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HomeMy WebLinkAboutItem#1 AOAO Recommendation SSV-20-000012AJR_RKonaReef SSV_2021 COUNTY OF HAWAII PLANNING DEPARTMENT RECOMMENDATION AOAO KONA REEF,INC. SHORELINE SETBACK VARIANCE APPLICATION (SSV 20-000012) Upon careful review of the applicant's request against the guidelines for granting of a Shoreline Setback Variance, the Planning Director recommends that the variance request to allow the construction of an approximately 220-foot-long Concrete-Rubble-Masonry(CRM) wall approximately 1-foot inland of the certified shoreline and situated within the shoreline setback area be denied by the Planning Commission. Since this recommendation is made without the benefit of public testimony, the Director reserves the right to modify and/or alter this position.This recommendation is based on the following findings: The applicant (AOAO Kona Reef, Inc.) proposes to build a continuous 220-foot- long concrete-rubble-masonry (CRM) wall 1-foot inland of the certified shoreline and within the 40-foot shoreline setback area. The applicant is pursuing this proposed use to prevent future erosion of the lawn area, and to mitigate the effects of the rare storm or tsunami surges that could cross the shoreline. The Shoreline Setback Law was enacted by the State Legislature in 1970 for the protection of the shoreline from undue man-made improvements. Many of these structures have disturbed the natural shoreline processes and caused erosion of the shoreline. Concrete masses along the shoreline are contrary to the policy for the preservation of the natural shoreline and the open space. Unrestricted removal of sand, coral, rocks, etc., for commercial uses can only deteriorate the shoreline and remove it from public use and enjoyment. Moreover,the Hawaiian Islands are subject to tsunamis and high waves which endanger residential dwellings and other structures which are built too close to the shoreline. For these reasons, it is in the public interest to establish shoreline setbacks and to regulate the use and activities within the shoreline setback area. The Legislature,however,also recognized that certain activities and improvements may be required or constructed within the shoreline setback area for protection of certain shoreline properties. In recognizing this need, the Legislature authorized the respective authorities within the various counties, in this case the Planning Commission, to grant variances for 1- certain activities and improvements within the shoreline setback area. In accordance with Section 205A-46 of the Hawaii Revised Statutes, and Section 8-11 of the Planning Commission's Rule 8, relating to Shoreline Setback, the Planning Commission may grant variances from the shoreline setback regulations based on certain criteria. Staff notes that recent changes to HRS 205A-46 under Act 16 specifically addresses variance requests,and now require hardship determinations to consider potential flanking caused by any proposed shoreline structure. Additionally, the updates to FIRS 205A-46 require the applicant to clearly demonstrate the proposed action is in the interest of the general public. Since State laws supersede Planning Commission Rules the Planning Department is in the process of updating PC Rules to reflect these changes in State Law and the more current understanding of coastal resource preservation and protection. In reviewing the request against the criteria to allow a variance, the Planning Director has determined that the request for a Shoreline Setback Variance to allow the construction of a 220-foot shoreline erosion control wall built to grade within the shoreline setback does not meet the criteria set forth in Rule 8, Section 8-11 (b)(3) regarding hardship to the applicant. Section 8-11(b)(3) states, "A variance may also be granted upon a finding that, based upon the record, the proposed structure or activity meets one of the following standards of this subsection: 3) Hardship Standard. A) A structure or activity may be granted a variance upon grounds of hardship only if: i) The applicant would be deprived of reasonable use of the land if required to comply fully with this rule; and ii) The request is due to unique circumstances and does not draw into question the reasonableness of this rule; and iii) The request is the practicable alternative which best conforms to the purpose ofthis rule. B) Before granting a hardship variance, the Planning Commission must determine that the request is a reasonable use of the land. The determination of the reasonableness of the use of land shall consider factors such as sea level rise, long-term and cumulative 2- impacts, shoreline conditions,erosion, surf and flood condition, and the geography of the lot as it relates to health and safety. C) Ifa structure is proposed to artificially fix the shoreline,the Planning Commission must also determine that shoreline erosion is likely to cause hardship if the structure is not allowed within the shoreline setback area. D) Hardship shall not be determined because of zoning amendments, planned unit development(PUD)permits,cluster plan development CPD)permits,or subdivision approvals after June 16, 1989." The denial of the applicant's request to construct a 220-foot-long CRM erosion control wall 1-foot inland of the certified shoreline, which will be situated within the minimum 40-foot Shoreline Setback Area, will not deprive the applicant of reasonable use of the land. The applicant has failed to provide definitive evidence that any structures are 1) being impacted by coastal erosion, and 2) that the proposed wall structure will eliminate coastal erosion. Based on the permitted uses on the property, the applicant has not been deprived of reasonable use of land as the entire structure was designed to protect a small lawn area. A reason given by the applicant for constructing the CRM erosion control structure within the shoreline setback area is to minimize coastal erosion of a grassy area seaward of the condominium complex, and to protect the condominium structure from storm or tsunami waves. The applicant has not clearly shown the necessity for the proposed structure, or what impacts "rare storm or tsunami surges" have on any structures located on the property. As stated in the "Coastal Resource and Erosion Assessment" report Erosion Report) submitted by the applicant "no significant erosion of the shoreline fronting the Kona Reef Condominiums has taken place in historical time, although global sea level rise and continuing subsidence ofHawaii Island could result in inland migration of the shoreline over the next century". The report continues, stating "minor erosion of a lawn fronting the KR Property is caused by the infrequent storm surge or tsunami waves that reach or extend beyond the shoreline." To better understand the hardship facing the applicant, and the reasoning for the proposed structure,the Planning Department requested an alternatives analysis be conducted.The applicant did not provide the requested analysis of the project, stating the proposed wall was the only option that would provide the 3- protection measures necessary to preserve the lawn area. The Department believes that a reasonable alternative to address erosion to the lawn area caused by pedestrian impacts(as was stated by the applicant)would have been a study on how pedestrian foot traffic effects could be minimized. Additionally, a long-term coastal zone management plan for the property could help to determine the best course of action to combat long term changes to climate and impacts to the property; the applicant did no such studies. The reason of accommodation does not show any hardship to the applicant. The purpose and reason for the Shoreline Setback regulations is for the preservation of the natural shoreline and open space. This would be achieved by not allowing the construction of the CRM wall in the shoreline setback area shown on the submitted site plans as it will create a hardened shoreline segment which goes against scientific and Governmental guidance. To allow the construction of an erosion control structure 1-foot inland of the certified shoreline and within the shoreline setback area will further reduce the open space that is sought to be preserved by the Shoreline Setback law. On September 15, 2020, the Governor of Hawaii signed SB2060 into law, which prohibits construction ofprivate shoreline hardening structures,including seawalls and revetments,at sites having sandy beaches and at sites where shoreline hardening structures interfere with existing recreational and waterline activities.Additionally,the State has a"no tolerance"policy for new shoreline armoring. According to the Office of Conservation and Coastal Lands OCCL), the sand deposits located seaward of the proposed project site are the result of lateral transport of sand from seasonal wave activity. The OCCL has concerns that the proposed CRM wall could eventually cause flanking to the County's Wai`aha Beach Park at Honl's Beach, as well as negatively impacting the lateral transport of sand and the sand deposits fronting the grassy lawn area. While the proposed wall will be built to grade, it will have a seaward exposed face that will act as a seawall/shoreline hardening structure and may alter access to the water from the upland area or create a hazard to the public conducting waterline activities in the area. The applicant states in the application: "The intended purpose of the CRM structure is not to artificially fix the shoreline; that being said, it would be irrational and naïve to think that at some point in the future some areas, if not all, of the CRM wall will not serve in this capacity" therefore admitting that the structure will eventually become a seawall and therefore new shoreline armoring. q_ Throughout the two applications(i.e.,SMA and SSV),the applicant makes multiple assertions as to the reason for the proposed structure-the primary goal to protect the grassy area bordering the shoreline of the property.The applicant also asserts: "the project is vital for the protection and preservation of the shoreline lawn area, and the project is very crucial for the protection of the very vulnerable inland buildings and structures from predictable catastrophic ocean intrusions." However, nowhere in the Erosion Report submitted by the applicant are impacts or effects of coastal erosion on the structures discussed.There is no clear indication that coastal erosion(which was shown to be minimal in the applicants submitted erosion report)has an impact on anything other than the grassy area and that those impacts are rare or episodic. Despite the reasons given by the applicant, the Final Environmental Assessment (FEA) was limited in its evaluation of any viable alternative solutions. Only three alternatives were pursued, one of which was no action, and the other two being direct shoreline hardening structures that would be even more detrimental to the coastal zone. Additionally, the submitted site plan shows that the improvements to the property within the setback area will require excavation of land and rock and subsequent additional fill material for construction which, as the applicant has stated, will erode and deposit material into the shoreline area as material seaward ofthe structure is impacted by waves and sea level rise(SLR). The stated reasons of protection of shoreline development, and the preservation of coastal access in the area are not sufficient reasons to support a variance for building within the coastal open space sought to be protected by the Shoreline Setback law. Therefore, the applicant has not demonstrated a hardship that would warrant the approval of a variance to allow the construction of a shoreline erosion control structure built to grade I-foot from the certified shoreline and within the shoreline setback area. Based on the above, the Planning Director is recommending that the Leeward Planning Commission deny the applicant's request for a Shoreline Setback Variance. 5-