HomeMy WebLinkAboutWPC PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER Windward Planning Commission
County of Hawaii
101 Pauahi Street, Suite 3
Hilo, Hi 96720-4224
Telephone: (808) 961-8288
Facsimile: (808) 961-8742
BEFORE THE COUNTY OF HAWAII
WINDWARD PLANNING COMMISSION
In the Matter of SPP No. 12-000138
CONNECTIONS NEW CENTURY COUNTY OF HAWAII WINDWARD
PUBLIC CHARTER SCHOOL AND PLANNING COMMISSION'S PROPOSED
COMMUNITY BASED EDUCATION FINDINGS OF FACT, CONCLUSIONS OF
SUPPORT SERVICES LAW, and DECISION AND ORDER;
CERTIFICATE OF SERVICE
Application for Special Permit Application
Remand Hearing:
No. 12-000138 n:
Date: October 7, 2021
TMK (3) 2-5-006:141; Kaumana, South Time: 9:00 am
Hilo, Hawaii Location: Held by Remote Hearing
COUNTY OF HAWAII WINDWARD PLANNING COMMISSION'S PROPOSED
FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND ORDER
The County of Hawaii Windward Planning Commission having duly considered the
entire record in the above-entitled matter, makes the following findings of fact and conclusions
of law.
FINDINGS OF FACT
L PROCEDURAL MATTERS
1. On July 25, 2012, Connections New Century Charter School
("Connections") and Community Based Support Services ("CBESS") (hereinafter collectively
referred to as the "Applicants")filed an application for a special permit("SPP- 12-000138"),
pursuant to Section 205-6, Hawaii Revised Statutes ("HRS") and Rule 6 of the County of
Hawaii Planning Commission Rules of Practice and Procedure ("Commission Rules"), to allow
the development of a charter school campus and related improvements for students in
kindergarten through twelfth grade (the "Development"), on 70.15 acres of land situated within
the State Land Use Agricultural District, at Ponahawai, Kukdau 2nd, South Hilo, Hawaii,
commonly referred to as the"Kaumana" area, Tax Map Key ("TMK") (3) 2-5-006:141 (the
"Property").
2. Public Hearings on SPP 12-000138 were scheduled and notices were
provided to interested parties.
3. The Hawaii County Windward Planning Commission ("Commission")
initially held public hearings on SPP 12-000138 on November 9, 2012, December 6, 2012, and
January 10, 2013.
4. On November 9, 2012, Connections, its experts, and interested
surrounding property owners provided testimony and evidence. No requests for a contested case
were made. The Commission and Applicants believed that there was not an option for a
contested case because the State Land Use Commission ("LUC")would make the final decision
to approve or deny SPP 12-000138. The Commission and Applicants agreed to delay vote on
SPP 12-000138 to conduct further discussion on traffic and other concerns raised about the
application.
5. On December 6, 2012, Connections produced additional information and
requested a continuance because the State of Hawaii Attorney General's Office was taking over
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as Connections legal representation. The Commission granted Connections' request for a
continuance.
6. On January 10, 2013, the Commission moved to deny SPP 12-00138.
However,no vote was held because members of the Commission were absent. The Commission
also instructed the Hawaii County Planning Department("Planning Department") and Deputy
Corporation Counsel of the Commission to draft consideration of findings of fact, conclusions of
law for denial of SPP 12-000138 for consideration at the Commission's March 7, 2013, meeting.
7. On February 15, 2013,the Planning Department mailed out a notice of
public hearing to the surrounding property owners,which included notice of the right to file for
intervention in contested case and a petition for standing to intervene in a contested case. Thus,
the Planning Department suspended drafting proposed findings of fact, and conclusions of law.
8. On March 7, 2013, due to concerns raised about contested case procedures
the Commission withdrew its motion to deny SPP 12-000138 and granted a request by
Connections for a contested case hearing. The Commission also granted standing to Intervenor
Jeffrey Gomes and voted to retain a hearing officer to conduct the contested case hearing.
9. Retired Judge Sandra Petcher Song was retained as the contested case
hearing officer("Hearing Officer"). The contested case hearing was held over five days on
October 21, 2013, October 22, 2013, November 12, 2013, January 8, 2014, and January 22,
2014.
10. On April 7, 2014, the Hearing Officer submitted a hearings officer report
to the Commission and the Parties. The report concluded that SPP 12-000138 should denied.
The Applicants submitted joint exceptions to the Hearing Officer's report, Finding of Fact,
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Conclusions of Law and Recommendation. The Planning Department also submitted exceptions
to the Hearing Officer's report.
11. On May 1, 2014, the Commission voted to uphold the Hearing Officer's
recommendation and deny SPP 12-000138.
12. On May 19, 2014, the Commission issued its final Findings of Fact,
Conclusions of Law, Decisions and Order.
13. On June 9, 2014, and June 19, 2014, CBESS and Connections,
respectively,filed timely notices of appeal of the Commission's Decision and Order in the State
of Hawaii Third Circuit Court ("Circuit Court").
14. After hearing arguments on the matter,the Circuit Court issued a Decision
and Order affirming the Commission's decision on July 14, 2015.
15. On January 13, 2017, the Circuit Court entered in its Second Amended
Final Judgment in favor of the Commission, Intervenor Gomes,the Planning Department, and
the Hearing Officer.
16. On January 21, 2017, Connections filed a timely notice of appeal to the
State of Hawaii Intermediate Court of Appeals (ICA).
17. On January 31, 2020, the ICA issued a Memorandum Opinion vacating
the Circuit Court's July 14, 2015, Order and January 13, 2017 Final Judgment and the
Commission's May 19, 2014 Decisions and Order, and remanded the case back to the
Commission for further proceedings consistent with its Memorandum Opinion.
18. On July 6, 2021,the Commission via a letter from the Commission Chair
requested the parties provide a brief to the Commission on"[w]hether the Commission should
make a decision on the record as presented or open the record and consider new evidence?"
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19. July 30, 2021, the Commission received briefs from CBESS, Intervenor
Gomes, and the Planning Department. Connections submitted a letter joining CBESS's brief.
20. On August 5, 2021,the Commission voted to decide on the record as
presented and continue the hearing to the Commission's October 7, 2021 meeting to allow time
to review the voluminous record.
21. On October 7, 2021, after review of the entire record on appeal, hearing
public testimony and presentations by the Parties, the Commission voted to approve SPP 12-
000138 based on the Planning Director's October 31, 2012 revised recommendation with
conditions ("PD's Recommendation"), which was adopted.
II. PROPOSED DEVELOPMENT
A. Description of Proposed Use
22. Special Permit Application SPP 12-000138 proposes the development of a
K to 12 charter school campus with dorm facilities, and an intergenerational program that would
provide childcare and elder care at a single facility on the Property, together with related uses on
the 70-acre parcel of land. As the site is bisected by Edita 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 educational programs, including a forestry preservation program.
23. 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 with a total of 140 parking stalls would be provided.
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24. The Development would relocate and expand the existing charter school
which is presently operating from two separate campuses. The elementary and middle schools
are in the Kress Building on Kamehameha Avenue,in downtown Hilo, and the high school is in
leased facilities at the Nani Mau Gardens,just outside of Hilo town.
25. 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.
26. 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
27. Access to the Development is proposed from Edita Street which connects
with Kaumana Drive. Both roads are owned and maintained by the County of Hawaii. Edita
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.
28. The Hawai'i County Police Department("HPD")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.
29. The Applicants have agreed to follow HPD's recommendation.
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30. PD's Recommendation condition 8 states, "[t]he applicant shall construct
an 8-foot paved shoulder along the northeastern (Makai) side of Edita street from the south end
of the subject property to the intersection of Edita Street and Kaumana Drive (Standard Detail R-
34) meeting with the approval of the Department of Public Works."
Traffic
31. 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 ("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".
32. The Hawaii County Department of Public Works ("DPW")
recommended that a separate left torn 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.
33. Applicants have agreed to mitigate and minimize potential traffic impacts
by following DPW's recommendations.
34. PD's Recommendation condition 7 states, "[t]he applicant shall construct
a separate turn lane for left turns from eastbound Edita Street into Lower Campus at Road A
meeting with the approval of the Department of Public Works."
35. PD's Recommendation condition 9 states,
[t]he applicant shall submit a Traffic Management Plan to be reviewed and approved by
the Department of Public Works-Traffic Division in consultation with the Police
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Department. The comprehensive plan shall be implemented and provide traffic
management strategies that reduce traffic congestion on surrounding County roads during
special events and student pick-up/drop-off activities for the entire school campus. The
applicant shall provide active traffic management of all student pick-up/drop-off areas so
that drop-off and pick-up activity does not result in queuing of vehicles on any County
Road. The applicant shall incorporate carpooling, bus and van services, and staggering
school pick-up and drop-off times.
36. PD's Recommendation Condition 10 states, "[t]he applicant shall design
project driveways/roads, parking and loading areas so all school traffic and congestion is
confined to the project site."
Water
37. The Property has access to County of Hawaii water up to a maximum
daily usage of 4,200 gallons per day ("gpd") of water or seven (7)water units (600 gpd per unit)
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 to service the entire Development.
38. The existing 8-inch waterline within Edita Street is looped to provide the
required 2,000 gallons of water per minute for fire protection for the proposed Development.
This requirement is based on the Hawaii County Department of Water Supply's ("DWS")water
system standards for schools.
39. Potable water needs will be met by connecting to the existing county water
supply infrastructure.
40. The Applicants have also proposed to meet non-potable water supply
needs by developing an extensive rainwater collection system consisting of catchment tanks,
storage reservoirs/tanks with a network of water lines to distribute collected water throughout the
campus and/or by developing an additional water source.
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41. Per PD's recommendation condition 2, the Applicants have agreed to
submit anticipated maximum daily water usage and a water commitment deposit to the Hawaii
County Department of Water Supply within 180 of effective date of this permit. The
calculations must include the estimated peak flow in gallons per minute and total estimated
maximum potable water demand in gallons per day.
Wastewater
42. PD's Recommendation condition 13 states, "[t]he method of sewage
disposal shall meet with the requirements of the [State of Hawaii] Department of Health"
("DOH").
43. Connections is proposing to provide its own wastewater system meeting
the requirements of the DOH. Connections prefers installing an ecological/biological wastewater
system called the "Living Machine." However, if such a system proves to be unfeasible,
Connections will install a traditional septic system with leach fields, or any other system required
by the DOH.
Drainage
44. The Property is located within Zone "X" 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.
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Electric/Phone
45. Electrical and telephone services are available to the Property through
overhead lines along Edita Street and Kaumana Drive.
Public Safety
46. The HPD expressed concern that the Development would increase noise,
crime and traffic. However,there was no evidence that HPD lacks the ability to provide police
protection for the Development.
III. PHYSICAL CHARACTERISTICS OF THE PROPERTYAND SURROUNDING AREAS
47. The Property is presently vacant and undeveloped.
48. Surrounding lands to the south and west of the Property are zoned A-la,
with properties further south being zoned A-20a and A-1Oa. Properties 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.
49. The soils on the Property are primarily composed of pahoehoe lava flow.
The Agriculture Lands of Importance to the State of Hawai`i map designates the property as
unclassified. Also, the Land Study Bureau classifies the soil on the Property under its detailed
land classification system, as "D" or "Poor" for agricultural activity.
50. 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"),
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by letter dated August 17, 2010, requesting a "no-effect" determination from that agency, SHPD
has not responded to the request.
51. A portion of the Kaumana Cave is accessible from the upper portion of the
Property. Connections has agreed, per PD's Recommendation condition 5, to maintain a
minimum 100-foot buffer along the cave's entire perimeter within the Property to alleviate
concerns about impact from the Development on the cave's ecosystem. No use, structures or
land alteration activities shall be permitted within this Kaumana cave preservation buffer.
52. A botanical survey of the Property identified 11 native plant species, but
none of those species are considered protected species.
53. Invertebrate, mammalian and field surveys were conducted on the
Property. No protected species were documented to be present on the Property.
54. 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. STATEAND COUNTYPLANS
55. 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.
56. 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.
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58. 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.
59. The Development,which will be located on State land, is subject to the
Hawai'i State Environmental Impact Statement law, Chapter 343, Hawaii Revised Statute
("HRS"). Connections prepared an environment assessment in accordance with HRS Chapter
343, and a declaration with a finding of no significant impact was issued for the Development by
the State of Hawaii Department of Land and Natural Resources. State of Hawaii leased the
land to Connections for sixty-five (65)years under General Lease No. S-6029.
60. 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
61. HRS Section 205-6,which governs special permits provides, in the
relevant part, as follows:
"(a) The county planning commission may permit certain unusual and
reasonable uses within agricultural and rural 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 permission
to use the person's land in the manner desired.
(c) The county planning commission may, under such protective
restrictions as may be deemed 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
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commission may impose additional restrictions as may be necessary or
appropriate in granting the approval including the adherence to representations
made by the applicant."
62. Commission Rule 6-7, provides, in the relevant part, that:
"The 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)."
63. Planning Commission Rule 6-3(b)(5)(A) through (E)
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.
64. The criteria under Hawaii Administrative Rules (HAR) Section 15-15-
95(c)(1)through 15-15-95(c)(5),which is the Criteria the LUC uses to
review special permits, are almost identical to Planning Commission Rule
6-3(b)(5)(A)through (E).
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VI. CONFORMANCE WITH SPECIAL PERMIT CRITERIA
65. The Applicants proposed Development meets the criteria for an "unusual and
reasonable" use as defined by Commission Rule 6-3(b)(5) and HAR Sectoinl5-15-95(b) as
follows:
A. The Use Shall Not Be Contrary to the Objectives Sought to Be Accomplished by
the Land Use Law and Regulations.
The State Land Use Law and Regulations are intended to preserve,protect and
encourage the development of lands from those uses to which they are best suited in the interest
of the public welfare of the people of the State of Hawaii. Within the Agricultural District, the
intent is to preserve or keep lands of high agricultural potential for agricultural use. The
Applicants propose to develop a new academic campus,which will include an elementary,
intermediate, and high school facilities to support 381 students and 25 intergenerational clients.
The Property is owned by the State of Hawaii and consists of soil that is classified as "D" or
Poor" by the Land Study Bureau's Detailed Land Classification System.
Although the land upon which the proposed use it sought is unsuited for
agricultural uses, the Applicants are proposing to have agricultural programs on the lower
campus. The agricultural program facilities include green houses, a 6-horse barn, and cultivated
gardens,which may include vegetables, taro, fruit trees,native plants, and ornamental plants.
The agricultural program may also include livestock like chickens, goats,pigs, and horses. The
Applicants intend to use the upper parcel for a forestry/conservation program, which focuses on
forest resource management and conservation, and forest ecosystem restoration.
Thus, the proposed use would not be contrary to state land use laws and
regulations. Further, the proposed Development intends to have agricultural uses and therefore,
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would not frustrate the objectives and effectiveness of the Hawai`i's land use scheme and require
a state land use boundary amendment in lieu of a special permit.
B. The Desired Use Would Not Adversely Affect Surrounding Properties
Surrounding lands to the south and west of the Property are zoned A-la, with
properties further south being zoned A-20a and A-1Oa. Properties 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. The nearest dwellings to the upper parcel are located on
adjoining properties to the north along Kaumana Drive and to the south along Mele Manu Street.
The nearest dwellings to the lower parcel where most facilities will be located to the north along
Edita Street and Kaumana Drive.
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. However,the Applicants have agreed to
multiple conditions to mitigate and minimize the potential adverse effects the Development
could create for the surrounding properties. For example, a comprehensive traffic management
plan will be developed and implemented to ensure that school traffic and congestion does not
overflow onto County roads. The Applicants are also required, per PD's Recommendation
condition 4, to create a landscaping buffer along the entire 70-acre project site to eliminate or
minimize "noise, dust, litter, glare of lights, signs or unsightly areas between adjacent land uses
or between a land use and roadway." Planning Department Rule No. 17 (Landscaping
Requirements).
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C. The Use Would Not Unreasonably Burden Public Agencies to Provide Roads and
Streets, Sewers, Water, Drainage, School Improvements, And Police and Fire
Protection.
As mentioned above, the Developments primary access will be via Edita Street,
which extends form Kaumana Drive. The Applicant's traffic impact analysis report for the
Development indicates that at full build-out the level of service will be"A" or`B", which is
better than acceptable levels of service. However, TIAR did indicate school related vehicles
turning left into the campus will cause delays to through traffic along Edita Street unless a
separate turn lane is provided. The Applicants are required to construct a separate turn lane to
address this potential impact to traffic.
There is no municipal sewer system available at the Property, but the Applicants
intend to provide its own wastewater system that will meet the DOH's requirements. County
water service is available from an 8-inch water line on Kaumana Drive for the upper campus and
from an 8-inch water line on Edita Street for the Lower campus. The Applicants are required to
dispose of all Development related run-off onsite. Both police and fire are located relatively
close to the Development. Electricity,water and wastewater disposal facilities and other essential
services are or will be available for the proposed school and related improvements.
D. Unusual Conditions, Trends and Needs Have Arisen Since the District Boundaries
and Rules Were Established.
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. Connections currently operates two campuses
one at the Kress Building, Downtown Hilo and at Nani Mau Gardens Facility. Neither location
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is an ideal place for a school campus, establishment of the Kaumana campus will provide new
educational opportunities for current and future students.
E. The Land Upon Which the Proposed Use is Sought is Unsuited for the Uses
Permitted the District.
The Land Study Bureau Detailed Land Classification System (with"A" being the
best and "E" being the worst) classifies the soil, which mainly consists of pahoehoe lava as "D"
or "Poor" for agricultural activity. The land on which the proposed use if located is
"Unclassified" by Agriculture Lands of Importance to the State of Hawaii ("ALISH") System.
As mentioned above, although the land is unsuited for agricultural uses,
Connections is proposing to maintain the upper portion or nearly one-half of the Property for
forestry use, and to construct greenhouses and conduct an agricultural program in conjunction
with its curriculum on the lower campus.
F. The Proposed Use Will Not Substantially Alter or Change of the Essential
Character of the Land and Present Use.
The current character and present use of the subject property is undeveloped,
vacant of structures and uses. The current character of the surrounding area is residential and
agricultural. The present use of the area is mainly residential with come agricultural activity and
vacant land. The Applicants have proposed to construct buildings as single-story structures, like
the surrounding residential community, to help minimize the change to the essential character of
the land.
G. The Request Is Not Contrary to The General Plan and Official Community
Development Plan and Other Design Plans.
The Economic, Public Facilities and Land Use elements of the County General
Plan all require consideration of social and community concerns as follows:
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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.
• Provide residents with opportunities to improve quality of life through
economic development that enhances the County's natural and social
environments.
Public Facilities-Education (Course of Actions for South Hilo)
• Encourage the establishment of additional schools as need arises.
• 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-Public Lands
• "Encourage uses of public lands that will satisfy specific public needs,
such as housing,recreation, open space and education.
VII. THE PUBLIC TRUST DOCTRINE
66. Article XI, Conservation, Control and Development of Resources, Section 1 of
the Constitution of the State of Hawaii states the following:
"For the benefit of present and future generations, the State and its political subdivisions
shall conserve and protect Hawai`i's natural beauty and all natural resources, including
land, water, air, minerals and energy sources, and shall promote the development and
utilization of these resources in a manner consistent with their conservation and in
furtherance for the self-sufficiency of the State. All public natural resources are held in
trust by the State for the benefit of the people."
The proposed Development is State Land and therefore is considered a public trust
resource. The proposed use is not contrary to the public trust doctrine because the Applicants
intend to use the land for educational purposes that will benefit our present and future
generations. Further, on the lower campus, the Applicants intend to develop an agricultural
program,which would have cultivated gardens to teach children how to grow food. On the
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upper campus, the Applicants intend to create a forestry/conservation program,which will focus
on forest resource management and conservation and forest ecosystem restoration. Both
programs are in line with the public trust doctrine's goal to promote the furtherance of a self-
sufficient State. There are few higher uses of land than to educate our keiki on how to cultivate,
manage and restore the land so that the land may be preserved for future generations.
CONCLUSIONS OF LAW
The construction and operation of a school is not a permitted use within the State Land
Use Agricultural District pursuant to 205-2, HRS. The Application to develop a K-12 charter
school campus constitutes and "unusual and reasonable" use as provided in HRS Section 205-6
as established by HAR Section 15-15-95(b) and Commission Rule 6-7(b), and the proposed use
is not contrary to the objectives sought to be accomplished by the State Land Use Law to
preserve,protect, and encourage development of lands in the State for those uses to which they
are best suited in the interest of the public health and welfare.
DECISION AND ORDER
Based upon the preceding Findings of Fact and Conclusions of Law, Special Permit
Application SPP No. 12-000138 submitted by Applicants Connections New Century Public
Charter School and Community Based Education Support Services to develop a K to 12 charter
school campus with dorm facilities and related uses on 70.15 acres situated within the State Land
Use Agricultural District is hereby approved and a favorable recommendation shall be forwarded
to the State of Hawaii Land Use Commission.
DATED: Hilo, Hawaii, November 4, 2021.
By
John Replogle, Chairman
Windward Planning Commission
County of Hawaii
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