HomeMy WebLinkAboutCOM 0342.000 2006-2008 Ct~i~~y C~ur~~il
.s, ~Mtv,os M+h+
o•,
Harry Kim Christopher J. Yuen
Mayor Director
+i~~'. 'w re ; ~
Brad Kurokawa, ASLA
LEED®AP
C~nixrltg ,xf ~tx£ntxtt Deputy Director
PLANNING DEPARTMENT
701 Pauahi Street, Suite 3 Hilo, Hawaii 967203043
(808) 961-8288 FAX (808) 961-8742
CERTIFIED MAIL
7006 2760 0003 5440 8868
r+-.
ci
April 16, 2007 ,7 ~
.
r-~
Mr. Randy L. Davis and -4
Mr. Bil] Rosehill
74-5602 Alapa Street, #158
Kailua-Kona, HI 96740
r-~
Deaz Mr. Davis and Mr. Rosehill:
SUBJECT: Violation of Section 25-2-30, Hawaii County Code and Ordinance No.
97-54, Amending Section 25-8-2 (North and South Kona District Zone
Map), Article 8, Chapter 25 (Zoning Code), Hawaii County Code
(ZCV 06-113V1~
Tax Man Kev: 7-3-024: 012, Portion Kaloko-Mauka Subdivision,
Kaloko, North Kona, Hawaii
Ordinance No. 97-54 was adopted by the Hawaii County Council on April 7, 1997,
amending Section 25-8-2 (North and South Kona District Zone Map), Article 8, Chapter
25 (Zoning Code), of the Hawaii County Code, by changing the District Classification
from Agricultural (A-20a) to Family Agricultural (FA-3a) at Kaloko, North Kona,
Hawaii, covered by Tax Map Key 7-3-024: 012.
This office received a complaint that you have cleared the subject TMK property of all
vegetation, a violation of the conditions For rezoning (REZ 96-000030) and Ordinance
No. 97-54, that changed the District Classification from Agricultural (A-20a) to Family
Agricultural (FA-3a) at Kaloko, North Kona, Hawaii, covered by TMK 7-3-024: 012.
A site inspection was conducted by an investigator from the Department of Public
Works-Engineering Division-Kona Branch on March 28, 2007. The site inspection and
further investigation has revealed the following:
1. The property is located within the State Land Use Agricultural District and
the County's Family Agricultural (FA-3a) Zoned district. 2 ~ 2
Comm, No. J ~
Ref. To:
Ref. Dote APR 1 7 71161
Hawaii County is an Equal Opportunity Provider and Employer.
Mr. Randy L. Davis and
Mr. Bill Rosehill
Page 2
April 16, 2007
2. The property is found within the Kaloko-Mauka Subdivision. This is in the
North Kona District of Hawaii. The Tax Map Key is 7-3-024: 012 and the
lot size is 3.040 acres. The listed owners of the property are Randy L.
Davis and Bill Rosehill.
3. Ordinance 97-54 states (in parts):
Section 2. This change in district classification is conditioned upon the
following:
A. The applicant, its successors, or assigns shall be responsible
for complying with all of the stated conditions of approval.
B. Final Subdivision Approval of the proposed agricultural
subdivision within the subject property shall be secured
from the Planning Director within five (5) years from the
effective date of this ordinance. The applicants shall
reserve the following easements and special setbacks in
perpetuity for purposes of protecting and maintaining
naturally forested areas and shall delineate such easements
and setbacks on plans submitted for subdivision review:
1. A 60-foot wide "forest reserve easement" along the
existing public street frontage of the subject
property, exclusive of access points permitted by
the Department of Public Works.
2. A 30-foot "forest reserve easement" along all lot
lines not covered by the 60-foot easement; and
3. A 100-foot wide structural setback in lieu of the
required 30-foot setback along the subject
property's public street frontage to provide an
additional buffer.
C. Restrictive covenant(s) in the deeds of all the proposed
agricultural lots within the subject property fronting
existing roads shall specify and uphold the easements and
setbacks set forth in Condition B. The restrictive
covenant(s) shall also specify that no less than fifty percent
(50%) of the entire lot area shall be retained in forest. A
copy of the proposed covenant(s) to be recorded with the
Mr. Randy L,. Davis and
Mr. Bill Rosehill
Page 3
April 16, 2007
Bureau of Conveyances shall be submitted to the Planning
Director for review and approval prior to the issuance of
Final Subdivision Approval. A copy of the approved
covenant(s) shall be recited in an instrument executed by
the applicants and the County and recorded with the Bureau
of Conveyances in conjunction with the issuance of Final
Subdivision Approval.
D. Restrictive covenant(s) in the deeds of all the proposed
agricultural lots within the subject property shall prohibit
the construction of a second dwelling unit on each lot. A
copy of the proposed covenant(s) to be recorded with the
Bureau of Conveyances shall be submitted to the Planning
Director for review and approval prior to issuance of Final
Subdivision Approval. A copy of the approved covenant(s)
shall be recited in an instrument executed by the applicants
and the County and recorded with the Bureau of
Conveyances in conjunction with the issuance of Final
Subdivision Approval.
E. Restrictive covenant(s) in the deeds of all the proposed
agricultural lots within the subject property shall require the
individual owners of the proposed lots to file a
conservation plan with the Kona Soil and Water
Conservation District, with a copy of the approved plan
submitted to the Planning Department, prior to any land
alteration activities within any of the respective agricultural
lots. A copy of the proposed covenant(s) to be recorded
with the Bureau of Conveyances shall be submitted to the
Planning Director for review and approval prior to issuance
of Final Subdivision Approval. A copy of the approved
covenant(s) shall be recited in an instrument executed by
the applicants and the County and recorded with the Bureau
of Conveyances in conjunction with the issuance of Final
Subdivision Approval.
4. Further, the "Recorded Agreement on Restrictive Covenants" for the
subject property, recorded by the Bureau of Conveyances on May 8, 2001
(Document No. 2001-068234), referencing compliance with Change of
Zone Ordinance No. 97-54 (REZ 853), is on file in our office.
Mr. Randy L. Davis and
Mr. Bill Rosehill
Page 4
April 16, 2007
5. Verification was made by an inspector from the Department of Public
Works-Engineering Division-Kona Branch on March 28, 2007 that the
property has basically been wiped clean. Vegetation within the 60-foot
wide "forest reserve easement" along the existing public street frontage
(Kaloko Drive) have been removed. Further, vegetation within the 30-foot
"forest reserve easement" along all lot lines not covered by the 60-foot
easement have also been removed.
6. Our Hilo Zoning Inspector contacted the Kona Soil and Water
Conservation District (KSWCD) on March 29, 2007 and was informed
that Mr. Daren Journigan, the previous owner of the subject property,
submitted a "conservation plan" in August 2004, but it was never
approved by the Kona Soil and Water Conservation District. Mr.
Journigan built several structures on the property, but did not follow the
conservation plan. Further, they have no record on file indicating that you
have filed a "conservation plan" for the above-mentioned land alteration
activities.
7. According to documents received from the Kona Soil and Water
Conservation District, the Natural Resources Conservation Service issued
a letter to the previous owner, Mr. Daren Journigan, dated August 16,
2004. The letter states:
"Thank you for meeting David Clausnitzer and myself at your lot on
7/19/04. The lot tour confirmed what I had suspected from looking at
aerial photos; most of the native understory had been removed prior to
your purchase of the lot and probably before the County ordinance was
passed to prevent such an occurrence. According to the ordinance "forest
reserve easements" of 30 feet to 100 feet need to be maintained as well as
preserving no less than 80% of forest. These "easements" may no longer
be possible since much of the native vegetation has been removed with
invasive, non-native species taking their place. It will probably be easier
for you to take control over the invasives at the beginning of lot
development while you have construction equipment there and then to re-
establish forest cover and understory over a period of several years."
[The reference to "80%" is en-oneous: Ordinance No. 97-54
requires"50%" of the entire lot area be retained in forest.]
M
_ Mr. Randy L_ Davis and
Mr. Bill Rosehill
Page 5
April 16, 2007
"We had discussed the removal of the silk oak trees. These trees are very
invasive and spread seeds over a wide range. They will out compete
native trees and seem to form a toxic leaf layer which inhibits other plants
from growing under or neaz them. They also tend to fall over during gusty
periods as recent first hand experience has demonstrated to me. I would
recommend cutting these down as your first step. The molasses grass and
Greenleaf desmodium can be eliminated using round-up. Be sure to
follow with anon-competitive permanent groundcover such as carpet
grass. Once you have the weed species controlled you can re-introduce
native trees and shrubs. I have enclosed a list for you and sources of
seedlings."
"I have estimated that 1.5 acres of your 3 acre lot will be needing such
treatment. You have two Kaloko neighbors who are very knowledgeable
on native forest systems, Kaloko in particular. They are on your list so
please give them a call."
"This management plan requires a yearly inspection. Since this office has
only recently begun assisting the County on the ordinance requirements
we haven't set up a time frame yet. I will be in touch to schedule one in
the future. Please don't hesitate to call me if you have any questions at all.
Denise Light"
8. Previously on November 22, 2006, this office received a complaint of
someone using the subject property as a base yard of flatbed trucks, some
cazs, cement mixers, etc., which included pictures of the property taken
from Kaloko Drive. The pictures show low-lying vegetation and some
trees, but not dense enough to provide the 60-foot wide "forest reserve
easement" along the existing public street frontage of the subject property,
exclusive of access points permitted by the Department of Public Works.
One could definitely see the structures on the property.
9. On February 27, 2007, we received a complaint that you have violated the
conditions required by the Forest Management Plan that was a condition
of the Rezoning by cutting trees within the forest reserve area.
10. A staff member from the Planning Department-Kona Branch took
numerous pictures on March 30, 2007. Comparing the photographs taken
that day, against those that were submitted in the complaint of November
22, 2006, the photographs clearly identify that almost all of the trees
photographed in 2006 have been removed, along with the low-lying
vegetation.
I
Mr. Randy L. Davis and
Mr. Bill Rosehill
Page 6
April 16, 2007
11. Further, investigation of Building Division records has revealed the
following:
(1) Building Permit No. B2004-1619K was issued on October 7, 2004 for
a 4,602 square foot dwelling to be constructed on the subject property.
(2) Building Permit No. B2004-1620K was issued on October 7, 2004 for
a 910 square foot detached 2-story gazage (upper level-attic storage,
lbath.
(3) Building Permit No. B2004-1761K was issued on October 14, 2004
for another 910 squaze foot detached 2-story garage (upper level-attic
storage, 1Bath). The Building Permit "Description" reads: "10-24-
2006: Letters forwarded to Dawa-Transfer permit to new owner Randy
Davis Et al, to contractor, and to convert garage under construction to
dwelling."
(4) Building Permit No. B2007-0216K was issued on Febnxazy 14, 2007
fora 2-story dwelling. This Building Permit "Description" reads: RE:
B2004-1761K. Convert Garage to Dwelling. Upper-Master Bedroom,
%2 Bath (WC, Shower), and counter with Lav, closet; Lower-Add
Kitchen, change roll-up doors to 3068 door; add sliding door; add
windows; add % bath (WC, Lav).
Note: Building Permit (B2007-0216K) issued to convert garage to
dwelling is in violation of Ordinance 97-54 (Section 2D).
Based on all of the above, the Planning Director finds you are in violation of Section
25-2-30, Ordinance 97-54, and subject to enforcement action pursuant to Section 25-2-35
of Chapter 25 of the Hawaii County Code.
While much of the forest understory may have been removed prior to your ownership, it
is the responsibility of the owner to prepare and implement a "conservation plan" prior to
land alteration activities.
Pursuant to Section 25-2-35(c) of the Hawaii County Code and Rule 9 of the Planning
Department Rules of Practice and Procedures, you are hereby ordered to complete
corrective action, at your own expense, by the timeline indicated below:
Based on all of the above and the requirements noted within Ordinance No. 97-54, the
following Corrective Actions must be completed:
I
- Mr. Randy L. Davis and
Mr. Bill Rosehill
Page 7
April 16, 2007
1) File a "Conservation Plan" by May 17, 2007 with this office, for the
review and approval by this office, that satisfies the forest cover
requirement intended by Conditions B and C of Ordinance 97-54. This
conservation plan shall spell out actions to be taken and definite deadlines,
to re-establish the "forest reserve easements" and 50% Forest coverage of
the subject property. This means re-foresting those easements and 50% of
the subject property with native trees.
2) No later than May 17, 2007, apply for a new Building Permit to "re-
classify" one (1) of the two dwellings on the property to a designation
other than a dwelling, and perform and complete construction to change
the use of one of the two dwellings. (According to Section 2D, above,
"Restrictive covenant(s) in the deeds of all the proposed agricultural lots
within the subject property shall prohibit the construction of a second
dwelling unit on each lot.")
3) After Planning Department approval of the "Conservation Plan", you will
be required to:
(1) Re-establish a 60-foot wide "forest reserve easement" along the
existing public street frontage of the subject property, exclusive of
access points permitted by the Department of Public Works; and
(2) Re-establish native planting within the 30-foot "forest reserve
easement" along all lot lines not covered by the 60-foot easement in
accordance with your Conservation Plan; and
(3) Maintain a 100-foot wide structural setback in lieu of the required 30-
foot setback along the subject property's public street frontage to
provide an additional buffer.
(4) Re-establish native planting in accordance with your approved
Conservation Plan, not less than fifty percent (50%) of the entire lot.
This means planting and maintaining native trees on the required
areas.
If you do not complete Corrective Action No. 1 and 2 by May 17, 2007, a fine of $100
per day will be assessed until the corrective actions are completed. Further, in
accordance with the Department's Rules of Practice and Procedure, the daily fines will be
increased quarterly per the daily fine schedule, until the corrective action is completed.
Failure to perform corrective action in a timely manner may lead to daily fines of up to
$500 per day.
I
Mr. Randy L. Davis and
Mr. Bill Rosehill
Page 8
April 16, 2007
This Order shall become final thirty (30) days after receipt of the Order. On or before
the final date, any person(s) subject to this Order may appeal the Order. This means
that before the Order becomes final, you must either correct the violation or appeal the
Order.
In accordance with Section 25-2-20 of the Hawaii County Code, Rule 8 of the Board of
Appeals and Section 6-10.2 of the Hawaii County Charter, you may appeal the
director's decisio n as follows:
(a) Any person aggrieved by the decision of the director in the administration or
application of this chapter, may, within thirty days after the date of the
director's wri tten decision, appeal the decision to the Board of Appeals.
(b) A person is aggrieved by a decision of the duector if:
(I) The person has interest in the subject matter of the decision that is so
directly and immediately affected, that the person's interest is clearly
distinguishable from that of the general public; and
(2) The person is or will be adversely affected by the decision.
(c) An appeal shall be in writing, in the form prescribed by the Board of
Appeals and shall specify the person's interest i n the subject matter of the
appeal and the grounds of the appeal. A filing fee of $250 shall accompany
any such appeal. The person appealing a decision of the director shall
provide a copy of the appeal to the director and to the owners of the affected
property and shall provide the Board of Appeals with the proof of service.
(d) The appellant and the director shall be parties to an appeal. Other persons
may be admitted as parties to an appeal. Other persons may be admitted as
parties to an appeal, as permitted by the Board of Appeals.
According to Section 25-2-23, Hawaii County Code, the Board of Appeals may affirm
the decision of the director, or it may reverse or modify the decision or remand the
decision with appropriate instructions if based upon the preponderance of evidence the
board finds that:
(a) The director erred in its decision; or
(b) The decision violated this chapter or other applicable law; or
(c) The decision was arbitrary or capricious or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion.
In view of the above, we have enclosed COUNTY OF HAWAII BOARD OF
APPEALS GENERAL PETITION FOR APPEAL OF DECISIONS BY THE
PLANNING DIRECTOR.
- Mr. Randy L. Davis and
Mr. Bill Rosehill
Page 9
April 16, 2007
Address the Appeal [o: Board of Appeals
101 Pauahi Street, Room 3
Hilo, HI 96720
The appeal must be received within thirty (30) calendar days from the date of receipt of
the Order. An appeal to the Board of Appeals shall stay the provisions of the
director's order pendin g the final decision of the Board of Appeals. The appeal must
be made in accordance with the Board of Appeals Rules and Procedures or it may result
in the dismissal of the appeal.
Pursuant to Section 25-2-35(i) of Chapter 25 of the Hawaii County Code, fines assessed
under this Section shall constitute a lien upon the subject property upon filing of said
lien with the Bureau of Conveyances. This lien shall be considered for the purpose of
priority, to be the equivalent of liens that arise pursuant to the provisions of Chapter 19
of this Code.
This matter may be referred to the Office of Corporation Counsel for civil remedy
and/or the Prosecuting Attorney' s Office for criminal prosecution.
Please be advised that in the future, if you violate Chapter 25 in the same manner as
stated above, the violation will be considered as "recurring" and will be subject to an
immediate fine, up to a maximum of $500 per violation. In addition, a daily fine maybe
imposed.
Should you have any questions on this matter, please contact Zoning Inspector Robert
Usagawa of this office at 961-8288, extension 263.
Sincerely,
~
` /
CHRISTOPHERJP. YUEN
Planning Director
RSU:cd
P:\WPWIN60Vvloose\Enforce4West HI\2006-113 W NOV oCOrd.97-54 73-024-012 Davis-Rosehill-Kaloko Mauka.doc
Enclosure: General Petition for Appeal of Decisions by Planning Director
M
• Mr. Randy L. Davis and
Mr. Bill Rosehill
Page 10
April 16, 2007
cc: County Council
Corporation Counsel
BOA Section
REZ No. 853
Planning Department-Kona Branch
Department of Public Works-Building Division-Kona
Kona Building Inspector-Dawa
Department of Public Works-Engineering Division-Kona
Mr. Robert Usagawa, Zoning Inspector