HomeMy WebLinkAboutPD RECOMMENDATION REPORT RPastorek SMA May 2024
COUNTY OF HAWAII PLANNING DEPARTMENT
RECOMMENDATION
RYAN &PAUL PASTOREK
SPECIAL MANAGEMENT AREA USE PERMIT APPLICATION
(PL-SMA-2024-000055)
Upon careful review of the applicants' request against the guidelines for granting of a Special
Management Area Use Permit, the Planning Director recommends that this request to
consolidate and resubdivide two subject parcels totaling 10.45-acres within the Special
Management Area and to construct one single-family residence and related improvements on
each 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 constructing two (2) separate
single-family residential structures, one (1) on each parcel, along with related residential,
agricultural, and aquaculture development. The existing properties will be consolidated
and resubdivided into Lot A (P. 26) and Lot B (P. 27). The following describes the
proposed development for each new parcel.
Lot A—development will include a 3,980 square foot(sf) single-family residence,
with three (3) bedrooms, 3.5 bathrooms, a kitchen, dining/living room, covered lanai, and
two (2) outdoor showers. Additional development includes the construction of a 725-sf
garage, a 300-sf storage/animal shelter to support grazing sheep and other farm uses,
fencing to support agricultural activities, additional small farm storage buildings, and
related farm and residential development.
Lot B — development will include a 4,060-sf single-family residence with three
(3) bedrooms, 1.5 bathrooms, a kitchen, living/dining room, lanai, one (1) outdoor
shower, hot-tub, pool, and wooden deck. Additional development includes a 940-sf
storage art studio, a 3,591-sf aquaculture pond to farm taro and tilapia, fencing, and other
farm and residential related development.
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Each of the parcels will include a separate Department of Health (DOH) approved
Individual Wastewater system (IWS) and a potable water well approved by the
Commission on Water Resource Management (CWRM). The applicants submitted a
landscaping plan, which includes 11,300 square feet of landscaping on each parcel, with
native plants (e.g., Hau, Lolu palm, Hapu'u tree fern) integrated into the design.
Construction activities will occur on approximately 0.5 acres of each of the parcels, and
all applicable Best Management Practices (BMPs) such as silt fencing and other erosion
control methods will be employed during construction. The proposed residences will be
setback a minimum of 130 feet from the shoreline.
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
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
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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
cumulative impact of individual developments, each one of which taken in itself might
not have a substantial adverse effect and eliminate planning options.
As the proposed project is located entirely within the State Land Use (SLU)
Conservation District, the applicants submitted a final environmental assessment (FEA)
in accordance with Hawaii Revised Statutes (HRS) Ch. 343-5(a)(2) with the application.
A notice of Finding of No significant Impact (FONSI) for the FEA was published in the
November 23, 2021, issue of the Environmental Notice. Additionally, the applicants are
currently working to obtain a Conservation District Use Permit (CDUP) for the proposed
project via the Department of Land and Natural Resources, Office of Conservation and
Coastal Lands.
The proposed single-family residence constructed on each of the subject parcels
would not represent development of coastal areas, as it is considered a permitted use
within the Conservation District and will not alter or impact coastal resources. The
property has been developed in the past for agricultural purposes and as such is
overgrown with non-native species and presents no native habitat. Studies confirm that
there is no native floral or faunal species present and therefore no rare species or forest
resources would be affected by the proposed project as none were observed. A home on
each parcel, farming, agriculture, and an aquaculture pond conducted in the manner as
represented in the FEA would have no adverse effect on natural beauty and scenic view
planes, historic properties, and fishing access that currently takes place along this
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coastline. The property is not situated over any natural drainage system or water feature
that would flow into the nearby coastal ecosystem and no floodplains are present in the
affected area. In terms of beach protection, the applicants conducted a Coastal Erosion
Study which concluded that a 65.2-foot minimum setback was appropriate considering
the ongoing erosion along the coast. The applicants propose to exceed that setback by
locating construction to more than 130-feet from the top of pali (shoreline) and as such
the proposed development would not affect any coastal resources nor adversely affect
public use and recreation in this area.
The subject parcels are within an established residential community that both
agricultural and residential uses, as well as the fully developed Hawaiian Paradies Park
located north of the project site. Based on the submittal of the Archaeological Inventory
Survey (AIS) and Cultural Impact Assessment (CIA) 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; SHPD has not completed the
review request to date.
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
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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:
Fishing and gathering of ocean resources is a significant practice in the wider
Maku`u area. The shoreline at the end of Maku`u Drive is often used for nearshore
fishing and the collection of ocean resources such as `opihi. This area is located just over
1 mile from the subject property and will not be impacted by the planned aquaculture
pond. There is no safe access to the water along the shoreline fronting the parcel due to
treacherous cliffs. However, lateral shoreline access will be maintained and access across
the property to the shoreline will be available to the public through a designated contact
number.
Historic Resources:
No valuable natural or cultural resources would be committed or lost as the FEA
determined that there were no native ecosystems or valuable flora or fauna that be
adversely affected by the proposed project. An archaeological inventory survey (AIS)
determined that there are two (2) sites (rock walls) but recommended no further action
and therefore there would be no adverse effects to historic sites. Based on the applicants
CIA, there would be no valuable cultural resources and practices such as shoreline
access, fishing, gathering, hunting, or access to ceremonial sites would be adversely
affected by the proposed project.
Scenic and Open Space Resources:
The proposed project site is not visible from the vantage point of any public
highway since there are no views from the nearest highway towards the project site. The
proposed project will not impact scenic or open space resources and the use of a single-
family residence is consistent with the other residential development located along this
section of shoreline. Additionally, as this parcel has been previously impacted by
agricultural purposes for some time, the newly proposed development aims to improve
the overall character of this overgrown and un-managed property. The proposed project
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will not impact existing access along the shoreline and has been designed to be a
significant distance from the shoreline. Due to the significant erosion located along the
sea cliff and the hazards associated with access, the applicants have agreed that no wood,
metal, or rope ladder, platform, steps, stairs, concrete pads, or any other constructed
appurtenance to gain access to the ocean from the top of the pali (sea cliff) will be built
on either property.
Coastal Ecosystems and Marine Resources:
The proposed land uses comply with provisions and guidelines contained in
Chapter 205A, HRS, Coastal Zone Management and SMA. The proposed use would be
consistent with Chapter 205A because it would not affect public access to recreational
areas, historic resources, scenic and open space resources, coastal ecosystems, economic
uses, or coastal hazards, and would not result in any substantial adverse impact on the
surrounding environment. The house sites are set far back from the pali and will not
restrict any fishing access, and they are not located in a flood zone, nor would it impact
drainage areas. The homes will be set back a minimum of 130 feet from the edge of the
pali which will mitigate the hazard associated with predicted sea level rise and the
predicted retreat of the shoreline pali.
Coastal Hazards:
The property is predominantly within Flood Zone X with a small portion of the
shoreline located within Flood Zone VE. Occupied structures are planned to be elevated
above base flood elevations plus freeboard, and properly engineered to withstand wind
and water loads. No work will occur within the 80-foot shoreline setback area which
includes small portions of VE flood zone. The proposed structures will not be subject to
flooding since the dwellings will be built according to flood zone regulations and will be
outside the 80-foot shoreline setback and at elevations above 50-feet above sea level.
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, Puna
Community Development Plan (PCDP), 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
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long-range development of the Island of Hawai'i. The plan was adopted by ordinance in
1989 and revised in 2005. The LUPAG map designates the site as Open (ope) which
allows for"Parks and other recreational areas, historic sites, and open shoreline areas".
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. The proposed construction of a single-family home on each parcel and related
agriculture and aquaculture activities would not have a substantial adverse effect on the
environment and would not diminish the valuable natural resources of the region. The
residence and associated improvements would be compatible with the existing residential
and agricultural uses in the area surrounding the project parcel. No areas of natural
beauty or important viewplanes identified in the County General Plan are visible from the
property or located within a mile of it. An analysis of the potential visual impacts from
the planned project found that no existing views of the shoreline or to the ocean would be
impacted in any way because of the proposed development.
Additionally, the entire property is zoned by the County of Hawaii to be within
the Agricultural District, minimum lot size of 1 acre (A-la); although County zoning
does not apply in the Conservation District per se. No aspect of the project appears to be
inconsistent with the County's Agricultural zoning designation since a"dwelling, single-
family" is a permitted use identified in Section 25-5-70 of the Hawaii County Code
(HCC).
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: In preparation for the proposed project the
applicants conducted an Archaeological Inventory Survey (AIS), a Cultural Impact
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Assessment (CIA), a Coastal Erosion Study, and a Biological Survey, to investigate the
full breadth of the project area's valued resources. The applicants will also be required to
obtain a Conservation District Use Permit (CDUP) which is approved by the Board of
Land and Natural Resources (BLNR). In conformance with review criteria the project
was submitted to the State Historic Preservation Division (SHPD) for a HRS, Ch. 6E-42
review; to date SHPD has not completed their review, however, based on the AIS the
proposed project will have no impact on historic properties.
The valuable cultural, historical, and natural resources found in the area: The
Archaeological Inventory Survey (AIS), conducted in support of the proposed project,
identified two (2) sites, including a previously identified rock wall (SIHP Site 50-10-45-
18419) parallel to Government Beach Road, and a property boundary rock wall (SIHP
Site 50-10-45-31185) along the northwest boundary of Lot A. Both sites hare historic to
modern era agriculture and ranching structures and are significant under Criterion D. No
other valuable cultural resources and practices such as shoreline access, fishing,
gathering, hunting, or access to ceremonial sites were discovered on each of the subject
parcels.
The cultural impact assessment (CIA) found the identified traditional and
customary practices located in the larger Maku`u region, as expressed by the consulted
parties, consisted of fishing, collecting `opihi, and collecting Hala leaves. Based on the
findings of the AIS and CIA, no archaeological, historical, or cultural resources will be
significantly impacted by the proposed action. The rock walls identified on the properties
are in moderate and good condition and will not be altered by the proposed project.
No floral or faunal species listed as threatened, endangered, or proposed for
listing under the federal or state endangered species statutes were identified on the site.
Additionally, no species used for cultural gathering purposes were identified within the
project area.
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
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
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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: The proposed development will
not restrict the use of natural resources along the shoreline. Conditions of approval have
been added to preserve shoreline character and access, as well as siting the development
more than 130-feet from the shoreline. A condition of approval has also been added to
protect any unidentified cultural, historical, and natural resources in the event any are
encountered during construction. To the extent that traditional and customary native
Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian
rights.
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,their successor(s), or assign(s) shall be responsible for complying with all
stated conditions of approval.
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
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regulation, including, but not limited to, a Conservation District Use Permit(CDUP), and
an approved Aquaculture Pond Management Plan from the Department of Land and
Natural Resources.
3) Construction of each 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 March 26, 2024, and representations
made to the Windward Planning Commission.
4) The applicants shall not construct any wood, metal, or rope ladder, platform, steps,
concrete pads, or other constructed appurtenances from the top of the pali (sea cliff) to
access the ocean along the entire length of shoreline of each parcel.
5) Construction of the proposed development, including the aquaculture pond, shall be
completed within five (5)years from the effective date of this permit.
6) 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.
7) All construction and maintenance activities shall comply with Chapter 27, Flood Control
of the Hawaii County Code.
8) All earthwork and grading shall conform to Chapter 10, Erosion and Sedimentation
Control of the Hawaii County Code.
9) All development generated runoff shall be disposed of on site and shall not be directed
toward any adjacent properties.
10) The method of sewage disposal shall meet with the requirements of the Department of
Health.
11) 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.
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12) The applicants will comply with any recommendations or requests from the State Historic
Preservation Division (SHPD) is conformance with the submitted Hawaii Revised
Statutes (HRS) Ch. 6E-42 review request.
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 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 SHPD when it finds that sufficient mitigation measures
have been taken.
14) 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.
15) 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.
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