HomeMy WebLinkAboutCOM 0088.038 1998-2000 e 6
0 ;71,1'1 O Virginia Goldstein
oo; • Director
Stephen K. Yamashiro'•,
Mayor
_ : < Russell Kokubun
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Deputy Director
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PLANNING DEPARTMENT
25 Aupuni Street, Room 109 • Hilo, Hawaii 96720 -4252
(808) 961.8288 • Fax (808) 961 -8742
March 5, 1999
Ms. Bobby Jean Leithead -Todd
Chairperson
Committee on Planning
25 Aupuni Street
Hilo, Hawaii 96720
Dear Chairperson Leithead -Todd:
Zoning Code Ratification public hearings and workshops
Attached please find our responses to written comments submitted in relation to the above -
mentioned subject.
Sincerely,
VIRGINIA 11161 STEIN
Planning Director
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Attachments
Comm. No. 3g• 3
File No. 016
Ref. To: presented pc_
Rpf. nata MAR 5 1999
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March 5, 1999
ZONING CODE - RESPONSES BY PLANNING DEPARTMENT
Comments from Judy Graham
Letter dated November 14, 1998
1. J,ines of Authority
Planning Commission and Planning Director are appointed by the Mayor
bat aLs.4 confirmed by the County Council.
Council has jurisdiction /authority over the General Plan, zoning ordinance,
subdivision and boundary amendments of less than 15 acres.
Planning Commission has jurisdiction over Use permits (as authorized through
the Zoning Code), Special Permits (as authorized through State Law Chapter 205),
Shoreline Setbacks (through State Law Chapter 205A), Special Management
Area (through State Law 205A), and Geothermal Permits (through State Law
205).
Special Permits of greater than 15 acres are heard by the Planning Commission
and recommendations made to the State Land Use Commission.
2. Certain uses would not require a public hearing or involve public input, including:
Note: All Use permits and Special Permits require public hearings; permitted uses do
not.
a) Golf courses and golf clubhouses in agricultural districts. 25- 5- 62(a),
- 72(a); draft four only.
True, golf courses and golf clubhouses are permitted uses within the State Land
Use Agricultural district, provided not within A & B soils by State Law 205.
Former code - these uses require a Use Permit in Agricultural and Unplanned
districts. Permitted Use in RS, RD, RM, RA, Open without public hearing.
Draft 4 - deleted these uses from requiring a Use Permit and permitted them in
RS, RD, RM, RCX, RA, FA, A, V, CG, CV, and 0. Not permitted in CN,
MCX, ML, MG and IA.
Draft 9 - these uses require a Use Permit in RS, RD, RM, RCX, RA, FA, A,
V, CG, CV, and 0.
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b) Heliports in the General Industrial and Limited Industrial districts, and in
some agricultural areas. The previous code required a use permit, and thus
a hearing, for any heliport. 25 -5 -72, -142, -152.
Former code - heliports allowed in all districts through a Use Permit or Special
Permit in the State Land Use Agricultural District.
New code - heliports are specifically permitted in only MI, and MG (which are
similar to airports); heliports are not allowed in any other zone, and a Use
Permit cannot be used to establish a heliport. If within the State Land Use
Agricultural district, the heliports may be allowed through a Special Permit.
c) The former code did not mention telecommunication towers. The new code
allows them without a permit to 500 feet from grade in any district except
residential, where a permit is required. 25 -4-12, -22.
New definition and provisions were added for development of
telecommunication antennas and towers as they were not in former code.
2. For some important actions, power has been transferred to the Mayor and
mayoral appointees; or the code newly authorizes actions by mayoral appointees.
Not true.
a) A section that established a 40- foot -wide shoreline setback in ordinance,
which is allowed by state law, was deleted. State law only requires a
minimum 20 foot setback. This setback preserves open space along the
shore. Now, as a Planning Department rule, the width of the setback could
be changed by the department with the Mayor's approval. Former section
25 -42 deleted.
The power to regulate shoreline setbacks has always been granted to the
Planning Commission and Planning Department through State Law, the
minimum setbacks are established through State Law (Chapter 205A). Planning
Commission and Planning Department have always had rule.
Included in zoning code due to Act 107 (1973) relating to Shoreline Setbacks
which stated "Duties and powers of the commission and agency. The
commission shall establish setbacks along shorelines of not Less than twenty feet
and not more than forty feet inland from the upper reaches of the wash of waves
other than storm and tidal waves. The agency shall promulgate rules and
regulations within a period of one year after June 22, 1970... ".
Since the CZM law was enacted, such shoreline setbacks was imposed within
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Planning Commission Rule 8.
Any change in rule requires public hearings in accordance with Chapter 91
and 92 State Statute.
b) The new code gives the Planning Director authority, with plan approval, to
approve 100 -foot heights for agricultural structures anywhere in the
Agricultural district. The height limit of the district is otherwise 45 feet.
Before, 100 -foot heights could only be approved for the Intensive
Agricultural district, which is basically Ag -20 or more. 25 -5 -73.
The 100 -foot height is not in Draft 4 but subsequently included in new code.
Former code - following are other heights mentioned:
Intensive Agriculture 100 feet when necessary.
Intensive Agriculture district minimum lot sizes range
from three (3) acres to 1,000 acres
c) The former code stated that public buildings (such as a prison) were
permitted provided they conformed to the County General Plan. The new
code states they are permitted in any district provided that the Planning
Director has issued plan approval. 25- 4- 11(c).
There is basically no difference between the former code and the new. Under
the former code (Section 25 -242, Plan Approval was required for all
structures. Plan Approval requires conformance with General Plan. Under
Plan Approval (25 -2 -70) the Purpose section states, "Plan approval provides a
method of allowing closer inspection of certain development and inspection of
all development in certain districts in order to ensure conformance with the
general plan, .... ".
If any non - agricultural related public building is proposed for SLU agricultural
district a Special Permit and public hearing is required regardless of provisions
of old or new code.
d) The new code authorizes the Planning Commission to approve commercial
theme parks, amusement parks and auto racetracks by use permit or
special permit in residential and agricultural districts. The former code
referenced instead "major recreational uses" as available with a use permit.
The former code appears to have limited commercialism to accessory
aspects of the facility. 25- 1- 5 (b)(8), 25- 2- 61(a)(7) and district sections.
Former code - Major recreational uses, including accessory uses were allowed
with a use permit in all districts.
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Major outdoor amusement and recreational facilities are new uses added as
requiring a Use Permit or Special Permit, if within State Land Use Agricultural
district.
e) The new code gives the Planning _Commission authority to approve
commercial yacht harbors and boating facilities, which would include resort
marinas, by the use permit procedure. They did not formerly have this
authority. However, state and federal approvals would still be required.
25- 2- 61(a)(11) and 25- 5- 162(b).
Former code - Planning Commission did have the authority to approve yacht
harbors and boating facilities under the Use Permit provision (25- 28(a)(6).
These uses were allowed in all districts by a Use Permit. With 0 districts such
uses had to be compatible with 0 purposes. The former code is silent with
respect to who made the decision
New code - these uses are allowed in all districts (except FA, A, IA, and CN)
by a Use Permit.
f) The new code defines "lodges" differently than before and authorizes them
with a use permit or special permit in several agricultural areas. Now they
have become small hotels, defined as transient lodging accommodations
with no more than forty guest rooms or suites. However, before, they were
more on the order of hunting and fishing lodges or fraternal lodges such as
for a club or Elks group. 25- 1- 5(b)(67), 25- 5- 52(c)(7), - 72(c)(9).
Former code - the word lodge was not defined in the zoning code. However,
RM district allowed lodges, clubs, RA, 0, and A districts allowed private
clubs, lodges, hunting and fishing lodges.
New code - lodges does not require a Use Permit. Lodges are specifically
permitted in RA, A, V, and CV. A Special Permit is required if within State
Land Use Agricultural or Rural district, regardless of new or old code
provisions.
3. Other changes will affect preservation of Hawaiian historic sites.
a) For valid reasons the new code has prescribed the kind of conditions that
the County Council may set when it grants zoning. However, this exclusive
list of types of conditions does not include reference to historic sites and
perhaps environmental concerns. 25- 2- 44(a).
Former code did not include any mention of establishing conditions with
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rezonings. Nor did it discuss historic sites except in the open district.
The Planning Department/Commission has been including conditions of
approval related to historic sites and other environmental concerns whenever
applicable.
New code - 25- 2 -44(a) can be construed to include historic sites and
environmental concerns.
b) The new code has abolished the former Unplanned district. It is absorbed
into Ag -5. Now the code allows new uses in Ag -5. They can affect
remarkable collections of historic sites on the Mahukona Coast, formerly in
the Unplanned district, and in the near -shore Kai lua to Keauhou area,
formerly in the Unplanned district. Article 18 was deleted.
In the former code, the purpose and applicability section stated that the
Unplanned district applied to areas not subjected to sufficient studies to adopt
specific district classification. Permitted uses included one single family
residence per building site, agricultural processing facilities including milling,
packing, shipping, piggeries, hunting and fishing, lodges. However, most of
the Unplanned district were within the State Land Use Agricultural Districts,
thus regulations as allowed by Chapter 205 would have applied. Further, the
minimum building site area was five acres. Historic sites are taken into
consideration whenever there is development as there is need to comply with
Chapter 6E (State Statute).
4. Other important changes briefly described.
a) A contested case hearing is disallowed when the Planning Commission
considers use permit applications. 25- 2- 63(a).
This is due to the definitions of "contested case" and "agency hearing" in
Chapter 91 -1, HRS, where it states "'Contested case' means a proceeding in
which the legal rights, duties, or privileges of specific parties are required by
law to be determined after an opportunity for agency hearing." Further,
"'Agency hearing' refers only to such hearing held by an agency immediately
prior to a judicial review of a contested case as provided in section 91 -14." An
appeal on the Planning Commission's decision is to the Board of Appeals and
therefore, it is determined that the Board of Appeals is the agency immediately
prior to a judicial review. However, due to recent Charter amendment, the Use
Permit would be a contested case hearing and appeal to the Commission's
decision is to Third Circuit Court.
b) Under the new code (draft four), the Planning Commission musk grant
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applications for use permits and special permits when several general
conditions are met. The language that ensures this is the word "shall,"
which is mandatory legal term. 25 -2 -65, etc.
The former code says that a Use permit may be granted (Section 25- 29(f),
but is silent about a denial.
Section 25 -2 -65 of the new code covers only use permits, not special permits.
Section 25 -2 -65 of the final Zoning Code says that the Commission "may"
grant. In any case, whether it be shall or may, the Planning Commission would
only grant a use permit if the criteria as listed in said section are met. It is clear
under Section 25 -2 -64 that the Commission also has the option to deny a Use
permit.
c) Formerly, for purposes of defining single family dwellings in residential
areas, a family was defined as up to five unrelated persons. The new code
sets the number at eight. 25- 1- 5(b)(43); draft four only.
True, however Draft 8/9 changes this back to the original 5.
d) Formerly guest houses, which are solely sleeping quarters for guests of the
main occupant, had to be non - commercial in nature. This restriction has
been removed. 25- 1- 5(b)(55).
True.
e) If the County, instead of a landowner, initiates a zoning change, then
property owners within 300 feet will not be notified by mail. Instead,
several legal notices will appear. The purpose of this change was to "allow
for flexibility if major county initiated zoning changes are proposed."
25- 2- 43(c).
True.
f) The new code requires that landowners are entitled to written notice before
a golf course permit is revoked. This has effectively reinstated some
expired golf links, such as three courses overlooking Waipio Valley.
25- 2- 67(c).
The former Code did not outline procedures to revoke a void Use permit.
The new code sets the procedures for revocation of a use permit in general.
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g) The new code has added theme parks and amusement parks as a directly
permitted use in the Resort district. 25- 5- 92(a)(24), 25- 1- 5- (b)(8).
These types of recreational facilities were not in evidence when the original
code was adopted.
h) Both codes allow public and private utility lines and poles in any district.
The new code allows them to 500 feet from existing grade. The former
code did not mention height. 25- 4- 22(c).
True.
i) The former code required an EIS for any condominium or hotel
development. This provision, rarely used, has been deleted. An
environmental report has been substituted. 25- 1- 5(b)(31). Former 25-
21(c)(4).
True, however the definition of the County Environmental Report is a revision
of the term Environmental Impact Statement. It establishes a definition for a
County EIS and distinguishes it from the EIS required under Chapter 343, HRS.
The County Environmental Report is required for all change of zone
applications and not limited to only condominium or hotel development.
j) In a major new provision, the code establishes a Project District where,
with a Project District designation by the Council, there can occur a mix of
resort, residential and commercial uses in unspecified locations. 25 -6-40 to
49.
The Project District is a new concept which would provide for flexibility in
planning large scale projects. In lieu of the rigid boundaries of the specific
zoning district and future reconfiguration of zone boundaries for reasons of
topography, any historic sites, etc., the Project District delineates the perimeter
of the district area and therefore, the developer has the flexibility in locating the
specific use within said area by site plan approval.
(PD may be considered similar to General Plan Urban Expansion designation
where it allows mix uses - High, Medium, Low Density development, Resort,
Industrial, Open)
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