HomeMy WebLinkAboutPD Recommendation Report BWA LLC (PL-SPP-2023-033) RBotanical WorldAmendSPP.mp02-22-2023
COUNTY OF HAWAI`I PLANNING DEPARTMENT
RECOMMENDATION
BWA LLC DBA BOTANICAL WORLD ADVENTURES
AMENDMENT TO SPECIAL PERMIT NO. 04-005 (PL-SPP-2023-000033)
Upon careful review of the request against the guidelines for granting an amendment, the
Planning Director recommends that a 5-year extension of time to Condition No. 2 of Special
Permit No. 04-005 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 findings:
The applicant has submitted a request for a five-year extension of time to comply
with Condition No. 2 (time to complete construction) of Special Permit No. 04-005. The
condition currently states, "Construction of the proposed development shall be completed
within five years from the effective date of this amended permit. Prior to construction, the
applicant, successors or assigns 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
structures,paved driveway access and parking stalls associated with the proposed
development. Landscaping shall also 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)."
According to the applicant, development plans have recently changed such that
the visitor center will be smaller in area than originally proposed and constructed as two
small buildings rather than one large building, one to include an office, storage and
restroom and a second for the downsized visitor center. Special Permit No. 04-005 was
initially approved on June 5, 2005 to World Botanical Gardens to allow the construction
of a visitor's center,parking lot, and related improvements on approximately 3.53 acres
of land. On May 19, 2010, the Planning Director granted a 5-year extension of time until
June 8, 2015, to complete construction of the project in compliance with Condition No. 2.
On October 1, 2013, the applicant acquired the assets of the previous applicant, World
Botanical Gardens Inc. On August 6, 2015, the Windward Planning Commission
approved amendments to Special Permit No. 04-005 for a 5-year extension of time to
Condition No. 2 (complete construction) and the expansion of operating hours (Condition
No. 3).
The applicant seeks an additional 5-year extension of time to comply with
Condition No. 2 due to:
• Simultaneous hurricane events and the Puna lava flow; and
• The Covid-19 pandemic which suppressed the visitor market.
Granting of the time extension request would not be contrary to the original
reasons for the granting of the permit. The use would continue to be an unusual and
reasonable use of lands situated within the Agricultural District and will not be contrary
to the objectives of Chapter 205, HRS, as amended. No complaints were formally
received relative to the requested time extension. As stated in the original permit, the
existing use and current request for an extension of time will not unreasonably burden
public agencies to provide roads and streets, sewers, water, drainage, and police and fire
protection.
The Department of Water Supply has previously commented that County water is
not available to the subject property. According to the applicant, water is available from a
catchment system and stored in two 30,000-gallon metal tanks. Currently, bottled water is
provided to patrons and staff, along with filtered catchment water for potable use. The
applicant states that once the visitor center is constructed, the applicant will either
continue to use the filtered water catchment system or an existing well to supply potable
water needs. The applicant will need to comply with Department of Health safe drinking
water standards if more than 20 people are being served on the property.
At the time of the 2015 amendment, the Department of Transportation (DOT)
commented that they had no objections to the request for the extension of time but did
have some concern over the expansion of operating hours, given the age of the traffic
assessment(TIAR) and likely changes in traffic conditions. More recently, by letter
dated April 10, 2023, DOT states that while they have no objections to the applicant's
current request for a 5-year time extension,prior analysis on visitor counts and required
2
conditions were based on a 2005 TIAR that may no longer be applicable to current traffic
conditions.
As such, DOT recommends that a new TIAR be submitted and reviewed by the
county prior to issuance of building permits, to include an evaluation of intersection
improvements such as ingress/egress to and from Highway 19 and
acceleration/deceleration lanes at Leopolino Road and Hawaii Belt Road(Highway 19).
DOT further states that should there be traffic impacts attributed to the project, the
applicant is required to provide mitigated traffic improvements at no cost to the state. The
Planning Director therefore recommends revising existing Condition No. 6 to require that
an updated TIAR be submitted and approved by the Planning Department prior to
issuance of Plan Approval and that the applicant shall be responsible for any
recommended traffic improvements or mitigations.
Given the aforementioned requirement to complete an updated TIAR and
implement any traffic improvements, in addition to the time needed to obtain building
permits and complete construction, the Planning Director believes it is reasonable to
recommend a five-year time extension to comply with Condition No. 2 (time to complete
construction) from the effective date of the current amendment, rather than from the
previous deadline.
Approval of the request would not be contrary to the General Plan,
Hamakua Community Development Plan (HCDP) or the Zoning Code. Since the
Windward Planning Commission approved amendments to the Special Permit in 2015, all
land use designations have remained the same. The State Land Use designation is
Agricultural, County zoning for the property is A-20a, and the General Plan LUPAG map
designation is Important Agricultural Lands.
The requested extension of time would not be contrary to the General Plan or the
Zoning Code. Although a small portion of the property will be used for the proposed
development, the majority of the 26.27-acre parcel will remain in its current state. Given
the applicant's intention to downsize the area of the visitor's center, the impact of
development on the property may even be less than previously envisioned.
The proposed request will continue to encourage agricultural activities or the
utilization of lands in a manner consistent with the Important Agricultural Lands
3
designation by the General Plan LUPAG Map. Finally, the proposed request would
complement and be consistent with the following Land Use and Economic elements of
the 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.
• 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.
The Hamakua Community Development Plan (HCDP), adopted by Hawai`i
County Council Ordinance 2018-078 in August 2018, designates lands in the vicinity of
the subject parcel as Important Agricultural Lands (IAL). Given that the existing use
incorporates botanical gardens into visitor activities, and as previously mentioned, the
majority of the subject parcel remains available for agricultural uses, the request for a
time extension to complete construction is not contrary to the goals of the HCDP.
Approval of the request would not be 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. A small portion of the property that
is outside the permit area is located within the Special Management Area. Since the
permit area is not located within the SMA, it 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
4
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
Approval of the request would 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: No formal archaeological reconnaissance
survey, oral history of kama`dina accounts of the area, historical survey of
documentary records, or botanical study was included in the application.
■ 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.
By memo dated January 10, 2015, the Department of Land and Natural
Resources, State Historic Preservation Division has issued a"no-effect"
determination.
■ 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. The existing requirements of Condition No. 12 state that the
applicant shall follow the Weed Risk Assessment referred to in the Division of
Forestry and Wildlife's March 10, 2004 memorandum.
■ 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.
5
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,it is recommended that the request for a 5-year extension
of time to complete Condition No. 2 be approved.Approval of this request is subject
to the following conditions (new material is underscored and deleted material is
bracketed and struck through):
1. The applicant, successors or assigns ("Applicant'D shall comply with all of the
stated conditions of approval.
2. Construction of the proposed development shall be completed within five years
from the effective date of this amended permit. 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 structures,paved driveway access and parking stalls
associated with the proposed development. Landscaping shall also 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).
3. The hours of operation shall be limited to 7:00 a.m. to dusk/sunset daily,
including weekends.
4. The total square footage of the visitor center shall not exceed 7,000 square feet.
The parking area shall not exceed 20,000 square feet.
5. All parking areas shall be on site.
6
6. [The . pliea t shall eenstmet any impr-evements to the Highway 19 .,n
pl.,flai g p -eeter; el,,. ing ; .its fleeessafy -,e ifflpr-ave the s nb,t
with the.,aitt e of t affie.]Prior to issuance of Final Plan Approval, the Applicant
shall submit an updated TIAR, to be reviewed and approved by the Planning
Director, in consultation with the Department of Transportation. The updated
TIAR shall include, but not be limited to, an evaluation of intersection
improvements such as ingress/egress to and from Highwn 19 and
acceleration/deceleration lanes at Leopolino Road and Hawaii Belt Road
(Highway 19). Any required traffic improvements or mitigation measures shall be
provided by the Applicant, at no cost to the state.
7. A drainage study of the property, if required, shall be prepared by the
[applieaot]Applicant and submitted to the Department of Public Works for review
and approval,prior to submittal of plans for Plan Approval review. Drainage
improvements, if required, shall be constructed, meeting with the approval of the
Department of Public Works prior to the issuance of a Certificate of Occupancy.
8. All development generated runoff shall be disposed of on-site and not be directed
toward any adjacent properties.
9. A Solid Waste Management Plan shall be submitted to the Department of
Environmental Management for review and approval prior to the issuance of a
Certificate of Occupancy.
10. [ ,
immediate area shall eease and�he pepa=ent of Land and Natural Resettf-ees
14PP when ;t finds that s,.ff;eie.,t ,,;t; T t;. o measttr-es h o been tak .] In the
7
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.
11. The [applieaot]Applicant shall follow the Weed Risk Assessment referred to in
the Division of Forestry and Wildlife's March 10, 2004 memorandum.
12. Comply with all applicable rules, regulations and requirements of the affected
agencies, including the Department of Public Works, Department of
Transportation, and Department of Land and Natural Resources Division of
Forestry and Wildlife, for the development of the subject property.
13. An annual progress report shall be submitted to the Planning Director prior to the
anniversary date of the original permit. The report shall include, but not be
limited to, the status of the development and to what extent the conditions of
approval are being satisfied. [
t t,opt,or;.,-'e-s t e , .,is May be , pttr-stta.,t t
•]
14. If the [applieaot]Applicant should require an additional extension of time, the
[ap ]Applicant shall submit their request to the Planning Commission for
appropriate action.
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 this permit.
8