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HomeMy WebLinkAboutCOM 0351.005 2016-2018 Harry Kim + "�'.;r,\• Michael Yee Mayor Director • .•4�;• '��e-: /• Daryn Arai Deputy Director ,C414 West Hawai`i Office East Hawai`i Office 74-5044 Ane Keohokalole Hwy �1 .�` •G• 101 Pauahi Street,Suite 3 Kailua-Kona,Hawai`i 96740 Comity ®1 Ha%� 1 Hilo,Hawai`i 96720 Phone(808)323-4770 Phone(808)961-8288 Fax(808)327-3563 PLANNING DEPARTMENT Fax(808)961-8742 ra C. MEMORANDUM. = o, CT September 6, 2017 TO: CHAIR KAREN EOFF AND MEMBERS OF THE COMMITTEE ON PLANNING FROM: MICHAEL YEE PLANNING DIRECTOR SUBJECT: BILL 52, ADOPTS THE COUNTY OF HAWAII KA'U COMMUNITY DEVELOPMENT PLAN (CDP) In response to comments and questions from Council Members and members of the public at the August 15, 2017, Council Committee on Planning meeting, the Planning Department in collaboration with the Office of Corporation Counsel offers the attached response and rationale. Attachment Cann. No. 3 S I. Ref. To: C— Ref. Dote h 0 6 2.011 www.cohnlanningdent_com Hawaii County is an Equal Opportunity Provider and Employer pianningtc hawaiicountv.gov Ka'u Community Development Plan: Council Review September 6, 2017 Response and Rationale to Comments and Testimony The purpose of this document is to provide background and clarification on certain CDP policies and to provide Planning Department responses to written comments recently sent to the County Council. How to read this document: • Policy language is bold. • . Policy revisions based on comments previously submitted and already incorporated into the April 2017 CDP are bold and underlined. • Italics explains why the item is being referenced. • Regular text is either clarifying notes from the CDP; or as noted, sections of the Rationale and Background from the CDP Rationale document; or Planning Department Response. Land Use Policy Controls & Rationale Policy 6 (policy control) The development of visitor accommodations and any resort development should complement_the character of the area; protect the environment and natural beauty; respect existing lifestyles,cultural practices,and natural and cultural resources;provide shoreline public access; and provide affordable housing to meet demand created by the development. This policy revision is based on comments received from OHA during the 2015-2017 review and is already incorporated into the April 2017 Kau CDP. Policy 7 (policy control) With the adoption of the Ka'u CDP, Figures 2, 3,4,5, 6,and 7 on pages 43 through 48 are adopted as the official Land Use Policy Map for the Ka'u CDP planning area.The land use category definitions are identical to those used in the General Plan LUPAG map(and included in the Glossary). Future land use decisions in the Ka'u CDP planning area shall be consistent with the Land Use Policy Map boundaries, designations,and policies herein, unless the CDP and the General Plan are in direct conflict. Note: Policy 15 and Policy 16 on page 40 are follow-up County Actions to amend the General Plan to conform with the official Ka'u CDP Land Use Policy Map. Rationale & Background:The Land Use Pattern Allocation Guide (LUPAG) map in the County General Plan is a broad,flexible design intended to guide the direction and quality of future developments in a coordinated and rational manner. It indicates the general location of various land uses in relation to each other. Hawaii Planning Department Ka'u CDP: Council Review 1 State land use boundary amendments, changes in zone, project districts,subdivisions, planned unit developments, use permits,variances, and plan approval must be consistent with the General Plan and the LUPAG map. Projects or applications that are not consistent with the LUPAG map require an amendment to the General Plan,which requires an Environmental Impact Statement (EIS) and approval of the County Council. The land use category definitions used in the CDP Land Use Policy Map are identical to those used in the General Plan LUPAG map. However,the CDP land use policies that support the preferred future settlement pattern for Ka'u and related Community Objectives differ in some ways from the land use pattern designated in the current General Plan LUPAG map.Therefore, in order to fully implement the Ka'u CDP,the LUPAG map requires some amendments.Table 1: Rationale behind Necessary LUPAG Map Amendments summarizes the necessary amendments and the reasoning behind them, and Policy 15 is the County Action required to make the necessary General Plan amendments. For more information about Policy 7,see pages 15 of Appendix V4A; pages 13-17, 125-130, 188-189, and 197-198 of Appendix V4B; and Appendix V4D. This policy is referenced in Slide 31 of the Ka'u CDP presentation to Council Planning Department Response: Policy 7 does not automatically amend the General Plan/LUPAG maps. It directs future amendments to the GP's LUPAG maps. Policy 15 is the subsequent County Action directing the County to initiate these General Plan amendments. In cases of direct conflict between the CDP and the General Plan,the General Plan is controlling. Policy 8 (policy control) In the"Low Density Urban (LDU)" Land Use Policy Map category in the Kau CDP planning area, changes of zone shall only be permitted to Single-Family Residential (RS), Multiple-Family Residential (RM-7.5 or higher), Residential-Commercial Mixed Use(RCX-7.5 or higher),or Open (0). In Pahala, this policy supports a rezone of TMKs (3)9-6-002:016 & 023:034 from Agricultural (A-1a) and Industrial (ML-20 and MG-1a) to RS and/or 0 to take advantage of existing water and road infrastructure. Note that Policy 93 on page 74 specifies that the focus of future water system improvements shall be on existing systems to support infill growth within the CDP growth boundary. Rationale & Background: In the General Plan,the Low Density Urban (LDU) category is defined as "Residential, with ancillary community and public uses, and neighborhood and convenience-type commercial uses; overall residential density may be up to six units per acre."The only urban zones defined in the County Code that limit densities to six units (or less) per acre are Single-Family Residential (RS), Multiple-Family Residential (RM-7.5 or more), and Residential-Commercial Mixed Use (RCX-7.5 or more). This policy also addresses some "legacy" zoning from the plantation era. Specifically,the large acreage zoned Industrial in Pahala exceeds current industrial development, and there is large acreage zoned Hawaii Planning Department Ka'u CDP: Council Review 2 Agricultural near the village core in Pahala. Both legacies are inconsistent with preferred future settlement patterns that focus on infill residential and commercial development. For more information,see pages 125-126 of Appendix V4B. This policy is referenced in Slide 31 of the Ka'u CDP presentation to Council Planning Department Response:this policy limits the range of options available for rezones in the Low Density Urban category used in the General Plan LUPAG. The purpose is to clearly articulate what types of rezones the County would support in the future (based on infrastructure and community priorities). This is a controlling policy in that it guides future zoning decisions, but it does not affect current zoning or legal entitlements. Policy 9 (policy control) If infill capacity is exceeded in areas designated "Low Density Urban (LDU)"on the Land Use Policy Map in Pahala,it would be appropriate to designate TMK(3)9-6-005:001 as LDU to take advantage of existing water and road connections. Rationale & Background: Existing infill potential should accommodate growth projections in Pahala through 2030.There is a diverse selection of vacant urban land to purchase and develop for urban uses. In Pahala,via subdivision of parcels under existing zoning and without any water system improvements, approximately 43 additional buildable lots could be created (456 are currently occupied). However, as needed,future expansion should first be accommodated with the extension of water service to TMKs (3)9-6-005:045, (3)9-6-005:036, and (3)9-6-005:054, portions of which are zoned RS. 51- acre TMK(3)9-6-005:001 is currently zoned Ag-20a and planted in macadamia, but it sits adjacent to a water line and two roads, and the subdivision directly makai was designed to accommodate street extensions mauka,so it would be a logical site for future town extension. It would require water system improvements and, if the number of dwellings exceeds 49, connection to the wastewater system. For more information, see pages 125-126 of Appendix V4B. This policy is referenced in Slide 31 of the Ka'u CDP presentation to Council Planning Department Response:This policy directs an option for an urban boundary extension in Pahala if existing infill options are exceeded. This policy is based on the accessibility of existing infrastructure (water and roads)to this parcel. This policy is directive on when/where to extend Pahala's urban growth boundary; it does not change the current zoning or legal entitlements of the subject parcel. Policy 12 (policy control) Outstanding natural or cultural features, such as scenic spots,water courses,fine groves of trees, heiaus, and historical sites and structures,shall be preserved during subdivision. (HCC 23-26) Hawaii Planning Department Ka'u CDP: Council Review 3 The following comment was received from Yeh& Moore August 2017: "Note that the CDP makes no distinction between historic sites which need not be preserved under existing law,providing SHPD with authority to determine which sites must be preserved, or for which data recovery may be done..." Planning Department Response: This policy is a direct quote from existing provisions in the Subdivision Code 23-26. Policy 28 (policy control) On lots that are at least partially within the Special Management Area (SMA) in the Ka'u CDP Planning Area,establish shoreline setbacks at the earliest stages of the land use planning and development process at a minimum of 1,320 feet(1/4-mile); however,the applicant may request that the setback be reduced by providing information to the Department, including information required for SMA review, which would allow for an assessment of the proposed activity's impacts and in consideration of the physical limitations of the property. For lots created prior to the date of adoption of the CDP feet or less,an average lot depth of two hundred the shoreline setback line shall be 40 feet. Rationale & Background: Policy 28 is one of several complimentary land use policies, County actions, DLNR actions, and community actions in Section 4.2 that,when implemented together, help achieve the community's objectives to limit development on the shoreline and to protect coastal ecosystems and cultural assets. These protections are one of the highest priorities for the Ka'u community.The undeveloped coastline is part of the community psyche,tied closely with generations of stewardship by native Hawaiians as well as the subsistence and recreational uses woven into contemporary local culture.The Ka'u coastline is rich in archeological and other cultural resources, including the Ala Kahakai National Historic Trail and many other historic resources that have yet to be surveyed. In addition,the quality and singularity of coastal ecosystems in Ka'u are unparalleled, including anchialine pools,turtle nesting sites, monk seal habitat, and Class AA coastal waters.Throughout Ka'u,there are also picturesque, sweeping views of and along the coastline. Importantly,the common "jobs vs. environment" debate isn't a factor along the coastline in Ka'u. Punalu'u already has the land use entitlements in place to serve as the center of visitor activity in Ka'u. None of the CDP strategies inhibit use of these entitlements to redevelop the area; in fact,the CDP outlines a process for revitalizing Punalu'u. No other coastal area in Ka'u is appropriate for resort development. Moreover, "farm dwellings" and other homes in close proximity to the shoreline provide little economic benefit to the community. In fact, as the Steering Committee noted during its deliberations,they would spoil one of the community's greatest economic assets—its unique, undeveloped coastline. For more information, see page 89, 94, 104, and 106 of Appendix V4A. Impact of the Setback Policy(Policy 28): Trigger: Policy 28 is triggered by proposed development on lots that are at least partially within the Special Management Area (SMA) in the Ka'u CDP Planning Area.The assumption is that the SMA includes all areas where structures have the potential for coastal impacts. Along most of Ka'u's shoreline,the SMA extends—500 feet mauka, but between Punalu'u and Honu'apo, it extends to the Hawai'i Planning Department Ka'u CDP: Council Review 4 highway, and at South Point, it extends—5,000 feet inland.This language was based, in part, on Kauai County's shoreline setback ordinance,which applies to lands that are not abutting the shoreline but located within five hundred (500)feet of the shoreline. Default: Policy 28 establishes the shoreline setback at a minimum of 1,320 feet (1/4-mile). Unlike the current default of 40 feet,this is not completely arbitrary. It is based on 1)an assessment of the distance of coastal resources from the shoreline in Ka'u (as mapped in Appendix V4A) and 2)the'A-mile standard used by planners to assess the "walkable"distance to sites of interest. Note that most of the public comment during review of the Draft CDP called for much deeper setbacks— a full mile or more. Often cited was the 2006 recommendation from the South Kona-Keil Coastal Conservation Task Force to establish a 1.5 mile "no development"shoreline setback. Applicant's Prerogative: Importantly, Policy 28 provides the applicant the opportunity to make a case for a different setback by providing information specific to the site and to the proposed activity's impacts. Properties Impacted:The application of this policy would not take any entitled land use rights away. Buildable lots and urban-zoned areas in Punalu'u would retain their rights. Park facilities are either minor structures or eligible for a variance. Otherwise, most coastal parcels in Ka'u are large, deep, and zoned Agriculture outside the near-shore conservation district strip,so a setback wouldn't limit permitted uses. This policy is referenced in Slide 31 of the Ka'u CDP presentation to Council and comments from Yeh& Moore (August 2017)noted this: "The authority to establish and regulate shoreline setbacks is provided under Chapter 205A, HRS, to the Planning Department, which has promulgated rules within its authority." Planning Department Response: • Coastal protections are one of the highest priorities for the Ka'u community; • All coastal areas in Ka'u (typically to 200-300 feet inland) are in the State Conservation district; • Counties are given the option of establishing setbacks by rule or ordinance at distances greater than 40 feet (HRS section 205A-45); other counties have adopted shoreline setback ordinances, specifically Kauai and City and County of Honolulu; • Policy 28 is triggered by proposed development on lots that are at least partially within the Special Management Area (SMA) in the Ka'u CDP Planning Area. • Policy 28 establishes the shoreline setback at a minimum of 1,320 feet (1/4-mile). o It is based on 1) an assessment of the distance of coastal resources from the shoreline in Kali (as mapped in Appendix V4A) and 2)the'A-mile standard used by planners to assess the "walkable" distance to sites of interest. • Policy 28 provides the applicant the opportunity to make a case for a different setback by providing information specific to the site and to the proposed activity's impacts. • Policy 28 does not take away entitled land use rights; buildable lots and urban-zoned areas in Punalu'u retain their rights and park facilities could be granted shoreline setback variances, if necessary; Hawai'i Planning Department Ka'u CDP: Council Review 5 • Most coastal parcels in Ka'u are large, deep,and zoned Agriculture, so this setback would not limit permitted uses, but it may limit structures and activities within the shoreline setback area as per Planning Department Rule 11. Policy 29 (policy control) No development, including subdivision,shall be approved in the SMA unless the development will not have any substantial adverse environmental or ecological effect. (HRS 205A-22(3) &205A-26(2)(A)) Pursuant to Planning Commission (PC) Rule 9-10(b)(5) & (11), and in order for the Planning Director to accurately evaluate whether the proposed action will have a substantial adverse effect, pursuant to PC Rule 9-4(e)(4),the Director shall require that SMA Use Permit Assessment and Use Permit applications include all of the information necessary to assess the proposed activity's impacts in the Special Management Area, including but not limited to: • A description of the environmental setting and natural resources in the area, including an assessment of impacts on rare, threatened, or endangered species or their habitat and on fresh and coastal water quality(PC Rule 9-10(b)(5)(A) & (6) and 9-10(h)(7), (8), & (9)); • A description of valued cultural resources or historical sites in the area, including the extent to which traditional and customary native Hawaiian rights are exercised in the area (PC Rule 9-10(b)(6) & (h)(1)); • An assessment of impacts on coastal scenic and open space resources and view planes, including those outlined in the General Plan, the Community Development Plan, and other adopted plans, as well as the line of sight toward the sea from the state highway nearest the coast and along the shoreline (HRS 205A-2(b)(3) (A), HRS 205A-2(c)(3)(B), HRS 205A-26(3)(E), and PC Rule 9-10(h)(1)); • Identification and detailed information of existing public access to and along the shoreline to the specifications required by Na Ala Hele and the Ala Kahakai National Historic Trail (PC Rule 9- 10(b)(10)); • An assessment of impacts on hazard risk, including flooding,tsunami, and coastal erosion and/or sea level rise over the life of the development (PC Rule 9-10(h)(9)); • A description of the relationship of the proposed action to land use plans, policies, and control of the affected area, including the General Plan and Community Development Plan (PC Rule 9- 10(b)(5)(B))• Any development permitted, including those determined to be exempt from the definition of development in Planning Commission Rule 9 (pursuant to Planning Commission Rule 9-10(e) & (g)), shall be subject to terms and conditions to achieve CZM and CDP objectives and policies, including conditions that protect natural, cultural, historic, and recreational resources; preserve agricultural land, open space, and view planes; ensure access; mitigate impacts of coastal hazards; limit coastal development; and concentrate new development(particularly if it is not coastal dependent) on vacant land in town/village centers (before converting agricultural land to residential uses), and discouraging speculative residential development. Conditions could include but not be limited to setbacks, restrictions on artificial light, lateral and mauka-makai access requirements, dedication of conservation Hawai'i Planning Department Ka'u CDP: Council Review 6 and trail corridor easements,cooperation with efforts to manage access and use of coastal resources, minimizing the number of lots abutting or near the shoreline, and maximizing the use of land in the State Land Use Urban district and/or urban LUPAG categories. The following comment was received from Yeh& Moore August 2017: "Similarly, the authority to issue SMA permits also stems form Chapter 205A and is vested in the Planning Department and Planning Commission. Exempt actions are not subject to conditions". Planning Department Response: Planning Commission Rule 9-10(g) allows the Director to impose conditions with exemption determinations in the Special Management Area. Policy 39 (policy control) The Urban Growth Boundary between agricultural areas (designated "Important Agricultural Land"or "Extensive Agriculture") and developed areas (designated "Rural," "Low/Medium/High Density Urban," "Industrial," or "Resort") is parcel-specific in the Ka'u CDP planning area, except at Punalu'u and the Low/Medium Density Urban and Industrial nodes in Ocean View. Areas outside designated developed areas shall be preserved as agricultural lands, open space, scenic view planes, and natural beauty areas, unless the CDP and the General Plan are in direct conflict. Rationale & Background: Urban Growth Boundaries (UGB) identifies areas to be protected for • agriculture and areas where growth will be encouraged. UGBs are intended to accommodate anticipated growth and to separate areas appropriate for future development from areas intended for agricultural use.This is sometimes referred to as "Town and Country" zoning,which requires that development occur only in towns and villages,with the surrounding rural areas remaining undeveloped and available for farming,forestry, natural area preservation, and recreation. The LUPAG map includes land use categories that effectively establish an UGB between the agricultural categories (Orchard, Extensive Agriculture,and Important Agriculture) and the urban categories (Rural, Low, Medium, and High Density Urban, Industrial, Urban Expansion, and Resort). This policy clarifies that the UGB established with the Ka'u CDP Land Use Policy Map establishes parcel- specific UGBs. Some areas are excluded because the LUPAG category boundaries in those areas are intentionally not parcel-specific. For more information, see page 141 of Appendix V4A. This policy is referenced in Slide 31 of the Ka'u CDP presentation to Council Planning Department Response: this policy makes clear that the Urban Growth Boundaries in the Ka'u CDP planning area (with the exception of Punalu'u and part of Ocean View) are parcel-specific. The General Plan LUPAG designations are a "broad,flexible design intended to guide the direction and quality of future developments in a coordinated and rational manner"to indicate"the general location of various land uses in relation to each other" (GP 14.1.1) and this is where the Ka'u CDP is intentionally providing more specificity to guide future rezones. This policy limits the range of change of zone options outside urban growth areas in order to preserve agricultural areas and open space; it does not Hawai'i Planning Department Ka'u CDP: Council Review 7 change/affect existing zoning or legal entitlements and it specifically states that Policy 39 is in effect unless the CDP and General Plan are in direct conflict. Policy 43 (policy control) When considering applications to consolidate and resubdivide pre-existing lots of record,the Director of Planning shall only permit lots less than one acre in size in the State Land Use Agricultural district if the applicant clearly demonstrates that an unreasonable economic hardship cannot otherwise be prevented or land utilization is improved relative to the objectives and policies of the CDP. (HRS 205- 5(b)) The following comment was received from Yeh& Moore August 2017: The subdivision code is similarly being amended by this language, when County subdivision law recognizes that pre-existing lot configuration does not add density or implicate health and welfare issues. Planning Department Response:This reiterates HRS 205-5 (b)that the minimum lot size in the State Land Use Agricultural District in 1 acre and provides guidance to the Planning Director to consider when making decisions about consolidating and resubdividing pre-existing lots of record. This policy provides guidance but does not amend the subdivision code. Policy 56(policy control) In the Ka'u CDP Planning Area,the environmental report for proposed changes of zone on property that may impact open space,view planes, and areas of natural beauty shall include view plane and,as appropriate, line-of-sight analysis and,to facilitate implementation of Policy 10, proposed conditions to mitigate scenic impacts. (HCC 25-2-42) Rationale & Background:A County environmental report is required as part of a change of zone application.This report is an informational document that contains a description of the physical,social, historical, economic, and natural resource consequences of a proposed action, including but not limited to a discussion of alternatives to the proposed action, any environmental effects which cannot be avoided should the proposal be implemented,the relationship between local short-term uses of the environment and the maintenance and enhancement of long term productivity, any irreversible and irretrievable commitments of natural resources which would be involved in the proposed action, and an analysis of the proposed action. In order to achieve the policy intent of the CDP (i.e.,to protect open space, public views, and areas of natural and scenic beauty), environmental reports for proposed changes of zone on property that may impact open space,view planes, and areas of natural beauty should include an appropriate view plane and, as appropriate, line-of-sight analysis.These scenic features are defined in other policy documents and in the CDP as follows: • Open space:The official Ka'u CDP Land Use Policy Map designates the shoreline, agricultural lands, and mauka forests as open space to be preserved and protected.These areas fall within the "Conservation," "Open," "Important Agriculture Land," and "Extensive Agriculture" LUPAG categories in the Policy Map. Hawai'i Planning Department Ka'u CDP: Council Review 8 • Viewscapes and scenic vistas:The General Plan list of natural beauty sites includes the scenic view of shoreline between Pahala and Punalu'u,the view of Mauna Loa from Volcano-Ka'u Highway, and the lava flows of 1868, 1887, & 1907, mauka and makai of the stretch of highway between Kahuku Ranch and the Ocean View subdivisions. Based on public input,the Ka'u CDP Community Profile also identifies the scenic lookout between Whittington Beach Park and Na'alehu on the makai side of highway as a breathtaking panoramic view of the shoreline. • Areas endowed with natural beauty:The General Plan identifies natural beauty sites, including Pohue Bay, South Point, Mahana Bay, Waiakukini, Ka'alu'alu Bay, Honu'apo, Kawa Bay, Ninole Cove, Punalu'u, and prominent pu'u (cinder cones): 'Enuhe, Makanau, Kaiholena, and One. For more information,see pages 109, 134,and 152 of Appendix V4A. This policy is referenced in Slide 31 of the Ka'u CDP presentation to Council. Planning Department Response:This policy stipulates that a view plane& possibly a line-of-sight analysis be included in the already-required County environmental report in the case of rezone applications. It also requires an applicant propose mitigation measures if the proposed development will impact view plane/open space. This policy expands on the required content to be filed within an Environmental Report; but it does not otherwise control or prohibit rezones and it does not affect/change current permitted uses. Policy 57 (policy control) In the Ka'u CDP Planning Area, applications for Special Permits that may impact open space,view planes, and areas of natural beauty shall include view plane and, as appropriate, line-of-sight analysis and proposed performance conditions to mitigate scenic impacts. (Planning Commission Rule 6- 3(a)(5)(G), 6-7,&6-8) Rational & Background: Special Permits may be approved only when, among other things, "the proposed use will not substantially alter or change the essential character of the land and the present use" and "the request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans." In the Community Objectives for Ka'u, "viewscapes that exemplify Ka'u's rural character" are elements of the essential character of the landscape that may be impacted by uses proposed in Special Permit applications. Moreover,the "Policy Intent" is to protect open space, natural and scenic beauty, and public views. Also see bullet points above in Policy 56. Planning Commission Rule 6-8 allows the Planning Commission to approve a Special Permit (or recommend its approval to the State Land Use Commission)with appropriate performance conditions. For more information,see pages 109, 135, and 152 of Appendix V4A. This policy is referenced in Slide 31 of the Ka'u CDP presentation to Council Planning Department Response:This policy is intended to protect those aspects of character of the land in relation to open space and scenic resources, as much as possible,without infringing on the Planning Commission's authority to make informed judgments based site-and use-specific characteristics. This Hawai'i Planning Department Ka'u CDP: Council Review 9 policy relates to Special Permit requirements specifically; it does not affect/change current permitted uses or land use entitlements. Policy 58 (policy control) In the Ka`u CDP Planning Area, applications for Use Permits for wind energy facilities and telecommunications antennas and towers shall include view plane and, as appropriate, line-of-sight analysis to demonstrate how the request does not cause substantial,adverse impact to the community's character,including open space, public views, and areas of natural and scenic beauty, and proposed conditions to mitigate scenic impacts. (HCC 25-2-60&64) Rationale & Background: Use permits are permits for certain permitted uses in zoning districts that require special attention to insure that the uses will neither unduly burden public agencies to provide public services nor cause substantial adverse impacts upon the surrounding community. Telecommunications antennas and towers require a use permit in all Residential,Agricultural, and Open zones, and wind energy facilities require a use permit in the Open zone. A use permit may be granted by the Planning Commission if the proposed use is consistent with the general purpose of the zoning district,the intent and purpose of the zoning code, and the general plan and the granting of the proposed use is not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community's character or to surrounding properties. The Commission's decision shall be accompanied by a statement of factual findings supporting the decision,together with any conditions imposed upon a use permit approval.The conditions imposed by the commission shall bear a reasonable relationship to the use permit granted. In the Community ObJectives for Ka'u, "viewscapes that exemplify Kau's rural character"are aspects of community character that may be impacted by wind energy facilities and telecommunications towers and antennas. Moreover,the"Policy Intent" is to protect open space, natural and scenic beauty, and public views. Also see bullet points above in Policy 56. For more information, see pages 109, 136, and 152 of Appendix V4A. This policy is referenced in Slide 31 of the Ka?)CDP presentation to Council. Planning Department Response: Use permits are permits for certain permitted uses in zoning districts that require special attention to insure that the uses will neither unduly burden public agencies to provide public services nor cause substantial adverse impacts upon the surrounding community. This policy is intended to protect those aspects of character of the land in relation to open space and scenic resources, as much as possible,without infringing on the Planning Commission's authority to make informed judgments based on site-and use-specific characteristics. This policy does not affect/change current permitted uses or land use entitlements. Policy 80 (policy control) Appropriate public access to and along the shoreline shall be ensured as a condition of SMA exemptions and permits. (HRS 205A-26) Hawai'i Planning Department Kati] CDP: Council Review 10 The following comment was received from Yeh& Moore August 2017: "Exempted developments are not subject to the imposition of conditions under SMA law and regulation." Planning Department Response: Planning Commission Rule 9-10(g) allows the Director to impose conditions with exemption determinations in the Special Management Area. Policy 81 (policy control) Subdividers of six or more lots,parcels, units,or interests shall be required to dedicate land for public access for pedestrian travel from a public highway or street to the land below the high-water mark on any coastal shoreline or to areas in the mountains where there are existing facilities for hiking, hunting,fruit-picking,ti-leaf sliding,and other recreational purposes, and where there are existing mountain trails. (HRS 46-6.5 and HCC 34-4(c)) The following comment was received from Yeh& Moore August 2017: Chapter 34 of the Code already has a set of public access requirements with the requirements for providing public access. Planning Department Response: This is an affirmation of HCC 34 and HRS 46-6.5. This policy links existing public access requirements from HCC 34 and HRS 46-6.5 but does not amend code. Section 2.4 Types of Strategies Policy Controls:These limit the range of decisions that can be made in the future, like land use policies that specifically designate future settlement or transportation patterns. These binding, sometimes restrictive policy controls often include use of the term "shall," which,from a legal standpoint, means the policy is imperative or mandatory. The suggested language clarification was received from Yeh& Moore August 2017 regarding amending the definition of Policy Control: Policy Controls: These statements of policy provide more specific development guidelines to be considered by the Council and County agencies when considering or reviewing zoning,subdivision, grading, SMA or other permit applications limit the range of decisions that can be made in the future, like land use policies that specifically designate future settlement or transportation patterns. These Wig, sometimes restrictive policy controls must be considered in the decision making process, when the regulatory framework allows. often include use of the term "shall,"which,from a legal standpoint, Planning Department Response:Suggested language is not recommended due to the Missler decision. Hawaii Planning Department Ka'u CDP: Council Review 11 Other Policy Suggestions and Comments Policy 68 (county action) Encourage the use of Hawaiian plants (indigenous and Polynesian-introduced plants) by state, county, and private landowners in order to support a Hawaiian sense of place,to ensure that our cultural heritage is reflected in landscaping,and to help reverse the displacement and decline of Hawaiian plants. This policy revision is based on comments received from OHA during the 2015-2017 review is already incorporated into the April 2017 Ka'u CDP. Policy 79 (policy intent) Ensure appropriate public access to the shoreline, public trails, hunting areas, scenic places and vistas, and significant historic sites, buildings,and objects of public interest.Additionally,ensure access for cultural practitioners. (GP 6.2(b), 7.3(a), and 8.3(r)) This policy revision is based on comments received from OHA during the 2015=2017 review and is already incorporated into the April 2017 Ka'u CDP(this was formerly Policy 78 in the Draft CDP). Policy 90(county action) Implement protocols for receiving community input at meetings in Ka'u during capital project siting and design. Consult with and solicit input from community members with generational knowledge to minimize the impact of proposed changes to the use of land on cultural practices,cultural sites, and culturally significant areas, including burials. This suggested policy revision is based on comments received from OHA during the 2015-2017 review and is already incorporated into the April 2017 Ka'u COP(this was formerly Policy 89 in the Draft CDP). Policy 142 (county action) Encourage the development of alternate energy resources, providing they complement existing agricultural and cultural uses and preserve ecologically and culturally significant areas." This suggested policy revision is based on comments received from OHA during the 2015-2017 review and part of the suggestion is incorporated into the April 2017 Ka'u CDP(this was formerly Policy 134 in the Draft COP). Policy 147(county action) Hawai'i Planning Department Ka'u CDP: Council Review 12 Encourage the development of a visitor industry that is in harmony with the character of the area and environmental and social goals of residents provided that such development shall be permitted subject to conditions that ensure the long-term protection of cultural practices and natural and cultural resources in these and adjacent areas. (GP 2.3(c), 14.7.5.9.2(a)) This suggested policy revision from OHA (underlined) was considered but not incorporated into the 2017 CDP(this was formerly Policy 139 in the Draft CDP). Planning Department Response:This policy is a reiteration of existing General Plan policies 2.3 (c) "Encourage the development of a visitor industry that is in harmony with the social, physical, and economic goals of the residents of the County;" and 14.7.5.9.2(a), "The development of visitor accommodations and any resort development in the district shall complement the character of the area." The implication of the suggested policy revision is that the Planning Department has the authority and capacity to require and enforce permanent permit conditions on an industry. This is beyond the scope of a regional CDP, and beyond the scope of the Planning Department to require and enforce permit conditions at an industry-wide level. Note: permitted land uses are determined by zoning and, in general, are not conditional. Policy 149 (county action) Encourage the development of small family or"bed and breakfast"type visitor accommodations; provided that appropriate regulatory and enforcement mechanisms associated with short term vacation rentals are implemented." This suggested policy revision from OHA (underlined) was considered but not incorporated into the 2017 CDP(this was formerly Policy 148 in the Draft CDP). Planning Department Response:This policy is a partial reiteration of General Plan Policy 14.7.5.9.2(b). The suggested revised language from OHA changes this policy to imply that the County would not support bed and breakfast type development in Ka'u until/unless short term vacation rental regulatory controls have been implemented. Since there are currently no regulations for short-term vacation rentals in the County, and since this issue will be addressed at the County level and not at a CDP level, and since there is no way to currently confirm that controls will be put in place that would satisfy the language and intent of this condition,the suggested revision could result in arbitrarily limiting small family and bed and breakfast development in Ka'u indefinitely. This would not be consistent with the community's support for small family and bed and breakfast types of visitor development. Other Various Comments from OHA: • Evaluate the impact of infrastructure,facility, and service improvements on Native Hawaiian burials. • Evaluate the impact the development and maintenance of transportation systems on Native Hawaiian burials. Hawaii Planning Department Ka'u CDP: Council Review 13 • Where new or improved water system improvements are necessary,avoid impacts to cultural resources; if impacts are unavoidable, implement appropriate mitigation measures. • Protect, restore and enhance surface and subsurface water sources and stream habitats to support groundwater aquifer recharge, aquatic and environmental processes, and riparian scenic, recreational, and Native Hawaiian cultural resources, as well as constitutionally-protected Native Hawaiian traditional and customary practices. (footnote: OHA notes that these priorities of uses of water are constitutionally and statutorily established bases for protecting, and in some cases, restoring stream flow to support traditional and customary uses.See, e.g., In re Water Use Permit Applications, 94 Hawai'i 97 (2000);see also HRS§ 174C-2© ("[A]dequate provision shall be made for the protection of traditional and customary Hawaiian rights. . . ."). • Support the use ofstream and ground water by Native Hawaiian traditional and customary practitioners. The above new policy suggestions were made by OHA but were not incorporated into the 2017 CDP. Planning Department Response:The suggested policy additions above are considered adequately addressed. Below is a list of existing State, COH, and CDP policies articulating the CDP's intent regarding protecting Native Hawaiian rights and cultural practices. o Policy 70 Protect all rights,customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778,subject to the right of the State to regulate such rights. (Hawai'i State Constitution,Article 12, section 7; HRS§§ 1-1 &7-1; Ka Pa'akai o ka 'Aina v. Land Use Comm'n,94 Hawaii 31(2000);Pele Defense Fund v.Paty,73 Haw. 578(1992)) o Policy 90 Implement protocols for receiving community input at meetings in Ka'u during capital project siting and design. Consult with and solicit input from community members with generational knowledge to minimize the impact of proposed changes to the use of land on cultural practices, cultural sites, and culturally significant areas, including burials. • Section 1.4.1.4 Amend the fourth bullet of Section 1.6.1.4 (now section 1.4.1.4) Economic Development to read as follows: "Co-op to assist in the management of old plantation fresh water tunnel i i rin zz resources previously used for plantation agriculture." This revision is based on comments received from OHA during the 2015-2017 review and is already incorporated into the April 2017 Ka'u CDP. Hawai'i Planning Department Ka'u CDP: Council Review 14 ■ Community Objectives &CDP Vision OHA suggested several revisions to specific Community Objectives and the CDP Vision. Planning Department Response:The Community Objectives and the CDP Vision were developed early on in the CDP planning process and were adopted by the Steering Committee as foundational in developing the CDP. As such,these foundational points were not up for revision in the 2015-2017 CDP Draft Review period. • Section 4.7 Amend the first sentence of the descriptive paragraph for section 4.7 Protect and Enhance Cultural Assets to more accurately reflect the policies and purpose of that section.Specifically, amend the sentence to read as follows: "This section of the CDP prioritizes the preservation of cultural resources, historic buildings and roads, and the development of historic streetscapes and rural road. standards. This revision is based on comments received from OHA during the 2015-2017 review and is already incorporated into the April 2017 Ka'u CDP. Hawai'i Planning Department Ka'u CDP: Council Review 15