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HomeMy WebLinkAboutCOM 0088.007 1998-2000 _ . LENINGRAD ELARIONOFF yL PHONE: 961 - 8265 Counrdmember . . i' \ ,�i: FAX: 961 -8912 • +wr OFFICE OF THE COUNTY COUNCIL Counto of Hawaii Hawaii County Building 25 Aupuni Street co Hilo, Hawaii 96720 ;2 r CD i�l February 4, 1999 =' c r—. TO: ALL COUNCIL MEMBERS t FROM: LENINGRAD ELARION 1 RE: ZONING CODE LETTER FROM MARK VAN PERNIS After receiving the first letter from Mr. Van Pernis, I responded asking him to respond with specifics. Attached is a copy of his specifics. Comm. No. %I. 01 File No. atLI ZN Ref. To: taunt:. j. .,_r „_._ FEB 0 b 1999 • Can PERNIS, SMITH & VANC0 Mark Van Pernis ATTORNEYS AT LAW, A LAW CORPORATION Phone (808) 329 -3551 David E. Smith 75167 F HUALALAI ROAD, SUITE B Fax (808) 329 -6185 Gary W. Vancil P. O. BOX 1837 e-mail William 1. Zimmerman KAILUA -KONA, HAWAII 96740 vsv @konacoast.net February 3, 1999 Councilman Leningrad Elarionoff 25 Aupuni Street Hilo, Hawaii 96720 Dear Councilman Elarionoff, Thank you for your responsive letter of January 28th, responding to my letter of January 22nd. And thank you for the opportunity to provide input on this important zoning code matter. A. 100 feet heights in agricultural areas. Sections 25- 420(g) and 25 -5 -73. There is obviously no need or propriety for 100 feet heights in agricultural areas, or heights of 75 feet in a PUD area, except in the rarest of circumstances, probably an antenna or an extensive urban high -rise. This discretion shouldn't be given a single politically appointed person, such as the Planning Director, as the new unamended code would allow. Prior notice to neighbors and others affected should be given (which the new unamended code doesn't provide for), and they should be able to provide input and participate as in any other variance procedure. B. 500 feet heights in residential and agricultural areas, and /or no utility line height restrictions Sections 25 -4 -12, 25- 4- 22(c), 25- 4 -11(a) and 25- 4- 22(c). 500 feet heights and unlimited utility line heights without permits is potentially ridiculous and can have devastating impact. The old code had no express mention of telecommunications antennas, but the Planning Department took the questionable position that they were covered under "utility lines ", and hence, did not need any use permit or a special permit in the A district. Judge Ibarra rejected this in a decision that is on appeal to the State Supreme Court. The new code expressly allows such telecommunications towers, with a use permit, in RS, RD, RM, and RCX districts, and with plan approval, in A, RA, and FA. This shouldn't be allowed. The zoning code should have a procedure for allowing such towers, but Use Permits should be required in the A, RA, and FA districts, so that the public has some opportunity to comment before a permit is issued. These towers can be a serious visual blight. Councilman Leningrad ECionoff • February 3, 1999 Page Two C. Shoreline setbacks without public input. It is my impression that most of the shoreline area come out of West Hawaii, and public input or opposition can be an irritation to major developers and their political backers. It shouldn't be, and I have found that working with the concerned public to reach agreement is usually better than a political sledgehammer or litigation. The old code referred to the State Land Use Commission rules setting a 40 feet shoreline setback, with exceptions. This was a serious error because that was not in the State Land Use Commission rules! The new unamended code no longer mentions 40 feet or the State Land Use Commission rules. The actual setback has not changed, because the Planning Department rule is still 40 feet, with some exceptions. Under the new code if unamended, the Planning Department, with the Mayor's concurrence, could change the rule through formal rule making procedures. Instead the Council should solidify the 40' setback by putting it in the code. Otherwise under HRS Chapter 91, change of the setback width could be accomplished by a rules change with approval by the Mayor. Chapter 91 requires a public hearing. The matter of shoreline setback matters should be retained as in the old code. D. Marinas. This also is probably a West Hawaii matter, where governance shouldn't be concentrated in Hilo. The former zoning code had allowed in all districts marinas yacht harbors, and boating facilities and other large major recreational uses including accessory uses that were an integral part of a major recreational aspect. These uses had to be accessory uses, and be of a commercial or non - noxious industrial nature. The intent of this permissive regulation was to allow, where appropriate, major recreational developments having complete and homogenous facilities, i.e. including the marinas, harbors, etc., where only accessory to other allowed uses. However, the new unamended code would allow the politically appointed, uncompensated Planning Commission, without Council input to approve by use permit "yacht harbors and boating facilities" without them being accessory to a greater permitted use such as a resort. 25- 2- 61(a)(11) — and 25- 5- 162(b). This is improper particularly for single use marinas. The Council and Mayor should also be involved. • . Councilman Leningrad EClonoff 0 February 3. 1999 Page Three Under the old code, yacht harbors and "major recreational uses" could be allowed with a use permit in the 0 district, but only if they were compatible, in their entirety, with the stated reason for establishing the 0 district. The new code eliminates this compatibility requirement for yacht harbors and "major outdoor amusement and recreation facilities ". This is an expansion of uses which may be allowed in the open district. (The new definition of "major outdoor amusement and recreation facilities" may also extend the commercial aspect allowed for such facilities.) E. Less EIS Protection. The new code deleted a former provision that required an EIS for zoning amendments that involve construction of hotel or condominium developments. Former 25- 21(c)(4) was deleted. This deletion may be popular with hotel and condo builders, but is a disservice to the public. Now a County "environmental report" which is manini, is all that's needed. See definition, 25- 1- 5(b)(31). However, the General Plan requires an EIS for resort destination communities. The General Plan provision was scarcely, if ever, used and several administrations unsuccessfully sought to delete it. However, HRS Chapter 343 does not require an EIS if a General Plan amendment is initiated by the government, and the County Charter requires that all General Plan amendments be initiated by government. So we will have lost a major trigger of HRS Chapter 343, the state EIS provision if this deletion, as a favor to developers, remains. This section 25- 21(c)(4) should not be deleted. F. Increasing Public Infrastructure cost for Private Benefit. A simple way of preventing the abase of double density (or more) condivision (i.e. circumventing County subdivision and zoning codes and State land use laws by applying State Real Estate Commission condominium property requires - CPRs - to divide County property) is to include in the County's definition of subdivision the division of any lot, unit, or parcel into two or more lots, units or parcels, and to allow that only where the County zoning code allows for it. G. Resort Use of A . ricultural Land Without Infrastructure. 1. Lodges and "Guest Ranches ". Under the old code. developers _ occasionally tried to get use permits from the Planning Commission to allow — for what were really small hotels in the agricultural district. The Planning Department took the questionable position that these could be allowed under provisions of the code which mentioned "lodges. social orders and fraternal organizations ". "hunting and fishing lodges ", and "guest ranches ". However, the old code did not define a "lodge ". This was a misreading of the old code; a "lodge" in the old code implied an organization in which the members had some kind • . Councilman Leningrad EOonoff 0 February 3, 1999 Page Four of affinity. and a "hunting or fishing lodge" was just that. From a political point of view, a decision to allow a hotel of more than a few rooms should be made by the Council through the zoning process and not by the Planning Commission alone. The new code defines "lodge" in a way that makes it clear that a small hotel, up to 40 rooms could be approved by the politically appointed Planning Commission alone through a special permit anywhere in the Agricultural district without any relationship to an agricultural use by a lodge, social order or fraternal organization. For example, the Mayoralty appointed Planning Commission, without other County or public control, would have the power to approve a 40 -room hotel in Waipi o Valley with a special permit. There is a legal question whether the state land use law, H.R.S. Chapter 205. would allow a small hotel through a special permit, which invites litigation. The code should restrict lodges and guest ranches and should require council action through zoning. This could be done by changing the definition of "lodge" in the new code. Both the old and new code have a loophole in that if a parcel is in the state urban district, but has County agricultural zoning, a lodge or guest ranch can be established without either a use permit or a special permit. See sections 25- 1- 5(b)(67), 25-5 - 72(c)(9), 25- 5- 52(c)(7). 2. Amusement and recreational facilities. These big items are probably a wave of the future. With their huge resource, commercial, traffic, noise, lights, etc. impacts, they should not be left entirely to the uncompensated mayoralty appointed Planning Commission, with no other County or public input or control. Under the new unamended code amusement parks and theme parks in residential and agricultural districts can be had with use permit or special permits. See sections 25- 1- 5(b)(8) and 25- 2- 61(a)(7). Theses sections concern the new definition of major outdoor recreational uses and list the areas where they may appear. This new definition can be compared with the new definition of marinas. The new definition is: "Amusement and recreation facility, major outdoor" means a _ permanent facility providing outdoor amusement and entertainment, including theme and other types of amusement parks, stadiums, skateboard parks, go -cart and automobile race tracks, miniature golf and drive in theaters." 25- 1- 5(b)(8). These facilities now could be placed, under the new code (but shouldn't be) in all residential districts, the agricultural district, commercial and industrial districts and the Open district. 25- 2- 61(a)(7). Correspondingly they are listed in each of these district sections except O. - , Councilman Leningrad EConoff 0 February 3, 1999 Page Five The County Council voted them out of 0 on November 21, 1006, but the reference still remains in Division 6, the use permit section. This new definition would authorize such an action in the zoning code if not amended. Amend it! Have the public and Council also control this with some accountability. Please note that such uses are now authorized in the former Unplanned district because the Unplanned district was abolished and has become Ag -5. H. Contested Case Hearings. The new code expressly states that the Planning Commission does not hold contested case hearings on variances or use permits. In November 1996, when the new code was passed, the County Charter provided that these Planning Commission decisions could be appealed to the Board of Appeals. Now that the 1998 Charter amendment no longer allows an appeal of the Planning Commission's decisions to the Board of Appeals, the Planning Commission should allow a contested case hearing on these. For reasons too lengthy to discuss here, H.R.S. Chapter 91 requires that the opportunity for a contested case hearing be afforded for the use permit, or for the Commission's review of the variance. The zoning code should be amended on this point. I. Notice to Neighbors. Under the new code, there does not have to be notice mailed to neighboring property owners for zoning changes initiated by the Planning Director or Council. Change that back to the way is used to be. Sincerely, VAN PERNIS, SMITH & VANCIL By� VA1 Erb RNIS MVP /skc cc. All Council Members