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HomeMy WebLinkAboutPD RECOMMENDATION REPORT (PL-SMA-2024-000052) RSHELVIN SMA April 2024 COUNTY OF HAWAII PLANNING DEPARTMENT RECOMMENDATION STEPHEN AND SUSAN SHEVLIN SPECIAL MANAGEMENT AREA USE PERNHT APPLICATION (PL-SMA-2024-000052) Upon careful review of the applicant's request against the guidelines for granting of a Special Management Area Use Permit, the Planning Director recommends that this request to construct a one-story 2,300 square-foot single-family residence and related improvements on a 1.977-acre shoreline parcel within the Special Management Area (SMA) be approved by the Windward 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 proposed development consists of a one (1) story, 2,300-square foot single-family residence with two (2) bedrooms and two (2) bathrooms, a study, kitchen, and pantry, living and dining room, laundry room, and storage room, 500-square foot lanai and in-ground pool. In addition, a detached bedroom and bathroom and three (3) car garage is also proposed. The proposed dwelling would total three (3) bedrooms and three (3) bathrooms. A new Department of Health (DOH) approved septic system will be installed to serve the dwelling and a well will be drilled to provide water. The well will be constructed in accordance with the rules and regulations of the Commission on Water Resource Management. If the well water is not deemed potable, a water catchment tank will be installed instead. All improvements will encompass an approximately 6,000 square foot area of the property and will be sited over 100 feet from the top of pali which is designated (in this area) as the "shoreline". Due to the significant distance from the approximate shoreline, and the Director's determination that the top of pali is the"shoreline" in this area,no shoreline certification was required. 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 1 Commission Rule 9-11(e) states that the Planning Commission may permit the proposed development only upon finding that: 1. The development will not have any significant 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 Special Management Area objectives, policies and guidelines as provided by Chapter 205A, HRS. 3. The development is consistent with the General Plan, Community Plan, Zoning Code, and other applicable ordinances. 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 significant 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 2 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 single-family dwelling is within a well-established residential development/subdivision that was created over 20 years ago. Almost all of the shoreline parcels in this area are fully developed with single-family residential structures, related development, and landscaping. The applicants have designed the development to be outside the 40-foot shoreline setback boundary and over 100-feet from the "shoreline" in this area, with the current shoreline located at the top of a 180-foot tall pali/cliff. There is no existing shoreline access located within the subdivision or across or through the subject parcel, however, approximately 0.25 miles south of the project site is the Hakalau Bay shoreline park which is managed and owned by the County. No work, staging, or placement of heavy machinery will occur within the 40-foot shoreline setback area. Based on the above factors the proposed project will not significantly alter or impact coastal resources nor impact public access to and along the shoreline. The subject parcel has been undeveloped and overgrown within a well-established residential community for decades; surrounding development includes large single-family residences, storage structures, minor agricultural uses, and other related developments. The applicants are planning to develop the property for residential use; however, it is not anticipated that any rare or endangered floral or faunal species would be found on the parcel, nor would any be affected by the proposed project. The new residential structures, garage and related improvements on this property would have no adverse effect on natural beauty and scenic view planes since it has been developed for some time and had become unkempt and overgrown. The proposed project is in line with the existing residential development located throughout this area, and along the Old Mamalahoa Highway. Based on the location of the parcel within a developed residential subdivision, the previously disturbed nature of the project site due to previous agriculture and site planning for the subdivision, it is anticipated that no historic properties will be affected. Staff submitted the project for review by the State Historic Preservation Division (SHPD) for a HRS Ch. 6E-42 review, with the County stating that there will be "No historic properties affected" by the proposed project. Additionally, there will be no change to the 3 shoreline/fishing access or cultural practices that take place in the shoreline park located south of the project site. In reviewing the proposed development against the factors that may constitute a substantial adverse effect as listed under Planning Commission Rule 9-10 (H) (1-10), it has been determined that the proposed project as described above will not have a significant adverse environmental or ecological effect upon the Special Management Area. In review of the SMA guidelines as listed under HRS 205A-26, the proposed development is consistent with the objectives and policies as provided by Chapter 205A-26, 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-26, Hawaii Revised Statutes (HRS) and Rule 9 of the Planning Commission Rules of Practice and Procedure, 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-26, HRS and Rule 9-10(h) 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. The proposed construction of a single-family dwelling, detached bedroom, garage, and related improvements is consistent with the objectives and policies of the Coastal Zone Management Program (Chapter 205A, Hawaii Revised Statutes)including: Recreational Resources: The proposed project will not impede coastal recreational opportunities; however, there is no safe access to the shoreline in the immediate area as the property terminates at an approximately 180-foot-high cliff/pali with all development occurring over 100-feet from the "shoreline" (top of pali) in this area. Shoreline and ocean access is provided south of the project site at the Hakalau Bay beach park which is owned and managed by the County. No staging of materials or heavy machinery will be allowed in the shoreline setback area. Thus, the project will not inhibit any coastal recreational opportunities 4 accessible to the public. Historic Resources: Although no commissioned archaeological survey of the site was conducted it is highly unlikely that any historic sites would be found on the property as the parcel has been previously cleared by both previous sugar cane farming and the development of the subdivision over 20 years ago. However, in the event any archaeological or historical features are found during any earth disturbance activity, work will stop within the affected area and appropriate clearances from the State Historic Preservation Division (SHPD) and County Planning Department will be secured before work resumes. Scenic and Open Space Resources: The proposed project will not have a significant impact on the area's scenic and open space resources. The topography of the site slopes slightly downward in a mauka to makai direction which essentially hides the subject parcel and subdivision. The dwelling is proposed at a lower elevation, which will naturally mitigate potential impacts to scenic resources from neighboring properties and roadways. The proposed dwelling will have a maximum height of fifteen (15) feet and will also be sited 100-feet from the shoreline to not interfere with open space and shoreline resources. Visual impacts regarding the coastline will not significantly change from the current state and lot configuration. Coastal Ecosystems and Marine Resources: The subject property abuts the shoreline; however, the design of the proposed residence and the conditions of construction permits will minimize potential impacts to coastal resources such as soil erosion. All mandated setbacks and government regulations related to runoff and nearshore waters will be adhered to. No threatened or endangered animal or plant species are present and as such no adverse impact to flora, fauna, or ecosystems would be expected to result from the proposed development or any activities associated with the use. Coastal Hazards: Due to its elevation over 180-feet above sea level, the property is outside the Hawai'i County Civil Defense Tsunami Evacuation Zone. The Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) identifies the parcel as Flood Zone "X" (areas outside of the 500-year floodplain). All proposed improvements 5 will be sited a considerable distance from the shoreline. The applicants have not observed any significant runoff or erosion in the recent past. Based on the above information, the proposed development is consistent with the objectives and policies of Chapter 205A, HRS. The proposed development is consistent with the County General Plan, Hamakua Community Development Plan (RCDP), Zoning Code, and other applicable ordinances. The General Plan Land Use Pattern Allocation Guide (LUPAG) for the County of Hawaii is a policy document expressing the broad goals and policies for the long-range development of the Island of Hawai'i. The plan was adopted by ordinance in 1989 and revised in 2005; the map designation for the subject property is Open (ope) and Important Agriculture Lands (ial), which allows for this type of development. The Hdmdkua Community Development Plan (HCDP) was developed under the framework of the February 2005 County of Hawaii General Plan and was adopted in 2018 via Ordinance 2018-78 by the Hawaii County Planning Commission. The proposed development is consistent with the General Plan LUPAG Map designation as it will complement the goals, policies, and standards of the Land Use Elements of the General Plan. The proposed action is in balance with the natural, cultural, and social environment of the County, and it will create temporary construction jobs for residents and indirectly affect the economy through construction industry purchases from local suppliers. Lastly, the proposed development is consistent with certain "Community Objectives" of the HCDP; 1) protect, restore, and enhance watershed ecosystems, sweeping views, and open spaces from mauka forests to makai shoreline, while assuring responsible public access, 2) protect and restore viable agricultural lands and resources. Protect and enhance viewscapes and open spaces that exemplify Hdmdkua's rural character, and 4) protect and nurture the Hdmdkua regions social and cultural diversity and heritage assets,including sacred planes,historic sites,buildings, and towns. Based on the proposed developments distance from the shoreline, the previous development of the site from past uses, the inaccessible shoreline and high cliff, and the surrounding similar development of this subdivision, staff purports that the proposed project would be consistent with pertinent goals and policies of the Hawaii County 6 General Plan and the Hamakua Community Development Plan (HCDP). While the HCDP does not list specific land uses for the subject parcel, the proposed residence does align with certain priorities of the natural and cultural resources, and community infrastructure sections, such as: protecting coastal areas from development, protecting, and preserving coastal view planes, preserving historic resources, ensuring appropriate public access is retained or bolstered, and concentrating future development in an existing subdivision. 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: Based on the previous land disturbance and development history, no historic properties or resources would be found on the subject parcel. In conformance with review criteria the project was submitted to the State Historic Preservation Division (SHPD) for a HRS, Ch. 6E-42 review, with the County stating that no historic properties would be affected by the proposed project. To date no response has been provided by SHPD on the proposed projects' impacts to valued resources. The valuable cultural, historical, and natural resources found in the area: The applicants note that the subject parcel does not contain any established public shoreline access or access located along the shoreline makai of the project site due to the high cliff and rocky shoreline. are proposed or anticipated. It is not known whether the subject site or immediately surrounding area was ever used for the gathering of plants by native Hawaiians other than the shoreline and ocean which is outside the project area. Given the residential development of the area, it would appear very unlikely that the site would serve such a purpose today and/or in the recent past. Thus, the project does not appear to present any cultural impacts. Possible adverse effects or impairment of valued resources: No floral or faunal species listed as threatened, endangered, or proposed for listing under the federal or state 7 endangered species statutes are anticipated to be on the site. Additionally, no species used for cultural gathering purposes were identified within the project area. The residential nature of the surrounding areas would make it less likely to find other protected or endangered animal life in this area other than what is found along the shoreline and ocean which is outside the project area. All construction activities will follow Best Management Practices to minimize adverse point and non-point pollution to coastal resources and surrounding areas. Feasible actions to protect native Hawaiian rights: All proposed improvements will be located a considerable distance from the shoreline, which is bounded by a 180- foot-high cliff and rocky shoreline. South of the project site there is an existing shoreline park (Hakalau Bay) which provides shoreline and ocean access for the public; the project will not impact that park or access. Lastly, this recommendation for 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 development 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: 1) The applicants, its successor(s), or assign(s) shall be responsible for complying with all stated conditions of approval. 8 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) Construction of the new single-family residence and related improvements shall be conducted in a manner that is substantially representative of plans and details as contained within the SMA Permit application dated February 14, 2024, and representations made to the Windward Planning Commission. 4) Construction of the proposed development shall be completed within five (5) years from the effective date of this permit. 5) 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 toward, the shoreline and ocean waters, except as may otherwise be permitted pursuant to Section 205A-71(b), Hawaii Revised Statutes. 6) All construction and maintenance activities shall comply with Chapter 27, Flood Control of the Hawaii County Code. 7) All earthwork and grading shall conform to Chapter 10, Erosion and Sedimentation Control of the Hawaii County Code. 8) All development generated runoff shall be disposed of on site and shall not be directed toward any adjacent properties. 9) The method of sewage disposal shall meet with the requirements of the Department of Health. 10) 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. 11) The applicants shall install a silt fence barrier along the entire length of the 40-foot shoreline setback line (measured from the top-of-pali) to ensure that no work, or impacts affect the shoreline setback area. The barrier will remain in place until all construction activities are completed. 9 12) 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, the applicants shall 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. 13) 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 applicants and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. 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). 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. 14) 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. 10