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HomeMy WebLinkAboutCOM 0019.054 2002-2004 hawaiilawyer.com" DAMON KEY LEONG KUPCHAK HASTERT ~ I AW ~~ORPORAIION January 22, 2003 VIA FACSIMILE AND~.S. MAIL 'Mne----------~-~"BY-~_ ~ moi iv~~~ro„soeri rw~~~i~.~m.iw,.~~ e~~ni i-i~ao ~-~~uMy Cou0d1 Council Members, Hawaii County Council ~,~„m,,, 25 Aupuni Street, Suite 209 Hilo, Hawaii 96720 wEa,~m~ ,,,,,~..n,,,.,~~i,,,,,,, Re: Bi114: Change of Zoning Application (REZ 02-011), ~ Maurice Thomas, RS-20 to CV ~:o.~,,, r ~~•~,~ni ~ ~„r,~ i, ~ Dear Council Members: „~n,~~,~ WerepresentresidentsandpropertyownersofVolcanoVi]lagewhoare ~ ~ opposed to Bi114 because the rezoning and the proposed use violate the Hawaii County h ~ Zoning Code. A. The Proposed Industrial Use Is Inconsistent With The Neighborhood. o..•..d e,<<.,.~i~, ~ ~ti^~~~~~~~~ The application seeks a zone change fora ] .4 acre portion of a parcel on Old Volcano Road from single family residential (RS-20) to village commercial (CV- s~~,~~~- 20). The expressed purpose is to build two extremely large structures (150' x 50' x ~ 30' each) for warehousing lumber, building materials and equipment rentals, adjacent to the a licanYs existin True Value Hardware store. Accordin to the a lication, ti,~~~,.,~~-~,~,.~,~,~.~ pP g g PP these are to be "an improved storage facility for building material, such as lumber, roofs and the like [and] where building and other equipment or tools can be rented." The , ~ proposed structures are much larger than the existing hardware store. ~ ~ i ~ ~ Most of the properties in this area of Volcano Village are zoned single ~~~m~n~e N~.~ r~,~~,~~,~~ family residential and are committed to residential uses and other compatible and permitted uses, which serve Volcano's rural atmosphere and its unique, low intensity •4Jm.tlr~. m f ,J novn~ visitor destination status. A large scale home improvement center, complete wit y MS woq warehousing and construction equipment rental facilities it totally inconsistent and ou ~ e ~ of character with the surrounding land uses. ~i a~ M Mexn"s B. Warehousin~Home Improvement Centers Are Not Allowed. N The applicant seeks a zone change from single family residential (R 20) to village commercial (CV-20) to construct warehouses that will house lumber at~ ~ building material storage and construction equipment and tool rental operations, Z; H i~ ~ ~ hawaiilawyer.com DAMON KEY LEONG KUPCHAK HASTERT Council Members, Hawaii County Council January 22, 2003 Page 2 converting the existing hardware store into afull-fledged home improvement center. The Hawaii County Zoning Code clearly prevents this because neither warehousing nor home improvement centers nor equipment rentals are permitted in the village commercial CV district. "Any use not listed among the permitted uses iP. a zoning district is a prohibited use within that district, except as otherwise provided in this chapter." Zoning Code, § 25-4-4; see also Windward Marine Resort, Inc., v. Sullivan, 86 Hawaii 171, 179 (Haw. App. 1997) (if the use is not listed among the enumerated uses in the zoning district, then it is not a permitted use). Simply put, unless the use is listed, it is prohibited. None of the forty-eight (48) permitted uses in CV district include "warehousing," which is "the storage ofraw materials, finished products, merchandise and/or other goods, within a building for subsequent delivery, transfer and/or pickup." Zoning Code, 25-1-5(b)(105). To the contrary, warehousing is only permitted in the three industrial districts: (1) the Industrial-Commercial Mixed Use district, Zoning Code § 25-5-132(a) (47); (2) the Limited Industrial district, Zoning Code § 25-5- 142(a)(50), and; (3) the General Industrial district, Zoning Code § 25-5-152(a)(65). All of these districts are characterized by industrial uses that are potentially offensive or dangerous, and which are not consistent with the residential uses that typify this area of Volcano Village. Similarly, none of the permitted uses in CV includes "home improvement center," which is "a single establishment primarily involved in providing a large variety of goods and services directly associated with building and home improvements." Zoning Code, 25-1-5(b)(57). The expansion ofthehardware store to include warehouses for the storage and sale of building materials, lumber, roofs, and construction equipment rentals, falls squarely within the definition of "home improvement center." However, home improvement centers are only permitted in the same three industrial districts: (1) the Industrial-Commercial Mixed Use district, Zoning Code § 25-5-132(a)(21); (2) the Limited Industrial district, Zoning Code § 25- 5-142(a)(26), and; (3) the General Industrial district, Zoning Code § 25-5-152(a)(33). Likewise, "lumberyards" - a term not specifically defined in the Code - are not permitted in CV. In fact, lumberyards are not even permitted in the Commercial-Industrial Mixed Use district. See Zoning Code § 25-5-132(a). Only the least offensive and dangerous types of lumberyards are permitted in the Limited Industrial district. Zoning Code § 25-5-142(a)(30) ("Lumberyards and building hawaiilawyer.com DAMON KEY LEONG KUPCHAK HASTERT Council Members, Hawaii County Council ,lanuary 22, 2003 Page 3 material yards, but not including concrete or asphalt mixing and the fabrication by riveting or welding of steel building frames."). All other types of lumberyards are only permitted in the General Industrial district. Zoning Code § 25-5-152(a)(39) ("Lumberyards and building material yards"). Similarly, "equipment rental" is not a permitted use in CV and is therefore prohibited; it is, however, permitted in other districts. "Heavy equipment sales, service and rental" is only permitted in the Limited Industrial district, Zoning Code § 25-5-142(a)(25) and the General Industrial district. Zoning Code § 25-5- 152(a)(32). Similarly, "equipment sales and rental yards, and other yards where retail products are displayed in the open" are permitted only in the General Commercial (CG) district. Zoning Code § 25-5-112(26). Thus, not only does the CV district not permit "warehousing," "home improvement centers," or "lumberyards," but these industrial uses are specifically limited only to industrial districts. Even equipment rental is restricted to the general commercial and industrial districts. This is logical, as such heavy industrial uses are clearly incompatible with the residential and low-intensity commercial uses found on Old Volcano Road and otherwise permissible in the CV district. These industrial uses are so dissimilar to other typical commercial uses that Che Council has relegated them to the high intensity industrial districts. C. Prohibited Uses Cannot Be Circumvented As "Similar" Uses. The Zoning Code lists literally dozens of specific uses of land. These are either expressly permitted in a particular district, Zoning Code § 25-4-3, or they are prohibited in that district. Zoning Code § 25-4-4. In adopting the Zoning Code, however, the Council cou]d not list every possible use of land. Therefore, it provided a mechanism to deal with those uses of land not otherwise expressly covered in the Code but "similar" to the specifically permitted uses. Zoning Code § 25-5-122(d) ("Buildings and uses similar to the permitted uses listed in subsection (a) above shall be permitted in the CV district, as approved by the director.") (Emphasis added). This "similar" provision was intended to cover uses that were not specified elsewhere in the Zoning Code. All ofthe uses listed anywhere in the Zoning Code were known to and considered by the Council. Thus, the Council was aware of the uses of"warehousing," "home improvement center," "lumberyard" and "equipment rental"; it specifically decided those uses were appropriate in the industrial districts and/or the general commercial district. The Council made an informed decision NOT hawa i i lawyer.com DAMON KEY LEONG KUPCHAK HASTERT Council Members, Hawaii County Council January 22, 2003 Page 4 to include those uses in the CV district, knowing that § 25-4-4 would apply to prohibit them. The "similar" provision, § 25-5-122(d), was not intended, and cannot be used to disregard the Code and to permit a use which the Council knew of, considered, and determined should not be allowed in that district. Rather, the purposes ofthe "similar" provision was to allow the Director to consider uses that were not spelled out by the Council elsewhere in the Zoning Code. This provision applies to allow the Director to consider new and unspecified uses, and determine whether such would be "similar" to a listed permitted use in the district. As the uses at issue in Bill 4 -warehousing, home improvement center, lumberyard and equipment rental -are spelled out elsewhere and are permitted in other districts but prohibited in the CV district, these uses cannot be allow in the CV district under the pretext that they are "similar" to other uses that are permitted in CV. Otherwise, the exception would swallow the rule and virtually anything could be allowed. D. Prohibited Industrial Uses Cannot Be Allowed "Backdoor" As Accessory. The term "accessory use" cannot be stretched so far to include the proposed warehousing, lumberyard, home improvement center and equipment rental uses under the accessory use provision of Zoning Code § 25-5-122(e). An accessory use "means a use which is customarily associated with and subordinate to the main or principal use and which is located on the same building site as the main or principal use." Zoning Code, § 25-1-5(b)(2) (emphasis added). See also Windward Marine Resort, Inc., v. Sullivan, 86 Hawaii 171, l79 (Haw. App. 1997) (a legitimate "accessory use" is merely incidental and subservient to the principal, permitted use). In enacting the Zoning Code and specifically relegating warehousing, lumberyards and home improvement centers to the three industrial districts only, the Council made a conscious decision that such uses were not "accessory" to a hardware store. Rather, those uses were far more intense and offensive, and were therefore relegated to heavy industrial districts only. It is well-settled that a use prohibited in one zoning district (but specifically allowed in another district) cannot be allowed in the first district as an "accessory use." Thus, one court held that because concrete ready-mix plants were only permitted in the industrial zoning district and not in a residential district, the zoning board could not have intended that such an intensive use be permitted as an accessory use in a residential district, even though minor excavation was permitted in the residential district. Kobyluck v. Zoning Board of Appeals, 1998 Conn. Super. hawaiilawyer.com DAMON KEY LEONG KUPCHAK HASTERT Council Members, Hawaii County Council January 22, 2003 Page 5 LEXIS 454 (February l 8, 1998). See also Board of Commissioners v. Thompson, 493 P.2d 1358 (Colo. 1972) (because junk yards were specifically permitted in the industrial district but not in the agricultural district, storage of 60 old cars was not an accessory use in the agricultural district). So too, in this case, the fact that warehousing, home improvement centers and lumberyards are only permitted in industrial districts, and are not permitted in the village commercial district, means such uses cannot be allowed as "accessory uses." Furthermore, by definition an accessory use must be customarily incidental and subordinate to the permitted use. Here, the proposed uses greatly exceed in size and intensity the existing hardware store. The proposed warehouses dwarf the existing store. Moreover, the applicant is proposing to enter into lines of business far exceeding the current levels. It cannot be said that the proposed warehousing, lumber yard and home improvement center will be "subordinate" to the existing hardware store. Thus, this cannot be allowed as an "accessory use." Finally, the proposed use cannot be permitted as accessory because, by definition, an "accessory building" is limited to twenty feet (20') in height. Zoning Code § 25-1-5(b)(1). The proposed structures are thirty feet (30') in height. Therefore, they cannot be considered "accessory" to the existing use. E. Conclusion. For all of the reasons stated above, the Council should deny the zone change application. The heavy industrial uses proposed for the property are not permitted in the CV zone, and are far too intensive and offensive for the neighborhood. Very truly yours, DAMON KEY LEONG KUPCHAK HASTERT Grego . Kugle GWK:ds 154023.2