Loading...
HomeMy WebLinkAboutCOM 0064.003 2018-2020 • I)/Pc Claudia Rohr 369 Nene St. Hilo, HI 96720 crohr4@gmail.com January 26, 2018 Q CD, CDRE: Testimony Opposed to Bill 1492, Piilani Partners mi co —t AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 92 122 (REZ 727) -C.--i Planning Committee agenda �C) 37. ter- Aloha County Council, the Planning committee, and Mayor Harry Kim- CD I look forward to using the Hilo Bayfront trail system that is approved to go through the Wailoa Rr Recreation Area and I stand opposed to further consideration of a substantially different Industrial project for the subject property. Ordinance 92-122 should be repealed in its entirety. 1. Ordinance 92-122 Unequivocally Requires That The Planning Director Submit A Bill To Repeal Ordinance 92-122 To Return The Parcel To Its Original Zoning. Attempting to shoe horn in a substantially different industrial project by amending a construction deadline that expired some 21 years ago for the approved Suisan fish processing plant is disingenuous and against the rule of law. Ordinance 92-122 was clearly enacted specifically to allow the proposed Suisan fish processing facility on the basis of need and convenience of location near the boat harbor and other considerations for the general welfare of the community in 1991, at a time when Hilo's economy was less robust. Suisan subsequently established a processing plant on another industrial zone parcel, and sold this parcel at a loss. Ordinance 92-122 did not address the "need" or"convenience" of a subsequent landowner's use of the property and unequivocally required that the planning director submit a Bill to repeal ordinance 92-122 to return the parcel to its original zoning if the Suisan project was not built. [Attachment-1, Ordinance 92-122, Section 2, (N) (5).] 2. The Piilani Partners Project Is Inconsistent With The Long Range Planning That The County Council Has Approved. In 2005, the County Council adopted the En Vision Downtown Hilo 2025:A Community-Based Vision and Living Action Plan (EDI 12025). The EDH 2025 Plan serves as a guide for planning in Downtown Hilo and establishes the strategies and actions for creating an environment that is sustainable, livable and attractive to its residents, workers, and.visitors. The Hilo Bayfront Trails Planning project is the first phase of a three-phase project that will result in a • comprehensive system of multi-use pathways along Hilo Bayfront from the Wailuku River to Hilo Harbor. Phase I of the Hilo Bayfront Trails project has been funded by a grant from the Hawaii Tourism Authority Natural Resources Program with matching resources provided by the County of Hawaii. Comm. No. r , Ref. To: PPC Ref. Date FEB 1 5 2.019 r The Piilani Partners' project is situated between two major recreational parks and industrial zoning of the property and 75 dba noise levels are inconsistent with the long range planning that the County Council has approved to go through the Wailoa River Recreational Area--the Hilo Bayfront trail system which is a core element in the "EnVision Downtown Hilo 2025: Strategic Implementation for Long-term Sustainability." A well and water bottling manufacturing facility does not have a need to be specifically locate on this parcel across the street from to the Wailoa pond since the aquifer is everywhere. The Piilani project is inconsistent with the attached master plan and the type of recreational activities planned for the scenic and recreational resources of the SMA area. [Attachment-2, Hilo Bayfront Trail Master Plan.] 3. The 1990 Feasibility Study The 1990 Feasibility Study that the Planning Department produced for the Suisan fish processing plant GP amendment found industrial use of this land which is located between the Ho'olulu Park Complex and the Wailoa River Recreation Area incompatible with the scenic and recreational resources and therefore inappropriate. [Attachment- 3, 1990 Feasibility Study] Why is the Planning Department and Planning Commission making a favorable recommendation now? There have been changes to the long range plans for this area in the past twenty-seven years that the Planning Commission did not consider in their review. There has been no scrutiny of the impacts to public land and water resources under the public trust doctrine, mandated by article XI, section 1 of the Hawaii constitution. ' 4. The Zoning Code Can Only Be Amended Under Certain Circumstances Which Do Not • Exist In This Instance. The Zoning code can only be amended in three circumstances as a matter of law: Section 25-2-40. When zoning code may be amended. This chapter may be amended by changing the boundaries of districts or by changing any other provision in this chapter whenever [1] the public necessity and [2] convenience and [3] the general welfare require such amendment, and when such amendment would be consistent with the goals, policies and standards of the general plan. (1996, ord 96-160, sec 2; ratified April 6, 1999.) Hawaii Revised Statutes (HRS) § 46-4 vests zoning power exclusively in the County Council which is required to accomplish zoning changes only within the framework of a long-range, comprehensive plan. §46-4 County zoning, provides: "Zoning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county. Zoning shall be one of the tools available to the county to put the general plan-into effect in an orderly manner." 1 Environmental review has been triggered by the requirement that the industrial development of the parcel requires that the landowner extend the public sewer system down Piilani St. and widen Piilani St. to commercial standards, yet the Planning Department Planning Commission failed to require that Piilani Partners complete an EA. This is not a minor matter or just a"sewer hook-up." It requires a sewer system study and will require a resolution by the County Council to extend the public sewer system. The Piilani well and water bottling project cannot be exempted from HEPA review as a matter of law being both in a tsunami inundation area and the SMA—e.g. a sensitive area, and'because the cumulative effects of the larger project must be considered. a e 5. Bill 1492 Does Not Conform With The Hilo Zoning Map, the General Plan And Approved Long-Range Community Planning Goals and Master Plans Bill 1492 cannot comply with the mandate expressed in HRS § 46-4 considering the Hilo Bayfront Trail Master Plan has been adopted as a long range goal and the industrial zoning does not conform to the Hilo Zone Map and the LUPAG Map. [See,Attachment- 2, Hilo Bayfront Trail Master Plan; Attachment-4, Hilo Zoning Map;Attachment- 5, LUPAG Map.] 6. Ordinance 92-122 Was A Nullity At The Time Piilani Partners Purchased This Parcel. Piilani Partners has no reasonable expectation of zoning rights in this case. The construction deadline in Ordinance 92-122 expired five years after the Ordinance was approved, some 22 years ago and was to be repealed if the Suisan fish processing plant was not built as a matter of law within the language of Ordinance 92-122. [See,Attachment-1, Section 2, ©, (D) and (N).] The original zoning ordinance amended the zoning district from multi-family/hotel resort to industrial and was approved for a fish processing plant because Suisan had need of a parcel of land close to the boat harbor and the location of TMK 3-2-2-33-11 (consolidated) facilitated a fish processing plant for Suisan and the fishermen the plant would support. In contrast, a water bottling company which will drill a well down to a deep artesian aquifer-- the massive Mauna Kea aquifer-- does not have to be • close to the harbor or located in that exact spot. The Mauna Kea aquifer has been accessed p q up to two miles away. Therefore an extension of time is contrary to the original reasons for the granting of the Change of Zone.No extension of the time for performance is available under the unequivocal construction of ordinance 92-122. 7. Industrial Zoning For This Parcel Is Spot Zoning The industrial zoning of this individual parcel is an island within commercial, multi-family/hotel resort and open space zoning and therefore illegal "spot zoning." [See,Attachment- 4, Zoning Map; Attachment- 5, LUPAG Map.] Bill 1492 is an arbitrary action because it will approve a new industrial project with potential for adverse and unintended environmental on impactspublic land and water resources inconsistent with long range planning goals by amending a construction deadline for an entirely different industrial project, in a zoning ordinance that was a nullity as a matter of law at the time that Piilani Partners or the landowner purchased the parcel. The Hawaii Supreme Court has provided: Spot zoning is an arbitrary zoning action by which a small area within a large area is singled out and specially zoned for a use classification different from and inconsistent with the classification of the surrounding area and not in accord with [a] comprehensive plan.Life of the Land a City Council, 61 Haw. 390, 429, 606 P.2d 866, 890 (1980). The usual presumption of validity may not be accorded spot zoning because of the absence of widespread community consideration of the matter. [A] determination of the use of a specific and relatively small parcel will affect only the parcel owner and the immediate neighbors. When that is the case, limited community interest will mean little or no public debate. This limited interest, in turn, elevates concern over whether the rights of the individuals affected are adequately safeguarded, and deference is inappropriate. J.C. Juergensmeyer, T.E. Roberts, Land Use Planning and Control Law 191 (1998) (emphasis added). The Hawaii Supreme Court further provided in Lum Yip Kee, Ltd. v. City and County of Honolulu, 767 P. 2d 815 -Haw: Supreme Court 1989:. As established by the United States Supreme Court in Euclid v. Ambler Realty Co.. 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), the power to zone is an exercise of the police power of a municipality. The exercise of such power must bear a reasonable relation to, or be reasonably necessary for,the public health, safety, morals or general welfare. Zoning which is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare" is not within the municipality's police power and will be held invalid under the fourteenth amendment of the United States Constitution. Id. at 395, 47 S.Ct. at 121, 71 L.Ed. at 314. We also recognize that the zoning power of the counties is limited to those regulations that are reasonable in the exercise of the police power. "Spot zoning" is outside the scope of this power. Spot zoning actions are invalid as a matter of law and constitutional provisions when the County Council disregards procedural requirements applicable to enactment of zoning ordinances. CONCLUSION We live in a country that respects the rule of law. The Piilani Partners request to amend Ordinance 92- 122 to allow a substantially different industrial project should be denied as a matter of law and directions given to the Planning Director to submit the document required for the County Council to repeal Ordinance 92-122 in its entirety. This would not prevent Piilani Partners from applying for a new zoning ordinance. ejAAAAA Attachments-5 (electronic copy only)