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HomeMy WebLinkAboutCOM 0045.029 2002-2004 Skycliff Ranch LLC Christopher Nome, Manager Ranch Headquarters: Administration: Makahiki Lane 845 Bellevue Pl. E. #101 Captain Cook, Hawaii Seattle, WA 98102 Cell: (206) 953-1854 Tel. (206) 323-0653 E-mail: Cnorrie@aol.com Fax: (206) 325-5855 May 13, 2004 - Honorable Leningrad Elarionoff, _ ~ . Chairperson and Members, Planning Committee, Hawaii County Council -i, 25 Aupuni Street Hilo, Hawaii 96720 ~ By FedEx: 8386 0548 6993 0 Re: Proposed LUPAG Designation Change H-1; Comprehensive Review of the General Plan Chairperson Elarionoff Members of the Planning Committee of the Hawaii County Council: My name is Christopher Non•ie and 1 am the Manager of Skycliff Ranch LLC, a ranch owned by my family in South Kona. This 88 acre pazcel of land (T.M.K. 8-1-10-4) is located on relatively flat table lands above Kealakekua Bay State Historic Pazk in the ahupua'a of Kealakekua. I am also the sole owner of Pali-K Ranch located on an adjacent 31-acre pazcel in the ahupua'a of Ka'awaloa (T.M.K. 8-1-10-5). Both of these parcels aze located entirely in the State Land Use (SLU) Conservation District and have been actively ranched, continuously for well over a hundred years. I have ranched in this azea for twenty yeazs and feel privileged to have been entrusted with the stewardship of this land. I fully appreciate the historical significance and environmental sensitivity of Kealakekua Bay and actively support the protection of its unique resources. However, I believe that the Administration's proposal to create a "County Conservation" zone above Kealakekua as set out in LUPAG Designation Change H-1 is both unnecessary and imprudent. As a landowner, I have deep concerns that H-1 will result in a taking of my property rights}, if it is implemented as set out in the draft of the County General Plan submitted by the Administration. The administration of the Conservation District is vested exclusively in the State Department of Land and Natural Resources (DLNR), pursuant to H.R.S. 183-C. The several counties aze only given the right under state law to zone and regulate uses in lands that have been designated SLU Urban (U), Rural (R) and Agricultural (A). ' See: Testimony Concerning Selected Parts of Hawaii County Proposed General Plan by David L. Callies dated December 16, 2003 Comm. No._ Ref. To: Ref. Date ~flY l ~ 2~~4_ Hawaii County Council, Planning Committee re Proposed LUPAG designation change: H-1, May 13, 2004 2 H.R.S. 183-C makes specific provision for and the DLNR actively recognizes the long standing ranching use of the above referenced properties, by the Greenwell and Paris families prior to my tenure, asnon-conforming but permitted ("grandfathered") use because such ranching predates the statutes establishing the Conservation District (by a hundred years). Good stewazdship of this land demands the continuing cazeful management of the existing grazing practices. If the existing grazing operation was discontinued it could have an extremely negative impacts on the ecology of the land and Kealakekua Bay. The rainfall in these lands is seasonal with the majority of the precipitation in the wet stunmer season. The dominant vegetation was introduced in post contact times from Guinea in Africa. The scientific name for this "Guinea Grass" is (Panicum Maximum) which gets its name from the "maximum panic" with which this exotic fauna can grow. During the rainy season, it rapidly grows to a height of over fifteen feet and renders the land absolutely impenetrable and impassable on foot or horseback. When the seasonal rains stop, the Guinea grass dries, mats and becomes a substantial fire hazazd. Were the grass cover to burn off in the dry season (which has happened in the past), a winter storm could erode soil into the class AA waters of Kealakekua Bay. The DLNR has promulgated effective regulations (HAR §13-5) for the Conservation District, including the identification of sub-zones and the enumeration of permitted uses therein. These regulations specifically allow the construction of a single family residence ("SFR") in the General Subzone but only one such SFR is permitted in each such existing pazcel in the Conservation District. The recent case of Kellv, et al. v. Oceanside 1250, et al. (the Hokuli'a litigation which overturned Ordinance 97-34), clearly demonstrates that a trial court can invalidate the County Council 's acts if such legislation is not absolutely cleaz. I have already had to defend against a legal challenge from similaz plaintiffs here in South Kona. While my rights were vindicated, this was a waste of resources, in terms of time, money and energy. A Petition for Declazatory Judgment was brought challenging the Land Boazd's issuance of CDUP HA-2968 to Pali-K Ranch for the construction of a single family residence at Ka'awaloa. This Petition was dismissed by the BLNR citing the Hawaii Supreme Coturt case of McGlone v. Inaba 64 H. 27, 636 P2d. 158 (1981), which upheld the Boazd's right to approve a CDUP for accessory uses (of an adjoining SFR) in a the Paiko Lagoon Wildlife Refuge, which was located in an extremely sensitive portion of the Conservation District in West Oahu. I respectfully ask that the County Council to carefully assess the substantial increase of litigation impacts that proposed LUPAG Designation H-1 could have on my property. The Planning Commission held extensive hearings on the General Plan in 2000 and 2001 and made recommendations which aze different from what was and is now proposed by the Administration. Please note that the Planning Commission in its letter to the Planning Director dated October 19, 2001, the Plannine Commission recommended the deletion of proposed LUPAG moo desi¢nation H-I. I believe that the Council should give substantial weight to the recommendation of nine commissioners who sat through and heazd extensive and exhaustive testimony from the people of Hawaii County over a two yeaz period. Hawaii County Council, Planning Committee re Proposed LUPAG designation change: H-1, May l3, 2004 3 The Administration's draft before you contemplates a radical departure from previous General Plans, in that it suggests the need for a County Zoning District that calls "for land to be preserved in its largely natural stateZ." The application of this proposed County LUPAG Conservation designation to both SLU Conservation Districts (supposedly in the State's exclusive jurisdiction under HRS 183-C) and lands with other SLU designations creates uncertainty of legal interpretation, particulazly trader the Consistency Doctrine, discussed below. Furthermore such County LUPAG designation could negatively impact BLNR deliberations, SMA exemption of a SFR and/or environmental review under HRS Chapter 343, as well as providing the grounds for appeal by third parties therefrom. The Administration's draft of the General Plan recommends that the County Zoning Code be amended "to create a category for lands that should be kept in a largely natural state, but that may not be in the Conservation District, such as important view planes, buffer azeas and very steep slopes3". This would effectively create County no-build zones which raises the issue of the "regulatory taking of property rights" protected by the 5th Amendment of the Constitution of the United States. Professor Callies memo concludes that "the Hawaii County Conservation designation appeazs to permit virtually no economically beneficial or viable use for the land, thereby meeting the [U.S. Supreme Court's] primary criterion for a regulatory taking. This is a complex and evolving azea of law, and azguments must be made on a case by case basis. Notwithstandine speculation as to just where such line is to be drawn by the Sa' Amendment I ask the County Council to respect the nrinciRle of the protection of basic property rights which is a fundamental focus of our Constitution and heritaee. I am not asking to do anything on this land which I am not presently entitled to do. I am asking that such rights not be taken away or diminished by making them legally questionable so as to invite litigation, the defense of which I would not be able to afford. I understand that there has been discussion at the County Cotmcil of the "Consistency Doctrine" recently expanded by the Hawaii Supreme Court in Save Sunset Beach Coalition et al v. City & County of Honolulu et al. which extended the "consistency doctrine" to the most restrictive of three applicable criteria: i) State Land Use Designation, ii) County General Plan, & iii) Zoning Ordinance. If H-1 were enacted and if the same LUPAG definition of the County Conservation were to remain, it is entirely likely that a court would find that a single SFR permissible in a General Subzone of the Conservation District was not permissable under the Consistency Doctrine. This would be further exasperated by the imposition of a County Conservation Zone. There is no present practical need for H-1. I understand that the Planning Director has already procured a commitment from the owners of Keopka (the northern portion of H-1; presently SLU Agricultural) to give a conservation easement over a portion of H-1. I believe the preservation of the foreshore of Keopuka was the initial motivation for H-1. The Keopuka conservation easement is to be given to a independent land trust and will absolutely baz all successive owners in perpetuity from any development on the land covered by such conservation easement. Both the Planning Director and the owners of the property aze to be commended for such volun actions. a Administration Draft of proposed General Plan: Open Space; Introduction and Analysis. ' Administration Draft of proposed General Plan: Open Space; Policies. Hawaii County Council, Planning Committee re Proposed LUPAG designation change: H-1, May 13, 2004 q The Constitution of the United States precludes State and County governments from "taking" private property. Neither the County or the State have the funds to purchase land for open space. Voluntary arraneements need to be encouraged! In the case of Keopuka, one of the incentives for giving a conservation easement is that the value of the donation is tax deductible. The amount of the donation is the difference between the value of their property were it able to be developed under current GP designation and zoning, and the (diminished) value of the property with the conservation easement in place. If the Council enacts this Conservation LUPAG Designation and/or, worse, amends the Zoning Code to create a Conservation Zone, the value of such donation will be substantially if not totally reduced. One cannot give, that which has already been taken away! This will not encourage other land owners to take such voluntazy actions in the future. I bring to the Council's attention that there aze sepazate Hawaiian terms for distinct portions of the cliffs azound Kealakekua Bay: The cut-faced cliff is known asPali-Kapu-o- Keoua, and the more gentle, grassed cliff which wraps azound inland to the south end of the bay is known as Pali o Manuahi, or Pali Poko. There is absolutely no protection proposed for the face of Pali o Manuahi. Here we are not talking about the relatively flat table lands of Skycliff but the very face of the Cliff itself. The face itself of Pali o Manuahi which is an extremely steep slope and is of substantial significance. This is SLU Agricultural and no restrictive LUPAG designation is suggested there. I submit that the potential visual impact on the face of Pali o Manuahi is a much more pressing conservation concern than the table lands of Skycliff, which aze already adequately protected by the State Conservation District. I believe that the best way to secure the protection of Pali o Manuahi is through a voluntary agreement with the landowners. Imposing H-1 at this time will foreclose the possibility of comprehensive voluntazy landowner actions, azound Kealakekua Bay begun by the owners of Keopuka. In respect to the specific case of the lands of Skycliff Ranch (T.M.K. 8-1-10-4) which already lie entirely within the State Land Use Conservation district: 1) I do not foresee any conceivable circumstances under which these lands would be taken out of the Conservation District by the State Land Use Commission. Therefore, there is no threat whatsoever to Kealakekua Bay by leaving these lands, already designated Conservation by the State, in a LUPAG designation, which reflects their traditional and existing ranching use. 2) A County Conservation LUPAG designation and Zone which required the land to be kept in its natural state would be substantially more restrictive than the uses presently permitted under State law, specifically HAR 13-5. I believe that such action could be found to be to a regulatory taking "per se" (in and of itself) under Lucas v. South Cazolina Coastal Council, 505 U.S. 1003 (1992). 3) The discontinuation of grazing could have an extremely negative environmental impact on Kealakekua Bay. A rancher should be entitled to a single residence for his family on a property of this size (88 acres) provided that the visual impacts are reasonably mitigated. Since this `table land' runs some thousand feet back from the Pali, such visual impacts are effectively mitigated by the intervening cliff. In any event, the Hawaii County Council, Planning Committee re Proposed LUPAG designation change: H-1, May 13, 2004 5 construction of such residence would be subject to the environmental review pursuant to HRS Chapter 343. 4) The LUPAG map of the General Plan should reflect the actual use of the land. Such actual use is the longstanding and continuous ranching operation as specifically permitted by HRS § 183C-5. The Land Use Allocation Map designation which properly reflects this actual and permitted ranching use of this land is "Extensive Agriculture," and this is the designation recommended to you by the Planning Commission. 5) There is nothing to be gained by these proposed actions. These lands aze already protected by the State Conservation District. Keopuka has already agreed to grant a Conservation easement over the balance of H-1. 6) The imposition by H-I of Conservation on the County LUPAG map would create a legal ambiguity which would encourage burdensome litigation, brought by third parties but ultimately involving the County. I believe that this action is contrary to the protection of the reasonable use of private property, the promotion of good stewardship of the land, and the practice of voluntary environmental preservation. For the reasons set out above, I respectfully ask the County Council to support the Planning Commission's recommendation to the Planning Director in their letter of October 19, 2001: to delete Amendment "H-1" to LUPAG Map for South Kona. Thank you for the opportunity to comment on this Comprehensive Review of the General Plan and your consideration of the views expressed hereinabove. Sincerely, V Y~ Skycliff Ranch LLC, by Christopher Nome, its Manger enclosures cc: Mr. Christopher J.Yuen, Planning Director, County of Hawaii Members, Hawaii County Planning Commission