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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-REZ-2022-032) RSunshineHoldingsREZAmend.8.30.2022 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION SUNSHINE HOLDINGS, LLC AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 98 91 (PL-REZ-2022-000032) Upon careful review of the request to amend conditions of Ordinance No. 98 91, the Planning Director is recommending that a favorable recommendation for the applicant's proposed amendments to Condition D, Condition E, Condition F, deletion of Condition G, amendment to Condition I, addition of a condition requiring compliance with Chapter 10, deletion of Condition J, and amendment to Condition M 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 the following amendments to Change of Zone Ordinance No 98 91: ■ A five (5)-year time extension to Condition D (Final Subdivision Approval),with the possibility of an administrative time extension. ■ An amendment to Condition E (Restrictive Covenants) to delete the requirement to provide a copy of the recorded covenant prior to receipt of final subdivision approval. and Condition F (Restrictive Covenants)to prohibit the allowance of condominium property regimes (CPR) and to delete the requirement to provide a copy of the recorded covenant prior to receipt of final subdivision approval. ■ The deletion of Condition G,which required restrictive covenants in the deeds of all proposed lots to require individual owners to file a conservation plan with the Kona Soil and Water Conservation District. ■ An amendment to Condition I (Drainage Study) to add the standard requirement that all development-generated runoff be disposed of on site and not be directed toward any adjacent property. ■ The addition of new standard condition requiring compliance with Chapter 10 of -1- the Hawaii County Code (Erosion and Sedimentation Control) ■ The deletion of Condition J (Archaeological Survey) due to the State Historic Preservation Division's (SHPD) prior determination that"no historic properties would be affected"by the proposed four(4)-lot subdivision. ■ An amendment to Condition M (Fair Share Requirements), to clarify that the fair share requirement shall only apply to any additional lots created and to update the required fair share amounts to current rates. 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 applicant acquired the subject property under foreclosure on May 11, 2022, with the goal of completing the proposed, four (4)-lot subdivision as envisioned by the previous owner. According to the applicant, it is unknown why the former owner could not complete the proposed subdivision within the timeframe stipulated in Ordinance No. 98 91, however, the applicant intends to complete the subdivision as represented in the original ordinance, thus the additional time to complete the subdivision is necessary. Based on the preceding, the Planning Director has determined that the non- performance by the former landowner was beyond the current applicant's control and was not the result of their fault or negligence. Furthermore, as the ordinance was approved in 1998, the Planning Director recommends updating several existing conditions to reflect current standard language and amending/adding new conditions as requested by the applicant and recommended by agencies as further discussed below. Granting of the time extension and amendments would not be contrary to the 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 1998. 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. The A-5a zoning is compatible with this LUPAG designation. -2- Since the approval of the Change of Zone in 1998, the Kona Community Development Plan (CDP) was developed and adopted by the County Council on September 25, 2005 as Ordinance No. 08 131 and more recently 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 amended ordinance will retain condition requirements for perpetual easements, special setbacks, and forest coverage requirements for the purposes of protecting and maintaining naturally forested areas as well as the requirement to develop forest management plans as has been standard for change of zone requests in the Kaloko Mauka Subdivision. Finally, the A-5a zoning and proposed 4-lot subdivision is compatible with the rural character of lands located within the Kaloko Mauka Subdivision and will be developed in conformance with the Zoning and Subdivision Codes. Furthermore, Condition F will continue to require restrictive covenants prohibiting a second dwelling unit on each lot. The applicant is requesting the addition of the prohibition of Condominium Property Regimes (CPRs) on each lot to reflect more recent standard language for this type of condition. Based on the preceding, the Planning Director recommends approval of this request. Based on the preceding, the granting of the time extension and other proposed amendments would not be contrary to the General Plan, Kona Community Development Plan and the Zoning Code. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. The original reasons for granting the change of zone remain valid today. The proposed request will not unreasonably burden public agencies to provide infrastructure and utilities to the property. Neither the Department of Public Works, Engineering Division, the State Department of Transportation nor the State Department of Health had significant concerns regarding the request. The property has direct access to Kaloko Drive and any driveways thereto will need to meet with the requirements of the Department of Public Works. There is sufficient water for the -3- proposed request and the applicant has paid the water commitment fee for three (3) additional units of water through June 30, 2025. Conditions of approval will require the applicant to maintain those water commitments and construct all water system improvements as may be required by the Department of Water Supply. The applicant has also requested to amend Conditions E and F to remove the requirement to record restrictive covenants prior to receipt of final subdivision approval. According to the applicant, the submission of the recorded documents is redundant and can be time consuming since a draft of the restrictive covenants must be approved by the Planning Director prior to its submittal for to Bureau of Conveyances for recordation. Based on the preceding, the Planning Director recommends approval of these amendments, as they are not contrary to the original intention of these conditions. The subject parcel is in an area designated as Zone "X" on the Flood Insurance Rate Map (FIRM) by the Federal Emergency Management Agency, determined to be outside the 500-year flood plain. The applicant has requested to amend Condition I (Drainage Study) to require that all development-generated runoff be disposed of on site and not directed toward any adjacent properties. This amendment will bring the condition in alignment with conditions in other recent zone changes in the area and update it to current standard language. Based on the preceding, the Planning Director recommends approval of this request. There are no severe geological or topographical problems which cannot be properly rectified. The applicant has requested deletion of Condition G, which required restrictive covenants in the deeds of all proposed lots to require individual owners to file a conservation plan with the Kona Soil and Water Conservation District. This language was common for older rezones, as the Soil and Water Conservation Districts were the organizations that managed soil erosion and sedimentation control. When Chapter 10 of the Hawaii County Code (Erosion and Sedimentation Control) was amended in the early 2000s, it transferred responsibility for erosion management to the County Department of Public Works (DPW) through the grading and grubbing permit process, thus the applicant's proposed addition of the standard Chapter 10 condition is appropriate. DPW did however note that if long term agricultural operations are to take place, a conservation program with the applicable soil and water conservation district is more -4- appropriate and would be an exclusion to a Chapter 10 permit. If the applicant or any individual lot owner chooses to take advantage of this process, they can do so under the auspices of current County Code. Based on the preceding, the Planning Director recommends approval of the requested deletion of Condition G and addition of a new standard condition requiring compliance with Chapter 10 of the Hawaii County Code (Erosion and Sedimentation Control). The applicant is requesting to amend Condition M to clarify that fair share assessment applies only to the additional lots to be created, and that the values of the fair share contributions are updated to current requirements. While the applicant proposed specific language amending the condition to address the preceding, the Planning Director recommends updating the condition to apply all of the fair share assessment to Mamalahoa Highway/Kaloko Drive intersection as has been standard with other recent zone changes in the area. Finally, while the applicant also requested the possibility of an administrative time extension for timed conditions of the ordinance, the Department's common practice is to not add the administrative time extension condition to change of zone amendments as the original ordinance included that one-time privilege, and that timeframe to use the time extension has long passed. Furthermore, the applicant has not provided any compelling reason for the need for additional time. According to the application, the applicant will immediately submit subdivision plans upon amendment of the ordinance and with the removal of the requirement to submit recorded restrictive covenants and removal of the requirement to submit an archaeological study, the 5-year timeframe should be sufficient to secure final subdivision approval. Based on the preceding, the grating of the time extension and other proposed amendments would not be inconsistent with the original reasons for the granting of the change of zone. The request is not contrary to Chapter 205A,Hawaii Revised Statutes, 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 -5- 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: 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 applicant is requesting to delete Condition J (Archaeological Survey),which required the completion of an archaeological survey or study prior to the receipt of final subdivision approval based on a prior determination by SHPD that"no historic properties would be affected"by the proposed four(4)-lot subdivision by letter dated April 2, 2005, completing their HRS Chapter 6E-42 review. In the letter, SHPD indicated that archeological sites would be unlikely on the subject property given results of an assessment on the adjoining property and other investigations of properties at a similar elevation. According to the DPW, approval from SHPD will still be required for specific grubbing and grading activities,which will be covered under requirements of Chapter 10 (Erosion and Sedimentation Control). Based on the preceding,the Planning Director recommends approval of this request. 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), 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. A condition of approval will be included to address the recommendations provided by DOFAW. The valued cultural, historical, and natural resources found in the rezoning area: Neither the applicant nor the Department area not aware of any cultural or historic resources on the property. According to the applicant, while the property is covered in native forest, there is no evidence of any traditional and customary Native Hawaiian -6- rights being practiced on the property. 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. 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 be forwarded to the County Council for the applicant's proposed amendments to Condition D (Final Subdivision Approval), Condition E (Restrictive Covenants), Condition F (Restrictive Covenants), deletion of Condition G (Conservation Plan with the Soil and Water Conservation District), amendment to Condition I (Drainage Study), addition of a condition requiring compliance with Chapter 10, and deletion of Condition J (Archaeological Survey). The Planning Director also recommends an amendment to Condition M(Fair Share) to address the applicant's request and to bring it current with standard language for rezones in the area. Finally, 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. 98 91 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. -7- COUNTY OF IJAWAI`I -' :t STATE OF HAWAI`I it •OF•x�.l BILL NO. ORDINANCE NO. (Planning Dept. AN ORDINANCE AMENDING ORDINANCE NO. 98-91 WHICH RECLASSIFIED LANDS FROM AGRICULTURAL—20 ACRES (A-20a) TO AGRICULTURAL — 5 ACRES (A-5a) AT KALOKO, NORTH KONA, HAWAI`I, COVERED BY TAX MAP KEY: 7-3-025:012. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI`I: SECTION 1. Section 2 of Ordinance No. 98-91 is amended as follows: "SECTION 2. In accordance with Section 25-2-44, Hawai`i County Code 1983 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 2. Material to be deleted is bracketed and stricken. New material is underscored. -1- SECTION 3. 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 4. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAI`I Hawaii Date of Introduction: Date of 1 st Reading: Date of 2nd Reading: Effective Date: -2- CSunshineHoldingsREZ.Amend.8.23.2022 SUNSHINE HOLDINGS,LLC AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 98 91 (PL-REZ-2022-000032) AMENDED CONDITIONS OF APPROVAL A. The []Applicant, its successors,or assigns ("Applicant') shall be responsible for complying with all of the stated conditions of approval. B. The [ ] (Applicant) shall be responsible for complying with all requirements of Chapter 205, [14awaii] Hawai`i Revised Statutes, relating to permissible uses within the State Land Use Agricultural District. C. [ S"ply in aeeofdanee with its "Watef Commitment Guidelines Pohey"within ninety ] The Applicant is 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 [applieants]Applicant shall reserve the following easements and special setbacks in perpetuity for purposes of protecting and maintaining naturally forested areas and delineate such easements and setbacks on plans submitted for subdivision review: 1. a 60-foot wide "forest reserve easement" along the existing public street frontage of the subject property, exclusive of sight easements required by the Department of Public Works and access points permitted by the Department of Public Works. 2. a 30-foot wide "forest reserve easement" along all lot lines not covered by the 60-foot wide easement; and 3. a 60-foot wide structural setback in lieu of the required 30-foot setback along the property's public street frontage to provide an additional buffer. -1- E. Restrictive covenant(s) in the deeds of all the proposed agricultural lots fronting Kaloko Drive 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 sixty-seven percent(67%) 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. [A eepy of the Fiii l c4„a;. ;siei pp- ] A copy of the recorded document shall be filed with the Planning Department upon its receipt from the Bureau of Conveyances. F. Restrictive covenant(s) in the deeds of all the proposed agricultural lots within the subject property shall prohibit the construction of a second dwelling unit and condominium property regimes (CPR) on each lot. A draft [eefy] of the proposed covenant(s) to be recorded with the State of Hawaii 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. [ -2- ] H. 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 State Department of Health, the State Department of Agriculture and the U.S. Department of Natural Resources Conservation Service. The Forest Management Plan shall require the following: 1. Include at a 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, such as the Forest Stewardship Program or the Soil Conservation Service Management 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 Bureau of Conveyances and/or Land Court. A copy of the covenants 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 [applieants]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. 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. -3- I. All development-generated runoff shall be disposed of on site and shall not be directed toward any adjacent properties. A drainage study of the subject property, 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 the issuance of Final Subdivision Approval. J. All earthwork and _grading shall conform to Chapter 10, Erosion and Sedimentation Control, of the Hawaii County Code. [-J-.] K. [ 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. -4- Subsequent work shall proceed upon an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. L. Access(es) to the subject property from Kaloko Drive shall be constructed in a manner meeting with the approval of the Department of Public Works. M. Should any state or federally listed or endangered species be found on the subject property, the Applicant shall comply with all applicable requirements of DOFAW and/or the USFWS. [M-.]N. - stFbdivided by t4e afnetmts alleea4ed her-ein below for- eaeh stieh let, and shall beeeme- Hneiits, t4e afneffnt of t4e fair- share eeiit+ibtAieii "e and payable prior-to filial fair- share eeiit+ibtAiefi to address t4e petefftial read impaets shall be iii t4e for-fn of ea and shall be applied to impr-eving t4e Kaleke Pr-ive/Hawaii Belt Read iliter-Seetiell. T- to four-(4) residential units, the indieated total ef fair- share eentr-ibution is $28,956.64 i e3 non Qc per- s41gle family r-esidential , „it for- an iiidie4edtotal f$ 3 963 nn t -5- 0 0 0 3. $332.61 per-siiigle family r-esideiitial tmit for-an iiidie4ed total of$1,330.4 4 to 4. $145.62 per-siiigle family r-esideiitial tmit for-an iiidie4ed total of$582.48 to t4e 5. $3,101.68 per-ying-rc-furniryTcsccreiitial tmit for-ZciriirarccZs�c�cccc-total rof zz, vv--rt-iv the l4efieltilti Consumer-Pr-iee lfide* (14CPI). hi liett of paying the fair- share 60144ibu-tiop',- r-eer-e4ieii, f4r-e, poliee, solid waste disposal faeilities, and roads withiii th- eest of any impr-evemeiits r-e"ir-ed or-made iii liett of the fair- share eeii!ffibu-tieii shall be- pl o „t „tom l The Applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to roads. The fair share contribution shall become due and payable prior to receipt of Final Subdivision Approval. The fair share contribution shall be based on the actual number of additional lots created. The fair share contribution to address the potential road impacts shall be in the form of cash and/or in- -6- kind services approved by the County Council and shall be applied to improving the Kaloko Drive/Mamalahoa Highway intersection. Based upon the Applicant's representation of intent to subdivide and develop up to three (3) additional lots, the fair share contribution is $15,636.59 per additional lot,for a combined total of$46,909.77. The fair share contribution shall be adjusted annually by the Hawaii County Planning Department, beginning_ _ three hree (3)years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI). Upon approval of the fair share contribution, the Planning Director shall submit a final report to the County Council for its information that identifies the specific approved fair share contributions, as allocated, and further implementation requirements. [ ]O. The Applicant shall comply [may] with all applicable laws, rules, regulations and requirements of the affected agencies for approval of the development within the subject property. [()-.]P. 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. [g]Q [ grante,acccfor-p2rfer-m riree (i.e., a ee itieii to be per-fer-m ,a W4444 elle year-fna-y be .,*o,,, e for"to eiie additional y e )JIf 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. -7- [�]R. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation. -8- I I i TRUE NORTH Scale: 1' A-20a A-10a A-la i I AGRICULTURAL (A-20a) A-20a TO i Kaloko AGRICULTURAL (A-5a) I AREA: 21 .353 ACRES i Oa I A-10a A-5a i A-20a j KALOKO i DRIVE Mauka A-20a A 5a !`I I 14,314.38 S A-'Sa j 208 396.49 W "MOANUTAHEA' A-5a A-20a j r Subdivision o� F N-4 0 A-3a 10 T � A-20a S REFT A-20a A- a A-Sa ' A-3 A-'Sa i j A-20a A FA-3a A- Oa A-3a i i AMENDMENT TO THE ZONING CODE- AMENDING SECTION 25-8-2 (NORTH AND SOUTH KONA DISTRICT ZONE MAP) ARTICLE 89 CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-20a) TO AGRICULTURAL (A-5a) AT KALOKO, NORTH KONA, HAWAII. PREPARED BY : PLANNING DEPARTMENT COUNTY OF HAWAII TMK . 7-3-25:12 JUNE 23. 1998 EXHIBIT "A" FOR REFERENCE ONLY (STAR MARKETS LTD LOT 9) i