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Home My WebLink AboutCOM 0330.003 2014-2016CHRISTOPHER I YUEN ATTORNEY AT LAW Dru Kanuha, Chair Hawai'i County Council 25 Aupuni St. Hilo, Hawai'i 96720 July 8, 2015 Ike: Bill 60, T.M.K. No. 1-8-005-133 Counci 1 P.O. Box 5 e c Ninole, 1111 96773 Telephone: (800963-6966 e-mail: chrisyuenz@hotmail.com Dear Council Chair Kanuha and Members of the Hawaii County Council: Bill 60, which would rezone 50 acres in Mountain View from A -20a to A -5a, might not seem like a major decision, but it has major implications. The Planning Department and Windward Planning Commission have presented a very good analysis of the reasons why the rezoning should be rejected. I'd just like to expand on a few of the points. I'm not writing in any official capacity, but I was planning director from December 2000 to December 2008, and went to my first planning commission meetings in 1971, so I have some background on these issues. This rezoning would violate the county's long-standing practice and policy not to rezone to higher densities without a water system built to DWS standards. This policy and practice did not begin with the 2007 "concurrency" law, Ord. 07-99. The 2007 ordinance formally stated what had been the general policy since the 196.7 enactment of the Subdivision Code (Bill 62) and the Zoning Code (Bill 63). These two ordinances ended the period of rampant subdivision of lots without basic infrastructure that had occurred previously, mostly in Puna and Ka'u, except for some subdivisions that were pending when these new laws were enacted. Sec. 10 of the 1967 Subdivision Code, which has basically been carried on as sec. 23-84 of the current Subdivision Code, required a water system built to DWS standards. The Zoning Code works in tandem with the Subdivision Code. The Zoning Code sets the minimum lot sizes, and the Subdivision Code sets the infrastructure standards to subdivide to those lot sizes. It was, therefore, the policy not to rezone land to smaller lot sizes unless the property would meet the water requirements of the Subdivision Code. This is a basic principle of land use planning: you don't rezone property unless it will meet the infrastructure requirements of the proposed development. Another way of saying this is that you don't rezone property to create a situation where it will need a variance to be subdivided. Comm. 330. 3 190. Ref. To: P I CUUt. A Ref. Date XL_ y I can't say that this policy and practice was followed 100% in the 40+ years that it existed, but I believe the exceptions have been few. The council created a very limited exception in �° i Resolution 247-94 (1994), which resulted in a few rezonings in Volcano. The resolution accept"s the general policy, but allowed a few exceptions. The "concurrency" law has some exceptions that are meant to facilitate the development of commercial centers in rural areas, which is an important community need and could be prevented by a no water, no rezoning policy. One further historical aspect deserves some discussion. Over time there came a practice of allowing subdivisions by variances from the sec. 23-84 water requirement. Originally these were done by "water waivers" given by the DWS and limited to six lots. Then it was determined that a variance was the proper procedure, and these were quite commonly granted by the planning directors to allow subdivision to the density allowed by the existing zoning. For a time, around 1990-91, the planning director decided that such variances were not proper but because of the long practice, he was overruled by the board of appeals. After I became planning director and had time to review the situation, I decided that the practice of water variances was too entrenched to stop but tried to put limits to require adequate rainfall for catchment and on the number of lots. This was the basis for Planning Department Rule 22, which guides and limits the discretion of the planning director in granting water variances to allow subdivision. There is a big difference, however, between granting variances that allow subdivision to existing zoning, and rezoning to allow additional lots that will never meet the subdivision standards. When an applicant comes in for a subdivision variance, they have the appropriate zoning, which is the policy decision that a certain lot size is right for the area. The rezoning application here is a request to allow additional lots that won't meet the subdivision code. Of course, just because this has been a long-standing policy and practice doesn't mean that the council has to follow it today. The council could amend the concurrency provisions of the Zoning Code. But it should really think about the implications. The current water policy limits subdivision to the lot sizes allowed by the existing zoning, even with a variance. If you allow rezoning without water, you are creating the potential that tens of thousands of additional lots can be made without a water supply. The economic realities make it inevitable that landowners will pursue such rezonings. Four five - acre lots will sell for much more than one twenty -acre lots because each lot is a potential house site. And because the current Subdivision Code generally does not require subdividers to make improvements to the existing county road if they front on that road, eliminating the water requirement can result in a nearly cost-free subdivision. Along Hwy. 11, between N. Peck and N. Ala Rd., there is about 5300 acres of A -20a zoning, counting the lands on both sides of the highway. Under current zoning, there is a potential for 265 lots. With A -5a zoning, there is the potential for 1060 lots. Most of the former cane lands north of the Wailuku River up to O'okala are zoned A -20a. The lands north of O'okala are mostly A -40a. If this proposed rezoning to A -5a is approved, with no water and a poor county road, what would be the basis for denying future rezoning in these other areas to A -5a? 2 k' Current A -5a zoning limits the potential number of lots in areas such as Paauilo Mauka and Kalopa. If water is not going to be required, owners can seek rezoning to FA- Ia, for example. Or people with lots in existing subdivisions can seek rezoning, for example, an owner of a 3 acre lot in Hawaiian Acres could apply to rezone to FA -la to make 3 lots. If the council adopted a general policy of allowing rezoning of agricultural areas without water systems, this will lead to a new wave of land speculation and subdivision of ag land. The applicant does a good job in his Powerpoint of showing the inconsistencies that result from the current zoning in the Mountain View area, where most of the land adjacent to the highway is zoned A -20a, but land farther from the highway is zoned A -5a. I would suggest, though, that the problematic zoning is the A -5a, not the A -20a, given the condition of the roads and lack of a water system in this area. I'm not saying that the A -5a zoning should be changed: downzoning is a major step and shouldn't be done often. But you shouldn't use an existing problem to justify creating a bigger problem. Zoning and subdivision laws restrict the use of property, and so can result in hardship and difficulty in individual cases. It's tempting to make decisions based upon sympathy for the individual applicant, especially in the case of a family wanting to pass on property to offspring. But these laws have to be applied equally without regard to the applicant's personal situation. Sec. 25-2-10 of the zoning code says that an action, including rezoning, "shall not be granted if the action sought would not be equally acceptable under a variety of owners..." This is not a quirk of our zoning code; it's the general rule in land use law. It's worth having a "conversation", as the applicant's counsel puts it in his Powerpoint, about the right lot sizes in zoning and minimum subdivision standards. These are not fixed in stone. But this conversation should be in the context of overall planning and not be driven by individual applications. Some of the Community Development Plans do address these issues. In the case of Puna, the conversation we had during the entire CDP process led to the provisions cited by the planning department in the Puna CDP, and adopted by the council by ordinance, that discourage making more substandard lots. Yours truly, rf , '- , �� Chris Yuen Cc: Planning Department