HomeMy WebLinkAboutCOM 0690.010 2004-2006 CARLSMITH BALL LLP
A LIMITED LIABILITY LAW PARTNERSHIP
121 WAIANUENUE AVENUE
P.O. Box 686
HILO, HAWAII 96721-0686
~LEPHONE 805.935.6644 PAx 808.935.7975
W W W.CARLSMTTH.COM
SLIMe~CARLSMITH.COM
May 2, 2006
Stacy Higa, Chairperson and K. Angel Pilago, Chairperson of the
Members of the Hawaii County Council Planning Committee
25 Aupuni Street County Council
Hilo, Hawaii 96720 25 Aupuni Street
Hilo, Hawaii 96720
Re: Lava Kuakini, LLC
Chance of Zone Application -Bill No. 227
Dear Chair Higa and Chair Pilago:
On behalf of Lava Kuakini, LLC, attached for your consideration are 16 copies of our
proposed amendments to the Conditions of Approval for Lava Kuakini, LLC's Change of Zone
Application, Bill No. 227. Our proposed amendments aze underlined at Condition D and
Condition Y.
The Applicant is proposing an amendment to Condition D, to confirm the Applicant's
commitment to generate affordable housing credits on-site equal to not less than fifty percent of
the units developed for each phase of the development within the County's Affordable Housing
Guidelines.
We also clarified the credits against fair shaze contributions for the Project for the
elements that address regional impacts under Condition Y.
Also attached are 16 copies of the revised location map of the Project.
Very tmly yours,
Steven S. m
Ca~n? No. 0• ~0
Ref. 7ah
4823-3381-7856.1 ~ Ref. Date
HONOLULU ~ KAI'OLEI ~ HILO ~ KONA ~ MAUI ~ CUAM ~ SAIPAN ~ LOS ANGELES
BILL N0.227
LAVA KUAKINI, LLC
CHANGE OF ZONE APPLICATION (REZ OS-013)
REVISED CONDITIONS OF APPROVAL
A. The applicant, landowner, its successors or assigns shall be responsible for
complying with all of the stated conditions of approval.
B. Prior to the issuance of a water commitment by the Department of Water Supply, the
applicant shall submit the anticipated maximum daily water usage calculations as
recommended by a registered engineer, and a water commitment deposit in
accordance with the "Water Commitment Guidelines Policy" to the Department of
Water Supply within ninety days from the effective date of this ordinance for the
initial commitment of 50 units of water. The applicant shall obtain water
commitments to develop the requested number of units prior to submitting plans for
Final Plan Approval for any portion of the project.
C. Construction of [he proposed development shall be commenced within five (5) years
from the effective date of this ordinance. Prior to construction, the applicant,
successors or assigns shall secure Final Plan Approval for the proposed development
from the Planning Director in accordance with Section 25-2-70, Chapter 25 (Zoning
Code), Hawaii County Code. Plans shall identify all existing and/or proposed
structures, paved driveway access and parking stalls associated with the proposed
development. Landscaping shall also be indicated on the plans for the purpose of
mitigating any adverse noise or visual impacts to adjacent properties in accordance
with the requirements of Planning Department's Rule No. 17 (Landscaping
Requirements).
D. To ensure that the Goals and Policies of the Housing Element of the General Plan are
implemented, the applicant shall comply with the requirements of Chapter 11,
Article 1, Hawaii County Code relating to Affordable Housing Policy, provided
further that, as represented by the applicant, the applicant shall generate affordable
housing credits on-site equal to not less than fifty percent of the units developed for
each phase of the development. Affordable housing credits in excess of the basic
requirements of Chapter 11, Article 1, Hawaii County Code, shall be credited to the
applicant, its successors, or assigns. The affordable housing plan shall be approved
by the Administrator of the Office of Housing and Community Development prior to
final subdivision approval or final plan approval, whichever occurs first.
E. A Traffic Impact Analysis Report (TIAR) prepared by a licensed professional
engineer shall be submitted to the Department of Public Works for review and
approval prior to the issuance of Final Plan Approval. The TZAR shall include a
schedule of improvements describing when each improvement should be required in
development of the project.
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F. Accesses to and any improvements (rncludmg roadway, util>hes and/or mtersectton
improvements) within Kuakini Highway and the future alignment of Kahului to
Keauhou Pazkway, including the provision of adequate sight distances, shall meet
with the approval of the Department of Public Works prior to the issuance of a
Certificate of Occupancy. All sight distances shall meet the current guidelines of A
Policy on Geometric Design of Highways and Streets (AASHTO). All approaches
maybe subject to access management movement restrictions as required by the
Department of Public Works. No vehicular security gate shall be installed within
sixty (60) feet of any approach to Kuakini Highway or the future Kahului to
Keauhou Parkway right-of--way. A vehicular turnaround shall be provided within the
project property on the ingress side of any such gate.
G. The proposed alignment and right-of--way for Kahului to Keauhou Pazkway,
including the intersection with Kuakini Highway and Kuakini Highway
Improvements Phase Il, as determined by the Department of Public Works, shall be
reserved by subdivision of the proposed right-of--way to create a sepazate lot for
future roadway improvements prior to the issuance of any certificate of occupancy
and conveyed to the County upon request, at no cost to the County.
H. If the project is built before the portion of the Kahului to Keauhou Parkway is built
through the property, access shall consist of (1) a main project entrance located in the
right-of--way of the future Parkway, with an intersection on Kuakini Highway, and
(2) at Kuakini Highway north of the Waiaha Drainageway. For the main project
entrance, the applicant shall provide full intersection improvements at Kuakini
Highway consisting of, but not limited to, pavement widening, a dedicated left turn
storage lane, drainage improvements, and any relocation of utilities meeting with the
approval of the Department of Public Works, and shall dedicate the necessary right-
of-way to the County for its Kuakini Highway widening project at no cost to the
County, prior to the issuance of a certificate of occupancy for any residential
structures. Improvements may be constructed in phases as the project is built out,
with the approval of the Department of Public Works. The driveway from the
intersection with Kuakini Highway to the main project entrance shall be constructed
meeting with the approval of the Department of Public Works and shall, to the extent
that it can be done without greatly increasing the cost to the applicant beyond the
access needs of their project, be built so that it can be converted to be used as a
portion of the Parkway when the Parkway is built. Upon construction of the
Parkway, the applicant, its successors, and assigns, shall be responsible for the cost
of constructing a replacement access from the project to the Pazkway, at a location
meeting with the approval of the Department of Public Works. The applicant shall
have the right to require the Deparment of Public Works to finalize the access point
prior to the issuance of plan approval for the project. The necessary intersection
improvements shall be determined by the Department of Public Works and shall be
limited to right-in, right-out only, unless otherwise determined by the Department of
Public Works. The Department of Public Works may approve a secondary access to
the Parkway as long as it is limited to a right-in only. Access (2) on Kuakini
Highway shall be limited to right-out movements only.
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5/1/06
I. If the Parkway is built before the project, the applicant shall construct intersection
improvements in the Parkway, and the Kuakini Highway for Access (2) as
determined by the Department of Public Works, at its sole cost. The location of the
access point on the Parkway, and any necessary improvements, shall be determined
by the Department of Public Works .and the access shall be limited to a right-in,
right-out only, unless otherwise determined by the Department of Public Works.
Access (2) shall be limited to a right-out only, unless otherwise approved by the
Department of Public Works.
J. Install streetlights, signs and markings meeting with the approval of the Department
of Public Works.
K. To allow for the coordinated development of the subject property and the property
immediately mauka, (Lot 1-A of Subdivision No. 04-0153), so that the portion of Lot
1-A that is on the same side of the Waiaha drainageway as the subject property can
be developed without additional access points being created on the Parkway or
Kuakini Highway, the applicant shall provide easements on selected project
roadways, allowing access by Lot 1-A through the project to (1) the Parkway, and
(2) the Kuakini access point. The easement to the Kuakini access point in favor of
Lot 1-A shall be required only if Lot 1-A is rezoned with a condition requiring it to
share maintenance costs and liability for the easement. The owner of Lot 1-A shall be
required to pay fair market value for the use of the easements. The designation of the
interior roadways to be used for the easements, and the standard for road
construction, shall be approved by the Planning Director in consultation with the
Department of Public Works.
L. The applicant shall not install utilities in the Kahului to Keauhou Parkway and
Kuakini Highway rights-of way unless approved by the Department of Public
Works. The applicant shall provide any necessary easements for installation of such
utilities.
M. All development-generated runoff shall be disposed of on site and shall not be
directed toward any adjacent properties.
N. A drainage study shall be prepared by a licensed civil engineer and submitted to the
Department of Public Works prior to issuance of a construction permit. Any
recommended drainage improvements shall be constructed meeting with the
approval of the Department of Public Works prior the issuance of any certificate of
occupancy.
O. There shall be no construction of dwellings and related improvements or other
substantial buildings, or subdivision roads within areas designated "AE" by Flood
Insurance Rate Maps {FIRM). Restrictive covenants in the deeds of all lots or
condominium units shall give notice of the terms of this rezoning condition. No
residential lots maybe created which lack a buildable area. This restriction maybe
removed by amendment of this ordinance by the County Council. A copy of the
proposed covenant(s) to be recorded with the Bureau of Conveyances shall be
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5/I /06
submitted to the Planning Director for review and approval prior to the issuance of
Final Subdivision Approval or Final Plan Approval, as applicable. A copy of the
recorded document shall be filed with the Planning Department upon its receipt from
the Bureau of Conveyances.
P. The applicant shall submit a flood study prepared by a licensed professional civil
engineer for the Waiaha Drainageway within the subject property to the Department
of Public Works prior to the issuance of any construction permit. If required by the
Department of Public Works, the applicant shall submit the study to the Federal
Emergency Management Agency (FEMA) and obtain a Letter of Map Change
(LOMC) prior to the issuance of any construction permit or grading permit, for areas
determined by the Department of Public Works. The applicant shall construct any
remedial improvements the study recommends to render the subject property
reasonably safe from flooding by the base flood event. These improvements may
include, but not be limited to interceptor channels, revetments, permanent erosion
control and hazard barrier fencing prior to the issuance of any certificate of
occupancy. Channelization shall be according to the County of Hawaii Storm
Drainage Standards and shall meet with the approval of the Deparhnent of Public
Works.
Q. A portion of the subject property, as determined by the Department of Public Works,
shall be encumbered with a drainage and access easement in favor of the County or
shall be subdivided and conveyed to the County at no cost to the County, for the
Waiaha Drainageway at Kuakini Highway culvert project and culvert maintenance
access prior to the issuance of any construction permit.
R. A National Pollutant Discharge Elimination System (NPDES) permit and an
Underground Injection Control (UIC) permit, if required, shall be secured from the
State Department of Health before the commencement of construction activities.
S. All earthwork and grading shall conform to Chapter 10, Erosion and Sediment
Control, of the Hawaii County Code.
T. The applicant shall perform an engineering study to determine if the sewer line has
adequate capacity to handle the proposed flows in accordance with the City and
County of Honolulu Wastewater Design Standards. If the off-site sewer line does not
have adequate capacity, the applicant shall be responsible for necessary
improvements. Sewer lines shall be installed within the development to connect with
the County's sewer system, meeting with the approval of the Department of
Environmental Management, and prior to the issuance of a Certificate of Occupancy.
U. A Solid Waste Management Plan shall be submitted to the Department of
Environmental Management for review and approval prior to the issuance of a
Certificate of Occupancy.
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l
V. The project shall include a park site or sites consisting of at least one acre developed
as a play field or passive recreation area. The park area(s) shall not be located within
the Waiaha Drainageway or Flood Hazard Area.
W. The applicant, its successors, and assigns shall be responsible for the cost of any
sound abatement measures to reduce sound within the project that aze required to
qualify the Parkway for Federal construction funds. Until the completion of the
Parkway through the subject property, covenants in all deeds to the subject property,
including deeds to individual units and to any lots subdivided from the subject
property, and promotional and sales materials given to prospective purchasers, shall
inform prospective owners of the following: "Plans for the area involve the
construction of the Parkway within aright-of--way shown on the attached map. The
Parkway will be a major highway that is expected to carry a high volume of traffic.
The County of Hawaii has determined that the construction of this highway is
important to the proper development of Kona as a whole. The construction of the
Parkway will create noise, dust, and other impacts. The contractor building the
Pazkway will be required to follow some regulations to reduce noise and dust, but
some impacts will occur. After completion, traffic on the Parkway will cause noise
and other effects that must be expected from a busy roadway. A prospective
purchaser who cannot accept the future construction of the Parkway in this area is
advised to seek another area to reside. This property was rezoned on condition that if
noise abatement measures between the Parkway and adjacent residences in this
project must be taken to qualify the Parkway project for federal funding, the
residential owners would be required to pay for the noise abatement. The
construction of the Parkway will also make it necessary to relocate one entrance to
the property and may, during the construction period, cause some changes to the
project's access." The sales materials and covenants do not have to follow the exact
wording of this condition but shall inform the prospective purchasers of the
substance of this condition.
X. Should any remains of historic sites, such as rock walls, terraces, platforms, mazine
shell concentrations or human burials be encountered, work in the immediate area
shall cease and the Department of Land and Natural Resources _State Historic
Preservation Division (DLNR-SHPD) shall be immediately notified. Subsequent
work shall proceed upon an archaeological cleazance from DLNR-SHPD when it
finds that sufficient mitigation measures have been taken.
Y. The applicant shall make its fair share contribution to mitigate the potential regional
impacts of the property with respect to parks and recreation, fire, police, solid waste
disposal facilities and roads. The fair shaze contribution shall be initially based on
the representations contained within the change of zone application and maybe
increased or reduced proportionally if the unit counts aze adjusted. The fair share
contribution shall become due and payable prior to receipt of Final Plan Approval.
The fair share contribution for each unit shall be based on the number of units
developed. The fair share contribution in a form of cash, land, facilities or any
combination thereof shall be determined by the County Council. The fair share
contribution maybe adjusted annually beginning three yeazs after the effective date
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5/I /OG
of this ordinance, based on the percentage change in the Honolulu Consumer Price
Index (HCPI). The fair share contribution shall have a maximum combined value of
$6,411.25 per multiple family residential unit ($9,991.21 per single family
residential unit). Based upon the applicant's representation of intent to develop a
total of 212 multiple family residential units, the indicated total of fair share
contribution is $1,359,185.00 for the multiple 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.
The fair share contribution per multiple family residential unit (single family
residential unit) shall be allocated as follows:
I. $3,162.49 per multiple family residential unit ($4,817.93 per single family
residential unit) to the County to support park and recreational improvements
and facilities for a total of $670,447.88;
2. $99.95 per multiple family residential unit ($232.42 per single family
residential unit) to the County to support police facilities for a total of
$21,189.40;
3. $307.46 per multiple family residential unit ($459.06 per single family
residential unit) to the County to support fire facilities for a total of
$65,181.52;
4. $137.04 per multiple family residential unit ($200.98 per single family
residential unit) to the County to support solid waste facilities for a total of
$29,052.48; and
5. $2,704.31 per multiple family residential unit ($4,280.82 per single family
residential unit) to the County to support road and traffic improvements for a
total of $573,313.72.
In lieu of paying the fair shaze contribution, the applicant may contribute land and/or
construct 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 review and recommendation of the Planning Director,
upon consultation with the appropriate agencies and approval of the County Council.
Improvements to the drainage as it crosses under Kuakini Highway (Conditions N
and P) may be credited against the road fair share, and the dedication of the land
value of the Parkway right-of--way (Condition Gl. Kuakini Highway right-of--way
(Condition Hl, and Parkwav noise abatement measures (Condition Wl shall be
credited against fair share.
Z. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for
imposition of exaction or the assessment of impact fees, conditions included herein
shall be credited towards the requirements of the Unified Impact Fees Ordinance.
AA. The applicant shall comply with all applicable County, State and Federal laws, rules,
regulations and requirements.
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5/1/06
• BB. An initial extension of time for the performance of conditions within the ordinance
maybe granted by the Director upon the following circumstances:
1. The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicant, successors or assigns, and
that are not the result of their fault or negligence.
2. Granting of the time extension would not be contrary to the General Plan or
Zoning Code.
3. Granting of the time extension would not be contrary to the original reasons
for the granting of the change of zone.
4. The time extension shall be for a period not to exceed the period originally
granted for performance (i.e., a condition to be performed within one year
maybe extended for up to one additional year).
5. 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.
CC. Should any of the conditions not be met or substantially complied with in a timely
fashion, the Plam~ing Director may initiate rezoning of the area to its original or
more appropriate designation.
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