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HomeMy WebLinkAboutWPC Porposed FOF, COL, and D&O (PL-SMA-2024-060) BEFORE THE COUNTY OF HAWAII WINDWARD PLANNING COMMISSION In the Matter of SPECIAL MANAGEMENT AREA PERMIT APPL. NO. PL-SMA-2024-000060 NIEL JAYASINGHE, COUNTY OF HAWAII WINDWARD Application for Special Management PLANNING COMMISSION'S PROPOSED Area Permit Application No. FINDINGS OF FACT, CONCLUSIONS OF PL-SMA-2024-000060 LAW, AND DECISION AND ORDER FOR SPECIAL MANAGEMENT AREA USE PERMIT APPLICATION NO. TMKS: (3) 2-1-014:002; Keaukaha, PL-SMA-2024-000060 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 PERMIT APPLICATION NO.PL-SMA-2024-000060 NIEL JAYASINGHE (hereinafter, "Jayasinghe" or"Applicant") submitted an application for a Special Management Area Permit(hereinafter, "SMA Permit")pursuant to Chapter 205A, Hawai'i Revised Statutes (hereinafter, "HRS") and Rule 9 of the County of Hawaii Planning Commission Rules of Practice and Procedure(hereinafter, "Commission Rules")to construct a four-story, 41,600 square-foot apartment building containing seventeen rental units and related improvements on a 0.445-acre parcel within the Special Management Area on a parcel located on the north side of Kalaniana`ole Street, approximately 350 feet southwest from its intersection with Onekahakaha Road, Keaukaha, South Hilo, Hawaii, TMK: (3) 2-1-014:002 (hereinafter, the "Property" or "subject property"). The Windward Planning Commission (hereinafter, "Commission"), having considered the entire record, and having heard and considered the evidence, and arguments of counsel presented at the hearings, hereby makes the following Findings of Fact, Conclusions of Law, and Decision and Order: FINDINGS OF FACT If it should later be determined that any of these findings of fact should be properly deemed conclusions of law, they shall be deemed as such. A. PROCEDURAL MATTERS 1. On May 28, 2024, the applicant filed an application with the County of Hawai`i Planning Department (hereinafter"Department"). 2. On June 8, 2024, the Department sent a letter to the Applicant indicating that their application was accepted for processing on May 28, 2024. 3. 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 Hawaii State Department of Land and Natural Resources, the Hawaii State Department of Health and the Hawai`i State Office of Planning and Sustainable Development. 4. The Applicant notified the Department that the first notice of application filing was sent to surrounding property owners on June 18, 2024. 5. The Applicant notified the Department that on June 18, 2024 signage was posted on the property. 6. On July 5, 2024, the Department informed the Applicant that a hearing before the Windward Planning Commission had been set for August 1, 2024. 2 7. The Applicant notified the Department that the second notice of application filing was sent to surrounding property owners on July 12, 2024. 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 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 8, 2024, the Department notified the Applicant that the August 1, 2024 meeting was cancelled due to lack of quorum and that a new hearing was scheduled for September 5, 2024. 10. On August 8, 2024, the Department notified surrounding property owners that the August 1, 2024 meeting was cancelled due to lack of quorum and that a new hearing was scheduled for September 5, 2024. 11. On August 12, 2024 the Department of Water Supply submitted a memo to the Commission regarding this application. 12. On August 20, 2024 the State Historic Preservation Division submitted a memo to the Commission regarding this application. 13. On September 5, 2024, the Commission held a hearing on the Application in the Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii. 3 14. At the September 5, 2024 hearing, John Pipan of Land Planning Hawai`i LLC, as a representative of the Applicant, presented oral testimony and answered questions from the Commission. 15. At the September 5, 2024 hearing, the Commission heard public testimony largely in opposition to the proposed development from Ainaaloha Inane, Giovani Kekaaoha,Lehuanani Waipa AhNee, Louisa Lee, Mapuana Waipa, Patrick Kahawaiola, Laura Acasio and Tara Rojas. 16. At the September 5, 2024 hearing after public testimony was closed,Windward Planning Commission Vice Chair Daniele moved that the application for Special Management Area Use Permit Docket No. PL-SMA-2024-000060 be denied based on the following reasons: 1) community opposition to the project; septic issues associated and other environmental impacts associated with the proposed use; 2) lack of aesthetic value; and 3) concerns related to the existing road and traffic considerations for neighboring properties. Commissioner De Luz seconded the motion. 17. At the September 5, 2024 hearing, the Windward Planning Commission voted to deny the application for a Special Management Area Permit, with four Commissioners voting in favor of the denial, one voting against it and one excused. 18. On September 30, 2024, the Department notified the Applicant that the Commission had denied their application for a Special Management Area Permit No. PL-SMA- 2024-000060. 19. On October 4, 2024, the Department notified the Applicant that the Windward Planning Commission would issue Findings of Fact, Conclusions of Law and Decision and Order for the denial of Special Management Area Permit No. PL-SMA-2024-000060 at a hearing of the Commission on November 1, 2024. 4 20. At the November 1, 2024 hearing,the Commission continued the matter to December 5, 2024. B. PROPOSED PROJECT 21. Applicant's Special Management Area Permit No. PL-SMA-2024-000060 proposed to construct a 4-story,41,600 square foot apartment building containing seventeen(17) rental units and related development on a 19,377 square-foot parcel within the Special Management Area. 22. The proposed building featured four(4)stories with two(2)parallel wings, ground-level parking,and a rooftop terrace. Sixteen(16)of the rental units are proposed to contain two(2)bedrooms and two(2)bathrooms and one(1)unit is proposed with three(3)bedrooms and three(3)bathrooms. 23. The ground floor is proposed to be 11,360 square feet containing a total of twenty-two (22)parking stalls, including two (2)ADA-accessible stalls. A water service room, an electrical room, and a trash disposal area are also proposed on this floor. Water is available through the Hawaii County Department of Water Supply. Water capacity will be determined in consultation with DWS based on water calculations for the proposed use. Wastewater will be handled through the county sewer system. 24. A drainage study completed by Engineering Partners Inc., concluded that two (2) drywells will be more than adequate to capture and infiltrate the site runoff. Electricity is available through Hawaiian Electric Light Company. 25. The proposed purpose of the project is to address the increasing demand for housing rentals in Hilo. 26. Project improvements are intended to be completed by mid-2026 with an 5 estimated value of the project at $2,000,000.00. C. DESCRIPTION OF PROPERTY AND SURROUNDING AREAS 27. Subject Property: The relatively flat site is accessed off Kalaniana`ole Street, approximately 350 feet southwest of its intersection with Onekahakaha Road and 1.8 miles northeast of Highway 11. The property is sandwiched between Kalaniana`ole Street and Apapane Road, is rectangular in shape and is approximately 5-feet above sea level (asp. Access is also available from Apapane Road. The site is 0.25 miles inland from the shoreline and situated 1 mile northeast of Hilo Airport. The site has previously been cleared and graded. It is vacant of any structures. Minimal vegetation currently exists on site and is primarily maintained grasses. 28. Surrounding Land Zoning/Uses: West of the subject parcel is an existing three (3) story, 24-unit apartment building, to the east is overgrown undeveloped parcels; all within the resort zoning district. To the north there are two large privately owned open zoned parcels with limited development, and along the coast is the Onekahakaha Beach Park. Across Kalaniana`ole Street the properties are zoned RS-10 and development with numerous single-family dwellings and related improvement. 29. Flood Insurance Rate Map (FIRM): The Federal Emergency Management Agency (FEMA) Flood Insurance Rate map (FIRM) identifies the parcel as Zone VE, which is within the 100-year coastal flood range, or 1% chance of occurring in any given year, with velocity hazard from wave action. 30. Flora/Fauna Resources: No biotic surveys were conducted for the subject parcel; however, the applicant does not believe that the site contains any rare or endangered floral and faunal resources. The Kionakapahu Pond (0.5 miles east) and the Lokoaka Pond (0.6 miles east) 6 are two coastal wetland areas that contain sensitive resources including fish and bird species. The surrounding area parcels are vegetated with various trees and shrubs including kukui nut, areca palm, coconut palm, Swiss cheese plant, ironwood, African tulip, gunpowder tree, and albizia, however, the subject parcel is primarily short, maintained grass. 31. Archaeological Resources: Although no commissioned archaeological survey of the site was conducted it is highly unlikely that any historic sites will be found on the property as the parcel has been previously cleared and completely graded. The SHPD did not provide comments on the proposed project under the review via HRS Ch. 6E-42. 32. Cultural/Historic Resources: All proposed improvements will be located a considerable distance from the shoreline park, coastal wetlands, and other cultural resources. Therefore, no impacts to traditional shoreline uses or the shoreline park are anticipated by this action. It is not known whether the subject site or immediately surrounding area was ever used for traditional and customary rights by native Hawaiians. As the project area has been previously cleared and much of the surrounding area has been used extensively for residential use for many years, it would appear very unlikely that the site would serve such a purpose today and/or in the recent past. 33. Recreational Resources: The subject parcel is located approximately 1000 feet from the shoreline and is near the entrance to the 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. 34. Scenic and Open Space Resources: Onekahakaha Beach Park is identified as a valued scenic resource in the County General Plan. Vehicular access to the park is located roughly 350 feet north of the subject property whereas the shoreline area is approximately 0.2 7 miles to the north. The proposed development will not encroach upon or disrupt access to this scenic resource area. There is a similar type of structure (apartment building) located on the adjacent parcel to the west as well as other large buildings in the area such that the addition of this new structure will be in character with the surrounding regions development. D. STATE AND COUNTY PLANS 35. The State Land Use Designation is Urban. 36. The County of Hawaii General Plan Land Use Pattern Allocation Guide Map (LUPAG MAP) is classified as Resort (res). 37. The County of Hawai`i zoning for this property is Resort-hotel 7,500 sf(V-.75). 38. Hilo Community Development Plan (HCDP). The Hilo CDP was adopted by Resolution No. 1 on May 21, 1975. 39. 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 40. Access: The subject property is between the north side of Kalaniana`ole Street and south side of Apapane Road. The project therefore proposes access from Kalaniana`ole Street and Apapane Road, each equipped with an entrance and exit subject to approval by the Department of Public Works (DPW) as both Kalaniana`ole Street and Apapane Road are under the jurisdiction of the County. 41. Water: The subject site is served by the County Department of Water Supply (DWS) through an existing waterline within Kalaniana`ole Street, which fronts the subject parcel. Consultation with DWS indicates that water is available for the proposed project. 8 42. Wastewater: The wastewater system will integrate with the County's wastewater system that runs along Kalaniana`ole Street via a 30-inch sewer main with sufficient capacity to support the proposed use. 43. 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. 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: 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 Hawai`i 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 9 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. 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 10 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 to deny (with four Commissioners in favor of the motion to deny, one opposed and one excused) 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 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 identifies the visions, values and priorities important to the people of this County and promotes and safeguards the public interest and the interest of the County as a whole and the Applicant's project, designed to address the increasing demand for housing rentals in Hilo, does not address the priorities of the people of Hawaii County. Although the proposed project suggests that housing offered at 100%, 120% and 140% Area Median Income addresses increasing demand for housing (only three of the seventeen units are below 100% AMI), the Commission was not persuaded that these housing units were either desired or useful for the people of the County. Based on the above, the proposed use is inconsistent with the 2005 County of Hawaii General Plan. O. The proposed use will have a substantial adverse environmental and/or ecological 11 effect and is not minimized by any public health, safety or compelling public interest given the opposition of the community to this project and the Applicant's failure 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 §205A-26(2)(A) Hawaii Revised Statutes. P. The proposed development does not preserve,protect or restore the natural resources of the coastal zone area and would contribute, based on the number of individuals living within the proposed structure, to a permanent loss of valuable resources. The proposed use is, therefore, inconsistent with the objectives and policies as provided by Chapter §205A Hawaii Revised Statutes, as amended, and the Special Management Area guidelines references in Rule No. 9 of the Planning Commission Rules of Practice and Procedure. Q. The proposed use is inconsistent with §205A-26(1)(D) Hawai`i Revised Statutes, as amended, and threatens adverse effects to water resources and scenic and recreational amenities, specifically the tidepools and anchialine pools in the nearby areas. R. The proposed use has potential public health and safety implications given the potential number of residents for the seventeen rental units. In the event of an evacuation, Kalaniana`ole Street is at limited capacity given the number of residents using this street. The parking provided for in the proposal is also insufficient and would have the effect of adding residents and their guests vehicles to an already inundated area. The proposed use poses additional potential public health and safety concerns and is therefore inconsistent with §205A- 26(2)(A) Hawaii Revised Statutes, as amended. S. The proposed use is inconsistent with the objectives,policies and special 12 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. T. 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. U. 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 Hawai`i Revised Statutes, as amended. V. The proposed use is inconsistent with the State policy to preserve, protect, and where possible, restore the natural resources of the coastal zone of Hawai`i, §205A-21 Hawai`i Revised Statutes, as amended. W. The proposed use is inconsistent with the objectives,policies and guidelines of 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- 000060 is hereby DENIED. DATED: Hilo, Hawai`i, , 2024. By Louis Daniele, Vice Chairman & Interim Chair Windward Planning Commission, Co County of Hawai`i 13