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HomeMy WebLinkAboutPD Recommendation Report (PL-SMA-2022-000023) RKerr&Gleason 12/29/2022 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION DOUGLAS KERR AND BARBARA GLEASON SPECIAL MANAGEMENT AREA USE PERMIT APPLICATION (PL-SMA-2022-000023) Upon careful review of the applicant's request against the guidelines for granting of a Special Management Area Use Permit, the Planning Director recommends that this request to construct a two-story, 3,858 square foot, single-family residence, and related improvements on 0.49 acres of land situated within the Special Management Area be approved by the Planning Commission. Since this recommendation is made without the benefit of public testimony, the Director reserves the right to modify and/or alter this recommendation based upon additional information presented at the public hearing. This approval recommendation is based on the following: The applicant seeks a SMA Use Permit to build a single-family residence on a 0.49-acre shoreline parcel located within the Hawaiian Paradise Park Subdivision in the Special Management Area (SMA). The two-story residence would have 2,212 square feet of interior space, with 3-bedrooms, 2 1/2 baths and an attached 373 square foot garage. Together with the residence, garage, and other features, the total development area for the residence is 3,858 sf. The residence will be connected to electrical and cable by existing HELCO and Spectrum utility lines in the surrounding area, with potable water provided from an on-site water well. Wastewater would be treated by an approved individual wastewater system (IWS) located adjacent to the residence. The valuation of the proposed improvements is $625,000.00. The grounds for approving development within the Special Management Area are based on HRS, Chapter 205A-26(2) (Special Management Area guidelines) and Rule 9- 11(e) of the Planning Commission Rules of Practice and Procedure. Planning Commission Rule 9-11(e) states that the Authority (Planning Commission) may permit the proposed development only upon finding that: -1- 1. The development will not have any substantial adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and is clearly outweighed by public health, safety or compelling public interest; 2. The development is consistent with the objectives and policies and the Special Management Area guidelines as provided by Chapter 205A, HRS; 3. The development is consistent with the General Plan, Community Plan, Zoning Code and other applicable ordinances; 4. The development will,to the extent feasible, reasonably protect native Hawaiian rights if they are found to exist, including specific factual findings regarding: a. The identity and scope of valued cultural historical or natural resources in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; b. The extent to which those resources including traditional and customary native Hawaiian rights, will be affected or impaired by the proposed action; and c. The feasible action, if any, to be taken by the Authority to reasonably protect any valued cultural, historical or natural resources including any existing traditional and customary native Hawaii rights. In review of the SMA guidelines as listed under HRS 205A-26(2)(A), the proposed development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. In considering the significance of potential environmental effects,the Director shall consider the sum of those effects that adversely affect the quality of the environment and shall evaluate the overall and cumulative effects of the action on the Special Management Area. Such adverse effects shall include,but not be limited to,the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect and eliminate planning options. The proposed single family residence project is situated within the Hawaiian Paradise Park Subdivision which has been largely developed with single family residential structures and related uses. The proposed project does not trigger the need for an -2- environmental review pursuant to HRS, Chapter 343 (Environmental Impact Statements) and there are no unique or sensitive ecosystems such as wetlands, anchialine ponds, etc. on or nearby the property that would be adversely affected by the development. A portion of the property is in the shoreline area; however, no activity or development is proposed in the shoreline area except for the removal or trimming of ironwood trees. The applicant will need to secure a written determination of minor activity in the shoreline from the Planning Department prior to removal or trimming of any vegetation in the minimum 40-foot shoreline setback area. Based on the above, the proposed development will not have a significant adverse environmental or ecological effect upon the Special Management Area. In review of the SMA guidelines as listed under HRS 205A-26, the proposed development is consistent with the objectives and policies as provided by Chapter 205A-26, HRS, and Special Management Area guidelines contained in Rule No. 9 of the Planning Commission Rules of Practice and Procedure. The purpose of Chapter 205A, Hawaii Revised Statutes (HRS) and Special Management Area Rules and Regulations of the County of Hawaii, is to preserve,protect, and where possible, to restore the natural resources of the coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. The objectives and policies of Chapter 205A,HRS include,but are not limited to,the protection of coastal recreational resources, historic resources, scenic and open space resources, coastal ecosystem, marine resources, beaches, and controlling development in coastal hazard areas. The proposed construction of a single-family residence and related improvements is consistent with the objectives and policies of the Coastal Zone Management Program (Chapter 205A, Hawaii Revised Statutes)including: Recreational Resources: The shoreline is characterized as lava rock and cliffs. The nearest public acess from the subject property is from a County-owned property that is located to the North of the subject property. The shoreline access points and shoreline walking paths located to the North of the subject property are currently being used by -3- fisherman. While no formal access easement is being provided at this time for the subject property, the Applicant has stated that the paths will not be impacted by the proposed project and the applicant will continue to allow the public to walk along the sea cliff within the minimum 40-foot shoreline setback area. Historic and Cultural Resources: Features and remnants of the Puna district has been lost over the years to continual urban development of the area. No archeological or cultural sites appear to be present, and the project site does not support any traditional resource use, not that there are any Hawaiian customary and traditional rights or practices known to be associated with the subject parcel. The DLNR-SHPD has determined that no historic properties will be affected. Scenic and Open Space Resources: The proposed dwelling will be two stories in height which is similar to adjacent homes in the area and it is minimally visible from the vantage point of the public, since the highway towards the project site is over six miles away. The proposed project will not adversely affect any sight lines or scenic resources in any way. Coastal Ecosystems and Marine Resources: The subject property abuts the shoreline; however the design of the proposed residence and the conditions of construction permits will minimize potential impacts to coastal resources such as soil erosion. All mandated setbacks and government regulations related to runoff and nearshore water will be adhered to. No threatened or endangered animal or plant species are present and as such no adverse impact to flora, fauna, or ecosystems would be expected to result from the proposed development or any activities associated with the use. Coastal Hazards and Sea Level Rise: The subject property is designated as Zone X and VE on the Flood Insurance Rate Maps (FIRM). All development will occur within Flood Zone X, above the 16 foot elevation contour. According to the Sea Level Rise exposure area mapping program SLR-Xa,the exposure area for 3.2 feet of sea level rise or 3.2 feet of passive flooding is a considerable distance from the proposed construction area on the subject parcel. The entire parcel is located within the Tsunami Evacuation Zone. The development will be subject to the requirements of Chapter 27—Flood Control, of the Hawai`i County Code in order to minimize the effects of coastal hazards. In addition, the -4- single family residence will be constructed in conformance with Uniform Building Code specifications. Based upon the above information,the proposed development is consistent with the objectives and policies of Chapter 205A, HRS. The proposed development is consistent with the County General Plan, Puna Community Development Plan (PCDP), Zoning Code and other applicable ordinances. The parcel is zoned Agricultural — 1 acre (A-la) by the County of Hawaii. A-la is defined as a Agricultural district where the minimum building site area is 1 acre. The subject parcel has a building site of 21,344 square feet. The proposed single-family residence, adhering to its applicable building and shoreline setbacks, is consistent with the lots designated zoning. The proposed development will not create greater density than the zoning intends. The proposed project conforms to the General Plan Land Use Pattern Allocation Guide (LUPAG) Map, which designates this area as Open (ope). The General Plan's designation of Open (ope) is defined as "conservation lands,forest and water reserves, natural and scientific preserves, and potential natural hazard areas. " The proposed project aligns with the LUPAG policies relevant to Open Land Use spaces,which are slated to provide and protect open space for the social, environmental and economic well-being of the County of Hawai`i and it's residents as well as to protect designated natural areas. The proposed construction of a single-family residence and related development is keeping within these goals as it will continue to provide reliable access for the public to access the shoreline. The subject property is located within the Puna Community Development Plan (PCDP). The PCDP was adopted in 2008 by County Council, Ordinance 08 116, on September 10, 2008. While the PCDP does not list specific land uses for the subject parcel, the proposed residence does align with certain priorities of the natural and cultural resources, community infrastructure sections, such as: protecting and preserving coastal areas along with native vegetation and historic resources and ensuring that public access is retained or bolstered. -5- The development will to the extent feasible, reasonably protect native Hawaiian rights if they are found to exist. In view of the Hawaii State Supreme Court's "PASH" and "Ka Pa'akai O Ka'Aina" decisions, the issue relative to native Hawaiian rights, such as 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 valuable cultural, historical, and natural resources found in the area: As the property has been vacant, it is unlikely that there are any valued cultural, historical, and natural resources to be found in the project area. Possible adverse effects or impairment of valued resources: Vegetation may be destroyed by ground alteration. There is no evidence of any possible adverse effects or impairments will occur to any valued resources. Feasible actions to protect native Hawaiian rights: To the extent that traditional and customary native Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian rights. The proposed project will not restrict the use of natural resources along the shoreline, as all proposed work will be set back 40 feet from the shoreline. Conditions of approval have been added to protect endangered, threatened, and indigenous Hawaiian Hoary Bat or `Ope`ape`a (Lasiurus cinereus semotus) and the Hawaiian Hawk (`Io) and to utilize native plants in site landscaping. A condition of approval will be added for the protection of inadvertent finds should any remains of historic sites, such as rock walls,terraces,platforms, marine shell concentrations or human burials be encountered. The applicants shall be required to cease work in the immediate area and contact the Department of Land and Natural Resources — State Historic Preservation Division(DLNR-SHPD). Subsequent work shall proceed upon an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. Lastly, this approval is made with the understanding that the Applicant remains responsible for complying with all other applicable government requirements in connection -6- with the approved use, prior to its commencement or establishment upon the subject property. Additional governmental requirements may include the issuance of building permits, the installation of approved wastewater disposal systems, compliance with 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 findings, the proposed development will not have substantial adverse impacts on the environment, nor will its approval be contrary to the objectives and policies of Chapter 205A,HRS, relating to Coastal Zone Management and Rule No. 9 of the Planning Commission relating to the Special Management Area. 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 stated conditions of approval. 2. The Applicant shall secure all necessary approvals and permits from other affected Federal, State, and County agencies as necessary to comply with all applicable laws and regulation. 3. Construction of the single-family residence and related improvements shall be conducted in a manner that is substantially representative of plans and details as contained within the SMA Permit application dated October 20, 2022, and representations made to the Windward Planning Commission, including but not limited to the structure height and distance the structures are setback from the certified shoreline. 4. A building permit shall be secured and finalized for the proposed development and construction of the proposed development shall be completed within five (5) years from the effective date of this permit. 5. The shoreline setback area is the area between the certified shoreline and shoreline setback line, which is established forty (40) feet inland of the certified shoreline. The certified shoreline is not the same as the top of pali (sea cliff), which is located further seaward (makai) of the certified shoreline. 6. Prior to any land alteration on the property and until the time that the approved activity -7- and/or structure is completed and has received final inspection by the Building Division, the Applicant shall have a licensed land surveyor place and maintain stakes and flags at the location of the certified shoreline and the 40-foot shoreline setback line, as shown on the approved plans. Stakes and flags shall be placed at intersections with the side yard boundaries and at appropriate intervals along the setback line; the stakes shall be clearly visible at all times. No vegetation removal, land alteration or construction shall occur between the shoreline and shoreline setback line unless approved by this permit. 7. A construction barrier shall be erected along the entire length of the 40-foot shoreline setback line prior to the commencement of land altering and construction activities and shall remain in place until final inspection has been granted by the Building Division for the proposed single-family residence. The construction barrier shall be shown and properly noted on the plans submitted for any permits requiring land altering or construction activities. The construction notes on the plans must include the following statement, "The construction (and/or erosion control) barrier must be erected prior to any land altering or construction activities and must remain in place until final inspection by Department of Public Works." 8. No land alteration, grubbing, landscaping or construction activities, including but not limited to, the stockpiling of debris, construction materials or equipment, shall occur in the 40-foot shoreline setback area without securing a prior written determination of minor structure or activity pursuant to Rule 11-8 from the Planning Director or approval of a Shoreline Setback Variance from the Planning Commission. A written determination of minor activity is required from the Planning Department prior to removal of any ironwood trees in the shoreline setback area. 9. In order to ensure coastal access for fishing and hiking purposes the public has enjoyed for many years in this area, the applicant shall continue to allow lateral public access within the 40-foot-wide shoreline setback area along the top of the sea cliff. 10. Artificial light from exterior lighting fixtures, including, but not necessarily limited to floodlights, up-lights or spotlights used for decorative or aesthetic purposes shall be prohibited if the light directly illuminates, or is directed to project across property boundaries toward, the shoreline and ocean waters, except as may otherwise be permitted -8- pursuant to Section 205A-71(b), Hawaii Revised Statutes. 11. All construction and maintenance activities shall comply with Chapter 27 -Flood Control, of the Hawaii County Code. 12. All earthwork and grading shall conform to Chapter 10,Erosion and Sedimentation Control of the Hawaii County Code. 13. All development generated runoff shall be disposed of on site and shall not be directed toward any adjacent properties or the ocean. 14. The method of sewage disposal shall meet with the requirements of the Department of Health. 15. 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. 16. To protect any Hawaiian Hoary Bats in the vicinty of the property, barbed wire fencing shall not be used on the property and woody vegetation over 15 feet in height shall not be removed during bat breeding season of June 1st to September 15th. 17. If trees are to be cut,particularly during the breeding season from March to September,the area shall first be surveyed to ensure no Hawaiian Hawk(`Io) nests are present. 18. An initial extension of time for the performance of conditions within this 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 Applicant and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for -9- the granting of this 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). If the Applicant should require an additional extension of time, the Planning Department shall submit the Applicant's request to the Planning Commission for appropriate action. 19. Should any of the foregoing conditions not be met or substantially complied with in a timely fashion, the Planning Director may initiate procedures to revoke the permit. -lo-