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HomeMy WebLinkAboutREP PC 082 04/08/2008 2006-2008 REPORT OF THE COMMITTEE ON PLANNING DATE: April 8, 2008 Re: Comm. 998/Bill 237 PLACE: Councilroom Ben Franklin Building 333 Kilauea Avenue, 2nd Floor Hilo, Hawaii TIME: 10:00 a.m. Council Chair and Members Hawaii County Council Hilo, Hawaii 96720 Your Committee on Planning, to which was referred Bill 237 reports as follows: Bill 237, transmitted via Communication 998 from Mayor Harry Kim, dated January 29, 2008, is a Planning Director Initiated request to repeal Ordinance No. 97-102 and amend Section 25-8-7 (North and South Kohala Districts Zone Map), Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code 1983 (2005 Edition) by changing the District Classification from Single Family Residential - 15,000 square feet (RS-15) to Residential and Agricultural - 5 acre (RA-5a) at Kahua Ig, North Kohala, Hawaii, covered by Tax Map Key 5-9-001:008. Bill 237, initiated by the Planning Director, is a change of zone for 37.88 acres of land from Single Family Residential - 15,000 square feet (RS-15) to a Residential and Agricultural - 5 acre (RA-5a) district and the repeal of Ordinance No. 97-102 that earlier rezoned the 37.88 acres of', land from an Agricultural - 5 acre (A-5a) to a Single Family Residential - 15,000 square foot (RS-15) district. Communication 998 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 January 11, 2008. The Commission's motion to send an unfavorable recommendation to the Council on both the Planning Director's change of zone and the request to repeal Ordinance 97-102 received four votes. Because five votes are required for the Commission to take action, a four to two vote constituted "no action" and the "no action" itself, constituted an unfavorable recommendation. It is noted that on July 20, 2007 the Planning Commission voted 3-3 on sending a favorable recommendation on the proposed rezoning. Communication 998 further notes that applicant Kohala LLC, subsequently filed an amendment to Condition C (time to secure final subdivision approval) of change of zone Ordinance No. 97-102, requesting an extension of time to fulfill that condition. At the January 11, 2008 Planning Commission meeting, the hearing was continued to the March 20, 2008 Planning Commission meeting in West Hawaii, with consent of the landowner. PC Report No. 82 Communication 998 Bill 237 Page 2 of 6 The Planning Director's reasons for a favorable recommendation of the change of zone and ordinance repealing Ordinance 91-102 is based on the following findings and recommendations: • Condition C of Change of Zone Ordinance 97-102 required applicant to secure Final Subdivision Approval within five (5) years from July 14, 1997, the effective date of the ordinance. • No subdivision application has been filed with the Planning Department and neither the prior applicant nor the present applicant requested an administrative extension of time to comply (allowed under Condition U), until almost ten (10) years after approval of the zone change. • By letter dated May 31, 2007 the Planning Director informed the applicant that because of an almost ten years of inaction, and no request for an administrative time extension, he would be initiating a rezoning of the property from RS-15 to a Residential and Agricultural 5-Acre (RA-5a) district and also a revocation of SMA Use Permit No. 379: • More important than non-compliance, Director Yuen stated the revocation action is being initiated in response to resolutions from the State of Hawaii Senate, Fourteenth Legislature, the Senate of the Twenty-First Legislature, the goals and policies of the Natural Beauty element of the General Plan, and the North Kohala community's desire' for preservation along the coastline. • Senate Concurrent Resolution No. 179, H.D. 1 (adopted in 1988) and Senate Concurrent Resolution No. 146, S.D. 1 (adopted in 2001) were passed urging the retention of view and open space makai of Kawaihae-Mahukona-Hawi Road from Kawaihae to Upolu Point and for the retention and preservation of open space and view planes, historic site's, and traditional access along the coastline of the North Kohala District. • Resolution No. 219-86, the previous community development plan for North Kohala, designated the area "unplanned" and encouraged retention of view planes from major highways which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. • More recently, Resolution 44-07 was duly adopted temporarily delaying Council action in rezoning of agricultural land to lot sizes less than 20 acres, pending adoption of the North Kohala Community Development Plan by ordinance, or until February 22, 2008, whichever shall occur first. This resolution, while not directly affecting the subject property, is further evidence of the interest in protecting open space in North Kohala. • The action to rezone the subject property from RS-15 to an RA-5a designation results in a more appropriate zoning for the area and therefore the Director is also initiating the revocation of Special Management Area Use Permit No. 379. At the March 11, 2007 Planning Committee meeting, Ms. Gail Byrne, spoke on behalf of six North Kohala non-profit groups representing 400 families in North Kohala in support of the Director's recommendation to repeal and for rezoning back to an Agricultural 5-acre (A-5a) designation. Ms. Byrne stated that the scale of damage to water quality off of this development exceeds that of Hokulia and has heard that sedimentation up to 18 inches on the reef has previously occurred. Ms. Byrne recommended that the Council further amend the ordinance and PC Report No. 82 Communication 998 Bill 237 Page 3 of 6 rezone it Agricultural 20-acres, which is consistent with the mass majority of other lands in the area. Planning Director Chris Yuen gave a brief chronology and explanation of the proposed zone change and repeal stating that initiating a rezone back to an Agricultural 5-acre minimum lot size designation would still permit development of the property into seven lots which is more suitable and consistent with that of the surrounding properties. Stephen Lim, attorney for the applicant Kohala LLC stated the repeal and rezone was a very serious and grave matter for the landowner noting it was the first time in 25 years that County has sought a voluntary downzone against an applicant's will. Mr. Lim explained a request for extension of time has been filed and is now before the Planning Commission and requested that a 30-day deferral be granted to the April 8, 2008 Planning meeting to allow the Planning Commission time to issue its final decision on the extension request before the Council takes action on the Director's proposal. Mr. Lim said the applicant does not contest the expiration but rather is like any other applicant who comes before the County with an extension request and believes that the Director's rezoning request is inconsistent with the General Plan. Director Yuen responded that had applicant requested an extension in 2004, it could have been granted. Mr. Lim, in responding to a request for details why such an extension request was never made, stated that the best thing to do at this point was to defer this matter to would allow time for the extension request to come before the Council. Council Chair Hoffmann noted there has been plenty of time for the applicant to have filed an extension request and follow the law and found it difficult to understand why a deferral is necessary and saw no reason for further delay. Councilmember Ford's concerns related to coastline development and soil runoff currently occurring in the area and the great need to protect the coastline resources, and she presented a floor amendment further lowering the density to Agricultural 15-acres, which she later withdrew. It was noted by Director Yuen that at the end of 1996, all "Unplanned" zones were changed to Agricultural 5-acres which included this property. In response to a question whether the Council would be exposed to greater risks as described in Mr. Lim's letter if the density was decreased to Agricultural 15-acre, Deputy Corporation Counsel Self responded this is a legislative decision which entitles the Council to legislative immunity as long as use of the property still has value. She did not believe the downzone constitutes a "taking," because it still left applicant with the ability to develop and subdivide. Councilmember Yagong's position and concern was that he did view downzoning as a "taking," and therefore was uncertain whether he could support the amendment. Council Chair Hoffmann stated he did not have an issue with a 5-acre designation since other areas are already zoned that way and a valid issue is that no further extensions should be granted to this application. With respect to "taking," Deputy Corporation Counsel Self stated it would depend on what the applicant could do with the land (should the Council proceed with the Director's proposal) and confirmed that the "taking" question is legally defensible. PC Report No. 82 Communication 998 Bill 237 Page 4 of 6 Councilmember Naeole expressed concern regarding ensuring the culture is preserved and preventing portions of the culture being erased. Councilmember Yoshimoto said he would not want to make a decision without all necessary information being available and noted that the rational and wise approach would be to get all the information first and therefore is in support of a postponement. A motion by Councilmember Yagong to postpone this matter to the Planning Committee meeting set for April 8, 2008 was approved. At the April 8, 2008 Planning Committee meeting, the applicant and applicant's attorney, Steve Lim, were unavailable. Two members of the public provided public testimony at the Waimea Council Office. Mr. Mike Isaacs and Ms. Gail Byrne both testified in support of Bill 237. Mr. Isaacs noted the devastating impacts upon the coastal area over the past 30 years and the Kohala community's ongoing efforts to preserve and protect this very important cultural and natural resource. Ms. Byrne, representing 400 families of the Kohala community also supported this measure stating that many changes have occurred since the application was filed, and that any development allowed along this coastline will further adversely impact ocean resources and impose human health concerns. Chair Hoffmann noted that the downzone is consistent with other zonings in the general area and that he believes Director Yuen's approach to this situation is correct and consistent with the tenor of the CDP for North Kohala and desires of the community. Chair Hoffmann also recalled that postponement was based on applicant's desire for a one-month delay which the Council accommodated, but applicant has failed to appear. Councilmember Ford stated that a meeting she attended disclosed information that the coral reef outside this coastal area is covered with 15 to 18 inches of silt and soil and that the coral reef will soon become nonexistent. Ms. Ford said her concern is not only that of environmental issues but economic issues as well, because impacts upon fishing resources, fishermen and the tourist industry will be greatly affected by further degradation. Council member Naeole stated that considering the testimonies submitted and that of Mr. George Ahuna at the public hearing the night before, who was very angry because of the deterioration of the ocean resources in this area, she believes that as leaders of the community and Hawaii Island, the Council needs to take a stand. Councilmember Yagong stated he felt this was the right thing to do, however, anytime a "taking" of property argument exists, he felt the Council must be very careful, especially in light of the documented serious legal issues that may arise, and needed to first determine whether the Council is on the right track and on solid legal ground. Deputy Corporation Counsel Self stated that having reviewed and checked into the claims of improper notice procedures, she determined that the Planning Director and the Planning Commission followed all procedures they were supposed to, and that although notice of a continued hearing is not required by Chapter 91 or Chapter 92 of the Hawaii Revised Statutes, the. Planning Department did provide notice and went beyond what was legally required of it. Ms. Self also stated that on review of Professor Callies' opinion, it was unclear whether he was provided all appropriate information upon which to base his opinion. Ms. Self stated that the Communication 998 Bill 237 Page 5 of 6 original property owner was granted its rezoning with conditions which it accepted and was to have their Final Subdivision Approval within five years or get an extension, none of which was done. She also noted that when applicant purchased the property, it had three years left of the five-year period and there are even letters on file from Consultant Fuke acknowledging awareness of the deadline. Not only did they not come in within the first five years, but also the next five years, and thus, for 10 years nothing happened. Applicant has also failed to submit annual reports on time and so this disregard of responsibility continued. Ms. Self stated that this situation is far different from a proposal discussed earlier today because that applicant didn't wait 10 years before taking action to pursue his subdivision, and was actually working on the project and made efforts to comply, unlike this applicant. Ms. Self concluded that this is a legislative act which this body has full authority and whether or not the proposal constitutes a "taking" is something a court must decide. Councilmember Ikeda expressed concern that on a prior rezoning in his district he asked for a downzoning and was advised by Director Yuen it could not be done because that would constitute a "taking." Now, Mr. Ikeda said he finds the Director's proposed downzoning is not a "taking" and felt that the Director was saying one thing and doing another. Director Yuen stated that if a subdivision already received a tentative subdivision approval, it reached a point in the process wherein the project was vested and therefore decisions regarding downzoning really depends on the facts of the situation as to whether the project is at a point where it's entitlements cannot change because the project is already vested. Mr. Yuen stated that the project before the Council is clearly not vested, because it needs a time extension from the Council to go ahead, and doesn't even have a "tentative" much less a "final" subdivision approval. Mr. Ikeda noted his non-support because he felt the Director was not consistent in his advice regarding the "taking" issue. Councilmember Yoshimoto stated that after review of the documents, his perspective is that there's obviously differing opinions, and requested for a legal opinion to address concerns raised by Mr. Lim and Mr. Yuen to get a better sense of certainty as to what the law is or a likely outcome, which would really help with his decision-making process. Councilmember Higa's concern was whether the period for the applicant to request an extension had expired and Director Yuen confirmed it had expired. Director Yuen further explained that the Ordinance passed in June 1997 and the applicant had five years, or until June 2002 for a potential administrative time extension to June 2007, but actually never requested it, and that ran out too. Mr. Yuen stated that applicant's bill requesting a time extension is still at the Planning Commission by its own decision to keep it there, and that the rezoning ordinance would not automatically revert to the original zoning when the request period for an extension ran out. Mr. Higa stated that he felt a cleaner way to handle this situation was to come forward with a time extension instead of involving the Council in a "takings' issue. Councilmember Jacobson expressed his dislike about rewarding an applicant who hasn't done its due diligence, and that investors should take a look at their management group and go after the people who didn't do their job. He said he is in full support of this incredibly sensitive area and that it was the duty of the Council to protect the environment and its people. PC Report No. 82' Communication 998 Bill 237 Page 6 of 6 Chair Pilago stated he sincerely hoped applicant would have been present at this meeting, because one of the questions he wanted to ask was why a timely request for extension was not filed and whether or not required annual reports were submitted. Director Yuen stated one annual report was filed in the year 2000 which covered a two-year period and that was all. Chair Pilago stated it was his opinion that Condition V of the 1997 ordinance provides that should any of the conditions not be met or substantially complied with in a timely fashion, the director may initiate rezoning to its original or more appropriate designation. Chair Pilago said it was clear, in his opinion, that the Planning Director has done exactly that, and was pleased to support his initiative. Chair Pilago concluded by noting there were six organizations that submitted strong support of the Director's recommendation to repeal Ordinance 97-102 and the revocation of SMA Use Permit No. 379. These organizations were: Maika`i Kamakani o Kohala (Ms. Stephanie Naihe Laxon), Kamakani O Kohala `Ghana (Kama Whittington); Malama Kohala Kahakai (Gail Byrne); Kohala Historic and Cultural Preservation Group (Mike Isaacs); Malama Na Wahi Pana o Kohala (Fred Cachola); and Hui Lihikai (Toni Whittington). Your Committee on Planning is in accord with the purpose and intent of Bill 237 and recommends it pass first reading. and AYES NOES A&E EX Respectfully submitted, FORD X RIGA X COMMITTEE ON PLANNING HOFFMANN X IKEDA X / JACOBSON X NAEOLE X K. ANGEL PILA , CHAIR PILAGO X YAGONG X PC REPORT NO. 82 YOSHIMOTO X ADOPTED: SEE! 0 Anna