HomeMy WebLinkAboutPD Recommendation Report (PL-REZ-2024-059)1
RMauiVarietiesInvestmentsIncREZAmend.9.15.2024 COUNTY OF HAWAIʻI PLANNING DEPARTMENT
RECOMMENDATION MAUI VARIETIES INVESTMENTS INC. (FORMERLY JERRY SOUZA) AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 14 54 (PL-REZ-2024-000059/ AMEND REZ 13-000171)
Upon review of the request, the Planning Director recommends that a favorable
recommendation for the requested amendments to Change of Zone Ordinance No. 14 54 be
forwarded to the County Council. Since this recommendation is made without the benefit of
public testimony, the Director reserves the right to modify and/or alter this position based on
additional information presented at the public hearing. This favorable recommendation is based
on the following findings:
The applicant is requesting a 10-year time extension to Condition C
(establishment of a commercial use) and an amendment to condition H (road
improvements) to require completion prior to occupancy rather than within 5 years from
the effective date of Change of Zone Ordinance No. 14 54, which rezoned approximately
1.0 acre of land from Agricultural-1 acre (A-1a) to Village Commercial-20,000 square
feet (CV-20).
The non-performance on timed conditions is the result of conditions that
could not have been foreseen or are beyond the control of the applicants, successors,
or assigns, and that are not the result of their fault or negligence. The applicant
acquired the subject property in 2017 with the intention of constructing a new 10,800-
square foot Ace Hardware store with 36 parking stalls, thereby relocating the business
from its current location in the Pāhoa Marketplace Center. However, design and
construction work was halted when the 2018 Kilauea eruption threatened the Puna
district, which, in addition to the detrimental economic effects of the Covid-19 pandemic,
led the applicant to delay the project. The applicant notes that continued apprehension
from lenders and insurance carriers as a result of both events, in addition to the time
required to complete design plans and construction, contribute to the request for a 10-year
time extension to comply with Condition C.
Based on the reasons provided it is determined that the applicant could not have
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foreseen the conditions which were beyond their control and were not the result of their
fault or negligence and therefore, the Planning Director recommends amending Condition
C to address the preceding.
Granting of the proposed amendments would not be contrary to the General
Plan, Community Development Plan or Zoning Code. 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 proposed request continues to conform to the LUPAG Map, which designates
the property as primarily Medium Density Urban (mdu) and allows for village and
neighborhood commercial and single family and multiple family residential and related
functions (multiple family residential up to 35 units per acre). The time extension request
will facilitate establishment of a commercial zoning and use that is consistent with the
Medium Density Urban form depicted on the LUPAG Map. Therefore, it is determined
that the request is consistent with the LUPAG Map for this area of Puna.
Further, the request continues to be consistent with the following land use goal for
the Puna District, as stated in the General Plan:
Centralization of commercial activities in Pāhoa Town, rather than along the
Pāhoa By-Pass, to serve the residents of Lower Puna shall be encouraged.
Moreover, the request supports the goal of the Puna Community Development
Plan to develop Pāhoa as a regional town center for the lower Puna district by increasing
the designated urban density within the town center and directing commercial and
industrial uses away from the Pāhoa Bypass Road. Although the subject property is
located just outside of the designated Pāhoa Regional Town Center, it is sufficiently close
and, given the foreseeable need to provide more commercial services in this area, it can
reasonably be included in the designation.
Based on the preceding, the granting of the requested amendments would not be
contrary to the General Plan, Community Development Plan or Zoning Code.
Granting of the time extension would not be contrary to the original reasons
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for the granting of the change of zone. The proposed request will not unreasonably
burden public agencies to provide infrastructure and utilities to the property.
Access to the subject property is from Kahakai Boulevard, a 30-foot-wide paved
roadway within a 50-foot right-of-way. At the time of the original rezone application, the
Department of Public Works (DPW) recommended that the applicant provide
improvements to the property’s entire Kahakai Boulevard frontage consisting of, but not
limited to, pavement widening with concrete curb, gutter and sidewalk, drainage
improvements, and any required utility relocation, meeting the requirements of the
Americans with Disabilities Act and the approval of the DPW. According to both DPW
and the Hawai‘i Department of Transportation (HDOT), there is no objection to the
current amendment request. Based on the preceding, the Planning Director agrees with
the applicant’s request to modify Condition H to pair the timing of road improvements to
the issuance of a certificate of occupancy, rather than within a 5-year time frame.
County water is available from an existing 8-inch and 12-inch waterline within
Kahakai Boulevard, fronting the property, via an existing 5/8-inch meter. The
Department of Water Supply (DWS) has no objection to the amendment request;
however, the applicant will need to submit estimated maximum daily water usage
calculations for the proposed project and upon receipt, DWS will make a determination
as to the water commitment deposit amount and prevailing facilities charge. If the
existing meter cannot accommodate the additional estimated demand, a larger or
additional meter will need to be installed, meeting with the approval of DWS. The
applicant provided comments noting that the water calculations and required
improvements, if necessary, will be done in conjunction with the plan approval and
building permitting process.
To facilitate DWS review of the required water usage calculations, the Planning
Director is recommending amending Condition D to specify that updated water
calculations shall be submitted within 180 days of the effective date of amended
ordinance and to address potential improvements as noted by DWS.
There is no municipal sewer system in the area, thus an individual wastewater
system meeting with the approval of the State Department of Health will be utilized.
There are no municipal solid waste collection services in the County. Solid waste
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will be disposed of at an authorized landfill by commercial haulers or by the landowner.
The request is not contrary to Chapter 205A, Hawaiʻi Revised Statutes,
relating to Coastal Zone Management. The project site is located approximately 5.5
miles from the nearest shoreline and is not situated within the SMA. Thus, the property
will not be affected by coastal hazards and beach erosion. There are no identified
recreational resources, historic resources, public access to the shoreline or mountain
areas, scenic and open space preserves, coastal ecosystems, or marine resources on the
subject property.
In view of the Hawaiʻi State Supreme Court’s PASH and “Ka Paʻakai O Kaʻaina”
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 professional archaeological and cultural
study was conducted as the subject property has been cleared and impacted by residential
development. According to comments from the State Department of Land and Natural
Resources, State Historic Preservation Division (SHPD), the project area has been
impacted by ground-disturbing activities, no archaeological inventory survey has been
conducted and no historic properties have been identified previously in the project area,
therefore the determination is “no historic properties affected.”
The valued cultural, historical, and natural resources found in the rezoning area:
As mentioned above, SHPD determined that no historic properties would be affected and
the property has been cleared and impacted by residential development.
There are no known features of cultural importance, there is no known history of
traditional practices associated with the property, nor is there any record of a designated
public access to the shoreline or mountain areas that traverses the property.
Possible adverse effect or impairment of valued resources: There is no evidence
of any possible adverse effects or impairments will occur to any valued resources.
Feasible actions to protect native Hawaiian rights: There is no evidence of any
valued cultural, historical, and/or natural resources found on the site, thus 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
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protect these rights. A condition of approval has been updated to address requirements for
inadvertent historic site finds during the development process.
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 proposed use, prior to its commencement or establishment upon
the subject properties. Additional governmental requirements may include the issuance of
building permits, 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 violation that may result in enforcement
action by the Planning Department and/or the affected agencies.
Based on the preceding findings, the Planning Director recommends a favorable
recommendation for a 10-year time extension to Condition C (establishment of a
commercial use) and an amendment to condition H (road improvements) be forwarded to
the County Council. The accompanying draft bill to amend Ordinance No. 14 54 is provided for
your consideration. Please note the proposed conditions of approval attached to the draft bill,
including updates to conditions to reflect current standard condition language. Material to be
deleted is bracketed and struck through; new material is underscored.
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COUNTY OF HAWAI‘I
STATE OF HAWAI‘I
BILL NO.
ORDINANCE NO.
(PLANNING DEPARTMENT)
AN ORDINANCE AMENDING ORDINANCE NO. 14 54 WHICH AMENDED SECTION 25-8-26 (PĀHOA ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAIʻI COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE
DISTRICT CLASSIFICATION FROM AGRICULTURAL- 1 ACRE (A-1a) TO VILLAGE
COMMERCIAL-20,000 SQUARE FEET (CV-20) AT KEONEPOKO HOMESTEAD LOTS, PUNA, HAWAIʻI, COVERED BY TAX MAP KEY: 1-5-007:061.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI‘I:
SECTION 1. Section 2 of Ordinance No. 14 54 is amended as follows:
“SECTION 2. In accordance with Section 25-2-44, Hawai‘i County Code 1983 (2016
Edition, as amended), the County Council finds the following conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety, and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of
the proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
INSERT CONDITIONS ”
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SECTION 2. Material to be deleted is bracketed and stricken. New material is
underscored.
SECTION 3. Severability. If any provision of this ordinance, or the application thereof
to any person or circumstance, is held invalid, the invalidity does not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable.
SECTION 4. This ordinance shall take effect upon its approval.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAI‘I
, Hawai‘i Date of Introduction: Date of 1st Reading: Date of 2nd Reading:
Effective Date:
CMauiVarietiesInvestmentsIncREZAmend.9.10.24 MAUI VARIETIES INVESTMENTS INC. (FORMERLY JERRY SOUZA) AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 14 54 (PL-REZ-2024-000059/ AMEND REZ 13-000171) CONDITIONS OF APPROVAL A. The applicant, successors or assigns shall be responsible for complying with all of the
stated conditions of approval.
B. Site layout and building design for any new structure within the proposed commercial
development shall adhere to any design guidelines established for Pāhoa Village when
plans are submitted for Final Plan Approval.
C. The commercial use of the property shall be established (certificate of occupancy) within
[five (5)]ten (10) years from the effective date of this amended ordinance. Prior to
construction, the applicant shall secure Final Plan Approval for the development from the
Planning Director in accordance with Section 25-2-70, Chapter 25 (Zoning Code),
Hawai‘i County Code. Plans shall identify all existing and/or proposed structures, fire
protection measures, paved driveway access and paved parking stalls associated with the
proposed development. Landscaping shall be indicated on the plans for the purpose of
mitigating any adverse noise or visual impacts to adjacent properties in accordance with
the requirements of Planning Department Rule No. 17 (Landscaping Requirements) and
Chapter 25 (Zoning Code), Hawai‘i County Code.
D. The applicant shall submit estimated maximum daily water usage calculations prepared
by a professional engineer licensed in the State of Hawai‘i, and a water commitment
deposit in accordance with the “Water Commitment Guidelines Policy” to the
Department of Water Supply (DWS) within 180 days from the effective date of this
amended ordinance. The water usage calculations should include the total estimated
maximum daily water usage in gallons per day and the estimated peak flow in gallons per
minute. Upon receipt of the water usage calculations, DWS will make a determination as
to the water commitment deposit amount and prevailing facilities charge to be paid, if
necessary. If the existing meter cannot accommodate the additional estimated demand, a
larger or additional meter shall be installed and remittance of the prevailing facilities
charge, which is subject to change, will be required[Should the estimated water usage
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exceed the current water availability, extensive improvement will be required, including,
but not limited to additional source, storage and booster pump facilities].
E. The applicant shall install a reduced pressure type backflow prevention assembly on
private property within five (5) feet of any water meter(s) serving the proposed
development, which must be inspected and approved by the Department of Water Supply
before water service can be activated.
F. The applicant shall be responsible for the relocation and adjustment of the Department of
Water Supply’s affected water system facilities, including the installation of a fire
hydrant fronting the subject property, should they be necessary.
G. A five (5) foot wide future road widening strip along the property’s frontage on Kahakai
Boulevard shall be subdivided, improved and dedicated, at no cost to the County, to
facilitate the widening and improvement of Kahakai Boulevard along the subject
property’s frontage as detailed in Condition H.
H. Prior to issuance of a certificate of occupancy, Tthe applicant shall provide improvements
to the property’s frontage along Kahakai Boulevard consisting of, but not limited to,
pavement widening with concrete curb, gutter and sidewalk, drainage improvements and
any required utility relocation, meeting the requirements of the Americans with
Disabilities Act and the approval of the Department of Public Works[, within five (5)
years from the effective date of this ordinance].
I. Should the applicant submit plans to develop a land use beyond that proposed in the
application, and 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 (TIAR) shall be submitted for review and approval by the Department of Public
Works and Department of Transportation prior to Final Plan Approval. When required by
the Department of Public Works, the applicants shall implement, at no cost to the County,
any transportation improvements deemed necessary by the Department of Public Works.
J. The driveway connection to Kahakai Boulevard shall conform to Chapter 22, County
Streets, of the Hawai‘i County Code.
K. Install street lights and traffic control devices as may be required by the Traffic Division,
Department of Public Works. The applicant shall be responsible for the design, purchase,
and installation of such devices.
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L. Any new construction, exterior renovation of existing structures and signage shall
conform to any design guidelines established by the Pāhoa Village Design Guidelines.
M. All development-generated runoff shall be disposed of on-site and shall not be directed
toward any adjacent properties.
N. All earthwork activity, including grading and grubbing, shall conform to Chapter 10,
Erosion and Sedimentation Control, of the Hawai‘i County Code.
O. The method of sewage disposal shall meet with the requirements of the Department of
Health.
P. 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 State
Historic Preservation Division at (808) 933-7651[Should any remains of historic sites,
such as rock walls, terraces, platforms, marine shell concentrations or human burials be
encountered, work in the immediate area shall cease and the Department of Land and
Natural Resources - State Historic Preservation Division (DLNR-SHPD) shall be
immediately notified]. Subsequent work shall proceed upon an archaeological clearance
from the DLNR-SHPD when it finds that sufficient mitigation measures have been taken.
Q. If residential units are developed on the subject property, the applicant, successors or
assigns shall make its fair share contribution to mitigate the potential regional impacts of
the development with respect to parks and recreation, fire, police, solid waste disposal
facilities and roads. The fair share contribution shall become due and payable prior to
receipt of Final Plan Approval. The fair share contribution for each lot shall be based on
the actual number of residential units developed. The fair share contribution in a form of
cash, land, facilities or any combination thereof shall be determined by the County
Council. The fair share contribution may be adjusted annually beginning three years after
the effective date of this ordinance, based on the percentage change in the Honolulu
Consumer Price Index (HCPI). The fair share contribution shall have a maximum
combined value of $[8,394.57]11,018.76 per multiple family residential unit
($[13,081.99]17,171.49 per single family residential unit). The total amount shall be
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determined by the actual number of units according to the calculation and payment
provisions set forth in this condition. The fair share contribution per multiple family
residential unit (single family residential units) shall be allocated as follows:
• $[4,140.80]5,435.24 per multiple family residential unit ($[6,308.37]8,280.39 per
single family residential unit) to the County to support park and recreational
improvements and facilities;
$[130.87]171.78 per multiple family residential unit ($[304.32]399.45 per single
family residential unit) to the County to support police facilities;
$[402.57]528.42 per multiple family residential unit ($[601.06]788.96 per single
family residential unit) to the County to support fire facilities;
$[179.43]235.52 per multiple family residential unit ($[263.15]345.41 per single
family residential unit) to the County to support solid waste facilities; and
$[3,540.90]4,647.80 per multiple family residential unit ($[5,605.09]7,357.27 per
single family residential unit) to the County to support road and traffic
improvements.
In lieu of paying the fair share contribution, the applicant, successors or assigns may
contribute land and/or construct improvements/facilities related to parks and recreation,
fire, police, solid waste disposal facilities and roads within the region impacted by the
proposed development, subject to the review and recommendation of the Planning
Director, upon consultation with the appropriate agencies and approval of the County
Council pursuant to Section 2-162.1(a) of Hawai‘i County Code.
R. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for
imposition of exactions or the assessment of impact fees, conditions included herein shall
be credited towards the requirements of the Unified Impact Fees Ordinance.
S. To ensure that the goals and policies of the Housing Element of the General Plan are
implemented, the applicant shall comply with the requirements of Chapter 11, Article 1,
Hawai‘i County Code relating to the Affordable Housing Policy. This requirement shall
be approved by the Administrator of the Office of Housing and Community Development
prior to Final Plan Approval.
T. The applicant, successors or assigns shall comply with all applicable County, State and
Federal laws, rules, regulations and requirements, including the Department of Health.
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U. An initial extension of time for the performance of conditions within this amended
ordinance may be requested in accordance with Section 25-2-44, subsections (c) and (d),
of the Hawaiʻi County Code.[An initial extension of time for the performance of
conditions within the ordinance, with the exception of Condition H, may be granted by
the Planning Director upon the following circumstances:
1. The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicant, successors or assigns,
and that are not the result of their fault or negligence.
2. Granting of the time extension would not be contrary to the General Plan
or Zoning Code.
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).
5. If the applicant should require an additional extension of time, the
Planning Director shall submit the applicant’s request to the County
Council for appropriate action.]
V. If the applicant fails to fulfill any conditions of the zone change within the specified time
limitations, the Planning Director or County Council may initiate the process for
enactment of an ordinance reverting the affected property back to its original zoning
designation or a more appropriate zoning designation in accordance with Section 25-2-43
of the Hawaiʻi County Code[Should any of the conditions not be met or substantially
complied with in a timely fashion, the Planning Director may initiate rezoning of the
subject area to its original or more appropriate designation].
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AMENDMENT TO THE ZONING CODE
AMENDING SECTION 25-8-26 (PAHOA ZONE MAP) ARTICLE 8,
CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2005 EDITION),
BY CHANGING THE DISTRICT CLASSIFICATION FROM
AGRICULTURAL - 1 ACRES (A-1 a)TO VILLAGE COMMERCIAL - 20,000 SQFT (CV-20)
AT KEONEPOKO HOMESTEAD LOTS, PUNA, HAWAII
MAP PREPARED BY:
TMK:(3)1-5-007:061 COUNTY OF HAWAII, PLANNING DEPARTMENT DATE:Nov.6,2013
EXHIBIT"A" Jerry and Erlinda Souza
Map:1342FOR REFERENCE ONLY