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HomeMy WebLinkAboutPC Proposed FOF, COL, and D&O Tieli Wang (PL-SMA-2024-000058) BEFORE THE COUNTY OF HAWAI`I WINDWARD PLANNING COMMISSION In the Matter of Special Management Area Use Permit No. PL-SMA-2024-000058 TIELI WANG, COUNTY OF HAWAI`I WINDWARD Application for Special Management PLANNING COMMISSION'S PROPOSED Area Permit Application No. FINDINGS OF FACT, CONCLUSIONS OF PL-SMA-2024-000058 LAW, AND DECISION AND ORDER FOR SPECIAL MANAGEMENT AREA USE PERMIT APPLICATION NO. TMKS: (3) 2-1-014:044, 045, 046; PL-SMA-2024-000058 Keaukaha, South Hilo, Hawaii COUNTY OF HAWAI`I WINDWARD PLANNING COMMISSION'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,AND DECISION AND ORDER FOR SPECIAL MANAGEMENT AREA USE PERMIT APPLICATION NO. PL-SMA-2024-000058 TIELI WANG (hereinafter"Wang" or"Applicant"), submitted an Application for a Special Management Area Use Permit to construct three (3), three-story, single-family dwellings and related improvements; one single-family dwelling will be constructed on each parcel. The three (3)parcels total 24,250 square feet and are located within the Special Management Area. The subject properties are located at the end of Machida Lane, approximately 300 feet east of Onekahakaha Road, Keaukaha, South Hilo, Hawaii, TMKS (3) 2-1-014:044, 045 and 046. The Windward Planning Commission of the County of Hawaii (hereinafter, the "Commission"), having considered the entire record, and having heard and considered the evidence, and arguments of representatives and counsel presented at the hearings, hereby makes the following Findings of Fact, Conclusions of Law, and Decision and Order. FINDINGS OF FACT A. PROCEDURAL MATTERS 1. On May 8, 2024, the applicant filed an application with the County of Hawaii Planning Department(hereinafter"Department"). 2. On June 8, 2024, the Department sent a letter to the Applicant indicating that their application filed on May 8, 2024 was accepted for processing on May 31, 2024. 3. The Applicant notified the Department that the first notice of application filing was sent to surrounding property owners on May 9, 2024. 4. The Applicant notified the Department that on May 16, 2024 signage was posted on the property. 5. The Department informed the Applicant that a hearing before the Windward Planning Commission had been set for August 1, 2024. 6. The Applicant notified the Department that the second notice of application filing was sent to surrounding property owners on July 11, 2024. 7. By memorandum dated June 8, 2024 with copies of the Application enclosed, the Department solicited comments on the Application to various County, State, and Federal agencies. The agencies included were the Department of Public Works- Engineering Division, Building Division& Traffic Division, the Department of Water Supply, the Fire Department, the Department of Environmental Management, the Police Department, the Department of Parks and Recreation, the Hawai`i State Department of Land and Natural Resources, the Hawaii State Department of Health and the Hawaii State Office of Planning and Sustainable Development. 8. On July 19, 2024, the Department sent a background report and the Planning Director's recommendation on the Application to the Windward Planning Commission for their 2 review at the September 5, 2024 hearing on the matter. The background report included comments received from the following agencies: Police Department, State Health Department, Department of Environmental Management, and Department of Public Works- Engineering Division. Planning Director Zendo Kern recommended the Special Management Area Use Permit PL-SMA-2024-000058 be approved with conditions. 9. On August 30, 2024, the Department received comments on the Application from the Department of Land and Natural Resources- State Historic Preservation Division requesting an archaeological field inspection be conducted of the project area by a qualified archaeologist to determine if undocumented historic properties are present and, if any are identified, to complete an archaeological inventory survey with the report from that survey submitted to the State Historic Preservation Division prior to project initiation. The remainder of the agencies had no comment or no response. 10. On September 5, 2024, the Commission held a hearing on the Application in the Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii. 11. At the September 5, 2024 hearing, Val Colter, as a representative of the Applicant, presented oral testimony and answered questions from the Commission. 12. On September 5, 2024 the Commission heard public testimony largely in opposition to the proposed development from Ainaaloha Ioane, Skye Czember, Louisa Lee, Mapuana Waipa, David Owens, Denise Colgrove, Patrick Kahawaiolaa, Laura Acasio and Tara Roj as. 13. On September 5, 2024, Windward Planning Commissioner Kusch moved that the application for Special Management Area Use Permit Docket No. PL-SMA-2024-000058 be approved based on the Planning Director's recommendations. 3 14. On September 5, 2024, Commissioner Kusch amended the motion to include the request by the State Historic Preservation Division for an archaeological field inspection. 15. On September 5, 2024, the motion by Commissioner Kusch to approve the Special Management Area Use Permit failed as no other Commissioner seconded his motion. 16. On September 5, 2024, Windward Planning Commission Vice Chair Daniele then moved that the application for Special Management Area Use Permit Docket No. PL-SMA- 2024-000058 be denied based on the following reasons: 1) septic issues associated with the development; 2) the importance of tidepools; 3) the fragility of anchialine pools in the area; and 4) limited access via the private road to the subject property and traffic considerations for neighboring properties. Commissioner De Luz seconded the motion. 17. The Windward Planning Commission voted unanimously, 5 — 0, to approve the motion to deny the application. B. PROPOSED PROJECT 18. The applicant requested a Special Management Area Use Permit to construct three (3), three-story single family dwellings and related improvements on each of the three subject parcels. For Parcel 44, the Applicant proposed a three-story single-family dwelling to include five(5)bedrooms, and twelve (12)bathrooms with a total living area of 6,008 square feet(sf), with 352-square feet for the balcony, and 3,004 square feet for parking. Per the applicant, the space in this dwelling will be reserved for the owner's family use and may also include short- and long-term rental units. For parcels 45 and 46, the applicant proposed the same design for each parcel with the intention of using both parcels for short or long-term rental units. The design for these parcels involved building a three-story dwelling on each parcel with the first floor set aside for parking (2,280 square feet for parking), and the second and third floor to be 4 used for the 4,560 square feet of living area and 240 square feet of balcony area. Each of these two dwellings would also be designed with five (5)bedrooms and twelve (12)bathrooms. 19. The construction of the three residences was presented as being similar, with all structures to be built on concrete slabs with concrete support walls at first floor and the remainder of the construction to be standard wood framing with metal roofing. Height at roof midpoints will be approximately thirty-five (35)feet and will not exceed a maximum of forty- five(45)feet. 20. The Applicant's design included parcel setbacks of twenty (20)feet for the front and rear setbacks and twelve (12) feet for the side setbacks as required for three stories. 21. The Applicant proposed a separate septic system on each parcel for each residence to be installed as approved by the Department of Health. 22. County water is available to the site for potable water use. C. DESCRIPTION OF PROPERTY AND SURROUNDING AREAS 23. Subject Property: The three (3) subject parcels are located at the end of Machida Lane, and total approximately 24,250 square feet in size. They are generally flat and overgrown with primarily non-native trees and grasses as was determined via previous Special Management Area approval for land clearing. 24. Parcel 44, located on the makai side of Machida Lane, borders Onekahakaha Beach Park. 25. Parcels 45 and 46 are mauka of Parcel 44 and are approximately three hundred and eighty (380) feet from the shoreline. 26. Surrounding Land Zoning/Uses: The subject parcels are part of Subdivision 05- 000165, created in 2005 and are entirely within the resort(V-.75) zoning district. This property 5 and the surrounding properties of the subdivision are developed with single family residences and related development, with the Onekahakaha Beach Park (within the open zoning district) bordering the subdivision to the north. The park is fully developed and heavily utilized by the public. Similarly resort zoned parcels to the east are undeveloped and overgrown. 27. Flood Insurance Rate Map (FIRM): The subject property is within Flood Zone AE which is defined as the area that will be inundated by a flood event having a 1-percent chance of being equaled or exceeded in any given year. Based on a review of the SLR-Xa sea level rise viewer, the proposed project will not be within the 3.2-foot sea level rise exposure area, nor the 3.2-foot passive flooding zone. 28. Flora/Fauna Resources: No biotic surveys were conducted for the subject parcel; however, the applicant informed the Department that they do not believe that the site contains any rare or endangered floral and faunal resources. The parcel has been undeveloped and no rare or threatened species have been noted. Site vegetation consists of common, non-native plants, shrubs, and grasses. The site is not known to be a habitat for any rare or endangered wildlife other than could be found near the shoreline. The residential/developed nature of the surrounding area would make it less likely to find other protected and endangered species within the project area, however, the nearby park may provide more sustainable habitats for shoreline flora and fauna. 29. Archaeological Resources: The applicant did not conduct any archaeological survey of the parcel and submitted in their application that, due to SMA Minor Permit No. PL- SMM-2021-000011 issued on December 13, 2021 which allowed clearing of underbrush and other vegetation on each of the three parcels, the existence of any surface or subsurface archaeological remains is extremely unlikely. The Department of Land and Natural Resources, 6 State Historic Preservation Division (SHPD)recommended a field investigation with a further archaeological assessment to be required should the field investigation result in findings. 30. Cultural/Historic Resources: All proposed improvements will be located more than 250 feet from the shoreline. The applicant suggested there would be no impacts to traditional shoreline uses or the shoreline park as a result of this development. It is not known whether the subject site or immediately surrounding area was ever used for traditional and customary rights by native Hawaiians. The project area has been previously cleared for development and other land use activities and much of the surrounding area has been used extensively for residential use for many years. 31. Recreational Resources: The closest subject parcel, Parcel 44, is located approximately 250 feet from the shoreline, and abuts the accessible Onekahakaha Beach park which permits fishing, gathering, and swimming. There is no public access through the subdivision and the proposed project will not impact or affect access to the beach park.which permits fishing, gathering, and swimming. There is no public access through the subdivision and the proposed project will not impact or affect access to the beach park. 32. Scenic and Open Space Resources: There are existing homes along the makai side of Machida Lane and open space resources include the park. 33. Public Access: The requested action will not impact public access to the ocean or recreational resources that are enjoyed in the park. D. STATE AND COUNTY PLANS 34. The State Land Use Designation is Urban. 35. The County of Hawaii General Plan Land Use Pattern Allocation Guide Map (LUPAG MAP) is classified as Resort(res). 7 36. The County of Hawaii zoning for this property is Resort-hotel 7,500 sf(V-.75). 37. Hilo Community Development Plan (HCDP). The Hilo CDP was adopted by Resolution No. 1 on May 21, 1975. 38. The project is located within the Special Management Area and therefore, the proposed development is subject to Special Management Area review as part of the Coastal Zone Management Area. E. PUBLIC SERVICE AND FACILITIES 39. Access: Access to the property is from Machida Lane, which is accessed from Onekahakaha Rd. The existing roadway is a slightly improved private road. 40. Water: The applicant states water is available to the site via existing systems; Planning Department staff noted that the Department of Water Supply did not respond to comments on the proposed project. 41. Wastewater: Each single-family dwelling will utilize a Department of Health approved Individual Wastewater System (IWS). 42. Other Essential Utilities and Services: All other utilities, including electrical, telephone, and cable services are available to the site. The Applicant is responsible for hauling all domestically generated trash to any available County Transfer Station. 43. Any conclusion of law hereinafter determined to be a finding of fact shall be deemed herein as a finding of fact. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the Commission makes the following Conclusions of Law, including mixed Findings of Fact and Conclusions of Law: 8 A. Any finding of fact hereafter determined to be a conclusion of law shall be deemed herein as a conclusion of law. Any conclusion of law determined to be a finding of fact shall be deemed herein as a finding of fact. B. The Commission has jurisdiction over this Special Management Area Use Permit application pursuant to Chapter 25 (Zoning Code) of the Hawaii County Code 1983, (2016 edition), as amended. C. In considering a Special Management Area Use Permit for any proposed use, Rule 9 of the Planning Commission relating to Special Management Area Use Permits requires that such action conform to guidelines identified in Section 205A-26 of the Hawaii Revised Statutes, as amended. D. Special controls on developments within an area along the shoreline are necessary to avoid permanent losses of valuable resources and the foreclosure of management options, §205A-21 Hawai`i Revised Statutes, as amended. E. The State policy is to preserve,protect, and where possible, to restore the natural resources of the coastal zone of Hawaii, §205A-21 Hawai`i Revised Statutes, as amended. F. The granting of the proposed use shall be subject to reasonable terms and conditions to ensure that provisions are made for solid and liquid waste treatment, disposition, and management which will minimize adverse effects upon special management area resources, §205A-26(1)(C) Hawaii Revised Statutes, as amended. G. Granting of the proposed use shall be subject to reasonable terms and conditions to ensure that alterations to existing land forms, except crops, and construction of structures shall cause minimum adverse effects to water resources and scenic and recreational amenities, §205A- 26(1)(D) Hawaii Revised Statutes, as amended. 9 H. The proposed use shall not have any substantial 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 interests. 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 the elimination of planning options, §205A-26(2)(A) Hawaii Revised Statutes, as amended. I. The proposed use shall be consistent with the objectives,policies and special management area guidelines of this chapter and any guidelines enacted by the legislature, Section 205 A-26(2)(B) of the Hawaii Revised Statutes, as amended. J. The proposed use shall be consistent with the general purpose of the zoning district, the intent and purpose of the Zoning Code and the County General Plan,pursuant to Section 205 A-26(2)(C) of the Hawaii Revised Statutes, as amended. K. The Commission should seek to minimize, where reasonable any development which would adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats or potential or existing agricultural uses of land,pursuant to Section 205 A-26(3)(E) of the Hawaii Revised Statutes, as amended. L. At the September 5, 2024 hearing, the Commission voted 5-0 to deny the Applicant's application for a Special Management Use Permit. The Commission's denial is based on the following mixed findings of fact and conclusions of law. M. The State Land Use Designation is Urban. 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 10 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 County of Hawaii General Plan designation for this property is Resort. N. The Hawaii County General Plan discusses the importance of protecting native species in order to maintain an ecological balance for the well-being of the island, and to avoid possible impacts on these species that are protected under the Endangered Species Act, which is administered by the USFWS. The Applicant failed to identify specific mitigation measures which would avoid ecological impacts and other impacts on protected species resulting from solid and liquid waste treatment, disposition and management associated with their proposed use of the three parcels. Based on the above, the proposed use is inconsistent with the County of Hawaii General Plan. O. The Applicant's proposal to provide a separate Individual Wastewater System for each of the three dwellings, each dwelling designed as a residence with only five (5)bedrooms but twelve (12) bathrooms, is insufficient to address the solid and liquid waste treatment, disposition and management required by §205A-26(1)(C) Hawaii Revised Statutes, as amended, which requires provisions to minimize adverse effects upon special management area resources. P. The proposed use is inconsistent with §205A-26(1)(D) Hawaii Revised Statutes, as amended, and threatens adverse effects to water resources and scenic and recreational amenities, specifically the tidepools and anchialine pools in the area. Q. The proposed use is inconsistent with §205A-26(2)(A) Hawaii Revised Statutes, as amended, and the Applicant fails to demonstrate how this project will not have any substantial adverse environmental or ecological effect. R. The proposed use has potential public health and safety implications given the 11 potential number of residents for the three dwellings with 15 bedrooms and 36 bathrooms. In the event of an evacuation, Machida Lane is already a small road with limited capacity. If the proposed use's substantial adverse effects were outweighed by compelling public interest, the Commission could consider these factors. However, the proposed use poses additional potential public health and safety concerns. §205A-26(2)(A) Hawaii Revised Statutes, as amended. S. The cumulative environmental and ecological impact of the proposed use is inconsistent with §205A-26(2)(A) Hawaii Revised Statutes, as amended. T. The proposed use is inconsistent with the objectives,policies and special management area guidelines of this chapter and any guidelines enacted by the legislature, Section 205 A-26(2)(B) of the Hawaii Revised Statutes, as amended. U. The proposed use is inconsistent with the general purpose of the zoning district, the intent and purpose of the Zoning Code and the County General Plan,pursuant to Section 205 A-26(2)(C) of the Hawaii Revised Statutes, as amended. V. The proposed use would adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats,pursuant to Section 205 A-26(3)(E) of the Hawaii Revised Statutes, as amended. W. The proposed use is inconsistent with the State policy to preserve,protect, and where possible, restore the natural resources of the coastal zone of Hawaii, §205A-21 Hawai`i Revised Statutes, as amended. The Applicant proposed to develop three parcels, one of which borders Onekahakaha Beach Park, without any mitigation of the impact of this development on the community uses and enjoyment of that beach park or mitigation of the proposed use on water resources and scenic and recreational amenities. X. The proposed use is inconsistent with the objectives,policies and guidelines of 12 the Coastal Zone Management Act, §205A Hawaii Revised Statutes, as amended. DECISION AND ORDER Based on the above Findings of Fact and Conclusions of Law, and the evidence presented at and in connection with the hearing of September 5, 2024, IT IS HEREBY DECIDED AND ORDERED BY THE WINDWARD PLANNING COMMISSION that the Special Management Area Use Permit Application No PL-SMA-2024- 000058 is hereby DENIED. DATED: Hilo, Hawaii, , 2024. By Louis Daniele, Vice Chairman& Interim Chair Windward Planning Commission County of Hawaii 13