HomeMy WebLinkAbout.PD RECOMMENDATION REPORT (PL-SMA-2023-000043) RWmter SMA March 2024
COUNTY OF HAWAI`I PLANNING DEPARTMENT
RECOMMENDATION
STEPHEN AND CHERYL WINTER
SPECIAL MANAGEMENT AREA USE PERMIT APPLICATION
(PL-SMA-2023-000043)
Upon careful review of the applicants' request against the guidelines for granting of a Special
Management Area Use Permit, the Planning Director recommends that this request to develop
a farm consisting of a single-family residence, caretakers' cottage, greenhouse, barn,
pasture, and related improvements on two (2) shoreline parcels totaling 30.165-acres all
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 applicants request a Special Management Area Use Permit to develop the project
area into a working animal and plant farm which will include a single-family residence, a
caretaker's cottage, greenhouse, barn, pastures, fencing, water tank and related
improvements on two (2) separate parcels owned by the applicants.
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. 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;
-1-
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 project did not meet the criteria in State law for the requirement of
an environmental assessment or environmental impact statement under Hawaii Revised
Statutes (HRS) Ch. 343-5, however, the applicants chose to complete an Archaeological
Inventory Survey (AIS) in order to ensure any valid resources were preserved and
protected in light of this new proposed development project. The proposed project
provides an opportunity to properly manage and utilize this area after years of neglect and
decades of previous sugar cane farming activities that have impacted these parcels. This
proposed project does not represent a significant impact on the area as it aims to
reestablish various farming activities along with working to remove non-native and
-2-
invasive species to establish the farm and residential development. Staff notes that the
most sensitive areas are the coastal portion of the project site, and the applicants propose
to construct a fence 40-feet inland from the top of pali which represents the shoreline.
This area is also within the State Land Use (SLU) Conservation District, and as such any
work in that area will require a permit or approval from the Department of Land and
Natural Resources (DLNR) prior to land use actions. The project is utilizing the
designated zoning of the site, and as such will be in-line with the existing entitlements
related to zoning and appropriate land uses, as well as establishing a residential
component to minimize further impacts to the site and surrounding area by the lack of
management and upkeep. The proposed project, as designed, will not generate any
adverse effects that cannot be mitigated with proper Best Management Practices (BMP),
or are lands that are already impacted by previous land work including significant
grading and grubbing from years of sugar cane farming. Staff believes that the past poor
management of the area has led to a decline in natural resources, and this project aims to
repair some of the damage while setting up the project site into a more comprehensive
management regime.
In review of the SMA guidelines as listed under HRS 205A, the proposed
development is consistent with the objectives and policies as provided by Chapter
205A, 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 ecosystems, marine resources, beaches, and controlling
development in coastal hazard areas.
-3-
Coastal Recreational Resources: All proposed improvements will occur on State
Land Use (SLU) Agricultural designated lands, and no improvements are proposed
within the shoreline setback area of the project site that is also within the SLU
Conservation District. Staff notes that some fencing or other land uses may occur within
the SLU Conservation District portion of the shoreline frontage of the project site which
will require a separate permit or approval from the DLNR. As this area is used now, and
in the past as a fishing site for local residents, the project aims to continue this access
along the shoreline to the modern fishing sites. There are coastal resources that are
currently enjoyed by community members and visitors to the area. Access to the
shoreline is via a well-established jeep road that runs along the entire length of the
shoreline in this area. The project will not block that access, and fishermen will still be
able to access their established fishing areas. The proposed project will not impact the
current level of access to the shoreline or interfere with shoreline access in this area.
Based on the proposed activities being outside the shoreline area, as well as the removal
of invasive species, and on=going land management, the Planning Department believes
there will be no anticipated impact to coastal recreational resources. Therefore, the
proposed project will not have any impact on the coastline or other areas utilized for
public recreational activities at the shoreline, nor would it impede or hinder the public's
ability to access the shoreline.
Historic and Cultural Resources: An Archeological Inventory Survey (AIS) was
conducted on the entire project area to satisfy the current historic preservation regulatory
review for the State Historic Preservation Division (SHPD). The AIS identified four (4)
sites with a total of eight(8) features. The sites consist of an historic road (Site 50-10-08-
31348), a complex of five terraces interpreted as historic agricultural features (Site 50-10-
08-31349), a terrace interpreted as an historic/modern temporary encampment (Site 50-
1008-31350), and a livestock control wall (Site 50-10-08-31351). The sites possess
integrity of location, design, setting, materials, workmanship, feeling, and association.
They are assessed as significant under Criterion "d" and have yielded information
important for understanding historic habitation, transportation, agriculture, and ranching
activity in the area. According to the AIS "No traditional Hawaiian sites were identified
-4-
in the project area. This is not unexpected because of the extensive mechanized
cultivation of sugar cane that would have destroyed most evidence of the traditional use
of the area." The documentation of Site 31348, 31349, 31350, and 31351 adequately
documents them and no further work or preservation is recommended_ In a letter dated
October 23, 2023, SHPD stated that they have reviewed the AIS and concur with the
findings of the AIS (no further work or preservation is required).
Scenic and Open Space Resources: The proposed project involves the
development of a farm that will be setback hundreds of feet from the shoreline. The
proposed Project will be set back from the shoreline and will not obstruct public views
along the shoreline, ensuring that the quality of existing coastal scenic and open space
resources will be minimally impacted. The proposed development will not include above
ground utility lines or poles that would alter views and will add on-going management
and upkeep to the area to ensure continued access and use.
Coastal Ecosystems, Marine Resources, Beaches: The proposed project will not
directly impact coastal ecosystems, including reefs, as it is set back from the shoreline,
and no work will occur within the shoreline setback area. BMPs (such as silt fences) will
be implemented during all construction activities to prevent erosion and stormwater
runoff during the construction phase. All work to conform to the Hawaii County Grading
Ordinance. No construction activity (other than cattle fencing), vehicles, stockpiles, etc.
will occur within the Conservation District, which will require separate review and
approval from the State DLNR.
Coastal Hazards: The proposed projects development will be located within
Flood Zone X which represents areas determined to be outside the 500 year flood plain;
no development other than fencing and animal husbandry are proposed along the coastal
portions of the project site (within the Conservation District). 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. In addition, all buildings will be
constructed in conformance with Uniform Building Code specifications. In the event of a
tsunami or other major weather event, the evacuation of this site would be via the private
access roadway to Nanaina Kai Road.
-5-
The proposed development is consistent with the County General Plan,
Hamakua Community Development Plan (HCDP), Zoning Code, and other
applicable ordinances. The General Plan Land Use Pattern Allocation Guide (LUPAG)
for the County of Hawai`i is a policy document expressing the broad goals and policies
for the long-range development of the Island of Hawai'i. The General Plan (GP) was
adopted by ordinance in 1989 and revised in 2005. As described previously, the project
site and surrounding area is zoned Agricultural 40-acre (A-40a) by the County, and as
presented by the applicants, the proposed project and activities are consistent with the
land use pattern stated in the General Plan which is important agricultural lands and open
zoned lands. Staff notes that the State is required to protect and preserve ial lands to
promote diversified agriculture and increase agricultural self-sufficiency. This project is
designed to promote both aspects of ial, by creating a diverse agricultural farm (both
plant and animal farming practices, as well as utilizing local resources such as a well for
irrigation which will not put a burden on the County's water resources.
The significance of this project type is highlighted in the HCDP under the Land
Use Community Objective 2 which states: protect and restore viable agriculture lands and
resources, and to protect and enhance viewplanes and open spaces that exemplify
Hamakua's rural character. The General Plan also lists the County's goals for Hamakua,
and more specifically ial lands to "protect and encourage the intensive and extensive
utilization of the County's important agricultural lands. With regards to public access, the
General Plan indicates that"appropriate public access to and along the shoreline shall be
ensured as a condition of SMA exemptions and Permits". As presented, the applicants
will maintain the exiting level of access in this area by ensuring the lateral shoreline
access path remains available to fishermen and local residents.
The project area is adequately served with essential services such as water,
electricity, and telephone. Wastewater will be directed to IWS built for each of the
residential structures, and stormwater will be managed on site via approved drainage and
other supporting structures and not to be directed towards the shoreline or coastal areas.
As such the proposed development is consistent with the County General Plan, Zoning
Code, and Hamakua Community Development Plan.
-6-
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: An Archaeological Inventory Survey (AIS)was
completed in November 2022 to satisfy regulatory requirements related to historic
preservation. No other reviews or information was provided by the applicants regarding
the investigation of valued resources.
The valuable cultural, historical, and natural resources found in the area:
The AIS identified four sites with a total of eight features. The sites consist of an
historic road (Site 50-10-08-313481), a complex of five terraces interpreted as historic
agricultural features (Site 50-10-08-31349), a terrace interpreted as an historic/modern
temporary encampment (Site 50-10-08-31350), and a livestock control wall (Site 50-10-
0831351). The sites possess integrity of location, design, setting,materials,workmanship,
feeling, and association. They are assessed as significant under Criterion "d" and have
yielded information important for understanding historic habitation, transportation,
agriculture and ranching activity in the area. The documentation of Site 31348, 31349,
31350, and 31351 adequately documents them and no further work or preservation is
recommended. The AIS also documented evidence of the modern use of the project area.
This consists of three clusters of modern features located in the seaward portion of the
parcel, consisting of mounds and terraces potentially used as sitting areas, fire pits,
fishing pole holders and a concentration of mortared bricks, likely created and used by
local fisherman.
Possible adverse effects or impairment of valued resources: Given the limited
scope of the proposed activities within the project site, the applicants are not able to
identify any irreversible or irretrievable commitment of cultural, historical, recreational,
or ecological resources as a result of the proposed improvements. As mentioned above,
this application presents a proposal that protects valued coastal resources in the area by
-7-
minimizing development along the coastal region. The landowner plans to install new
fencing in both parcels, and to conduct a program of invasive species removal. The
program will include the elimination of Christmas berry (Schinus terebinthifolius),turkey
berry (Solanum torbum), and spiny amaranth (Amaranthus spinosus), and the trimming
of coastal ironwoods (Casuarina equisetifolia) and the removal of dead ironwood trees
and branches.
Feasible actions to protect native Hawaiian rights: The landowner plans to install
new fencing in both parcels, and to conduct a program of invasive species removal. The
program will include the elimination of Christmas berry (Schinus terebinthifolius),turkey
berry (Solanum torbum), and spiny amaranth (Amaranthus spinosus), and the trimming
of coastal ironwoods (Casuarina equisetifolia) and the removal of dead ironwood trees
and branches. Additional work to protect native Hawaiian rights includes preserving the
coastal access path that runs along the shoreline in this area and provides access for
fishermen, and other gathering uses.
Lastly, this approval is made with the understanding that the applicants remain
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, the proposed project and related improvements 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:
-s-
1. The applicant(s), its successor(s) or assign(s) shall be responsible for complying with all
the stated conditions of approval.
2. The applicants 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.
3. Prior to any development, the applicants shall secure approval from the Department of
Land and Natural Resources (DLNR) Office of Conservation and Coastal Lands (OCCL)
for any proposed land uses located within the State Land Use Conservation District
portions of the project area. If the applicants are unable to secure approval from the
DLNR-OCCL for work in the Conservation District,the applicants will submit for review
and approval and Amended Special Management Area Use Permit to exclude all
activities within the Conservation District.
4. The applicants will ensure that no less than 40 feet of open area remains between the top
of the pali and the fencing that runs along the shoreline. If, at any time, the shoreline
erodes to less than 40 feet between the pali and the fence, the applicants will move the
fence mauka to maintain consistent access along this shoreline.
5. Construction and operation of the proposed farm and residential development shall be
conducted in a manner that is substantially representative of plans and details as
contained within the Special Management Area Use Permit application dated October 18,
2023, and representations made to the Windward Planning Commission.
6. The applicants shall ensure that no County water will be used for agricultural purposes at
any time.
7. The applicants will install a reduced type backflow prevention assembly within five (5)
feet of each meter on private property. The installation shall be inspected and approved
by the Department of Water Supply prior to any development or use.
8. Construction of the proposed development shall be completed within five (5) years from
the effective date of this permit.
9. All driveway connections to Nanaina Kai Road shall conform to Chapter 22, County
Streets, of the Hawaii County Code.
10. All construction and maintenance activities on the subject parcel shall comply with
-9-
Chapter 27, Floodplain Management, of the Hawaii County Code.
11. All earthwork and grading shall conform to Chapter 10, Erosion and Sedimentation
Control of the Hawaii County Code.
12. 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, or toward the shoreline and ocean waters, except as may otherwise be
permitted pursuant to Section 205A-71(b), Hawaii Revised Statutes.
13. All development generated runoff shall be disposed of on-site and shall not be directed
toward any adjacent properties.
14. 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.
15. A National Pollutant Discharge Elimination System (NPDES)permit,if required, shall be
secured from the State Department of Health before the commencement of construction
activities.
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, 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.
17. 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, successors or assigns, and
that are not the result of their fault or negligence.
-i0-
B. Granting of the time extension would not be contrary to the General Plan or
Zoning Code.
C. The 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).
E. If the applicants should require an additional extension of time, the Planning
Department shall submit the applicants' request to the Planning Commission
for appropriate action.
18. 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-