HomeMy WebLinkAboutPD Recommendation Report - Clemson and Janet Lam (PL-REZ-2025-000086)
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RLamREZAmend.crk.11.1.2025
COUNTY OF HAWAI‘I PLANNING DEPARTMENT
RECOMMENDATION
CLEMSON AND JANET LAM
AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 02-93
(PL-REZ-2025-000086/AMEND REZ 985) Upon careful review of the request to amend Condition D of Change of Zone Ordinance
No. 02-93, the Planning Director is recommending that a favorable recommendation be
forwarded to the Hawaiʻi County Council. Since this recommendation is made without the
benefit of public testimony, the Director reserves the right to modify and/or alter the
recommendation. This favorable recommendation is based on the following findings:
The applicants, Clemson and Janet Lam, are requesting the deletion of Condition
D (Prohibition of Second Dwelling) of Change of Zone Ordinance No. 02-93 and replacing
it with the following condition language or something similar: “Any restrictive covenant
that prohibits the construction of accessory dwelling units on the subdivision parcels is not
enforceable provided the proposed accessory dwelling unit has been approved by the
Planning Director, and is in compliance with other laws, rules, regulations, and
requirements of affected agencies including the Department of Water Supply and the
Department of Health.”
According to the applicant, the regulatory landscape regarding accessory dwelling
units (ADUs) in Hawai’i County has significantly evolved since Ordinance 02-93 was
adopted. The recent State law permitting ADUs, and the associated Hawai’i County Bill
123 (Ordinance 24-70 dated October 7, 2024), aim to provide more housing options
within areas served by adequate infrastructure.
According to the applicant, under the updated County and State regulations, an
accessory dwelling unit (ADU) is now permitted in both the County’s Residential and
Agricultural (RA) zoning district and the State Land Use Rural district. The applicant’s
property location, adjacent to a major roadway and near the town of Waimea, makes it a
prime and logical site for the integration of an ADU to help address the pressing need for
more housing for local residents and their family members. The applicant is seeking to
construct a 1-bedroom accessory dwelling unit and related improvements for their son to
reside on this family property.
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Granting the amendments would not be contrary to the original reasons for
granting the change of zone. The reasons for granting the original change of zone under
Ordinance No. 02-93 have not changed.
Namely, the RA-2a zoning, which is consistent with the surrounding, rural, low-
density residential land use pattern in the area will not change. As discussed below, it
remains consistent with the General Plan Land Use Pattern Allocation Guide (LUPAG)
map Rural designation and pertinent goals, policies, and actions of the General Plan.
Additionally, the proposed amendment will not be contrary coastal zone
management requirements under Hawaiʻi Revised Statutes (HRS) 205A nor will it have a
detrimental effect on historical, cultural, and natural resources.
The proposed second dwelling will be developed to current building code,
connect to an individual wastewater system meeting with the requirements of the State
Department of Health, and will be developed with a rainwater catchment tank for water
supply.
All essential utilities and services remain available to the project site. Police and
medical services are located nearby in Waimea, approximately 5.5 miles away. There is a
volunteer fire station located at the top of Waiula Drive, approximately 2 miles west
(makai) of the project site. The nearest manned fire and emergency services stations are
also in Waimea and near the South Kohala resort area, approximately 5.5 and 11.4 miles
away, respectively.
At the time the RA-2a zoning was approved, a primary dwelling could be built by
right and a second dwelling could have been built with the issuance of an ‘Ohana Dwelling
permit on each of the subdivided lots, thus doubling residential density. There was a
concern by the Planning Department and County Council at the time that this increased
density may contribute to a cumulative burden on existing infrastructure (roadways, water,
etc.), therefore Condition D was added to prohibit a second dwelling unit on the property.
Similar conditions were standard on most rezoning ordinances of that era.
The applicant’s justification for amending Condition D is based on recent
amendments to State law and the County Code, which permit ADUs within the RA zoning
district and on lands designated Rural by the State Land Use (SLU) system. The Planning
Director concurs that the intent of these legislative changes is to encourage the
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development of additional housing units overall within Hawaiʻi County and is therefore
generally supportive of amending the condition.
However, based on the Department’s interpretation of State statute, the
development of ADUs is not permitted within the SLU Rural District. Pursuant to HRS
§46-4.8, Accessory dwelling units on residentially zoned lots, subsection (b) provides that
“...each county shall adopt or amend ordinances defining reasonable standards that allow
for the construction of at least two accessory dwelling units, or the reasonable equivalent,
for residential use on all residentially zoned lots.” However, subsection (i)(1) clarifies that
“this section shall not apply to any area outside of the urban district established by Chapter
205.” Moreover, subsection (k) indicates that, ““Residentially zoned lot” does not include
a lot in a county zoning district that is intended for rural, low density residential
development, and open space preservation.” As the rezone area’s RA-2a zoning is intended
for rural, low density residential development, the ADU provision does not appear
applicable.
While the County has adopted an ADU ordinance under Bill No. 123, which
permits the construction of ADUs within the Residential and Agricultural (RA) zoning
district, this allowance applies only to properties located within the State Land Use Urban
District. Therefore, ADUs are not permitted within the rezone area, which lies in the State
Land Use Rural District.
Despite this limitation, under HRS §205-2(c),“Rural districts shall include
activities or uses characterized by low-density residential lots of not more than one
dwelling house per one-half acre, except as provided by county ordinance pursuant to
section 46-4(c), in areas where ‘city-like’ concentrations of people, structures, streets, and
urban levels of services are absent.”
As noted above, HRS §46-4(c) authorizes that, “Each county may adopt reasonable
standards to allow the construction of two single-family dwelling units on any lot where a
residential dwelling unit is permitted.”
Considering these statutory provisions and the State and County’s legislative intent
to promote the development of additional housing units, the Planning Director is inclined
to revise the current language in Condition D. The proposed revision would permit the
development of one (1) additional single-family dwelling on each of the parcels within the
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rezone area, unless or until state law authorizes the development of accessory dwelling
units (ADUs) in the State Land Use (SLU) Rural District.
The preceding would support the applicant’s intent to develop a single-family
dwelling for his son on their property, which will still be consistent with the low-density,
rural residential character of the area. It should be noted that this allowance will also extend
to the neighboring property (also subject to Ordinance 02-93), although they are not
proposing to develop a second dwelling. Finally, these second dwellings would not be
required to be developed or classified as an accessory dwelling unit (ADU) as defined by
the zoning code.
While the Planning Director supports the replacement of Condition D to allow the
construction of a second dwelling on the subject property, he recommends adding a fair
share condition on this amendment to address potential impacts on regional infrastructure
(roads, wastewater systems, police and fire protection, and public parks) related to the
development. It should be noted that no fair share condition was added on the original
rezone, thus no fair share was collected for the 2-lot subdivision.
Based on the preceding, the proposed request continues to be consistent with the
original reasons for granting the change of zone.
Granting of the proposed amendment would not be contrary to the General
Plan, Community Development Plan or Zoning Code.
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 LUPAG designation for the rezone
area is Rural, which includes existing subdivisions in the State Land Use Agricultural and
Rural districts that have a significant residential component. Typical lot sizes vary from
9,000 square feet to two acres. These subdivisions may contain small farms, wooded areas,
and open fields as well as residences. Allowable uses within these areas, with appropriate
zoning, may include commercial facilities that serve the residential and agricultural uses in
the area, and community and public facilities. The Rural designation does not necessarily
mean that these areas should be further subdivided to smaller lots. Most lack the
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infrastructure necessary to allow further subdivision. While the proposed amendment will
allow for the developemnt of an additional dwelling unit on each lot within the rezone area,
it will be done at a lower density (1 dwelling unit per roughly 1.66 acres) consistent with
the rural density envisioned for the rural designation.
Additionally, the request is consistent with the following goals, policies, and
actions of the General Plan:
LAND USE ELEMENT
▪ Designate and allocate land uses in appropriate proportions and mix and in
keeping with the social, cultural, and physical environments of the County.
▪ Zone urban- and rural-types of uses in areas with ease of access to community
services and employment centers and with adequate public utilities and facilities.
▪ Allocate appropriate requested zoning in accordance with the existing or projected
needs of neighborhood, community, region, and County.
▪ Zoning request shall be reviewed with respect to General Plan designation, district
goals, regional plans, State Land Use District, compatibility with adjacent zoned
uses, availability of public services and utilities, access, and public need.
HOUSING ELEMENT
▪ Attain safe, sanitary, and livable housing for the residents of County of Hawaiʻi.
▪ Maintain a housing supply which allows a variety of choice.
▪ Seek sufficient production of new affordable rental and fee-simple housing in the
County in a variety of sizes to satisfactorily accommodate the needs and desires of
families and individuals.
Since the area was rezoned, the South Kohala Community Development Plan
(SKCDP) was adopted by Ordinance No. 08 159 on December 1, 2008. The subject
property is located along Kawaihae Road between the Kawaihae and Waimea communities
within an existing subdivision which is not depicted on any of the Conceptual Plans
(Waimea, Waikoloa, Kawaihae, or Puakō) in the SKCDP.
According to the Department of Water Supply (DWS), each property within the
rezone area is currently served by a 5/8-inch water meter, which provides one unit of
water with an average daily usage of 400 gallons. DWS has further indicated that the
existing water system cannot support or provide additional service beyond current levels.
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Although the concurrency section of the Zoning Code related to water supply was
adopted after the area was rezoned, those requirements only apply to amendment requests
seeking an extension of time to fulfill a zoning condition.
Since this amendment request does not involve an extension of time, the
concurrency requirements for water supply are not applicable. Therefore, it is determined
that the additional dwellings may be constructed using water catchment tanks without
conflicting with the concurrency provisions of the Zoning Code.
The request is not contrary to Chapter 205A, Hawaiʻi Revised Statues,
relating to Coastal Zone Management. The subject property is located approximately
6.2 miles from the nearest shoreline and is not situated within the SMA. Thus, the
property will not be affected by coastal hazards and beach erosion. There are no
identified recreational resources, historic resources, public access to the shoreline or
mountain areas, scenic and open space preserves, coastal ecosystems, or marine resources
on the subject property.
In view of the Hawaiʻi State Supreme Court’s PASH and “Ka Paʻakai O Ka
ʻĀina” decisions, the issue relative to native Hawaiian gathering and fishing rights must
be addressed in terms of the cultural, historical, and natural resources and the associated
traditional and customary practices of the site.
Investigation of valued resources: No professional floral/faunal or
archaeological/cultural studies were submitted with the amendment request as each
property in the rezone area has been cleared and improved with a single-family dwelling
and related improvements.
The valued cultural, historical, and natural resources found in the rezoning area:
According to the findings from the original change of zone application no valued cultural,
historical or native resources nor any traditional and customary Native Hawaiian rights
were practiced in the area, nor is there any record of designated public access to the
shoreline or mountain areas that traverses the property.
Due to this longtime residential use, it is unlikely that any endangered or
threatened candidate species of flora or fauna are located within the subject property, nor
has the area been identified as a significant botanical or biological habitat.
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Possible adverse effect or impairment of valued resources: There is no evidence
of any possible adverse effects or impairments will occur to any valued resources.
Feasible actions to protect native Hawaiian rights: There is no evidence of any
valued cultural, historical, and/or natural resources found on the site, thus to the extent
which traditional and customary native Hawaiian rights are exercised, the proposed
action will not affect traditional Hawaiian rights; therefore, no action is necessary to
protect these rights. As the applicant is proposing to develop an additional dwelling on
the property, the standard zoning condition regarding treatment of inadvertent
historical/cultural resource finds on the property will be retained and updated to the new
standard condition language.
Lastly, this recommendation is made with the understanding that the applicant
remains responsible for complying with all other applicable governmental requirements
in connection with the proposed use, prior to its commencement or establishment upon
the subject properties. Additional governmental requirements may include the issuance of
building permits, compliance with the Fire Code, installation of improvements required
by the American with Disabilities Act (ADA), among many others. Compliance with all
applicable governmental requirements is a condition of this approval; failure to comply
with such requirements will be considered a violation that may result in enforcement
action by the Planning Department and/or the affected agencies.
Based on the preceding findings, the Planning Director recommends that a favorable
recommendation to amend Condition D of Ordinance No 02-93 be forwarded to the County
Council. The accompanying draft bill to amend Ordinance No. 02-93 is provided for your
consideration. Please note the proposed conditions of approval attached to the draft bill,
including updates to conditions to reflect current standard condition language. Material to be
deleted is bracketed and struck through; new material is underscored.
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COUNTY OF HAWAI‘I
STATE OF HAWAI‘I
BILL NO.
ORDINANCE NO.
(Planning Department)
AN ORDINANCE AMENDING ORDINANCE NO. 02-93, WHICH AMENDED SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAIʻI COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-5a) TO RESIDENTIAL AND AGRICULTURAL (RA-2a) AT ‘ŌULI, SOUTH KOHALA, HAWAIʻI, COVERED BY TAX MAP KEY NO. 6-2-007:002.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI‘I:
SECTION 1. Section 2 of Ordinance No. 02-93 is amended to read as follows:
“SECTION 2. In accordance with Section 25-2-44, Hawai‘i County Code[,] 1983 (2016
Edition, as amended), the County Council finds the following conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety, and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of
the proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
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INSERT CONDITIONS ”
SECTION 2. Material to be repealed is bracketed and stricken. New material is
underscored. In printing this ordinance, the brackets, bracketed and stricken material, and
underscoring need not be included.
SECTION 3. Severability. If any provision of this ordinance, or the application thereof
to any person or circumstance, is held invalid, the invalidity does not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable.
SECTION 4. This ordinance shall take effect upon its approval.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAI‘I
, Hawai‘i Date of Introduction: Date of 1st Reading:
Date of 2nd Reading: Effective Date:
CLamREZAmend.10.15.2025
CLEMSON & JANET LAM
AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 02-93
(PL-REZ-2025-000086/ AMEND REZ 985)
AMENDED CONDITIONS OF APPROVAL
A. The applicant, its successors or assigns (“Applicant”) shall be responsible for complying
with all of the stated conditions of approval.
B. The [applicant, successors or assigns] Applicant shall be responsible for complying with
all requirements of Chapter 205, Hawaiʻi Revised Statutes, relating to permissible uses
within the State Land Use Rural District.
C. [Final Subdivision Approval for the subdivision shall be secured within five (5) years from
the effective date of this ordinance.] The 10-foot wide driveway easement, [10-foot wide
no vehicular access planting screen easement,] drainage easement reserve area and the
drainage easement that encumbers the area along Keanuiomano Stream shall be shown and
identified on all plans for building permit.
D. [Restrictive covenants in the deeds of all the proposed lots within the subject property shall
give notice that the terms of the zoning ordinance prohibit the construction of a second
dwelling unit and condominium property regimes on each lot. A copy of the proposed
covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the
Planning Director for review and approval prior to the issuance of Final Subdivision
Approval. A copy of the recorded document shall be filed with the Planning Department
upon its receipt from the Bureau of Conveyances.] The construction of no more than one
(1) additional single-family dwelling shall be allowed on each lot covered by this amended
ordinance unless or until State Law allows the development of Accessory Dwelling Units
(ADUs) in the State Land Use Rural district.
E. [Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell
concentrations or human burials be encountered, work in the immediate area shall cease
and the Department of Land and Natural Resources Historic Preservation Division (DLNR-
HPD) shall be immediately notified. Subsequent work shall proceed upon an
archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative
measures have been taken.] In the event that surface or subsurface historic resources,
including human skeletal remains, structural remains (e.g. rock walls, terraces, platforms,
etc.), cultural deposits, marine shell concentrations, sand deposits, or sink holes are
identified during the demolition and/or construction work, the Applicant shall cease work
in the immediate vicinity of the find, protect the find from additional disturbance and
contact the Department of Land and Natural Resources-State Historic Preservation
Division (DLNR-SHPD) at (808) 933-7651. Subsequent work shall proceed upon
archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation
measures have been taken.
F. [The applicant shall comply with all applicable laws, rules, regulations and requirements
of affected agencies, including the Department of Water Supply and the Department of
Health.] The Applicant shall pay its fair share contribution to mitigate the potential regional
impacts of the development with respect to parks and recreation, fire, police, solid waste
disposal facilities and roads. The fair share contribution shall be initially based on the
representations contained within the change of zone amendment application and may be
increased or reduced proportionally if the dwelling counts are adjusted. The fair share
contribution shall become due and payable prior to issuance of building permit for any
additional single-family dwellings. The fair share contribution in a form of cash, land,
facilities, or any combination thereof shall be determined by the County Council. The fair
share contribution may be adjusted annually beginning three years after the effective date
of this ordinance, based on the percentage change in the Honolulu Consumer Price Index
(HCPI). The fair share contribution shall have a combined value of $17,921.82 per
additional dwelling. The total amount shall be determined according to the calculation and
payment provisions set forth in this condition. The fair share contribution per additional
single-family dwelling shall be allocated as follows:
1. $8,642.22 per single-family dwelling to the County to support park and
recreational improvements and facilities;
2. $416.90 per single-family dwelling to the County to support police facilities;
3. $823.43 per single-family dwelling to the County to support fire facilities;
4. $360.51 per single-family dwelling to the County to support solid waste facilities;
5. $7,678.76 per single-family dwelling to the County to support road and traffic
improvements.
In lieu of paying the fair share contribution, the Applicant may contribute land and/or
construct improvements/facilities related to parks and recreation, fire, police, solid waste
disposal facilities and roads within the region impacted by the proposed development,
subject to the review and recommendation of the Planning Director, upon consultation
with the appropriate agencies and approval of the County Council pursuant to Section 2-
162.1(a) of Hawai‘i County Code.
G. Should the Hawaiʻi County Council adopt a Unified Impact Fees Ordinance setting forth
criteria for imposition of exactions or the assessment of impact fees, conditions included
herein shall be credited towards the requirements of the Unified Impact Fees Ordinance.
[H. An initial extension of time for the performance of conditions within the ordinance may be
granted by the Planning Director upon the following circumstances:
1. The non-performance is the result of conditions that could not have been foreseen
or are beyond the control of the applicant, its successors or assigns, and that are
not the result of their fault or negligence.
2. Granting of the time extension would not be contrary to the General Plan or
Zoning Code.
3. Granting of the time extension would not be contrary to the original reasons for
the granting of the change of zone.
4. 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).
5. If the applicant should require an additional extension of time, the Planning
Director shall submit the applicant's request to the County Council for appropriate
action.] The Applicant shall compy with all applicable County, State and Federal
laws, rules, regulations and requirements.
[I. Should any of the conditions not be met or substantially complied with in a timely
fashion, the Director may initiate rezoning of the subject area to its original or
more appropriate designation.]