Loading...
HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SPP-2022-015) RKunimoto SPP.8.9.2022 COUNTY OF HAWAII PLANNING DEPARTMENT RECOMMENDATION RANDY KUNIMOTO SPECIAL PERMIT APPLICATION NO. PL-SPP-2022-000015 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 legitimize the use of existing personal tennis court facilities, a portion of an existing dwelling, and related improvements to provide compensated tennis lessons to the public on approximately 1.003 acres of land 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 applicant is requesting a Special Permit to legitimize the use of existing personal tennis court facilities, a portion of an existing dwelling, and related improvements to provide compensated tennis lessons to the public. The applicant proposes to continue to provide tennis lessons to the general public at an existing tennis court located at the back of the subject property. Additionally, a portion of the existing dwelling will be accessed through an exterior side door, to provide restroom facilities to players. Other components of the project include an existing driveway and gravel parking area to accommodate eight(8) cars. According to the applicant, the hours of operation will be Monday through Friday, 8:00 am to 6:00 pm; Saturday and Sunday, 9:00 am to 6:00 pm,with the anticipation of approximately one (1) to eight(8) students per session and approximately eight(8) sessions per day. The applicant will continue to employ three (3) coaches, including the applicant, in addition to several volunteer helpers as available. The applicant intends to complete the permitting process for the proposed use as soon as possible. Upon approval of the Special Permit, the applicant will immediately apply for Plan Approval, if deemed necessary, and complete modifications as required. -1- 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 "D" or"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 1.003-acre property is improved with a 5-bedroom, 2-story, 3,256- square foot single-family dwelling, a 7,200-square foot, covered asphalt tennis court, a swimming pool, a gravel parking area, and a driveway. Given that the property and Special Permit area are already developed, the proposed use 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 to the north, east and west are zoned A-la and most are also approximately one (1) -acre in size, while surrounding properties to the south are zoned A-20a and range in size from ten (10)to over twenty (20) acres. Surrounding land uses are primarily agricultural and residential, with some vacant, undeveloped parcels. The nearest dwelling is located approximately sixty (60) feet to the west of the subject property on TMK (3) 2-5-061:057. The Planning Department received testimony from neighbors and clients of the existing tennis lesson business, in support of the application to legitimize the business. Additional testimony was received from surrounding property owners expressing concerns that the business generates excessive noise, that the covered tennis court is unsightly and that clients of the business speed on Mele Manu Street and tailgate residents as they arrive for their tennis lessons. The applicant has stated that they have posted signs and spoken with their clients,requesting that they drive respectfully. Additionally, the applicant is proposing to end lessons at 6:00 pm (two hours earlier than previously offered), in order to mitigate noise concerns raised by neighbors. A condition will be added to require Plan Approval, which will address landscape buffering to mitigate visual impacts for surrounding property owners. Finally, testimony from surrounding property owners raised the concern that the entire subdivision, including the applicant's property is subject to restrictive covenants -3- that prohibit commercial and industrial uses. While the Planning Director does not want to promote a situation that encourages neighbors to initiate lawsuits, he believes that resolution of disagreements over restrictive covenants are a private matter that should be addressed separately from this Special Permit process. (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 from Kaumana Drive is provided by Edita Street and Mele Manu Street, both County-maintained roads with a travel lane width of twenty (20) feet within a fifty (50)-foot wide right-of-way. Speed humps have been installed along the length of Mele Manu Street in order to manage the speed of traffic along this particular roadway section. According to the Department of Water Supply (DWS), the subject parcel is currently served by an existing 5/8-inch meter and the current average daily usage is less than 400 gallons. DWS has no objection as the proposed request has not generated a significant increase in water demand. The subject property is currently serviced by an existing cesspool. According to the applicant, tennis players utilize an existing bathroom within the existing dwelling and the proposal states that they will continue to do so. According to comments provided by the State Department of Health (DOH), to accommodate the increase in wastewater output the applicant will be required to upgrade to a new wastewater treatment system meeting the approval of Subchapter 2, Chapter 11-62, Hawaii Administrative Rules. A subsequent conversation with staff at DOH clarified that a wastewater treatment system is distinct from a septic system, or individual wastewater system (IWS), and is required to address the higher-level output associated with commercial use of the subject property. Additionally, according to DOH, the existing five (5) bedroom-dwelling would already max out the capacity of a new septic system, before even considering the commercial use. A condition of approval will be added to require that the applicant complete the wastewater upgrade, meeting with the approval of DOH. According to staff at the Department of Public Works, Building Division, the applicant will be required to apply for a change of use building permit to convert the -4- existing covered tennis court and the existing bathroom from residential to commercial use. Agencies that review a commercial building permit application include the Department of Health, Fire Department, Department of Public Works, Engineering Division and Building Division,which includes Building, Electrical and Plumbing code review. A condition of approval will be added to require that the applicant complete the change of use building permit. The property is located within Zone"X," an area determined by FEMA to be outside the 500-year floodplain. Electric and telephone services are available to the subject property. Police, Fire and Medical services are available nearby in Hilo. 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 the outskirts of Hilo 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 State 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 "D" or"Poor"by 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 situated on a property that has already been developed, and thus will not diminish or foreclose future agricultural opportunities. -5- (F) The use will not substantially alter or change the essential character of the land and the present use. The proposed use has occurred on the property for approximately 15 years one areas that have already been built out with existing residential structures, including a dwelling,pool, covered tennis court, driveway, and parking area. An increase in traffic to the property will occur but with mitigating factors such as adequate on-site parking and continued efforts by the applicant to encourage clients to drive respectfully,the traffic 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 use. 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,Hilo 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 Rural in the General Plan. This category includes existing subdivisions in the State Land Use Agricultural and Rural districts that have a significant residential component. 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 residences. 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. The Rural designation does not necessarily mean that these areas should be further subdivided to smaller lots. Most lack the infrastructure necessary to allow further subdivision. As the proposed project is a commercial facility that serves the residential uses in the area, the request will not be contrary to the LUPAG Map designation for this area. Additionally, the approval of the subject request would support the goals and policies of the Land Use and Economic elements of General Plan. -6- 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 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 four(4) 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 the subject property 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, 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: -7- ■ 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 Department of Land and Natural Resources Division of Forestry and Wildlife (DOFAW) had no comment on the effect of the proposed project on endangered species, however, they indicated that should the scope of the project change significantly, they indicated that listed or endangered faunal species 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 subject property has previously been cleared for construction of a dwelling, pool, tennis court, parking area, and driveway, thus there should be no additional land clearing/alteration related to the project. Finally, should the scope of the project change in the future, then the applicant would have to secure an amendment to the Special Permit, which would necessitate further review in the future. ■ 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 ri hg ts. 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 -8- 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 request to legitimize the use of existing personal tennis court facilities, a portion of an existing dwelling, and related improvements to provide compensated tennis lessons to the public 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. Within three (3)months from the effective date of this permit, the Applicant shall submit an application for Plan Approval and secure Final Plan Approval for the proposed development from the Planning Director in accordance with Section 25- 2-71(b), Chapter 25 (Zoning Code), Hawaii County Code within six (6)months of the effective date of this permit. Plans shall identify all existing and/or proposed structure(s), driveway access and parking stalls associated with the proposed development. Landscaping shall be indicated on the plans for the purpose of mitigating any adverse noise or visual impacts to adjacent properties in accordance with the requirements of Planning Department's Rule No. 17 (Landscaping Requirements) and Chapter 25 (Zoning Code), Hawaii County Code. 3. Within three (3)months from the effective date of this permit,the Applicant shall submit an application for all building permits as required by the Department of Public Works, Building Division (DPW), and shall secure and finalize all required building permits,including but not limited to a change of use building permit to -9- convert one bathroom of the existing dwelling and the covered tennis court from residential to commercial use,within one (1) year from the effective date of this permit. 4. The method of sewage disposal shall meet with the requirements of the Department of Health. 5. The hours of operation for the business shall be limited from 8:00 am to 6:00 pin, Monday through Friday, and 9:00 am to 6:00 pm, Saturday and Sunday. 6. 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. 7. All development-generated runoff shall be disposed of on site and not directed toward any adjacent properties. 8. All earthwork and grading activity shall conform to Chapter 10, Erosion and Sedimentation Control of the Hawaii County Code. 9. 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. 10. The Applicant shall comply with all applicable County, State and Federal laws, rules, regulations, and requirements. 11. 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 -10- 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. 12. 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. -11-