HomeMy WebLinkAboutCOM 0495.002 2014-2016 N�YOFq
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Randall M.Kurohara
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William P.Kenoi •: � �•
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'• .; Robert H.Command
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25 Aupuni Street,Suite 2603 • Hilo,Hawaii 96720 • (808)961-8211 • Fax(808)961-6553
KONA: 74-5044 Ane Keohokalole Hwy.,Bldg.C • Kailua-Kona,Hawai`i 96740
(808)323-4444 • Fax(808)323-4440
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March 14, 2.016
Lam.
Dru Kanuha, Council Chair
and Members of the County Council W - -
County of Hawai`i z.-:
25 Aupuni Street
Hilo, HI 96720
Dear Chairman Kanuha and Council Members:
SUBJECT: County Council Initiated(Bill No. 102 re: REZ 07-000073)
Amendment to Ordinance No. 10-110
(Applicant: Jin Soo and Ran Hui lida)
Tax Map Key: 2-2-004:121
As required by Chapter 7, Sec. 6-7.5 (a), Hawai`i County Charter, transmitted herewith for
the County Council's consideration and action is the Windward Planning Commission letter and
enclosures regarding the above-referenced request.
Sincer ,
•
WILLIAM P. KENOI
Mayor
Enclosures
cc: Planning Department
Comm. No. 40 C.
Ref. To: P L
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County of Hawaii is an Equal Opportunity Provider and Employer. .
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County of Hawaii
WINDWARD PLANNING COMMISSION
Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawai'i 96720
Phone(808)961-8288 • Fax(808)961-8742
MAR 14 2016
Dru Kanuha, Council Chair
and Members of the County Council
County of Hawai`i
25 Aupuni Street
Hilo, HI 96720
Dear Chairman Kanuha and Council Members:
SUBJECT: County Council Initiated (Bill No. 102 re: REZ 07-000073)
Amendment to Ordinance No. 10-110
(Applicant: Jin Soo and Ran Hui Iida)
Tax Map Key: 2-2-004:121
The Windward Planning Commission, at its duly held public hearing on March 3, 2016,
reviewed and acted on the above-reference amendment request to Ordinance No. 10-110,which
amended Ordinance No. 08-39, which originally reclassified lands from Single Family
Residential-10,000 square feet (RS-10) to Neighborhood Commercial-20,000 square feet(CN-
20) zoning district for 23,559 square feet of land. Bill No. 102 proposes the amendment of
Ordinance No. 10-110 by extending the deadline to submit required water commitment payment
and complete the proposed commercial development and eliminate various required
improvements to the Kilauea Avenue frontage of the subject property which is located along the
west side of Kilauea Avenue, approximately 420 feet south of the Kilauea Avenue-Puainako
Street intersection in Waiakea, South Hilo, Hawai`i.
The Commission voted to send an unfavorable recommendation to the County Council,
adopting the Planning Director's reasons for the unfavorable recommendation as follows:
Council Bill No. 102 was introduced and heard by the County Council's Planning
Committee at its October 20, 2015 meeting where it was referred to the Planning Director
and both the Windward and Leeward Planning Commissions for comments and
recommendation. Only the Windward Planning Commission will be offering its comment
Hawai`i County is an Equal Opportunity Provider and Employer
Dru Kanuha, Council Chair
and Members of the County Council
County of Hawai`i
Page 2
and recommendation on Bill No. 102 pursuant to Section 6-7.3 of the Hawai`i County
Charter that provides the Windward Planning Commission with sole jurisdiction over
planning-related matters within the South Hilo District. Bill No. 102 was formally
transmitted to the Planning Department by Council communication dated December 2, 2015
and received by the Planning Department on December 3, 2016,providing the Windward
Planning Commission with a deadline of no later than April 1, 2016 by which to offer its
comment and recommendation on Bill No. 102 pursuant to Section 25-2-43(b)(1) of the
Zoning Code.
Regarding the proposed amendment to Condition G
The County of Hawaii General Plan is the policy document for the long range
comprehensive development of this island. The purposes of the General Plan are to:
• Guide the pattern of future development in this County based on long-term goals;
• Identify the visions, values, and priorities important to the people of this County;
• Provide the framework for regulatory decisions, capital improvement priorities,
acquisition strategies, and other pertinent government programs within the County
organization and coordinated with State and Federal programs;
• Improve the physical environment of the County as a setting for human activities; to
make it more functional, beautiful,healthful, interesting, and efficient;
• Promote and safeguard the public interest and the interest of the County as a whole;
• Facilitate the democratic determination of community policies concerning the utilization
of its natural, man-made, and human resources;
• Effect political and technical coordination in community improvement and development;
and
• Inject long-range considerations into the determination of short-range actions and
implementation.
• The General Plan Land Use Pattern Allocation Guide (LUPAG) Map indicates the
general location of various land uses in relation to each other. A well-balanced land use
pattern capable of meeting the future needs of the County is an essential part of the General
Plan. The LUPAG is a broad, flexible design intended to guide the direction and quality of
future developments in a coordinated and rational manner.
The General Plan also provides a series of stated goals,policies, standards and
courses of action that sets the standards and principles for the most desirable use of land. For
example:
Dru Kanuha, Council Chair
and Members of the County Council
County of Hawai`i
Page 3
1. A specific goal of the General Plan is to, "Provide a system of roadways for the safe,
efficient and comfortable movement of people and goods."
2. Regarding land use, a policy of the General Plan states that, "Commercial facilities shall
be developed in areas adequately served by necessary services, such as water, utilities,
sewers, and transportation systems. Should such services not be available, the
development of more intensive uses should be in concert with a localized program of
public and private capital improvements to meet the expected increased needs."
3. Another land use policy states that, "The development of commercial facilities should be
designed to fit into the locale with minimal intrusion while providing the desired services.
Appropriate infrastructure and design concerns shall be incorporated into the review of
such developments."
4. And finally, a specific Course of Action for South Hilo is to, "Widen and provide curb,
gutter and sidewalk improvements along Kilauea Avenue from Haihai Street to
Ponahawai Street."
During the 2008 review of the landowners' change of zone request, the Planning
Director offered an unfavorable recommendation due the subject property's location within
an area designated for Low Density Urban uses. The Planning Commission, citing the broad-
brushed nature of the General Plan LUPAG map, land use trends on adjoining properties and
within the immediate area, and support from the public as reasons it supported a favorable
recommendation to the Council, who then approved the rezoning of the subject property to a
Neighborhood Commercial (CN-10) zoning district. Both the Planning Commission and
County Council never questioned the Planning Director's interpretation of the LUPAG map
as identifying the property for Low Density Urban uses, but rather looked at the land use
trends in the area and the flexible nature of the LUPAG map to draw its conclusions.
The Planning Director feels that this Bill retroactively attempts to amend a change of
zone ordinance through the elimination of curbs, gutters and sidewalk improvements along
the frontage of the subject property per the current Condition G that is a typical roadway
improvement along Commercial-zoned parcels and which is clearly specified as a General
Plan course of action along the entire length of Kilauea Avenue from Hai Hai Street to
Ponahawai Street. If the Planning Commission and County Council truly feel that this
section of Waiakea Homestead Houselots should transition into a Commercial-zoned area,
then that desired land use pattern should be clearly articulated as part of the General Plan
Comprehensive Review program which is currently underway.
Dru Kanuha, Council Chair
and Members of the County Council
County of Hawai`i
Page 4
As it currently stands, arbitrarily relieving this particular landowner from the need to
improve their commercial property frontage with curb, gutter and sidewalk improvements
pursuant to the existing Condition G is contrary to the County's policy that such
improvements be provided and will set the stage for similar accommodations when other
Commercial zoning requests are presented to the County and specifically contrary to a
specific course of action to provide such improvements along practically the entire length of
Kilauea Avenue clear across the City of Hilo.
Therefore, there are two specific considerations regarding the General Plan that needs
to occur and should be made a part of the on-going General Plan Comprehensive Review
prior to any further attempt to amend Condition G:
1. Should this particular area of Waiakea Homestead Houselots be amended from Low
Density Urban to Medium Density Urban to promote commercial uses along this mauka
section of Kilauea Avenue?
2. Should the Course of Action for South Hilo [Section 13.2.5.2.2(f)] be deleted or modified
to remove the specification of curb, gutter and sidewalk improvements along the entire
length of Kilauea Avenue from Ponahawai Street to Haihai Street?
Regarding option to amend Condition G to provide pro-rata share rather than to construct
An option for the Council to consider is for the landowner to provide for their pro-
rata share of the cost of constructing the curb, gutter and sidewalk improvements at the time
when such improvements are required upon adjoining properties or when implemented by the
County. This would provide the landowner with the relief they seek, albeit temporary,while
addressing the concern about the construction of such roadway improvements in unconnected
segments along a street frontage that could cause design issues due to topography and
segmented functionality. If the Council finds that a pro-rata share is a reasonable approach,
then it can be expressed by the following suggested amendment to Condition G:
(material to be deleted is bracketed and struck-out; material to be added is underscored)
G. The applicants shall provide their pro-rata share for the construction of full improvements
to the entire property frontage along Kilauea Avenue consisting of, but not limited to,
pavement widening with concrete curb, gutter and sidewalk, drainage improvements, and
any required utility relocation, meeting with the approval of the Department of Public
Works. [Improvements shall be located within the future road widening setback as
Dru Kanuha, Council Chair
and Members of the County Council
County of Hawai`i
Page 5
-- . . ' - . . - ' . . .. .. ... . . . - . • -•- - . - -effective date of this ordinance.]This pro-rata share for roadway improvements specified
in this condition shall be determined by the Department of Public Works and shall
become due and payable to the County of Hawaii within six (6)months from the date that
formal notice is served upon the applicant, its successors or assigns by the Department of
Public Works regarding a program for the installation of curb, gutter and sidewalk
improvements along the frontage of Kilauea Avenue in proximity to the subject property.
Regarding the proposed amendments to Conditions C and D
While the Planning Director does not object to granting the landowners more time in
which to submit water demand calculations and to complete the commercial project,
conflicting language being offered as amendments within Bill No. 102 contradicts the
purpose of the Bill.
For example, Bill No. 102 states:
(material to be deleted is bracketed and struck-out; material to be added is underscored)
b. Prior to the issuance of a water commitment by the Department of Water Supply, the
applicant shall submit the anticipated maximum daily water usage calculations as
recommended by a registered engineer, and a water commitment deposit in accordance
with the"Water Commitment Guidelines Policy" to the Department of Water Supply
within 180 days from the effective date of[ •' •. • . . . -.] Ordinance No. 10-
110.
**Director's Response: Leave condition as currently written since it already speaks to a
compliance time period of 180 days from the effective date of"this amended ordinance".
Should this ordinance be amended and it goes into effect, it will automatically refresh the
compliance deadline. As written, they referencing the same ordinance they are trying to
amend, which means the compliance deadline will remain absolutely the same. Note that
Ordinance No. 10-110 had an effective date of November 24, 2010, which means that
Bill No. 102 will still require completion of the project by November 24, 2015. This was
clearly not the intent of Bill No. 102 since this deadline has already passed.
D. Construction of the proposed improvements shall be completed within five (5) years from
the effective date of[this amended ordinance.] Ordinance No. 10-110. This time period
shall include securing Final Plan Approval from the Planning Director in accordance with
the Zoning Code. Plans shall identify proposed structure(s), fire protection measures,
access roadway, driveway and parking stalls. Landscaping shall be indicated on the plans
for the purpose of mitigating any potential adverse noise or visual impacts to adjoining
Dru Kanuha, Council Chair
and Members of the County Council
County of Hawai`i
Page 6
parcels. Landscaping shall be provided in accordance with the requirements of Planning
Department's Rule No. 17 (Landscaping Requirements) standards for CN zones adjoining
a RS zone.
**Director's Response: Like Condition C above, Director recommends leaving the existing
language alone. Should this ordinance be amended in the future, its adoption and new
effective date will refresh this condition automatically.
We have enclosed copies of the Background Report, Planning Director's Recommendation,
Powerpoint presentation and the transcript of the hearing held on March 3, 2016 for your
Information.
Since ly,
C rl e - i Ch.irman
Win,ward Planning ommission
LCouncilinitiatedBillno 1 02REZ07-073wpc
Enclosures
cc: Jinsoo and Ran Hui Iida
Department of Public Works
Department of Water Supply
William V. Brilhante Jr., Esq., Assistant Corporation Counsel
Danny Patel, Esq., Deputy Corporation Counsel
BRCounci 1Bi 11 1 02-IidaAmendREZ.doc-2/2 5/16
COUNTY OF HAWAII PLANNING DEPARTMENT
BACKGROUND AND RECOMMENDATION REPORT
COUNTY COUNCIL BILL NO. 102 (Landowners: Jin Soo and Ran Hui Iida)
AMENDMENTS TO CHANGE OF ZONE ORDINANCE NO. 10-110 (REZ 07-73)
The Hawaii County Council has transmitted Bill No. 102 which seeks to amend
Ordinance No. 10-110 (Applicants: Jin Soo and Ran Hui Iida), which amended Ordinance
No. 08-39, which originally reclassified lands from Single-Family Residential-10,000 square feet
(RS-10)to a Neighborhood Commercial-20,000 square feet (CN-20) zoning district for 23,559
square feet of land. Bill No. 102 proposed the amendment of Ordinance No. 10-110 by
extending the deadline to submit water commitment payment and complete the proposed
commercial development and to eliminate various required improvements to the Kilauea Street
frontage of the subject property which is located along the west side of Kilauea Avenue,
approximately 420 feet south of the Kilauea Avenue-Puainako Street intersection, Waiakea
Homestead Houselots, Waiakea, South Hilo, Hawai`i, TMK: 2-2-40:121.
PROCESS FOR COUNTY COUNCIL-INITIATED AMENDMENTS
1. Section 25-2-43(b)(l) of the Zoning Code regarding a County Council-initiated amendment
to the Zoning Code states that,
"(b) The council shall refer any proposed council-initiated amendment to this chapter to the
director and the commission with requests for their respective comments and
recommendations thereon,prior to the first reading of any such amendment.The director and
the commission shall each submit comments and recommendations on the proposed
amendment to the council within one hundred twenty days from the date that the amendment
is transmitted by the council to the director and the commission.
(1) The director shall submit comments and any recommendations to both the commission
and the council within the one-hundred-twenty-day review period. (emphasis added)
2. Council Bill No. 102 was introduced and heard by the County Council's Planning Committee
at its October 20, 2015 meeting where it was referred to the Planning Director and both the
Windward and Leeward Planning Commissions for comments and recommendation. This
bill, affecting a specific parcel located within the South Hilo District, will only be heard by
the Windward Planning Commission pursuant to Section 6-7.3 of the Hawai`i County
Charter that provides the Windward Planning Commission with sole jurisdiction over
planning-related matters within the South Hilo District. Furthermore, Bill No. 102 was
formally transmitted to the Planning Department by Council communication dated December
2, 2015 and received by the Planning Department on December 3,2016 (refer to Planning
Department Exhibit 1). Therefore,the Windward Planning Commission must offer its
comment and recommendation on Bill No. 102 to the County Council no later than April 1,
2016.
BACKGROUND INFORMATION
3. Effective April 11, 2008 - Change of Zone Ordinance No. 08-39: The subject property was
rezoned in 2008 from a Single-Family Residential-10,000 square feet(RS-10)to a
Neighborhood Commercial—20,000 square feet(CN-20) zoning district to allow the
landowners to convert a 768-square foot dwelling to accommodate the relocation of their
business, known as Lani's Beauty Salon, from the Puainako Center to the subject property.
(see Planning Department Exhibit 1-Bill No. 102 and accompanying Location Map)
** Note that Planning Director issued an unfavorable recommendation of this change of
zone request primarily due the inconsistency of the change of zone request with its
location within an area designated for Low Density Urban uses by the General Plan Land
Use Pattern Allocation Guide (LUPAG) Map. The Planning Commission subsequently
issued a favorable recommendation(see Planning Department Exhibit 2-Planning
Commission Recommendation to County Council dated February 1, 2008) of the change
of zone request based on the broad-brushed nature of the LUPAG map, land use trends on
adjoining properties and within the immediate area, and support from the public. As
recommended by the Planning Commission,the County Council subsequently approved
the change of zone request along with Condition D, amongst others,that restricted use of
the commercial property to personal services,residential and related uses only.
4. Effective November 24, 2010 - Change of Zone Ordinance No. 10-110: Request to delete
Condition D of Ordinance No. 08 39, which states: "As represented by the applicants, the
site shall be restricted to personal services,residential, and residential-related uses as
described in the CN district(Section 25-5-102). Any other uses would be subject to an
amendment. Restrictive covenants in the deed of the subject properties shall give notice of
-2-
this restriction." The applicants/landowners requested the deletion of Condition D in order to
allow them to relocate their seed/snack shop to the subject property. The shop, known as 5-
Spice,had been operating for 25 years at the Puainako Center but whose lease expired in
December 2011 without renewal. With the deletion of Condition D,the applicants are able
to relocate this business by expanding their 500 square foot home to 1,500 square feet.
5. General Plan Land Use Pattern Allocation Guide(LUPAG) Map: Low Density Urban. A
color map showing the LUPAG map boundaries in relation to the property is attached as
Planning Department-Exhibit 3. These boundaries are not exact, as explained by the
Planning Director's Staff Memo No. 07-19 attached as Planning Department-Exhibit 4.
** Note that the Planning Department has initiated the Hawaii County General Plan
Comprehensive Review on February 6, 2015 in accordance with its 10-year review cycle
that was last completed in 2005. The Planning Director anticipates the transmittal of
recommended amendments to the General Plan to the Planning Commission in
August 2017, after which it will be reviewed and considered by the County Council.
6. Surrounding Land Uses/Zoning: Immediately surrounding properties are zoned RS-10. Uses
consist mainly of single-family dwellings. On the adjacent property to the north is a property
zoned RS-10 with several dwellings. Further north along Kilauea Avenue near its
intersection with Puainako Street is the Maebo Noodle Factory and Kai's Store,both located
on Commercial (CN-10) zoned lands so designated when the City of Hilo Zone District Map
was adopted in 1967. To the west are properties zoned RS-10 consisting of single family
dwellings. The adjacent property to the south is Klein's Chiropractic Center, which was
approved under Use Permit No. 39 in 1986. Along the mauka(east) side of Kilauea Avenue
is the KTA Super Store and Puainako Town Center shopping complexes which are zoned
CN-10 since the adoption of the City of Hilo Zone District Map. A more recently rezoning
to CN-10 occurred in 1997 along the mauka driveway entrance to KTA Super Store shopping
complex to provide for additional employee parking. There has,been no Commercial
rezoning along the mauka side of this section if Kilauea Avenue since the adoption of the
City of Hilo Zone District map in 1967.
-3-
REQUEST
7. Purpose of Bill No. 102: The Hawaii County Council, via Bill No. 102 and on behalf of the
landowners,Jin Soo and Ran Hui Iida,requests the Windward Planning Commission to
provide its comments and recommendation on proposed amendments to the change of zone
ordinance that originally rezoned the subject property in 2008 to a Commercial (CN-20)
zoning district that currently supports the landowners' seed shop and beauty salon
businesses. The proposed amendments seek:
i. additional time of 180 days to submit daily water usage calculations (Condition B);
ii. 5 additional years to relocate seed shop to property(Condition D);
iii. Replace installation of curb, gutter and sidewalk improvements with paved shoulders
(Condition G)
**Refer to Planning Department's Exhibits 5, 6 and 7 for photos of property's Kilauea Street
frontage and surrounding uses.
8. Conditions of Ordinance No. 10-110 as proposed to be amended by Council Bill No. 102:
(material to be deleted is bracketed and struck-out; material to be added is underscored)
B. Prior to the issuance of a water commitment by the Department of Water Supply,the
applicant shall submit the anticipated maximum daily water usage calculations as
recommended by a registered engineer, and a water commitment deposit in accordance
with the"Water Commitment Guidelines Policy" to the Department of Water Supply
within 180 days from the effective date of[ ., . . . . .. .] Ordinance No. 10-
110.
D. Construction of the proposed improvements shall be completed within five(5) years from
the effective date of[ . . . . .] Ordinance No. 10-110. This time period
shall include securing Final Plan Approval from the Planning Director in accordance with
the Zoning Code. Plans shall identify proposed structure(s), fire protection measures,
access roadway, driveway and parking stalls. Landscaping shall be indicated on the plans
for the purpose of mitigating any potential adverse noise or visual impacts to adjoining
parcels. Landscaping shall be provided in accordance with the requirements of Planning
Department's Rule No. 17 (Landscaping Requirements) standards for CN zones adjoining
a RS zone.
-4-
G. The applicants shall provide full improvements to the entire frontage along Kilauea
Avenue consisting of,but not limited to, pavement shoulder widening [with concrete
curb,gutter and sidewalk,] drainage improvements,and any required utility relocation,
meeting with the approval of the Department of Public Works. Improvements shall be
located within the future road-widening setback as established by the Planning
Department and be completed within five(5) years from the effective date of the original
ordinance.
AGENCIES' COMMENTS
9. Department of Water Supply: P.D. Exhibit 8 —February 4, 2016 memo
AGENCIES -NO COMMENTS/CONCERNS
10. Department of Public Works.
PUBLIC COMMENTS
11. None as of this writing.
•
-5-
PLANNING DIRECTOR'S RECOMMENDATION
Upon careful review of Hawaii County Council's Bill No. 102 against the guidelines for
granting an amendment, the Planning Director recommends that an unfavorable
recommendation be forwarded to the County Council regarding Bill No. 102, as currently
written, which seeks to amend Ordinance No. 10-110 by providing additional time to
submit water demand calculations (Condition B), 5 additional years to relocate seed shop to
property (Condition D), and to replace the installation of curb, gutter and sidewalk
improvements with paved shoulders (Condition G). Since this recommendation is made
without the benefit of public testimony, the Director reserves the right to modify and/or alter this
position based upon additional information presented at the public hearing. This
recommendation is based on the following findings:
Council Bill No. 102 was introduced and heard by the County Council's Planning
Committee at its October 20, 2015 meeting where it was referred to the Planning Director
and both the Windward and Leeward Planning Commissions for comments and
recommendation. Only the Windward Planning Commission will be offering its comment
and recommendation on Bill No. 102 pursuant to Section 6-7.3 of the Hawai`i County
Charter that provides the Windward Planning Commission with sole jurisdiction over
planning-related matters within the South Hilo District. Bill No. 102 was formally
transmitted to the Planning Department by Council communication dated December 2, 2015
and received by the Planning Department on December 3, 2016,providing the Windward
Planning Commission with a deadline of no later than April 1, 2016 by which to offer its
comment and recommendation on Bill No. 102 pursuant to Section 25-2-43(b)(1) of the
Zoning Code.
Regarding the proposed amendment to Condition G
The County of Hawaii General Plan is the policy document for the long range
comprehensive development of this island. The purposes of the General Plan are to:
• Guide the pattern of future development in this County based on long-term goals;
• Identify the visions, values, and priorities important to the people of this County;
-6-
• Provide the framework for regulatory decisions, capital improvement priorities,
acquisition strategies, and other pertinent government programs within the County
organization and coordinated with State and Federal programs;
• Improve the physical environment of the County as a setting for human activities; to
make it more functional, beautiful, healthful, interesting, and efficient;
• Promote and safeguard the public interest and the interest of the County as a whole;
• Facilitate the democratic determination of community policies concerning the utilization
of its natural, man-made, and human resources;
• Effect political and technical coordination in community improvement and development;
and
• Inject long-range considerations into the determination of short-range actions and
implementation.
The General Plan Land Use Pattern Allocation Guide(LUPAG) Map indicates the
general location of various land uses in relation to each other. A well-balanced land use
pattern capable of meeting the future needs of the County is an essential part of the General
Plan. The LUPAG is a broad, flexible design intended to guide the direction and quality of
future developments in a coordinated and rational manner.
The General Plan also provides a series of stated goals, policies, standards and
courses of action that sets the standards and principles for the most desirable use of land. For
example:
1. A specific goal of the General Plan is to, "Provide a system of roadways for the safe,
efficient and comfortable movement of people and goods."
2. Regarding land use, a policy of the General Plan states that, "Commercial facilities shall
be developed in areas adequately served by necessary services, such as water, utilities,
sewers, and transportation systems. Should such services not be available, the
development of more intensive uses should be in concert with a localized program of
public and private capital improvements to meet the expected increased needs."
3. Another land use policy states that, "The development of commercial facilities should be
designed to fit into the locale with minimal intrusion while providing the desired services.
-7-
Appropriate infrastructure and design concerns shall be incorporated into the review of
such developments."
4. And finally,a specific Course of Action for South Hilo is to, "Widen and provide curb,
gutter and sidewalk improvements along Kilauea Avenue from Haihai Street to
Ponahawai Street."
During the 2008 review of the landowners' change of zone request, the Planning
Director offered an unfavorable recommendation due the subject property's location within
an area designated for Low Density Urban uses. The Planning Commission, citing the broad-
brushed nature of the General Plan LUPAG map, land use trends on adjoining properties and
within the immediate area, and support from the public as reasons it supported a favorable
recommendation to the Council, who then approved the rezoning of the subject property to a
Neighborhood Commercial (CN-10) zoning district. Both the Planning Commission and
County Council never questioned the Planning Director's interpretation of the LUPAG map
as identifying the property for Low Density Urban uses, but rather looked at the land use
trends in the area and the flexible nature of the LUPAG map to draw its conclusions.
The Planning Director feels that this Bill retroactively attempts to amend a change of
zone ordinance through the elimination of curbs, gutters and sidewalk improvements along
the frontage of the subject property per the current Condition G that is a typical roadway
improvement along Commercial-zoned parcels and which is clearly specified as a General
Plan course of action along the entire length of Kilauea Avenue from Hai Hai Street to
Ponahawai Street. If the Planning Commission and County Council truly feel that this
section of Waiakea Homestead Houselots should transition into a Commercial-zoned area,
then that desired land use pattern should be clearly articulated as part of the General Plan
Comprehensive Review program which is currently underway.
As it currently stands, arbitrarily relieving this particular landowner from the need to
improve their commercial property frontage with curb, gutter and sidewalk improvements
pursuant to the existing Condition G is contrary to the County's policy that such
improvements be provided and will set the stage for similar accommodations when other
Commercial zoning requests are presented to the County and specifically contrary to a
-8-
specific course of action to provide such improvements along practically the entire length of
Kilauea Avenue clear across the City of Hilo.
Therefore, there are two specific considerations regarding the General Plan that needs
to occur and should be made a part of the on-going General Plan Comprehensive Review
prior to any further attempt to amend Condition G:
1. Should this particular area of Waiakea Homestead Houselots be amended from Low
Density Urban to Medium Density Urban to promote commercial uses along this mauka
section of Kilauea Avenue?
2. Should the Course of Action for South Hilo [Section 13.2.5.2.2(f)] be deleted or modified
to remove the specification of curb, gutter and sidewalk improvements along the entire
length of Kilauea Avenue from Ponahawai Street to Haihai Street?
Regarding option to amend Condition G to provide pro-rata share rather than to construct
An option for the Council to consider is for the landowner to provide for their pro-
rata share of the cost of constructing the curb, gutter and sidewalk improvements at the time
when such improvements are required upon adjoining properties or when implemented by the
County. This would provide the landowner with the relief they seek, albeit temporary, while
addressing the concern about the construction of such roadway improvements in unconnected
segments along a street frontage that could cause design issues due to topography and
segmented functionality. If the Council finds that a pro-rata share is a reasonable approach,
then it can be expressed by the following suggested amendment to Condition G:
(material to be deleted is bracketed and struck-out; material to be added is underscored)
G. The applicants shall provide their pro-rata share for the construction of full improvements
to the entire property frontage along Kilauea Avenue consisting of,but not limited to,
pavement widening with concrete curb, gutter and sidewalk, drainage improvements, and
any required utility relocation, meeting with the approval of the Department of Public
Works. [. . . -- - . _. . ' -- . .. - ... _ - :.
•
- - - ' .-.- ! .. -- - . -•-
effective date of this ordinance.]This pro-rata share for roadway improvements specified
in this condition shall be determined by the Department of Public Works and shall
become due and payable to the County of Hawaii within six (6)months from the date that
-9-
formal notice is served upon the applicant, its successors or assigns by the Department of
Public Works regarding a program for the installation of curb, gutter and sidewalk
improvements along the frontage of Kilauea Avenue in proximity to the subject property.
Regarding theproposed amendments to Conditions C and D
While the Planning Director does not object to granting the landowners more time in
which to submit water demand calculations and to complete the commercial project,
conflicting language being offered as amendments within Bill No. 102 contradicts the
purpose of the Bill.
For example, Bill No. 102 states:
(material to be deleted is bracketed and struck-out; material to be added is underscored)
b. Prior to the issuance of a water commitment by the Department of Water Supply, the
applicant shall submit the anticipated maximum daily water usage calculations as
recommended by a registered engineer, and a water commitment deposit in accordance
with the"Water Commitment Guidelines Policy"to the Department of Water Supply
within 180 days from the effective date of[this amended ordinance.] Ordinance No. 10-
110.
**Director's Response: Leave condition as currently written since it already speaks to a
compliance time period of 180 days from the effective date of"this amended ordinance".
Should this ordinance be amended and it goes into effect, it will automatically refresh the
compliance deadline. As written, they referencing the same ordinance they are trying to
amend, which means the compliance deadline will remain absolutely the same. Note that
Ordinance No. 10-110 had an effective date of November 24, 2010,which means that
Bill No. 102 will still require completion of the project by November 24, 2015. This was
clearly not the intent of Bill No. 102 since this deadline has already passed.
D. Construction of the proposed improvements shall be completed within five(5) years from
the effective date of[this amended ordinance.] Ordinance No. 10-110. This time period
shall include securing Final Plan Approval from the Planning Director in accordance with
the Zoning Code. Plans shall identify proposed structure(s), fire protection measures,
access roadway, driveway and parking stalls. Landscaping shall be indicated on the plans
-10-
for the purpose of mitigating any potential adverse noise or visual impacts to adjoining
parcels. Landscaping shall be provided in accordance with the requirements of Planning
Department's Rule No. 17 (Landscaping Requirements)standards for CN zones adjoining
a RS zone.
**Director's Response: Like Condition C above, Director recommends leaving the
existing language alone. Should this ordinance be amended in the future, its adoption and
new effective date will refresh this condition automatically.
-11-
e
"`Y%off''''r;
Greggor Ilagan 4' ,� Office: (808)965-2712
�4: '•
Council Member Fax: (808)965-2707
.1,•�';,:; �1, '1:C 1 p Cr PmMl3 gilagan(djhawaiicounty.gov
District 4 Puna Makai n L '
•
,,tt M y`• 1\'!.: 11TNT
CO Ii.l t1 , nAlAll
HAWAII COUNTY COUNCIL
25 Aupuni Street, Hilo,Hawaii 96720
•
TO: Duane Kanuha, Director
Planning Department
FROM: Illg.oGreggor Ilagan, Chair
'C Committee on Planning
DATE: December 2, 2015
SUBJECT: Referral of Bill 102; an Ordinance amending Ordinance No. 10-110, which
amended Ordinance No. 08-39, which reclassified lands from Single-Family
Residential— 10,000 square feet (RS-10) to Neighborhood Commercial—2,000
square feet (CN-20) at Waiakea, South Hilo, Hawai`i, covered by Tax Map
Key 2-2-040:141.
Pursuant to Section 25-2-43(b) of the Hawai`i County Code, I am submitting Bill 102, enclosed
for your comment and recommendation. I also request that you forward the same to the
Windward and Leeward Planning Commissions'for their comment and recommendation as well.
For informational purposes, Bill 102 was referred for comment and recommendation to the
Planning Director and the Windward and Leeward Planning Commissions by the Hawai`i
County Council's Committee on Planning on October 20, 2015.
After your and the Commissions review, please forward your comments and recommendations to
Council Chairperson Dru Kanuha.
Thank you for your attention to this matter.
Enc.
Gl:ps
Planning Dept.
Exhibit__ DEC - it 2015
Hawai•i County Is an Equal Opportunity Provider And Employer yJ by' 10 2 3 6 T
• IP
�i�os M
• !!k�;�.. PHONE: (808?961-8396
DENNIS '`FRESH" ONISHI FAX: (808)961-8912
'outril Member :4 '
( •:6-:.• ;,.4', . . I'm.nll.:dnntslnuhuuuncounn•.gur
District 3 "-''n-
HAWAII COUNTY COUNCIL
25 Aupuni Street. Hilo, Hawaii 96720
N n
`r on
MEMORANDUM
N —<
DATE: October 2,2015 ;
o -',:
TO: Dru Mamo Kanuha, Council ChairIV ..--
and Members of the Hawai`i County Council
"Fresh" Onishi,Dennis Fr Council Member
SUBJECT: A Bill for An Ordinance to Amend Ordinance No. 10-110, Which
Amended Ordinance No. 08-39, Which Reclassified Lands From Single-
Family Residential — 10,000 Square Feet (RS-10) to Neighborhood
Commercial—20,000 Square Feet (CN-20) at Waiakea, South Hilo,
Hawai`i, Covered by Tax Map Key 2-2-040:121
Please refer the attached bill to the appropriate committee agenda for October 20,2015.
DO:de
Att.
< V5‘11 k0 .\")
Comm. No. '"t q c
Ref. To: Pc'
Hutrui'i County is an Equal Opportunity Provider and EmpIoyerRef. _'ate OCT 0 2 2015
•
•
'
COUNTY OF HAWAII .. :'; STATE OF HAWAII
•
BILL NO. 102
ORDINANCE NO.
AN ORDINANCE AMENDING ORDINANCE NO. 10-110,WHICH AMENDED
ORDINANCE NO. 08-39, WHICH RECLASSIFIED LANDS FROM SINGLE-FAMILY
RESIDENTIAL - 10,000 SQUARE FEET (RS-10) TO NEIGHBORHOOD
COMMERCIAL -20,000 SQUARE FEET (CN-20) AT WAIAKEA, SOUTH HILO,
HAWAII, COVERED BY TAX MAP KEY 2-2-040:121.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Ordinance No. 10-110 is amended as follows:
"SECTION 1. Section 25-8-33, Article 8, Chapter 25 (Zoning Code)of the Hawai`i
County Code 1983 (2005 Edition), is amended to change the district classification of property
described hereinafter as follows:
The district classification of the following area situated at Waiakea, South Hilo,
Hawai`i, shall be Neighborhood Commercial - 20,000 square feet (CN-20):
Beginning at the southeast corner of this parcel of land, also being the northeast corner of
Lot 13-A, Block 502, and on the west side of Kilauea Avenue, the coordinates of said
point of beginning referred to Government Survey Triangulation Station"HALAI"being
8,570.69 feet South and 9,735.36 feet East and thence running by azimuths measured
clockwise from true South:
1. 85° 40' 00" 242.00 feet along Lot 13-A, Block 502;
2. 175° 40' 00" 97.35 feet along Lot 14, Block 502;
3. 265° 40' 00" 242.00 feet along Lot 15, Block 502;
4. 355° 40' 00" 97.35 feet along the east side of Kilauea
Avenue to the point of beginning and
containing an area of 23,559 Sq. Ft.,
more or less.
All as shown on the map attached hereto, marked Exhibit "A" and by reference
made part hereof.
SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2005
Edition), the County Council finds the following conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of
the proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
A. The applicants, its successors or assigns shall be responsible for complying with
all of the stated conditions of approval.
B. Prior to the issuance of a water commitment by the Department of Water Supply,
the applicant shall submit the anticipated maximum daily water usage calculations
as recommended by a registered engineer, and a water commitment deposit in
accordance with the "Water Commitment Guidelines Policy" to the Department of
Water Supply within 180 days from the effective date of[this-amended
erdinaneej Ordinance No. 10-110.
C. The applicants shall install a fire hydrant fronting the subject property,and shall
install a reduced pressure type backflow prevention assembly within five (5) feet
of the existing water meter on private property, which must be inspected and
approved by the Department of Water Supply prior to issuance of a Certificate of
Occupancy.
D. Construction of the proposed improvements shall be completed within five(5)
years from the effective date of[ • . . -. •. .] Ordinance No. 10-110.
This time period shall include securing Final Plan Approval from the Planning
Director in accordance with the Zoning Code. Plans shall identify proposed
-2-
structure(s), fire protection measures, access roadway, driveway and parking
stalls. Landscaping shall be indicated on the plans for the purpose of mitigating
any potential adverse noise or visual impacts to adjoining parcels. Landscaping
shall be provided in accordance with the requirements of Planning Department's
Rule No. 17 (Landscaping Requirements) standards for CN zones adjoining a RS
zone.
E. Access to Kilauea Avenue shall be limited to a single location and shall conform
to Chapter 22, Streets and Sidewalks, of the Hawai`i County Code.
F. A 10-foot wide future road-widening strip along Kilauea Avenue shall be
delineated on the plans submitted for Plan Approval review. The 10-foot future
road widening section and roadway improvements along Kilauea Avenue shall be
subdivided and dedicated to the County of Hawai`i within five (5) years from the
effective date of the original ordinance.
G. The applicants shall provide full improvements to the entire frontage along
Kilauea Avenue consisting of, but not limited to, pavement shoulder widening,.
[ - _ - - . ;, • - . . ,] drainage improvements, and any
required utility relocation, meeting with the approval of the Department of Public
Works. Improvements shall be located within the future road-widening setback as
established by the Planning Department and be completed within five (5) years
from the effective date of the original ordinance.
H. The applicants shall also install street lights and traffic controls as required by the
Traffic Division, Department of Public Works. The applicants shall be
responsible for the design, purchase, and installation of such devices. These
improvements to Kilauea Avenue shall be completed prior to a Certificate of
Occupancy.
The height limit shall be 35 feet as allowed in the Single-Family Residential (RS)
district.
-3-
J. All development-generated runoff shall be disposed of on site and shall not be
directed toward any adjacent properties. A drainage study shall be prepared by a
licensed civil engineer and submitted to the Department of Public Works prior to
issuance of a construction permit. Any recommended drainage improvements, if
required, shall be constructed meeting with the approval of the Department of
Public Works prior to receipt of a Certificate of Occupancy.
K. The applicants shall install an individual wastewater system meeting with the
requirements of the Department of Health prior to the issuance of a Certificate of
Occupancy.
L. A Solid Waste Management Plan shall be submitted to the Department of
Environmental Management for review and approval prior to the issuance of Final
Plan Approval.
M._ If the applicant(s), successor(s), or assign(s)develops residential units on the
subject property, the applicant(s) shall make its (their) fair share contribution to
mitigate the potential regional impacts of the property with respect to parks and
recreation, fire, police, solid waste disposal facilities and roads. The fair share
contribution shall become due and payable prior to receipt of Final Plan Approval.
The fair share contribution for each lot shall be based on the actual number of
residential units developed. The fair share contribution in a form of cash, land,
facilities or any combination thereof shall be determined by the County Council.
The fair share contribution may be adjusted annually beginning three years after
the effective date of this ordinance, based on the percentage change in the
Honolulu Consumer Price Index (HCPI). The fair share contribution shall have a
combined value of$7,738.48 per multiple family residential unit($12,059.55 per
single family residential unit). The total amount shall be determined with the
actual number of units according to the calculation and payment provisions set
forth in this condition. The fair share contribution per multiple family residential
unit(single family residential unit) shall be allocated as follows:
-4-
1. $3,817.17 per multiple family residential unit ($5,815.33 per single family
residential unit)to the County to support park and recreational
improvements and facilities;
2. $120.64 per multiple family residential unit($280.53 per single family
residential unit) to the County to support police facilities;
3. $371.11 per multiple family residential unit ($554.09 per single family
residential unit) to the County to support fire facilities;
4. $165.40 per multiple family residential unit($242.59 per single family
residential unit)to the County to support solid waste facilities; and
5. $3,264.15 per multiple family residential unit ($5,167.02 per single family
residential unit) to the County to support road and traffic improvements.
In lieu of paying the fair share contribution, the applicant may contribute land
and/or construct improvements/facilities related to parks and recreation, fire,
police, solid waste disposal facilities and roads within the region impacted by the
proposed development, subject to the review and recommendation of the Planning
Director, upon consultation with the appropriate agencies and approval of the
County Council.
N. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria
for imposition of exactions or the assessment of impact fees, conditions included
herein shall be credited towards the requirements of the Unified Impact Fees
Ordinance.
0. To ensure that the Goals and Policies of the Housing Element of the General Plan
are implemented, if applicable, the applicants shall comply with the requirements
of Chapter 11, Article 1, Hawai`i County Code relating to Affordable Housing
Policy. This requirement shall be approved by the Administrator of the Office of
Housing and Community Development prior to final plan approval.
-5-
P. An Emergency Response Plan shall be submitted to the Hawai`i County Civil
Defense Agency for review and approval prior to the issuance of a Certificate of
Occupancy.
Q. The applicants shall comply with all applicable County, State and Federal laws,
rules, regulations and requirements.
R. An initial extension of time for the performance of conditions within the
ordinance may be granted by the Planning Director upon the following
circumstances:
1. The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicants, successors or assigns,
and that are not the result of their fault or negligence.
2. Granting of the time extension would not be contrary to the General Plan
or Zoning Code.
3. Granting of the time extension would not be contrary to the original
reasons for the granting of the change of zone.
4. The time extension granted shall be for a period not to exceed the period
originally granted for performance(i.e., a condition to be performed within
one year may be extended for up to one additional year).
5. If the applicants should require an additional extension of time,the
Planning Director shall submit the applicant's request to the Planning
Commission and County Council for appropriate action.
S. Should any of the conditions not be met or substantially complied with in a timely
fashion, the Director may initiate rezoning of the area to its original or more
appropriate designation."
-6-
SECTION 2. Material to be deleted is bracketed and stricken through. New material is
underscored.
SECTION 3. Severability. If any provision of this ordinance or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end, the provisions of this ordinance are declared to be severable.
SECTION 4. This ordinance shall take effect upon its approval.
INT ODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAII
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm. 495
-7-
RS-10 I Ck 40 6C k.....,....
RS-10f-- V
W PUAINAKO ST E PUAINAKO ST
CN-10
RS 0 r- RS-10 CM-10 ' S
RS-10 ____ — - 4 I
---'---— - SINGLE FAMILY RESIDENTIAL
1n- SQUARE FEET(RS-10) CG-20
Ca-t0 TO NEIGHBORHOOD COMMERCIAL
20,000-SQUARE FEET(Cts-20)
.4.. / RS-10 23,559 SQ.FT.
—
RS-10 ,
N
i ._, ;..,77-if-A ,...44,. X -,-;' RS-IU
8,570.69 SI'l �-__
_T CG-20
RS-10
- ___ 1
RS-10
Ft
---- W _►, I y ll
RS-10g�- E `g E�
TSS i
rs
CN-10 S
RS-10 i —
RS-10
�- - _
RS-10 ii cM to RS-10
CN-10 RS-I0 { 1_'
580 870 1,160 1,450
290 145 0 Feet
AMENDMENT TO THE ZONING CODE
AMENDING SECTION 25-8-33 (CITY OF HILO 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 FEET (CN-20)R )
TO NEIGHBORHOOD COMMERCIAL 20,0000-SQUARE
AT WAIAKEA, SOUTH HILO , HAWAII EOR REFERENCE
PREPARED BY: PLANNING DEPARTMENT ONLY
COUNTY OF HAWAII
Date:October 22,2007
2
TMK:21 it"A.' 1 (Jinsoo P.&Ran Mui P.Iida:1237)
rvwCiY"D"
WO IP
County of Hawaii
PLANNING.COMMISSION
Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720
Phone(808)961-8288 • Fax(808)961-8742
February 1, 2008
Pete Hoffmann, Chairman
and Members of the County Council
County of Hawaii
333 Kilauea Avenue, 2nd Floor
Hilo, HI 96720
Dear Chairman Hoffmann and Council Members:
Change of Zone Application(REZ 07-000073)
Applicant: Jin Soo and Ran Hui Iida
Request: RS-10 to CN-20
Tax Map Key: 2-2-40:121
The Planning Commission, after a duly held public hearing on December 7, 2007, voted to
recommend for your approval the proposed legislative bill for a change of zone from a Single
Family Residential— 10,000 square feet(RS-10)to a Neighborhood Commercial—20,000 square
feet(CN-20)zoned district for 23,559 square feet of land. The property is located along the west
side of Kilauea Avenue, approximately 420 feet south of the Kilauea Avenue-Puainako Street -
intersection, Waiakea Homestead House Lots, South Hilo,Hawaii.
The Planning Director had recommended denial of the application. The Commission,however,
voted to send the County Council favorable consideration of the change of zone for the following
reasons:
The Commission always considers the Director's recommendations with all due
respect. Occasionally, the Commission, exercising its discretion as the community-based
board charged with advisory review of rezoning applications, finds itself making a
recommendation contrary to the Director's recommendation. This is one such case. The
Director recommends against the rezoning primarily based upon his perception of
inconsistency with the general plan. This perception arises largely from the fact that in the
General Plan LUPAG Map, the subject lot is in a Low Density Urban area. However, it is
Hawaii County is an Equal Opportunity Provider and Employer
Planning Det % 1 2at3
Exhibit
I
Pete Hoffmann, Chairman
and Members of the County Council
Page 2
right across Kilauea Avenue from a Medium and High Density Urban area.The Director
interprets Kilauea Avenue as a hard, impenetrable line between Low and Medium
Density Urban, sharply and immovably separating them on a lot-specific basis. In the
Director's view, if your lot is on one or the other side of the street,this largely determines
your rezoning potential, specifically lot by lot.
The Commission carefully considered the Director's recommendation, along with
the nature of the surrounding LUPAG map designations,the General Plan's policies and
objectives, and the trend of existing uses. The General Plan itself states plainly that the
LUPAG map is not intended to draw hard, lot-specific lines. It is only a general guide.
"The land use pattern is a broad, flexible design intended to guide the direction and
quality of future developments in a coordinated and rational manner. The General Plan
Land Use Pattern Allocation Guide (LUPAG) Map indicates the general locations of
various land uses in relation to each other." (General Plan p. 14-7). Nowhere in the
General Plan is it mandated that streets that happen to be used as LUPAG district
boundaries are to be used as hard lot-specific zoning restrictions. The LUPAG map is
clearly a general guide, leaving the final zoning decision in the legislative discretion of
the Council.
This is especially important in this case. Here, the record reflects that the subject
property is right on the LUPAG Map boundary between Low and Medium designated
areas. Directly across the street is designated Medium Density. This lot could not be any
closer to Medium Density without actually being in it. It is just such lots on the margin
which should be eligible for legislative zoning discretion.
Such discretion should be applicable particularly where the proposed uses also fall
within the margin of permitted uses between designations. There is a considerable overlap
between the types of commercial uses allowable in both Low and Medium Density Urban
areas. Significantly, the General Plan provides that"neighborhood commercial"uses are
allowed in both Low and Medium Density Urban areas. The subject Low Density area
also allows for"convenience-type"commercial uses (General Plan p. 14-7). The GP
doesn't define"neighborhood"or"convenience"commercial uses.However,the Zoning
Code in"Neighborhood Commercial" ("CN")zones, allows"personal services"
including"beauty shops."(HCC 25-5-102(a)(27); 25-1-5). So the proposed beauty shop
is arguably within the general range of"neighborhood commercial"uses consistent with
Low or Medium Density LUPAG designation.
Ironically, the Planning Department noted that if a convenience store were being
requested,that may be allowable for a rezoning to CN-20. The volume of traffic and
Pete Hoffmann, Chairman
and Members of the County Council
Page 3
variety of uses that might arise from a convenience store would seem to be of greater
impact and disruption to the neighborhood than the proposed small beauty shop.
Moreover, this area appears to be in the process of a natural expansion of small
urban commercial uses. Just north of the site(and surrounded by Low Density lots) are
Kai Store, a chiropractic office, and Maebo Noodle Factory. Also nearby are the KTA and
Puainako Town Centers. There remain substantial residential areas adjacent,which are
well served by these incremental commercial additions. The testimony from the
community was entirely positive and supportive, reflecting the appropriateness of the
request in the eyes of the community.
The following reasons for approval were stated by the Planning Commissioners
and the applicant:
• In the General Plan,Low Density Urban does allow for neighborhood and
convenience-type commercial uses.
• The proposed use is convenient to the area and the zoning would be limited to
specific"personal service,residential and residential-related" uses. The use is
similar to a home occupation and non-offensive. Any other uses would be subject
to an amendment to the ordinance. A condition has been added that states, "As
represented by the applicants,the site shall be restricted to personal services,
residential, and residential-related uses as described in the CN district(Section 25-
5-102). Any other uses would be subject to an amendment. Restrictive covenants
in the deed of the subject properties shall give notice of this restriction."
• There has been a lot of support and no opposition from the surrounding property
owners.
• The proposed use will not create a burden on public agencies to provide additional
infrastructure.
• The proposed use creates more of an"in-filling"of commercial uses in the
immediate area rather than creating strip or spot zoning.
Based on all of the foregoing, the Commission respectfully transmits the subject
rezoning request to the County Council, with a positive recommendation,under the
conditions proposed.
IIP
Pete Hoffrnann, Chairman
and Members of the County Council
Page 4
For your favorable consideration, an amendment to Section 25-8-33 (City of Hilo Zone Map), of
the County Zoning Code is transmitted.
We are enclosing copies of the staff Background,Planning Director's Recommendation, and
transcripts of the hearings for your information.
Sincerely,
401
William Graham, Chairman
Planning Commission
Liida02PC
Enclosures
cc: Jin Soo and Ran Hui Iida
Department of Public Works
Department of Water Supply
DOT-Highways, Honolulu
Lincoln Ashida, Esq., Corporation Counsel
Cr
•••
COUNTY
COUNTY OF HAWAII -- STATE OF HAWAI I
BILL NO.
ORDINANCE NO.
AN ORDINANCE AMENDING SECTION 25-8-33 (CITY OF HILO 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 10,000 SQUARE FEET (RS-10)TO NEIGHBORHOOD
COMMERCIAL 20,000 SQUARE FEET(CN-20)AT WAIAKEA, SOUTH HILO, HAWAII,
COVERED BY TAX MAP KEY 2-2-040:121.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Section 25-8-33,Article 8, Chapter 25 (Zoning Code)of the Hawaii
County Code 1983 (2005 Edition),is amended to change the district classification of property
described hereinafter as follows:
The district classification of the following area situated at Waiakea, South Hilo,
Hawai`i, shall be Neighborhood Commercial 20,000 square feet(CN-20):
Beginning at the southeast corner of this parcel of land, also being the northeast corner of
Lot 13-A,Block 502, and on the west side of Kilauea Avenue,the coordinates of said
point of beginning referred to Government Survey Triangulation Station"HALAP'being
8,570.69 feet South and 9,735.36 feet East and thence running by azimuths measured
clockwise from true South:
1. 85° 40' 00" 242.00 feet along Lot 13-A,Block 502;
2. 175° 40' 00" 97.35 feet along Lot 14,Block 502;
3. 265° 40' 00" 242.00 feet along Lot 15,Block 502;
4. 355° 40' 00" 97.35 feet along the east side of Kilauea
Avenue to the point of beginning and
containing an area of 23,559 Sq. Ft.,
more or less.
-1-
IP
All as shown on the map attached hereto,marked Exhibit"A" and by reference
made part hereof.
SECTION 2. In accordance with Section 25-2-44, Hawai`i County Code 1983 (2005
Edition),the County Council finds the following conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of
the proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
A. The applicants,its successors or assigns shall be responsible for complying with
all of the stated conditions of approval.
B. The required water commitment payment shall be submitted to the Department of
Water Supply in accordance with the"Water Commitment Guidelines Policy"
within 180 days from the effective date of this ordinance.
C. Construction of the proposed improvements shall be completed within five(5)
years from the effective date of this ordinance. This time period shall include
securing Final Plan Approval from the Planning Director in accordance with the
Zoning Code. Plans shall identify proposed structure(s), fire protection measures,
access roadway,driveway and parking stalls. Landscaping shall be indicated on
the plans for the purpose of mitigating any potential adverse noise or visual
impacts to adjoining parcels. Landscaping shall be provided in accordance with
the requirements of Planning Department's Rule No. 17 (Landscaping
Requirements) standards for CN zones adjoining a RS zone.
-2-
V
D. As represented by the applicants,the site shall be restricted to personal services,
residential, and residential-related uses as described in the CN district(Section 25-
5-102). Any other uses would be subject to an amendment. Restrictive covenants
in the deed of the subject properties shall give notice of this restriction.
E. Access to Kilauea Avenue shall be limited to a single location and shall conform
to Chapter 22, Streets and Sidewalks, of the Hawaii County Code.
F. A 10-foot wide future road-widening strip along Kilauea Avenue shall be
delineated on the plans submitted for Plan Approval review. The 10-foot future
road widening section and roadway improvements along Kilauea Avenue shall be
subdivided and dedicated to the County of Hawaii within five(5)years from the
effective date of this ordinance.
G. The applicants shall provide full improvements to the entire frontage along
Kilauea Avenue consisting of,but not limited to,pavement widening with
concrete curb, gutter and sidewalk, drainage improvements, and any required
utility relocation,meeting with the approval of the Department of Public Works.
Improvements shall be located within the future road-widening setback as
established by the Planning Department and be completed within five(5)years
from the effective date of this ordinance.
H. The applicants shall also install street lights and traffic controls as required by the
Traffic Division,Department of Public Works. The applicants shall be
responsible for the design,purchase, and installation of such devices. These
improvements to Kilauea Avenue shall be completed prior to a Certificate of
Occupancy.
-3-
The height limit shall be 35 feet as allowed in the Single-Family Residential (RS)
district.
J. All development-generated runoff shall be disposed of on site and shall not be
directed toward any adjacent properties. A drainage study shall be prepared by a
licensed civil engineer and submitted to the Department of Public Works prior to
issuance of a construction permit. Any recommended drainage improvements, if
required, shall be constructed meeting with the approval of the Department of
Public Works prior to receipt of a Certificate of Occupancy.
K. A Solid Waste Management Plan shall be submitted to the Department of
Environmental Management for review and approval prior to the issuance of a
Certificate of Occupancy.
L. If the applicants, successors, or assigns develop residential units on the subject
property, the applicants shall make its fair share contribution to mitigate the
potential regional impacts of the property with respect to parks and recreation,
fire,police, solid waste disposal facilities and roads. The fair share contribution
shall become due and payable prior to receipt of Final Plan Approval. The fair
share contribution for each lot shall be based on the actual number of residential
units developed. The fair share contribution in a form of cash, land, facilities or
any combination thereof shall be determined by the County Council. The fair
share contribution may be adjusted annually beginning three years after the
effective date of this ordinance,based on the percentage change in the Honolulu
Consumer Price Index (HCPI). The fair share contribution shall have a combined
value of$7,043.62 per multiple family residential unit($10,976.69 per single
family residential unit). The total amount shall be determined with the actual
number of units according to the calculation and payment provisions set forth in
this condition.
-4-
IP
V
The fair share contribution per multiple family residential unit(single family
residential unit) shall be allocated as follows:
1. $3,474.42 per multiple family residential unit($5,293.15 per single family
residential unit) to the County to support park and recreational
improvements and facilities;
2. $109.81 per multiple family residential unit($255.34 per single family
residential unit) to the County to support police facilities;
3. $337.78 per multiple family residential unit($504.33 per single family
residential unit)to the County to support fire facilities;
4. $150.55 per multiple family residential unit($220.80 per single family
residential unit) to the County to support solid waste facilities; and
5. $2,971.05 per multiple family residential unit($4,703.06 per single family
residential unit) to the County to support road and traffic improvements.
In lieu of paying the fair share contribution,the applicants may contribute land
and/or construct improvements/facilities related to parks and recreation, fire,
police, solid waste disposal facilities and roads within the region impacted by the
proposed development, subject to the review and recommendation of the Planning
Director,upon consultation with the appropriate agencies and approval of the
County Council.
-5-
M. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria
for imposition of exactions or the assessment of impact fees,conditions included
herein shall be credited towards the requirements of the Unified Impact Fees
Ordinance.
N. To ensure that the Goals and Policies of the Housing Element of the General Plan
are implemented, if applicable,the applicants shall comply with the requirements
of Chapter 11,Article 1,Hawaii County Code relating to Affordable Housing
Policy. This requirement shall be approved by the Administrator of the Office of
Housing and Community Development prior to final plan approval.
O. An Emergency Response Plan shall be submitted to the Hawaii County Civil
Defense Agency for review and approval prior to the issuance of a Certificate of
Occupancy.
P. The applicants shall comply with all applicable County, State and Federal laws,
rules, regulations and requirements.
Q. An annual progress report shall be submitted to the Planning Director prior to the
anniversary date of enactment of the ordinance. The report shall include,but not
be limited to, the status of the development and to what extent the conditions of
approval are being complied with. This condition shall remain in effect until all
of the conditions of approval have been complied with and the Planning Director
acknowledges that further reports are not required.
R. An initial extension of time for the performance of conditions within the
ordinance may be granted by the Planning Director upon the following
circumstances:
-6-
•
1. The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicants, successors or assigns,
and that are not the result of their fault or negligence.
2. Granting of the time extension would not be contrary to the General Plan
or Zoning Code.
3. Granting of the time extension would not be contrary to the original
reasons for the granting of the change of zone.
4. The time extension granted shall be for a period not to exceed the period
originally granted for performance (i.e., a condition to be performed within
one year may be extended for up to one additional year).
5. If the applicants should require an additional extension of time,the
Planning Director shall submit the applicants's request to the Planning
Commission and County Council for appropriate action.
S. Should any of the conditions not be met or substantially complied with in a timely
fashion,the Director may initiate rezoning of the area to its original or more
appropriate designation.
SECTION 3. In the event that any portion of this ordinance is declared invalid, such
invalidity shall not affect the other parts of this ordinance.
-7-
IP IP
SECTION 4. This ordinance shall take effect upon its approval.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAII
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
-8-
RS-10 440 5
RS-10
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W PUAINAKO ST E PUAINAKO ST
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RS-10 I 1
SINGLE FAMILY RESIDENTIAL
10,000-SQUARE FEET(RS-10)
CN-10 TO NEIGHBORHOOD COMMERCIAL CG-20
20,000-SQUARE FEET(CN-20)
23,559 SQ.FT.
RS-10
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290 145 0 290 580 870 1,160 1,450
Feet
AMENDMENT TO THE ZONING CODE
AMENDING SECTION 25-8-33 (CITY OF HILO 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 10,000-SQUARE FEET (RS-10)
TO NEIGHBORHOOD COMMERCIAL 20,000-SQUARE FEET (CN-20)
AT WAIAKEA, SOUTH HILO , HAWAII
PREPARED BY: PLANNING DEPARTMENT
COUNTY OF HAWAII
TMK:2-2-040:121 Date:October 22,2007
EXHIBIT"A" (Jinsoo P.&Ran Hui P. lida:1237)
.00• NII. 4411.101.11111111.111111.0*. .111F v. 4111MON ,
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Planning Dept.
Exhibit Z _.
Harry ��� '';.4+ ��,
Kim .; � . �f Christopher J.Yuen
` �s Director
"� •;,.�'' Brad Kurokawa,ASLA
LEED®AP
( .aurtig x
ztii Deputy Director
PLANNING DEPARTMENT
101 Pauahi Street, Suite 3 • Hilo,Hawaii 96720-4224
(808)961-8288 • FAX(808)961-8742
MEMORANDUM
NO. 07-19
September 18, 2007
TO: PLANNERS AND EM's
FROM: CHRISTOPHER J. YUEN
PLANNING DIRECTOR
SUBJECT: GENERAL PLAN LUPAG MAPS
This staff memo is to discuss when land use applications should be rejected for
inconsistency with the General Plan LUPAG map. The alternative is to process the
application for final decision by the Planning Commission or the County Council,but
with a negative recommendation. This memo mainly applies to rezonings and SMA
permits. It is an issue that sometimes comes up when staff is doing an initial review of
such applications.
The county charter, sec. 3-15(b), says that"no public improvement or project,or
subdivision or zoning ordinance, shall be initiated or adopted unless the same conforms
to and implements the General Plan." Attached to this staff memo is a Corporation
Counsel memorandum giving the legal basis for the Planning Director refusing to process
a rezoning application and SMA permit application based upon inconsistency with the
General Plan.
The 2005 General Plan makes it clear that any rezoning must be consistent with the
LUPAG map, on p. 14-4. With respect to the SMA, the case of Gatri v. Blane, 88 Haw.
108(1998) makes it clear that an SMA permit must be consistent both with the General
Plan and with the zoning. So, for example, we have areas in Puako which are zoned V-
1.25, allowing one unit per 1250 square feet of land, potentially 35 units per acre, but
which are "low density urban" in the LUPAG map. Any SMA permit would he limited
to the 6 units/acre limit under the criteria for"low density urban". To take another
r
' Manning Dept.
hawui'€County is an Equal Opportunity Provider and Employer.
PLANNERS AND EM's
Page 2
September 18, 2007
example,Punalu'u is a"minor resort" in the General Plan, with a limit of 500 visitor
units, so any SMA permit would have to be limited to that, although the zoning
potentially allows more units.
The problem with detemiining consistency with the LUPAG map comes up because in
most cases, the boundaries on the LUPAG map were not meant to be exact. Attached to
this memo is letter dated April 27, 2001, explaining this and giving examples. This letter
was also made a part of Staff Memo 2001-40. This letter remains valid with the 2005
General Plan. All planners should read and try to understand it.
To give a typical example, the General Plan will show an area of low density urban or
alternate urban expansion around a town like Hawi or Waimea. This gives the general
guidance that further urban development should grow outward from the existing
developed area of the town, or in vacant infill areas, and gives an idea of the extent and
scale, but it was not meant to be exactly scaled off to create an absolute boundary. The
fact that the LUPAG is now on GIS and shows exact locations gives a false precision to
/ the map. The GIS was digitized from the 1989 LUPAG map, which is at a scale of about
1"=two miles, and was not, in most cases, meant to depict absolute boundaries. This
means that it is often possible to reasonably interpret an area as being in low density
urban or medium density urban, for example, and either could be correct.
There are exceptions to the concept that the LUPAG map lines are not absolute
boundaries, which are discussed in the April 27, 2001 letter: for example, when they go
along identifiable streets or when the property was originally put into the LUPAG map by
a specific metes-and-bounds interim amendment.
This being the case, we should reject applications for inconsistency with the LUPAG map
only in very clear cases where there are no boundary issues. An example would be an
industrial zoning in an area where there was no industrial designation on the LUPAG, or
residential zoning within what is clearly an industrial area. Otherwise, we should process
the application, with an unfavorable recommendation, explain our reasons for concluding
that the application is not consistent with the LUPAG, and let the Council or Planning
Commission make the final decision. We should also explain other land use reasons, if
any, for denying the application. If the Council eventually decides to approve the
rezoning, or the Planning Commission decides to approve an SMA permit, against our
negative recommendation, they will have to make a finding that it is consistent with the
LUPAG. We should not reject an application just because it is a few hundred feet from
the proper LUPAG line, except in the unusual case where the line was meant to be exact.
PLANNERS AND EM's
Page 3
September 18, 2007
If we do reject an application because of LUPAG inconsistency, we should include the
standard language stating that this can be appealed to the Board of Appeals, because this
is a final decision.
When it looks like a rezoning or SMA permit is not consistent with the LUPAG as shown
on GIS, but we interpret the LUPAG to be consistent, we should explain why we are
interpreting the LUPAG in the background of the rezoning or SMA permit.
The LUPAG does not answer all land use questions. A rezoning may not be a good idea
in a particular location, because of poor road access, traffic congestion, incompatibility
with neighbors, historic sites, flooding, natural resources, and many other reasons, even if
it is basically consistent with the LUPAG. The work that we do in making
recommendations on rezonings and SMA permits calls for informed judgment and often a
weighing of competing factors.
CJY:pak
Wpwin60/Chris 07/Staff memo re LUPAG consistency
Attachments
cc: Office of the Corporation Counsel
LINCOLN S. T. _S HIDA. . .78
CoiI or&ion Counsel , r r:,.
1
BOBBY JEAN LEITIIEAD-TODD 426 ?3
Deputy Corporation Counsel :.
County of Hawai`i -
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
Telephone No. (808) 961-8251
Facsimile No. (808) 961-8622
Email: bjtodd@co.hawai`i.hi.us
Attorneys for Appellee
Christopher J. Yuen,Planning Director, County of Hawai`i
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAII
JERE A. HENDERSON, BOA No. 03-008
Appellant, APPELLEE CHRISTOPHER J. YUEN,
PLANNING DIRECTOR, COUNTY OF
VS. HAWAI`I'S MEMORANDUM OF LAW
C REGARDING LACK OF AUTHORITY
CHRISTOPHER J. YUEN, PLANNING BY THE COUNTY TO INITIATE OR
DIRECTOR, COUNTY OF HAWAII, ADOPT ZONING THAT DOES NOT
CONFORM WITH THE GENERAL
Appellee. PLAN; CERTIFICATE OF SERVICE
s:\lit\hendersen\pleadings\memo lack authority\10-14-03\BJLTfc.doc
APPELLEE,CHRISTOPHER J. YUEN,PLANNING DIRECTOR,
COUNTY OF HAWAI`I'S MEMORANDUM OF LAW REGARDING LACK OF
AUTHORITY BY THE COUNTY TO INITIATE OR ADOPT ZONING
THAT DOES NOT CONFORM WITH THE GENERAL PLAN
I. BACKGROUND
Appellant,Jere Henderson, (hereafter"Appellant") seeks to overturn the decision
of the Planning Director, Christopher Yuen, (hereinafter "Director") to return Appellant's
applications for Change of Zone and SMA Use Permits. The Director reviewed the
applications and deteirnined that the General Plan LUPAG Map designates the area as
(,,_ f. The appellant ees that the 1,4JPAG Map designates the area as indust
The Director Parther determined that in order to process the Change of Zone i
applicaton
=r
from a General Industrial (MG-5a) to a Single Family Residential (RS-3a) zoned district,
the General Plan LUPAG Map designation must first be amended to Low Density Urban.
Planning Director's letter of June 5, 2003. Previously, Appellant, by letter dated
February 5, 2003, to Council Chair James Arakaki, has requested that the Council amend
the current designation of"Industrial"to "Low Density Urban." Appellant's Exhibit G.
By letter dated July 21, 2003, Appellant filed his notice of appeal. Appellant
contended that the Director"did not make a determination that the applications was
incomplete or otherwise `defective' within the meaning of Section 25-2-3 of the Hawai`i
County Code." Appellant contends that the Director exceeded his authority under
Section 25-2-42 of the Hawai`i County Code with respect to the application for Change
of Zone. Appellant further contends that the Director exceeded his authority under
Rule 9 of the Rules and Procedure of the Planning Commission of the County of Hawaii,
with respect to the application for an SMA Use Permit. Appellant contends that the
Director was limited to making a recommendation to the Planning Commission regarding
approval or denial of the subject applications and that he did not have the authority to
reject the applications.
By the same letter, Appellant contends that the Director's action in rejecting the
applications was arbitrary and capricious and characterized by an abuse of discretion.
2
_ T,..Ee ; U IRSj l ! R P%—ROPP.� L i�i� t) .�..�.-t� APR ELL 4 J_T 5 2
Al P 'ICAT1ONS BECAUSE THEY DID NOT CON-P �_
C�R1�TO THE
�
GENERAL T PLAN OR THE I A1r~r _..i`I COUNTY CHARTER
A. Pursuant To The Hawai`i County Charter,No Zoning Ordinance Shall Be
Initiated Or Adopted Unless It Conforms To The General Plan.
Section 3-15(b)of the Hawai`i County Charter provides that "no public
improvement or project, or subdivision or zoning ordinance, shall be initiated or adopted
unless the same conforms to and implements the general plan." Appellant's zoning
application is inconsistent with the Hawai`i County General Plan, as the subject area is
designated"Industrial" on the County LT PAG MAP. Single Family Residential zoning
is inconsistent with the"Industrial"LUPAG Map designation. Nor is it a less intensive
permitted use as residential is not a permitted use in the Industrial zone.
HCC §§25-5-142, 25-5-152.
R.-
B. The Council Lacks The Authority to Adopt A Zoning Ordinance That
Does Not Conform To And Implement The General Plan.
In Dalton v. City and County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969), the
Hawai`i Supreme Court reviewed similar language in Honolulu's charter, "no....zoning
ordinance shall be initiated or adopted unless it conforms to and implements the general
plan." Dalton at 413. The Hawaii Supreme Court found that"if a zoning ordinance does
not conform to and implement the general plan, then the city did not have the power to
adopt it". Dalton at 413. This language is an express limitation on the County's zoning
power. It provides a test to use in reviewing zoning ordinances, if a zoning ordinance
does not conform to and implement the General Plan, the County does not have the
authority to adopt it. In Dalton, the court found that the city was prevented from
adopting a rezoning ordinance without first amending the general plan. Adopting a
zon ng ord,nce contrary try ar, needed Cert at Tjlaii i2 exactly what <<iE _ _('rte
rseeks to prohibit. Dalton at 414.
Application of the Dalton test to Appellant's applications prevents adoption of the
requests without first amending the General Plan. Specifically, the language found in the
Hawai`i County Charter, which is identical to the language the Supreme Court reviewed
in Dalton,prohibits adoption of Appellant's requests since they do not conform to and
implement the General Plan. Even if this Board were to approve Appellant's appeal,
forward his request to the Planning Commission, and the Planning Commission was to
recommend approval to the County Council, the County Council lacks the authority to
adopt the zoning ordinance.
The Supreme Court's statutory interpretation of the charter in Dalton must be
considered to have the tacit approval of the Council where the County Council has failed
to act in response to the judicial construction of the charter provision. See Keliipuleole v.
Wilson, 85 Hawai`i 217, 941 P.2d 300(1997). When a decision of the court interpreting
the rule of property has stood for nearly forty years, the failure of the Council or the
Charter Commission and the electorate to repeal or amend the charter evidences
concurrence in the decision of the court. Collins v. Ako, 35 Haw. 440 (Haw. Terr. 1940).
The Dalton decision has remained in effect since 1965 and the language of the Hawaii
County Charter has not been amended.
The court has ruled similarly in other cases. For example in Maha'ulepu v. Land
Use Commission, 71 Haw. 332, 790 P.2d 906 (1990), the court ruled that the Land Use
Commission may only exercise those powers granted to it by statute and could not grant a
special permit unless the proposed use was permissible under existing provisions
4
v v s.
governing g land use. Similarly., the c held-‘.ft that zo=ning erdinances are required to
conform to and implement development plans. Lum Yip Kee, Ltd. v. City and County of
Honolulu, 70 Haw. 179, 767 P.2d 815 (1989). Zoning ordinances must be in accord with
comprehensive plans like the general plan. See Life of the Land, Inc. v. City Council of
City and County of Honolulu, 61 Haw. 390, 606 P.2d 866 (1980). An ordinance
amending land use designations of the general plan requires specific notice of such an
amendment. Hall v. City and County of Honolulu, 56 Haw. 121, 530 P.2d 737 (1975).
Where an agency uses its authority inconsistently with the legislative objectives and
policies, grants of permits or adoption of zoning ordinances cannot stand. See Mahuiki v.
Planning Commission, 65 Haw. 506, 654 P.2d 874(1982).
C. Appellant's Reliance On the Language Of The Subdivision Code Is
Inconsistent with the Charter.
Appellant's reliance on the language of the subdivision code must fail because a
municipal ordinance must conform to and be subordinate to the charter provisions.
Harris v. DeSoto, 80 Hawai`i 425, 911 P.2d 60 (1996). Any interpretation of the
subdivision code that conflicts with the express provision in the charter is invalid. See
Fasi v. City Council of City and County of Honolulu, 72 Haw. 513, 823 P.2d 742 (1992).
Legislative intent should be determined from the language of the charter and must
be read in context of the entire charter and construed in a manner consistent.with its
purposes. See State v. Lion, 8 Haw. App. 406, recon. denied, 8 Haw. App. 661, cert.
denied, 71 Haw. 619 (Haw. App. 1991), The Hawaii County Code, read as a whole,
indicates a clear intent that zoning ordinances should not be initiated or adopted unless
consistent with the general plan. The Board should give due weight to the intent of the
drafters, especially since this language has remained in the charter through several
5
comprehensive r;h21'4-er review's occurring a�e= the Dalton case. 2!7hFi_reviewing
the
charter, this Board is required to ascertain and give effect to the intent of the drafters.
See Windward Marine Resort, Inc. v. Sullivan, 86 Hawai`i 171, 948 P.2d 592 (Haw. App.
1`997) (Intermediate Court of Appeals required to ascertain and give effect to intent of
drafters of Honolulu charter).
The Board should not fashion a construction of the charter that effectively renders
its provisions a nullity or creates an absurd result. Konno v. County of Hawai1i,
85 Hawai`i 61, 937 P.2d 397, as modified on reconsideration (1997). The law should be
interpreted in a practical and sensible light. It makes no sense for the Director to forward
applications to the Planning Commission, for them to then be forwarded to the County
Council if the Council lacks the authority to adopt them. It would be a waste of time and
resources on the part of all of these entities and produces an absurd, illogical result.
D. The Director's Interpretation Of the Charter, Subdivision Code and
Chapter 205A, Hawaii Revised Statutes, Should Be Given Great Weight.
In interpreting a statute, interpretation given that statute by the regulatory
authority charged with its administration will normally be given great weight. Agsalud v.
Blalack, 67 Haw. 588,699 P.2d 17(1985); Yamaguchi v. State Farm Mutual Automobile
Insurance So., 706 F.2d 940 (CA. 9 Haw.1983). If reasonable and not contrary to the
discernable intent of the drafters, an agency's statutory interpretation should be approved
even if it is not the only reasonable interpretation or the one the reviewing body would
make if deciding the issue in the first instance. See R.L. Inv. Partners v. INS.,
86 F,Supp.2d 1014 (D. Flaw. 2000). Here, the Director administers applications for
general plan amendments, zoning changes and SMA permits and his decisions should be
4.
6
givenr.er ^...?. _c ::.r •e .;:.cin- Jverte_; estirr, - y it
--o
have to be consistent with the L,UP G Maps. Testimony of Chris Yuen.
E. Appellant's Reliance On Special Permits As Non-Conforming Uses
Misconstrues The Law.
Appellant's reference to special permits as examples of uses that do not conform
to the general plan misconstrues the nature of special permits. Unlike a district boundary
amendment, which is analogous to rezoning in its effect of reclassifying land, and unlike
a variance, which permits a landowner to use his property in a manner forbidden by
ordinance or statute, a special permit allows an owner to put his land to a use expressly
permitted by ordinance or statute on proof that certain facts and conditions exist, without
altering underlying zoning classification. Neighborhood B. No. 24 (Waianae Coast) v.
State Land Use Commission, 64 Haw. 265, 639 P.2d 1097 (1982). Special permits are
uses that are provided for within the zoning code. Special permits are used in land located
in the State land use agricultural district to provide some relief from the strict limits of
what is allowed in the agricultural district. They are not rezonings and, therefore, do not •
conflict with the General Plan. There is no process to permit single family residential use
in an industrial area in the HCC.
F. Appellant Has Another Remedy.
The current General Plan provides in Section 6, that interim amendments may be
proposed by a property owner for his property by filing a written petition with the
Planning Director. Such an amendment petition requires a filing fee of$100.00, an
Environmental Impact Statement, as well as other pertinent information. Upon receipt of
a properly filed and completed petition, the Planning Director either recommends
approval or denial. The Planning Commission then holds a hearing on the petition and
.7
(ris of`.o_ denied,
forwards its recommendation 6.. tl�i' �',�(:Ii�°il gra.petition `�J the same r`'r_'
substantially similar petition may not be submitted for consideration for one year, unless
the petitioner submits significant new data or additional reasons which the Planning
Director may find to be a sufficient basis for the petition to be considered.
The County Council is currently considering amendments pursuant to a
comprehensive review under Section 6 A of the General Plan. Appellant has already
requested that the Council consider amending the designation of the subject property to
Industrial.
G. The SMA Permit Application Is Inconsistent With The General Plan And
The Director Was Within His Authority to Not Process The Application.
In Gatri v. Blane, 88 Hawai'i 108, 962 P.2d 367 (1998), the Hawai'i Supreme
Court upheld the Maui Planning Director's decision to not process a SMA permit
application. In Gatri, the Director had determined that the proposed use of the parcel was
inconsistent with the community development plans and therefore inconsistent with the
general plan: The subject property on Maui was already zoned for resort/commercial use
and the SMA permit application was for an allowable use under such zoning. Yet the
Court held that the inconsistency with the general plan, despite having the requisite
zoning,was reason enough for the Planning Director to reject the application and not
process it. Gatri at 112-115. The Hawai`i Revised Statutes requires that SMA permits
can only be approved if they are consistent with the county general plan and zoning.
HRS Section 205A-26(2)(C). Mr. Henderson's SMA permit application for his property
is inconsistent with the Hawai`i County General Plan designation of industrial and the
Director properly refused to process the application.
8
III. CONCLUSION
This Board should uphold the Planning Director's decision to return the change'of
zone application and SMA Use Permit applications since the Director's decision is
consistent with the Hawai`i County Charter, the General Plan, and Appellant has another
remedy available to him.
Dated: Hilo, Hawai'i, October 14, 2003
CHRISTOPHER J. YUEN, PLANNING
DIRECTOR, COUNTY OF HAWAII,
Appellee
Byer ' 7, / i :. � �
.:0; :Y JEAN LEITHEAD-TODD
Deputy Corporation Counsel
Attorney for Appellee
9
COI_p\lTY OF HAWAJ.`I
JERE_ . I3.EIN ERSON, BOA No. 03-008
Appellant, CERTIFICATE OF SERVICE
vs.
CHRISTOPHER J. YUEN, PLANNING
DIRECTOR, COUNTY OF HAWAII,
Appellee.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing document was served upon the
following, by mailing same, postage prepaid on October 14, 2003:
JERRY M. HIATT, ESQ.
DAVID R. HARADA-STONE, ESQ.
65-1279 Kawaihae Road
Parker Square, Suite 204
Kamuela, Hawai`i 96743
Attorneys for Appellant Jere A. Henderson
I ALSO HEREBY CERTIFY that a copy of the foregoing document was served
upon the following, by hand-delivery on October 14, 2003:
PATRICIA K. O'TOOLE, ESQ.
Deputy Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorney for Board of Appeals, County of Hawai`i
'4'd1.1" 4-61
B 6-(:Y JEAN LEITHEAD-TODD
Deputy Corporation Counsel
County of Hawai`i
y'qY OF„.°.,
/�
Harry Kim ¢•' 9• �. :
` Lincoln Ashida, Esq.
Corporation Counsel
Office of the Corporation Counsel
Page 2
April 27, 2001
that the existing town can expand in that direction, and it may give a general indication of
the ultimate size, but it does not indicate a precise boundary for the town. There is a band
of"Open" designation along the shoreline which could be scaled off at 300-500 feet
wide, but this does not designate a policy of a 300-500 foot wide shoreline setback. It
signifies that there is a shoreline setback, but given the scale, it is not possible to
delineate an exact width on the map.
I have found many instances where zoning has been allowed that is not precisely
consistent with the LUPAG, if you try to precisely scale the map. For example, the Kona
Industrial subdivision is partially within the "High Density" urban core of Kailua-Kona.
Industrial uses are not permitted within "High Density." The Ritz-Carlton Hotel is
located at least partially, and maybe completely, on an "Open" LUPAG designation,
although there is a "Resort" designation in the immediate vicinity.
I must conclude, as have previous planning directors, that there must be some discretion
to interpret the map. There have been a number P of formal "map interpretations"; more
often zoning has proceeded without this being raised as an issue.
That being said, the key question is the extent of discretion. Unfettered discretion makes
the LUPAG map completely worthless. I agree with an opinion orally given by Pat
O'Toole that there is no discretion when the map area in question was enacted by an
ordinance which specifies metes and bounds, or by a specific parcel, as has sometimes
been the case for interim amendments. I also feel that there are circumstances where the
intent of the map is clear. Among these are the"conservation" designations that appear
to coincide with the state land use conservation district boundaries or forest reserve
boundaries. I don't think the director has the discretion to "map interpret"those areas to
include adjacent properties. Another example would be where the map clearly covers an
existing facility, like a mill site being shown as industrial. In those circumstances, the
map would be interpreted to cover the existing mill area, and perhaps something larger,
depending upon the size of the area shown on the map.
1 also think that in where a road appears to be the boundary between markedly different
LUPAG categories, the road ought to be respected as a boundary. For example, if an
urban use is only shown on one side of a road, one should not interpret it to be on the
other side of the road. I think that where an urban use is clearly shown on one bay it
should not be extended or moved to the next bay.
Lincoln Ashida, Esq.
Corporation Counsel
Office of the Corporation Counsel
Page 3
April 27, 2001
Areas where the map can be interpreted would include examples like a future resort
shown on a particular bay. The map was not done to exactly locate the hotel site, which
could be determined in the zoning process, but still be consistent with the LUPAG map.
Where the boundary is inherently imprecise—for example, where an area of urban
expansion or low density has been drawn around an existing residential area—if a
proposal comes forward to rezone the property somewhere near or past the apparent
fringe, the more cogent question may be whether it is right to rezone the fringe before the
adjoining land closer to the existing urban area has been developed.
I also feel that there should be some ultimate limit in map interpretation vs. the exact
location shown on the LUPAG—something between five hundred and a thousand feet, in
my opinion.
On the specific question of the Puainako St. property, my office has extensive files which T give a chronology of what happened. In brief, the question is whether the 1989 General
�_ Plan amended the map to include this property within the "High Density" area of Hilo,
even though the map itself did notchange to include it. Because the original amendment
creating the High Density area at Prince Kuhio Plaza was by metes and bounds, it is clear
that this area was not High Density before the 1989 amendments. I would be happy to
share what we have in response to any question that may come from the council.
Sincerely,
CHRISTOPHER J.' N
Planning Director
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WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI`I
HEARING TRANSCRIPT
MARCH 3, 2016
A regularly advertised hearing on County Council Initiated Bill 102 (Re: REZ 07-073,Jin Soo
and Ran Hui Iida) was called to order at 9:57 a.m. in the County of Hawai`i Aupuni Center
Conference Room, 101 Pauahi Street, Hilo, Hawai`i with Chairman Charles Heaukulani
presiding.
COMMISSIONERS PRESENT: Charles Heaukulani, Donn Dela Cruz, Gregory Henkel, Donald
Ikeda, Myles Miyasato, and Raylene Moses.
ALSO PRESENT: Duane Kanuha (Planning Director), William Brilhante (Assistant
Corporation Counsel representing the Planning Director), Danny Patel (Deputy Corporation
Counsel for the Windward Planning Commission), Daryn Arai (Planning Program Manager),
Jeff Darrow (Staff Planner), Christian Kay(Staff Planner), and Sarah Hata-Finley(Commission
Secretary).
And approximately 10 people from the public in attendance.
INITIATOR: COUNTY COUNCIL INITIATED (Bill No. 102 Re: REZ 07-073)
A Bill amending Ordinance No. 10-110 (Applicant: Jin Soo and Ran Hui Iida), which amended
Ordinance No. 08-39, which originally reclassified lands from Single Family Residential-10,000
square feet (RS-10) to Neighborhood Commercial-20,000 square feet(CN-20) zoning district for
23,559 square feet of land. Bill No. 102 proposes the amendment of Ordinance No. 10-110 by
extending the deadline to submit required water commitment payment and complete the
proposed commercial development and eliminate various required improvements to the Kilauea
Avenue frontage of the subject property which is located along the west side of Kilauea Avenue,
approximately 420 feet south of the Kilauea Avenue-Puainako Street intersection at Waiakea,
South Hilo, Hawaii, TMK: 2-2-004:121.
HEAUKULANI: We'll move to number four on the agenda, Initiator—County Council Initiated
Bill No. 102 regarding REZ 07-073. Daryn, if you would.
ARAI: Thank you, Mr. Chairman. Good morning, Commissioners. If I may direct your
attention to the presentation screen. What you have before you is County Council Bill No. 102
regarding properties owned by Jin Soo and Ran Hui Iida, and it's regarding proposed
amendments to Change of Zone Ordinance No. 10-110, Rezoning File No. 07-073.
The subject of this bill is this particular property here outlined in black. It is located on the
mauka or west side of Kilauea Avenue, and to give you some reference points, this street here
running left to right is Puainako Street. The area designated Commercial in the pink color is
KTA Super Stores. Puainako Town Center is located adjacent to the south. With the property
1
being located on the west side of Kilauea Avenue, you may see the property currently maintains
a Neighborhood-Commercial zoning district which is the pink color that is also shared not only
with KTA Super Stores and Puainako Town Center,but also properties at the corner of Puainako
Street which includes Kai Store and the Maebo Noodle Factory,and these properties are located
to the north.
Further reference, and that might help you to orient, is the Klein Chiropractic Complex located
on the property immediately to the south of the subject property, and that's being highlighted by
my pointer.
This map is your zone district map which not only indicates the Commercial zoning in the area
highlighted in the pink color but also residential uses highlighted by the various shades of
yellow.
This is a depiction of the General Plan Land Use Pattern Allocation Guide Map with the subject
property being situated in an area designated for Low Density uses which is primary residential
type of uses. In the surrounding areas represented by the orange color is Medium Density Urban
which is typical of Multiple Family Residential uses as well as commercial. And,here in the
dark red is the High Density Urban designation which accommodates regional type of
commercial uses and which does encumber the property, the KTA Complex, as well as spills
over onto the Prince Kuhio Plaza area.
Bill—Council Bill No. 102—seeks to amend the Change of Zone Ordinance No. 10-110 by
adding an additional time of 180 days by which to submit daily water usage calculations as
required by Condition B of that ordinance; adding five additional years to relocate the proposed
seed shop to the subject property as required by Condition D of the same ordinance; and finally,
replacing the requirement for the installation of curb, gutter, and sidewalk with improvements
with paved shoulders as required by Condition G.
This is a site plan of the subject property with Kilauea Avenue located off to your right. The
pink colors represent existing structures with the pink color on the west end of the property being
the existing Lani's Beauty Salon. This pink color here is an existing garage as well as, this teal
color is the proposed location of the store that they wish to establish. This would necessitate the
renovation of an existing 500-square foot residence and its expansion to roughly 1,500 square
feet to accommodate the proposed relocation of the seed shop to the subject property. You may
also note the proposed parking lot configuration that they're looking to accommodate and
support the proposed use.
This is a photo of the street frontage directly fronting the subject property, Kilauea Avenue.
You may also note the unimproved nature of the existing frontage along the subject property
which is primarily driveway approaches and grass swales.
This is looking to the south along Kilauea Avenue. The subject property is in the area where
these two large trees are located, and as you can see, the continued treatment or shoulder
treatment along the mauka side of Kilauea Avenue.
2
And, finally, looking north along Kilauea Avenue, with the property off to your left indicated by
the signage here for Lani's Beauty Salon. And, again, this is Klein Chiropractic off to your left.
And,again,the grass shoulder treatments along Kilauea Avenue.
The Director is recommending an unfavorable recommendation on Bill 102 as currently written,
and the reasons for that is due to inconsistencies with the General Plan specifying the area for
Low Density Urban and requiring curb, gutter, and sidewalk improvements along Kilauea
Avenue.
The Director, although offering an unfavorable recommendation as currently written, is also
offering suggestions to the County Council that expresses no objection to the additional time
being requested by the Applicant to provide the water uses calculation as required by Condition
C or to complete the proposed commercial development as required by Condition D.
The Director is also offering for the Commission's consideration the option of a pro rata share
for the installation of curb, gutter, and sidewalk improvements when the program for such
roadway improvements are formally established by the Department of Public Works.
So, with that, that concludes our presentation. I stand ready to answer any questions that you
may have.
HEAUKULANI: Thank you, Daryn. Commissioners, any questions for staff? Thank you.
Councilman Onishi, were you here this morning to make a statement on this matter? Or is there
anyone here—? We have no one signed up to testify. Is there anyone here that would like to be
heard on this matter? Fair enough. Commissioners, I would entertain a motion to close public
testimony.
IKEDA: Move to close public testimony.
HEAUKULANI: By Commissioner Ikeda.
MOSES: Second.
HEAUKULANI: Thank you, Commissioner Moses. We've got a motion to close public
testimony by Commissioner Ikeda; second by Commissioner Moses. Any discussion?
HENKEL: I thought I saw someone in the—that wants to testify.
HEAUKULANI: Oh, I'm sorry. Is there someone?
HENKEL: Sorry.
HEAUKULANI: It's a morning when everyone's shy, but I have a feeling the next matter on the
agenda is going to clean that up.
3
ARAI: And,just to clarify, because this is a Council initiated bill, we're actually speaking
directly to the bill that was introduced by the County Council. It is not an applicant initiated
request.
HEAUKULANI: Understood.
ARAI: So, that's where the awkwardness occurs.
HEAUKULANI: Yeah, understood, but if no one is going to be heard on that, I'm not sure if we
took it. We had a motion by Commissioner Ikeda to close public testimony; second by
Commissioner Moses. No discussion. All in favor, please signify by saying aye.
COMMISSIONERS: Aye.
HEAUKULANI: Opposed? None. Motion to close public testimony carries. Commissioners,
a motion for action,please.
IKEDA: Is there—can I ask a question to the Director?
HEAUKULANI: Certainly.
IKEDA: Mr. Kanuha, I approved—or how shall I say—I agree with your suggestion. Do we
have to vote this down or could we approve and just eliminate his, you know,the option that he
doesn't want to pay his, you know, the frontage, and just put in the offer options for pro rata
share? Because, I kind of agree with exactly what you're stating, and somehow, whatever came
out, wasn't exactly, you know, as it stated, so maybe I have to ask Mr. Patel. Do we have to vote
this down and have the—
PATEL: Your recommendation can be whatever this Commission decides it wants it to be. So,
if it includes some of what the Director's recommendation was and some, and deleting some of
what that recommendation was—
IKEDA: —Right
PATEL: —You could do that. But, that would be by proper motion and vote—
IKEDA: —Okay—
PATEL: —of the Commission.
ARAI: Again, bear in mind that, sorry—bear in mind that the purpose of transmitting Bill 102
down to you is to collect recommendations as well as comments so, again, it could be a specific
motion whether to go unfavorable as recommended by the Director of if you feel favorable,
that's at your discretion. But, it could also include as you counsel suggested, the recommended
4
suggestions,because, again, the whole purpose of this is to also collect comments and
recommendations.
IKEDA: Mr. Patel,if I vote for a favorable recommendation, then can I make that amendment
after the—have a second?
PATEL: So, it's going to be a favorable recommendation based on the Planning Director's
findings and recommendation but with an amendment—
IKEDA: —I want to make an amendment.
PATEL: Yeah, you could.
IKEDA: Okay.
PATEL: But you would identify the amendment in your motion, though.
HEAUKULANI: It doesn't have to be two steps. You could do it at one time.
IKEDA: Mr. Chairman, I move that a favorable recommendation be forwarded to the County
Council on Bill 102 regarding REZ 07-073 based on the following, for the following reasons. I
believe that I would like to—can I make an amendment later or do I make the amendment now?
Do I state my—
PATEL: Whatever way you feel is going to be clearer.
IKEDA: That's it, then, I want to make the amendment later—or do I make the amendment
now?
PATEL: Mr. Chair, if we could take a short recess, then I can confer with Commissioner Ikeda
to help him, I guess, phrase the motion he wants to make.
HEAUKULANI: I think we're due for a break anyway. Let's—ten minutes. We're in recess.
Chairman Heaukulani called a recess at 10:10 a.m., and the meeting was reconvened at 10:25
a.m.
HEAUKULANI: I'm going to call this meeting of the Windward Planning Commission back to
order. I think when we,right before we took the break, Commissioner Ikeda was in the process
of making a motion.
IKEDA: Okay, I'd like to restate my motion, please. I move that an unfavorable
recommendation be forwarded to the County Council on Bill 102 regarding REZ 07-073 based
on the Planning Director's recommendations and findings which shall be adopted as written.
5
MIYASATO: I'll second.
HEAUKULANI: I've got a—
IKEDA: Discussion?
HEAUKULANI: Go ahead, sir.
IKEDA: The reason for, the basis for my—is that I agree with the Planning Director's
recommendation options regarding Condition G which is the pro rata share for curb, gutters, and
sidewalk improvements when a program for such improvements, formally established by the
Department of Public Works.
HEAUKULANI: Any further discussion? Daryn, if you could please restate the motion and do
a roll call vote for us, please?
PATEL: Sorry, if I could just really brief, Mr. Chair, clarify.
HEAUKULANI: Fair enough.
PATEL: So, you're saying that the option proposed by the Planning Director in his
recommendation regarding Condition G, if that was, if that was already written in what was sent
down for your review, it would have been a favorable recommendation?
IKEDA: Well, what happened is the way is written, you,he was,he had to do it right now while
I want to give him the option when the Department of Public Works do make a program to make
curb, gutters, and sidewalks.
PATEL: Regarding Condition G?
IKEDA: Right.
HEAUKULANI: Any further discussion? Daryn?
ARAI: Okay, I'm ready for the roll.
HEAUKULANI: Yes, please.
ARAI: Okay, yes, thank you. Sorry, Mr. Chairman. Okay, Commissioner Ikeda?
IKEDA: Aye.
ARAI: Commissioner Miyasato?
MIYASATO: Aye.
6
ARAI: Commissioner Dela Cruz?
DELA CRUZ: Aye,
ARAI: Commissioner Henkel?
HENKEL: Aye.
ARAI: Commissioner Moses?
MOSES: Aye.
ARAI: And Mr. Chairman.
HEAUKULANI: Aye.
ARAI: Mr. Chairman, motion carries with six aye votes.
HEAUKULANI: Thank you, Daryn.
The discussion ended at 10:28 a.m.
Respectfully submitted,
Sarah Y. Hata-Finley, Secretary
Windward Planning Commission
7