HomeMy WebLinkAboutPD Recommendation Report Leese (PL-REZ-2023-055) RLeeseREZ.crk.2.25.2024
COUNTY OF HAWAI`I PLANNING DEPARTMENT
RECOMMENDATION
RYAN LEESE
CHANGE OF ZONE APPLICATION (PL-REZ-2023-000055)
Upon careful review of the request against the guidelines for granting a change of zone,
the Planning Director is recommending that a favorable recommendation for a Change of
Zone from Agricultural 20-acre (A-20a) to Family-Agricultural-5 acre (FA-5a) for 21.942
acres of land be forwarded to the County Council. Since this recommendation is made
without the benefit of public testimony, the Director reserves the right to modify and/or alter this
position. This favorable recommendation is based on the following findings:
The applicants are requesting a Change of Zone from Agricultural 20-acre
(A-20a)to Family Agricultural-5 acres (FA-5a)to subdivide the 21.942-acre property
into four(4)parcels, consisting of a minimum of five (5) acres each. The subject
property was purchased by the applicant and his two partners in May 2023, and all intend
to own a lot and eventually reside within the proposed 4-lot subdivision. The last
remaining lot will be purchased by a mutual friend and local doctor as a retirement
property. These collective friends and partners wish to make this property their personal
residence.
In order to consider an area for any type of zoning designation, the applicable
goals,policies, and standards of the General Plan must be adequately addressed. It is
only through such a comprehensive policy analysis approach that evaluations and
decisions can be made to better time and stage developments to achieve growth
consistent with the General Plan and related planning documents. The implications of
these evaluations and decisions must also be considered as they may have an impact on
similar areas in the County.
The Change of Zone request from Agricultural (A-20a) to the Agricultural
(FA-5a) zoned district will conform to the goals,policies, and standards of the
General Plan Economic and Land Use elements. The Land Use Pattern Allocation
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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 designated Important Agricultural Land, which are
lands with better potential for sustained high agricultural yields because of soil type,
climate, topography, or other factors. However, the subject property is primarily native
forest and therefore it is preferable to maintain the forest than to convert the property to
agricultural uses.
The proposed Change of Zone will conform to, among others, the following
goals, and policies of the Natural Resources Element of the General Plan:
■ Protect rare or endangered species and habitats native to Hawaii.
■ Within the Kona high rainfall/fog-drip belt, ground disturbing activities such as
excessive soil compaction and excessive removal of vegetative cover should be
minimized and mitigated consistent with management strategies that encourage
the retention of existing forested and pasture areas, reforestation, minimal
coverage by impervious surfaces and other strategies that encourage effective
infiltration to groundwater.
■ Implement Council Resolution Nos. 330-96 and 58-97 in land use approvals.
■ Create incentives for landowners to retain and re-establish forest cover in upland
watershed areas with emphasis on native forest species.
Among the most significant of the island's natural resources are upland forests
that provide the essential groundwater recharge areas. All groundwater sources in North
and South Kona ultimately depend upon recharge that primarily occurs in a band between
the 1,500 and 5,500-foot elevations. In the lower part of this band, rainfall dominates
from approximately the 1,500 to 3,000-foot elevation. In the upper part of this band,
above the 3,000-foot elevation, fog that collects on trees and drips to the ground is a
major contributor to the aquifer. In recognition of the importance of the mauka Kona
area for watershed and other environmental values, the County Council established a
policy in Resolution No. 330-96 (1996)that no lands in North or South Kona above
2,500 feet in elevation (except in the existing Kaloko Mauka Subdivision) should be
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rezoned to lot sizes less than 20 acres, without a corresponding reduction in density on
contiguous lands. In Kaloko Mauka, the Council found that the concerns could be
mitigated by specific rezoning conditions which would require that at least 80 % of the
property be kept in forest cover, in the area above 3,000 feet in elevation (Resolution No.
58-97). One of the conditions included in Resolution No. 58-97 was to restrict the
number of dwellings to one per lot. The Planning Director recommends a restriction
against a second dwelling on each lot to minimize the density of development in the
native forest, similar to a condition included with other past rezones in the subdivision.
Conditions of approval will be included to meet the forest cover and density requirements
of the resolutions mentioned above.
No professional flora or faunal surveys were conducted of the subject property;
however, the applicant conducted a review of information associated with similar
rezonings in the general area which did not disclose any habitats associated with
protected species of plants or animals, thus they do not believe that any endangered flora
or faunal resources are likely to be located within the property.
The subject property is heavily forested with native trees and shrubs such as
`Ohi`a, tree fern, other native trees and shrubs, and non-native vegetation. Wildlife at the
property, as witnessed in records of other nearby properties, consists of turkeys, hawks,
Chinese pheasants, and other forest birds. Vegetative cover is a mixture of native and
non-native species.
According to the State Department of Land and Natural Resources—Division of
Forestry and Wildlife, the Hoary Bat or `Ope`ape`a, the Blackburn's Sphinx Moth, the
Hawaiian Goose or Nene, and the Hawaiian Hawk or `Io could potentially occur in the
vicinity of the project area. Furthermore, the applicant cited recommended mitigation
measures for possible impacts on the Hoary Bat and `Io as well as the steps to minimize
the spread of Rapid `Ohi`a Death(ROD) and have represented that they will apply those
as necessary during the development of the property.
The Hawaiian Forest Bird Recovery Plan (1983) identified the upper slopes of
Hualalai, above the 3,000-foot elevation, as "essential habitat" for the endangered `akepa
and Hawaiian creeper. These bird species feed on `ohi`a lehua and koa. The proposed
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development has the potential to alter the mixture of plant life, however, the low density
of the proposed development and conditions of approval consistent with Resolution No.
58-97 will assure the continuation of habitat for existing wildlife. Finally, a condition for
approval will require the applicant to comply with recommended development mitigation
measures should endangered or threatened species be sighted within the rezone area.
The Kona Community Development Plan (CDP) includes similar goals as the
General Plan regarding preservation of natural resources and native species, as well as
watershed protection. With implementation of these conditions, the request will conform
to the goals and policies of the General Plan and Kona CDP.
All utilities and services are available to the site. Primary access to the subject
property is from Kaloko Drive, a County-maintained roadway having a pavement width
of 22 feet with grassed shoulders within an 80-foot-wide right-of-way. The applicant is
proposing access driveways for two of the proposed lots from Kaloko Drive and two
access driveways from Ha6 Street, also a County maintained roadway having a pavement
width of 20 feet with grassed shoulders within a 50-foot-wide right-of-way, which
intersects with Kaloko Drive. According to the Department of Public Works (DPW), all
driveway connections and construction within the County right-of-way shall conform to
Chapter 22, County Streets, of the Hawaii County Code and include the provision of
adequate site distances meeting with the approval of the DPW-Engineering Division.
The preceding will be added as a condition of approval.
Since the mid 1990's, funds have been set aside in a fair share account for the
County and/or State to improve the Kaloko Drive-Mamalahoa Highway intersection,
which is a"T" configuration intersection located about three miles below the subject
property. The current fund balance for this intersection is $691,670.46.
The Department of Transportation (DOT) has previously shown concern about the
numerous rezonings in the Kaloko Mauka Subdivision and the cumulative impact of
these changes on the intersection of Mamalahoa Highway and Kaloko Drive. The DOT
has previously recommended the following improvements at the intersection due to the
additional traffic and activity on the roads from the cumulative effect of the land use
change:
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• Illuminate the intersection at night.
• Channelize turning movements at the intersection.
• Other safety improvements
The DOT has further stated that the intersection improvements should be made at
no cost to the State and requests that plans for improvements within the State highway
right-of-way be submitted to the Highways Division for review and approval. The
Department of Transportation, Department of Public Works, and the applicant have all
acknowledged the need for improvements to the Mamalahoa Highway-Kaloko Drive
intersection and working group has been established to determine intersection
improvements needed and how to best apply the fair share funds mentioned below. The
roadway improvements are essential since similar change of zones may occur throughout
the Kaloko Mauka Subdivision and the creation of additional home sites would place an
increased burden on traffic at the intersection. Previous rezones in the subdivision have
included a condition of approval requiring that the fair share fee paid for regional impacts
to transportation,park,police, fire, and solid waste facilities be allocated for the County
and/or State to improve the Kaloko Drive-Mamalahoa Highway intersection, and a
similar condition will be added to this recommendation.
According to the Department of Water Supply (DWS), three additional water
units can be made available from existing 8-inch lines within Kaloko Drive and Hao
Street. Conditions of approval will require the applicant to secure and maintain three
additional units of water and construct water system improvements meeting with the
requirements of DWS. Wastewater generated by the proposed development will be
disposed of by individual wastewater disposal systems for each lot, meeting the
requirements of the Department of Health. Solid waste will be taken by the individual lot
owners or a private hauling service to a designated transfer station or the West Hawai`i
Sanitary Landfill. The Federal Emergency Management Agency Flood Insurance Rate
Map (FIRM) designates the property as Zone "X", an area determined to be outside of the
500-year flood plain. All other essential utilities and services are or will be made
available to the site.
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The request is not contrary to Chapter 205A,Hawaii Revised Statues,
relating to Coastal Zone Management. The property is not located in the Special
Management Area. The site is located over 4.5 miles mauka of the shoreline and
therefore will not be impacted by coastal hazard and beach erosion. There are no
identified recreational resources,public access to the shoreline or mountain areas, scenic
and open space preserves, coastal ecosystems, or marine resources on the subject
property. The property does contain significant natural resources in that it is heavily
forested with native species that provide a food source to several native and endangered
bird species.
In view of the Hawai`i 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 archaeological survey of the site was
conducted as part of the application. The property is located within the boundaries of a
pre-contact age upland agricultural system known as the Kona Field System, which is
listed in the State Inventory of Historic Places. The area was the subject of a
reconnaissance survey and test excavations in 1970 and 1971 by Hu`ehu`e Ranch, the
developers of the Kaloko Mauka Subdivision. In addition, the National Park Service
published a report in 1991 entitled, "An Ahupua`a Study: The 1971 Archaeological Work
at Kaloko Ahupua`a, North Kona." This study also identified remains of an agricultural
field system up to the 3,500-foot elevation at certain locations. The State Historic
Preservation Division (SHPD)has no objection to the change of zone request but requests
the opportunity to review any permits involving future ground disturbance associated
with the development of the project. The Planning Department has no record of any
cultural or historic resources on the property. The U.S. Fish and Wildlife Service has
conducted studies of the general area over the years and have identified numerous
endangered and native bird species in the native forest in the subdivision.
The valued cultural, historical, and natural resources found in the rezoning area:
The Department is not aware of any cultural or historic resources on the property.
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According to the applicant, there is no evidence of any traditional and customary Native
Hawaiian rights being practiced on the property. The property is covered in native forest.
Possible adverse effect or impairment of valued resources: Native plants may be
destroyed by construction or ground alteration. There is no evidence that the flora in the
area is particularly desired or used for cultural practices.
Feasible actions to protect native Hawaiian rights: While there is no evidence of
any traditional and customary Native Hawaiian rights being practiced on the property, a
condition of the approval will require that construction ceases until SHPD provides
approval to continue work, if any historic or cultural resources are inadvertently
discovered during ground alteration and construction. Additionally, most of the native
forest will be preserved under required buffers and stringent clearing restrictions. Finally,
as previously mentioned, the applicant will be required to adopt mitigation measures to
protect endangered or listed plant and animal species should they be found present on the
property.
This favorable recommendation is made with the understanding that the applicant
remains responsible for complying with all other applicable governmental requirements
in connection with uses permitted within the Agricultural zoning district,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 the 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
favorable recommendation; 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, approval of the Change of Zone request from
Agricultural (A-20a) to the Family-Agricultural (FA-5a)zoned district would result
in an appropriate land use pattern that will further the public necessity and convenience
and the general welfare.
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The accompanying draft bill to amend Section 25-8-3 (North Kona District Zone Map) is
provided for your favorable consideration. Please note the proposed conditions of approval
attached to the draft bill.
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CLeeseREZ.crk.2.23.2024
RYAN LEESE
CHANGE OF ZONE APPLICATION (PL-REZ-2023-000055)
CONDITIONS OF APPROVAL
A. The applicant, its successors, or assigns ("Applicant") shall be responsible for
complying with all of the stated conditions of approval.
B. The Applicant shall be responsible for complying with all requirements of
Chapter 205, Hawaii Revised Statutes, relating to permissible uses within the
State Land Use Agricultural District.
C. The Applicant shall submit the required water commitment payment to the
Department of Water Supply in accordance with its "Water Commitment
Guidelines Policy"within one hundred and eighty (180) days from the effective
date of this change of zone ordinance. The applicant is responsible for
maintaining valid water commitments to support the proposed use until such time
that required water facilities charges are paid in full.
D. Final Subdivision Approval of the proposed agricultural subdivision shall be
secured from the Planning Director. The Applicant shall reserve the following
easements and special setbacks in perpetuity for purposes of protecting and
maintaining naturally forested areas and shall delineate such easements and
setbacks on plans submitted for subdivision review:
1. A 100-foot wide"forest reserve easement" along the existing roadway
frontages of the subject property, exclusive of the sight distances and
access points permitted by the Department of Public Works;
2. A 30-foot"forest reserve easement" along all proposed lot lines not
covered by the 100-foot easement; and
3. A 100-foot-wide structural setback in lieu of the required 30-foot setback
along the existing property's public street frontage to provide an additional
buffer.
E. Restrictive covenant(s) in the deeds of all the proposed agricultural lots shall
specify and uphold the easements and setbacks set forth in Condition D. The
restrictive covenant(s) shall also specify that, including the area comprising the
forest reserve easements described in Condition D, no less than eighty percent
(80%) of the entire lot area shall be retained in forest. A copy of the proposed
covenant(s)to be recorded with the Bureau of Conveyances shall be submitted to
the Planning Director for review and approval prior to the issuance of Final
Subdivision Approval. A copy of the recorded document shall be riled with the
Planning Department upon its receipt from the Bureau of Conveyances.
F. Restrictive covenants in the deeds of all the proposed lots shall give notice that
the terms of the zoning ordinance prohibit the construction of a second dwelling
unit and condominium property regimes on each lot. This restriction may be
removed by amendment of this ordinance by the County Council. The owners of
the property may also impose private covenants restricting the number of
dwellings. A copy of the proposed covenant(s)to be recorded with the State of
Hawaii Bureau of Conveyances shall be submitted to the Planning Director for
review and approval prior to the issuance of Final Subdivision Approval. A copy
of the recorded document shall be filed with the Planning Department upon its
receipt from the Bureau of Conveyances.
G. A Forest Management Plan for the proposed lots within the subject property shall
be prepared and submitted for review and approval by the Planning Director in
consultation with the State Department of Land and Natural Resources. The
forest management plan shall require the following:
1. Include at minimum, the best forest and reforestation practices program
for implementation and other applicable forestry management criteria,
including those of the State Department of Land and Natural Resources
(i.e. Forest Stewardship Program).
2. The forest management program shall include a restrictive covenant for
the proposed lots within the subject property which shall be recorded with
the Bureau of Conveyances and/or Land Court. A copy of the covenants
to be recorded shall be submitted to the Planning Director for review and
approval prior to the issuance of Final Subdivision Approval. A copy of
the approved covenant(s) shall be recited in an instrument executed by the
Applicant and the County and recorded with the Bureau of Conveyances
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prior to the issuance of Final Subdivision Approval.
3. If more than twenty percent(20%) of the subject property has been cleared
or grubbed prior to the submittal of the Forest Management Plan or the
recording of the restrictive covenant(s), the reforestation program for any
cleared or grubbed area(s) in excess of the 20%within the subject property
shall be substantially implemented prior to the issuance of Final
Subdivision Approval.
4. This Forest Management Plan shall govern the proposed lots within the
subject property for a period of fifty (50)years and its termination may be
considered after the 50-year period has elapsed by amending this
ordinance requiring County Council approval by ordinance.
H. Access to Kaloko Drive and Hao Street including the provision of adequate sight
distances, shall comply with Chapter 22 (County Streets) of the Hawaii County
Code and shall meet with the approval of the Department of Public Works.
I. All earthwork and grading shall conform to Chapter 10, Erosion and
Sedimentation Control, of the Hawaii County Code.
J. All development generated runoff shall be disposed of on-site and not be directed
toward any adjacent properties. A drainage study shall be prepared for review and
approval by the Department of Public Works,prior to submittal of plans for
subdivision review. Drainage improvements, if required, shall be constructed in a
manner meeting with the approval of the Department of Public Works prior to the
issuance of Final Subdivision Approval.
K. Individual Wastewater Systems for each proposed lot shall comply with the
requirements of the State Department of Health.
L. Should any state or federally listed or endangered species be found on the subject
property, the Applicant shall comply with all applicable requirements of
Department of Land and Natural Resources-Division of Forestry and Wildlife
and/or the United States Fish and Wildlife Service.
M. In the event that surface or subsurface historic resources, including human
skeletal remains, structural remains (e.g. rock walls, terraces,platforms, etc.),
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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
work shall proceed upon an archaeological clearance from DLNR-SHPD when it
rinds that sufficient mitigation measures have been taken.
N. The Applicant shall make its fair share contribution to mitigate the potential
regional impacts of the subject property with respect to roads. The fair share
contribution shall become due and payable prior to receipt of Final Subdivision
Approval. The fair share contribution shall be based on the actual number of
additional lots created. The fair share contribution to address the potential road
impacts shall be in the form of cash and/or in-kind services approved by the
County Council and shall be applied to improving the Kaloko Drive/Mamalahoa
Highway intersection. Based upon the Applicant's representation of intent to
subdivide and develop up to three (3) additional lots, the fair share contribution is
$16,641.15 per additional lot, for a combined total of$49,923.45. The fair share
contribution shall be adjusted annually by the Hawaii County Planning
Department, beginning three (3)years after the effective date of this ordinance,
based on the percentage change in the Honolulu Consumer Price Index (HCPI).
Upon approval of the fair share contribution, the Planning Director shall submit a
final report to the County Council for its information that identifies the specific
approved fair share contributions, as allocated, and further implementation
requirements.
O. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria
for imposition of exactions or the assessment of impact fees, conditions included
herein shall be credited towards the requirements of the Unified Impact Fee
Ordinance.
P. The Applicant shall comply with all applicable County, State and Federal laws,
rules, requirements, and regulations.
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Q. If the applicant fails to fulfill any conditions of the zone change, the Planning
Director or County Council may initiate the process for enactment of an ordinance
reverting the affected property back to its original zoning designation or a more
appropriate zoning designation in accordance with Section 25-2-43 of the Hawaii
County Code.
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COUNTY OF HAWAI`I STATE OF HAWAI`I
BILL NO.
ORDINANCE NO. (Planning Dept.)
AN ORDINANCE AMENDING SECTION 25-8-3 (NORTH KONA DISTRICT ZONE MAP),
ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAI`I COUNTY CODE 1983 (2016
EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM
AGRICULTURAL—20 ACRES (A-20a) TO FAMILY AGRICULTURAL—5 ACRES (FA-5a)
AT NORTH KONA, HAWAI`I, COVERED BY TAX MAP KEY: 7-3-024:003.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI`I:
SECTION 1. Section 25-8-3, Article 8, Chapter 25 (Zoning Code) of the Hawaii County
Code 1983 (2016 Edition, as amended) is amended to change the district classification of
property described hereinafter as follows:
The district classification of the following area situated at North Kona, Hawaii,
shall be Family Agricultural—5 Acres (FA-5a):
Beginning at the Easternmost corner of this parcel of land, being also the
Northwesterly corner of Lot 8 and being a point on the Southerly side of Kaloko Drive,
the coordinates of said point of beginning referred to Government Survey Triangulation
Station "MOANUTAHEA" being 13,675.05 feet South and 1,144.90 feet West and
running by azimuths measured clockwise from True South:
1. 450 10' 1,399.98 feet along Lot 8, Lot 7 and Lot 6 of
Block 3 of Kaloko Mauka
Subdivision, Increment 1 and along
the remainder of Royal Patent 8214,
Land Commission Award 7715,
Apana 11 to Lota Kamehameha to a
point;
2. 1350 10' 472.87 feet along Lot 4-A of Block 3 of
Kaloko Mauka Subdivision,
Increment I and along the remainder
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of Royal Patent 8214, Land
Commission Award 7715, Apana 11
to Lota Kamehameha to a point;
Thence, for the next four (4) courses following along the Easterly side of Hao
Street:
3. 2150 10' 554.70 feet to a point;
Thence, following on a curve to the left with a radius of 1,030.00 feet, the chord
azimuth and distance being:
4. 1980 51' 30" 578.46 feet to a point;
5. 1820 33' 341.50 feet to a point;
Thence, following on a curve to the right with a radius of 50.00 feet, the chord
azimuth and distance being:
6. 2480 51' 30" 91.57 feet to a point;
7. 3150 10' 1,020.00 feet along the Southerly side of
Kaloko Drive to the point of
beginning and containing an area of
21.942 Acres.
All as shown on the map attached hereto, marked Exhibit"A" and by reference
made a part hereof.
SECTION 2. In accordance with Section 25-2-44, Hawai`i County Code 1983 (2016
Edition, as amended), the County Council rinds the following conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of
the proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
SEE ATTACHED CONDITIONS
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SECTION 3. Severability. If any provision of this ordinance, or the application thereof
to any person or circumstance, is held invalid, the invalidity does not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable.
SECTION 4. This ordinance shall take effect upon its approval.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAI`I
Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
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PROPOSED REZONE AREA:
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AMENDMENT TO THE ZONING CODE.
AMENDING SECTION 25-8-3 (NORTH KONA DISTRICT ZONE MAP)ARTICLE 8,
CHAPTER 25 (ZONING) OF THE HAWAI'I COUNTY CODE 1983 (2016 EDITION, AS AMENDED),
BY CHANGING THE DISTRICT CLASSIFICATION FROM
AGRICULTURAL - 20 ACRES (A-20a)
TO FAMILY AGRICULTURAL - 5 ACRES (FA-5a)
AT NORTH KONA, HAWAI'I
MAP PREPARED BY:
TMK:(3)7-3-024:003 COUNTY OF HAWAI'I, PLANNING DEPARTMENT DATE:April 1,2024
Ryan Lee
EXHIBIT "A"
Map: 1460