Loading...
HomeMy WebLinkAboutWritten Testimony Rec. 2024-07-05 by Ron Whitmore1 Lahip, Jessica From:Ron Whitmore Sent:Friday, July 5, 2024 12:47 PM To:Planning CDP Subject:Testimony for 7/11/24 Kau CDP Action Committee meeting Attachments:SMA-23-46_KauCDP.pdf Aloha. I am submitting the following testimony for the July 11, 2024 Kau CDP Action Committee meeting, agenda item IV. 1. Testimony to the Windward PC regarding SMA-23-46: I was the project manager for the Kau CDP and played a lead role in writing the CDP. When I heard about SMA-23- 46, I prepared the attached summary of excerpts from the CDP that apply to the application. In summary:  SMA-23-46 appears to be consistent with the following Policy Controls: Policy 1, Policy 5, Policy 7  SMA-23-46 appears to be inconsistent with the following Policy Controls: o Policy 6: It does not include aƯordable housing. o Policy 28: A new shoreline setback should have been established. o 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.  The CDP Action Committee has an opportunity to play a leadership role, in collaboration with the landowner, in implementing Community Action 29: Develop and implement plans for Punalu‘u. Please acknowledge receipt. Mahalo, Ron Whitmore 1 Kau CDP excerpts related to SMA-23-46 Contents Kau CDP Resources ..................................................................................................................... 1 Related Kau CDP Policy Intent ...................................................................................................... 2 Related Kau CDP Policy Controls .................................................................................................. 3 Land Use Policy (Policies 1, 5, 6, 7, and 27) ................................................................................ 3 Shoreline Setback (Policy 28) .................................................................................................... 5 SMA (Policy 29) ......................................................................................................................... 7 Public Access (Policy 80) .......................................................................................................... 9 Related Kau CDP Collaborative, Community-Based Actions ........................................................ 10 Community Action 29: Develop and implement plans for Punaluʻu. .......................................... 10 Kau CDP Resources Table 2 (p. 32): cross-reference to all policies and actions that related to Punaluu (https://www.hawaiicounty.gov/home/showdocument?id=304234&t=637799914051370000) Appendix 5: CDP Strategy Rationale: It includes all of the Ka‘ū Community Development Plan (CDP) strategies and the rationale behind them, with the exception of the Community-Based, Collaborative Actions, which are explained in the “Community-Based, Collaborative Action Guide.” (https://www.planning.hawaiicounty.gov/home/showpublisheddocument/301799/6372055385694 30000) Appendix 6: Land Use Policy Guide: quick-reference guide for land use planners. Section 5: Permitting Policies” includes all of the CDP land use policy controls, organized by the types of review, application, or permits to which they may apply: historic review, change of zone, special permit, use permit, planned unit development, Special Management Area, subdivision, parcel consolidation and resubdivision, variance, plan approval, and grubbing and grading. (https://www.planning.hawaiicounty.gov/home/showpublisheddocument/301797/6372055385614 70000) 2 Related Kau CDP Policy Intent “Policy Intent” Land Use Policies are general statements that express policy aims or objectives. From a legal standpoint, these “hortatory” policies are open to interpretation when applied in speciflc instances. Policy 23: Protect the shoreline from the encroachment of man‐made improvements and structures. (GP 8.3(d)) Policy 24: Maintain the shoreline for recreational, cultural, education, and/or scientiflc uses in a manner that is protective of resources and is of the maximum beneflt to the general public. (GP 8.3(c)) Policy 25: Protect and conserve forest and coastal areas with native wildlife, natural ecosystems, and wilderness. (GP 8.4) Policy 53: Protect, preserve and enhance the quality of open space, areas endowed with natural and scenic beauty, and public views to and along the shoreline. (HRS 205A‐2(b)(3)(B), HRS 205‐26, Charter section 13‐29, & GP 7.2(a), 7.2(c), 8.2(e), 14.8.2(a), & 14.8.3(d)) Policy 54: Protect scenic vistas and view planes from becoming obstructed, considering structural setbacks from major thoroughfares and highways to protect view plans. (GP 7.2(b) & 7.3(f)) Policy 55: Do not allow incompatible construction in areas of natural beauty. (GP 7.3(i)) Policy 62: Protect, preserve, and effectively manage forests, watersheds, shoreline areas, natural areas, and rare or endangered species and their habitats. (GP 8.2(d) & (e), 14.1.2(c), & 14.8.2(b)) Policy 69: Protect, restore, and enhance the sites, buildings, and objects of signiflcant historical and cultural importance to Hawai‘i. (GP 6.2(a)) Policy 70: 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. (Hawai‘i State Constitution, Article 12, section 7; HRS §§ 1‐1 & 7‐1; Ka Paʻakai o ka ʻĀina v. Land Use Comm’n, 94 Hawai‘i 31 (2000); Pele Defense Fund v. Paty, 73 Haw. 578 (1992)) Policy 79: Ensure appropriate public access to the shoreline, public trails, hunting areas, scenic places and vistas, and signiflcant historic sites, buildings, and objects of public interest. Additionally, ensure access for cultural practitioners. (GP 6.2(b), 7.3(a), and 8.3(r)) 3 Related Kau CDP Policy Controls “Policy Control” Land Use Policies limit the range of decisions that can be made in the future, like land use policies that speciflcally designate future settlement or transportation patterns. These binding, sometimes restrictive policy controls often include use of the term “shall,” which, from a legal standpoint, means the policy is imperative or mandatory. Land Use Policy (Policies 1, 5, 6, 7, and 27) Policy 1: Rehabilitate and develop within existing zoned urban areas already served by basic infrastructure, or close to such area, instead of scattered development. Note: Much of Punaluu is in the State Urban district and is zoned for urban uses, including near the shoreline. See the Zoning map below (Figure 11 in SMA-23-46). 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. Note: 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. (GP 2.4.9.2(a & c), 9.3(g), 14.7.2(c), 14.7.3(i), 14.7.5.9.2(a)) Note: SMA-23-46 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 deflnitions 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 confiict. 4 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. Note: The General Plan “Open” designation (see the map above: (Figure 10 in SMA-23-46)) 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 SMA-23-46 is consistent with the zoning (see map below: (Figure 11 in SMA-23-46). 5 Shoreline Setback (Policy 28) 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. Note: The SMA-23-46 application says “Special note should be taken that while the Applicant is proposing the restoration of the former Punaluʻu Restaurant site for educational and recreational types of uses, it will only be pursued if the reuse of the former restaurant buildings and surrounding grounds can be reasonably rehabilitated in light of the regulatory environment that encumbers this particular area, such as the jurisdictional issues related to the shoreline and the anchialine pond, shoreline setback requirements, coastal fiood requirements, and other regulatory hurdles. At the 6 very least, the Applicant is committed to the clean-up and maintenance of the existing 62-stall parking lot, which includes bus parking and visitor drop-off area. The Applicant will explore the permitting pathways in the hopes of providing for the clean-up and establishment of passive activities at this former restaurant site, but understands that regulations may not permit certain concept elements to be realized.” Likewise, the Planning Department documents state: “The following parcels are also considered "shoreline parcels" as deflned by Section 205A-41(as amended), Hawaii Revised Statutes (HRS): TMKs: 9-5-019:011 [large southern parcel], 9-6-001: 006 [beach park], 9-6-001:003 [shoreline portion of old restaurant grounds], and 9-6-001:002 [shoreline portion of old restaurant grounds]. “Staff notes that no work is being proposed within the shoreline setback area, with the majority of development being located well mauka of the beach and shoreline area. As such the requirement to conduct a shoreline certiflcation was waived by the Planning Director as no shoreline work is proposed that would cross or even be close to the shoreline setback area boundary.” However, Figure 4 in SMA-23-46 (below) 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 per Policy 28. Additional information from page 38 of the Strategy Rationale: Impact of the Setback Policy (Policy 28): 7 “Trigger: 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 flve 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 speciflc 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. SMA (Policy 29) 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. (HRS 205A- 22(3) & 205A-26(2)(A)) Pursuant to Planning Commission (PC) Rule 9-10(b)(5) & (11), and in order for the Planning Director to accurately evaluate whether the proposed action will have a substantial adverse effect, pursuant to PC Rule 9-4(e)(4), 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 or their habitat and on fresh and coastal water quality (PC Rule 9‐10(b)(5)(A) & (6) and 9‐10(h)(7), (8), & (9)); • 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 (PC Rule 9‐10(b)(6) & (h)(1)); 8 • 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 (HRS 205A‐2(b)(3) (A), HRS 205A‐2(c)(3)(B), HRS 205A‐ 26(3)(E), and PC Rule 9‐10(h)(1)); • Identiflcation and detailed information of existing public access to and along the shoreline to the speciflcations required by Na Ala Hele and the Ala Kahakai National Historic Trail (PC Rule 9‐10(b)(10)); • An assessment of impacts on hazard risk, including fiooding, tsunami, and coastal erosion and/or sea level rise over the life of the development (PC Rule 9‐10(h)(9)); • 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 (PC Rule 9‐10(b)(5)(B)). Any development permitted, including those determined to be exempt from the deflnition of development in Planning Commission Rule 9 (pursuant to Planning Commission Rule 9‐10(e) & (g)), shall be subject to terms and conditions to achieve 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 artiflcial 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. Note: The Planning Department conditions of approval for SMA-23-46 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.” Pursuant to Policy 29, these studies should have been completed before submitting and in support of the SMA-23-46 application. Note: The SMA-23-46 application states that “Structures will not be more than 2-1/2 stories in height and with earthtone colors, constructed away from both the highway and shoreline so as to protect scenic viewplanes.” Pursuant to Policy 29, the SMA-23-46 application should 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 (HRS 205A‐2(b)(3) (A), HRS 205A‐2(c)(3)(B), HRS 205A‐26(3)(E), and PC Rule 9‐10(h)(1)). 9 Note: The SMA-23-46 application states that: “The only existing facility that will be impacted by sea level rise is probably portions of the former Punaluʻu Restaurant complex. The Applicant will like to explore the possibility of repurposing the abandoned restaurant hale and service facilities for passive activities, such as a welcome center, learning center and open area activities such as luaus. But the Applicant is also aware of the difficult regulatory implications of multi-jurisdictional oversight regarding any attempt to clean, restore and rehabilitate this former restaurant area and pond. Therefore, the limited activities proposed within the vicinity of Kawaihūokauila Pond should not be directly affected by hazards associated with sea level rise as the Applicant will not introduce new facilities in this sensitive area.” The application also says “Special note should be taken that while the Applicant is proposing the restoration of the former Punaluʻu Restaurant site for educational and recreational types of uses, it will only be pursued if the reuse of the former restaurant buildings and surrounding grounds can be reasonably rehabilitated in light of the regulatory environment that encumbers this particular area, such as the jurisdictional issues related to the shoreline and the anchialine pond, shoreline setback requirements, coastal fiood requirements, and other regulatory hurdles. At the very least, the Applicant is committed to the clean-up and maintenance of the existing 62-stall parking lot, which includes bus parking and visitor drop-off area. The Applicant will explore the permitting pathways in the hopes of providing for the clean-up and establishment of passive activities at this former restaurant site, but understands that regulations may not permit certain concept elements to be realized.” However, Figure 4 in SMA-23-46 (above) clearly includes “new facilities” as well as development that would directly be impacted by tsunamis and sea level rise, including Artisan Garden Hales, Museum Pavilion, Welcome Center, and Beach Club Café, some of which are on parcels that abut the shore. Pursuant to Policy 29, the SMA-23-46 application should have 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 in support of an SMA application. Public Access (Policy 80) Policy 80: Appropriate public access to and along the shoreline shall be ensured as a condition of SMA exemptions and permits. (HRS 205A-26) 10 Related Kau CDP Collaborative, Community-Based Actions Note: Kau CDP Community Action 29 was designed to guide the development and implementation of plans for Punaluu. The vision and implementation steps described below contrast starkly with SMA-23-46. Also, pp. 162ff in Kau CDP Appendix 4B: Community Building Analysis (https://www.planning.hawaiicounty.gov/home/showpublisheddocument/301771/6372050470523 30000) describe and assess flve different scenarios for development of Punaluu and assesses the “Order of Magnitude” Impacts of each. That analysis is a good point of reference for planning future development at Punaluu. Community Action 29: Develop and implement plans for Punaluʻu. Need: Punaluʻu features a unique combination of signiflcant resources: ecological (turtle nesting, wetlands), cultural (historic sites, natural beauty), recreational (shoreline access and trail, beach park, flshing, boat launch, golf course), and economic (boat launch, vacation rentals). However, not all of those resources are sufficiently protected or actively managed. Punaluʻu is in the State Urban district, and it is zoned for residential and resort development (both by the County and DHHL). However, the existing water and wastewater system infrastructure appears to be in poor condition and signiflcant maintenance, repairs, and upgrades may be necessary. Moreover, portions of Punaluʻu designated for development are vulnerable to hazards, including wildflre, fioods, tsunamis, and sea level rise. There is community consensus about what the future of Punaluʻu should hold. Elements of that shared vision include: • Keep It Ka‘ū: Punalu‘u should always be true to – and “feel” like – Ka‘ū. The size, uses, layout, and architecture of any future improvements should refiect and preserve Ka‘ū’s open spaces, views, Hawaiian heritage, rural lifestyle, and “local” character. Punalu‘u should also protect and strengthen Ka‘ū’s powerful connection between people and place. Unrestricted shoreline, beach, and park access should be maintained for boating, swimming, surflng, hiking/walking, flshing, gathering, camping, cook-outs, and cultural practices. • Take Care: This means taking care of Punalu‘u’s rich natural and cultural resources. The communities that have fiourished in Ka‘ū for generations should be honored through careful stewardship of ancient and historic cultural sites as well as the natural beauty, water quality, wetlands, ponds, springs, and native and threatened species and habitats in the area. Interpretative signage should be installed to educate residents and visitors about Punalu‘u’s special history and natural systems. 11 This also means taking care of Ka‘ū’s people. Punalu‘u should be a resource for keiki, kupuna, ‘ohana, and community. It is already used as a formal and informal research and education site, and those uses could be expanded to include training for cultural practices, traditional and modern trades, recreation, eco-tourism, natural resource management, archaeology, and many other flelds. It should also provide new economic opportunity and options for residents of Ka‘ū – providing security and stability for thriving families and communities. • Can Do: The people of Ka‘ū must have a stake in both planning and managing Punalu‘u’s future. They are committed to Ka‘ū and have signiflcant wisdom, passion, talent, and resources to invest. Through time-tested local protocols, “talk story,” and aloha, they can agree on a balanced path forward. Immediate Next Steps: • Determine interest among stakeholders (starting with potential partners and allies listed above) in a collaborative process to develop and pursue strategies to achieve the community’s shared vision for Punaluʻu. • Consider use of an independent third party to facilitate the planning process. • Consider a range of viable alternative future scenarios (see Appendix V4B), including these variables: o A mix of tools for protecting ecological and cultural resources o A variety of complementary uses, possibly including open space, wilderness, botanical gardens, agriculture, aquaculture, resort lodging, more housing, more recreation, dining, retail, education, training, and research o The spectrum of feasible scales of improvement o Required infrastructure improvements o Appropriate hazard mitigation measures o Jobs and other economic opportunities o A range of community beneflts, including shoreline access, shared equity/revenue, affordable housing, “local hire flrst” policies, local business development, educational and cultural facilities, and other community services, along with proven methods for ensuring accountability. o A range of collaborations, including creative models of ownership and management (see Appendix V4C). • Use objective criteria to assess the strengths and weaknesses of alternative scenarios and strategies. • Identify preferred scenarios and strategies. • Develop detailed plans. • Implement those plans.