HomeMy WebLinkAboutCommunication No. 2024-04 Punalu'u Black Sands Beach LLC Letter & Supporting DocsMemo to Windward Planning Commission
From Ka’ū Community Development Plan -Action Committee
August 14,2024
Re:Testimony Regarding Black Sands Beach LLC SMA Application (PL-SMA-2023-000046)
On May 22,2024 and July 11,2024,the Ka’ū Community Development Plan (CDP)Action
Committee (AC)held public meetings to hear testimony from the public regarding the subject
SMA Application.The Ka’ū AC also considered analyses of the Ka’ū Community Development
Plan to determine compliance of the SMA Application with applicable policies of the CDP.
Over a decade ago,the Ka’ū CDP Steering Committee spent many years working with
community members and the County of Hawaii staff to craft the Ka’ū CDP.Several of the AC
members were Steering Committee members and several of us attended many of the meetings.
We all appreciate the extensive community involvement that resulted in the final CDP.AC
members have also listened to the abundance of testimony given at the recent Planning
Commission and Action Committee meetings to help frame this testimony.
At the May 22,2024 AC meeting,committee member Babette Morrow presented a document
analyzing the recommendations for Punalu’u Black Sand Beach found in the Ka’ū CDP.On July
11,2024 the Action Committee was presented with an analysis of the SMA from Ron Whitmore.
Ron was the County Planner who acted as project manager for the Ka’ū CDP creation and he
played a lead role in writing the CDP.
The detailed analysis follows,but in summary: The SMA application appears to be consistent
with the following Policy Controls:Policy 1,Policy 5,Policy 7,Policy 27.The SMA application
appears to be inconsistent with the following Policy Controls:
●Policy 6:It does not include affordable housing.
●Policy 28:A new shoreline setback should have been established.
●Policy 29:Necessary assessments were not completed,including for impacts on scenic
resources, view planes,water quality,marine life,and cultural resources as well as the
impacts of tsunamis and sea level rise.
Policy 1:Rehabilitate and develop within existing zoned urban areas already served by basic
infrastructures,or close to such area,instead of scattered development.Much of Punalu’u is in
the State Urban district and is zoned for urban uses,including near the shoreline.
Policy 5:Rehabilitate and optimize the utilization of designated resort areas that are presently
serviced by basic facilities and utilities,and before new resorts are allowed in undeveloped
coastal areas.Punaluu is designated “Minor Resort.”
Policy 6:The development of visitor accommodations and any resort development should
complement the character of the area;protect the environment and natural beauty;respect
existing lifestyles,cultural practices,and cultural resources;provide shoreline public access;and
provide affordable housing to meet demand created by the development.The SMA does not
include affordable housing.
Policy 7:With the adoption of the Ka‘ū CDP,Figures 2,3,4,5,6,and 7 on pages 43 through 48
are adopted as the official Land Use Policy Map for the Ka‘ū CDP planning area.The land use
category definitions are identical to those used in the General Plan LUPAG map (and included in
the Glossary).Future land use decisions in the Ka‘ū CDP planning area shall be consistent with
the Land Use Policy Map boundaries,designations,and policies herein,unless the CDP and the
General Plan are in direct conflict.
Policy 27:To reinforce existing protections,the official Ka‘ū CDP Land Use Policy Map designates
coastal areas in Ka‘ū as open space to be preserved,protected,and connected to the rich
network of natural and cultural resources in the region.Development and construction in the
coastal “Conservation”and “Open”areas shall be minimized and,when necessary,limited to
recreation,research,and education facilities unless otherwise permitted by law.The General
Plan “Open”designation limits future uses to “Parks and other recreational areas,historic sites,
and open shoreline areas.”However,neither the General Plan LUPAG nor the CDP supersede
existing zoning,and the proposed development in the SMA is consistent with the zoning.
Policy 28:On lots that are at least partially within the Special Management Area (SMA)in the
Ka‘ū CDP Planning Area,establish shoreline setbacks at the earliest stages of the land use
planning and development process at a minimum of 1,320 feet (1/4-mile);however,the
applicant may request that the setback be reduced by providing information to the Department,
including information required for SMA review,which would allow for an assessment of the
proposed activity’s impacts and in consideration of the physical limitations of the property.For
lots created prior to the date of adoption of the CDP with an average lot depth of two hundred
feet or less,the shoreline setback line shall be 40 feet.Figure 4 in the SMA clearly includes
“new facilities”as well as development on parcels that abut the shore,including Artisan
Garden Hales,Museum Pavilion,Welcome Center,and Beach Club Café,so a new shoreline
setback should have been established.
Ron Whitmore’s analysis continues:Policy 28 is triggered by proposed development on lots that
are at least partially within the Special Management Area (SMA)in the Ka‘ū CDP Planning Area.
The assumption is that the SMA includes all areas where structures have the potential for
coastal impacts.Along most of Ka‘ū’s shoreline,the SMA extends ~500 feet mauka,but between
Punalu‘u and Honu‘apo,it extends to the highway,and at South Point,it extends ~5,000 feet
inland.This language was based,in part,on Kauai County’s shoreline setback ordinance,which
applies to lands that are not abutting the shoreline but located within five hundred (500)feet of
the shoreline.
Default:Policy 28 establishes the shoreline setback at a minimum of 1,320 feet (1/4-mile).Unlike
the current default of 40 feet,this is not completely arbitrary.It is based on 1)an assessment of
the distance of coastal resources from the shoreline in Ka‘ū (as mapped in Appendix V4A)and 2)
the ¼-mile standard used by planners to assess the “walkable”distance to sites of interest.
Note that most of the public comment during review of the Draft CDP called for much deeper
setbacks –a full mile or more.Oft-cited was the 2006 recommendation from the South
Kona-Ka‘ū Coastal Conservation Task Force to establish a 1.5 mile “no development”shoreline
setback.
Applicant’s Prerogative:Importantly,Policy 28 provides the applicant the opportunity to make a
case for a different setback by providing information specific to the site and to the proposed
activity’s impacts.
Properties Impacted:The application of this policy would not take any entitled land use rights
away.Buildable lots and urban-zoned areas in Punaluʻu would retain their rights.Park facilities
are either minor structures or eligible for a variance.Otherwise,most coastal parcels in Ka‘ū are
large,deep,and zoned Agriculture outside the near-shore conservation district strip,so a
setback wouldn’t limit permitted uses.
Policy 29:No development,including subdivision,shall be approved in the SMA unless the
development will not have any substantial adverse environmental or ecological effect.
In order for the Planning Director to accurately evaluate whether the proposed action will have
a substantial adverse effect,the Director shall require that SMA Use Permit Assessment and Use
Permit applications include all of the information necessary to assess the proposed activity’s
impacts in the Special Management Area,including but not limited to:
●A description of the environmental setting and natural resources in the area,including
an assessment of impacts on rare,threatened,or endangered species (such as the local
green sea and hawksbill sea turtles and the Hawaiian hoary bat)or their habitat and on
fresh and coastal water quality;
●A description of valued cultural resources or historical sites in the area,including the
extent to which traditional and customary native Hawaiian rights are exercised in the
area;
●An assessment of impacts on coastal scenic and open space resources and view planes,
including those outlined in the General Plan,the Community Development Plan,and
other adopted plans,as well as the line of sight toward the sea from the state highway
nearest the coast and along the shoreline;
●Identification and detailed information of existing public access to and along the
shoreline to the specifications required by Na Ala Hele and the Ala Kahakai National
Historic Trail;
●An assessment of impacts on hazard risk,including flooding,tsunami,and coastal
erosion and/or sea level rise over the life of the development;
●A description of the relationship of the proposed action to land use plans,policies,and
control of the affected area,including the General Plan and Community Development
Plan including potential impacts on traffic and circulation and required highway
improvements.
Any development permitted,including those determined to be exempt from the definition of
development in Planning Commission Rule 9,shall be subject to terms and conditions to
achieve Coastal Zone Management (CZM)and CDP objectives and policies,including conditions
that protect natural,cultural,historic,and recreational resources;preserve agricultural land,
open space,and view planes;ensure access;mitigate impacts of coastal hazards;limit coastal
development;and concentrate new development (particularly if it is not coastal dependent)on
vacant land in town/village centers (before converting agricultural land to residential uses),and
discouraging speculative residential development.Conditions could include but not be limited
to setbacks,restrictions on artificial light,lateral and mauka-makai access requirements,
dedication of conservation and trail corridor easements,cooperation with efforts to manage
access and use of coastal resources,minimizing the number of lots abutting or near the
shoreline,and maximizing the use of land in the State Land Use Urban district and/or urban
LUPAG categories.The Planning Department conditions of approval for the SMA include:“8.The
applicant will submit to the Planning Department for review and approval the following updated
plans:1)Water Quality and Marine Life Monitoring Plan,2)Pond Management Plan,3)Cultural
Resources Management Plan,and 4)Shoreline and Preservation Area Management Plan.These
plans shall be submitted prior to any development activities described in this permit.”
(1)Pursuant to this Policy,these studies should have been completed before submitting and in
support of the SMA application.(2)Pursuant to this Policy,the SMA application should also
have included an assessment of impacts on coastal scenic and open space resources and view
planes,…,as well as the line of sight toward the sea from the state highway nearest the coast
and along the shoreline.(3)Pursuant to this Policy,the SMA-23-46 application should have
also included an assessment of impacts on hazard risk,including flooding,tsunami,and
coastal erosion and/or sea level rise over the life of the development.
Note:The Planning Director has the authority to require an Environmental Assessment (EA)or
Environmental Impact Statement (EIS)in support of an SMA application.
Mahalo for your kokua,
Ka’ū CDP Action Committee
Jason Masters,Chair
cc:Councilperson Galimba
State Representative Kapela
State Senator Kanuha
Governor Green
Planning Director Kern