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HomeMy WebLinkAboutPD Recommendation Report - Ernest and Elizabeth Young (PL-REZ-2025-000087) -1- RYoungREZAmend.10.3.2025 COUNTY OF HAWAI‘I PLANNING DEPARTMENT RECOMMENDATION ERNEST AND ELIZABETH YOUNG AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 21-40 (PL-REZ-2025-000087/AMEND REZ 1059)________________________________________ Upon careful review of the request to amend Condition C and to delete Condition H of Change of Zone Ordinance No. 21-40, 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, Ernest and Elizabeth Young, have submitted an application for a 5-year time extension to Condition C (Time to Secure Final Subdivision Approval) and to delete Condition H (Prohibition of Second Dwelling) of Change of Zone Ordinance No. 21-40, which amended Change of Zone Ordinance No. 04-149, which rezoned 1.8629 acres of land from Agricultural-5 Acres (A-5a) to Single Family Residential-20,000 Square Feet (RS-20) zoning district. The applicants purchased the property in 2016 and have been working toward complying with conditions of the change of zone ordinance and tentative subdivision approval. However, as the applicants will need more time to complete the remaining conditions, they are requesting a time extension to Condition C. Regarding the request to delete Condition H, following the passage of County Council Bill 123, which allows the development of up to 3 accessory dwelling units (ADUs) per lot in the RS zoning district, the applicants would like to remove the prohibition of the construction of a second dwelling in order to build ADUs on the proposed lots and offer them for rent. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors or assigns, and that are not the result of their fault or negligence. The previous landowner, Lillian Mahi, received approval for a State Land Use Boundary Amendment and Change of Zone for the subject parcel in 2004. At the time, the applicant proposed to subdivide the subject parcel into 3 lots at least 20,000 square feet in size. Despite initiating the subdivision process in 2005, Ms. Mahi was unable to complete the requirements of tentative subdivision approval -2- by the time she passed away in 2008, and the property was subsequently sold. The current applicants purchased the property in 2016 and have stated the need for more time to comply with conditions of the change of zone ordinance and tentative subdivision approval. Based on the preceding, the Director recommends amending Condition C to allow a 5-year time extension, in addition to adding updated standard language regarding tolling for government agency review. Granting of 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. 04-149 and amended Ordinance 21-40 have not changed. The current applicants intend to develop the property by creating a 3-lot subdivision consistent with the RS-20 zoning district. Condition D (Access) was amended with the approval of Ordinance 21-40 to require that access to proposed lots be taken solely from Mahilani Drive, and as required by the State Department of Transportation (DOT), that the applicants remove the existing driveway onto Māmalahoa Highway. Additionally, per condition E (Planting Screen) of Ordinance 21-40, the applicants are required to delineate a 10-foot-wide planting screen easement along all lots fronting Māmalahoa Highway. DOT noted no objections to the current amendment request and provided general guidance relating to construction in the vicinity of the Ellison Onizuka Kona International Airport at Keāhole. The applicants’ request to delete Condition H would support their intention to build accessory dwelling units (ADUs) on the proposed lots and offer them for rent, a new opportunity following approval of County Council Bill 123. The Department of Water Supply (DWS) has no objection to the current amendment request, subject to the understanding that the total allocation of water for the subject property is limited to 3 units of water. If additional dwellings are built as ADUs, DWS states that it cannot support additional water units for the ADUs. In response to DWS comments, the applicants have confirmed that they understand and accept this limitation and that water catchment systems will be utilized to provide water for ADUs. The Planning Director notes that the Zoning Code allows for ADUs to be served by a public or private water system, rain catchment system or private well and recommends -3- the inclusion of a condition requiring compliance with Zoning Code regulations on the construction of ADUs (Section 25-6-30 through 25-6-39). The Department of Environmental Management notes that as the proposed subdivision is approximately 4 miles from the nearest county sewer line, the applicants shall comply with Department of Health (DOH) requirements. According to the applicants, wastewater will be disposed of via individual wastewater treatment systems approved by DOH. All essential utilities and services are available to the project site. The area is served by police and fire stations in Kailua-Kona, approximately 8 miles from the subject property, while emergency medical services are available at the Kona Hospital in Kealakekua. 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 amendments would not be contrary to the General Plan, Community Development Plan or Zoning Code. Since the subject parcel was rezoned, the Kona Community Development Plan (KCDP), adopted in 2008, designated the property as within the “Kona Urban Area,” within which the RS-20 zoning is an appropriate classification. Recent amendments to State law and the County Zoning Code have significantly increased the potential number of homes that can be built on most urban-zoned lots. Property owners are now allowed to construct one primary dwelling and up to three Accessory Dwelling Units (ADUs) on a single lot, for a total of four possible dwellings per lot. This represents a potential 300% increase in residential density per lot. With this new development capacity allowed by right, the Planning Director finds it necessary to evaluate the possible impacts on regional infrastructure and public services, including roads, wastewater systems, police and fire protection, and public parks that serve new residents. Historically, when parcels were “upzoned” to allow higher residential density, the County typically included conditions prohibiting the construction of a second dwelling (such as condition H). At the time, additional dwellings were permitted mainly through ʻOhana dwelling permits (a process that has since been replaced by ADU allowances). -4- These restrictions helped manage neighborhood density and minimize strain on infrastructure. A Fair Share condition was also included in such rezonings, requiring financial contributions to the County to offset the impacts of new development. These payments were generally tied to the number of new lots created, since each lot was limited to one dwelling unit. Given today’s zoning framework, the Planning Director does not consider it appropriate to impose new conditions that would prohibit landowners from developing ADUs now allowed under the Zoning Code. Doing so could conflict with property rights established by current law. However, it is appropriate to update the Fair Share condition in order to mitigate regional impacts on infrastructure caused by this new development potential. Accordingly, the Fair Share condition has been revised to require contributions not only for new lots created (payable before final subdivision approval) but also for any future ADUs constructed beyond the initial primary dwelling. For these additional units, the Fair Share payment will be required before issuance of a building permit. Regarding the County’s General Plan, the proposed amendments are consistent with the Low Density Urban (ldu) designation, which allows for residential, with ancillary community and public uses, neighborhood and convenience-type commercial uses with overall residential density up to six units per acre. 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. -5- 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. The request is not contrary to Chapter 205A, Hawaii Revised Statues, relating to Coastal Zone Management. The subject property is located approximately 5.3 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 Kaʻaina” 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: A botanical study of the subject property was conducted in 2004 which concluded that "no rare, threatened, or endangered species as listed by the U.S. Fish and Wildlife Service were observed on or near the property, as the property was already graded and developed for residential use." The valued cultural, historical, and natural resources found in the rezoning area: As mentioned previously, the Department of Land and Natural Resources – State Historic Preservation Division (SHPD) indicated no objection to the proposed time extension in 2021, citing the extensive grading and existing residential development of the parcel. There are no known features of cultural importance, there is no known history of traditional practices associated with the property, nor is there any record of designated public access to the shoreline or mountain areas that traverses the property. 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. -6- 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. 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 for a 5-year time extension to Condition C and to delete Condition H be forwarded to the County Council to amend Ordinance No 21-40. The accompanying draft bill to amend Ordinance No. 21-40 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. -1- COUNTY OF HAWAI‘I STATE OF HAWAI‘I BILL NO. ORDINANCE NO. (Planning Department) AN ORDINANCE AMENDING ORDINANCE NO. 04-149, AS AMENDED, WHICH RECLASSIFIED LANDS FROM AGRICULTURAL – FIVE ACRES (A-5a) TO SINGLE-FAMILY RESIDENTIAL – 20,000 SQUARE FEET (RS-20) AT KALAOA 1ST AND 2ND, NORTH KONA, HAWAIʻI, COVERED BY TAX MAP KEY NO. 7-3-011:068. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI‘I: SECTION 1. Section 2 of Ordinance No. 04-149, as amended by Ordinance No. 21-40, is hereby 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. -2- 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: CYoungREZAmend.10.3.2025 ERNEST AND ELIZABETH YOUNG AMENDMENT TO CHANGE OF ZONE ORDINANCE NO 21-40 (PL-REZ-2025-000087/AMEND REZ 1059) AMENDED CONDITIONS OF APPROVAL A. The applicant, successors, or assigns (“Applicant”) shall be responsible for complying with all of the stated conditions of approval. B. The [applicant, successors, or assigns are]Applicant is responsible for maintaining valid water commitments to support the proposed use until such time that required water facilities charges are paid in full. C. Final subdivision approval shall be secured within five (5) years from the effective date of this amended ordinance. The time during which required plans, reports, studies, or relevant permit applications are under review for approvals by government agencies shall not count towards the deadline established in the ordinance. To justify this tolling, the Applicant shall provide evidence of the excluded time period to the planning department for its review and approval, which shall consist of dates obtained from a government agency website, permitting program, or office indicating when the required plans, reports, studies, or permit applications were submitted, approved, denied, or returned by the government agency. D. Access to the proposed lots shall be from Mahilani Drive. Access shall meet the requirements of the Department of Public Works. The existing driveway onto Māmalahoa Highway shall be removed prior to issuance of Final Subdivision Approval. E. A 10-foot wide “no vehicular access planting screen” easement shall be delineated along all lots fronting Māmalahoa Highway. F. All development-generated runoff shall be disposed of on-site and shall not be directed toward any adjacent properties. G. Drainage improvements, if required, shall be constructed meeting with the approval of the Department of Public Works in conjunction with Final Subdivision Approval. [H. Restrictive covenants in the deeds of all proposed residential lots shall prohibit the construction of a second dwelling unit and condominium property regimes and any further subdivision of each lot. This restriction may be removed by amendment of this ordinance by the County Council. The owners of the property may also impose private covenants restricting the number of dwellings. 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 approved covenant(s) shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances for any portion of the subject property. A copy of the recorded document shall be filed with the Planning Department upon its receipt from the Bureau of Conveyances.] H. The Applicant shall comply with all requirements of Section 25-6-30 through 25-6-39 of the County of Hawaiʻi Zoning Code, as amended, relating to Accessory Dwelling Units. I All earthwork and grading shall conform to Chapter 10, Erosion and Sedimentation Control of the Hawaiʻi County Code. J. A National Pollutant Discharge Elimination System (NPDES) permit and an Underground Injection Control (UIC) permit, if required, shall be secured from the State Department of Health before the commencement of construction activities. K. 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]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 an archaeological clearance from DLNR-SHPD when it finds that sufficient mitigation measures have been taken. L. [The applicant shall pay its fair share contribution to address the potential regional impacts of the project with respect to roads, park, fire, police and solid waste disposal facilities. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the lot counts are adjusted. The fair share contribution shall become due and payable prior to receipt of Final Subdivision Approval. The fair share contribution for each additional lot shall be based on the actual number of residential lots developed. 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 $15,030.92 per additional single family residential lot. The total amount shall be determined with the actual number of lots according to the calculation and payment provisions set forth in this condition. The fair share contribution shall be as County Council deems reasonable which may be less when considering the merits of the application, or as follows: 1. $7,248.17 per single family residential lot to the County to support park and recreational improvements and facilities; 2. $349.65 per single family residential lot to the County to support police facilities; 3. $690.61 per single family residential lot to the County to support fire facilities; 4. $302.36 per single family residential lot to the County to support solid waste facilities; 5. $6,440.12 per single family residential lot to the County to support road and traffic improvements. In lieu of paying the fair share contribution, the applicant may construct such facilities related to park, fire, police, and solid waste disposal facilities subject to the review and recommendation of the Planning Director, upon consultation with the appropriate agencies and the approval of the Hawaiʻi County Council] The Applicant shall make 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 become due and payable prior to receipt of Final Subdivision Approval for any additional lots created and prior to issuance of a Building Permit for any accessory dwelling units (ADU). The fair share contribution for each newly created lot and/or ADU shall be based on the actual number of residential lots/ADUs developed. The fair share contribution in the 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 lot/ADU. The total amount shall be determined according to the calculation and payment provisions set forth in this condition. The fair share contribution per single family residential lot/ADU shall be allocated as follows: 1. $8,642.22 per single family residential lot/ADU to the County to support park and recreational improvements and facilities; 2. $416.90 per single family residential lot/ADU to the County to support police facilities; 3. $823.43 per single family residential lot/ADU to the County to support fire facilities; 4. $360.51 per single family residential lot/ADU to the County to support solid waste facilities; and 5. $7,678.76 per single family residential lot/ADU 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. M. Should the 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. N. The [applicant]Applicant shall compy with all applicable County, State and Federal laws, rules, regulations and requirements. O. [If the applicants, successors, or assigns should require an additional extension of time, the Planning Director shall submit the applicants request to the County Council for appropriate action.]An initial extension of time for the performance of conditions within this ordinance may be requested in accordance with Section 25-2-44, subsections (c) and (d), of the Hawaiʻi County Code. P. [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.]If any conditions have not been completed by the deadline, or if a time extension request has not been submitted in accordance with section 25-2-44(c), the Planning Department shall inform the Applicant that the ordinance is null and void without further action by the County. In that event, the zoning designation of the property(s) affected by the ordinance shall automatically revert to its immediate prior zoning designation.