HomeMy WebLinkAboutPD BACKGROUND AND RECOMMENDATION REPORT BR-CCInitiated-Bi11127-Timed Conditions for Rezones41224
COUNTY OF HAWAII PLANNING DEPARTMENT
BACKGROUND AND RECOMMENDATION
COUNTY COUNCIL INITIATED BILL NO. 127 (PL-CCI-2024-000006)
AMENDMENT TO CHAPTER 25,ARTICLE 2,DIVISION 4, SECTION 25-2-44,
OF THE HAWAII COUNTY CODE 1983 (2016 EDITION,AS AMENDED),
RELATED TO CONDITIONS ON CHANGE OF ZONE
The County Council referred a bill for an ordinance amending Chapter 25 (Zoning),
Article 2, Division 4 of the Hawaii County Code 1983 (2016 Edition, as Amended),
Relating to Conditions in Change of Zone. Bill 127 establishes a requirement for the
Planning Director to specify a time by which performance conditions must be complete
in a recommendation for a Change of Zone.
PURPOSE OF BILL 127
1. The Hawaii County Council has introduced Bill No. 127, (Planning
Department Exhibit 1),which seeks to amend Chapter 25 (Zoning), Article 2,
Division 4, Section 25-2-44 of the Hawaii County Code 1983 (2016 Edition, as
Amended) (HCC),relating to conditions in Change of Zone ordinances by adding
the following language:
"Within any ordinance for a change ofzone that includes any such
conditions, the director shall specify the time by which all conditions shall
be completed."
According to the bill's introducer, Bill 127 mandates that the Planning
Director specify a time frame for the completion of all conditions of approval in
each change of zone ordinance. Since the council's approval of Bill 1941 in 2023,
the Planning Commissions and County Council have received change of zone
applications from the Planning Department with proposed draft conditions that do
not contain a time frame in which all conditions must be met. Bill 127 will ensure
that all change of zone applications are processed fairly and set to a specific
timeline for timely completion. It will also allow for confidence in land use
patterns across Hawaii island.
'Bill 194 was a bill for an ordinance which sought to amend Section 25-2-44 of the Hawaii County Code
to,amongst other provisions,prohibit the Planning Director from including conditions allowing an
administrative time extension to change of zone recommendations.The Zoning Code was amended with
these changes by Ordinance No.23 38 on April 19,2023.
-1-
AUTHORITY
2. HCC Section 25-2-44. (Conditions on change of zone) authorizes the Council to
impose conditions on an applicant's use of a property. Subsection (a) states:
"Within any ordinance for a change ofzone, the council may impose conditions
on the applicant's use of the property subject to the change ofzone provided that
the council finds that the conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety, and welfare; or
(2) Reasonably conceived to fu f ll 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. "
The proposed code change would compel the Planning Director to specify a time
by which all such conditions of approval be completed.
AGENCIES—NO COMMENTS/CONCERNS
3. Department of Public Works- Engineering Division, Department of Water
Supply, and Police Department.
AGENCIES-NO RESPONSE PROVIDED
4. Department of Public Works-Traffic Division, Department of Public Works-
Building Division, Department of Environmental Management, Fire Department,
Office of Housing and Community Development, and Department of Research
and Development.
PUBLIC COMMENTS PROVIDED
5. None as of the date of this writing.
PLANNING ANALYSIS OF THE IMPACTS OF BILL 127
Since the 1980's, Planning Directors have recommended the addition of
conditions to change of zone ordinances that included a timing element(e.g., time to
secure plan approval/final subdivision approval, time to commence and complete phases
of development,time to complete construction, etc.). These timed conditions were
usually placed on ordinances based on applicant's representations on the amount of time
-2-
needed to complete development of a project or subdivision or the Planning Department's
best estimates on how long the development process or components thereof would take.
Over the years,unless more time was requested by an applicant, Planning
Directors would usually recommend a 5-year development completion condition (e.g.,
time to complete construction for non-residential projects or time to secure final
subdivision approval for change of zone applications that would result in a subdivision)
with the possibility of up to a 5-year time extension should the applicant meet the criteria
for granting one. In most cases this timeframe was sufficient to complete the required
action, however, in some cases, applicants were unable to meet the timed requirements,
which would require the applicant to apply for a time extension with the Planning
Department for recommendation from the Planning Commission and ultimately approval,
modification, or denial by the County Council. Until an ordinance is brought current with
an amendment, it is considered stale,meaning the Planning Department will not process
or issue Final Plan Approval/Final Subdivision Approval or sign-off on any building
permits, until an amendment for time extension is secured.
Over the last year or so,the current Planning Director has opted to start excluding
timed conditions in cases where the proposed change of zone meets the applicable
guidelines for granting a change of zone, is consistent with the General Plan (GP) and
applicable Community Development Plan (CDP) (e.g. a change of zone from A-l0a to
FA-3a outside of the urban area or a change of zone from RS-10 to CN-10 inside the
urban area). Conversely, the Planning Director has added timed conditions to change of
zone requests on lands in fringe areas between urban and non-urban land use designations
typically located around urban growth boundaries.
Unlike other Planning Commission permits (e.g., Special Permits, Use Permits,
SMA Use Permits, Shoreline Setback Variances, etc.), a Change of Zone does not
sanction or compel a specific project or development, thus any land use permitted in the
zoning district is allowed,thus while applicant's usually include information on a
proposed project in their change of zone application, the Planning Director must consider
that other land uses permitted in the zoning district are possible and assess the potential
impacts of the full range of permitted land uses accordingly.
As such,the Planning Director has been recommending performance conditions
which would require an applicant to complete certain tasks to ensure adequate
-3-
infrastructure and mitigate impacts of a project that would be allowed by proposed
zoning prior to securing final subdivision approval or final plan approval/certificate of
occupancy, etc. for any possible project or development. These conditions compel an
applicant to meet the requirements of current State statute and County Code through
subsequent processes that require sign-off by appropriate agencies.
This practice is consistent with how some other municipalities approve zoning
district changes though consideration of how the zoning change complements overall
land use patterns, consistency with long-range plans, and availability of necessary
infrastructure. This allows an owner to subsequently develop their property pursuant to
development codes at any time,without having to meet arbitrary timing conditions.
It is the Planning Director's belief that if the proposed zoning district meets the
preceding requirements (including the provision of adequate performance conditions) and
would result in an appropriate land use pattern that would further benefit the general
public, then there is no need for timed conditions. Furthermore,this will alleviate
unanticipated impediments to development of a project(e.g., economic downturn,natural
disasters, extended agency review periods, etc.) and allow applicants/owners/developers
flexibility to develop a project as favorable conditions allow.
Finally,the Planning Director believes that this approach satisfies the Zoning
Code requirements for adding conditions of approval for a change of zone outlined in
HCC Section 25-2-44.
PLANNING DIRECTOR'S RECOMMENDATION
The Planning Director appreciates the time and effort the County Council has
taken to draft the legislation; however,he cannot support the bill as currently written,
thus the Planning Director recommends that the Planning Commissions send an
unfavorable recommendation of Bill No. 194 to the County Council. Despite the
preceding, the Planning Director is interested in working with the County Council to
address their concerns and to ensure that change of zone ordinances contain appropriate
conditions to ensure the intent of the Zoning Code. Some suggestions include:
I. Strengthen standard performance conditions: As previously mentioned, the
Planning Director has been recommending applicable performance conditions
rather than timed conditions for change of zone applications. These conditions are
meant to ensure adequate infrastructure is provided and address health and safety
-4-
needs prior to completion of any project facilitated by a change of zone. These
performance conditions largely address ensuring water availability,wastewater
provision, and traffic mitigation through roadway design and improvements. The
current performance condition language that the Director typically recommends
includes:
a. Water:Prior to the issuance of a water commitment by the Department of
Water Supply (DWS), the Applicant shall submit the anticipated maximum
daily water usage calculations as prepared by a professional engineer
licensed in the State ofHawai`i to the DWS. A water commitment deposit
shall be paid to DWS within 180 days from the effective date of this
ordinance in accordance with Rule 5 of the Department of Water Supply's
Rules and Regulations. 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.
b. Water: The applicant shall construct necessary water system
improvements as required by the Department of Water Supply, which may
include, but not be limited to, [SPECIFY IWROVEMENTS].
C. Water: The Applicant shall implement any improvements required by the
Fire Department and/or Department of Water Supply to ensure that fire
protection requirements can be met for commercial/industrial zoning.
(Note: the Fire Department is a reviewing agency for building permits and
will ensure compliance with this condition prior to issuance Certificate of
Occupancy)
d. Wastewater: The property shall connect to the public sewer in accordance
with Section 21-5 of the Hawai`i County Code prior to issuance of a
Certificate of Occupancy.
e. Wastewater: The method ofsewage disposal shall meet with the
requirements of the Department of Health.
f. Traffic/Roads:Should the applicants, successors or assigns develop a
land use which the Planning Department, in consultation with the
Department of Public Works, determines will generate over 50 peak hour
trips, a Traffic Impact Analysis Report(TZAR)shall be submitted for
-5-
review and approval by the Department of Public Works prior to Final
Plan Approval. The applicants shall implement, when required by the
Department of Public Works, at no cost to the County, any transportation
system improvements to[Name of Road] that may be deemed necessary by
the Department of Public Works. (Note: There are similar conditions
addressing State Department of Transportation's authority should the
roadway be under their jurisdiction).
In the preceding examples, the conditions direct that certain actions must occur
prior to the final approval of the development, no matter when an
applicant/landowner/developer chooses to develop the property. Should the
County Council feel that these conditions are not sufficient to direct development
performance,the Planning Director would be willing to work with them to clarify
the conditions.
2. Tolling: There has been significant discussion at the County Council level about
tolling, or stopping the running of a time period,when applications are under
government agency review from the overall development timeframe. This will
allow an applicant who is diligently working toward acquiring the necessary
government approvals to not be penalized by overly long agency review of a
project(e.g., archaeological review and approval from the State Historic
Preservation Division, a Letter of Map Revision or LOMR from the Federal
Emergency Management Agency/Department of Public Works, grading permits,
Plan Approval/Final Subdivision Approval, building permits, etc.). The Planning
Director is in support of this provision and is willing to work with the County
Council to craft acceptable tolling condition language.
3. Informed Development Timing: The Planning Director can work with State and
County agencies and industry professionals to craft a general development
timeframe matrix that describes the average timeframes that each step of the
development process should take. While this will not address the specifics of all
situations, it will help inform applicants on how to best craft their anticipated
development timeline and `right-size' their application request for proposed
projects. This could also be an informative tool to help the public understand
development process steps and anticipated timeframes.
-6-
4. Timing Condition Requirement Exemptions: In some cases,timed conditions
on change of zone ordinances are not appropriate. For example:
a. When rezoning a property to an Open zoning designation where the intent
is to ensure open space/scenic/historic/cultural resource protection, public
and recreational uses, etc. In this case,where development of the property
is not the intent, it doesn't make sense to apply a timed condition for
permitted uses.
b. When the Planning Director or County Council are initiating a reversion
of zoning to the previous zoning district designation, the Planning Director
usually recommends removal of all conditions of the zoning ordinance and
the requirements of the original zoning district designation control
development of the property. In this case, adding a timed condition is not
appropriate.
C. Where a property has split zoning, and an applicant is seeking to align one
portion of the property with the zoning of the remainder of the property.
Should the Planning Director be compelled to add a timed condition to the
zoning ordinance, it would only apply to a portion of the property and not
the entire property.
These examples illustrate that prescribing a timing condition for
development in all cases is inappropriate and there should be a provision for
exempting this requirement as necessary.
For the reasons detailed above, the Planning Director recommends that the
Planning Commissions send an unfavorable recommendation of Bill No. 127 as
currently written.
The Windward and Leeward Planning Commissions are required to take action on
Bill 127 as described in Section 25-2-43(b) of the zoning code (Planning Department
Exhibit 2). This bill was transmitted by the County Council to the Department on
February 20, 2024,which means the commissions are required to transmit their
recommendations to the council by June 19, 2024. The commissions may recommend
approval of all, some, or none of the Director's suggestions. The commissions may also
recommend their own revisions to the bill. The Windward and Leeward Planning
Commission's recommendations will be forwarded separately,but at the same time, to
-7-
the County Council for their consideration and decision. In the event the commission fails
to act on the proposed bill by this date, such inaction shall be considered as an
unfavorable recommendation by the commissions.
-8-
Ashley L. Kierkiewicz (808)961-8265
County Council District IV »iv.or ashley.kierkiewicz@hawaiicounty.gov
Policy Committee on PlanningPolicy Committee on Infrastructure
Land Use and Development—Chair and Assets— Vice Chair
c',
1h Of•N�'i'
CAH PLANNING DEPT
HAWAII COUNTY COUNCIL FEB202024AH10:153
Hawaii County Building RECD HAND DELIVERER
25 Aupuni Street - Hilo,Hawaii 96720
TO: Zendo Kern, Director
Planning Department
FROM: Ashley L. Kierkiewicz, Council Member
DATE: February 20, 2024
SUBJECT: Referral of Bill 127; an Ordinance amending Chapter 25, Articles 2, Division 4,
Section 25-2-44, of the Hawaii County Code 1983 (2016 Edition, As Amended),
related to Conditions on Change of Zone.
Pursuant to Section 25-2-43(b) of the Hawaii County Code, I am forwarding a legislative item
for your comment and recommendation.
On February 20, 2024, the Committee on Planning, Land Use, and Development voted to
forward Bill 127 to the Planning Director and the Windward and Leeward Planning
Commissions.
Upon completion of your and the Commissions review, please transmit your comments and
recommendations to Council Chairperson Heather Kimball. This will facilitate further
deliberation and action on the proposed measure by the Committee.
Thank you for your attention to this matter.
W �
Enc.
AK/kj
Planning Dept.
Exhibit Hawai`i County Is an Equal Opportunity Provider and Employer
V !
COUNTY OF HAWAII STATE OF HAWAII
r•.
BILL NO. 127
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 25,ARTICLE 2, DIVISION 4, SECTION 25-
2-44, OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED),
RELATED TO CONDITIONS ON CHANGE OF ZONE.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Chapter 25, article 2, division 4, section 25-2-44, of the Hawaii County
Code 1983 (2016 Edition, as amended), is amended by amending subsection(a) to read as
follows:
"(a) Within any ordinance for a change of zone,the council may impose conditions on
the applicant's use of the property subject to the change of zone provided that the
council finds that the 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.
Within any ordinance for a change of zone that includes any such conditions,the
director shall specify the time by which all conditions shall be completed "
SECTION 2. New material is underscored. In printing this ordinance,the underscoring
need not be included.
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 that 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:
Cs ��
COUNCIEUMMR, API
Hawaii
Date of Introduction:
Date of 1 st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm. 694
2
§ 25-2-43 HAWAII COUNTY CODE
(c) Notice by mail to surrounding owners and lessees of record of properties within the
boundaries established by section 25-2-4, shall not be required for any amendment
initiated by the council or the director. In lieu of mailing written notice to
surrounding property owners and lessees of record, the director shall publish notice
of the commission's public hearing in at least two newspapers of general circulation
in the County, once a week for three consecutive weeks, with the last notice to be at
least ten days prior to the hearing. The notice shall specify the time, date and place
of the hearing, its purpose and a description of any property which may be involved.
(d) Notice to owners of any properties specifically subject to the proposed amendment
shall be provided by mail from the director, no later than thirty days prior to the
commission's public hearing on the amendment.
(1996, ord 96-160, sec 2; ratified April 6, 1999.)
Section 25-2-44. Conditions on change of zone.
(a) Within any ordinance for a change of zone, the council may impose conditions on
the applicant's use of the property subject to the change of zone provided that the
council finds that the 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.
(b) Requests to change or alter the conditions of any change of zone ordinance shall be
processed in the same manner as a zone change, unless the council authorizes the
changes or alterations to be made by the director.
(c) A condition granting an administrative time extension by the director shall not be
included in any change of zone ordinance. However, an initial time extension for
the performance of conditions within a change of zone ordinance may be granted by
the council via resolution upon a finding that the following circumstances exist:
(1) The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicant and that are not the result
of the applicant's fault or negligence;
(2) Granting of the time extension would not be contrary to the general plan or
this chapter;
(3) Granting of the time extension would not be contrary to the original reasons
for the granting of the change of zone;
(4) 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); and
Planning Dept.
Exhibit 2
SUPP. 14 (7-2023) 25-28
ZONING § 25-2-44
(5) The request for the time extension is submitted to the director prior to the
expiration of time for the performance of conditions included in the original
change of zone ordinance.
When a request for initial time extension is received by the director, the director
shall recommend approval or denial and submit a notice to council through the
mayor. In the case of a recommended approval, the director shall also submit a
resolution to council through the mayor for consideration and action.
If an applicant should require an additional time extension beyond the time
extension provided via council resolution, the request shall be processed pursuant
to section 25-2-42.
(d) A request for any time extension, change, or alteration of conditions shall be
submitted in writing to the director, in lieu of the application required for an
applicant-initiated change of zone. Requests for initial time extensions shall be
forwarded to the council for its consideration. All requests, excluding requests for
initial time extensions via council resolution, shall be accompanied by a filing fee of
$500.
(e) If the applicant fails to fulfill any conditions of the zone change within the specified
time limitations, the director or 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.
(1996, ord 96-160, sec 2; ratified April 6, 1999; am 2023, ord 23-38, sec 1.)
Section 25-2-45. Nonsignificant zoning changes.
(a) The director may administratively grant any nonsignificant zoning change. A
nonsignificant zoning change must comply with the designations for the property
set forth in the general plan and any development plan adopted by ordinance, and
not result in an increase or decrease in any zoning designation affecting more than
five percent of the area, or one acre, of any lot, whichever is less.
(b) The applicant for a nonsignificant zoning change shall give notice to surrounding
owners and lessees of record, pursuant to section 25-2-4, and shall post a sign for
public notification as provided by section 25-2-12.
(1996, ord 96-160, sec 2; ratified April 6, 1999; am 2008, ord 08-48, sec 2.)
25-28.1 SUPP. 14 (7-2023)