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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SPP-2022-017)RThomasTrusts SPP.crk.9.21.2022 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION MAURICE & JIRANAN THOMAS TRUSTS SPECIAL PERMIT APPLICATION NO. PL-SPP-2022-000017 Upon review of the request against the guidelines for granting a Special Permit, the Planning Director recommends that the request for a Special Permit to legitimize the use of an existing agricultural warehouse and office facility for warehousing, distribution and administrative operations related to retail and service activities in Orchidland Estates and Volcano Village on 1.045 acres of land in the State Land Use Agricultural district be approved by the Planning Commission. Since this recommendation is made without the benefit of public testimony, the Planning 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 an existing agricultural warehouse and office facility and related improvements for warehousing, distribution and administrative operations related to retail and service activities in Orchidland Estates and Volcano Village on 1.045 acres of land in the State Land Use Agricultural district. The existing 8,160 square foot building (currently permitted as an agricultural storage facility), houses 7,200 square feet of warehouse and distribution space and 960 square feet of administrative office space. An existing gravel parking area can accommodate 11, standard -sized parking stalls and space for a loading area. The warehouse facility currently accommodates a wide range of hardware products, food, and liquor/beer that supports the applicants' general store operations located on the adjacent property as well as their hardware store and restaurant operations in Volcano Village. Ice is also being manufactured and stored at this facility within a refrigerated storage container for distribution to the applicant's various businesses. The warehouse facility employs eight (8) workers, and the applicant proposes to continue operating seven (7) -1- days a week from 6:00 am to 6:00 pm. The warehouse operation currently handles deliveries/stock as follows: ■ Only one (1) large (8-foot by 40-foot) container shipment arrives each month at this warehouse facility providing products to support the applicant's True Value Hardware retail operations. ■ Once the container shipment is unloaded and transported into the warehouse facility, the products are segregated and then transported to the applicant's businesses in Volcano via smaller delivery vans, which amounts to approximately 12 daily deliveries. ■ As the Orchidland General Store is situated immediately to the east (makai) of the subject property and existing warehouse facility, the transport of products from the warehouse is directly via an existing dock situated between the two properties, with the use of forklifts and hand trucks to carry products. Upon approval of the Special Permit, the applicant will promptly apply for Plan Approval and provide all necessary on -site improvements as may be deemed necessary. Furthermore, the applicant will make every effort to secure the necessary building permits for a change of use of the existing structure to a warehouse and office building, and complete all required improvements in a timely manner, roughly estimated at two (2) years from the date of approval of the Special Permit. According to the applicant, the requested continued use of the property and structure for administrative, warehousing and distribution operations associated with the applicant's commercial retail and service activities located in both Orchidland Estates Subdivision (Orchidland General Store/True Value Hardware) and Volcano Village (True Value Hardware store and Thai Thai Bistro & Bar). This central facility efficiently supports the applicant's other retail and service businesses, eliminating the need to provide additional storage capacity at each business location, especially when similar products are being sold at both locations of their True Value hardware operations. The applicant has indicated that the facility will only be used to support its other commercial business listed in the application and will not expand the use beyond what is -2- represented. Finally, obtaining a Special Permit will legitimize the use that has been operating for nearly 20 years without the appropriate land use entitlements. The grounds for approving a Special Permit are based on Rule 6-7 in the Planning Commission Rules. It 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, Hawai `i 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 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 request is considered an unusual and reasonable use of agricultural lands. The proposed continuation of a warehousing, distribution, and administrative operations on the 1.045-acre parcel is unusual in that it is not an agricultural use of the subject property. It is reasonable in the Agricultural District because the property has been previously cleared and largely developed with the warehouse use for nearly 20 years. Furthermore, given its poor soil characteristics, the continued use of the property as proposed will not compromise the inventory of valuable agricultural lands on the island and thus will not be contrary to the objectives sought to be accomplished by State Land Use law and regulations. In addition to the above listed criteria, the Planning Commission shall also consider the criteria listed under Section 6-3(b)(5) (A) through (G). In considering the criteria, the Planning Director recommends the following: (A) Such use would not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations. The State Land Use Law and Regulations are intended to preserve, protect, and encourage the development of lands for -3- those uses to which they are best suited in the interest of the public welfare of the people and 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 uses. The subject property is not considered to have high agricultural potential from a resource perspective due to the soil type and its low productivity rating, which is typically used for grazing pasture lands and not agriculture. Furthermore, the property has largely been cleared and developed with the proposed warehouse structure. As evaluated above, the applicants' request is considered an unusual and reasonable use of agricultural land that will not adversely affect the preservation of lands with high agricultural potential in the County of Hawaii. While the property is designated for agricultural use by both the State and zoned for agriculture by the County, it is envisioned in both the General Plan and Puna Community Development Plan as a commercial node and village center. This area has historically been developed with Special Permits for a number of commercial and community service activities, rather than rezoning due to the challenges of implementing infrastructure, such as water availability and roadway improvements, required for rezoning. Thus, the establishment of the proposed use will not be contrary to the objectives sought to be accomplished by the State Land Use Law and Regulations. (B) The desired use would not adversely affect surrounding properties. Most of the immediately surrounding properties are zoned Agricultural (A-3a) and are over one acre in size. As previously discussed, this area has been developed for decades as the commercial hub/village center in the area with a commercial center (Orchidland Estates Convenience Center) directly adjacent to the subject property, a restaurant, a church, and most recently a Special Permit was issued for a public charter school kitty corner across Orchidland Drive. Other uses in the immediate area are characterized by a mix of farms, single-family residences, and vacant, undeveloped parcels. The nearest dwelling is located approximately 50-feet adjacent to the south of the subject property. Aside from the complaint which preceded the warning letter for the unpermitted use, the Planning Department has no record of other community complaints. The applicant has represented that they will abandon the driveway access on 34 h Avenue and -4- will build a new driveway from Orchidland Drive and that they will continue to contribute funds for Orchidland Drive improvements/maintenance. Additionally, a condition of approval will require the applicant to operate during daylight hours (6:00 am to 6:00 pm) and in order to mitigate any adverse noise, dust, or visual impacts to adjacent properties, a condition of approval will require the applicant to secure Final Plan Approval, requiring that the applicant pave the new driveway and parking area. Furthermore, the condition will require a landscaping buffer conforming with standards for separation of a residential zone from an industrial zone be implemented on the north property line where the property is directly adjacent to a residence. This will require the exclusion of all visual contact between the industrial and residential uses with an opaque buffer from the ground to the height of at least six feet, with intermittent visual screening (via planting) from the opaque portion to a height of at least 20 feet. The condition will also require front yard landscaping pursuant to Planning Department Rule 17 along the west (34 h Avenue) property frontage. (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 parcel is accessed via an existing driveway on 34 h Avenue by way of Orchidland Drive, which is privately owned and maintained by the Orchidland Community Association (OLCA) through the assessment and collection of road maintenance fees from lot owners within the subdivision, including Commercial Mandatory Road Maintenance Assessment fees paid by the applicant and other commercial lot owners in this area. As the roadway is privately maintained, there will be no impact on the County to maintain roadways for the proposed use. Traffic on Orchidland Drive is made up primarily of residents of the area and users of the shopping/commercial area east of the subject parcel. The current operation has not generated a significant amount of traffic to the area, which consists of monthly large (40-foot) container deliveries to the property and 12 daily deliveries via delivery vans to the applicant's businesses in Volcano Village. Finally, employee traffic usually occurs prior to 6:00 am and after 6:00 pm when the operations employees arrive and depart work daily. Based on the preceding, the Planning Director believes that the volume of traffic generated by the existing warehouse operations will have a detrimental -5- effect upon traffic movements along Orchidland Drive or at its intersection with the Kea`au-Pdhoa Road. By letter dated August 30, 2022, the State Department of Transportation (DOT) concurred with this finding. According to the DWS, one (1) unit of water at an average of 400 gallons per day (GPD)can be made available to the property via an existing 2-inch meter, which will accommodate potable water needs of the operation which the applicant has estimated at 100 GPD. Additionally, a condition of approval will require the applicant to comply with all requirements of the Fire Department for providing adequate access and sufficient quantities and flow rates of water for fire suppression. Currently there is a cesspool on the subject property servicing the wastewater needs of the warehouse facility, however according to the State Department of Health (DOH), they did not approve of connection of the unpermitted warehouse to the existing cesspool, which is considered a violation of Section 11-62-08(b), Hawaii Administrative Rules (HAR). According to DOH, the applicant will be required to retain the services of a licensed engineer to design and a licensed contractor to construct a new wastewater system that complies with Chapter 11-62, HAR for the subject property. The preceding will be added as a condition of approval with a tight timeline of 60 days from the effective date of the permit to complete the conversion. While this timeline is aggressive, the Planning Director is recommending this approach rather than requiring the suspension of warehouse operations until the conversion is complete, as it would have an extremely negative impact on the applicant's business operations in Orchidland and Volcano Village. At the same time, the building has been illegally connected to the cesspool for nearly 20 years and though the implementation of this condition, the Planning Director is making it clear that the conversion needs to be completed quickly to protect the health and safety of employees and the public. According to DOH, as the warehouse operation stores food for distribution to the applicant's retail and restaurant operations, the applicant will be required to comply with DOH's Food Safety Code. The preceding will be added as a condition of approval. According to the applicant, any solid waste generated by the warehouse operation are currently being disposed of at County solid waste transfer stations in Kea`au. -6- According to the Department of Environmental Management (DEM)-Solid Waste Division, commercial operations, among other uses, may not use transfer stations for solid waste disposal, thus a condition of approval will be added to require the applicant to follow DEM requirements for disposal of solid waste. According to the Department of Public Works -Building Division, the current structure was permitted as an agricultural storage building and no building permit was issued for a change in occupancy. They require that a change of use building permit be obtained to ensure fire, life, and safety of the occupants. A condition of approval will require the applicants to submit change of use building plans within three (3) month and complete the necessary improvements within six (6) months thereafter. Like the wastewater conversion discussed above, this aggressive timeframe is warranted to ensure that the structure us updated quickly to address the health and safety of the occupants and surrounding community. Electric, telephone, and internet services are available to the site and are currently supporting the existing warehouse use. Police, fire, and medical services are available nearby in Kea`au and Pdhoa. (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 August of 1964. 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, a community may establish various non-agricultural services that may not be available or allowed by zoning. Since district boundaries were established in the 1960's, the County has processed a number of Special Permits to allow various commercial uses and community service activities on properties along Orchidland Drive extending from the highway to halfway between 34th and 35th Avenues, including a commercial convenience center, church, restaurant, gas station, hardware store, and most recently for a public charter school. -7- These concentrations of urban type uses lead to this area within Orchidland Estates Subdivision to be recognized as its commercial hub by the General Plan and as a neighborhood village center by the Puna Community Development Plan (PCDP) which encourages concentrations of commercial uses in this particular area to serve the surrounding community and subdivisions. As the proposed warehouse use supports the applicant's businesses in the commercial center and within Volcano Village (also designated by the PCDP as a village center), the use would be consistent with the intent of the area. (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district. The proposed use is situated on lands whose soils are classified as "E" or "Very Poor" for agricultural productivity by the Land Study Bureau's Overall Master Productivity Rating. The Department of Agriculture's ALISH map does not classify the subject property as having any agricultural importance. In this case, the land is unsuited for agricultural activities and yet is classified for such uses. (F) The use will not substantially alter or change the essential character of the land and the present use. The existing agricultural warehouse has been utilized on the property for almost 20 years in support of businesses within the Orchidland Estates Convenience Center directly adjacent to the east of the subject property. As this particular section of Orchidland Drive has been utilized as the area's commercial center, the continued use of the warehouse fits the essential character of the land. (G) The request will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans. The County of Hawai`i's General Plan is the policy document for the long-range comprehensive development of the island of Hawaii. One of the purposes of the General Plan is to guide the pattern of future development in this County based on long-term goals. The General Plan Land Use Pattern Allocation Guide (LUPAG) Map designates the property and proposed Special Permit area as Medium Density Urban, which allows village and neighborhood commercial and single family and multiple family residential and related functions (multiple family residential -up to 35 units per acre). While -8- warehousing activities can be considered industrial in nature, it could also be commercial in nature as it directly related to and supports the applicant's existing businesses in Orchidland and Volcano Village. Based on the preceding, the use is consistent with the MDU LUPAG designation. Additionally, the approval of the subject request would support the goals and policies of the Public Facilities, Land Use and Economic elements of General Plan. Land Use- Commercial ■ Provide commercial developments that complement the overall pattern of transportation and land usage within the island's regions, communities, and neighborhoods. ■ Distribution of commercial areas shall meet the demands of neighborhood, community and regional needs. Economic ■ The County shall strive for diversification of its economy by strengthening industries and attracting new endeavors. ■ Economic development and improvements shall be in balance with the physical and social environments of the island ofHawai `i. As previously discussed, the proposed use is also consistent with the PCDP. The subject parcel is located within the Orchidland Neighborhood Village Center, an area identified by the PCDP as "located along Orchidland Drive from Highway 130 to ha�fivay between Mh and 35rh Avenues", which encompasses 15 parcels and an area of about 16 acres. A goal of the PCDP is to `facilitate land use entitlements and other tools for the development of existing and future village/town centers and special design districts by recommending approval of applications for commercial zoning or use permits ...for proposed uses at appropriate nearby locations, provided that the size and use of the expansion area conforms to the criteria applicable to the type of village/town center at that location. " Based on the preceding, the proposed use is consistent with the General Plan and the PCDP. The proposed use is not contrary to the objectives sought to be accomplished by Chapter 205A, Hawaii Revised Statutes, relating to coastal zone management -9- program. The Special Management Area (SMA) is part of the Coastal Zone Management Program regulated by the County. The subject property is not proximate to the shoreline and will not be impacted by coastal hazards or affect beach erosion, coastal ecosystems and marine resources. Additionally, the project site is not located in the SMA, and there is no record of a designated public access to the shoreline or mountain areas that traverses the property. Therefore, the proposed use is not contrary to the objectives of Chapter 205A, Hawaii Revised Statutes. 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: 1) No archaeological inventory survey or flora/fauna study of the property was conducted due to the significantly developed nature of the property. Furthermore, past ground disturbance activities within the property, which included backfilling, would indicate that the potential for subsurface archaeological resources is unlikely. The valuable cultural, historical, and natural resources found in the permit area: The subject site is not adjacent to or proximate to the shoreline. As such, there shold be no impact on fishing and/or coastal access. According to the applicant, there are no known customary or Native Hawaiian cultural rights exercised on the property. Furthermore, there are no known archaeological or historic resources on the property and the flora/fauna found on the property are largely introduced species consistent with that of an urban area, thus not considered to be particularly endangered or culturally significant. Possible adverse effect or impairment of valued resources: Given the lack of valued resources identified on the property, it is unlikely that such resources will be impaired. Feasible actions to protect native Hawaiian rights and valued resources: To the extent to which traditional and customary native Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian rights and no action is necessary to -10- protect these rights. A condition of the permit will require the applicant to stop work and notify the DLNR-SHPD should any unidentified sites or remains be encountered and proceed only upon receiving an archaeological clearance from the DLNR-SHPD. Lastly, this approval is made with the understanding that the applicant remains responsible for complying with all other applicable governmental requirements in connection with the approved 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 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 affected agencies. Based on the preceding considerations, use of the proposed warehouse and office facility for warehousing, distribution and administrative operations related to retail and service activities in Orchidland Estates and Volcano Village is an unusual and reasonable use of land in the Agricultural district and would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes. Approval of this request is subject to the following conditions: 1. The applicant(s), its successor(s) or assign(s) ("Applicant") shall be responsible for complying with all of the stated conditions of approval. 2. The proposed warehouse use shall be conducted in a manner that is substantially representative of plans and details contained within the Special Permit Application dated June 13, 2022, any supplemental material, and the representations made before the Windward Planning Commission. Any expansion of uses or operation beyond what is represented in this document shall require an amendment to this permit. 3. Within sixty (60) days of the approval of this permit, an individual wastewater system(s) shall be installed, and permitted for the proposed use, meeting with the approval of the State Department of Health. -11- 4. Within ninety (90) days of the approval of this permit, the Applicant shall submit plans for a Building Permit to the Department of Public Works -Building Division to change the use of the structure from an agricultural storage building to a commerical/industrial warehouse. Within one hundred and eighty (180) days thereafter, the Applicant shall finalize any required building improvements and obtain a Certificate of Occupancy for the proposed warehouse use. 5. Prior to construction, the Applicant shall secure Final Plan Approval for the proposed development from the Planning Director in accordance with Section 25-2-70, Chapter 25 (Zoning Code), Hawaii County Code. Plans shall identify all existing and/or proposed structure(s), paved driveway access and paved 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. Bufferyard landscaping shall by applied to the south property line and shall conform to the standards for separation of a residential zone from an industrial zone as provided for in Planning Department Rule No. 17. Front yard landscaping shall be applied to the west property line (along 34 h Avenue) as provided for in Planning Department Rule No. 17. 6. Hours of operation shall be limited to between 6:00 am and 6:00 pm daily. 7. Prior to issuance of a Certificate of Occupancy, the applicant shall provide fire protection measures appropriate for the proposed use, meeting with the approval of the Fire Department. 8. The method of solid waste disposal shall meet with the requirements of the Department of Environmental Management -Solid Waste Division. 9. Any development -generated runoff shall be disposed of on site and not directed toward any adjacent properties. 10. All earthwork and grading activity shall conform to Chapter 10, Erosion and Sedimentation Control of the Hawaii County Code. 11. The warehouse operation shall comply with requirements of Hawaii Administrative Rules (HAR) Chapter 11-50, Food Safety Code. -12- 12. 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. 13. The Applicant shall comply with all applicable County, State and Federal laws, rules, regulations and requirements. 14. An initial extension of time for the performance of conditions within the permit may be granted by the Planning Director upon the following circumstances: 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 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). 15. 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. -13-