HomeMy WebLinkAbout2024-12-03 Noah Walin, Pacific Rim Land Inc.From:Noah Walin
To:WPCtestimony
Subject:General Plan Update Special Meeting Testimony
Date:Tuesday, December 3, 2024 5:18:25 PM
Attachments:WPC GP Amendment Request 241203.pdf
Aloha Windward Planning Commission,
Please see the attached testimony letter regarding the update to the County of Hawaii General
Plan 2045.
Mahalo,
Noah Walin | Pacific Rim Land, Inc.
Project Coordinator
1300 N. Holopono Street, Suite 201
P.O. Box 220, Kihei, Maui, Hawaii 96753
Office: 808-270-5943 | Direct: 808-419-4610
E-mail: NoahW@pacificrimland.com
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BEFORE THE LAND USE COMMISSION
OF THE STATE OF HAWAI'I
In the Matter of the Application of )))WAIKOLOA DEVELOPMENT
COMPANY
Docket No. SP92-381
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For the Establishment of a Quarry
Operation and Allied Uses on
Within the State Land Use Agricultural
Approximately 220 Acres of Land Situated
District at Waikoloa, South Kohala, Hawai'i
Tax Map Key No.: 6-8-01: portion of 5
(nka approximately 219.990 acres at
Waikoloa, South Kohala, Island of Hawai'i
Tax Map Key No.: (3) 6-8-001:066
)))))))))))
FIND1NGS OF FACT, CONCLUSIONS
OF LAW, AND DECISION AND
ORDER APPROVING THE
RECOMMENDATION OF THE
COUNTY OF HAWAI'I LEEWARD
PLANNING COMMISSION TO
AMEND THE STATE SPECIAL
USE PERMIT AND CERTIFICATE
OF SERVICE
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION
AND ORDER APPROVING THE RECOMMENDATION OF THE
COUNTY OF HAWAI'I LEEWARD PLANNING COMMISSION TO AMEND
THE STATE SPECIAL USE PERMIT
AND
CERTIFICATE OF SERVICE
This is to certify that this is a true and correct
copy of the document on file in the office of the
State Land Use Commission, Honolulu, Hawai'i.
February 26, 2016 by
Daniel E. Orodenker, Executive Officer
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BEFORE THE LAND USE COMMISSION
OF THE STATE OF HAWAI'I
In the Matter of the Application of
WAIKOLOA DEVELOPMENT
COMPANY
For the Establishment of a Quarry
Operation and Allied Uses on
Within the State Land Use Agricultural
Approximately 220 Acres of Land Situated
District at Waikoloa, South Kohala, Hawai'i
Tax Map Key No.: 6-8-01: portion of 5
(nka approximately 219.990 acres at
Waikoloa, South Kohala, Island of Hawai'i
Tax Map Key No.: (3) 6-8-001:066
))))))))))))))
Docket No. SP92-381
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FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND DECISION AND
ORDER APPROVING THE
RECOMMENDATION OF THE
COUNTY OF HAWAI'I LEEWARD
PLANNING COMMIS SION TO
AMEND THE STATE SPECIAL
USE PERMIT
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION
AND ORDER APPROVING THE RECOMMENDATION OF THE
COUNTY OF HAWAI'I LEEWARD PLANNING COMMISSION TO AMEND
THE STATE SPECIAL USE PERMIT
The State of Hawai'i Land Use Commission (°'LUC"), having examined the complete
record of the County of Hawai'i Leeward Planning Commission ("Planning Commission")
proceedings on amending the State Special Use Permit ("SUP") Application ("Application") filed
by West Hawai'i Concrete ("Applicant"), pursuant to section 205-6, Hawai'i Revised Statutes
("HRS"), and sections 15-15-95 and 15-15-96, Hawai'i Administrative Rules ("HAR"), and Rule
6 of Planning Commission Rules of Practice and Procedure to: (1) to amend existing Condition
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
No. 12 to extend the life of Special Permit ("SP 833")1 so that the quan'ying and other activities
can continue to 2043 or longer (i.e., for as long as the Owner allows Applicant to continue quarry
operations, which could extend to 2063); (2) include greenwaste composting as an expressly
permitted use under the Special Permit; and (3) allow for the processing and recycling of Portland
cement concrete and asphalt concrete pavement on the Special Permit site (also refen'ed to as
"Project") on approximately 219.990 acres of land situated at Waikoloa, South Kohala, County
and Island of Hawai'i, Tax Map Key No. (3) 6-8-001:066 (formerly TMK No. (3) 6-8-001: 005),
and upon consideration of the matters discussed therein, argument of counsel and public comments
at its meeting on February 9, 2016, hereby makes the following findings of fact, conclusions of
law, and decision and order:
FINDINGS OF FACT
PROCEDURAL MATTERS
°On September 15, 2015, WHC, LTD., a Hawai'i corporation doing business as West
Hawaii Concrete ("Applicant") filed a request with the Hawai'i County Planning
Department (the "Planning Department") to amend the special permit issued in the above-
entitled docket pursuant to section 205-6, HRS, and sections 15-15-95 and 15-15-96,
HAR, and Rule 6 to: (1) to amend existing Condition No. 12 to extend the life of Special
Permit No. 833 (the "SP 833") so that the quan'ying and other activities can continue to
2043 or longer (i.e., for as long as the Owner allows Applicant to continue quarry
operations, which could extend to 2063); (2) include greenwaste compositing as an
expressly pernfitted use under the Special Permit; and (3) allow for the processing and
1 SP 833 is a county designation for tracking the State Special Permit they review. Once it is forwarded with a
recommendation to the State Land Use Commission it is given an official State Special Permit docket number; in
this case SP92-381.
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
recycling of Portland cement concrete and asphalt concrete pavement on the Special
Permit site on approximately 219.990 acres of land situate at Waikoloa, South Kohala,
County and Island of Hawai'i, Tax Map Key No. (3) 6-8-001:066 (formerly TMK No.
(3) 6-8-001: 005) (the "Application").
.Applicant has operated a quan'y at the 219.990 acre site ("Petition Area") since 1995
under a license agreement with the landowner, which is now WQJ2008 Investment, LLC,
a Washington limited liability company (as to an undivided 85.714% interest), and
Ukumehame Quan'y Company Limited Partnership, a Hawai'i limited partnership (as to
an undivided 14.286% interest), as tenants in common ("Owner").
.The County of Hawai'i Planning Commission authorized SP 833 at its hearing on
September 22, 1992, and the State of Hawai'i Land Use Commission ("LUC") issued its
Findings of Fact, Conclusions of Law, and Decision and Order in LUC Docket No. SP92-
381 authorizing SP 833 or/January 19, 1993 ("LUC D&O").
.SP 833 allows the Petition Area to be used for blasting, drilling, rock crushing and
screening, concrete ready-mix batching, pre-casting, asphaltic concrete products
manufacturing equipment and materials storage and repair, and other necessary uses and
activities related to providing a source of rock aggregate and concrete and asphalt
products.
.Included with the cun'ent Application were 24 exhibits, as follows: (1) Map & Metes and
Bounds Submitted to Planning Department, dated 10/2/92 and Planning Department
Acceptance, dated 10/22/92; (2) Subdivision Map, Sub No. 07-000696; (3) Fee Owner's
Authorization; (3A) Licensee's Authorization; (4) Annual Monitoring Report; (5) 1996
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
{ I'
Final Plan Approval; (6) Site Plan of Current Quarry Area and Proposed Quarry,
Recycling, and Greenwaste Composting Area and Activities; (7) 2011 DOH Solid Waste
Mgt Application and Permit; (8) State Land Use District Map; (9) County Zoning Map;
(10) Flood Zone Map; (11) Dr. Robert Rechtman 1999 Letter re Monitoring; (12) 2015
Archaeological Assessment; (12A) SHPD Letter dated August 12, 2015; (13)Waikoloa
Quan'y Ka Pa'akai Discussion; (14) Land Study Bureau Map; (15) ALISH Map; (16)
General Botanical Survey, July 2015; (17) Blackbum's Sphinx Moth Surveys; (18)
Hydrologic Assessment; (19) Photos of Quarry; (20) LUPAG Map; (21) South Kohala
Community Development Plan Map; and (22) Special Management Area Map.
°By letter dated September 24, 2015, the Planning Department notified Applicant that it
had accepted the Application for filing.
7. The Planning Department circulated the Application for agency comment.
,
.
By letter dated October 5, 2015, Applicant notified sun'ounding property owners and
lessees of the filing of the Application, and provided information regarding how such
owners and lessees could request a contested case proceeding in this matter.
By letter dated October 12, 2015, Applicant filed with the Planning Department an
Affidavit of Sign Posting and Affidavit of Mailing, attesting to the posting of a sign at the
Petition Area notifying the public of the pending application, and notifying the public of
the mailing.
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
t (
10. By letter dated November 24, 2015, the Planning Department notified Applicant that the
matter was set for hearing before the Leeward Planning Commission on Thursday,
December 17, 2015.
11. Applicant responded to all agency comment letters.
12. By notice dated December 1, 2015, Applicant notified surrounding property owners and
lessees of the Planning Commission hearing. Included in that mailing was a copy of the
Planning Commission's agenda, and a copy of the folTn "Petition for Standing in
Contested Case Hearing."
13. No petitions for intervention or requests for contested case hearings were submitted in
response to the Application.
14. On December 17, 2015, at the West Hawai'i Civic Center, after presentation by Planning
Department staff, the Planning Commission considered the Application.
15. The Permit was first amended on February 26, 1999, which amendment included an
amendment to Condition No. 12 to extend the life of the permit until December 31, 2018.
16. Applicant requested that Condition No. 12 be amended to allow operations at the quarry
to continue until 2043 or longer, i.e., for as long as the Owner allows Applicant to
continue quan'y operations, which could extend to 2063.
17. The Planning Director's Recommendation is that Condition No. 12 be amended to read:
The life of this permit shall be for a period co-terminus with the existing license
agreement with the owner of the property, or until December 31, [g04-8] 2043; the
6
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
date of completion of the proposed quarrying; or its abandonment, whichever
comes first.
18. The Planning Conmlission's approval of the Application recommended that the Permit be
extended until 2043, at which time the Applicant will be required to submit another time
extension request to continue operations.
19. The Planning Commission noted that the proposed request to allow the recycling of
Portland cement concrete and asphalt concrete pavement, and greenwaste composting
activities would be consistent and complementary with the "related uses" that are
currently approved under Special Permit No. 833, which includes blasting, drilling, rock
crushing and screening, concrete ready-mix batching, pre-casting, asphaltic concrete
products manufacturing, equipment storage and materials storage and repair, and other
necessary uses and activities related to providing a source of rock aggregate and concrete
and asphaltic products.
20. The Planning Commission noted that the allowance of these additional uses will reduce
the amount of materials being dumped into the local landfill and will allow those
matei'ials to be reused and recycled.
21. The Planning Department also noted Applicant has successfully operated a quan'y at the
Petition Area for twenty (20) years.
22. The Planning Commission further concluded that approving the proposed amendments to
the Permit (a) would not be contrary (i) to the General Plan or the Zoning Code, (ii) the
original reasons for granting the Permit, (iii) the objectives sought to be accomplished by
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
the State Land Use Law, Chapter 205, HRS, and its regulations, (b) are unusual and
reasonable uses of land situated within the State Land Use Agricultural District, (c) will
not adversely affect the sun-ounding properties nor unreasonably burden public agencies
or infrastructure, (d) did not arise as a result of unusual conditions, trends, or needs since
the district boundaries and regulations were established, (e) will not substantially alter or
change the essential character of the land and the present use, (f) are consistent with
Chapter 205A, HRS, and the Special Management Area guidelines contained in Rule No.
9 of the Planning Commission's Rules of Practice and Procedures, and (g) will not have a
significant adverse impact to traditional and customary Hawaiian rights and practices.
23. The Planning Commission also recommended approval of the proposed amendments to
the Permit on the ground that the land upon which the proposed uses are sought is
unsuited for the uses permitted within the district. The soils for the petition area are
classified as "E" or "Very Poor" by the Land Study Bureau's Overall Master Productivity
Rating and are unclassified by the Department of Agriculture's ALISH Map.
24. The Planning Department ultimately recommended that the proposed amendments be
granted subject to the following revised changes (Material to be deleted is bracketed and
stricken and material to be added is underscored):
a,The Applicant, successors or assigns shall be responsible for complying with all
stated conditions of approval.
b°Final Plan Approval for the quarry operation shall be secured from the Planning
Department on or before January 19, 1997. To assure adequate plan approval
review and in accordance with Chapter 25-244 (Zoning Code), plans for the
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
quarry operation shall be submitted a minimum of forty-five days prior to the date
by which plan approval must be secured. Plans shall identify structures and
parking associated with the proposed quarry operations.
C.The quarry operations and related activities shall commence on or before
December 10, 2003. A letter informing of commencement of operations shall be
submitted to the Planning Department.
d.
JA metes and bounds description and map shall be submitted with plans for plan
approval review. The area described shall contain less than 220 acres and the
operation confined within the described area.
e.
.... 1;ÿ,,ÿ ,÷ ..... ÷ ÷ÿ +r,ÿ cÿ .... +,, ÿ,,'ÿs ..... ;; ÿ At the written request of the
Department of Public Works (DPW), after the fifth anniversary of the issuance of
the extended permit, the Applicant shall prepare a Traffic Impact Analysis Report
(TIAR), at no cost to the County of Hawai'i, for submission to the DPW. The
applicant shall coordinate with the DPW on implementing the Applicant's pro-rata
share of appropriate traffic mitigation measures, if any, should it be determined
tba'ough the TIAR that improvements to the Waikoloa/QualTy road intersection
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
are needed due to the Applicant's activity at the quarry. Access to Waikoloa Road
shall comply with Chapter 22 of Hawai'i County Code.
f. The following procedures shall be instituted for archaeological site mitigation:
Possible burial sites identified in the Archaeological Inventory Survey
(PHRI ms 1041-122091) shall be approved by the Hawaii Island Burial
Council prior to receipt of Final Plan Approval.
ii.The preservation area, including a 50-foot buffer zone, shall be
staked/flagged prior to receipt of Final Plan Approval. A confirming letter
from the archaeologist shall be submitted.
iii.Construction workers and quan'y operational personnel shall be informed
of the significance of the staked preservation area. Construction plans
shall also note the area.
g°
iv.An archaeologist shall be on site to monitor initial land preparation
activities that occur in the vicinity of the preservation area.
Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal
deposits, human burials, rock or coral alignments, paving or walls be uncovered
during land preparation activities, work in the area shall immediately cease and
the Planning Department shall be notified. No work within the affected area shall
resume until clearance from the Planning Department is received.
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
10
( i
h.If required by the Department of Land and Natural Resources, a survey of the area
identified as 'Suitable Habitat for the Ophioglossum Fern' in the 'Botanical
Assessment' conducted by Winona Char (see Exhibit 1) shall be performed prior
to any land alterations of the affected area. The survey and any mitigation
measures shall be reviewed and approved by the Planning Department, in
consultation with the Department of Land and Natural Resources.
The quarrying activity shall be limited to the hours of 6:30 a.m. to 5:30 p.m.
daily; provided active noise generating activity (i.e., blasting, crushing) shall
commence no earlier than 7:30 a.m.
j°The applicant shall submit an Erosion Control and Site Restoration Plan for
review and approval by the Planning Director, in consultation with the
Department of Public Works, one year prior to the expiration date of the permit or
prior to the termination of the operations, whichever occurs first.
k.Upon telanination of the operations or abandomnent of any portion of the affected
site, the land shall be graded to blend with the surrounding area and rehabilitated
as approved in the Erosion Control and Site Restoration Plan. The affected site
shall be left in a non-hazardous condition. Appropriate documentation which
demonstrates compliance with this condition shall be submitted to the Planning
Department and the Department of Public Works for review and approval within
ninety (90) days from the date of termination or abandonment.
1. The life of this permit shall be for a period co-terminus with the existing license
agreement with the owner of the property, or until December 31, [g048] 2043; the
11
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
date of completion of the proposed quarrying; or its abandomnent, whichever
comes first.
m.An adequate supply of water shall be made available for dust control and for fire
prevention and pre-suppression.
n°Comply with all other laws, rules, regulations and requirements, including those
of the Department of Health, Hawaii Electric Light Company, and the Department
of Public Works.
O.An annual monitoring report shall be submitted to the Planning Director and Land
Use Commission prior to the anniversary date of the approval of this permit. The
report shall include, but not be limited to, the amount ofinaterial quarried, a
detailed listing of public complaints or problems and their disposition. Should a
conflict arise, which cannot be mitigated or mediated, the quarry operations shall
cease upon appropriate findings by the Planning Commission that the introduced
use will have an adverse impact on surrounding properties. The report shall also
include Applicant's progress in complying with the conditions imposed.
p.An extension of time for the performance of conditions within the permit, with the
exception of Condition No. 12, 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 applicant,
successors or assigns, 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
12
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
( (
reasons for the granting of the permit, and 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). Further, should any of the conditions not be met or substantially
complied with in a timely fashion, the Director shall initiate procedures to revoke
the permit.
25. No public testimony was received by the Planning Commission. After due deliberation,
at its meeting on December 17, 2015, the Planning Commission recommended approval
of the Application to the LUC by a vote of 5 in favor and 2 excused.
26. On January 11, 2016, the LUC received a copy of the Planning Commission's decision
and the record of the Planning Commission's proceedings on the Application.
27. On January 26, 2016, Applicant submitted to the LUC the $1,000.00 filing fee by check
payable to the State of Hawai'i.
28. On February 1, 2016, the LUC mailed a notice and meeting agenda to all parties and the
Statewide, O'ahu and Hawai'i mailing lists.
29. On February 8, 2016, Applicant filed its Proposed Findings of Fact, Conclusions of Law,
and Decision and Order ("Proposed Order").
30. On February 9, 2016, the LUC met in Kona, island of Hawai'i, to consider the Petition.
Jennifer A. Lim, Esq. and Jason Macey appeared on behalf of the Applicant; Daryn Arai
and Danny B. Patel, Esq., Deputy Corporation Counsel, appeared on behalf of the
County; and, Deputy Attorney General Bryan Yee, Esq., appeared on behalf of OP. The
13
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
i (
Commission heard public testimony from Mr. Yee on behalf of OP. At the meeting the
Applicant provided a description of the Project relative to Section 15-15-95(c), HAR.
Following the presentation by the Applicant, the LUC raised questions about the
operation of the Project and its impacts. The County provided a brief overview of its
decision recommending approval of the Application and the conditions it imposed.
31. Thereafter, a motion was made and seconded to approve the Application and the County's
recommendation, and as agreed to by the Applicant.
32. On February 17, 2016, the LUC mailed out the agenda and notice of hearing for the
February 24, 2016, LUC meeting to all parties, and the Statewide, Hawai'i and Maui
mailing lists.
33. On February 24, 2016, the LUC conducted a meeting to adopt the form of the Order on
this docket at the Maui Arts and Cuitural Center in Kahului, Maui. Entering appearances
were Mel Macey for the Applicant; and Deputy Attorney General Bryan Yee, Esq., for
OP. The County of Hawai'i indicated that it would not be in attendance. The
Commission provided an opportunity for public testimony. There was no public
testimony.
RULINGS ON PROPOSED FINDINGS OF FACT
Any conclusions of law herein improperly designated as a finding of fact should be deemed
or construed as a conclusion of law; and finding of fact herein improperly designated as a
conclusion of law should be deemed or construed as a finding of fact.
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SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
CONCLUSIONS OF LAW
1. The LUC has jurisdiction over this matter pursuant to section 205-6, HRS, and section 5-15-
95 et seq. HAR.
2. Based upon the record of the proceedings before the Planning Commission, and pursuant to
section 205-6, HRS and section 15-15-95 et seq., HAR, the LUC finds that the
recormnendation of the Planning Commission to approve a State Special Permit for the
Petition Area, consisting of approximately 219.990 acres of land situated at Waikoloa, South
Kohala, County and Island of Hawai'i, Tax Map Key No. (3) 6-8-001:066 (formerly TMK
No. (3) 6-8-001: 005), generally meets the guidelines for determining an "unusual and
reasonable use" and "would promote the effectiveness and objectives" of chapter 205, HRS,
within the State Land Use Agricultural District.
3. The Project constitutes an unusual and reasonable use within the agricultural district other
than those for which the district is classified, and complies with section 205-6(a), HRS.
4. The Project constitutes an exceptional situation where the proposed use would not change
the essential character of the district nor be inconsistent therewith.
5. The Project constitutes a use that would promote the effectiveness and objectives of chapter
205, HRS, and complies with section 205-6(c), HRS.
6. The Petition Area is not designated as ImpolCant Agricultural Land under Part III of chapter
205, HRS, and therefore the Proj ect does not conflict with any part of chapter 205, HRS, and
complies with section 205-6(c), HRS.
3_5
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
7. Article XI, section 1, of the Hawai'i State Constitution requires the State to conserve and
protect Hawai'i's natural beauty and all natural resources, including land, water, air,
minerals, and energy sources, and to promote the development and utilization of these
resources in a manner consistent with their conservation and in furtherance of the self-
sufficiency of the State.
8. The LUC has considered Article XI, section 1, of the Hawai'i State Constitution and finds
that the Project is in compliance and non-violative therewith.
9. Article XI, Section 3, of the Hawai'i State Constitution requires the State to conserve and
protect agricultural lands, promote diversified agriculture, increase agricultural self-
sufficiency, and assure the availability of agriculturally suitable lands.
10. The LUC has considered Article XI, Section 3, of the Hawai'i State Constitution and finds
that the Project is in compliance and non-violative therewith.
11. Article XII, Section 7, of the Hawai'i State Constitution requires the LUC to protect Native
Hawaiian traditional and customary rights. The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence, cultural, and religious purposes and
possessed by ahupua'a tenants who are descendants of Native Hawaiians who inhabited the
Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.
12. The LUC has considered Article XII, Section 7, of the Hawai'i State Constitution and finds
that the Project is in compliance and non-violative therewith.
13. The State and its agencies are obligated to protect the reasonable exercise of customarily and
traditionally exercised Native Hawaiian rights to the extent feasible. Public Access Shoreline
Hawai'i v. Hawai'i County Planning Commission, 79 Hawai'i 425, 903, P.2d 1246,
certiorari denied, 517 U.S. 1163, 116 S.Ct. 1559, 134 L.Ed.2d 660 (1996). The LUC has
16
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
14.
considered such responsibilities and obligations and finds the Project to be consistent and
non-violative therewith.
The LUC is empowered to preserve and protect customary and traditional rights of Native
Hawaiians. Ka Pa'akai 0 Ka'Aina v. Land Use Commission, 94 Hawai'i 31, 7 P.3d 1068
(2000). The LUC has considered such responsibilities and obligations and finds the Project
to be consistent and non-violative therewith.
17
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
DECISION AND ORDER
Having duly considered the complete record in this matter and the oral arguments presented
by the Applicant in this proceeding, together with public testimony from the Planning Department
and OP, and a motion having been duly made and seconded at a meeting conducted on February
9, 2016, in Kona, Hawai'i, to approve the recommendation of the Planning Commission, and the
motion having received the affirmative votes required by section 15-15-13, HAR, and there being
good cause for the motion, the LUC hereby APPROVES the recommendation of the Planning
Commission approving amendments to the State Special Permit for the Project site as proposed by
the Planning Commission, and as agreed to by the Applicant, consisting of approximately 219.990
acres of land situated at Waikoloa, South Kohala, County and Island of Hawai'i, Tax Map Key
No. (3) 6-8-001:066 (formerly TMK No. (3) 6-8-001: 005), subject to the following conditions:
1. The Applicant, successors or assigns shall be responsible for complying with all stated
conditions of approval.
.Final Plan Approval for the quan'y operation shall be secured from the Planning
Department on or before January 19, 1997. To assure adequate time for plan approval
review and in accordance with Chapter 25-244 (Zoning Code), plans for the quarry
operation shall be submitted a minimum of forty-five days prior to the date by which plan
approval must be secured. Plans shall identify structures and paa'ldng associated with the
proposed quarry operations.
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend the Special Permit
{ {
.The quarry operations and related activities shall commence on or before December 10,
2003. A letter informing of commencement of operations shall be submitted to the
Planning Department.
°A metes and bounds description and map shall be submitted with plans for plan approval
review. The area described shall contain less than 220 acres and the operation Confined
within the described area.
°At the written request of the Department of Public Works ("DPW"), after the fifth
anniversary of the issuance of the extended permit, the applicant shall prepare a Traffic
Impact Analysis Report ("TIAR"), at no cost to the County of Hawai'i, for submission to
the DPW. The applicant shall coordinate with the DPW on implementing the applicant's
pro-rata share of appropriate traffic mitigation measures, if any, should it be determined
tbxough the TIAR that improvements to the Waikoloa/Quarry road intersection are
needed due to the applicant's activity at the quan'y. Access to Waikoloa Road shall
comply with Chapter 22 of Hawai'i County Code.
6. The following procedures shall be instituted for archaeological site mitigation:
a.Possible burial sites identified in the Archaeological Inventory Survey (PHRI ms
1041-122091) shall be approved by the Hawai'i Island Burial Council prior to
receipt of Final Plan Approval.
b°The preservation area, including a 50-foot buffer zone, shall be staked/flagged
prior to receipt of Final Plan Approval. A confirming letter from the
archaeologist shall be submitted.
2
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
C.Construction workers and quan'y operational personnel shall be informed of the
significance of the staked preservation area. Construction plans shall also note
the area.
d.An archaeologist shall be on site to monitor initial land preparation activities that
occur in the vicinity of the preservation area.
.Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal
deposits, human burials, rock or coral alignments, paving or walls be uncovered during
land preparation activities, work in the area shall immediately cease and the Planning
Department notified. No work within the affected area shall resume until clearance from
the Planning Department is received.
,If required by the Department of Land and Natural Resources, a survey of the area
identified as 'Suitable Habitat for the Ophioglossum Fern' in the 'Botanical Assessment'
conducted by Winona Char (see Exhibit 1) shall be performed prior to any land
alterations of the affected area. The survey and any mitigation measures shall be
reviewed and approved by the Planning Department, in consultation with the Department
of Land and Natural Resources.
.The quarrying activity shall be limited to the hours of 6:30 a.m. to 5:30 p.m. daily;
provided active noise generating activity (i.e., blasting, crushing) shall commence no
earlier than 7:30 a.m.
10. The applicant shall submit an Erosion Control and Site Restoration Plan for review and
approval by the Planning Director, in consultation with DPW, one year prior to the
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
expiration date of the permit or prior to the termination of the operations, whichever
occurs first.
11. Upon termination of the operations or abandonment of any portion of the affected site,
the land shall be graded to blend with the surrounding area and rehabilitated as approved
in the Erosion Control and Site Restoration Plan. The affected site shall be left in a non-
hazardous condition. Appropriate documentation which demonstrates compliance with
this condition shall be submitted to the Planning Department and the DPW for review and
approval within ninety (90) days from the date of termination or abandonment.
12. The life of this pelanit shall be for a period co-terminus with the existing license
agreement with the owner of the property, or until December 31, 2043; the date of
completion of the proposed quarrying; or its abandonment, whichever comes first.
13. An adequate supply of water shall be made available for dust control and for fire
prevention and pre-suppression.
14. Applicant shall comply with all other laws, rules, regulations and requirements, including
those of the Department of Health, Hawai'i Electric Light Company, and the DPW.
15. An annual monitoring report shall be submitted to the Planning Director and Land Use
Commission prior to the anniversary date of the approval of this permit. The repolÿ shall
include, but not be limited to, the amount of material quan'ied, a detailed listing of public
complaints or problems and their disposition. Should a conflict arise, which cannot be
mitigated or mediated, the quan'y operations shall cease upon appropriate findings by the
Planning Commission that the introduced use will have an adverse impact on sun'ounding
4
SP92-381 Waikoloa Developlnent Company
Decision And Order on Motion to Amend
properties. The report shall also include Applicant's progress in complying with the
conditions imposed.
16. An extension of time for the performance of conditions within the permit, with the
exception of Condition No. 12, may be granted by the Planning Director upon the
following circumstances: a) the non-performance isthe 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; 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 the pelTnit, and 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). Further, should any of the conditions not be met or
substantially complied with in a timely fashion, the Director shall initiate procedures to
revoke the permit.
5
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
( i
ADOPTION OF ORDER
This ORDER shall take effect upon the date this ORDER is certified by this
Commission.
Done at Honolulu, Hawai'i, this __
motion on February 9, 201ÿ in Kona, Hawai'i.
26th, day of February, 2016, per
LAND USE COMMISSION
STATE OF HAWAI'I
APPROVED AS TO FORM
Deputy Attorney General
Chairperson and Commissioner
Filed and effective on:
2/26/16
• °
DANIEL E. ORODENKER
Executive Officer
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend
( /
BEFORE THE LAND USE COMMISSION
OF THE STATE OF HAWAI'I
In the Matter of the Application of
WAIKOLOA DEVELOPMENT
COMPANY
))))
Docket No. SP92-381
For the Establishment of a Quarry
Operation and Allied Uses on
Within the State Land Use Agricultural
))))
Approximately 220 Acres of Land Situated )
District at Waikoloa, South Kohala, Hawai'i )
Tax Map Key No.: 6-8-01 : portion of 5 )
(nka approximately 219.990 acres at )
Waikoloa, South Kohala, Island of Hawai'i )
Tax Map Key No.: (3) 6-8-001:066 )
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND DECISION AND
ORDER APPROVING THE
RECOMMENDATION OF THE
COUNTY OF HAWAI'I LEEWARD
PLANNING COMMISSION TO
AMEND THE STATE SPECIAL
USE PERMIT
AND
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly served upon the following
by depositing the same in the AS INDICATED BELOW on February 26th ,2016:
LEO R. ASUNCION, JR., AICP, Acting Director
Office of Planning, State of Hawai'i
235 South Beretania Street
6th Floor, Leiopapa A Kamehameha Bldg.
Honolulu, I-Iawai'i 96813
(HAND DELIVERY)
BRYAN C. YEE, ESQ.
Deputy Attorney General
Department of the Attorney General
425 Queen Street
Honolulu, Hawai'i 96813
Attorney for the Office of Planning
(HAND DELIVERY)
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend the Special Permit
DUANE KANUHA, Planning Director
DARYN ARAI, Planning Program Manager
County of Hawai'i Planning Department
101 Pauahi Street, Suite 3
Hilo, Hawai'i 96720
(REGULAR MAIL)
MOLLY A. STEBB1NS, ESQ.
DANNY PATEL, ESQ.
Office of the Corporation Counsel
Hilo Lagoon Centre
101 Aupuni Street, Unit 325
Hilo, Hawai'i 96720
Attorney for Hawai'i County Planning Department
(REGULAR MALL)
JENNIFER A. LIM, ESQ.
PUANANIONAONA P. THOENE, ESQ.
ASB Tower, Suite 2100
1001 Bishop Street
Honolulu, Hawai'i 96813
Attorneys for Applicant -
WHC, Ltd., dba West Hawai'i Concrete
(CERTIFIED MAIL, RETURNRECEIPT REQUESTED
DATED: Honolulu, Hawai'i February 26, 2016.
Executive Officer
SP92-381 Waikoloa Development Company
Decision And Order on Motion to Amend