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HomeMy WebLinkAboutPD Recommendation Report COH-Parks & Rec (PL-SSV-2023-003) BMiloliiSS V-6/30/2023 COUNTY OF HAWAI`I PLANNING DEPARTMENT RECOMMENDATION COUNTY DEPARTMENT OF PARKS AND RECREATION SHORELINE SETBACK VARIANCE APPLICATION (PL-SSV-2023-000003) Upon careful review of the applicant's request against the guidelines for granting of a Shoreline Setback Variance, the Planning Director recommends the application to allow for improvements including the replacement of an existing pavilion,ADA improvements to the park walkways and new AC pavement for the designation of a boat turnaround area situated within the 40-foot shoreline setback area at Miloli`i Beach Park 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, County of Hawaii Department of Parks and Recreation is requesting a Shoreline Setback Variance for its recreational facility improvements to the Miloli`i Beach Park. The proposed improvements aim to remove the existing pavilion which is currently located entirely within the existing shoreline setback area and reconstruct a new pavilion to be located 18 feet inside of the 40-foot shoreline setback area. Additionally,the applicant is proposing to construct new walkways and a new boat turnaround area within the shoreline setback area on the subject property in areas that are currently covered by gravel. These improvements are shown on Figure 8 of the Final Environmental Assessment in the application. All improvements are located within the shoreline setback area within the Miloli`i Beach Park on approximately 1.41 acres of land located along the shoreline within the coastal village of Miloli`i. The proposed action aims to satisfy the County's obligation of its federally mandated Transition Plan (relating to ADA upgrades at County facilities), while retaining and improving the ability to effectively maintain the park and ensuring long-term use and serviceability. The applicant has also concurrently submitted a Special Management Area (SMA)Use Permit for these improvements as well as other facility improvements that are 1 located in the SMA but outside of the shoreline setback area and no other activities such as staging areas are proposed within the shoreline setback area. The Shoreline Setback Law was enacted by the State Legislature in 1970 for the protection of the shoreline from undue man-made improvements. Many of these structures and activities have disturbed the natural shoreline processed and caused erosion of the shoreline. Concrete masses along the shoreline are contrary to the policy for preservation of the natural shoreline and the open space.Unrestricted removal of sand, coral,rocks, etc., for commercial uses can only deteriorate the shoreline and remove it from public use and enjoyment. Moreover,the Hawaiian Islands are subject to tsunamis and high waves,which endanger residential dwellings and other structures which are built too close to the shoreline. For this reasons, it is in the public interest to establish shoreline setbacks and to regulate uses and activites within the shoreline setback area. The legislature, however, also recognized that certain activities and improvements may be constructed within the shoreline setback area that are clearly in the public interest. In recognizing this need, the Legislature authorized the respective authorities within the various counties, in this case the Planning Commission, to grant variances for certain activities and improvements within the shoreline setback area. In accordance with Section 205A-46(a) of the Hawaii Revised Statutes, and Section 8-11 of the Planning Commission's Rule 8, relating to Shoreline Setback, the Planning Commission may grant variances from the shoreline setback regulations. The proposed request would meet the Public Interest Standard of Rule 8, Section 8-11(c)(1) and HRS Chapter 205A-46(a)(6).In reviewing the request against the criteria to allow a variance,the Planning Director has determined that the request meets the criteria set forth in Rule 8, Section 8-11(c)(1) (Public Interest Standard), which states: "A variance may also be granted,provided that the proposal is the practicable alternative which best conforms to the purpose of this rule, and upon a finding that, based upon the record, the proposed structure or activity is necessary for or ancillary to: 1) Facilities or improvements by public agencies or public utilities regulated under Chapter 269, HRS; The proposed request meets this standard because the development occurring within the 40-foot shoreline setback area is proposed by a public agency to improve 2 accessibility at a public park. This project will enhance public use of the park and make it safe for park users, thereby meeting the Public Interest Standard for granting a shoreline setback variance. Additionally,Planning Commission Rule Section 8-11(e) states"No variance shall be granted unless appropriate conditions are imposed as applicable: (1) To comply with Chapters 10 and 27 of the Hawaii County Code (HCC) relating to Erosion and Sedimentation Control and Flood Control respectively; (2) To maintain safe lateral access along the shoreline or adequately substitute for its loss; (3) To minimize risk of adverse impacts on beach processes; (4) To minimize risk of structures failing and becoming loose rocks, sharp or otherwise dangerous debris, or rubble on public property; and (5) To minimize adverse impacts on public views to, from, and along the shoreline." According to the Department of Public Works (DPW), Flood Zone X, VE and AE affects the subject property. While the existing pavilion is currently located within Flood Zone VE, the proposed new pavilion will be reconstructed outside of the Flood Zone VE. The proposed construction of walkways and boat turn around area however are proposed to be located within Flood Zone VE and a condition of approval will be added that the applicant comply with the requirements of Chapter 27,related to Flood Control. According to the applicant, all unpaved areas of the subject property will be graded and a condition of approval will require the applicant comply with Chapter 10, related to Erosion and Sedimentation Control as required by DPW. Current access and parking for the shoreline is provided at the subject property and temporary safety measures will be in place during the duration of construction which may have an impact to beach access and public views. Once construction is completed, the improvements will help to facilitate public access to and along the shoreline in an equitable manner. The current certified shoreline is delineated along the makai edge of the existing seawalls that surround the subject property which currently affect beach processes. The 3 proposed improvements are located mauka of the seawalls and will not negatively impact erosional or recreational purposes. The proposed pavilion, walkways and boat turnaround area will be designed and constructed to withstand impacts from coastal processes and built to the Building Code and Flood Code Standards. The proposed project will remove existing hazardous gravel and replace it with new walkways and a boat turnaround area that the County will be able to maintain. The property is situated along the shoreline and the overall area of Miloli`i has been designated as one of the Natural Beauty Sites in the District of South Kona within the General Plan (2005). On a daily basis the park is used for sightseeing, picnicking, sports, community gatherings, community library and education center, swimming and snorkeling, fishing, and camping. The reconstruction of the existing pavilion, proposed boat turnaround area and walkways will require construction equipment that will be visible to the public using the beach park, however these disruptions will be temporary. The existing pavilion, which has views of the beach would not affect viewplanes to, from, or along the shoreline as the structures already exist. These improvements will not be unduly visually imposing or out of character, and will be consistent with uses in a County Park. In review of the possible alternatives to the proposed improvements within the shoreline setback area, the best practical alternative is to improve these facilities as proposed rather than attempt to move them out of the shoreline setback area at this time. If the pavilion were to be demolished and replaced with a new one outside of the setback area, it could only be placed within the existing parking area or a recreational basketball/volleyball court that is currently used by the members of the surrounding community. In the case of the walkway and boat turnaround area, if they are not improved then visitors will continue to use an unsafe and rocky boat turnaround area and unsafe gravel walkways. 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. 4 Investigation of valued resources: An Archaeological Inventory Survey of the subject property was completed by Haun & Associates in August 2022. A Cultural Impact Analysis for the proposed improvements to the Miloli`i Beach Park Improvements was not completed. The Applicant did however include a September 2006 Cultural Impact Assessment for the South Kona Watershed Irrigation System Project and a February 2012 Cultural Impact Assessment for the Miloli`i Community Enrichment and Historical Center. The valuable cultural, historical, and natural resources found in the area: The AIS identified three (3) sites within the subject area. A request for review of the application was sent to the State Historic Preservation Division (SHPD) as a part of this application process. By letter dated July 15, 2022, the State Historic Preservation Division did not recommend preservation of the three identified sites. No professional flora or faunal surveys were conducted on the site as the property has historically been used for recreational activities. According to the State Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW)there are several state-listed species that could occur at or in the vicinity of the subject property including the Hawaiian Hoary Bat(Ope`ape`a), Hawaiian Duck (Koloa Maoli), Hawaiian Coot(Alae ke`oke`o), Hawaiian Goose (Nene), Hawaiian Sea Turtle (Honu), Hawaiian Monk Seal (Ilio holo i ka), Hawaiian Hawk(`Io), Blackburn's Sphinx Moth, Hawksbill Sea Turtle, Hawaiian yellow-faced bee, Anchialine pool shrimp, Hawaiian Damselflies and other seabirds. Possible adverse effects or impairment of valued resources: While the proposed project may have some effect on valued resources in the area, the proposed conditions of approval of this permit should minimize impacts and protect native Hawaiian rights. 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(`Ope`ape`a), Hawaiian Goose (Nene), Hawaiian Hawk (`Io) , Hawaiian Sea Turtle (Honu), Hawaiian Monk Seal (Ilio holo i ka), Blackburn's Sphinx Moth, Hawksbill Sea Turtle, and other seabirds. A condition of approval will be added for the protection of inadvertent finds should any remains of historic sites, such as 5 rock walls, terraces,platforms, marine shell concentrations or human burials be encountered. The applicants will be required to cease work in the immediate area and contact the SHPD. Subsequent work may proceed upon an archaeological clearance from 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. Based on the above findings, it is determined that the request is consistent with the Shoreline Setback Law pursuant to Chapter 205A-46 and the criteria established in Rule No. 8 of the Planning Commission's Rules of Practice and Procedure, and thus should be approved by the Planning Commission. 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 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 27, 2023, any supplemental information, and any representations made to the Leeward Planning Commission. 3) The applicant shall comply with all conditions of SMA Use Permit # PL-SMA-2023- 000031. 4) 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 regulations. 5) Except as approved with this variance, no land alteration, grubbing, landscaping or construction activities, including but not limited to, the stockpiling of debris, construction 6 materials or equipment, shall occur in the shoreline setback area without securing a prior written determination of minor structure or activity pursuant to Planning Department Rule 11-8 from the Planning Director or amendment of this shoreline setback variance from the Planning Commission. 6) 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 Hawaii. Prior to the commencement of any land altering or construction activities, erosion control barrier (silt containment devices) shall be installed along the certified shoreline in areas where there are no rock walls in the area of the western property boundary to minimize potential run off or sedimentation and shall remain in place until construction has been completed and final inspection has been granted by the Department of Public Works for the Miloli`i Beach Park Improvements. 7) The erosion control barrier (silt containment devices) must be shown and properly noted on the plans submitted with any permits required for any land altering or construction activities. The construction notes on the plans must include the following statement, "The erosion control barrier(silt containment devices)must be erected prior to any land altering or construction activities and must remain in place until final inspection has been granted by Department of Public Works." 8) 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 this variance. 7