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HomeMy WebLinkAboutPD Recommendation Report (PL-SMA-2023-000029) BSchmitzSMA-5/11/23 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION DENNIS SCHMITZ SPECIAL MANAGEMENT AREA USE PERMIT APPLICATION (PL-SMA-2023-000029) 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 allow for the development of a four (4) lot agricultural subdivision and subsequent development of farm dwellings on 20.027 acres of land situated within the Special Management Area (SMA) 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 requests a Special Management Area Use Permit to allow for the development of a four (4)-lot agricultural subdivision on 20.027 acres of land in preparation for the future development of individual building sites that may accomodate a farm dwelling or other structures or uses associated with A-5a zoning, located on the makai (seaward) side of Old Mamalahoa Highway within the Special Management Area (SMA). If the requested land use entitlement changes are approved, the applicant is proposing to subdivide the property into four (4) lots, consisting of 5.027 acres and 5.00 acres in size. The subject property has been used for cattle grazing and a small orchard for the past 20 years. In order to continue and expand the grazing, orchard and crop activities the applicant is requesting to subdivide the property to allow for more intense farming by the individual family members. According to the applicant, a subdivision application would be filed within a year from approval of the concurrent application for a Change of Zone. The applicant anticipates having the property subdivided within 3 years at a cost of around $200,000. 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- 1 11(e) of the Planning Commission Rules of Practice and Procedure. Planning Commission Rule 9-11(e) states that the Planning Commission may permit the proposed development only upon finding that: 1. The development will not have any significant adverse environmental or ecological effect, except as any adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. 2. The development is consistent with the Special Management Area objectives, policies and 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 Hawaiian rights. In review of the SMA guidelines as listed under HRS 205A-26(2)(A), the proposed development will not have any significant 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 2 impact of individual developments, each one of which taken in itself might not have a substantial adverse effect and eliminate planning options. The proposed development did not meet the criteria in State law for requirement of an environmental assessment or environmental impact statement and there are no unique or sensitive ecosystems such as wetlands and/or anchialine ponds, etc. on or nearby the property that would be adversely affected by the development. While the subject parcels are located along a shoreline, at this time, no work is proposed to be within the shoreline setback area except for the removal of an existing fence. A condition of approval will require the applicant to remove the existing fence from the shoreline setback area prior to applying for final subdivision. In reviewing the proposed development against the factors that may constitute a substantial adverse effect as listed under Planning Commission Rule 9-10 (H) (1-10), it has been determined that 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 development is consistent with the objectives and policies of the Coastal Zone Management Program (Chapter 205A, Hawaii Revised Statutes)including: Coastal Recreational Resources: The property is located mauka of a rocky cliff shoreline and sits at an elevation of about 200 feet at the top of the cliff to 320 feet at the 3 southern boundary (mauka) of the property. The certified shoreline is located along the top of the sea cliff. There is no record or evidence of a designated public access to the shoreline or mountain areas that traverses through the project site. While no formal access easement is being provided at this time for the subject property, the Applicant has stated that the Alaialoa Gulch which is located along the property's eastern boundary, could be used to access the coastline, but due to the steep existing topography within the gulch, the Applicant will retain the gulch in its natural state and will not disturb the gulch as part of the proposed subdivision action. The applicant will continue to allow the public to walk along the sea cliff within the minimum 40-foot shoreline setback area. According to the State Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW), Na Ala Hele Trails and Access Program, an 1884 Registered Map of the area shows a "Canoe Landing" near the western border of the subject property. DOFAW recommended that access to the shoreline fishing resources and watercraft launching should be upheld by requiring a public pedestrian access easement and the County and the applicant should work with Na Ala Hele to locate appropriate access to the shoreline. Since the landing is situated makai of the certified shoreline (top of pali) and there is a lack of evidence that the landing remains, the Planning Director is not recommending a pubic access easement be established to access the "Canoe Landing" as it would not be appropriate for the area given the steep cliffs and concerns about safety and welfare to and from the high sea cliffs. Historic Resources: The subject parcel has been developed with a single-family residence and has been graded and landscaped during that time for residential use. The subject property has historically been used for sugarcane and more recently used as an orchard and for cattle grazing. As such, no valuable cultural resources and practices have been known to occur on the parcel. A standard condition will continue to be included to address possible inadvertent archeological finds during the construction of the subdivision and subsequent construction of single-family dwellings. Scenic and Open Space Resources: The subject property is not identified as an area of natural beauty by the General Plan and is situated about 0.34 miles makai of Hawaii Belt Road which sits at an elevation of 500 feet and is situated about 500 feet makai of Old Mamalahoa Highway which sits at an elevation of about 400 feet. Distant 4 views of the sea from these highways currently exist. The requested A-5a zoning will allow for a 4-lot subdivision with lots atleast 5 acres in size with a mazimum building height of thirty-five feet for residential structures and forty-five feet for all other structures. Due to the topography of the land between the highways and property (at least 100 feet elevation difference) if a 45-foot-tall building were to be constructed it would not impede the views from these highways to the sea. Given the low density of potential building sites and the significant ironwood canopy that exists along the top of the sea cliff, the proposed development is not anticipated to significantly impact coastal/ocean views from Hawaii Belt Road or Old Mamalahoa Highway. Coastal Ecosystems and Marine Resources: Marine waters located off of the Hamakua coastline in this area are classified as Class A. The objective of Class A designation is to ensure these waters remain in their natural pristine state as nearly as possible with an absolute minimum of pollution or alteration of water quality from any human-caused source or actions. Short-term impacts on the marine environment from construction projects in this area could potentially result from airborne dust and increased silt that collects in stormwater runoff directed towards the ocean. The use of drywells to address on-site drainage, not directing stormwater towards the ocean, and compliance with Chapter 27, Flood Control, Hawaii County Code, will mitigate the potential impacts of increase stormwater inputs to the nearshore/ocean area. 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. Beach Protection: There are no beaches located on the subject property. Coastal Hazards: The subject property is designated as Zone X on the Flood Insurance Rate Maps (FIRM). All development will occur within Flood Zone X, an area determined by FEMA to be outside the 500-year flood plain. According to the University of Hawaii 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 located below the cliffs on the subject property. The entire parcel is located within the Tsunami Evacuation Zone. There is a Civil Defense siren located on a parcel located southwest from the proposed 5 development, which provides coverage to the subject property. The development will be subject to the requirements of Chapter 27—Flood Control, of the Hawaii County Code in order to minimize the effects of coastal hazards. hi addition, any future development will be constructed in conformance with Uniform Building Code specifications. Based on the preceding, the project area is not likely to be impacted by coastal hazards. Based on 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, Hamakua Community Development Plan (CDP),Zoning Code, and other applicable ordinances. The County of Hawai`i's General Plan Land Use Pattern Allocation Guide (LUPAG) Map designation for the subject property is designated both Industrial (IND), Urban Expansion (UE), Low Density Urban (ldu), and Open (ope)by the General Plan LUPAG map. Given the existing surroundings and the broad-brush nature of the LUPAG map, the Planning Director has determined that the subject parcel is situated entirely within the UE LUPAG designation, which allows a mix ofhigh density, medium density, low density, industrial, industrial-commercial, and/or open designations in areas where new settlements may be desireable, but where the specific settlement pattern and mix of uses have not yet been determined. The Director's determination recognized that the future General Plan land use map may change to account for the Hamakua Community Development Plan designation for the property. In recognizing the good soil quality ratings on the property for agricultural production, the Hamakua Community Development Plan (HCDP) designates the subject property as Important Agricultural Land outside of the Urban Growth Boundary area and outside any designated Rural areas. According to the HCDP, Agricultural areas outside the Urban Growth Boundary and outside designated Rural area should be preserved for agricultural uses, open space, scenic viewsheds, and natural beauty. Development and use of properties in the Agricultural area 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. The proposed development will allow for the continued use of the properties for agricultural purposes. 6 The applicant has concurrently submitted a Change of Zone request from the existing Agricultural-20 acre (A-20a) zoning district to Agricultural-5 acre (A-5a) zoning district for the subject property. The Agricultural zoning district provides for agricultural and very low density agriculturally based residential use, encompassing rural areas of good to marginal agricultural and grazing land, forest land, game habitats, and areas where urbanization is not found to be appropriate. The applicant intends to create a four- lot subdivision inclusive of farm dwellings which are all permitted uses in the requested Agricultural zoning district. Therefore, the proposed development is consistent with the General Plan and with County Zoning Code and will conform to the requirements of the zoning district relative to permissible uses, maximum allowable height and minimum yard setbacks. The project site is located within an area that is adequately served with essential services such as water and other utilities. Conditions of approval of the concurrent change of zone request will require the applicant to connect to County water and provide mitigation for impacts to the other essential services such as individual wastewater treatment systems. Based on the preceding, the proposed development is consistent with the General Plan, HCDP, and Zoning Code. 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 professional archaeological and cultural study was conducted of the property as the subject property has been previously impacted by ground-disturbing activities associated with residential development and farming. The Planning Department has no record of any cultural or historic resources on the property. The valuable cultural, historical, and natural resources found in the area: Neither the applicant nor the Planning Department are aware of any cultural or historic resources on the property. Additionally, there are no known customary or Native Hawaiian cultural rights exercised on the property. A request for review of the application was sent to the 7 State Historic Preservation Division (SHPD) as a part of this application process. By letter dated May 31, 2023, the State Historic Preservation Division determined that no historic properties would be affected by the proposed project. No professional flora or faunal surveys were conducted on the site as the property has historically been used for intensive agricultural activities (sugar cane) and has since been developed with a dwelling and it is unlikely that there are any valued cultural, historical, and natural resources to be found in the rezoning area. Possible adverse effects or impairment of valued resources: There is no evidence of any possible adverse effects or impairment will occur to any valued resources. Feasible actions to protect native Hawaiian rights: As there is no evidence of any valued cultural, historical, and/or natural resources found on the site, there is no action to be taken. Conditions of approval have been added to protect endangered, threatened and indigenous Hawaiian Hoary Bat or `Ope`ape`a, Hawaiian Goose 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 recommendation for approval is made with the understanding that the applicant remains responsible for complying with all other applicable government 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, 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. 8 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 effective date of this SMA Use Permit shall be the effective date of the approved ordinance generated by the concurrent change of zone request(PL-REZ-2023-000041). 3) The Applicant shall comply with all conditions of the approved ordinance generated by the concurrent change of zone request (PL-REZ-2023-000041) or any amendments thereto. 4) The overall development shall conform substantially to the plans submitted and the representations made by the Applicant and as described in the multi-permit application dated February 12, 2023, any supplemental information, and any representations made to the Windward Planning Commission, except as further amended by subsequent ordinances and permits. 5) 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. 6) Final Subdivision Approval of the proposed subdivision shall be secured from the Planning Director within five (5)years from the effective date of this permit. 7) The Planning Department may require a shoreline survey certified by the Chair of the Board of Land and Natural Resources for any future construction or activity. 8) Prior to applying for the subdivision, the Applicant shall remove the existing fence ("encroachments") shown in "Figure 3-Preliminary Subdivision Plat" of the multi-permit application within the area forty (40) feet landward from the top of the sea cliff. Once the fence has been removed the Applicant must inform the Planning Department by letter of the fence removal and the Applicant must arrange a date and time to have the property inspected by Planning Department staff. Future Special Management Area approvals will not be granted if these encroachments are not resolved. 9 9) No land alteration, grubbing, vegetation removal, grading, fencing, landscaping or construction activities, including but not limited to, the stockpiling of debris, construction materials or equipment, shall occur in the shoreline setback area (between the top of the sea cliff and forty (40) feet landward) 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. 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 pursuant to Section 205A-71(b), Hawaii Revised Statutes. 11) All development 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. 14) The method of sewage disposal shall meet with the requirements of the Department of Health. 15) During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices utilized during construction projects of the State of Hawai`i. 16) 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 10 an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. 17) To protect Hawaiian Hoary Bats in the vicinity 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 1 st to September 15th. 18) 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. 19) 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 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. 20) 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. 11