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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SPP-2022-000010) RBathSPP.5.6.2022 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION ROY AND STEPHANIE BATH SPECIAL PERMIT APPLICATION NO. PL-SPP-2022-000010 Upon review of the request against the guidelines under Rule 6 of the Planning Commission Rules of Practice and Procedure for granting a Special Permit, the Planning Director is recommending that this request to allow a home occupation for a massage therapy establishment on approximately 5,720 square feet of a larger three (3) acre property 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 recommendation based upon additional information presented at the public hearing. This approval recommendation is based on the following findings: The applicants are requesting a Special Permit to allow a home occupation for a massage therapy establishment within a 68.8 square foot portion of an existing single- story, 688-square foot dwelling under construction on the subject property. The dwelling consists of two (2) bedrooms, one (1) bathroom, living room, kitchen,plus a 96-square foot covered lanai. The applicants are proposing to convert the smaller, 68.8 square foot bedroom into the area for the massage therapy home occupation use. Other components of the project include the existing driveway and a proposed parking area, for a total 5,720 square foot permit area. According to the applicants, there will be no employees and visits will be conducted by appointment between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. Saturday appointments will occasionally be scheduled, to accommodate those unable to schedule during weekday business hours and they anticipate approximately 0-5 clients per day. According to the applicants, they intend to complete the permitting process for the proposed home occupation by August of 2022. The criteria for approving a Special Permit are based on Rule 6-6 in the Planning Commission (PC) Rules. Rule 6-6 states that the Planning 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)the proposed use would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The proposed use is an unusual and reasonable use of land situated within the State Land Use Agricultural District and would promote the effectiveness and objectives of the State Land Use Law and Regulations and Chapter 205,HRS, as amended. 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 strictly 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. 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. The property is not classified by the State or County as important or prime agricultural land. In fact, soils on the property are classified by the Land Study Bureau's Land Classification System as "E" or"Very Poor" for agricultural productivity. Therefore, the proposed use will not adversely affect the preservation and agricultural use of the County's prime agricultural lands and is not contrary to the objectives sought to be accomplished by the State Land Use Law and Regulations. The subject three (3)-acre property is rectangular shaped with rolling topography and is developed with a 688 square foot, single-single story dwelling, currently under construction, a utility shed and a water catchment tank. The proposed special permit area consists of approximately 5,720 square feet, including driveway,proposed client parking, and a 68.8-square foot portion of the existing 688-square foot dwelling proposed for the massage therapy office. The remainder of the property is currently used for agricultural purposes, including fruit trees, nut trees and vegetable gardens. Given that the Special Permit area consists of an already developed portion of the property, the proposed home occupation will not diminish the potential for any future agricultural activity on the subject property. -2- Based on the preceding, the subject request is considered an unusual and reasonable use of agricultural land. In addition to the above listed criteria, the Planning Commission shall also consider the criteria listed under PC Rule Section 6-3(b)(5) (A)through (G). In considering the criteria, the Planning Director recommends the following: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations. The subject request is considered an unusual and reasonable use of the agricultural land and the proposed use will not adversely affect the preservation and agricultural use of the County's prime agricultural lands. (B) The desired use would not adversely affect surrounding properties. Surrounding properties are zoned A-3a and most are also three (3) acres in size. Surrounding land uses are primarily agricultural and residential, with some vacant, undeveloped parcels. The nearest dwelling is located approximately 100 feet to the northwest of the subject property on TMK(3) 1-6-045:008. A condition will be added allowing the applicants to post a small sign identifying the home occupation in order to provide wayfinding for clients and prevent disturbances to surrounding neighbors. As the proposed use will be a portion of an existing dwelling, it is not anticipated to have an adverse effect on the surrounding properties. The Planning Department received testimony from surrounding property owners expressing concerns that clients of the proposed home occupation might complain about sights, odors and sounds coming from existing agricultural uses on adjacent properties. In order to address these concerns, a condition will be added to re-confirm the State's Right to Farm law that will prohibit the applicants' actions from interfering with the neighbors' right to use their properties for agricultural purposes. (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers,water, drainage, school improvements, and police and fire protection. Access to the subject parcel is proposed to come from Road 8, or Moho Road, a private roadway consisting of a two-lane dirt/graveled surface within a 40-foot- wide right-of-way. Access roads in the neighborhood are paved up to Road 8 and Road F -3- intersection. The applicants anticipate approximately 0-5 clients per day, which would result in a maximum of five (5) additional cars per day to the property. According to the Department of Water Supply (DWS), the subject parcel is not within the service limits of their existing water system. The applicants propose to use rainwater catchment tanks to supply the needs of the home occupation and for fire suppression purposes. The subject property is not currently serviced by the County sewer system thus wastewater will be required to be disposed of via an individual wastewater system meeting the requirements of the State Department of Health (DOH). According to comments provided by DOH, the existing wastewater system is adequate to serve the proposed project. The property is situated within an area designated as Flood Zone "X," or an area determined to be outside the 500-year flood plain. Telephone and electrical services are available to the site. Police, Fire, and medical services are located nearby in Pahoa. Based on the preceding, the requested use will not burden public agencies to provide additional services. (D) Unusual conditions,trends, and needs have arisen since district boundaries and regulations were established. In the 1960's and 1970's, the State's agricultural district boundaries and regulations were established and subsequently amended pursuant to HRS Chapter 205. The State Land Use Commission was created in 1961, and interim regulations and temporary district boundaries became effective in 1962. Subsequently, the regulations and Land Use District Boundaries became effective in August of 1964. Many of the subdivisions in Puna that were created during this time on agricultural-zoned land have been transitioning to residential uses. Although the property and surrounding areas are designated for agricultural uses by both State and County land use laws, through the issuance of a Special Permit, various "non- agricultural" services may be allowed. (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district. The property is situated on soil that is unclassified by the Department of Agriculture's ALISH Map and is classified as "E" or"Very Poor" by -4- the Land Study Bureau's Soil Rating. The properties' soil type is classified as `Keaukaha' Series, described as highly decomposed plant material with 2 to 10 percent slopes; it is well drained with a high runoff. The proposed use will be fully situated within an existing dwelling and other areas of the property that have already been improved, and thus will not diminish or foreclose future agricultural opportunities. (F) The use will not substantially alter or change the essential character of the land and the present use. The proposed use will be within an existing dwelling and will not alter the residential nature of the dwelling. A slight increase in traffic of a maximum of five (5) additional vehicles per day to the property will occur but is not expected to change the character of the land. The current agricultural uses on the remaining area will not be affected by the proposed home occupation. Thus, the proposed use will not substantially alter or change the essential character of the land or its present use. (G) The request will not be contrary to the General Plan, Puna Community Development Plan (CDP) and other documents such as Design Plans. The Land Use Pattern Allocation Guide (LUPAG) Map component of the General Plan is a representation of the document's goals and policies to guide the coordinated growth and development of the County. It reflects a graphic depiction of the physical relationship among the various land uses. The LUPAG Map establishes the basic urban and non-urban form for areas within the County. The property is located in an area identified as Extensive Agricultural in the General Plan. This category includes lands not classified as Important Agricultural Land, including lands that are not capable of producing sustained, high agricultural yields without the intensive application of modern farming methods and technologies due to certain physical constraints such as soil composition, slope, machine tillability and climate. Other less intensive agricultural uses such as grazing, and pasture may be included in the Extensive Agricultural category. As the proposed project is a home occupation within an existing dwelling, the request will not be contrary to the LUPAG Map designation for this area. Additionally, -5- the approval of the subject request would support the goals and policies of the Land Use and Economic elements of General Plan. Land Use Element • Encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment. Economic Element • Provide residents with opportunities to improve their quality of life through economic development that enhances the County's natural and social environments. • Strive for an economic climate which provides its residents an opportunity for choice of occupation. The primary land use goal of the Puna CDP is to direct urban uses towards "village centers." The subject property is located outside of a village center; however, as the massage therapy establishment will be within an existing dwelling, it is a home occupation, thus not considered an urban or commercial use, and will provide the applicants an additional source of income. Thus, the request is consistent with the goals and objectives of the Puna CDP. The proposed use is not contrary to the objectives sought to be accomplished by Chapter 205A,Hawaii Revised Statutes, relating to Coastal Zone Management program. The subject property is not situated within the Special Management Area. It is located over eight(8) miles from the nearest coastline and will not be impacted by coastal hazard 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, marine resources, or other natural and environmental resources in the area. Thus, the proposed request and use of the property will not adversely impact those resources. It is not anticipated that endangered or threatened candidate species of flora or fauna are located within the special permit area because it has been cleared and developed. Presently, there is no evidence of any traditional and customary Native Hawaiian rights being practiced on the site, nor existence of known valued cultural, -6- historical, or native resources in the area. Thus, it is not anticipated that the proposed request will have any adverse impact on cultural or historical resources in the area. The request will not have a significant adverse impact to traditional and customary Hawaiian Rights. 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: ■ 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 valued cultural, historical, and natural resources found in the permit area: According to the applicant, no archeological or historical features are known to exist on the subject property nor is the property listed as a historic site on the State or National Register of Historic Places. The subject property has been cleared for construction of a dwelling, parking area, and driveway. Flora on the remainder of the property includes native and introduced plant species for landscaping and crop production. There are no known endangered or listed plant species on the property. Faunal resources include native and introduced bird and animal species, but no endangered or listed animal species have been identified on the property. The Department of Land and Natural Resources Division of Forestry and Wildlife (DOFAW) indicated that the Hawaiian Hawk, Hawaiian Hoary Bat or `Ope`ape`a, Hawaiian Goose or Nene, and state listed water birds have the potential to occur in the vicinity of the property and provided guidance on measures to avoid and minimize impacts to the listed species, in addition to guidance on avoiding the spread of invasive species and pathogens. While these mitigation measures are often added as conditions of approval, the Director did not think it necessary in this case since the permit area is proposed within an existing dwelling and previously cleared and developed driveway and parking area, thus there should be no additional land clearing/alteration related to the project. -7- ■ Possible adverse effect or impairment of valued resources: Native plants and/or endangered species are unlikely to be impacted by the proposed development due to the already impacted special permit area mentioned above. ■ Feasible actions to protect native Hawaiian rights: No known 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. Lastly, this recommendation is made with the understanding that the applicants remain responsible for complying with all other applicable governmental requirements in connection with the proposed use,prior to its commencement or establishment upon the subject property. 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 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 above considerations,the proposed massage therapy establishment and related improvements is an unusual and reasonable use of land which would not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations. Approval of this request is subject to the following conditions: 1. The applicants, their successor(s) or assign(s) ("Applicant") shall be responsible for complying with all stated conditions of approval. 2. Commencement of the proposed home occupation shall begin within five (5) years from the effective date of this permit. Prior to commencement of the proposed use, the Applicant shall secure and finalize all required building permits from the Department of Public Works Building Division (DPW), including the building permit for the existing dwelling and any additional building permits required by DPW to convert one bedroom of the existing dwelling into the proposed massage therapy establishment. -8- 3. The applicant shall comply with Hawaii County Code, Zoning Code Section 25- 4-13 (Home Occupations), with an exception for signage. 4. Signage posted on the subject property advertising the massage therapy establishment shall be limited to one sign, with the dimensions of twelve (12) inches in height by eighteen (18) inches in width, or a maximum of two-hundred- sixteen (216) square inches. 5. Visitors to the massage therapy establishment shall be by appointment only. 6. The hours of operation for the business shall be limited from 8:00 AM to 5:00 PM, Monday through Friday, with occasional appointments on Saturdays, limited to the hours of 8:00 AM to 5:00 PM. 7. Any action that would interfere with or restrain farming operations on adjacent or contiguous properties shall be prohibited under Hawaii Revised Statutes Chapter 165, the Hawaii Right to Farm Act; provided the farming operations are conducted in a manner consistent with generally accepted agricultural and management practices on adjacent or contiguous lands in the Agricultural District. 8. All development-generated runoff shall be disposed of on site and not directed toward any adjacent properties. 9. All earthwork and grading activity shall conform to Chapter 10, Erosion and Sedimentation Control of the Hawaii County Code. 10. 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. 11. The Applicant shall comply with all applicable County, State and Federal laws, rules, regulations, and requirements. -9- 12. An initial extension of time for the performance of conditions may be granted by the Planning Director upon the following circumstances: A. Non-performance is the result of conditions that could not have been foreseen or are beyond the control of the Applicant 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 or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of the permit. D. 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). E. If the Applicant should require an additional extension of time, the Planning Department shall submit the applicant's request to the Planning Commission for appropriate action. 13. Should any of these conditions not be met or substantially complied with in a timely fashion, the Director may initiate procedures to revoke this Special Permit. -10-