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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SPP-2022-014) RWatson-Kabe i.cm.8.25.22 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION GRETCHEN I. WATSON-KABEI SPECIAL PERNHT APPLICATION NO. PL-SPP-2022-000014 Upon review of the request against the guidelines for granting a Special Permit, the Planning Director is recommending that this request to allow the use of a portion of an existing dwelling as a real estate office on approximately 5.16-acres of land situated within the State Land Use Agricultural District 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 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 allow a home occupation for a real estate office establishment within a 75-square foot portion of an existing 2,696-square foot two (2)bedroom single-family dwelling. The office space will be used primarily to communicate with clients electronically. In-person meetings will be conducted at the respective locations of real property interest. The requested space is currently being used to maintain sales and marketing purposes of an existing coffee farm operation which is located on the subject property. According to the applicant, the private real estate business operation will require no additional employees or agents. Additionally, the applicant is doing business as a "Buyer's Agent"who assists family and friends as needed that are interested in purchasing real property. Therefore, the anticipated hours of operation may vary from 1- 2 hours per week and at most 1-2 transactions per year. The request is being made in response to the current Covid-19 pandemic that caused the applicant an involuntary retirement due to the downsizing of a corporate office where she conducted business. As a result, the applicant is requesting a Special Permit to allow a home occupation for the sole purpose of maintaining her real estate brokers license of 30+years to assist family and friends interested in buying real estate. With the approval of the Special Permit it would allow the applicant to transact her real estate business and to operate the coffee farm business without leaving the property. -1- The criteria for approving a Special Permit are based on Rule 6-7 in the Planning Commission Rules. Rule 6-7 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 or Rural District,whichever the case may be 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. The State Land Use Law and Regulations are intended to preserve, protect, and encourage the development of lands in the State for those uses to which they are best suited in the interest of the public health and welfare of the people of the State of Hawai`i. In the case of the Agricultural District, the intent is to preserve or keep lands of high agricultural potential in agricultural use. In recognizing that lands within the 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 proposed use is considered a"home occupation" as defined by the County's Zoning Code. A home occupation is any activity intended to provide income that is carried on within a dwelling, within an accessory structure to a dwelling, or on a portion of a building site used principally for dwelling purposes. The County's Zoning Code and State Land Use Law require a Special Permit to establish a home occupation on lands designated Agricultural by the County and State. The 5.16-acre subject property is rectangular in shape and is improved with an existing, single-story farm dwelling located towards the center of the property and related detached structures. The proposed special permit area consists of an approximately 75- square foot portion of the existing 2,696-square foot dwelling proposed for the real estate office. The remainder of the property is currently being used to grow coffee, fruit trees, and native plants to Hawaii. The proposed use is not agricultural in nature but will occur 2 entirely within an existing dwelling and therefore will not foreclose opportunities to use the remainder of the property for agriculture. 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 following criteria listed under Section 6-3(b)(5) (A)through(G) of its rules of practice and procedure: (A) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations. The proposed use is considered an unusual and reasonable use of the agricultural land that will not adversely affect the preservation and agricultural use of the County's agricultural lands. (B) The desired use shall not adversely affect surrounding properties. The surrounding properties are similarly zoned A-5a and are approximately five (5) acres in size. Surrounding land uses are primarily agricultural and residential, with some vacant undeveloped parcels. The nearest dwelling is located across Kamalani Street approximately 180 feet to the northwest of the subject property. Since the proposed use will occur within the existing dwelling,with no additional employees or anticipated visitors, and will not generate noise or odors, it is unlikely that the use will have any adverse impacts on surrounding properties. Additionally, at the time of this writing, no public comments have been received regarding the subject request. (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers,water, drainage, school improvements, and police and fire protection. The subject property is accessed via Kamalani Street which is a shared 50- foot-wide access easement that crosses over various properties starting from Mamalahoa Highway. However,there will be no increase in traffic as client meetings will occur remotely or at the respective locations of real property interest. According to the Department of Water Supply (DWS), the subject property is being served with an existing 11/2-inch master water meter and the proposed project is not expected to generate a significant increase in water demand. Therefore, DWS has no objection to the requested Home Occupation within the existing dwelling. 3 Wastewater from the existing dwelling is being disposed of into an existing individual private cesspool and all other essential utilities and services are available to the site. Based upon the preceding, the proposed use will not unreasonably burden public agencies to provide infrastructure and services to the site. (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. Since 2019 there has been a drastic increase in the need to be able to work from home as well as operate small businesses as an in-home occupation due to the ongoing Covid-19 pandemic. Additionally, many technological changes have made it easier for people to operate home-based businesses. 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. Soils on the project site are classified as "C" or "Moderate Productivity"by the Land Study Bureau's Overall Productivity Rating and are "Unclassified"by the Department of Agriculture's Agricultural Lands of Importance to the State of Hawaii (ALISH) Map. The USDA Soil Survey Type for the subject property is Honuaulu hydrous silt loam, with 2 to 10 percent slopes. As previously stated, the home occupation will take place entirely within the existing farm dwelling, and thus will not have an impact on the agricultural use of the land, which is largely being utilized by the owner to grow coffee, fruit trees, and plants native to Hawaii. (F) The proposed use will not substantially alter or change the essential character of the land and the present use. The current character of the property and 4 surrounding area is agricultural with farm dwellings. A farm dwelling was constructed on the property in 2005, a portion of which will be used for the real estate office. Since all activities associated with the proposed use will take place within the existing dwelling, the essential character of the land is not expected to change. (G) The request will not be contrary to the General Plan and official Community Development Plan 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 proposed use is considered a home occupation-type business because it occurs entirely within an existing dwelling and does not involve client visits to and from the business. Therefore, it should not have any impact on the agricultural use of the surrounding land. Based on this information, the proposed use will not be contrary to the goals, policies, objectives, and actions of the General Plan. The Kona Community Development Plan (KCDP), originally adopted by the Hawaii County Council on September 25, 2008 and most recently amended on September 18, 2019, identifies the preferred land use pattern for the Kona districts. The subject property is located outside of the Kona Urban Area and outside of any Rural Town Areas. The KCDP does not provide guidance on Special Permit applications. As the real estate office will be within an existing dwelling, it is a home occupation, is not considered an urban or commercial use, and will allow the applicant to transact her real estate business and to operate the existing coffee farm business. Thus, the request is consistent with the goals and objectives of the KCDP. The proposed use is not contrary to the objectives sought to be accomplished by Chapter 205A,Hawaii Revised Statutes, relating to the coastal zone management program. The property is located well outside of the Special Management Area(SMA) and tsunami evacuation zone. There is no designated public access to the mountain or shoreline areas over the property. Therefore,the proposed use will not 5 adversely impact any recreational resources, including access to and along the shoreline, scenic and open space nor visual resources, coastal ecosystems, and marine and coastal resources. Further, the property will not be affected by any coastal hazards or beach erosion. Therefore, the proposed use is not contrary to the objectives of Chapter 205A, Hawaii Revised Statutes. 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, 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. A request for review of the application was sent to the State Historic Preservation Division (SHPD) on March 4, 2022, however, as of the date of this writing, the Planning Department has not received a response from SHPD. The subject property has been cleared for construction of a dwelling, driveway, and related detached structures. The remainder of the property is being used to grow coffee, fruit trees, and plants native to Hawai'i. There are no known endangered or listed plant species on the property. 6 ■ 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 approval of the request to allow the use of a portion of an existing dwelling as a real estate office would support 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 applicant, successor(s) or assign(s) ("Applicant") shall comply with all applicable County, State and Federal laws, rules, regulations, and requirements. 2. The Applicant shall comply with Section 25-4-13 of the Zoning Code (Chapter 25), County of Hawaii related to Home Occupations. 3. As represented by the Applicant, no client visits to the property shall be permitted. 4. 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. 7