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HomeMy WebLinkAboutPD Recommendation Report (PL-SPP-2022-000025) ASIAA-PL-SPP-2022-000025.12.1.2022 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION ACADEMIA SINICA INSTITUTE OF ASTRONOMY AND ASTROPHYSICS SPECIAL PERMIT APPLICATION (PL-SPP-2022-000025) Upon review of the request against the guidelines for granting a Special Permit, the Deputy Planning Director recommends that the request for a Special Permit for the temporary operation of an array of 10 satellite dishes and a 50-foot x 50-foot dipole antenna array and related improvements to conduct research on Fast Radio Bursts (FRBs) on an approximately 2.0-acre portion of a larger 10.7-acre property be approved by the Planning Commission. Since this recommendation is made without the benefit of public testimony, the Deputy 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 seeking a Special Permit to allow the following uses on a 2.0- acre portion, 295 feet in width by 295 feet in length, of a larger 10.7-acre property within the State Land Use Agricultural District. The proposed use will be temporary, with an unspecified lease term that includes the option to renew the lease: • 10 temporary commercial TV satellite dishes (20 feet in diameter)with reception capacity of 400-800 Mega Hertz (MHz), fixed in a stationary position facing northeast, with 7 to 8-foot-tall support poles. • A 50-foot x 50-foot dipole antenna array, with stationary dipole antennas. • A gravel driveway approximately 1,400 feet in length and 10 feet in width, with an unobstructed clear width of 20 feet for Fire Department access. • One catchment tank of at least 4,000 gallons capacity for fire suppression. • One port-a-potty. • Two shipping containers each at 40 feet long, 8 feet wide and 8 feet-6 inches tall. -1- • A small solar power array to support approximately 10 kilowatts of power (approximately 25-30 panels)to be installed on top of or adjacent to shipping containers. • Underground power lines connecting the satellite and dipole antenna arrays to the shipping containers and solar power array. • Fencing to protect the proposed arrays from grazing animals, enclosing an area of approximately 1 acre. The applicant proposes to clear the 2.0-acre permit area and to install the satellite array at the north end of the site with the dipole antenna array to the south and the catchment tank, shipping containers and port-a-potty located between the arrays. The satellite array is proposed to consist of 1 line of 4 antennas, followed by 2 lines of 3 antennas, for a total of 10 antennas. The pole of each satellite will reach 7 to 8 feet in height, with approximately 25 feet between each satellite. The dipole antennas will be 2 feet in length, fixed to a 1.5-foot post, with approximately 3 feet between each antenna. According to the applicant, the array of satellite dishes would conduct scientific studies on the astrophysical origin of Fast Radio Bursts (FRBs). FRBs are powerful radio bursts coming from within and outside of our galaxy, which are not yet understood. The applicant intends to study the sources and origins of these radio bursts, which requires a "radio-quiet" site. Ka`u was found to be the best radio-quiet area on Hawaii Island, based on surveys conducted by the applicant. The proposed satellites and antennas are designed for FRB reception only, therefore no outward transmission of radio signals would occur. In addition, all satellites would be fixed to look at the northeastern sky only, thus no satellite movement would occur. Finally, the applicant is proposing to operate the facility continuously, however, once operational the facility will typically run unattended, with 1 person checking on operations once or twice a week. 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, Hawaii -2- 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. 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 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 10.7 acres in size and located approximately 3.5 miles north of Pahala along Wood Valley Road in Ka`u. The property is currently vacant of any structures and is mainly comprised of non-native shrubs and grasses such as guinea grass and desmodium vine. The applicant states that the subject property, including the 2.0-acre Special Permit area, is presently used for ranching by the landowner. The request is unusual in that the proposed use is not strictly agricultural in nature. The proposed facility will be located on a 2.0-acre portion of the larger subject property and the applicant has proposed to continue the present ranching use on the remaining area. Additionally, the proposed use will be temporary in nature (a maximum of 10 years) and the applicant will be required to return the site to its original condition, thus, it will not diminish the existing and future potential for agricultural activity on the subject property. Based on the preceding, the subject request is considered an unusual and reasonable use of agricultural land. In addition to the above listed criteria, the Planning Commission shall also consider the criteria listed under Section 6-3(b)(5) (A)through (G). In considering the criteria, the Deputy 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 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 and the State of Hawaii. In the case of the Agricultural District, the intent is to preserve -3- or keep lands of high agricultural potential in agricultural use. The majority of the 2.0- acre permit area(approximately 90%) is classified as "C" or"Moderate Productivity" soil, while the remaining northwest portion is classified as "B" or"High Productivity" soil by the Land Study Bureau. Additionally, the majority of the 2.0-acre permit area (approximately 90%) is unclassified, while a small portion at the northwest corner is designated "Prime Agricultural Land"by the Agricultural Lands of Importance to the State of Hawaii (ALISH) map. As the proposed use will be limited to a 2.0-acre portion of the larger 10.7-acre subject property and will be a temporary installation, it will not displace any existing agricultural activity or diminish the future agricultural potential of the property. As evaluated above, the applicant's 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. 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. All surrounding properties are zoned Agriculture 20-acres (A-20a), with agricultural land uses, farm dwellings, and forest. There is a 1,422-acre State-owned property directly east that is forested. The nearest dwelling is over 1,800 feet to the northwest, across Wood Valley Road on TMK: 9-6-010:001. Traffic in the Wood Valley area is generally low, mainly consisting of resident traffic. Access to the subject property is by way of an easement deed that allows the applicant to access the permit area. The initial stage of the proposed project will require the transport of shipping containers, a port-a-potty and equipment required to construct the proposed catchment tank, arrays, and fencing, and while minimal vehicular trips will occur during this stage, short-term impacts to traffic are expected. The applicant notes that visual impacts will be minimal since the proposed installation is not adjacent to existing dwellings and there is existing vegetative screening. In response to a neighbor's concern regarding preservation of view planes, the -4- applicant proposed to adjust the site layout by shifting the permit area to the north and adding a landscape screen along the west fence line of the permit area. The satellite dishes and antenna array will not emit noise during normal operation, will not transmit radio waves as they are designed for reception only, and will remain fixed in a stationary position facing the northeastern sky. Additionally, the applicant has proposed to construct a fence around the permit area to protect the proposed arrays from grazing animals and, as previously mentioned, the proposed use will be temporary in nature and the applicant will be required to return the site to its original condition following termination of the special permit. Given the preceding, it is anticipated that the use will not adversely impact surrounding properties. Finally, as of the date of this writing,the Planning Department has not received any testimony in opposition from neighbors or the general public on this application. (C) Such use shall not unreasonably burden public agencies to provide roads and streets, sewers,water, drainage, school improvements, and police and fire protection. Access to the project site is from Wood Valley Road, a paved County roadway. The property will be accessed by way of a gravel driveway, approximately 1,400-feet long and 10-feet wide, along which an unobstructed clear width of 20 feet will be maintained by the applicant for Fire Department access. The applicant states that the landowner has legal access to this driveway by way of an easement deed, a copy of which was provided with the application, and can grant access to the applicant for the proposed land use. According to the Department of Water Supply (DWS), the subject property is not within the service limits of existing DWS water system facilities. The subject site will be served by a rainwater catchment system with at least 4,000 gallons of storage for the proposed use and fire suppression. The Department of Environmental Management (DEM) states that the applicant shall follow Department of Health (DOH)regulations for wastewater disposal and the applicant has proposed to install a port-a-potty. Conditions of approval will be included to address the preceding. -5- The property is situated within an area designated as Flood Zone "X," or an area determined by FEMA to be outside the 500-year flood plain. Telephone and electricity are available to the site. Fire services are located approximately 31 miles away in Volcano and police services are located approximately 15 miles away in Na`alehu. 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. 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 uses/services that may not be available or allowed by zoning for its residents. Since the district boundaries were established, there has been an increase in scientific research installations on Hawaii Island, specifically contributing to the field of astronomy. The proposed use will allow for a temporary installation to support such scientific research, while requiring that the use is temporary in nature and will not displace future agricultural uses in the permit area. (E) The land upon which the proposed use is sought is unsuited for the uses permitted within the district. The 2.0-acre permit area is suited for agriculture and is presently being used for ranching. The remainder of the subject property will continue to be used for ranching and the permit area will return to agricultural uses after the temporary use has ceased. As previously discussed, since the proposed use is temporary in nature, it will not preclude future agricultural uses in the permit area. (F) The use will not substantially alter or change the essential character of the land and the present use. The proposed use will have some visual effects on the character of the land since there will be satellite and antenna arrays installed on present -6- ranch lands. However, any adverse visual effects from the proposed installations on the 2.0-acre permit area will be temporary and the remainder of the subject property and the larger surrounding properties, owned by the same landowner, will remain in use as ranching areas and will retain their present character. Additionally, according to the applicant,the lease agreement will include provisions requiring preservation of the essential character of the land by operating temporary, fixed, reception-only satellite dishes and dipole antennas, and that the site be returned to its original condition upon termination of the lease. Thus, the proposed use will not substantially alter or change the essential character of the land or its present use. Conditions of approval will be included to address the preceding. (G) The request will not be contrary to the General Plan,Ka`u Community Development Plan (PCDP) 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 property is identified by the LUPAG map as Extensive Agriculture (ea), which are lands not classified as Important Agricultural Land, including those that are not capable of producing sustained, high agricultural yields 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 Agriculture category. As previously mentioned, the proposed use will not displace active or potential agricultural activity on the property, and given that the use is temporary in nature, the request is consistent with the LUPAG Map designation for this area. Additionally, the approval of the subject request would support the following goals and policies of the Land Use and Economic elements of the General Plan: Land Use Element -7- • Designate and allocate land areas in appropriate proportions and mix and in keeping with the social, cultural, and physical environments of the County. • Encourage other compatible economic uses that complement existing agricultural and pastoral activities. Economic Element • Economic development and improvements shall be in balance with the physical, social and cultural environments of the island of Hawaii. • Provide an economic environment which allows new, expanded, or improved economic opportunities that are compatible with the County's cultural, natural and social environment. • Strive for diversification of the economy by strengthening existing industries and attracting new endeavors. • Encourage the expansion of the research and development industry by working with and supporting the University of Hawaii at Hilo and West Hawaii, the Natural Energy Laboratory at Hawaii Authority and other agencies'programs that support sustainable economic development in the County of Hawaii. • Continue to encourage the research, development and implementation of advanced technologies and processes. • Support the development of high technology industries. The subject property is located within the boundaries of the Ka`u Community Development Plan (CDP), which encourages development within town/village centers to give residents better access to public and commercial services while preserving natural and cultural resources by limiting the spread of development. The subject property is not situated within an area designated for development in the Ka`u CDP and is designated "Extensive Agriculture" in the Regional Land Use Policy Map. The closest town, Pahala, is located approximately 3.5 miles away from the subj ect property. The Ka`u CDP steering committee established community objectives based on the community's values and vision, as summarized in Section 1.5.1, Community Objectives. Objective 2 addressed sustainable settlement patterns on agricultural lands: ■ Preserve prime and other viable agricultural lands and preserve and enhance -8- viewscapes that exempla Ka`u's rural character. Objective 10 addressed building a resilient local economy: ■ Encourage and enhance agriculture, ranching, and related economic infrastructure. Furthermore, land use policies were created by the Ka`u CDP, to implement community objectives. The following policies specifically address policy controls to limit non-agricultural developments on land designated as Extensive Agriculture, which includes the subject property: ■ Policy 38: To reinforce existing protections, the f cial Ka`u CDP Land Use Policy Map designates agricultural lands in Ka`u as areas to be preserved for agricultural and open space. Development and construction in "Important Agricultural Land"and "Extensive Agriculture"areas shall be limited to agriculture, related economic infrastructure and cottage industries, renewable energy, open area recreational uses, and community facilities unless otherwise permitted by law. ■ Policy 40: Special permits of any kind in the "Important Agricultural Land"and "Extensive Agriculture"Land Use Policy Map categories should not be permitted in the Ka`u CDP planning area, except for the following uses (as defined in HCC chapter 25): ■ Agriculture and Related Economic Infrastructure:Animal hospitals, Veterinary establishments, Fertilizer yards utilizing only manure and soil, for commercial use ■ Cottage Industry related to Agriculture:Bed and breakfast establishments, Guest ranches, Lodges, Home occupations ■ Community Facilities: Community buildings, Public uses and structures, Shooting ranges, ATV courses (in areas without cultural, natural resource or scenic value) ■ Quarries whose permit conditions address geotechnical, engineering, safety,private road use, oversight and any site-specific issues -9- ■ Urban Uses in Ocean View: Uses consistent with the LDU, NIDU and Industrial LUPAG categories indicated on the Ka`u CDP Land Use Policy Map in Ocean View, until the SLU boundaries are amended(from Agriculture to Urban). Regarding Objective 2 of the Ka`u CDP, on the preservation of prime and viable agricultural lands, while there is a small portion (approximately 10%) of the 2.0-acre permit area that is designated prime agricultural lands, it is too small for viable, productive agriculture. Finally,while the proposed use is not listed as one of the uses that should be allowed with the granting of a Special Permit under Policy 40 of the Ka`u CDP, the Deputy Planning Director feels that since the proposed use will operate on a small portion of the subject property and for a limited time frame, and given the previously mentioned consistency with goals and policies of the General Plan, the proposed use can still meet the intent of the Ka`u CDP. 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 Special Management Area(SMA) is part of the Coastal Zone Management Program regulated by the County. The property is located outside of the SMA, approximately 5 miles away from the nearest shoreline and will not be impacted by coastal hazards or affect beach erosion, coastal ecosystems, and marine resources. Additionally, there is no record of a designated public access to the shoreline or mountain areas that traverses the property. Based on the preceding, the proposed use is not contrary to the objectives of Chapter 205A, Hawaii Revised Statutes relating to Coastal Zone Management. 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: -10- ■ 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 reports there are endemic, listed species that may occur in this area, including the `Akiapola`au, Hawaii Creeper, Hawaii `Akepa, and the formerly endangered `Io or Hawaiian Hawk. Other endemic forest birds in the area include I`iwi, Oma`o, and Hawaii `Elepaio, `Apapane and `Amakihi. The Pueo or Hawaiian owl and Nene or Hawaiian Goose may also utilize resources of the forest. Additionally, the applicant reports that the Hawaiian Petrel, an endangered and endemic seabird, has been known to transit the area while commuting to nesting areas higher on Mauna Loa, and it is possible that some may nest along the top margin of the Ka`u forest. According to comments provided by the Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW), the Hawaiian Hoary Bat, Hawaiian Goose, and the Hawaiian Hawk all may occur in the project vicinity. DOFAW recommended measures to reduce the project's impact on these listed species, in addition to guidelines regarding artificial lighting, mitigating spread of Rapid `Ohi`a Death, and minimizing spread of invasive 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 permit area: Neither the applicant nor the Planning Department are aware of any cultural or historic resources on the property, nor is the property listed as a historic site on the State or National Register of Historic Places. Additionally, there are no known customary or Native Hawaiian cultural rights exercised on the property. According to the Department of Land and Natural Resources, State Historic Preservation Division, the permit area has been significantly impacted by prior sugarcane cultivation and modern agricultural uses and a determination was made that no historic properties will be affected for the proposed project. -11- ■ 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: 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. 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 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. Additional governmental requirements may include the issuance of building permits, compliance with the Fire Code, installation of improvements required by the American with Disabilities Act(ADA), among others. Compliance with all applicable governmental requirements is a condition of this approval; failure to comply with such requirements will be considered a violation that may result in enforcement action by the Planning Department and/or the affected agencies. Based on the above considerations, establishment of the proposed use on a temporary basis on an approximately 2.0-acre portion of the subject property 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, their successor(s), or assign(s) ("Applicant") shall be responsible for complying with all stated conditions of approval. 2. The proposed use 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 on June 30, 2022, and supplemental information received on November 3, 2022, and December 22, -12- 2022, and any representations made to the Windward Planning Commission. Any substantial expansion of the facility or uses beyond what is represented in these documents shall require an amendment to this permit. 3. The Special Permit shall not exceed a period of ten (10)years from the effective date of this permit. As a further condition of this approval, this Special Permit is nonrenewable. 4. The Applicant shall follow Department of Health regulations for the disposal of wastewater. 5. The applicant shall install, construct, and maintain improvements for Fire Department Access Road (FDAR) access to the subject property and fire suppression improvements on the subject property as required by the Fire Department. Upon successful completion of the improvements and prior to the commencement of the proposed use, the applicant shall provide the Planning Department documentation from the Fire Department that the improvements meet Fire Code standards. 6. As required by the Department of Environmental Management, the Applicant shall not use County Transfer Stations for disposal of solid waste, including construction and demolition waste. 7. All development-generated runoff shall be disposed of on site and not directed toward any adjacent properties. 8. All activities shall conform to Chapter 10, Erosion and Sedimentation Control, of the Hawaii County Code. 9. 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 Department of Land and Natural Resources-State Historic Preservation Division (DLNR-SHPD) at(808) 933-7651. Subsequent -13- work shall proceed upon an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. 10. Should any state or federally listed or endangered species be found on the subject property, the Applicant shall comply with all applicable requirements of the Department of Forestry and Wildlife and/or the United States Fish and Wildlife Service. 11. The Applicant shall comply with all applicable County, State and Federal laws, rules, regulations, and requirements. 12. Should any of these conditions not be met or substantially complied with in a timely fashion, the Deputy Planning Director may initiate procedures to revoke this Special Permit. -14-