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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SMA-2022-012_Amend SMA-07-024) RHawaiione l InvestorsLLCSMAAmend.crk.3.302022 COUNTY OF HAWAII PLANNING DEPARTMENT RECOMMENDATION HAWAII ONE1 INVESTORS,LLC (FORMERLY KONA HEIGHTS,LLC) AMENDMENT TO SPECIAL MANAGEMENT AREA USE PERMIT (AMEND SMA 07-000024) (PL-SMA-2022-000012) Upon careful review of the applicant's request against the guidelines for granting an amendment to a Special Management Area(SMA)Use Permit, the Planning Director recommends that the request for a five (5)year time extension to Condition No. 4 of SMA Use Permit No. 07-024, to secure Final Subdivision Approval be approved by the Planning Commission. Since this recommendation is made without the benefit of public testimony, the Director reserves the right to modify and/or alter this position. This approval recommendation is based on the following findings: The applicant is requesting a five (5)-year time extension to Condition 4 (Time to Secure Final Subdivision Approval) of SMA Use Permit No. 07-024, which was approved to allow the development of a 65-lot, single family residential subdivision and related improvements on an 11.054-acre property situated within the Special Management Area. This request is being made in conjunction with a similar amendment request to Change of Zone Ordinance No. 09 8, which rezoned the same land area from Agricultural 5-acres (A-5a)to Single-Family Residential 7,500 square feet (RS-7.5). Since the applicant acquired the property in 2013,they have worked diligently to comply with conditions of approval of both the SMA Use Permit and change of zone ordinance, including securing a Planned Unit Development(PUD)permit in 2016, finalizing and securing approval from the State Historic Preservation Division for an Archaeological Data Recovery Plan in 2010 and Burial Treatment Plan in 2017, securing Tentative Approval for phase one of the subdivision in 2017,working with the Department of Parks and Recreation to locate a suitable site for a three (3) acre neighborhood park and completing an Environmental Assessment(EA) and receiving a Finding of No Significant Impact(FONSI) for the park's development and securing -1- approval for subdivision infrastructure construction plans in 2019. Despite this work, the applicant lost its funding to complete the complete the required infrastructure improvements for the project and could not find an alternative source within a timely manner. Thus, the applicant could not meet the February 9, 2019, deadline to secure Final Subdivision Approval. The applicant is requesting an additional five (5)years to secure the necessary funding and complete construction of the required infrastructure to secure Final Subdivision Approval as required by Condition No. 4. The purpose of Chapter 205A, Hawaii Revised Statutes (HRS), and Special Management Area Rules and Regulations of the County of Hawaii, is to preserve, protect, and where possible, to restore the natural resources of the coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. The original application was reviewed against the guidelines for granting of a Special Management Area Use Permit and was approved by the Planning Commission with conditions. The time extension request was reviewed using the following criteria: A. The non-performance 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. B. Granting of the time extension would not be contrary to the General Plan and Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of the permit. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence. The subject SMA Use Permit was approved in 2008 to allow the development of a 65-lot single-family residential subdivision and related improvements on the subject property. Since the applicant acquired the property in 2013 and secured a five (5)-year administrative time extension in 2014,they have worked diligently to comply with conditions of approval of both the SMA Use Permit and change of zone ordinance, including securing a Planned Unit Development (PUD)permit -2- in 2016, finalizing and securing approval from the State Historic Preservation Division for Archaeological Data Recovery Plan in 2010 and Burial Treatment Plan in 2017, securing Tentative Subdivision Approval for phase one of the subdivision in 2017,working with the Department of Parks and Recreation to locate a suitable site for a three (3)acre neighborhood park and completing an Environmental Assessment(EA)and receiving a Finding of No Significant Impact(FONSI) for the park's development and securing approval for subdivision infrastructure construction plans in 2019. Despite this work,the applicant lost its funding to complete the required infrastructure improvements for the project and could not find an alternative source within a timely manner. Thus,the applicant could not meet the February 9, 2019, deadline to secure Final Subdivision Approval. The applicant is committed to finalizing the project and is requesting an additional five (5)years to secure the necessary funding and complete construction of the required infrastructure to secure Final Subdivision Approval as required by Condition No. 4. It should be noted that the applicant has requested a concurrent amendment to Change of Zone Ordinance No.09 8 for a similar five (5)-year time extension to secure Final Subdivision Approval. Thus,the effective date of the SMA Use Permit amendment will be the effective date of the rezoning amendment. Based on the preceding,the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants and that are not the result of their fault or negligence. Granting of the time extension would not be contrary to the General Plan, Kona Community Development Plan or Zoning Code. The applicant is proposing to develop a 62-lot residential subdivision ranging in size from 3,082 square feet and 6,501 square feet and related improvements consistent with an approved PUD master plan. According to the PUD permit, the PUD is designed to address the needs and lifestyle of residents who want to live in a planned residential community that is a more compact community with alternate standards versus the current, standard subdivision layout, which in many cases lacks a human scale and walkability. Since the ordinance was approved in 2009,there has been no significant changes in the General Plan or Zoning Code relative to the project area. The General Plan designation for this area is Low Density Urban, ,which allows residential,with ancillary community and public uses, and neighborhood and -3- convenience-type commercial uses; overall residential density may be up to six units per acre. This property's RS-7.5 zoning and approved PUD to allow the development of a 62- lot subdivision on the property is consistent with this LUPAG designation. Furthermore, the project remains consistent with several goals,policies, and standards relative to the General Plan's economic and land use elements. The Kona Community Development Plan (KCDP)was adopted in 2008, and thus was not considered during the original SMA Use Permit analysis. However, the proposed project is consistent with the requirements of the KCDP as amended in 2019,which designates the property within the Kona Urban Area(KUA), and within the outer fringes of the Kahalu`u Neighborhood Transit Oriented Development(TOD) area on the Official Concurrency Map. The proposed development can be considered"InfilP' development as defined in the KCDP as it is situated directly to the south of established residential subdivisions of White Sands Beach Estates and Keauhou View Estates subdivisions to the north, and existing single and multiple family residential zoning to the south as part of resort community of Keauhou. Furthermore,the applicant proposes to construct and dedicate to the County a new subdivision access road(Pi`ilani Street) from Alii Drive through the adjacent property to the west(makai) of the subject property, which will connect to Naniloa Street stub out at Queen Kalama Avenue.,which is an existing, County owned and maintened road. Furthermore, conditions of the associated change of zone ordinance require stub outs to the property to the south to provide connectivity should that parcel ever be developed. This will satisfy the street network connectivity objective of the Kona CDP. As previously stated,the existing RS-7.5 zoning and approved PUD for the parcel will facilitate the proposed 62-lot subdivision. Furthermore,the project has met the Zoning Code's concurrency requirements by having secured sufficient potable water(50 units)to satisfy the needs of the project that has registered with the U.S. Green Building Council as a LEED certified project,whose design criteria will be applied to the project to lower water demands than County requirements. Conditions of approval require the applicant to maintain those water commitments until the water facilities charge has been -4- paid in full. Furthermore,the applicant has conducted an updated TIAR as required by the Concurrency section of the Zoning Code and finally, there are two (2) civil defense sirens in the immediate area, one located in the White Sands Beach Estates subdivision approximately 1,450 feet to the north from the subject property, and a second siren located approximately 3,100 feet to the south near Kahalu`u Beach Park. Based on the preceding,the granting of the requested time extension would not be contrary to the General Plan, Kona CDP, or the Zoning Code. The granting of the time extension would not be contrary to the original reasons for the granting of the permit. SMA Permit No. 07-024 was approved by the Planning Commission with conditions based on the criteria for approving a Special Management Area Use Permit. Namely, the Planning Commission found that the proposed project would not create significant adverse impacts upon nearby and immediately adjacent properties,the project was consistent with the General Plan and the Zoning Code, the proposed project was consistent with the objective and policies provided by Chapter 205A, HRS and SMA Guidelines contained in Planning Commission Rule 9, and,with appropriate mitigation, the proposed project would not have any negative impact on visual and scenic resources,recreational resources, shoreline and nearshore resources and archaeological,historical, or cultural resources on the subject parcel. The scope, design, layout, and phasing of the project approved by the Planning Commission has not significantly changed since the permit was granted. Granting the time extension would simply provide the applicant additional time to secure an alternative funding source and develop the project. Thus, the time extension request is not contrary to the original reasons for granting the permit. In view of the Hawai`i 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. These rights must be addressed in terms of the cultural, historical, and natural resources and the associated traditional and customary practices of the site. Investigation of valued resources: The applicant has submitted the following studies from which the Planning Commission can determine the valued natural, cultural, and historical resources in the project area: -5- ■ A Survey of Botanical, Avian and Terrestrial mammalian Species for the proposed Laipala Heights Subdivision, North Kona District, Island of Hawaii prepared by Rana Productions in 2006. ■ Archaeological Inventory Survey, TW. 7-7-08: 121, Land of Kapalaalaea 2, North Kona District, Island of Hawaii prepared by Haun and Associates in January 2006 ■ Cultural Impact Study/Assessment, Laipala Heights, Kapalaalaea Ahupuaa, District of North Kona, Hawaii Island prepared by Kaimipono Consulting Services LLC in December 2006. ■ Final Archaeological Data Recovery Plan, Land ofKapala`alaea 2 Ahupua`a, North Kona District, Island ofHawai`i, (TW 3-7-7-08:105, 113, 119, 121) prepared by Haun and Associates in January 2010. ■ Final Burial Site Component of an Archaeological Preservation Plan for Site 50-10- 37-24842 and Portions of Site 24534, TW(3) 7-7-008:121, Kapala`alaea 2 Ahupua`a, North Kona District, Island ofHawai`i prepared by Haun and Associates in April 2017. The valuable cultural, historical, and natural resources found in the area: The floral/fauna report revealed that no endangered species are likely to be found on the project site. The archaeological inventory survey identified 14 sites assessed as significant for their information content. Three (3) of the historic properties that recommended for no further work,nine (9) sites were recommended for mitigation through data recovery,and two (2) sites (one ceremonial/habitation site complex(SIHP 24534)was recommended for preservation and one burial site (SIHP 24842)was recommended for preservation in the form of a Burial Treatment Plan). Finally,the Cultural Impact Assessment concluded that, "while evidence of ancient or traditional cultural practices still exists on the project lands, there does not appear to be any evidence of any ongoing traditional cultural practices, except perhaps fishing, which, while not directly impacted by the project, may indirectly impact this resource." Possible adverse effects or impairment of valued resources: Native vegetation may be destroyed by ground alteration. There is no evidence that the flora in the area are particularly desired or used for cultural practices. According to the botanical and -6- archaeological studies submitted by the applicant, the project will not adversely impact resources in the area with appropriate mitigation. Feasible actions to protect native Hawaiian rights: The applicant has stated that there is no evidence of any traditional or customary Native Hawaiian rights being practiced on the project site. There is no record of public access to the mountains or the ocean, and as the subject property is located approximately 800 feet mauka of the nearest shoreline, there should not be any impact on fishing or shoreline public access. An Archaeological Data Recovery Plan and Burial Treatment Plan were developed and accepted by SHPD in 2010 and 2017 respectively and conditions of approval of this permit and the associated change of zone ordinance have been modified to ensure that the requirements of each of these respective plans(including short and long-term conservation measures for the sites to be preserved and archeological monitoring during land alteration activities) are followed throughout the development of the project to ensure protection of these preserved archaeological resources. Thus,it is believed that the project would have no adverse impact relative to the cultural and historical resources of the area. To the extent to which traditional and customary Native Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian rights. Lastly, this recommendation is made with the understanding that the applicant remains responsible for complying with all other applicable County, State and Federal governmental requirements in connection with the approved use,prior to and during its commencement or establishment upon the subject properties. Compliance with all applicable governmental requirements is a condition of this approval, and 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 upon the preceding findings,the proposed amendment is consistent with the objectives and policies of Chapter 205A, HRS. The Planning Director recommends that the Planning Commission approve the applicant's five (5)-year time extension request to secure Final Subdivision Approval. Please note, in addition to the applicant's proposed amendment, the Planning Director is recommending modification of other conditions to current standard condition language and to ensure compliance with the implementation of certain conditions. -7- Approval of this amendment request is subject to the following conditions (material to be deleted is bracketed and struck-through; new material is underscored): 1. The applicant, its successor or assigns ("Applicant") shall be responsible for complying with all stated conditions of approval of this permit. 2. The effective date of this amended Special Management Area Use Permit shall be the effective date of the [Gb,.nge of Zene for-t4is r,-E,ee* (REZ 07 00007 ] associated amendment to Change of Zone Ordinance No. 09 8. 3. The overall development shall conform substantially to the plans submitted and the representations made by the Applicant and as described in the original dated November 9, 2007, amendment request dated January 6. 2022, any supplemental information, and any representations made to the Leeward Planning Commission, except as further amended by subsequent ordinances and permits. [-3-.] 4. [ applieant shall s4fnit t4e an6eip4ed ma*ifntifn daily water-usage ealettla4ieiis as ;t4ii 180 days f„r, toe effeeti e doe of t4s rofmit] The Applicant is responsible for maintaining valid water commitments to suport 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. [4-.] 5. Final Subdivision [appfeN,al] Approval shall be secured within five (5)years from the effective date of this amended permit. [-5-] 6. Access shall meet with the approval of the Department of Public Works and conform to Chapter 22 (Streets) of the Hawaii County Code. [4-.] 7. All development-generated runoff shall be disposed of on-site and shall not be directed toward any adjacent properties. [-7-] 8. During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices utilized during construction projects in the State of Hawai`i. -8- [4-.] 9. All earthwork and grading shall conform to Chapter 10, Erosion and Sediment Control of the Hawai`i County Code. [-9-] 10. The project shall connect to the County sewerline. [4-0-.] 11. Comply with Chapter 11-55, Water Pollution Control, Hawaii Administrative Rules, Department of Health, which requires a NPDES permit for certain construction activity. [44-.] 12. [A Data ReeeN,et=y Pla-ft fer-the two sites r-eeemmeiided for-pr-eseB,4ieii (Sites 24842 btiffe,-shall be eiist ,ete ard the sites.] The Applicant shall comply with all requirements of the Final Archaeological Data Recovea Plan, Land oL&apala`alaea 2 Ahupua`a. North Kona District, Island ofHawai`i, (TMK 3-7-7-08:105, 113, 119, 121) accepted by the Department of Land and Natural Resources State-Historic Preservation Division (DLNR-SHPD)by letter dated May 27, 2010 or any amendments thereto for the sites found on the subject property. [4-2-.] 13. [ 14awaii island Btir-ial Getmeil befer-e detailed fnitig4ieii plans are finalized. A eepy of t4e appr-eved Btir-ial Tr-eatmeiit Plan shall be s4fni4ed to t4e Plafliiiiig Dir-eeter-prior-—+I-- .] The Applicant shall comply with all requirements of the Final Burial Site Component of an Archaeological Preservation Plan for Site 50- 10-37-24842 and Poritons ofSite 24534, TAX L) 7-7-008:121, Kapala`alaea 2 Ahupua`a, North Kona District, Island ofHawai`i, aproved by the Department of Land and Natural Resources State-Historic Preservation Division (DLNR-SHPD)by letter dated May 8, 2017 or any amendments thereto. [4-3-.] 14. [ , „,oast,,-es i,,,. e boor takeiill In the event that surface or subsurface historic -9- 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. [44] 15. The [fit] Applicant shall comply with all applicable County, State and Federal laws, rules, regulations and requirements. [4-5--.] 16. [ or-are beyeiid the eentf el of the applieant, stieeesser-s or-assigiis, and t44 are lie the r-estilt of their-faultor-iiegligeiiee. Zeiiiiig Code. of this pefmit-. or-igiiially grantedf,,,-rem ee (; a eeiidrtieii to be perfefffie,a Withill elle L—] If the [fit] Applicant should require an additional extension of time, the Planning Department shall submit the [appliea-H ] Applicant's request to the Planning Commission for appropriate action. 17. Should any of the conditions not be met or substantially complied with in a timely fashion, the Planning Director may initiate procedures to revoke the permit. -10-