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HomeMy WebLinkAboutREP PC 035 04/17/2007 2006-2008 REPORT OF THE COMMITTEE ON PLANNING DATE: June 19, 2007 Re: Comm. No. 306Bi11 No. 82 PLACE: Councilroom Sheraton Keauhou Bay Resort and Spa 78-128 Ehukai Street Kailua-Kona, Hawaii TIME: 2:30 p.m. Council Chair and Members Hawaii County Council Hilo, Hawaii 96720 Your Committee on Planning, to which was referred Bill No. 82, reports as follows: Bill No. 82, transmitted via Communication No. 306 from Mayor Hatry Kim, dated Apri13, 2007, presents a Request to Amend Change of Zone Ordinance No. 02-21, Time Extension to Condition C (final subdivision approval) by ELWIN F. HUSSEY, relating to a prior rezoning of a 28.832-acre parcel of land from Agricultura120-acre (A-20a) to an Agricultural 3-acre (A-3a) district. Communication No. 306 reports that the Hawaii County Planning Commission, as required by Chapter 4, Sec. 6-4.3(C), Hawaii County Charter, considered the above request on Mazch 16, 2007 and recommended favorable consideration of applicant's request. The applicant is in the process of developing an 8-lot subdivision located along the southeast side of Ala Kahua Drive, approximately'/a mile mauka of the Ala Kahua Drive -Akoni Pule Highway intersection, Kohala Estates Subdivision, Kahua, North Kohala, Hawaii, TMK: 5-9- 7:7. Final Subdivision approval should have been secured by February 12, 2007. Applicant states the extension is requested because waterline installation has several deficiencies that need correction prior to subdividing and also that exceptionally heavy rainfall that occurred in October 2006 caused unusual high river levels, closed Akoni Pule Highway and caused considerable erosion damage when Keanahalululu Gulch overflowed. The Planning Commission concurs with the Planning Director's reasons for recommending favorable consideration of the applicant's request to amend Condition C of Change of Zone Ordinance No. 02 21. Applicant is requesting a five (5) year extension of time to comply with Condition C that requires applicant to secure Final Subdivision Approval within five years from the effective date of the ordinance. Pursuant to the provisions of the original Change of Zone Ordinance No. 90-008, approved by the Council and effective Februazy 13, 1990, Final Subdivision Approval should have been secured by February 10, 1997. Two subsequent time extensions to secure Final Subdivision Approval were granted by the Council (Ordinance No. 98-87 and Ordinance No. 02-21). Final PC Report No. 35 Communication 306 Bi1182 Page 2 of 7 Subdivision Approval should have been secured by February 12, 2007. Applicant received Tentative Subdivision Approval on February 10, 1995 and submitted Final Plat maps on February 27, 1997. Communication No. 306 transmits the following findings and recommendations: 1. Applicant's non-performance is the result of conditions that could not have been foreseen or are beyond control of the applicant and that are not the result of applicant's fault or negligence. 2. Approval would not be contrary to the General Plan nor the original reasons for granting the Change of Zone. Requisite of the Planning Director's favorable recommendation of applicant's Request to Amend Ordinance No. 02 21, Conditions of Ordinance 02 21 were amended to reflect: • Condition C -that Final Subdivision Approval shall be secured within five (5) years from effective date of this amended ordinance. • Condition I (new) - that a Solid Waste Management Plan be submitted prior to issuance of Final Subdivision Approval. • Condition J (old Condition "P') -that the applicant comply with all applicable laws, rules, regulations and requirements. • Condition L (new) -that the applicant shall comply with Chapter 11, HCC, relating to affordable housing requirements. • Condition N (old Condition "L") -Deletion of standard provisions relating to initial extension of time granted by the Planning Director and additional extensions of time to perform conditions that shall be submitted to Council for action, and replacing it with the following: "If the applicant should require an additional extension of time, the applicant shall submit its request to the Planning Commission for appropriate action." • Condition O (old Condition "M") -That should any condition not be met or not substantially complied with in a timely manner, the Director initiate rezoning the area to its original or more appropriate designation, changing the word "shall" and replacing it with "may." At the April 17, 2007 Planning Committee meeting, Planning Director Chris Yuen explained this was an application that had several time extensions for final subdivision approval, which under current zoning is Ag-3. Mr. Yuen noted one point of contention that at the Planning Commission level no affordable housing requirement was included because the County was not applying affordable housing to 3-acre agricultural rezonings at the time. However, Mr. Yuen said that current policy as of February 2005, applies affordable housing to less than 5-acre rezonings and noted that the current practice, when considering an extension request, has been to include the affordable housing requirement. Committee Chair Pilago provided a brief timeline regarding time extensions requested in 1998 and 2002, noting that applicant was supposed to have final approval in February 2007 but is now PC Report No. 35 Communication 306 Bill 82 Page 3 of 7 before the Council requesting another extension. Committee Chair Pilago questioned the numerous requests and why the Council should consider yet another one at this time. Susan Wells Fischer, applicant's representative and also part owner, stated she lives in Kawaiahe and gave an explanation regarding damage to the property resulting from waterline work performed by anon-contractor that has to be redone as well as damage from the October flooding and earthquake. Ms. Fischer also explained that they have been experimenting with sustainable desert agriculture and although only four sedimentation pond systems were required to replace the four drywells, they have actually created 20 ponds. In response to Council Member Jacobson's inquiry whether the Planning Director felt that applicant will adhere to the affordable housing policy and would there be other discussions this Council would need to look at, Director Yuen stated the affordable housing condition is the only provision that applicant has a problem with. Mr. Jacobson asked whether striking Condition "L" would mean no further extensions, Mr. Yuen responded that at this point, any further extension request would have to come to the Council and that the applicant could request another extension. Council Member Jacobson stated he would not consider approving the extension request without an affordable housing requirement. Council Chair Hoffmann had considerable comments regarding the 17-year delay and that looking back through the documents he noted that even in 1995 there were questions regarding water installation and recommended strongly that before considering approval of the time extension that some committee members of the Kohala CDP be asked to submit comments. Chair Hoffmann also noted that although the Planning Director said that further extension requests are recommended to the Council, Condition "N" states if the applicant requires additional extensions of time, it must be submitted to the Planning Commission. Mr. Hoffmann wants to see a provision that the Council is responsible for approving further extensions. With respect to members of the Kohala CDP making comments on a project by project basis, Mr. Yuen stated a CDP steering committee is the sounding board for the overall development of a specific area and the idea of a Community Development Plan is to step back from an application by application approach. To ask CDP members to make comments would have the steering committee assume the role of the Planning Commission. Mr. Hoffmann said that he agrees with the affordable housing provision, but as it stands now he can not see approving another extension. Council Member Brenda Ford expressed concerns relating to completion and installation of the drainage system and whether or not it has been completed. Mr. Yuen stated he believes the plans showing how drainage would be handled was already approved but as far as whether or not inspection was done, he was uncertain. Ms. Ford made note that although the map attached to the ordinance shows Akoni Pule Highway as the entrance to the property, Ms. Fischer stated that access to the property is off of Ala Kahua Drive in Kohala Estates (about a mile mauka of Akoni Pule Highway) and that the subdivision has no highway frontage. Ms. Ford said she supports including the affordable housing provision and added that she would like to see the word "shall" left in and not stricken from the new Condition "O" (prior Condition "N"). She added her PC Report No. 35 Communication 306 Bill 82 Page 4 of 7 concern about the amount of flooding that has been occurring and noted she did not see a design map depicting where the 3-acre lots would be situated in relation to a flood channel. Council Member Higa's concern was to determine how close the applicant was to finishing the subdivision and how much time would actually be needed to complete it. Director Yuen responded that based upon what the applicant described, completion could be expected within two years. However, Ms. Fischer stated that the affordable housing add-on is considerable and could further delay completion because they would have to come up with more money. The position being taken is that this is not a new application nor considered Family Ag and she saw no precedence requiring them to provide affordable housing. Ms. Fischer said if this matter moves forward with the affordable housing requirement, she would ask for a delay to process an application for a second access. Ms. Fischer stated the affordable housing requirement adds more expense and time to complete the project and that a delay to apply for a second access would help defray the cost of the affordable housing requirement. Council Chair Hoffmann stated he would ask for a delay and bring two CDP members, independently, to the site to take a look at the situation, noting he would not approve the application as it stands nor approve another extension under these circumstances. Mr. Hoffinann said a request for delay for the purpose applicant states has some merit and that he was willing to examine this personally. Director Yuen stated that this was the first time the issue of a second access was raised and he needed to look further into the matter to determine whether a second access is enough of a change that could not be done at the Council level, without having to go back to the Planning Commission first. Mr. Yuen explained that if this matter was an initial rezoning coming before the Council for the first time with a Condition for one access and the Council wanted to change the Condition to two accesses, the Council could do it. However, in this situation Mr. Yuen had concerns because this is strictly a time extension. In regard to the second access road, Mr. Yuen said that request may have to come in as a separate application in order to effectuate that particular change to the current zoning ordinance. Council Member Jacobson stated he would like that information when this matter came back before the Council. Council Chair Hoffmann requested postponing further consideration of this matter until the June 19~' Planning Committee meeting, stating that the applicant considers postponement a benefit and it would allow Mr. Hoffmann as well as other council members the opportunity to determine what has been done on an application approved 17 years ago and whether or not the application is still viable. Council Member Ford stated that she would like to see flood channels depicted on a map and provided to each of the council members at the next meeting. Committee Chair Pilago questioned applicant's commitment and stated what needs to happen prior to the June 19 meeting is that the applicant and Planning Director review and discuss the progress reports and make a determination regarding the second access as Mr. Pilago would like to see some progress being made on applicant's original proposal. Mr. Pilago noted his concern PC Repon No. 35 Communication 306 Bill 82 Page 5 of 7 with Condition N that states if applicant wanted a further extension it would be taken up with the Planning Commission and also extremely concerned about Condition "O" that strikes the word "shall" and replaces it with "may". Committee Chair Pilago requested clazification regarding these matters at the June 19 Planning meeting in West Hawaii. A motion to postpone this matter to the June 19~' Planning Committee meeting in West Hawaii was unanimously approved. At the June 19, 2007 Planning Committee meeting Ms. Fischer stated she read Director Yuen's recent communication dated June 4, 2007 but did not have a chance to review the Waikoloa Mauka file referred to in Mr. Yuen's letter. Planning Director Chris Yuen was unavailable at this meeting due to illness. Council Member Jacobson recalled the affordable housing requirement discussed at the last meeting and requested Ms. Fischer's view in trying to meet that requirement. Mr. Jacobson also stated it seemed uncertain at this time whether an affordable housing requirement was being imposed or not. Ms. Fischer stated the affordable housing requirement was confixsing to her as well and in order to properly research the affordable housing precedent case referred to in Mr. Yuen's letter she should at least review the file on the Waikoloa Mauka time extension. So faz her attempts to review the file in Hilo were unsuccessful. Ms. Fischer noted that a couple of months ago she was told that the 5-acre parcel would somehow still be considered a 3-acre lot and the entire subdivision would be counted as eight 3- acre lots. She was later verbally informed that Mr. Yuen determined the 5-acre pazcel would not be counted. She recalled that at the Planning Commission level when the extension was approved several commissioners stating she could buy a housing credit for $50,000 to $70,000 per credit. In comparison, Ms. Fischer noted that in South Hilo a credit costs $22,500, while in North Kohala prices amount to approximately $112,250. She said the difference between one and two credits is substantial and felt it was far beyond what the Planning Commission was assuming when they thought it would be easy for applicants to purchase credits and that $50,000 or $70,000 per credit is a considerable amount of money. Mr. Jacobson asked if postponing this matter for two weeks to obtain answers to these questions and find out what's going on would present a hazdship for Ms. Fisher and she stated at this point she has made her comments on the record and would prefer that the matter move forward. Council Chair Hoffmann noted the uncertainty of the status of the affordable housing requirement and while he understood the contents of Mr. Yuen's letter he wanted to confirm that Ms. Fischer agreed with the idea of including the affordable housing requirement. Ms. Fischer said that ever since this process started she felt she would do her partners best justice if she read the precedent first so that she could feel comfortable that they were not the precedent. She said recent plans from the engineer showing updates to the waterline have been submitted to the County. Mr. Hoffmann also noted that the communication Ms. Fischer provided the Council PC Report No. 35 Communication 306 Bill 82 Page 6 of 7 members today from Triad Engineering is a 12-year old document requiring 6 drywells and questioned its significance. Ms. Fischer apologized for the lateness of the submittal in response to Council Member Ford's previous request for drainage calculations as it was located today from files at the Kona office. Ms. Fischer stated that despite the fact that the letter is out of date, the engineer has assured her that the drainage, the hill and topography are the same and that these calculations, in due course, will hold up under review. Ms. Fischer stated they have gone well beyond the flood requirements and in fact the additional twenty or more sedimentation ponds they provided prevent water from getting closer to the road. Council Member Higa stated he had no problems voting for this since the new amendment being proposed requires applicant to conform to the affordable housing requirement. Mr. Higa understood the difficulties she's gone through, but stated it all boils down to a business decision whether it can be worked out. Council Member Ford stated her concern is with the new submission although it appears that they have gone way beyond the requirement with respect to the sedimentation ponds. Ms. Ford said she was not comfortable with the stated number of affordable housing units because it's not in writing. Ms. Ford said it's been years since any of our engineers have looked at this and she doesn't like moving this matter to full council when there are so many unknown factors, especially since Planning hasn't confirmed in writing what the number of affordable units will be. Council Member Yagong stated he would support moving this forward because when it goes to full council, at that point in time, clarification would be available with regard to the affordable housing criteria. Mr. Yagong stated that if this was an important issue for planning he imagined that Mr. Yuen would be here or would have had some type of communication to this council with regard to this request and felt this matter should move to full council where the affordable housing issue can be clarified. Committee Chair Pilago noted that because the affordable housing requirement is embedded, there is no way of getting around it. Mr. Pilago noted that the 12-year old document is almost as long as the requests for extensions and with little progress from applicant's end. Mr. Pilago said it seemed the applicant was stringing the Council along and was very uncomfortable with that. Mr. Pilago also questioned applicant's good faith in seeking another 5-year extension especially since nothing has materialized as the result of the privileges granted applicant in order to meet their conditions, economic and otherwise. Mr. Pilago said applicant was fortunate that this may move forward but that he was extremely uncomfortable with moving ahead because he felt there has not been a good faith effort in the past except for a continued habitual pattern of extensions. Ms. Fischer stated they've spent hundreds of thousands of dollars and many of that in the last five years on a large bridge and sedimentation pond work. She said they have been working on this for years and are not stringing the Council along in any way. She then extended an invitation to Council members to visit the site and see what was done. PC Report No. 35 Communication 306 Bi1182 Page 7 of 7 Your Committee on Planning is in accord with the purpose and intent of Bill No. 82 and recommends it pass first reading. and AYES NOES A&E Ex Respectfully submitted, FORD X HIGA X COMNIITTEE ON PLANNING HOFFMANN X JACOBSON X NAEOLE X K. ANGEL PILAGO, HAIR PILAGO X YAGONG X PC REPORT NO. 35 Yos>-motoTO x AnOPTEn. J(JL 1 Q 201