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HomeMy WebLinkAboutCOM 0705.000 2004-2006 vvw~ Harry Kim c~ ~'•s Christopher J. Yuen Mm~nr D(r'e~mr . Brad KurukOwn, nsl_n. Leru'"' nP J~~` Depu(c Direcinr ••R~w`x~ County of Hawaii PLANNING DEPARTMENT Aupuni Ccntcr • 101 Pauahi Sl[eel, Suite 3 • Hilo, Hawaii 967?0 Phone (808)961-8288 • Pax (808)961-8742 February 3, 2006 Honorable Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING 25 Aupuni Street Hilo, HI 96720 Dear Chair Pilago and Members of the Committee on Planning: SUBJECT: County GIS Public Data CD and Land Use System The Hawaii County Planning Department has recently made a CD of basic land use information. With this CD, you can look at the tax map parcels, zoning for the island, the General Plan Land Use Pattern Allocation Guide ("LUPAG" map), the state land use districts, and the Special Management Area ("SMA") boundaries. The CD also has a map of the lava hazard zones, some roads, and a database of rezoning ordinances. It is a portion of the information that we have available on the county computer system. We wanted to give all of the councilmembers a copy of this CD so that they could look at this land use information on their own. We are also selling this to the public for $5. Greater public understanding of zoning and other land use information will help us have better planning. After loading the CD, double-click on the "Arc Explorer Project" folder, then click on the "Arc Explorer Setup instructions" icon for instructions on how to install and use the CD. You have to copy the contents of the CD to the root of your hard drive on your computer; it does not work properly if you try to run it directly from the CD. Also, please read the "GIS Public Disclaimer" and "Metadata" files to understand limitations of the data and some basic cautions about using it. Hawaii County is an Equal Opportunity Provider and F,mployer. COIi1SIL I`{O. 0 Ref. Tp: Ret. Uate Honorable Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 2 February 3, 2006 After installing the CD, you should double-click on the "Project" folder, then double- click on the "County of Hawaii 2" icon. You should then see an outline of the island with various "themes" with checkboxes to the left. If you check the "parce1s1105" box, the program should draw the tax map parcels onto the island map. If you check the "Zoning" box, it should color in the various zoning designations. You can use the and tools at the top of the screen to zoom in and out of the map. There are "streetname" features that are useful in trying to find locations. There are many other features and types of information. You can overlay the zoning and other land use information over the tax map parcels. We will have a demonstration of some of the features and capabilities of the CD at the February 14, 2006 Planning Committee meeting. If you have trouble getting started with this CD on your own, please wait until the February 14 meeting. The "LUPAG" data layer has some acronyms that are not explained on the CD. These are: bw= breakwater (this is not a land use category, just a description) con= conservation ea= extensive agriculture hdu= high density urban ia1= important agricultural lands ind= industrial ldu= low density urban mdu=medium density urban ope= open orc= orchazds pon=pond (not a land use category, just a description) ren= resort node res= resort rui=rural ue= urban expansion uu= university The meaning of these various categories is discussed on p. 14-7 to 14-9 of the 2005 General Plan. Honorable Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 3 February 3, 2006 I wrote a summary of the Hawaii land use system for the new county Open Space Commission. I thought that this summary might also be of interest to the councilmembers. You will probably be familiar with most of this, but it is useful to have it in one place. We can discuss this further on February 14. Hawaii Land Use System The Hawaii system of land use regulation is complex. Books have been written on the subject. What follows is a simplified version and omits many exceptions to the rules. Private land use in Hawaii is highly regulated by a dual system of state and county laws. There are also federal laws that affect land use, such as wetland protection. State land use classifications: All land in Hawaii is classified into one of four classifications: Conservation (about 51% of the land on this island), Agricultural (about 46%), Rural (less than 1 and Urban (about 2%). The boundaries were initially set by the State Land Use Commission (LUC), a body of nine members appointed by the Governor. Changes to the district boundaries can be done by ordinance of the County Council for areas of 15 acres or less, otherwise, the LUC must approve changes by a minimum of six affirmative votes. Only the LUC can take land out of the Conservation District. Typically, boundary amendments are initiated by landowner application and reviewed on a case-by-case basis, but the law also allows the state to conduct a periodic boundary review. Conservation District: Except for land that is also in the Special Management Area (SMA), as explained in more detail below, the Conservation District is solely under State jurisdiction. The Conservation District is further divided into four main subzones: Protective, Limited, Resource, and General. In terms of uses, the strictest is the Protective; the least strict is the General. There is also a "Special" subzone that can accommodate unique projects. The Conservation District allows only a very limited range of uses, and most of these need a Conservation District Use Permit (CDUP) from the Board of Land and Natural Resources (BLNR), aseven-member board appointed by the governor. The BLNR can approve single-family homes in the Resource and General subzones, and in some situations, in the Limited subzone. House size is limited to 3500 ft2 for lots less than one Honorable Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 4 February 3, 2006 acre; 5000 squaze feet for larger lots. The BLNR can also approve, through CDUP, such things as highways, infrastructure for utilities, and resource-dependent power plants such as hydro or geothermal power. The Department of Land and Natural Resources (DLNR) has administrative responsibility over the Conservation District. Agricultural District. The County administers the Agricultural District within the framework of the State land use law. State law and LUC rules limit uses in the agricultural district, most of them relating to agriculture, including mills and other processing facilities, but allowing some non-agricultural uses such as wind energy facilities. On lots created by subdivisions approved after June 4, 1976, homes are supposed to be "farm dwellings", or otherwise be accessory to agriculture, but in pre-June 4, 1976 subdivisions the homes can be "single- familydwellings." The "faun dwelling" requirement is a matter of state statute for soils classified as A or B; it is required by Land Use Commission rule for soils classified as C, D, E, or U. Lot sizes for subdivisions in the Agricultural District are set by the County Council through zoning, but must be at least one acre by state law. The "special permit" process potentially allows a wide range of other uses. A special permit can be issued for any "unusual and reasonable" use. For areas of 15 acres or less, the County Planning Commission decides the special permit. For more than 15 acres, the special permit must be approved by both the Planning Commission and the State Land Use Commission. Examples of common special permits are bed-and-breakfast operations and cell phone towers. Rural District. There are only three significant differences between the Rural District and the Agricultural District: (1) homes can be single-family dwellings, even on post-June 4, 1976 subdivisions, (2) the minimum lot size is %2 acre (with an exception allowing lots as small as 18,500 ft2), and (3) since a recent change in the law in 2005, golf courses are permitted in Rural, but not in the Agricultural District (although golf courses previously built or approved by the counties in the Agricultural District remain legal.) Honorable Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 5 February 3, 2006 Urban District. The urban district is entirely under county jurisdiction and uses are controlled only by county zoning. Key References: H.R.S. Chap. 205; H.R.S. Chap. 183C; H.A.R. 13-5 (BLNR Administrative Rules); H.A.R. 15-15 (LUC Administrative Rules); Planning Commission Rule 6 (Special Permits) County Land Use System General Plan. The General Plan is the overall guide to county ]and use decisions like zoning. The General Plan is an ordinance enacted by the County Council. The current General Plan was enacted in February 2005. The General Plan consists of a written portion, which has a set of goals, policies, standards, and courses of action, and maps. The text also includes a list of the urban, industrial, and resort areas. The maps include the "Land Use Pattern Allocation Guide Map" or "LUPAG" map, which gives the general location of land uses in the county. The LUPAG map is not meant to be exact; sometimes the map has to be interpreted in the light of other information. When the County Council is considering a change of zone, or when the Planning Commission is considering an SMA permit, a special permit, or a use permit, the decision is supposed to be consistent with the goals, policies, standards, and courses of action in the General Plan, and also consistent with the LUPAG map. This means, for example, if the LUPAG map clearly shows an area as "Open", the County Council should not approve a rezoning to allow a hotel in the area, at least without first amending the General Plan. Amendments to the General Plan can be initiated by the Planning Director or the Council, and must be approved by the Council by ordinance. The General Plan also contains facilities maps. The roadway facilities map is particularly important because guides future highway development on the island, and thus guides county CIP decisions. Community Development Plans. Since 1971, the General Plan has called for community development plans. The community development plans are supposed to be more specific and more tailored to the desires of various communities. Over the years, the county has not kept up with community development plans. The 2005 General Plan called for a revival of this Honorable Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 6 February 3,2006 process and included a mandate that they be adopted by ordinance. Currently, the county is working on new community development plans for Kona and Puna. Zoning. Zoning is the main county land use control. All areas on the island, except for federal lands like the national parks, and some areas within the Conservation District, are zoned. The Zoning Code lists the permitted uses within each zone, and also the required setbacks, height limits, parking areas for commercial developments, and other controls. Within each type of zone, the zoning also controls the density. For example, an "RS-10" zone is asingle-family residential zone with a minimum lot size of 10,000 square feet; an RM-2.5 zone is amulti-family zone, allowing apartment buildings, with a maximum density of one unit for every 2500 square feet of land; an A-Sa zone is an agricultural zone with a minimum lot size of 5 acres. We did not have island-wide zoning until 1967. Before that, only Hilo and some of the other towns were zoned. In 1967, a set of zoning maps were adopted by ordinance covering the entire island. Since then, zone changes are made through rezoning. Zoning changes are reviewed by the Planning Commission, but must be finally approved by the County Council through ordinance. There have been roughly 1000 individual zoning changes in the past 35 years. The GIS CD has a "rezoning" layer that you can use to identify whether a property has been rezoned in the last 35 years. It will give you the number of the rezoning ordinance but not necessarily later amendments. Every zone will have a list of "permitted" uses, that are allowed outright without further approvals (except for "ministerial" permits see explanation below like building permits.) For example, "automobile service stations" are a permitted use in a "CV" ("Village Commercial") zone, but not in an RS zone. If a use is not listed, it is not allowed in that zone. A few other uses can be allowed by "Use Permit", which must be approved by the Planning Commission. For example, a church can be allowed in an RS zone with a use permit. Key References: H.R.S. sec. 46-4, H.C.C. Chap. 25. SMA. The "Special Management Area" or "SMA" is an area that gets additional scrutiny. The SMA law is mainly intended to protect the environmental resources of the coastal area. The SMA maps were enacted by the Planning Commission by rule, and can be amended by the Planning Commission. The SMA is the area from the shoreline to the "SMA line", Honorable Angel Pilago, Chair and Members of the Planning Committee COMMITTEE ON PLANNING Page 7 February 3, 2006 which is plotted on these maps. The SMA varies greatly in width from almost nothing to over a mile. Within the SMA, "development", as defined in the SMA rules, needs either a "major" permit, which is issued by the Planning Commission, or a "minor" permit, which is issued by the Planning Director. A project needs a major permit if it is valued at over $125,000, or if the Planning Director determines that it may have a significant environmental or ecological effect in the SMA. The SMA law also lists certain kinds of development as "exempt", and not needing a permit, unless, again, the Planning Director determines that it may have a significant environmental or ecological effect in the SMA. The most common "exempt"action is the construction of asingle-family home that is not part of a larger project. The SMA law also applies to governmental actions, so new highways and public beach parks, for example, will need SMA permits if located in the SMA. The SMA law is part of the Coastal Zone Management ("CZM") program. The objectives of the CZM program cover the entire state, but the permitting portion of this only applies within the SMA. Key References: H.R.S. Chap. 205A; Planning Commission Rule 9. Administrative Permits. Some land use permits and controls are done administratively within the Planning Department. The Department of Public Works and Department of Water Supply also have major roles in the development process. The administrative permits tend not to be as visible because they usually do not involve public hearings, but they can be extremely important. Among the most significant: Subdivision. To divide a larger property into smaller lots requires subdivision approval from the Planning Department. Example: a property that is currently 100 acres, but zoned A-Sa, can theoretically be divided into 201ots of 5 acres each by the zoning, but it first must receive subdivision approval. The main issues at subdivision are the adequacy of the roads, water supply, and drainage. Historical sites and access to the sea and mountains can also be addressed at the subdivision stage. References: H.C.C. Chap. 23; Chap. 34. Grading and Grubbing. Grading (cutting into the earth) of more than 100 cubic yards, and grubbing (mechanical clearing of the surface without cutting into the ground) of Honorable Angel Pilago, Chair and Members of the Planning Committee COMMITTEE ON PLANNING Page 8 February 3, 2006 more than one acre in a yeaz requires permits from the DPW. Planning reviews grading and grubbing permit applications to determine that the proposal is in support of something allowed by zoning. Reference: H.C.C. Chap. 10. Plan Approval. Most construction of buildings in commercial, industrial, and resort zones needs "plan approval", from the Planning Depaztment. This is similar to a building permit review but also checks for things like adequate parking, landscaping, and ingress and egress. It is also a point where Planning staff checks for compliance with conditions of zoning. Building Permits. Most buildings need a building permit from DPW. The Planning Dept. reviews building permit applications ensure that the building is a permitted use and that it has proper setbacks. Vaziances. The zoning and subdivision codes allow variances for unusual situations. For example, the fact that a lot has an unusual shape may justify a variance from the building setbacks. The Planning Director decides on variances. Board of Appeals The County Charter establishes a Board of Appeals, which consists of seven members appointed by the mayor. The Boazd of Appeals can overrule final decisions made by the Planning Director and the Director of Public Works. For example, if the Planning Director denies a subdivision variance and the applicant appeals, the Boazd of Appeals can overrule the denial, but only if it finds that the Director's decision was arbitrary, capricious, or an abuse of discretion, contrary to law, or clearly erroneous. Land Use Approval Process For any property, some uses aze allowed without any further approvals, except possibly administrative approvals such as building permits, and there is a process that the owner can go through if the owner wants other kinds of uses. This is easiest explained by example: Take a property that is Open on the LUPAG map, Conservation in State Land Use District, Open in County Zoning, and is also in the SMA. Only a few uses are permitted outright. Most other uses in Conservation, even a house, will require a CDUP. If the Honorable Angel Pilago, Chair and Members of the Planning Committee COMMITTEE ON PLANNING Page 9 February 3, 2006 owner wants, for example, to build a resort with a golf course, the owner will need the following: 1. LUPAG map amendment and amendment to list of "resort" areas- decided by County Council. 2. State Land Use boundary amendment from Conservation to Urban LUC. (Technically, the boundary amendment can proceed the LUPAG map amendment if this goes to the LUC but because the LUC is supposed to consider the county general plan the owner's chances are better if the LUPAG map amendment comes first.) 3. Rezoning from "Open" to "V" (hotel/resort)--County Council 4. SMA major permit Planning Commission (technically the SMA permit can be granted before the zone change, but on condition that it doesn't take effect until the zone change is approved.) 5. Use permit for the golf course-Planning Commission A denial at any of these stages would keep the project from being built. After receiving all of these approvals, the project will also need a host of administrative approvals, including subdivision, plan approval, and building permits. Land Use DecisionmakinQ All of the land use approvals that go to the County Council, Planning Commission, or Land Use Commission are called "discretionary" because the decisionmakers must use their personal judgment and discretion. The various land use laws contain criteria for making the decision, but in the end, the individual councilmember or commissioner will have to weigh various factors, and can vote yes or no. For example, in a rezoning that might allow new apartment buildings the issues maybe the desire for new housing, the effect on traffic and neighboring properties, potential for increased runoff, impact on historic sites, loss of open space, and so on. When a board or commission has the final decision on a permit, the hearing process is called a "contested case." The applicant has the right to have the decision made "on the record" that is, solely on what is officially presented to the commission. The applicant Honorable Angel Pilago, Chair and Members of the Planning Committee COMMITTEE ON PLANNING Page 10 February 3, 2006 also has the right to appeal an adverse decision to court. Persons who maybe affected by the application have the right to "intervene"-that is, become parties to the contested case hearing. After "intervention", the hearing will typically become more formal. Intervenors also have the right to appeal an adverse decision to court. Decisions made by the County Council are "legislative" and the Council does not have to follow a contested case hearing procedures. Most administrative permits are considered "nondiscretionary" or "ministerial" because if the applicant follows the criteria in the law, the administrator must issue the permit. For example, if an applicant submits a building permit application that shows that the building complies with the building code and all other applicable laws to the letter, the building permit must be granted. Limits of Land Use Re ulg ation Although the use of land is highly regulated, a land use regulation that goes too far can be considered a taking of private property, and the govermnent then has to compensate the landowner. A series of U.S. Supreme Court decisions covers the law of takings. It is much too complex to be summarized even in a few pages. Generally, though, a regulation can greatly reduce the value of property without being a taking. Courts have allowed downzonings that decreased the value by as much as 95%. But a regulation that deprives the owner of all "economically viable use" of the property will be considered a taking. The denial of a landowner's request for a rezoning will generally not be a taking, unless perhaps the property has no economically viable use under its existing zoning. The U.S. Supreme Court has also put limits on the kinds of conditions that can be attached to a land use approval. Conditions must be related to the impact of the land use change: there has to be a "rational nexus" between the land use condition and the problem. For example, it would be illegal to make an applicant pay for the re-roofing of the County Building as a condition of a rezoning to allow a shopping center: there is no "nexus" with any impact created by the shopping center. There must also be a "rough proportionality" between any condition and the impact of the project. For example, making the developer of a small residential project pay for a new fire station would violate "proportionality." The state and county can change land use approvals that have already been given. For example, the County Council has the power to "downzone" a property to allow less Honorable Angel Pilago, Chair and Members of the Planning Committee COMMITTEE ON PLANNING Page 11 February 3, 2006 development. At a certain point, however, the rights under existing approvals become "vested" and the government cannot take them away without paying compensation. In Hawaii, rights vest when the landowner has made substantial investments in good faith reliance on the final discretionary permit. For example, a project that has zoning, but still needs an SMA permit, is not vested because it has not received its final discretionary permit. A project that has not yet gotten the proper zoning has not vested. If the project only needs a building permit, and the owner has spent money on architect's fees, then it has vested because the building permit is not discretionary. As I mentioned at the beginning, this is just a summary and does not cover all situations and exceptions. Sincerely, .,r CHRISTOPHER J. ,yUEN Planning Director CJY:pak WpwinGO/Chns/Land Use Syscem Summary -Angel Pilago -Committee on Planning Attachments