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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SPP-2022-000024) RCarlson-SPP.mp 11-04-2022 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION CARL AND CHRISTINE CARLSON SPECIAL PERMIT APPLICATION NO. PL-SPP-2022-000024 Upon review of the request against the guidelines under Rule 6 of the Planning Commission Rules of Practice and Procedures for granting a Special Permit, the Planning Director is recommending that this request to allow a one-bedroom bed and breakfast establishment within an existing two-bedroom single-family dwelling 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 approved recommendation is based on the following findings: The applicants, who reside on the property, are requesting a Special Permit to allow a one-bedroom bed and breakfast establishment in an existing, permitted,two- bedroom single-family dwelling. The bed and breakfast will operate within the existing footprint of a 308-square foot detached bedroom with an attached 132-square foot covered lanai, with the intention to provide accommodations for no more than two adults. According to the applicants, guests will have the opportunity to experience the plant nursery on the adjoining property, owned by the applicants' family, and be served produce from on-site fruit trees. According to the applicants, there will be no employees as they will be the only operators of the bed and breakfast. Off-street parking is available for the guests of the bed and breakfast operation and for the residence. The applicants propose to designate two unpaved parking stalls adjacent to the existing detached garage to be used by guests of the bed and breakfast. The applicants intend to begin operating the bed and breakfast upon approval of the special permit and do not anticipate construction costs associated with the project. The applicants are requesting a Special Permit to allow a one-bedroom bed and breakfast operation to provide supplemental income and some occasional company to the -1- applicants. The applicants also plan to serve as an indirect form of agricultural tourism by providing guests access to on-site orchard trees and a small floral nursery on the adjoining property. The criteria 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 granting of this request would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, 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 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 while the soils are classified as "C" or Fair by the Land Study Bureau's Overall Master Productivity Rating and designated as "Unclassified" or"Other Agricultural Land"by the Department of Agriculture's ALISH Map. Further, as the proposed use will occur within the footprint of the existing single- family dwelling, the agricultural potential of the subject property will not be diminished. Currently, orchard trees, such as mango, avocado, lime, pomegranate, ulu, and lychee encompass the agricultural uses on the subject property. 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 proposed use is an unusual and reasonable use of land situated within the State Land Use Agricultural District. 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 -2- 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 subject property is 2.832 acres in size and situated within the County's Family Agriculture 2-acre (FA-2a) zoned district. The applicants currently reside in the existing single-family dwelling on the subject property and the proposed one-bedroom bed and breakfast will operate within the existing detached bedroom. The applicants state that they will maintain agricultural uses on the property, including existing fruit tree orchards. Given that the special permit area is limited to the existing detached bedroom,the proposed bed and breakfast will not diminish the potential for any future agricultural activity on the subject property. Based on the preceding, the subject request is considered an unusual and reasonable use of the agricultural land. 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 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 shall not adversely affect the surrounding properties. The existing single-family dwelling is situated on a 2.832-acre parcel. Only the adjacent property to the west is zoned Family Agriculture 2-acre (FA-2a) and contains a single- family dwelling. All other surrounding lands to the property are zoned Agricultural 5- acre (A-5a) and mostly consist of vacant land and scattered dwellings. There will be no employees other than the applicants associated with the bed and breakfast operation. Due to the minimal size of the operation, it is not anticipated that the proposed use will adversely affect the surrounding properties. (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers,water, drainage, school improvements, and police and fire -3- protection. The applicants anticipate that traffic to be generated by the proposed one- bedroom bed and breakfast facility would be minimal. Access to the site is from Ho`omalie Place, a private road with a 20-foot-wide pavement within a 50-foot right-of- way. that intersects with Mamalahoa Highway, which is under the jurisdiction of the State Department of Transportation. The subject property has access via easement interest in Ho`omalie Place. There is no municipal sewer system in the subdivision. The applicant currently utilizes an existing, permitted septic system. The property is not within the service limits of the Department of Water Supply (DWS) and is serviced by a private water system that has been approved by DWS. According to the Department of Health (DOH), if the bed and breakfast offers non-hazardous breakfast foods such as commercial cereal, certain pastries, breads, fruits, coffee, tea, or juice, then a food establishment permit is not required, however the limited menu must be documented with DOH. A condition of approval will require the applicants to comply with food service notification and permit requirements, meeting with the approval of DOH. According to the Real Property Tax Office (RPT), a one-bedroom bed and breakfast establishment within the existing dwelling, with verifiable STVR activity as defined by RPT, may result in loss of benefits of the homeowner classification. In response, the applicants have stated that if RPT determines that the homeowner tax classification will not apply to the proposed use, they may elect to not commence operations of the bed and breakfast and would request revocation of the special permit as necessary. A condition of approval will require the applicants to consult with RPT regarding potential modification of their tax classification. The property is situated within an area designated as Flood Zone X on the Flood Insurance Rate Map (FIRM) by FEMA, an area of minimal flood hazard located outside the 500-year flood plain. Electrical and telephone services are available to the property. Fire and medical services are available from the Makalei Fire Station and police services are available from the Kealakehe Police Station. -4- A condition of approval will be included requiring the applicants to meet all applicable County, State and Federal laws,rules,regulations, and requirements. 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. 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 and uses may be allowed. Since the district boundaries were established, demand has increased for accommodations for guests who seek an alternative to resort venues. The proposed use would meet this demand by providing visitors an opportunity to experience a family-operated bed and breakfast that emphasizes a connection to on-site agriculture. (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 Ndpu`u, extremely cobbly medial highly decomposed plant material, 10 to 20 percent slopes. As previously stated, the bed and breakfast will take place entirely within the existing single-family dwelling and thus will not have an impact on the agricultural use of the land, including existing fruit tree orchards. (F) The proposed use will not substantially alter or change the essential character of the land and the present use. The proposed request of a one-bedroom bed -5- and breakfast operation will be conducted within the existing single-family dwelling. The character of the surrounding lands is predominantly rural/agricultural in nature, with scattered dwellings and undeveloped land. The applicants currently reside within the existing single-family dwellings on the property. The number of bed and breakfast guests will be limited by the one bedroom; therefore,the applicant does not anticipate any significantly adverse traffic impacts on the local roadway system. Based on the preceding, the proposed request will not substantially change the essential character of the land and the present use. (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 subject property is designated as Extensive Agricultural Lands by the General Plan, which includes lands that are not capable of producing sustained, high agricultural without the intensive application of modern farming methods and technologies due to certain physical constraints such as soil composition, slope, machine tillability, and climate. Other less intensive agricultural uses such as grazing, and pasture may be included in the Extensive Agricultural category. As mentioned previously, the proposed use occurs entirely within an existing dwelling and will not diminish agricultural use of surrounding lands. The approval of the subject request would support the goals and policies of the Land Use and Economic elements of General Plan. Land Use Element • Designate and allocate land areas in appropriate proportions and mix and in keeping with the social, cultural, and physical environments of the County. • Protect and encourage the intensive utilization of the County's important agricultural lands. -6- • The County shall encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment. Economic Element • Economic development and improvements shall be in balance with the physical and social environments of the island of Hawaii. • The County shall provide an economic environment which allows new, expanded, or improved economic opportunities that are compatible with the County's natural and social environment. • The County shall strive for diversification of its economy by strengthening existing industries and attracting new endeavors. • The County of Hawaii shall encourage the development of a visitor industry that is in harmony with the social, physical, and economic goals of the residents of the County. The proposed request will allow the applicant an opportunity to improve their quality of life, provide an economic environment which allows this new opportunity and increase the development of the visitor industry for Hawaii. Based on the preceding, the proposed request is consistent with the Land Use and Economic goals and policies 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 bed and breakfast will be within an existing dwelling, it is not considered an urban use, and will provide the applicants with supplemental income and serve as an indirect form of agricultural tourism by providing guests access to on-site orchard trees and a small floral nursery on the adjoining property. Thus, the request is consistent with the goals and objectives of the KCDP. -7- 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 located over four (4) miles from the nearest shoreline, is not situated within the Special Management Area and will not be impacted by coastal hazard and beach erosion. It is adjacent to existing residential and agricultural lands. There are no identified recreational resources or 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. 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: An Archaeological Inventory Survey (AIS) entitled"Archaeological Inventory Survey TMK: (3) 7-2-004:027, Manini`6wali Ahupua`a, North Kona District, Island of Hawaii TMK: (3) 7-2-004:027"was prepared by Haun and Associates in January 2016. The valued cultural, historical, and natural resources found in the special permit area: The AIS identified one isolated surface artifact and three archaeological sites with a total of 14 features. These sites consist of a boulder and cobble wall (Site 30480), a lava tube (Site 30481), and a more complex 12 feature site (Site 30482). The identified features consist of nine modified outcrops, two mounds, and a terrace. Feature function consists of cattle-control (1),temporary habitation site (1), and agricultural (12). The three sites in the project area possess integrity of location, design, setting, materials, workmanship, feeling, and association. All the sites are assessed as significant for its information content(Criterion "D"). The AIS determined all sites were adequately documented and were recommended for no further archaeological work or preservation. -8- By letter dated May 13, 2016, the State Historic Preservation Division (SHPD) accepted the AIS, agreeing with the site significance assessments and the recommendation of no further work. According to the applicants, it is not known whether the subject property or immediate surrounding area has been used in the recent past for the gathering of plants by Native Hawaiians. Furthermore, the applicants have not observed any Native Hawaiians gathering plants or conducting any other customary and traditional practices on the site or the adjoining properties. No professional surveys were conducted of the flora/fauna resources on the property. According to the applicants,the likelihood of any rare or endangered species, habitat or flora on the property is remote. The property was previously used for cattle grazing and consists of scattered trees, such as `6hi`a,jarcaranda, kukui, Christmas berry, and others. The Department of Land and Natural Resources—Forestry and Wildlife Division (DOFAW)provided comments listing `Ope`ape`a (Hawaiian Hoary Bat), Nene (Hawaiian Goose), `Io (Hawaiian Hawk), and Blackburn's Sphinx Moth (Manduca Blackburn) as potentially occurring species within the subject property. Additionally, DOFAW provided comments regarding the spread of Rapid `Ohi`a Death, vertebrate and invertebrate pests, and the spread of invasive plant species. Possible adverse effect or impairment of valued resources: With the exception of the previously mentioned archaeological sites, which were adequately investigated, the impairment of other valued resources on the property is unlikely because no ground disturbance is proposed, and all activities will occur within an existing dwelling. Feasible actions to protect native Hawaiian rights- As stated by 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 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 -9- subject properties. Additional governmental requirements may include the issuance of building permit, 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 above considerations,the proposed one-bedroom bed and breakfast establishment 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. The operation of the one-bedroom bed and breakfast shall be conducted in a manner that is substantially representative of plans and details contained within the Special Permit Application received by the Planning Department and any representations made to the Leeward Planning Commission. Any substantial expansion or uses beyond what is represented in these documents shall require an amendment to this permit. 3. The Applicant shall comply with all applicable requirements of Section 25-4-7 of the Zoning Code, as amended,relating to Bed and Breakfast Establishments. 4. The bed and breakfast operation shall be limited to the use of one (1) bedroom. 5. The Applicants are aware that the tax rates and/or tax exemptions for the subject property may change as a result of establishing the bed and breakfast operation. 6. The Applicant shall not dispose of solid waste at County transfer stations. 7. The Applicant shall comply with food service operations notification and permit requirements in the State Department of Health's Administrative Rules, Title 11, Chapter 50, Food Safety Code, as it pertains to bed and breakfast operations. -10- 8. The Applicant shall comply with all applicable County, State and Federal laws, rules, regulations, and requirements in connection with the approved use, prior to its commencement or establishment upon the subject properties. Should any of these conditions not be met or substantially complied with in a timely manner, the Director may initiate procedures to revoke this Special Permit. -11-