HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-REZ-2022-015_AMEND REZ-05-027) RHinchcliffREZAmend.tic.3.92022
COUNTY OF HAWAII PLANNING DEPARTMENT
RECOMMENDATION
CLINTON HINCHCLIFF JR.
AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 06 82 (PL-REZ-2022-
000015/REZ 05-27)
Upon careful review of the request to amend conditions of Ordinance No. 06 82, the
Planning Director is recommending that a favorable recommendation for the applicant's
proposed amendments to Conditions D and Condition E, and deletion of Condition J be
forwarded to the County Council. Since this recommendation is made without the benefit of
public testimony, the Director reserves the right to modify and/or alter this position based on
additional information presented at the public hearing. This recommendation is based on the
following findings:
The applicant is requesting a five (5)-year time extension to Condition D (Final
Subdivision Approval), and amendment of Condition E (Restrictive Covenants) and
Condition F (Restrictive Covenants)to delete the requirement to provide a copy of the
recorded covenant prior to receipt of final subdivision approval, and deletion of
Condition J (Improvements to Kaloko Drive/Mamalahoa Highway Intersection) of
Ordinance No. 06 82,which reclassified 21.992 acres of land from Agricultural 20-acres
(A-20a)to Family Agricultural 3-acre (FA-3a) zoned district. The applicant is requesting
the following amendments to Change of Zone Ordinance No 06 82:
■ A five (5)-year time extension to Condition D (Final Subdivision Approval).
■ Amendment of Condition E(Restrictive Covenants)
■ Deletion of Condition J (Improvements to Kaloko Drive/Mamalahoa Highway
Intersection)
Please note that the applicant originally requested an amendment to Condition F to
remove the requirement to record approved covenants prior to Final Subdivision
Approval. Staff noted that after reviewing the existing condition, that the request is
already noted in the existing language. Based on the preceding, the applicant submitted a
request to withdraw the amendment request to Condition F via letter dated April 2, 2022
to the Planning Department.
1
The non-performance on timed conditions is the result of conditions that
could not have been foreseen or are beyond the control of the applicants, successors
or assigns, and that are not the result of their fault or negligence. The previous
landowner, Nimble Inc. sought and was granted a change of zone in 2006 and began
working on compliance with conditions of approval towards the development of a seven
(7) lot subdivision. In 2010, the current landowner secured a partial interest in the
property and shortly after the property was involved in an extensive litigation with the
former owners of the property. Despite the landowner's efforts at the time, the
landowners were unable to obtain Final Subdivision approval by June 2011 and did not
seek an administrative time extension from the Planning Department. In 2011 the
Planning Department deemed the subdivision application null and void.
The current landowner resolved the land title issues in 2015 and due to unforeseen
circumstances with business and a weak real estate market at the time, the landowner
elected to defer completing conditions of approval until 2020. In 2021 the current
landowner along with a new surveyor and engineer for the project submitted a
subdivision application for the subject property and made efforts to complete water
commitment requirements where they learned that the time to complete final subdivision
had lapsed. To recitfy this oversight the landowner is requesting a five (5) year time
extension to complete the subdivision. In addition, the landowner is requesting
amendments to Condition E and deletion of Condition J to be more consistent with most
recent rezoning conditions in this area.
Based on the reasons provided it is determined that the applicant could not have
foreseen the title issues, which was beyond their control and was not the result of their
fault or negligence. Furthermore, the Planning Director has recommended updating the
existing conditions to reflect the current standard language and adding new conditions as
recommended by agencies. The applicant is committed to complying with the conditions
of approval, including the requirements for protecting and maintaining the naturally
forested areas on their property by creating forest reserve easements and enhanced
structural setbacks on the property(s). Lastly, the applicant will be required to comply
with all agency requirements and stated conditions of approval.
Granting of the time extension amendments would not be contrary to the
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General Plan or Zoning Code. The original reasons for the approval of the change of
zone are still applicable and the request is not contrary to these reasons. There have not
been any significant changes to the General Plan or Zoning Code for this area since the
subject rezone approval in 2006. At that time the General Plan LUPAG Map designation
for the property was the same as it is today, Important Agricultural Lands. These are
designated lands with better potential for sustain high agricultural yields because of soil
type, climate,topography, or other factors.
Since the approval of the Change of Zone in 2006, the Kona Community
Development Plan (CDP) was since developed and adopted by the County Council on
September 25, 2005 as Ordinance No. 08 131, as amended by Ordinance No. 19 091,
effective September 18, 2019. The Kona CDP has goals, objectives, and policies relevant
to housing through its Land Use section that specifically includes similar goals as the
General Plan regarding preservation of natural resources and native species, as well as
watershed protection. The proposed subdivision is compatible with the rural character of
lands located within the Kaloko Mauka Subdivision and conditions of approval will
continue to be required to be included in deeds of all the proposed lots for the subdivision
which prohibit second dwelling units as well as require forest management plans. Both
conditions are intended to preserve the agricultural ambience of the area and preserve the
forest corridors within the Kaloko Mauka subdivision.
Granting of the time extension would not be contrary to the original reasons
for the granting of the change of zone. The proposed request will not unreasonably
burden public agencies to provide infrastructure and utilities to the property. The
Department of Public Works and Department of Health had no concerns regarding the
request. The property has sufficient access to Kaloko Drive. There is sufficient water for
the proposed request and the applicant has paid the water commitment fee for six (6)
additional units of water through October 31, 2024. Based on the preceding, the Planning
Director is recommending amending Condition C to require the applicant to maintain
valid water commitments until the required water facility charges are paid in full.
The Department of Transportation (DOT) has previously shown concern about the
numerous rezonings in the Kaloko Mauka Subdivision and the cumulative impact of
these changes on the intersection of Mamalahoa Highway and Kaloko Drive. The DOT
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has previously recommended the following improvements at the intersection due to the
additional traffic and activity on the roads from the cumulative effect of the land use
change:
• Illuminate the intersection at night
• Channelize turning movements at the intersection
• Other safety improvements
The DOT had further stated that the intersection improvements should be made at
no cost to the State and requested that plans for improvements within the State highway
right-of-way be submitted to the Highways Division for review and approval. Based on
concerns raised in 2006, the County Council placed Condition J in Ordinance No. 06 82
which prohibited the issuance of building permits for 24 months on the subject property
until intersection improvements have been completed to the Kaloko Drive-Mdmalahoa
Highway intersection. Surrounding rezones in the subdivision have only included a
condition of approval requiring that the fair share fee paid for regional impacts to
transportation,park,police, fire and solid waste facilities be allocated entirely for the
County and/or State to improve the Kaloko Drive-Mdmalahoa Highway intersection.
Based on the preceding,the Planning Director is recommending the removal of Condition
J at this time. Lastly,the Planning Director is amending Condition L to update the fair
share fees that will be contributed for the improvement of the Kaloko Drive-Mdmalahoa
Highway intersection.
The request is not contrary to Chapter 205A,Hawaii Revised Statues,
relating to Coastal Zone Management. The project site is located approximately seven
(7) miles from the nearest shoreline and is not situated within the SMA. Thus, the
property will not be affected by coastal hazards and beach erosion. There are no
identified recreational resources,historic resources,public access to the shoreline or
mountain areas, scenic and open space preserves, coastal ecosystems, or marine resources
on the subject property.
In view of the Hawaii State Supreme Court's PASH and"Ka Pa`akai O Ka`aina"
decisions, the issue relative to native Hawaiian gathering and fishing rights must be
addressed in terms of the cultural,historical, and natural resources and the associated
traditional and customary practices of the site:
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Investigation of valued resources: No formal archaeological reconnaissance
survey, oral history of kama`aina accounts of the area, historical survey of documentary
records, or botanical study was included in the application. The property is located within
the boundaries of a pre-contact age upland agricultural system known as the Kona Field
System,which is listed in the State Inventory of Historical Places. The area was the
subject of a reconnaissance survey and test excavations in 1970 and 1971 by Hu`ehu`e
Ranch, the developers of the Kaloko Mauka Subdivision. In addition,the National Park
Service published a report in 1991 entitled, "An Ahupua`a Study: The 1971
Archaeological Work at Kaloko Ahupua`a,North Kona." This study also identified
remains of an agricultural field system up to the 3,500-foot elevation at certain locations.
A copy of the application was sent to the State Historic Preservation Division with a
request for comments. The Department of Land and Natural Resources, Division of
Forestry and Wildlife (DOFAW),provided comments to address the impact of the
proposed project on endangered or threatened flora and fauna that may occur in the
project area, specifically the Hawaiian Hawk(Io),the Blackburn Sphinx Moth,
Hawaiian hoary bats, Hawaiian goose (Nene), and seabirds. Additionally, DOFAW
provided comments regarding the spread of Rapid `Ohi`a Death and the spread of
invasive plant species. Conditions of approval will be included to address the
recommendations provided by DOFAW.
The valued cultural,historical, and natural resources found in the rezoning area:
The Department is not aware of any cultural or historic resources on the property.
According to the applicant,there is no evidence of any traditional and customary Native
Hawaiian rights being practiced on the property. The property is covered in native forest.
Possible adverse effect or impairment of valued resources: Some native plants
may be destroyed by construction or ground alteration. There is no evidence that the flora
in the area are particularly desired or used for cultural practices.
Feasible actions to protect native Hawaiian rights: According to the applicant, no
gathering is taking place on the site. Thus,to the extent to which traditional and
customary native Hawaiian rights are exercised,the proposed action will not affect
traditional Hawaiian rights; therefore,no action is necessary to protect these rights. Since
no archaeological study of the property was conducted by the previous landowner and
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current landowner and since the area is part of the Kona Field System,the Planning
Director recommends a condition requiring an Archaeological Field Inspection for the
property to identify resources and to implement mitigation if resources are found to be
present on the property.
Lastly,this recommendation is made with the understanding that the applicant
remains responsible for complying with all other applicable governmental requirements
in connection with the proposed use,prior to its commencement or establishment upon
the subject properties. Additional governmental requirements may include the issuance of
building permits, compliance with the Fire Code, installation of improvements required
by the American with Disabilities Act(ADA), among many others. Compliance with all
applicable governmental requirements is a condition of this approval; failure to comply
with such requirements will be considered a violation that may result in enforcement
action by the Planning Department and/or the affected agencies.
Based on the preceding findings, the Planning Director recommends a favorable
recommendation for the applicant's proposed amendments to Conditions D and Condition
E, and the deletion of Condition J be forwarded to the County Council. In addition, the
Planning Director recommends that existing conditions in the ordinance be revised to reflect the
current standard language for conditions of approval. The accompanying draft bill to amend
Ordinance No. 06 82 is provided for your consideration. Please note the proposed conditions of
approval attached to the draft bill. Material to be deleted is bracketed and struck through; new
material is underscored.
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4�M�V`OF h{`�pi
COUNTY OF HAWAII +_ STATE OF HAWAII
ri�•oF•rr.M�
BILL NO.
ORDINANCE NO. {Planning Department}
AN ORDINANCE AMENDING ORDINANCE NO. 06 82 WHICH RECLASSIFIED LANDS
FROM AGRICULTURAL—20 ACRES (A-20a) TO FAMILY AGRICULTURAL—3 ACRES
(FA-3a)AT KALOKO MAUKA SUBDIVISION,NORTH KONA, HAWAII, COVERED BY
TAX MAP KEY: 7-3-024:008.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAIL
SECTION 1. Section 2 of Ordinance No. 06 82 is amended as follows:
SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 [(2905
Editiaii)] (2016 Edition, as amended), the County Council finds the following conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety, and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of
the proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
INSERT CONDITIONS
SECTION 3. Material to be deleted is bracketed and stricken. New material is
underscored.
-1-
SECTION 4. Severability. If any provision of this ordinance, or the application thereof
to any person or circumstance, is held invalid,the invalidity does not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable.
SECTION 5. This ordinance shall take effect upon its approval.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAII
Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
-2-
CHinchcliMEZ-3.9.2022
CLINTON HINCHCLIFF JR.
AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 06 82 (PL-REZ-2022-
000015/REZ 05-27)
AMENDED CONDITIONS OF APPROVAL
A. The [a„ ]Applicant, its successors,or assigns ("Applicant')shall be responsible
for complying with all of the stated conditions of approval.
B. The [applieaffts, sueeessefs ef assiDisl (Applicant) shall be responsible for complying
with all requirements of Chapter 205, [14awaii] Hawaii Revised Statutes,relating to
permissible uses within the State Land Use Agricultural District.
C. [
ninety (90) days ffom the eg etiye date of this ,.h.nge of zoned The Applicant,
successors, or assigns are responsible for maintaining valid water commitments to
support the proposed use until such time that required water facilities charges are paid in
full. The Applicant shall construct necessary water system improvements as required by
the Department of Water Supply.
D. Final Subdivision Approval of the proposed agricultural subdivision shall be secured
from the Planning Director within five (5)years from the effective date of this amended
ordinance. The [app4ean4]Applicant shall reserve the following easements and special
setbacks in perpetuity for purposes of protecting and maintaining naturally forested areas
and shall delineate such easements and setbacks on plans submitted for subdivision
review:
1. a 60-foot wide "forest reserve easement" along the existing roadway frontages of
the subject property, exclusive of the access point permitted by the Department of
Public Works.
2. a 30-foot"forest reserve easement" along all lot lines not covered by the 60-foot
easement; and
3. a 60-foot wide structural setback in lieu of the required 30-foot setback along the
existing property's public street frontage to provide an additional buffer.
E. Restrictive covenant(s) in the deeds of all the proposed agricultural lots [frenting
a&] fronting Kaloko Drive and Hao Street shall specify and uphold the
easements and setbacks set forth in Condition D. The restrictive covenant(s) shall also
specify that, including the area comprising the forest reserve easements described in
Condition D, no less than eighty percent(80%) of the entire lot area shall be retained in
forest. A copy of the proposed covenant(s)to be recorded with the Bureau of
Conveyances shall be submitted to the Planning Director for review and approval prior
to the issuance of Final Subdivision Approval. [
of the recorded document shall be filed with the Planning Department upon its receipt
from the Bureau of Convey
F. Restrictive covenants in the deeds of all of the proposed lots within the subject property
shall give notice that the terms of the zoning ordinance prohibit the construction of a
second dwelling unit and condominium property regimes (CPR) on each lot, including
Lot 1. This restriction may be removed by amendment of this ordinance by the County
Council. The owners of the property may also impose private covenants restricting the
number of dwellings. A copy of the proposed covenant(s)to be recorded with the State
of Hawai'i Bureau of Conveyances shall be submitted to the Planning Director for review
and approval prior to the issuance of Final Subdivision Approval. A copy of the recorded
document shall be filed with the Planning Department upon its receipt from the Bureau
of Conveyances.
G. A forest management plan for the proposed lots within the subject property shall be
prepared and submitted for review and approval by the Planning Director in consultation
with the State Department of Land and Natural Resources. The forest management plan
shall require the following:
1. Include at minimum,the best forest and reforestation practices program for
implementation and other applicable forestry management criteria, including
those of the State Department of Land and Natural Resources (i.e. Forest
Stewardship Program).
2. The forest management program shall include a restrictive covenant for the
proposed lots within the subject property which shall be recorded with the State
of[14amwaii]Hawai`i Bureau of Conveyances and/or Land Court. A copy of the
covenants to be recorded shall be submitted to the Planning Director for review
and approval prior to the issuance of Final Subdivision Approval. A copy of the
approved covenant(s) shall be recited in an instrument executed by the
[applieaftt]Applicant and the County and recorded with the Bureau of
Conveyances prior to the issuance of Final Subdivision Approval.
3. If more than twenty_percent(20%) of the subject property has been cleared or
grubbed prior to the submittal of the Forest Management Plan or the recording of
the restrictive covenant(s), the reforestation program for any cleared or grubbed
area(s)in excess of the 20%within the subject property shall be substantially
implemented prior to the issuance of Final Subdivision Approval.
[3-]4. This forest management plan shall govern the proposed lots within the subject
property for a period of fifty (50)years and its termination may be considered
after the 50-year period has elapsed by amending this ordinance requiring County
Council approval by ordinance.
H. All development generated runoff shall be disposed of on site and shall not be directed
toward any adjacent properties. A drainage study of the project site, if required, shall be
prepared for review and approval by the Department of Public Works, prior to submittal
of plans for subdivision review. Drainage improvements, if required, shall be constructed
in a manner meeting with the approval of the Department of Public Works prior to
issuance of Final Subdivision Approval.
L All earthwork andrg ading shall conform to Chapter 10, Erosion and Sedimentation Control, of
the Hawai 'i County Code.
[-I-IL Vehicular access to Kaloko Drive shall be limited to one common driveway approach as
approved by the Department of Public Works.
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K. An Archaeological Field Inspection shall be submitted for the review and approval of the
State Department of Land and Natural Resources - State Historic Preservation Division
(DLNR-SHPD)prior to the issuance of any land alteration permits or the submittal of
plans for Final Subdivision Approval, whichever occurs first. The Applicant shall
implement any preservation measures, which shall be shown on the final plat map, as
recommended in the Archaeological Inventory Survey (AIS) or subsequent preservation
plans.
[K-OIL [
fneastir-es have boor tak ]In the event that surface or subsurface historic resources,
including human skeletal remains, structural remains (e.g. rock walls, terraces,
platforms, etc.), cultural deposits, marine shell concentrations, sand deposits, or sink
holes are identified during the demolition and/or construction work, the Applicant shall
cease work in the immediate vicinity of the find,Protect the find from additional
disturbance and contact the State Historic Preservation Division at(808) 933-7651.
Subsequent work shall Proceed upon an archaeological clearance from DLNR-SHPD
when it finds that sufficient mitigation measures have been taken.
M. To protect any Hawaiian Hawks (`Io)in the vicinity of the property, ground clearing_
grubbing activities and construction shall not occur in the permit area during_ hawk
breeding season of March to September without first conducting surveys for hawk nests
and coordinating with US Fish and Wildlife Service (USFWS) if nests are found.
Surveys shall be conducted by a qualified biologist.
N. To protect Blackburn's Sphinx Moth (BSM) contact DLNR, Division of Forestry and
Wildlife (DOFAW)to determine whether a vegetation survey should be conducted. To
avoid harm to the BSM,remove plants less than one meter in height or during _the drthe dry
time of the year. If removing tree tobacco plants or disturbing the ground around these
plants, they must be checked thoroughly for the presence of eggs and larvae.
O. To protect any Hawaiian hoary bats in the vicinity of the property, woody vegetation
over 15 feet in height shall not be disturbed, removed or trimmed during bat birthing and
pup rearing season, from June 1st to September 15th.
P. To avoid and minimize potential project impacts to the endangered Hawaiian goose
(Nene)the Applicant shall implement the following applicable measures: Do not
approach, feed, or disturb Nene. If Nene are present during construction activities, all
activities within 100 feet(30 meters) should cease, and the bird should not be
approached. Work may continue after the bird leaves the area of its own accord. Contact
DOFAW for further guidance if a nest is discovered or a previously undiscovered nest is
found on the subject property after work be_ gins.
Q. To protect any seabirds in the vicinity of the property,the Applicant shall install shielded
outdoor lights to direct light downwards. Additionally, the Applicant shall install
automatic motion sensor switches and controls on all outdoor lights or turn off lights
when human activity is not occurring in the lighted area. Finally, the Applicant shall
avoid nighttime construction during the seabird fledgingsperiod, September 15 through
December 15.
R. To prevent the spread of Rapid `Ohi`a Death(ROD), if`Ohi`a trees are present and will
be removed, trimmed or potentially injured, DOFAW requests that Applicant follow the
guidance of the College of Tropical Agriculture and Human Resources, University of
Hawaii. Additionally, the Applicant shall minimize the movement of plant or soil
material between worksites in order to prevent the spread of invasive species. All
equipment, materials and personnel shall be cleaned of excess soil and debris. All gear
that contains soil, such as work boots and vehicles, should be thoroughly cleaned with
water and sprayed with 70% alcohol solution.
[L—]S. The [applieant]Applicant shall make its fair share contribution to mitigate the potential
regional impacts of the subject property with respect to roads. The amount of the fair
share contribution shall be the sum which is the product of multiplying the number of
lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot,
and shall become due and payable prior to receipt of[ ]Final
Subdivision Approval. The fair share contribution to address the potential road impacts
shall be in the form of cash and/or in-kind services approved by the County Council and
shall be applied to improving the Kaloko Drive/[Mamalaho ]Mamalahoa Highway
intersection. The fair share contribution shall have a value of[$991.x]$15,057.57 per
additional lot. Based upon the [a„�]Applicant's representation of intent to
subdivide and develop up to six (6) additional lots, the indicated total fair share
contribution is [$59,947.20]$90,345.42. The fair share contribution shall be allocated as
follows:
[$9�o�.20]$15,057.57 per additional lot for an indicated total of
[$9�o�.20]$90,345.42 to the State or County to support road and traffic
improvements.
The fair share contribution shall be adjusted annually by the [Nawaii]Hawai`i County
Planning Department, beginning three years after the effective date of this ordinance,
based on the percentage change in the Honolulu Consumer Price Index [RGPI)] HCPI .
Upon approval of the fair share contributions, the Planning Director shall submit a final
report to the Council for its information that identifies the specific approved fair share
contributions, as allocated, and further implementation requirements.
[M-.]T. To ensure that the Goals and Policies of the Housing Element of the General Plan are
implemented,the [applieant]Applicant shall comply with the requirements of Chapter
11, Article 1, [14awaii] Hawai`i County Code relating to Affordable Housing Policy.
This requirement shall be approved by the Administrator of the Office of Housing and
Community Development prior to Final Subdivision Approval.
[l4-:]U. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for
imposition of exactions or the assessment of impact fees, conditions included herein
shall be credited towards the requirements of the Unified Impact Fee Ordinance.
[9.]V. The []Applicant shall comply with all applicable County, State and Federal
Laws,rules,requirements and regulations, including the Department of Public Works,
Department of Water Supply and Department of Health.
[g]W. An initial extension of time for the performance of conditions within the ordinance may
be granted by the Planning Director upon the following circumstances:
1. The non-performance is the result of conditions that could not have been foreseen or
are beyond the control of the [applieaats]Applicants,its successors or assigns, and
that are not the result of their fault or negligence.
2. Granting of the time extension would not be contrary to the General Plan or Zoning
Code.
3. Granting of the time extension would not be contrary to the original reasons for the
granting of the change of zone.
4. The time extension granted shall be for a period not to exceed the period originally
granted for performance (i.e., a condition to be performed within one year may be
extended for up to one additional year).
5. If the Applicant should require an additional extension of time, the Planning_
Director shall submit the Applicant's request to the County Council for appropriate
action.
X. Should any of the conditions not be met or substantially complied with in a timely
fashion, the Director may initiate rezoning of the area to its original or more appropriate
designation.
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AMENDMENT TO THE ZONING CODE,
AMENDING SECTION 25-8-2 (NORTH AND SOUTH KONA DISTRICT ZONE MAP)
ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE
1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION
FROM AGRICULTURAL (A-20a)
TO FAMILY AGRICULTURAL (FA-3a)
AT KALOKO MAUKA SUBDIVISION, NORTH KONA, HAWAII
PREPARED BY: PLANNING DEPARTMENT
COUNTY OF HAWAII
MK'7-3-024:000 Date:December 7,200
EXHIBIT"A" (Dean+s 0.smith-t 182)
FOR REFERENCE ONLY