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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 -1- 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 -2- 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 -3- 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: -4- • 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. -5- 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. -6- 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. -7- 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. -s- 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 -2- 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.), -3- 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. -4- 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. -5- �Mti(OF h{ �p 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 -1- 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 -2- 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: -3- A-3a FA-3a FA-3a A-3a (road) FA-3a A-3a O FA-3a FA-3a r A-3a A-3a A-3a A-3a A-3a A 3❑ 13.675.05'S 1.144.90'E q� "A?OANUTANEA" O� O O,Q A-3o A-3a A-5a FA-5a A-3a A-3o AGRICULTURAL-20 ACRES(A-20a) TO FAMILY AGRICULTURAL-5 ACRES (FA-5a) FA-5a PROPOSED REZONE AREA: 21.942 ACRES P A-3a FA-5a A-3a FA-5a c o� A-3a FA-5a J A-3a � r A-3a Feet 0 1,000 2,000 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