HomeMy WebLinkAboutPD RECOMMENDATION REPORT RDiehichSPP.j a..4.25.24
COUNTY OF HAWAII PLANNING DEPARTMENT
RECOMMENDATION
MATHEW DIETRICH, STEVEN DIETRICH AND JANE DIETRICH
SPECIAL PERMIT APPLICATION (PL-SPP-2023-000052)
Upon review of the request against the guidelines for granting a Special Permit, the
Planning Director recommends that this request to allow the establishment of a 3-bedroom bed
and breakfast operation within an existing dwelling and to legitimize an existing campground on
a 1-acre portion of an approximately 2-acre parcel of land be approved by the Windward
Planning Commission. Since this recommendation is made without 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. The recommendation for approval is based on the
following findings:
The applicants are requesting a Special Permit to establish a 3-bedroom bed and breakfast
operation within an existing dwelling and to legitimize an existing campground. The
existing dwelling was registered as a nonconforming Short-Term Vacation Rental (STVR)
in 2019 and the applicant states that the property has hosted paying guests since 2012. The
proposed Special Pemit includes the following:
• Operation of the existing dwelling as a 3-bedroom bed and breakfast, with the ground
floor used only for storage.
• Permitting of a 4th bedroom within the dwelling for use by the operator of the bed and
breakfast.
• Permitting 6 campsites to be used for overnight accommodations,with each consisting
of a "cabana" (a 120-square foot raised platform, 10 feet x 12 feet, with a roof, corner
posts and a 3-foot-high guard rail along each side).
• Construction of a 120-square-foot bathhouse to support the cabanas, consisting of 2
toilets, 2 sinks and 2 showers.
• Conversion of the existing cesspool to a septic system meeting with the approval of the
Department of Health (DOH).
• 11 off-street, gravel parking stalls, to be used by guests and the live-in operator.
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The applicants' goal is to provide alternative and rustic overnight accommodations,
allowing visitors an opportunity to enjoy and learn about Hamakua and to support
businesses and farms in the area. Additionally, the applicants note that while the subject
property has fruit tree propagation and livestock pasturing, the parcel is narrow, with a
steep elevation incline, making intensive agricultural productivity unviable. The bed and
breakfast establishment will be operated by a live-in manager and quiet hours will be from
9:00 PM to 8:00 AM.
The grounds for approving a Special Permit are based on Rule 6-7 in the Planning
Commission Rules. It states that the Planning Commission shall not approve a Special
Permit unless it is found that the proposed use (a) is an unusual and reasonable use of land
situated within the Agricultural or Rural District, whichever the case may be and (b) the
proposed use would promote the effectiveness and objectives of Chapter 205, Hawaii
Revised Statutes, as amended.
The granting of this request would promote the effectiveness and objectives of
Chapter 205, Hawaii Revised Statutes, as amended. The State Land Use Law and
Regulations are intended to preserve, protect, and encourage the development of lands in
the State for those uses to which they are best suited in the interest of the public health and
welfare of the people of the State of Hawaii. In the case of the Agricultural District, the
intent is to preserve or keep lands of high agricultural potential in agricultural use. In this
case, the County designates the property as important agricultural lands, the soils are
classified as C and E by the Land Study Bureau's Overall Master Productivity Rating and
designated as Prime by the Department of Agriculture's ALISH Map.
As the proposed use will occur within the footprint of an existing dwelling,existing
cabanas will be used as campsites and the only new construction proposed is to build a
120-square-foot bathhouse, the agricultural potential of the subject property will not be
diminished. Although there are existing fruit trees and pasture areas, the applicants note
that the narrow width and steep incline of the parcel is not conducive to intensive
agricultural uses.Therefore,the proposed use will not adversely affect the preservation and
agricultural use of prime agricultural lands and is not contrary to the objectives sought to
be accomplished by the State Land Use Law and Regulations.
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The proposed use is an unusual and reasonable use of land situated within the
State Land Use Agricultural District. In recognizing that lands within agricultural
districts might not be best suited for agricultural activities and yet classified as such, and
in recognition that certain types of uses might not be strictly agricultural in nature, yet
reasonable in such districts, the legislature has provided for the Special Permit process to
allow certain unusual and reasonable uses within the State Land Use (SLU) Agricultural
district. The subject property is 2 acres in size and situated within the County's
Agricultural-20 acre (A-20a) zoned district.
As previously noted, the proposed bed and breakfast will operate within the
footprint of an existing dwelling, existing cabana structures will be used as campsites, the
only new construction proposed is for a 120-square-foot bathhouse, and the applicants will
maintain agricultural uses on the property. Based on the preceding, the proposed use will
not diminish the potential for any future agricultural activity on the subject property.
Regarding overnight camps in the SLU Agricultural District, comments from the
State Office of Planning and Sustainable Development(OPSD)referenced a 2023 Hawaii
Supreme Court decision, Ho`omoana Foundation v. Land Use Commission,which in their
view prohibited overnight camps in the SLU Agricultural District, even by Special Permit.
The Ho`omoana Foundation decision states that "public and private recreational use of
overnight camps is not permitted in(Land Study Bureau)class A and B land in agricultural
districts." Further consultation with OPSD staff determined that OPSD misinterpreted the
Supreme Court decision, and that an applicant can apply for a Special Permit for overnight
campgrounds on soils designated by the LSB as C through E. Based on the preceding and
given that the subject property's soil is LSB class C and E,the Planning Director feels that
a Special Permit is an appropriate path for approval of the requested use on this specific
property.
Based on the preceding,the subject request is considered an unusual and reasonable
use of the agricultural land.
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In addition to the above listed criteria,the Planning Commission shall also consider
the criteria listed under Section 6-3(b)(5) (A) through (G). In considering the criteria, the
Planning Director recommends the following.
(A) Such use would not be contrary to the objectives sought to be
accomplished by the Land Use Law and Regulations. The subject request is considered
an unusual and reasonable use of the agricultural land. As previously noted, since the
unusually narrow width of the property and steep incline make intensive agricultural uses
unviable, the proposed use will not adversely affect the preservation and agricultural use
of the County's prime agricultural lands.
(B) The desired use shall not adversely affect the surrounding properties.
Properties surrounding the subject property are zoned Agricultural-20 acres (A-20a), with
uses consisting of agriculture, farm dwellings, and vacant lands. The closest residence to
the subject property is located approximately 250 feet to the southeast. The applicants
propose to establish daily quiet hours from 9:00 PM to 8:00 AM and note that a buffer of
thick existing vegetation will help to mitigate effects on neighboring properties.
The Planning Department has received one letter of public testimony opposing the
proposed special permit, stating concerns with zoning code compliance, the proposed
number of guests, limitation of the special permit to the subject property, and site design
considerations. According to Section 25-5-72 (7) of the zoning code, campgrounds are a
permitted use in agricultural zoning, provided that "none of the recreational features are
entirely enclosed in a building." Since the application indicates that existing cabana
structures will accommodate guest campsites, and site inspections have verified that the
structures are not entirely enclosed, the Planning Director feels the proposal meets the
criteria of Section 25-5-72 (7). Conditions of approval will be included to ensure
compliance with Section 25-4-7 (regarding Bed and Breakfast establishments),to limit the
proposed use to a 1-acre permit area on the subject property and to require that the
applicants obtain all necessary building permits, a process that includes site plan review.
Additionally, County records show a complaint was submitted regarding the
subject property, alleging use of unpermitted cabanas as vacation rentals. Following an
investigation, county inspectors issued a warning letter to the applicants, with findings
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noting the presence of 6 unpermitted cabana structures and a dwelling being used as a
hosted vacation rental, uses that were not approved with the existing NUC/STVR. The
letter requested that the applicants cease advertising unpermitted structures as guest
accommodations and recommended that the applicants submit a special permit application
if they intended to request use of the property beyond what was approved with the
NUC/STVR registration. As previously mentioned, a condition of approval will be
included requiring the applicants to complete all building permits for structures used for
the proposed use, including the 4th bedroom in the dwelling, cabana structures,bathhouse,
and related improvements, prior to resuming the proposed use, in addition to meeting all
applicable County, State and Federal laws,rules,regulations, and requirements.
Based on the preceding it is not anticipated that the proposed use will adversely
affect the surrounding properties.
(C) Such use shall not unreasonably burden public agencies to provide
roads and streets, sewers,water, drainage, school improvements, and police and fire
protection. Access to the subject property is from Old Mamalahoa Highway, a County-
owned roadway with a 1-mile section of gravel surface on the section of road fronting the
subject property. Guests will utilize an existing paved driveway to cross the subject
property and access guest parking stalls, and traffic will be limited to registered guests,
therefore,the applicants do not anticipate significantly adverse traffic impacts on the local
roadway system.
Since the subject property is not served by the existing county sewer system, the
project shall follow Department of Health (DOH) regulations for wastewater. The
applicants intend to discontinue use of the cesspool and install two new septic tanks,
meeting with the approval of the Department of Health (DOH), one to service the dwelling
and the other for the bath house.
According to the DOH— Sanitation Branch, if the bed and breakfast portion of the
proposed use offers non-hazardous breakfast foods,then a food establishment permit is not
required. Additionally, DOH notes that according to their sanitation code, a bed and
breakfast establishment is defined as a single-family dwelling, including a single guest
house, in which overnight accommodation and breakfast is included, and the number of
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guests does not exceed 6. If the applicants exceed these parameters,DOH notes that a food
establishment permit is required,which may include construction of a separate commercial
kitchen. A condition of approval will be included requiring compliance with DOH
regulations.
The subject property is not connected to County water and utilizes a 15,000-gallon
water catchment tank to meet residential and agricultural water needs. The applicants
propose to reserve 3,000 gallons of catchment water for fire suppression requirements and
note that additional water storage will be provided if required by the Fire Department.
Regarding potable water,the applicants state that water will be trucked in if necessary and
guests will be provided with bottled water. A condition of approval will be included
requiring the applicants to provide adequate water for fire suppression purposes, meeting
with the approval of the Fire Department.
The property is situated within an area designated as Flood Zone X on the Flood
Insurance Rate Map (FIRM) by FEMA, an area of minimal flood hazard located outside
the 500-year flood plain. Electrical,telephone and emergency services are available to the
subject property.
Based on the preceding, the requested use will not burden public agencies to
provide additional services.
(D) Unusual conditions, trends, and needs have arisen since district
boundaries and regulations were established. In the 1960's and 1970's, the State's
Agricultural District boundaries and regulations were established and subsequently
amended pursuant to HRS Chapter 205. The State Land Use Commission was created in
1961, and interim regulations and temporary district boundaries became effective in 1962.
Subsequently, the regulations and Land Use District Boundaries became effective in
August of 1964.
Although the property and surrounding areas are designated for agricultural uses
by both State and County land use laws, through the issuance of a Special Permit, various
"non-agricultural" services and uses may be allowed. Since the district boundaries were
established, demand has increased for accommodations for guests who seek an alternative
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to resort venues. The proposed use would meet this demand by providing visitors with an
opportunity to experience alternative and rustic overnight accommodations.
(E) The land upon which the proposed use is sought is unsuited for the uses
permitted within the district. Agricultural uses on the subject property consist of fruit
tree propagation and livestock pasturing,primarily contained to the western 1-acre portion
of the property. As previously noted, given the narrow width of the property and steep
incline, the land is unsuited for intensive agricultural uses.
(F) The proposed use will not substantially alter or change the essential
character of the land and the present use. The character of the surrounding lands is
predominantly residential/agricultural in nature, with uses including small-scale
agriculture, dwellings, and undeveloped land. On-site parking will be provided, and the
applicant does not anticipate significantly adverse traffic impacts on the local roadway
system. The present use of the property includes residential and light agricultural uses,both
of which will remain with the proposed use.
Based on the preceding, the proposed request will not substantially change the
essential character of the land and the present use.
(G) The request will not be contrary to the General Plan and official
Community Development Plan and other documents such as Design Plans. The Land
Use Pattern Allocation 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 subject property is designated as Important Agricultural Land(ial)which refers
to land that has better potential for sustained high agricultural yields because of soil type,
climate, topography, or other factors. As previously stated, the proposed use will not
diminish present agricultural use of the subject property.
The approval of the subject request would support the goals and policies of the
Land Use and Economic elements of the General Plan.
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Land Use Element
• Designate and allocate land areas in appropriate proportions and mix and in
keeping with the social, cultural, and physical environments of the County.
• The County shall encourage the development and maintenance of
communities meeting the needs of its residents in balance with the physical
and social environment.
Economic Element
• Economic development and improvements shall be in balance with the
physical and social environments of the island of Hawaii.
• The County shall provide an economic environment which allows new,
expanded, or improved economic opportunities that are compatible with the
County's natural and social environment.
• The County shall strive for diversification of its economy by strengthening
existing industries and attracting new endeavors.
• The County of Hawaii shall encourage the development of a visitor
industry that is in harmony with the social,physical, and economic goals of
the residents of the County.
The proposed request will allow the applicants an opportunity to improve their
quality of life, provide an economic environment which allows this new opportunity and
increase the development of the visitor industry for Hawaii.
Based on the preceding, the proposed request is consistent with the Land Use and
Economic goals and policies of the General Plan.
The Hdmdkua Community Development Plan (HCDP), originally adopted by the
Hawaii County Council as Ordinance 2018-078 in August 2018, does not have policies
that prohibit Special Permits of this type. The applicants' request is in alignment with
several HCDP policies:
Land Use Policy No. 21: To preserve the agricultural character of Hdmdkua and
to reinforce existing protections, the CDP Land Use Guide Map designates agricultural
lands in the Hdmdkua Planning Area to be preserved for agriculture and open space.
Development and construction in the Agricultural designation shall be limited to
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agriculture,related economic infrastructure and cottage industries,renewable energy, open
area recreational uses, and community facilities,unless otherwise permitted by law.
County Action Policy 124: Encourage the development of small "bed and
breakfast" type visitor accommodations, particularly those with heritage, agriculture,
wellness, or similar themes.
Kokua Action 74: Encourage appropriate visitor-related uses and facilities (such
as Bed and Breakfasts).
The proposed bed and breakfast with additional campsite facilities will provide the
applicants with supplemental income and support existing agricultural uses. Given the
preceding,the request is consistent with the goals and objectives of the HCDP.
The proposed use is not contrary to the objectives sought to be accomplished
by Chapter 205A, Hawaii Revised Statutes, relating to Coastal Zone Management
Program. The Special Management Area(SMA)is part of the Coastal Zone Management
Program regulated by the County. The subject property is not proximate to the shoreline
and will not be impacted by coastal hazards or affect beach erosion, coastal ecosystems,
and marine resources. There is no designated public access to the mountain or shoreline
areas over the property and the proposed use will not adversely impact any recreational
resources, including access to and along the shoreline, scenic and open space nor visual
resources. Therefore, the proposed use is not contrary to the objectives of Chapter 205A,
Hawaii Revised Statutes.
The request will not have a significant adverse impact to traditional and
customary Hawaiian Rights. In view of the Hawaii 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 formal archaeological reconnaissance survey,
oral history of kama`dina accounts of the area, historical survey of documentary records,
or botanical study was included in the application.
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The valued cultural, historical, and natural resources found in the area: According
to the applicants,no cultural or historical features are known to exist on the subject property
which has been previously impacted by ground-disturbing activities associated with
residential development and livestock grazing. Vegetation on the property consists of fruit
trees, including mango, soursop, avocado, acai, lemon, tangerine, mandarin, coconut, and
cacao, in addition to non-native grasses such as guinea grass. In addition, animal species
consist of bird species such as dove, Japanese White-eye,house finch and myna as well as
cats, dogs, and feral pigs. The applicants state it is possible that the Hawaiian Hawk,
Hawaiian Owl,and Hawaiian Hoary Bat are present in the surrounding area,however there
are no known endangered species of plants or animals on the subject property.
Possible adverse effect or impairment of valued resources: Native plants and/or
endangered species are unlikely to be impacted by the proposed use since activities will
primarily occur within the existing dwelling and campsites. The only new construction
proposed is for a 120-square-foot bathhouse.
By letter dated March 14, 2024, SHPD notes that no historic properties have been
identified within or near the subject parcel and that the project area has been previously
disturbed, thus no historic properties will be affected by the proposed project.
Feasible actions to protect native Hawaiian rights: To the extent which traditional
and customary native Hawaiian rights are exercised, the proposed action will not affect
traditional Hawaiian rights; therefore,no action is necessary to protect these rights.
Lastly, this recommendation is made with the understanding that the applicant
remains responsible for complying with all other applicable governmental 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 water 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 approval; failure to comply with such requirements will be considered a
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violation that may result in enforcement action by the Planning Department and/or the
affected agencies.
Based on the preceding findings, it is recommended that the request for a
Special Permit to allow the establishment of a 3-bedroom bed and breakfast operation
within an existing dwelling and to legitimize an existing campground be approved by
the Windward Planning Commission. Approval of this request is subject to the
following conditions:
1. The applicant(s), its successor(s), or assign(s) ("Applicant") shall be responsible
for complying with all of the stated conditions of approval.
2. The operation of the proposed use shall be conducted in a manner that is
substantially representative of plans and details as contained within the Special
Permit application received by the Planning Department and representations made
to the Windward Planning Commission. Any substantial expansion or uses beyond
what is represented in these documents shall require an amendment to this permit.
3. Prior to the submittal of plans for a building permit,the Applicant shall secure Final
Plan Approval for the campground and related improvements from the Planning
Director in accordance with Section 25-2-70, Chapter 25 (Zoning Code), Hawaii
County Code. Plans shall identify all existing and/or proposed structure(s), fire
protection measures, driveway access and parking stalls, outdoor lighting (if any),
and other improvements associated with the proposed development.
4. The applicant shall not commence operating the proposed use in a structure on the
property until the building permit is completed for that respective structure and
written evidence is provided to the Planning Department verifying that the permit
is finalized.
5. Prior to commencement of the campground use, the applicant shall secure and
finalize a building permit for the bath house. The Applicant shall install a
wastewater system meeting with the requirements of the State Department of
Health.
6. At no time shall the activities permitted under this Special Permit take place outside
of the one-acre permit area.
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7. The Applicant shall install, construct, and maintain improvements for Fire
Department Access Road (FDAR) access to the permit area and fire suppression
improvements,including but not limited to on-site water storage, as required by the
Fire Department.Upon successful completion of the improvements and prior to the
commencement of the proposed use, the Applicant shall provide the Planning
Department documentation from the Fire Department that the improvements meet
Fire Code standards.
8. The Applicant shall comply with all requirements of Section 25-4-7 of the County
of Hawaii Zoning Code, as amended, relating to Bed and Breakfast
Establishments.
9. The bed and breakfast operation shall be limited to two (2)rentable bedrooms until
a building permit has been secured and finalized for the fourth bedroom. Once this
occurs, the bed and breakfast operation shall be limited to the use of three rentable
(3)bedrooms.
10. All activities shall comply with the requirements of Hawaii County Code, Chapter
10, Erosion and Sedimentary Control.
11. Any construction within the County right-of-way shall comply with the
requirements of Hawaii County Code, Chapter 22, County Streets.
12. The Applicant shall comply with food service operations notification and permit
requirements in the State Department of Health's Administrative Rules, Title 11,
Chapter 50, Food Safety Code, as it pertains to bed and breakfast operations.
13. 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 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
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an archaeological clearance from DLNR-SHPD when it finds that sufficient
mitigation measures have been taken.
14. The Applicant shall comply with all applicable County, State and Federal laws,
rules, regulations, and requirements in connection with the approved use, prior to
its commencement or establishment upon the subject property.
15. Should any of the conditions not be met or substantially complied with in a timely
fashion,the Director may initiate procedures to revoke this Special Permit.
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