at the request of a then lessee, the applicant requested to rezone the Open zoned area to CV-10 to match the rest of the parcel and to facilitate the commercial development of the larger parcel. In 1991, the County Council approved Ordinance No. 91 27, which was subject to several conditions, including the subdivision and donation of a 62-foot-wide strip of land for highway widening, time performance conditions to secure final plan approval and commence and complete construction, and improvements to Eho Street and its intersection with the highway. The subdivision and dedication of the roadway widening strip was completed by 1994. In 2000, the applicant subsequently amended that ordinance to delete completed conditions and request a 10-year time extension to Condition B to secure Final Plan Approval. In 2010, as the applicant was still in the process of completing improvements to Eho Street, the applicant requested and received an administrative time extension until 2020 to comply with Condition B. In 2013, the County Council accepted dedication of Eho Street between the highway and Luhia Street as a public road. Heather Kimball, Council Chair and Members of the County Council County of Hawai` March 15, 2024 Page 5 As demonstrated above, the applicant has been diligent in complying conditions of approval necessary to facilitate the development of the site. Moreover, the applicant has marketed the site to prospective lessees, but the applicant notes that project starts and completions have been affected by situations like the recession in 2008, rising interest rates, inflation, the global COVID-19 pandemic, and more recently, the tragedy of the Maui fires. Furthermore, while access to the site from the Queen Ka`ahumanu Highway is considered a plus, its right-in-only access with no right-out has dampened some interest. Thus, while the site is locationally compatible with the surrounding commercial uses, it has and will take more than the normal time to find a developer with a project that can be comfortable with that access constraint. Based on the preceding, the Director has determined that the non-performance of required conditions of approval is the result of conditions that could not have been foreseen or are beyond the control of the applicant, and that are not the result of their fault or negligence. Granting of the amendments would not be contrary to the original reasons for granting the change of zone. As discussed above, the original change of zone ordinance from Open to CV-10 ordinance was granted in 1991 to bring match the 0.874-acre rezone area that was no longer needed for highway widening with the remainder of the parcel and to facilitate a commercial development thereon. That ordinance was amended several times over the years, the most recent of which came in 2000. The reasons for granting the original and latest change of zone ordinances have not changed. The subject parcel and much of the surrounding area has been intended for commercial and industrial development for several decades and much of the surrounding properties have been developed for such uses, thus the CV-10 zoning continues to constitute an appropriate land use pattern. Additionally,the CV-10 zoning continues to be consistent with the General Plan, the Kona CDP, the Zoning Code. Finally, all the required off-site infrastructure to support development on the parcel is available and there are no on-site impediments (e.g., topographical, drainage, cultural/archaeological resources, etc.) to the development on the parcel consistent with the requirements of the Zoning Code, other development codes, and any conditions of the amended zoning ordinance. Heather Kimball, Council Chair and Members of the County Council County of Hawai`i March 15, 2024 Page 6 Appropriate infrastructure such as water, wastewater, and roadway access are available or will be constructed by the applicant to support uses permitted under the CV-10 zoning. Conditions of approval will require the applicant to comply with Department of Water Supply (DWS) and Fire Department requirements to provide potable water and fire suppression water to the site, and to connect to the County sewer in the area. There are no irresolvable geological or topographical problems which cannot be rectified, or which would render the land unusable. Conditions of approval will require the applicant to develop a drainage master plan meeting with the approval of the Department of Public Works and construct any required drainage improvements prior to issuance of certificate of occupancy for any buildings within the development. Other standard drainage and land alteration conditions of approval have also been added. Although the applicant is not proposing to develop any housing on the property, the CV-10 zoning would allow for its development, so standard fair share and affordable housing conditions have been added. Granting of the amendments would not be contrary to the General Plan, Kona Community Development Plan, or Zoning Code. The Land Use Pattern Allocation Guide (LUPAG) Map component of the General Plan is a representation of the document's goals and policies to guide the coordinated growth and development of the County. It reflects a graphic depiction of the physical relationship among the various land uses. The LUPAG Map establishes the basic urban and non-urban form for areas. within the County. The LUPAG map identifies the rezone area and its immediately adjacent area as High Density Urban (hdu), which includes general commercial, multiple family residential and related services (multiple family residential—up to 87 units per acre). The existing CV-10 zoning and any subsequent commercial development of the property will continue to support a land use pattern consistent with the General Plan's hdu LUPAG designation. In addition, the continued CV-10 zoning is consistent with the following goals, policies, and standards of the Economic and Land Use-Commercial and Housing Elements of the General Plan: Heather Kimball, Council Chair and Members of the County Council County of Hawai`i March 15, 2024 • Page 7 Economic • The County shall provide an economic environment which allows new, expanded, or improved economic opportunities that are compatible with the County's natural and social environment. • The County shall strive for an economic climate which provides its residents with an opportunity for choice of occupation. • The County shall strive for diversification of its economy by strengthening existing industries and attracting new endeavors. Land Use-Commercial Development • Provide commercial developments that complement the overall pattern of transportation and land usage within the island's regions, communities, and neighborhoods. • Commercial facilities shall be developed in areas adequately served by necessary services, such as water, utilities, sewers, and transportation systems. Should such services not be available, the development of more intensive uses should be in concert with a localized program of public and private capital improvements to meet the expected increased needs. • • Distribution of commercial areas shall be such as to best meet the demands of neighborhood, community and regional needs. • The development of commercial facilities should be designed to fit into the locale with minimum intrusion while providing the desired services. Appropriate infrastructure and design controls shall be incorporated into the review of such developments. • Require developers to provide basic infrastructure necessary for development. The Kona Community Development Plan (KCDP) was adopted by Ordinance No. 08-131 on September 25, 2008 by the Hawai`i County Council and amended by Ordinance No 19-91 on September 18, 2019. The subject rezone area is situated within the Kona Urban Area (KUA), situated partially within the Maka`eo and Kailua Village Heather Kimball, Council Chair and Members of the County Council County of Hawaii March 15, 2024 Page 8 Redevelopment Regional Center TOD Areas. Thus, the CV-10 zoning and commercial development of the property would be consistent with the Kona CDP. Since the last ordinance was granted, the Zoning Code was amended to add the concurrency provision (HCC Section 25-2-46), which requires all rezonings (and amendments thereto), address traffic, potable water, and civil defense siren concerns. The amount of traffic that could be generated for commercial use in the rezone area would not trip 50 peak hour trips, thus the requirement for a Traffic Impact Analysis Report (TIAR) was not triggered. Furthermore, the applicant has completed roadway and intersection improvements required under the existing ordinance to mitigate any traffic that would be generated by the CV-10 zoning. As discussed earlier, water is available for commercial development within the rezone area subject to DWS and Fire Department conditions. Finally, there is an existing civil defense siren located approximately 500 feet from the subject property which covers the rezone area. The request is not contrary to Chapter 205A, Hawaii Revised Statutes, relating to Coastal Zone Management. The project site is situated approximately 0.4 miles from the nearest shoreline and is not situated within the Special Management Area, there is no direct public access to the shoreline or mountains located within the project site, and commercial development of the property will be required to follow County drainage code for on-site drainage mitigation and to connect to the County sewer. As such, the proposed development should not have any substantial adverse impacts on coastal processes or conditions, nor will its approval be contrary to the objectives and policies of Chapter 205A, HRS relating to Coastal Zone Management. The development will to the extent feasible, reasonably protect native Hawaiian rights if they are found to exist. In view of the Hawai`i State Supreme Court's "PASH" and "Ka Pa`akai 0 Ka' Aina" decisions, the issue relative to native Hawaiian rights, such as 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: The following studies/reports were conducted for the project site: 1) Archaeological Studies/Plans —Archaeological Assessment, TMK: (3) 7-4-015:15, Land of Keahuolu, North Kona District, Island of Hawaii dated March, 2007.; Plan for Archaeological Monitoring, TMK:(3) 7-4-015:15, Land of Keahuolu, Heather Kimball, Council Chair and Members of the County Council County of Hawai`i March 15, 2024 Page 9 North Kona District, Island of Hawaii dated November 2007; 2) Cultural Studies —A Cultural Impact Assessment (CIA) for the lands within the ahupua'a of Keahuolu by Helen Wong Smith; 3) Floral/Faunal Studies — As part of the Final Environmental Assessment for the Kona Commons Project dated March 11, 2008, formal flora and fauna surveys were conducted. The valuable cultural, historical, and natural resources found within the project site. According to the Haun and Associates Archaeological Assessment (AA), no archaeological sites or features were identified within the subject property. However, given the identification of archaeological sites on the adjacent property to the south, the State Historic Preservation Division (SHPD) requested that an archaeologist be present during all ground-disturbing activities as a precautionary measure. In response, Haun & Associates prepared the aforementioned Archaeological Monitoring Plan (AMP), which was approved by SHPD in 2008. and specified the following procedures: • Notify DLNR-SHPD at the onset and completion of monitoring. • Identify and evaluate the significance of archaeological remains revealed during construction. • Notify DLNR-SHPD upon discovery of potentially significant resources to determine significance and the nature/extent of necessary data recovery or preservation measures. • Inform construction supervisors of the purpose of monitoring and the monitor's authority. In pre-construction briefings and periodic briefings during construction, inform personnel of procedures to be followed upon inadvertent discovery of human remains and buried cultural deposits and artifacts. • Analyze field data and collected materials. • Prepare and submit a report to DLNR-SHPD within 180 days of project completion. The CIA was based on a review of archaeological reports, government and other historical records, Hawaiian language sources translated into English, and interviews with long-term residents, including native Hawaiians familiar with the cultural history and resources of Keahuolu. Research revealed limited cultural sites in the project area (ahupua'a of Keahuolu7). Contemporary or continuing cultural practices include gathering of ocean resources in offshore waters and gathering of the endemic plant maiapilo or pilo from the 300-foot elevation seaward. Pilo is used for medicinal purposes and is not listed Heather Kimball, Council Chair and Members of the County Council County of Hawai`i March 15, 2024 Page 10 as a threatened or endangered species. The CIA determined that the Kona Commons project (of which the rezone area is a part) would have limited impact on Hawaiian cultural resources, beliefs, and practices. Care should be taken to preserve the habitat of endemic plants such as pilo and to assure access for gathering activities. It should be noted that the flora study included in the EA did not identify pilo within the subject property. • The biological surveys found that there are no designated or proposed critical habitats for endangered plant or animal species located within the project area. The study also concluded that no federally listed threatened or endangered plant or animal species appear to be present on the property, nor are there any rare animal species or uniquely valuable vegetation types. Possible adverse effect or impairment of valued resources and feasible actions to protect native Hawaiian rights: Inasmuch as the previously mentioned studies did not identify any valued resources or practice of native Hawaiian rights on the subject parcel, it is unlikely that its development will generate an adverse effect or impairment of the same. However, conditions of approval will require the applicant to implement the archaeological monitoring plan and to follow necessary mitigation procedures in the event of an inadvertent find of archaeological remains while developing the property. With implementation of the mentioned conditions of approval the proposed action will not affect traditional Hawaiian rights. Deletion of Timed Performance Conditions Vs. Further Time Extensions Historically, performance conditions have been added to rezone ordinances to ensure compliance with conditions of approval in a timely fashion, provide a reasonable timeframe for required infrastructure improvements, allow for periodic checks to ensure that the zoning is still appropriate for the area based on the general plan and community development plans, and to curb speculation and resale of undeveloped properties. In this case, the Director is recommending deletion of the remaining timed performance conditions (Condition B and C) rather than granting another time extension for the following reasons: 1. The subject property, like the other lands in the Keahuolu ahupua'a are owned by the applicant and like the surrounding properties, will be developed under leasehold and not sold, thus mitigating the concern over land speculation and resale. Heather Kimball, Council Chair and Members of the County Council County of Hawai`i March 15, 2024 Page 11 2. The rezone area and subject parcel is situated in an area that was originally and has been continuously zoned and developed for industrial and commercial uses.for nearly sixty years and is one of the few remaining lots yet to be developed. As such, no other zoning or land use would be appropriate in the area and it is highly unlikely that future land use plans will recommend changing the existing land use pattern. 3. The applicant has completed off-site infrastructure improvements required by the current ordinance to accommodate the commercial development of the subject property. This, combined with the availability of required utilities and services makes the site "shovel ready" for development subject to the remaining rezoning conditions and current development codes, regardless of how long it takes to lease the property. 4. Had the State not needed part of the property in 1971 to accommodate the widening of the highway, the rezone area would likely have been similarly zoned CV-10 at that time, and not subject to any conditions of approval under Ordinance 400. This creates a situation where any subsequent time extension condition will only apply to the 0.874-acre rezone area, and not the remainder of the larger 4.61-acre property of which it is part. Thus, deleting the timed performance conditions for the rezone area will bring the divergent development requirements of the entire property into alignment. Finally, as deletion of Conditions B and C will eliminate the last timed conditions and all the other substantive conditions of approval have been met, the Director also recommends deleting Condition J, which requires the applicant to submit an annual progress report. 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 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. Heather Kimball, Council Chair and Members of the County Council County of Hawaii March 15, 2024 Page 12 Based on the preceding findings, the Planning Director recommends that a favorable recommendation be forwarded to the County Council to amend Ordinance No 00 90 by deleting Conditions B, C, D, F, and K in their entirety. In addition, as the ordinance is 23 years old and several of the remaining conditions are inconsistent with standard condition language in current rezone ordinances, the Planning Director recommends that the existing conditions be deleted entirely and be replaced with a new set of conditions that address requirements specific to development of the rezone area moving forward and reflect the current standard language for conditions of approval. The accompanying draft bill to amend Ordinance No. 00 90 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: https://records.hawaiicounty.gov/WebLink/1/fol/128335/Rowl.aspx Should there be any questions, please feel free to contact Planning Program Manager, Maija Jackson at (808) 961-8159. Sincerely, &a-ba#-a De'ahco Barbara DeFranco(Mar 15,202413:31 HST) Barbara DeFranco, Chairperson Leeward Planning Commission P\wp60\PC\PCC2024-1\LLi l iuokalaniTrustPL-REZ-2023-0511pc Enclosure: Draft Bill cc via email w/draft bill: Bryan Esmeralda Department of Public Works Department of Water Supply Jean Campbell, Esq., Deputy Corporation Counsel Suzanna Tiapula, Esq., Deputy Corporation Counsel