HomeMy WebLinkAboutFINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER (SPP-2021-000005) BEFORE THE COUNTY OF HAWAII
WINDWARD PLANNING COMMISSION
Application of Special Permit No. PL-SPP-2021-000005
JOHN KU`UALOHA HEWETT& FINDINGS OF FACT, CONCLUSIONS OF
PATRINA TINE NIU-HEWETT LAW, and DECISION AND ORDER
For Special Permit for the operation of a
self-storage and mailing service facility and
related improvements on an approximately
1.64-acre property in the State Land Use
Agricultural District. The subject property is
located at 16-308 `Ainaloa Boulevard in the
Orchid Land Estates Subdivision,
approximately 1 mile southwest of its
intersection with Kea`au-Pahoa Road, or
Highway 130, directly across from the
`Ainaloa Longhouse complex, Orchidland
Estates Subdivision, Kea`au, Hawaii, TNM:
(3) 1-6-008:328.
FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND ORDER
I. INTRODUCTION
This matter comes before the Windward Planning Commission of the County of Hawaii
(the "Planning Commission"),pursuant to Chapter 205-6, Hawaii Revised Statutes and Rule 6
of the Rules of Practice and Procedure of the Planning Commission,upon the application of John
Kuualoha Hewett and Patrina Tine Niu-Hewett to obtain a Special Permit. The Planning
Commission considered the complete case record at its hearing on January 6, 2022 and made the
determinations and decisions set forth herein at the close of the January 6, 2022 hearing on the
matter.
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II. FINDINGS OF FACT
The Planning Commission makes the following findings of fact by a preponderance of
the evidence:
A. Procedural Matters
1. On September 23, 2021, the Planning Department received the Special
Permit Application from John Kuualoha Hewett and Patrina Tine Niu-Hewett for the operation
of a self-storage and mailing service facility and related improvements on an approximately
1.64-acre property in the State Land Use Agricultural District. The subject property is located at
16-308 `Ainaloa Boulevard in the Orchid Land Estates Subdivision, approximately 1 mile
southwest of its intersection with Kea`au-Pahoa Road, or Highway 130, directly across from the
`Ainaloa Longhouse complex, Orchidland Estates Subdivision, Kea`au, Hawaii, TMK: (3) 1-6-
008:328
2. On October 8, 2021 the Planning Department acknowledged receipt of the
Special Permit Application (PL-SPP-2021-000005).
3. On October 8, 2021, the Planning Director sent a request for written
comments to public and interested private agencies, and provided a request for written comments
no later than November 8, 2021. The agencies included the Department of Public Works
Engineering Division (Hilo), Department of Water Supply, Fire Department, Department of
Environmental Management, Police Department, Office of Planning, Department of
Transportation, Department of Land and Natural Resources, Health Department, Department of
Agriculture, Land Use Commission, Real Property Tax,Ainaloa Community Association and the
Orchidland Community Association.
4. On October 15, 2021 the Planning Department received from the
Applicant, an affidavit of first mailing to property owners within 500 feet of the subject parcel
dated October 15, 2021. The letters were mailed on October 14, 2021.
5. On December 1, 2021 the Planning Department received from the
Applicant, an affidavit and photographic evidence of sign posting dated October 21, 2021
6. In October through November 2021, the Department received comments
on the Application from the Department of Public Works—Engineering Division, Department of
Water Supply, Deparment of Environmental Management, Department of Health, Department of
Transportation, Office of Planning and Sustainable Development, Department of Land and
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Natural Resources Forestry and Wildlife Division and Engineering Division (See Exhibit List).
The remainder of the agencies had no comment or response.
7. By letter dated December 20, 2021, the Planning Department notified the
Applicant that the Windward Planning Commission would hold a public hearing on the
application on January 6, 2022 via Zoom video conferencing. Notice of the public hearing was
published by the Planning Commission on December 17, 2021 in the Hawaii Tribune-Herald
and the West Hawaii Today.
8. On January 5, 2022 the Planning Department received from the applicant
an affidavit of second mailing to property owners within 500 feet of the subject parcel dated
December 29, 2021. The letters were mailed on December 22, 2021.
9. The Planning Commission commenced the public hearing on the
application on January 6, 2022 at 9:00 a.m., via Zoom. Applicant's representative John Pipan
and Landowner Patrina Hewett appeared on behalf of the Applicant. Deputy Corporation
Counsel Jean Campbell appeared on behalf of the Planning Department. Deputy Corporation
Counsel Malia Kekai appeared on behalf of the Planning Commission. Planning Commissioners
present were Gilbert Aguinaldo, Dean Au, Joseph Clarkson,Michelle Galimba, Dennis Lin,
Thomas Raffipiy and John Replogle. Planning Department Staff present were Jeff Darrow
(Planning Deputy Director),Alex Roy (Temporary Assignment Planning Program Manager),
Christian Kay (Planner) and Melissa Dacayanan-Salvador(Commission Secretary).
10. The Planning Commission took no testimony from members of the public.
11. The Planning Commission asked questions of the Planning Department
staff, Applicant's representative, John Pipan and Landowner Patrina Hewett.
12. The Planning Commission moved and seconded that the application for
Special Permit Docket No. PL-SPP-2021-000005 be denied based on the Deputy Planning
Director's Recommendation.
13. The Planning Commission moved and seconded that the matter be
continued to the next Windward Planning Commission meeting on February 3, 2022 to allow for
the preparation of the Final Proposed Findings of Facts and Conclusion of Decision and Order
for the application for Special Permit Docket No. PL-SPP-2021-000005.
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B. Proposed Development
1. The applicant, is requesting a Special Permit to establish a self-storage and
mailing service facility on 1.64-acres of land which will consist of the following:
a. Self-Storage Buildings: Five (5)buildings totaling 18,000 square
feet of gross floor area with a total of 180 rentable storage units that are each 100 square feet
(10'x10)in size: Three (3) of the buildings will each total 4,000 square feet(20' x 200')in size
and contain about 120 storage units in total. The remaining two (2)building will each total,
3,000 feet(20' x 150')in size and contain the remaining 60 storage units.
b. Office Building: One (1), two (2)-story, 960-square foot building
(24' x40'), in size, will be used for an office and mailing service facility on the ground floor and
a residence for an on-site operator/caretaker on the second floor.
C. Water Catchment Tanks: Two (2)non-potable water catchment
tanks are planned to provide a total storage of at least 51,000 gallons to satisfy Fire Code
requirement for fire protection and a separate water holding tank for potable water.
d. Access/Parking: The existing driveway from `Ainaloa Boulevard
will be improved into a 24-foot-wide paved driveway and a 14 stall,paved parking lot including
one (1)ADA accessible stall will be constructed.
2. Employees: The applicant is proposing one full-time employee for the
business.
3. Hours of Operation: The applicant is proposing to operate the facility
from 6:00 a.m. to 6:00 p.m., daily.
C. Description of Property and Surroundin,-Areas
1. State Land Use(SLU)District. Agricultural District.
2. County Zoning: Agricultural 1-acre (A-la).
3. General Plan (LUPAG)Map Designation: Rural (rur). This designation
includes existing subdivisions in the State Land Use Agricultural and Rural districts that have a
significant residential component, including the Orchidland Estates, `Ainaloa, and Hawaiian
Paradise Park subdivisions. Typical lot sizes vary from 9,000-square feet to two acres. These
subdivisions may contain small farms,wooded areas, and open fields as well as residenes.
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Allowable uses within these areas,with appropriate zoning,may include commercial facilities
that serve the residential and agricultural uses in the area, and community and public facilities.
4. Puna Community Development Plan (PCDP): The subject property is
located between the Orchidland and `Ainaloa neighborhood village centers. The Orchidland
neighborhood village center was identitified by the community association in the "Orchidland
Estate Design Plan 2007" and is located along Orchidland Drive from Highway 130 to halfway
between 34th and 35th Avenues. The `Ainaloa neighborhood village center is located about
halfway between `Ainaloa Boulevard and `Ainaloa Drive, between Tree Fern Drive and
Rainbow Drive. Thus the subject property is not situated within any designated village center
locations suggested by the PCDP.
5. Special Management Area (SMA): The subject property is located
approximately five and a half(5.5)miles from the nearest coastline and is not within the Special
Management Area.
6. Subject Property: The subject property is approximately 1.64 acres in
size and is rectangular in shape and relatively level. The property is currently vacant of uses and
has previously been graded. It is landscaped with grass and surrounded on the north,west and
south side by a rock wall and fencing.
7. Surrounding Zoning/Land Uses: The properties immediately
surrounding the subject property are zoned Agricultural 1-acre (A-la) and are in agricultural and
residential use. The `Ainaloa Longhouse which serves as the community center for the `Ainaloa
Subdivision, is located across `Ainaloa Boulevard on property zoned Open (ope). A volunteer
fire station,post office boxes and a community park are also located on the Longhouse property.
The closest dwelling is located about 35 feet away on the adjacent lot to the north. There are also
dwellings located to the east, across 37th Avenue and on the adjacent lot to the west. The
landowner of the subject property also currently owns the three vacant adjacent properties
directly to the east.
8. U.S.D.A. Soil Type:Pahoehoe Lava Flows (rLW). Pahoehoe lava has no
soil covering and is typically bare of vegetation except for mosses and lichens.
9. Land Study Bureau Soil Rating: The overall crop productivity rating for
soils on the subject property is "E" or"Very Poor".
10. ALISH. Unclassified.
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11. Flood Zone: The property is located entirely within Floor Zone"Y',
which is an area determined by FEMA to be outside of the 500-year flood plain.
12. Flora/Fauna Resources: No formal floral or faunal studies were
conducted of the property because it has been graded in the past and is regularly mowed.
13. Archaeological/HistoricaUCultural Resources: The property is not listed
on the Hawai`i State or National Register of Historic Places. No formal archeological study was
conducted on the site as it has been graded in the past. In a letter dated March 31, 2009, the
DLNR-SHPD determined that no historic properties will be affected by development of the
property.
14. Public Access: There is no public coastal or mountain access that
traverses through this private property.
15. Traffic: According to the applicant, the proposed use would generate a
modest increase in traffic to the subject property. Per the Institute of Transportation Engineers
(ITE) Trip Generation manual, an approximately 18,000-square foot, self-storage operation
would generate an estimated 3.06 peak hour vehicle trips, and the proposed mailing service
facility would generate an estimated 10.75 peak hour trips. Using the ITE Trip Generation
manual, the combined number of trips that the proposed storage facility and mailing service
facility are expected to generate is approximately 13.81 peak hour trips, thus does not meet the
minimum 50 peak hour trips to trigger the requirement of a Traffic Impact Analysis Report
(TIAR)under the concurrency section of the Zoning Code.
16. Access: The subject property has frontage along `Ainaloa Boulevard.
`Ainaloa Boulevard is a two-lane paved County roadway, classified by the General Plan as a
collector,with a right-of-way width of 60 feet. The applicant proposes one 24-foot-wide paved
driveway access to the property from `Ainaloa Boulevard to serve the proposed project.
17. Water:According to the Department of Water Supply (DWS),water is not
currently available to the subject property,with the closest waterline located about one (1) mile
away within Highway 130. According to the applicant, the proposed project will include two (2)
catchment tanks providing a total storage of at least 51,000 gallons for fire suppression and a
separate water holding tank for potable water for use by the proposed residence.
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18. Wastewater: As there is no municipal sewer system in the area,
wastewater generated by the proposed project will be disposed of by an individual wastewater
system(s) meeting the requirements of the Department of Health.
19. Solid Waste: There are no municipal waste collection services in the
County. All solid waste generated by the development will be disposed of at the nearest County
transfer station. Refuse collected at the Hilo landfill will be eventually transported to the West
Hawaii Sanitary Landfill.
20. Other Essential Utilities and Services: Electric,internet, and telephone
currently serve the subject parcel. Police and fire services are located approximately 3.5 miles
away in Pdhoa.
M. CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, the Planning Commission makes the following
Conclusions of Law, including mixed conclusions of fact and law:
A. The Commission has jurisdiction over this Special Permit application pursuant to
Hawaii Revised Statutes ("HRS") Section 205-6. In considering a Special Permit for any
proposed uses, the Planning Commission must find:
i. The proposed use is an unusual and reasonable use of land situated within
the Agricultural or Rural District,whichever the case may be; and
ii. The proposed use would promote the effectiveness and objectives of
Chapter 205, Hawaii Revised Statutes (H.R.S.), as amended.
B. In addition to the above, Rule 6-3(5) of the Planning Commission relating to
Special Permits requires that the following criteria be met:
i. Such use shall not be contrary to the objectives sought to be accomplished
by the Land Use Law and Regulations,
ii. The desired use shall not adversely affect surrounding properties.
iii. Such use shall not unreasonably burden public agencies to provide roads
and streetsm sewers,water, drainage, school improvements, and police and fire protection.
iv. Unusual conditions,trends, and needs have arisen since the district
boundaries and regulations were established.
V. The land upon which the proposed use is sought is unsuited for the uses
permitted within the district.
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Vi. The proposed use will not substantially alter or change the essential
character of the land and the present use.
vii. The request will not be contrary to the General Plan and official
Community Development Plan and other documents such as Design Plans.
C. In review of the above criteria, the Windward Planning Commission has
determined the following:
The proposed use will not promote the effectiveness and objectives of
Chapter 205,H.R.S., as amended. Through the passage of Chapter 205, H.R.S.,
otherwise known as State Land Use Law,the State Land Use Commission was
established. It called for classification of all lands in the State and authorized the adoption
of rules of practice and procedure and regulations for land use within the various land use
districts. The four(4) land use districts (Agricultural, Rural, Urban and Conservation)
created by the State Land Use Commission provided the basic legal framework of land
uses in the State of Hawaii and assisted in the implementation of the long-range land use
objectives of the State and Counties. The intent of these statutory provisions is to
preserve,protect, and encourage the development of lands in the State for those uses to
which they are best suited in the interest of the public health and welfare of the people in
Hawaii. The proposed request for a self-storage facility and mailing service facility is
located in an area designated Agricultural by the State Land Use Commission. As the
requested use is not permitted in the State Land Use Agricultural District, a Special
Permit is required to allow for the use to be permitted.
According to the County Zoning Code, self-storage facilities are considered a
light industrial use only permitted within the industrial-commercial mixed (MCX),
limited industrial (ML) and general industrial (MG) zoning districts. It is likely that self-
storage facilities are only permitted in these zoning districts because of the potential for
users to store hazardous materials within the units and the facilities consist of warehouse-
type structures. The industrial zoning districts were created to situate these types of uses
separate from residential and other incompatible uses and to ensure that non-industrial
areas will not be exposed to unsafe and unhealthy environments.
Additionally, in its memorandum dated October 28, 2021, the State Office of
Planning and Sustainable Development(OPSD) stated that the proposed self-storage and
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mailing service facility use on the subject property constituted a large commercial use
that is incompatible with the County's Rural LUPAG designation and inconsistent with
the Puna CDP's directive to focus commercial uses within Village/Town Centers.
Additionally, OPSD is concerned that granting a Special Permit for what they consider
commercial uses on the property would encourage the spread of such uses within the
SLU Agricultural District and that permitting of such uses "would be similar to spot
zoning within the Agricultural District which generally should not be permitted by
Special Permit.
Based on the preceding, the proposed use should be located on lands zoned
industrial within the SLU Urban district,rather than on agriculturally zoned land in the
SLU Agricultural district. Thus, the proposed uses will not promote the effectiveness and
objectives of Chapter 205, H.R.S., as amended.
The request would be contrary to the General Plan and Puna Community
Development Plan. The County of Hawai`i's General Plan (GP) is the policy document
for the long-range comprehensive development of the island of Hawaii. One of the
purposes of the GP is to guide the pattern of future development of the County based on
long-term goals. The GP Land Use Pattern Allocation Guide (LUPAG)Map designates
the property as Rural,which are areas that include existing subdivisions in the State Land
Use Agricultural and Rural districts that have a significant residential component. These
subdivisions may contain uses that serve the residential and agricultural community in the
area and contain community and public facilities but must have appropriate zoning for
these uses. The proposed, uses are not considered community/public facilities as the self-
storage facility is industrial in nature and the mailing service facility is commercial in
nature. Thus,the subject property's agricultural zoning is inappropriate for that use and
inconsistent with the Rural LUPAG designation.
As a policy document, the General Plan and its LUPAG map also provide
guidance for a particular land use pattern that could be considered within a particular area
whether by a change of zone or, as in this situation, a Special Permit. The Rural LUPAG
designation alone does not create a presumption in favor or against this particular Special
Permit application; it simply affords an opportunity for which a Special Permit request
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can be considered on a case-by-case basis. This denial recommendation is,in part based
on conflicts with the following goals and policies of the General Plan:
Land Use-Industrial Element
A. Designate and allocate industrial areas in appropriate proportions and in
keeping with the social, cultural, and physical environments of the County
B. Industrial development shall be located in areas adequately served by
transportation, utilities, and other essential infrastructure.
C. Industrial development shall maintain or improve the quality of the present
environment.
The General Plan indicates that the Community Development Plan (CDP) is
intended to implement the broad goals within the General Plan on a regional basis. The
CDP should direct physical development and public improvements within a specific area
and may contain detailed land use and zoning guide maps, plans for roadways, drainage,
parks and other infrastructure and public facilities, architectural design guidelines,
planning for watershed and other natural features.
The subject property is located within the boundaries of the Puna CDP, which
encourages growth within the village and town centers to give residents better access to
public and commercial services while preserving natural and cultural resources by limiting
the spread of development. The subject property is not situated within an area designated
as a village/town center in the Puna CDP. The closest village center (`Ainaloa
Neighborhood Village Center) is located over a mile away from the subject property and
the next closest (Orchidland Estates Neighborhood Village Center) is located
approximately 2.6 miles away from the subject property.
Although the property is located across the street from the `Ainaloa Longhouse,
which has acted as a community gathering place (with a community center, public park,
mailbox area, and volunteer fire facility) the Puna CDP does not designate the area as a
Neighborhood Village Center, thus approval of the requested light industrial/commercial
use on the subject property will undermine the attempts of the Puna Community
Development Plan to establish formal village centers.
Furthermore, the Puna CDP was amended in 2011 to include, in part, a section on
industrial zoning and uses. Section 5.2.4 of the CDP identifies areas of existing industrial
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zoning in Puna(Shipman Industrial Park,Milo Street in Kea`au,and the former Puna Sugar
Mi110, but also recognizes the need for more sites for service-type light industrial uses,
including self-storage facilities. However, the demand for these sites closer to the
population centers of Hawaiian Paradise Park/Orchidland/`Ainaloa and upper Puna have
resulted in Special Permits creating light industrial uses scattered among residential and
agricultural lots,rather than planned development.Thus,the CDP proposed that any further
industrial/light industrial development should be limited to sites currently designated
industrial by the GP LUPAG Map, as well the following areas: a 100-acre site on DHHL
property located makai of the Pahoa Fire Station, and area situated generally mauka of
Malama Market, and an area along 33rd Street in Hawaiian Paradise Park, from Maku`u in
the direction of Kea`au, where several businesses have been created via Special Permit.
In 2012, Special Permit request was submitted for the development of a
convenience store with a certified kitchen and related improvements on a land area that
includes the subject property. At the time, the Planning Director similarly recommended
denial of the Special Permit due to the fact that the proposed commercial uses were
inconsistent with the GP and CDP due to the property not being located within a designated
village center. The Planning Commission disagreed with the Director's recommendation
and the `Ainaloa Community Association's testimony in opposition and ultimately
approved Special Permit No. 12-132, citing the need for a commercial center in the area
and the benefit to the surrounding community of a convenience-type commercial use and
a certified kitchen to assist with the provision of warm meals to senior in the area. That
Special Permit was revoked in 2018 at the applicant's request and the two lots were
subsequently consolidated and resubdivided into four parcels. While the Planning
Commission at the time felt that commercial uses were appropriate there, the applicant is
currently proposing light industrial uses which, based on the above discussion are
inappropriate on this site.
Finally, as noted in the application, the Planning Commission has previously
approved Special Permits for self-storage facilities within the Puna District: These include
Special Permit No. 1015 (John and Jean Vurich) approved in 1998 on a one(1)-acre parcel
on 14th Avenue and Kaloli Drive in Hawaiian Paradise Park, Special Permit No. 04-017
(John and Jean Vurich) on the adjacent one (1)-acre parcel in the same area, and Special
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Permit No. 07-042 (Pahoa Self Storage)in Pahoa Town. While these Special Permits were
granted for similar uses in Rural and Medium Density Urban LUPAG designations
respectively, they were all issued prior to the 2005 General Plan Update and the adoption
of the Puna CDP, thus the goals, policies, and actions articulated in these documents as
discussed above did not apply to the Department's/Commission's analysis of the requests.
Based on the preceding, the request fails to address the fundamental problems
associated with the development of the proposed light industrial business in this particular
area, which is the inability to establish an effective land use pattern. Effective land use
planning requires a regional perspective towards establishing a proper land use pattern
within a given area.
The proposed use is not an unusual and reasonable use of land situated
within the State Land Use Agricultural District and would not promote the
effectiveness and objectives of the State Land Use Law and Regulations and
Chapter 205,HRS, as amended. The State Land Use Law and regulations are intended
to preserve,protect and encourage the development of lands for those uses to which they
are best suited in the interest of the public welfare of the people of the State of Hawaii.
In the case of the Agricultural District,the intent is to preserve or keep lands of high
agricultural potential in agricultural use. In recognizing that lands within agricultural
districts might not be best suited for agricultural activities and yet classified as such, and
in recognition that certain types of uses might not be stricly agricultural in nature,yet
reasonable in such districts,the legislature has provided for the Special Permit process to
allow certain unusual and reasonable uses within the Agricultural district. Historically,
the Planning Commission has supported the issuance of Special Permits for community
uses like churches, schools,home occupations like bed and breakfasts, and commercial
uses that are agricultural in nature, for example farmers markets,veterinary clinics,
agricultural tourism operations. These types of land uses are reasonable to allow on
agricultural land because they either directly serve as a community benefit, or help
sustain the agricultural community, or have relatively minor impacts to agricultural land
because they are occurring within an existing dwelling.
While the proposed use is unusual in that it is not agricultural in nature,the
Planning Commission does not believe the applicant's request is a reasonable use of
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agricultural land because it would permanently commit the use of the property to an
industrial land use,which the General Plan and Puna CDP clearly indicate should be
located within industrially zoned areas in the Puna community.
Based on the preceding, the Planning Commission does not believe the
applicant's request is a reasonable use of agricultural land because it would permanently
commit the use of the property to an industrial land use,which the General Plan and Puna
CDP clearly indicate should be located within industrially zoned areas in the Puna
community.
D. 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.
IV. DECISION AND ORDER
Based on the foregoing, IT IS HEREBY DECIDED AND ORDERED BY THE
WINDWARD PLANNING COMMISSION that the proposed use is not an unusual and
reasonable use of land within the State Land Use District and would not promote the
effectiveness and objectives of State Land Use Law Regulation and Chapter 205, HRS, as
amended. Therefore, Special Permit Application No. PL-SPP-2021-000005 is hereby DENIED.
DATED: Hilo, Hawaii, , 2022.
By
Dean Au, Chairman
Windward Planning Commission
County of Hawaii
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