HomeMy WebLinkAbout#430 PC FOL, COL, D&OCounty of Hawaii Planning Commission
101 Pauahi Street, Suite 3
Hilo, Hawai'i 96720-4224
Telephone: (808) 961-8288
Facsimile: (808) 961-8742
BEFORE THE COUNTY OF HAWAII
PLANNING COMMISSION
In the Matter of
CONNECTIONS NEW CENTURY PUBLIC
CHARTER SCHOOL AND COMMUNITY
BASED EDUCATION SUPPORT
SERVICES
Application for Special Permit Application
No. 12-000138
TMK: (3) 2-5-006-141; Kaumana, South
Hilo, Hawaii
SPP No. 12-000138
COUNTY OF HAWAII WINDWARD
PLANNING COMMISSION'S
FINDINGS OF FACT, CONCLUSIONS OF
LAW AND DECISION AND ORDER;
CERTIFICATE OF SERVICE
Argument and Decision:
Date: 5/1/14
Location: Aupuni Center, Hilo, Hawaii
COUNTY OF HAWAII WINDWARD PLANNING COMMISSION'S
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND DECISION AND ORDER
The County of Hawaii, Planning Commission submits its Findings of Fact, Conclusions of
Law and Decision and Order pursuant to the request of the Windward Planning Commission of
the County of Hawaii at its May 1, 2014, meeting in Hilo, Hawaii. Present before the
Commission were Ted H. S. Hong, counsel for Applicant Community Based Education Support
Services; Carter K. Siu, Deputy Attorney General, for Applicant Connections New Century
Public Charter School (hereinafter collectively referred to herein as "Connections"); Amy G.
Self, Deputy Corporation Counsel, for County of Hawaii Planning Director (herein as
"Director"); Jeffery K. Gomes (herein as "Gomes"), Intervenor, Pro Se; and Sandra Pechter
Song, the Hearing Officer (herein as "Hearing Officer"). The contested case hearings by the
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Hearing Officer were held on October 21, and 22, 2013, November 12, 2013, January 8 and 22,
2014.
FINDINGS OF FACT
I. Procedural Back rground
1. This matter involves an application filed by Connections on July 25, 2012, for a
special permit, pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the
County of Hawaii Planning Commission Rules of Practice and Procedure (hereinafter
"Commission Rules") to allow the development of a charter school campus with dorm facilities
and related improvements for students in kindergarten through twelfth grade (hereinafter, the
"Development"), on 70.15 acres of land situated within the State Land Use Agricultural District,
at Ponahawai Kukuau 2nd, South Hilo, Hawaii, commonly referred to as the Kaiimana area of
Hilo, designated by State of Hawaii Tax Map Key ("TMK") (3) 2-5-006:141 (hereinafter, the
"Property").
2. Connections has leased the Property on which the Development is proposed from the
State of Hawai `i under General Lease No. S-6029,
3. Notices of the Windward Planning Commission of the County of Hawaii (hereinafter
"Commission") hearings on the proposed Development were provided to property owners
surrounding the proposed Development.
4. The Commission held public hearings on the Connections application on
November 9, 2012 [sic], December 6, 2012 and January 10, 2013. At the hearing held on
January 10, 2013, the Commission moved [sic] to deny the Connections application and
instructed the Commission staff to prepare proposed findings of fact, conclusions of law and
order, which would be considered for adoption by the Commission at its meeting of March 7,
2013.
5. At the Commission meeting of March 7, 2013, the Commission suspended the
preparation of the findings of fact, conclusions of law and order, and granted a request by
Connections for a contested case on the subject application. Gomes submitted a petition to
intervene in this matter on March 7, 2013, and the Commission admitted him as a party to the
proceeding.
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6. A petition to intervene in this proceeding was filed by Terrence Yoshioka on
November 4, 2013, after the contested case hearing in this proceeding had already commenced.
On November 8, 2013, the Hearing Officer denied this petition in accordance with Rule 4-6 of
the Commission Rules, on the ground that the subject petition was untimely filed.
7. The Director is a party to this proceeding pursuant to Rule 4-7(a) of the Commission
Rules. The Director initially recommended approval of the Connections application, subject to
specific conditions, but took no position on the application at the contested case hearing.
S. The subject application involves a parcel of land greater than fifteen acres in area.
Therefore, any permit approved by the Commission is subject to final approval by the State Land
Use Commission.
II. Proposed Development
A. General Description
9. The Connections application proposes the development of a K to 12 charter school
campus with donn facilities, and an intergenerational program that would provide childcare and
elder care at a single facility on the Development, together with related uses on the 70 -acre
parcel of land. As the site is bisected by Edits. Street, the lower portion of the Development
would consist of the major school or campus facilities, while the upper portion would be used for
outdoor type of educational programs, including a forestry preservation program.
10. The lower campus would support a projected 167 elementary students, 107
intermediate students, 107 high school students (381 K through 12 students) and 25
intergenerational clients. Also included would be a dormitory capable of supporting 30 students,
a gymnasium, kitchen/dining facility, library/resource center, caretaker's residence and other
related facilities. Two parking lots capable of supporting 140 parking stalls would be provided.
11. The Development would relocate and expand the existing charter school which is
presently operating from two separate campuses. The elementary and middle schools are located
in the Kress Building on Kamehameha Avenue, in downtown Hilo, and the high school is
located in leased facilities at the Nani Mau Gardens, just outside of Hilo town.
12. Connections proposes having 50 full-time and 17 part-time employees at full build-
out of the Development, which is the same number presently employed for this charter school.
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13. Connections anticipates that 50% of the student population will come from the Hilo
area and 50% from the Puna area miles away from the Development. The present student
population for this charter school is composed primarily of students from these two geographic
areas.
14. The Development does not propose to establish a charter school on the Property to
serve the needs of the immediate vicinity in the Kaumana area of Hilo, although some students
from the area may attend this school.
15. The Development is intended to be constructed in 9 phases and completed within 16
to 25 years. The first phase would include the caretaker's residence, high school and
administration building, with the projected opening to be within 2.5 to 3.5 years.
B. Public Utilities and Services
Access/Traffic
16. Access to the Development is proposed from Edita Street which connects with
Kaumana Drive, a major Hilo artery. Both roads are owned and maintained by the County of
Hawaii. Bdita Street has a 60 -foot right-of-way width, with a 48 -foot wide pavement width
fronting the Development. The paved area accommodates two 20 -foot wide travel lanes,
a 20 -foot wide shoulder on the northeast side of the road, and an 8 -foot wide shoulder on the
southwest side. Edita Street is in good condition; however, the Hawaii County Police
Department recommended that the unpaved shoulder along Edita Street extending from
Kaumana Drive to the Development should be paved so that pedestrians could safely walk along
the shoulder.
17. A Traffic Impact Analysis Report (`°TIAR") dated June 28, 2010, was prepared in
conjunction with the Connections application for the purpose of evaluating the Development's
impact at the Development's entrance at Edita Street and at the Edita and Kaumana Drive
intersection. Based upon traffic counts taken on May 28, 2009, the TIAR found that the current
level of service or LOS operates as LOS "A" or `B", meaning that the traffic service is
uncongested. The TIAR also concluded that upon full build -out of the Development, the LOS
will continue to operate at levels "A" or `B". Although the TIAR concludes that traffic will not
be adversely affected by reason of the Development, the County Department of Public Works
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recommended that a separate left turn lane onto the Development from Edita Street should be
constructed to alleviate congestion, and that Connections should prepare a comprehensive traffic
management plan for the Development.
18. Notwithstanding the findings of the TIAR and the recommendations of the Police
Department and Department of Public Works, the area residents uniformly expressed concerns
about the adverse traffic impact of the Development along Edita Street and Kaumana Drive.
Also, residents objected that the TIAR was four years old and the traffic counts contained in the
TIAR were taken when certain schools were not in session.
Water
19. A maximum of 4,200 gallons per day (hereinafter "gpd") of water or seven (7) water
units from an existing 8 -inch waterline on Kaumana Drive for the upper campus and from an
existing 8 -inch waterline on Edita Street for the lower campus, is available from the County of
Hawaii municipal water system to service the entire Development. Based on a 60 gpd per
student standard, 4,200 gallons of County water could only support 70 students. At full build -out
the entire Development would require 26,100 gpd.
20. Notwithstanding the unavailability of potable water from the County system for the
Development, the existing 8 -inch waterline within Edita Street is adequate to provide the
required 2,000 gallons of water per minute for fire protection of the proposed Development.
21. The available water from the County of Hawaii municipal water system is
insufficient to support the first phase of the Development.
22. Connections has proposed using water efficient fixtures and supplementing the
available County water with either a catchment system for non -potable water or developing an
additional water source. However, Connections has not produced any evidence to demonstrate
that it has or can develop sufficient water for the Development.
Wastewater
23. Connections is proposing to provide its own wastewater system meeting the
requirements of the State of Hawaii Department of Health (hereinafter "DOH"). Connections
prefers installing an ecologicalibiological wastewater system called the "Living Machine."
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However, should such a system prove to be unfeasible, Connections would install a traditional
septic system with leach fields or any other system required by DOH.
Drainaee
24. The Property is located within Zone 'W' on the U.S. Department of Army Corps of
Engineers Flood Insurance Rate Map, which means that the Property is outside the 500 -year
flood plain. Notwithstanding this flood designation, during severe storms water has been known
to overtop the concrete channel and flow across Edita Street, resulting in flooding of adjacent
properties. Connections proposes to prepare detailed engineering studies for the purpose of
developing appropriate drainage plans to address the potential flood hazard posed by the present
condition of Edita Street.
Utilities
25. Electrical and telephone services are available to the Property through overhead lines
along Edita Street and Kaumana Drive.
Public Safety
26. The Hawai `i County Police Department expressed concem that the Development
would increase noise, crime and traffic. However, there was no evidence that the Police
Department lacks the ability to provide police protection for the Development.
III. PHYSICAL CHARACTERISTICS OF THE PROPERTY AND SURROUNDING
AREAS
27. The Property is presently vacant and undeveloped.
28. Surrounding lands to the south and west of the Property are zoned A-1 a, with
properties further south being zoned A -20a and A -10a [sic]. Lands to the north of the Property
are zoned RS -10 and RS -15, with some lands zoned A -3a further north across Kaumana Drive.
One parcel is also zoned Open adjoining the northeast corner of the lower portion of the
Property. Surrounding uses consist mainly of single-family residences with some vacant lands,
and a small percentage of agricultural activity,
29. The soils on the Property are primarily composed of pahoehoe lava flow. The State
Department of Agriculture's map showing agricultural lands of importance to the State of
Hawaii shows the Property as being unclassified. Also, the Land Study Bureau classifies the
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soil on the Property under its detailed land classification system, as "D" or "Poor" for
agricultural activity.
30. No archaeological sites have been found on the Property, and it is surmised that any
pre-existing sites would have been destroyed by the lava flow of 1880-1881. Although
Connections submitted a request to the State Historic Preservation Division ("SHPD' ), by letter
dated August 17, 2010, requesting a "no -effect" determination from that agency, SHPD has not
responded to the request.
31. A portion of the Kaumana Cave is accessible from the upper portion of the Property.
Connections is proposing to refrain from constructing any major school facilities on the upper
portion of the Property and to maintain a minimum 100 -foot buffer on either side of the cave
alignment to alleviate concerns about impact from the Development on the cave ecosystem.
32. A botanical survey of the Property identified 11 native plant species, but none of
those species are considered protected species.
33. Invertebrate, mammalian and field surveys were conducted on the Property. No
protected species were documented to be present on the Property.
34. No traditional or customary native Hawaiian rights have been identified as being
exercised on the Property. Likewise, there is no known public access to the mountains or the
shoreline that runs through the Property.
IV. STATE AND COUNTY PLANS
35. The Property is within the State Land Use Agricultural District. A school is not a
permitted use within the Agricultural district; however, a school may be permitted in this district
if a special permit is obtained for such use pursuant to Section 205-6, HRS and Rule 6 of the
Commission Rules.
36. The County of Hawaii General Plan Land Use Pattern Allocation Guide ("LUPAG")
Map designates the Property for low density urban uses. The LUPAG designation of Low
Density urban use, allows for residential uses, with ancillary community and public uses, and
neighborhood and convenience -type commercial uses. The Development is not proposed to be a
community or public use for the Kaumana area of Hilo.
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37. The County of Hawaii zoning for the Property is Agricultural with a minimum lot
size of one acre (A -la). Under Section 25-5-72(d) of the Hawaii County Code, a school is
permitted in an Agricultural zoned district provided that a special permit is issued for the use if
the land is within the State Land Use Agricultural District.
38. The Development, which is proposed to be located on State land, is subject to the
Hawaii State Environmental Impact Statement law, Chapter 343, HRS. Connections prepared
an environment assessment in accordance with Chapter 343, and declaration with a finding of no
significant impact was issued for the Development by the State of Hawaii Department of Land
and Natural Resources.
39. The Property is not situated within the Special Management Area ("SMA"), since it
is located over three miles from the nearest shoreline. Thus, the coastal environmental
considerations relating to the SMA are not applicable to the subject Property.
V. SPECIAL PERMIT REQUIREMENTS
40. HRS Section 205-6, which governs special permits, provides in pertinent as follows:
"(a) The county planning commission may permit certain
unusual and reasonable uses within agricultural ... districts other
than those for which the district is classified. Any person who
desires to use the person's land within an agricultural ...district
other than for an agricultural ... use ... may petition the planning
commission of the county within which the person's land is located
for pemrission to use the person's land in the manner desired.
"(c) The county planning commission may, under such
protective restrictions as may be necessary, permit the desired use,
but only when the use would promote the effectiveness and
objectives of this chapter...
"(d) Special permits for land the area of which is greater
than fifteen acres... shall be subject to approval by the land use
commission. The land use commission may impose additional
restrictions as may be necessary or appropriate in granting the
approval including the adherence to representations made by the
applicant."
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41. Planning Commission Rule 6-7, provides, in pertinent part, that:
"[t]he Commission shall not approve a Special Permit unless it is
found that the proposed use
"(a) Is an unusual and reasonable use of land situated within the
Agricultural ... District ... ; and
"(b) Would promote the effectiveness and objectives of Chapter 205, Hawaii
Revised Statutes, as amended.
"The Commission shall also consider the criteria listed under
Section 6.3(b)(5)(A) through (G)."
42. The seven criteria under Planning Commission Rule 6.3(b)(5)(A) through (G) are:
"(A) Such use shall not be contrary to the objectives sought to
be accomplished by the Land Use Law and Regulations;
"(B) The desired use shall not adversely affect surrounding
properties;
"(C) Such use shall not unreasonably burden public agencies to
provide roads and streets, sewers, water, drainage, school
improvements, and police and fire protection;
"(D) Unusual conditions, trends and needs have arisen since the
district boundaries and regulations were established;
"(E) The land upon which the proposed use is sought is unsuited
for the uses permitted within the district;
"(F) The proposed use will not substantially alter or change the
essential character of the land and the present use; and
"(G) The request will not be contrary to the General Plan and
official Community Development Plan and other
documents such as Design plans."
43. Although Gomes asserts that the criteria for a use permit should be considered in
the subject application, that criteria is not relevant to a special permit determination.
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VI. APPLICATION OF SPECIAL PERMIT CRITERIA TO THE DEVELOPMENT
A. Land Use Law Objectives
44. The purpose of the State Land Use Law is to preserve the lands of high agricultural
potential for agricultural use. The Property consists of land that is not considered highly
valuable for agricultural uses. Thus, the use of the Property for a school is not contrary to the
objectives sought to be accomplished by the State Land Use Law.
45. Likewise, the Development, which proposes the construction of a school for 381
students and related facilities is not akin to a major recreational theme park attracting 1.5 million
people each year to the area. Therefore, such a development would not frustrate the objectives
and effectiveness of the Hawai`i's land use scheme and would not require a State land use
boundary amendment in lieu of a special permit. Neighborhood Board No. 24 vs. State Land
Use Commission, 64 Haw. 265, 272, 639, P.2d 1097, 1103 (1982).
B. Affect on Surrounding Properties
46. Based upon the testimony from surrounding and neighboring property owners, the
Development will have an adverse effect on surrounding properties by creating noise, traffic, and
impacting the quality of life of the adjoining residents.
47. Measures proposed by Connections, regarding the establishment of building setbacks
and roadway improvements to Edita Street do not appear to be sufficient to mitigate the
overwhelming concerns raised by surrounding property owners.
C. Burden on Public Agencies to Provide Services
48. There is insufficient water available from the County system to service the
Development. Therefore, to allow the Development would unreasonably burden the Department
of Water Supply to provide water for its facilities.
49. There is no evidence that Connections has the ability to develop a potable water
source as a mitigating measure, previously proposed by the Director.
50. A mitigating measure previously proposed by the Director of limiting the number of
students to the amount of potable water available to the project is not reasonable because
Connections is proposing to construct a high school for 107 students its first phase, when the
potable water available would only allow for 70 students.
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51. As such, the proposed use may unreasonably burden the County Department of
Water Supply to provide water to the Development.
D. Unusual Conditions. Trends and Needs
52. Unusual conditions and needs have arisen since the establishment of this land use
district in the 1970s, because the area in which the Property is located has essentially become
residential in character. Also, the County General Plan LUPAG map recognizes this trend by
designating the area for low density urban use. However, there was no evidence presented to
demonstrate that location of a school that is not intended to specifically service the needs of the
immediate community is such an unusual condition, trend or need that justifies location of the
Development at this location.
E. Suitability of Land for Agricultural Uses
53. The Land Study Bureau soil classification rating for the Property is "D" or "Poor,"
which suggests that the land may be unsuited for agricultural uses.
54. Connections is proposing to maintain the upper portion or nearly one-half of the
Property for forestry use. In addition, Connections is proposing to construct greenhouses on the
Property and conduct an agricultural program in conjunction with its curriculum.
55. Based upon the representations of Connections, it cannot be found that the Property
is unsuited for agricultural uses.
F. Alteration or Change of the Essential Character of the Land and Present
Use
56. The Property is presently a forest and is vacant of any structures. The lower half of
the Property will be converted into a school with classrooms, dormitories, a gymnasium cafeteria
and parking lots.
57. The Development of a school will change the essential character of the forested land
and its undeveloped use.
G. Consistency with the General Plan
58. The County General Plan LUPAG map designates the Property for low density urban
use. "Low density uses" under the General Plan include residential, with ancillary community
and public uses, and neighborhood and convenience -type commercial uses.
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59. The Development, which proposes a charter school that is not specifically intended
to service the immediate community surrounding the school, is not consistent with the uses
permitted in areas of low density urban use.
60. The Economic, Public Facilities and Land Use elements of the County General Plan
all require consideration of social and community concerns as follows:
Economic Element - Goal
"Provide an economic environment that allows new, expanded, or
improved economic opportunities that are compatible with the
County's cultural, natural and social environment."
Public Facilities Element - Goal
"Encourage the Provision of public facilities that effectively
service the community and visitor needs and seek ways of
improving public service through better and more functional
facilities in keeping with the environmental and aesthetic concerns
of the community."
Land Use Element - Policy
"Encourage the development and maintenance of communities
meeting the needs of its residents in balance with the physical and
social environments."
61. The evidence has established significant concerns from the community regarding the
compatibility of the Development with the surrounding community.
62. Although the County General Plan Public Facilities -Education course of action for
South Hilo encourages the establishment of additional schools as the need arises, the proposed
Development, at the subject location, is contrary to the General Plan.
VII. UNUSUAL AND REASONABLE USE OF LAND
63. The construction of a school on the Property is an unusual use of the land because a
school is not a pennitted use in the State Land Use Agricultural District. However, the evidence
presented does not demonstrate that the Development is a reasonable use of the Property.
Specifically, Connections has not demonstrated how this school can be built without sufficient
potable water resources. Nor, has Connections demonstrated how the development of a regional
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charter school on the Property that does not specifically service the needs of the immediate
community and that is overwhelmingly objected to by the immediate community is a reasonable
site for this facility. In addition, Connections has not demonstrated that the Development meets
most of the criteria to be considered by the Commission in the subject application.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the Commission makes the following
Conclusions of Law:
1. To the extent that any of the Findings of Fact constitute Conclusions of Law, or
Conclusions of Law constitute Findings of Fact, they shall be considered and construed as such.
2. The Commission has jurisdiction over the subject special permit application, including
the ability to deny or recommend its approval to the State Land Use Commission, pursuant to
Section 205-6, HRS and Rule 6 of the Commission Rules.
3. Connections had the burden of proof on this matter before the Commission, including
the burden of producing evidence as well as the burden of persuasion, by a preponderance of
evidence, to demonstrate how its request is consistent with the guidelines for a special permit as
outlined by Section 205-6, HRS and Rule 6 of the Commission Rules. Connections has failed to
meet this burden.
4. The Development does not adequately meet the requirements or guidelines for a
special permit as required by Section 205-6, HRS and Rule 6 of the Commission Rules.
5. The Development is not consistent with the County General Plan, particularly as to the
impacts on the immediate community.
Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit
Application SPP No. 12-000138 of Connections New Century Public Charter School and
Community Based Education Support Services to develop a K to 12 charter school campus with
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dorm facilities and related uses on 70.15 acres situated within the State Land Use Agricultural
District is hereby denied.
1✓iAY 1. S X814
Dated: Hilo, Hawaii,
Ey'�/ ✓ L—
RONALD GONZALES, Chairman
Windward Planning Commission
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BEFORE THE COUNTY OF HAWAII
PLANNING COMMISSION
In the Matter of
CONNECTIONS NEW CENTURY PUBLIC
CHARTER SCHOOL AND COMMUNITY
BASED EDUCATION SUPPORT
SERVICES
Application for Special Permit Application
No. 12-000138
TMK: (3) 2-5-006-141; Kaumana, South
Hilo, Hawaii
SPP No. 12-000138
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that on this date, a copy of the foregoing was duly served upon the
following parties by depositing the same in the U. S, mail, postageprepaid, and by e -mailing a
copy, addressed to:
Ted H. S. Hong, Esq. (ted ,tedhon aw.coin)
P. O. Box 4217
Hilo, Hawaii 96720
Attorney for Applicant Community Based
Education Support Services
Carter K. Siu, Esq. (Carter.K.Siu@hawaii.gov)
Deputy Attorney General
State of Hawaii
235 South Beretania Street, Room 304
Honolulu, Hawaii 96813
Attorney for Applicant Connections New
Century Charter School
Amy G. Self, Esq. (aself@co.hawaii.hi.us)
Deputy Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorney for County of Hawaii Planning Director
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Mr. Jeffrey K. Gomes (kalanieomes@hawauantel.net)
281 Edita Street
Hilo, Hawaii 96720
Intervenor pro se
Mr. Duane Kanuha, Planning Director (nlanning@a co hawaii.hi.us)
County of Hawaii Planning Department
101 Pauahi Street, Suite 3
Hilo, Hawaii 96720
Margaret Masunaga, Esq. (mkmasunagaAco.hawaii.hi.us)
Deputy Corporation Counsel
74-5044 Ane Keohokalole Highway
Kailua-Kona, HI 96740
Attorney for County of Hawaii Planning Commission
'MAY 15 M4Dated: Hilo, Hawaii,
2 w�
R NALD GO ZALE , Chairman
Windward Planning Commission
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