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HomeMy WebLinkAboutCOM 0331.003 2006-2008 Mtr a_~~ . Harry Kim ~ Christopher J• Yuen Mayor Director ~'"~'o:'+:"'~ Brad Kurokawa, ASLA LEEDS AP (1T~ix.t,Tttt ~f ~~~~tY Deputy Director PLIIAllNNIN1G5 D ILEPARTMENT 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720-3043 (808) 961-8288 FAX (808) 961-8742 May 14, 2007 F-. Honorable K. Angel Pilago, Chair J and Members of the Committee on Planning COMMITTEE ON PLANNING 333 Kilauea Avenue. Second Floor 1 Hilo, HI 96720 Dear Chair Pilago and Members of the Committee on Planning: SUBJECT: RESOLUTION 158-07, COMMUNICATION 331 - A RESOLUTION REQUESTING THE PLANNING DIRECTOR TO INITIATE AN ORDINANCE TO AMEND CHAPER 23, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED) RELATING TO SUBDIVISIONS AND AN ORDINANCE AMENDING CHAPTER 25, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED) RELATING TO ZONING COMMITTEE ON PLANNING MEETING ON MAY 15, 2007 The council will be considering proposed bills that would create a planning commission and council review and recommendation process for subdivisions of seven or more lots, and give the council final authority over the approval of planned unit developments (PUD's) and cluster plan developments (CPD's). These proposed amendments raise a more basic question: what should be the purpose of the subdivision process? It is essential to discuss this question before turning to the question of what the role of the planning commission and council should be in reviewing subdivisions. It is useful to start with an explanation of the current subdivision process. Any subdivision must conform to the zoning, which was established by the council in a zoning ordinance. For example, if a property has RS-10 zoning, the subdivider can create 10,000 square foot lots. The planning director is supposed to administer laws enacted by the 33r•3 ..__..n~,. Hnwai'i County is an Equal Opportunity Provider and Employer. -~;h ~ ~ 1 7`JV Honorable K. Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 2 May 14, 2007 council. Thus, even if the planning director thinks that the RS-10 zoning was a bad idea, the planning director still has to process and eventually approve the subdivision if it conforms to all other legal criteria. Thus, the subdivision stage, under current law, is not a point at which the basic use of the property is reconsidered. The issues that are dealt with at subdivision, under the current code, are: (I) roads, (2) drainage, (3) water supply, (4) conformance with conditions of zoning, and (5) conformance with requirements of other laws, such as preservation of historic sites (H.R.S. Chap. 6E, especially 6E-42), and the SMA law. There are standards in the Subdivision Code and Department of Public Works and Department of Water Supply publications for roads, drainage, and water. If the subdivider complies with all of these requirements, and follows all other laws, the planning director must approve the subdivision. The current code does contain some points where the planning director has discretionary powers over subdivisions. H.C.C. sec. 23-26 provides that "Outstanding natural or cultural features such as scenic spots, water courses, fine groves of trees, heiaus, historic sites and structures shall be preserved as provided by the director." (Although an earlier sentence in this section refers to subdivisions of two hundred lots or more, we have taken the position that this sentence applies to subdivisions generally.) This section does not, however, authorize the planning director to ignore the basic zoning of the property. As for historic sites, although the State Historic Preservation Division has the authority to recommend that sites be preserved, they cannot mandate preservation, so it is up to the county planning director to include preservation as a condition of subdivision approval. The subdivision process is also a point at which the conditions of the zoning ordinance which applies to the property should be checked to see if these have been fulfilled, such as affordable housing. If time conditions on the zoning have expired, the subdivision should not proceed until the owner has successfully obtained a time extension, from the council if necessary. A number of other laws come into play with subdivisions. For example, H.C.C. Chap. 34, requiring public access in subdivisions, is enforced at this stage. Until recently there was no good way for the general public to be informed about a subdivision. Bi11246, enacted in 2006, required a bi-monthly newspaper publication of new subdivision applications received, and subdivisions also must now post a sign. Honorable K. Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 3 May 14, 2007 There is a check on the planning director's authority over subdivisions: the applicant, or a member of the public with standing, can appeal the director's decision to the county board of appeals. The main factor that clouds this picture of limited discretion over subdivisions is the common use of variances. Although sec. 23-84 of the Subdivision Code requires a water system meeting with the requirements of the DWS, for many years it has been common practice for the department to grant variances to allow subdivisions on catchment, at least for subdivisions involving relatively small numbers of lots, when there was no public water system in the area or when water meters could not be obtained without expensive upgrades to the system. (The huge subdivisions on catchment in Puna and Ka'u, like Hawaiian Ocean View Estates, were approved before the water supply requirement was put in the Subdivision Code in 1967.) The present administration began denying water catchment variances in areas with low rainfall but several of these denials were overturned by the board of appeals. The director then enacted an administrative rule, Rule 22, that limits water catchment variances. Variances from the minimum road standards have also been very common over the years. The county currently has a study to review these standards and will be preparing substantial amendments. So the current Subdivision Code and other applicable laws create a subdivision process where the basic use must follow the zoning, and the planning department is basically administering a set of requirements, mostly pertaining to on-site infrastructure. Resolution 158-07 (as amended) and attached bill suggest a much more wide-ranging and open-ended review for subdivisions, although the ultimate scope of what could be involved is not clear. The bill states that the council may recommend conditions that would be attached to a subdivision, using the same language as currently exists in the Zoning Code for conditions on new zoning. This suggests that the council could require that a zoned property, to obtain subdivision approval, satisfy any kinds of conditions that the council would like to see imposed, such as park dedication, improvement of off-site roads, or even a reduction in density. The bill does not contain any language empowering the planning director to actually impose such conditions on the subdivision, however. This may be a technical flaw, and it is the intent to give the planning director Honorable K. Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 4 May 14, 2007 an essentially open-ended power to impose such conditions, but if so, it is not clear whether the planning director is limited to the conditions recommended by the council, or whether the planning director will also be given open-ended power to put conditions on subdivisions on an ad hoc, case-by-case basis, rather than being limited to requirements spelled out in a code. The fact that the resolution mentions the large extent of development possible under existing zoning suggests that this is an attempt to reconsider the zoning at the subdivision stage. For example, that the council could recommend that a subdivision to 10,000 square foot lots in an RS-10 zone be approved only on condition that the lots be at least 20,000 square feet, and that the planning director would have the power to do that. If that is the intent, it would be fairer and more forward-looking to review zoning and initiate changes to the zoning, rather than wait until the owner has spent the money to prepare a subdivision plat. The council does have the power to initiate rezonings. This can raise problems with vested rights (when the landowner has the right to develop according to zoning because of investments made in reliance on a final approval) but this same problem will come up if a change is attempted at the time of subdivision. The council also has the power to change the overall rules that apply to subdivisions. For example, the administration is proposing an amendment to the county housing policy, Chap. 11, that will require all new subdivisions to provide affordable housing (except for those projects that have previously fulfilled their affordable housing requirement.) From a strictly practical and institutional point of view, having public presentations to the planning commission and council on roughly 40 subdivisions per year will require a substantial increase in planning department staff. This is approximately the number of rezoning applications that the planning department staff prepares for hearings at the planning commission every year. It would probably require two additional staff planners and an additional clerical staff member to implement a system where subdivisions of seven lots or more must go to the planning commission and the county council. My recommendation is that the council should set the overall rules and requirements for subdivisions through the Subdivision Code and related laws, and that the subdivisions should be reviewed administratively in the planning department. If we want to change the potential use of an area from its current zoning, the council or the planning director should initiate a change of zone rather than wait for a subdivision application. Honorable K. Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 5 May 14, 2007 From the standpoint of the current administration, the main difficulties with the current subdivision process are: 1. The very limited ability of the county to require improvements to public streets leading to the subdivision. There are many subdivisions occurring on very substandard public streets. The administration expects to introduce an amendment on this shortly. 2. The use of water and road variances. Rule 22, regarding water variances, is also being challenged in the board of appeals. 3. Current road standards mandate excessively wide roads in neighborhoods. 4. The current Subdivision Code does not give the administration the authority to require sidewalks, at least when the zoning for the property does not call for them. 5. The difficulty of integrating the plans for neighboring areas that maybe subdivided at different times, so that roads and other infrastructure are developed in a coordinated way. One of the goals of the community development plans is to set overall infrastructure plans for various areas. Most of these are issues that we want to address in an overall Subdivision Code reform, which is currently waiting for the development of street standards. Resolution 158-07, as amended, also contains a bill that would give the council the final authority to approve PUD's and CPD. Currently, the planning director can approve both of these. The process requires notice to neighboring properties and published notice. A PUD or CPD allows the developer to vary From the normal Subdivision Code standards to achieve a more planned development. They do not change the uses allowed on the property. They can result in different lot sizes, but within the overall density allowed. For example, in an RS-10 zone, a developer with a 200,000 square foot lot can create a 201ots (200,000 divided by 10), but instead of having all lots be 10,000 square feet, the developer can make all the lots be 7500 square feet, leaving a 50,000 square foot lot for a park or other open space. The developer maybe able to get a slight increase in the number of lots by doing a PUD, because the area of streets is not deducted, but this is offset by the fact that `ohana dwellings are not allowed in a PUD. Honorable K. Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 6 May 14, 2007 We recommend that the council retain the current administrative control over PUD's and CPD's. They rarely involve issues of overall policy or general public concern. Generally, PUD's and CPD's contain alternative designs prepared by architects that are functionally equivalent to or better than the normal requirements of the Zoning and Subdivision codes. They are an important tool that allows some flexibility and creativity in the design of subdivisions. To implement what we are hearing about urban design in the community development plan process, we will either have to greatly increase the use of PUD's, or build more flexibility into the Zoning Code so that they can be done without needing a PUD. If PUD's and CPD's must go to the planning commission and council, with an open- ended possibility of various conditions being attached, the time frame for approval will inevitably be much longer than under the current practice, and worse, the developer won't know what kinds of conditions will ultimately be placed on them. The result will be that developers will not apply for PUD's and CPD's. The developer will simply do a subdivision according to code. Or, the developer will try to achieve the same result by applying for a series of variances. If the council wants to tighten up on the planning director's range of discretion in PUD's, there is one aspect of the current code that gives the planning director an unusual amount of discretion: the planning director can allow buildings up to 79 in height in a PUD, regardless of the height limit in the zoning district. (The normal height limit is 35' in an RS zone, and 45' in a V or RM zone.) The planning director would have no objection to removing this provision from the zoning code covering PUD's. I will be happy to discuss these issues more fully at the Planning Committee meeting on May 15"' when Resolution 158-07 is discussed. Sincere;y, _ f/ Z,.~~ CHRISTOPHER J. ~EN Planning Director CJY:pak Wpwin60/Chas 07/Pilago -Comm. 331- Res. 158-07 -Subdivision philosophy Honorable K. Angel Pilago, Chair and Members of the Committee on Planning COMMITTEE ON PLANNING Page 7 May 14, 2007 co: Mayor Harry Kim Mr. Daryn Arai Mr. Norman Hayashi Mr. Brad Kurokawa Ms. Alice Kawaha Mr. Bennett Mark Mr. Ed Cheplic Mr. Jonathan Holmes