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HomeMy WebLinkAbout2015-07-16 Leeward Exh C (Amend SMA 314) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JULY 16, 2015 ALII BEACH ESTATES III A regularly advertised hearing on the application of CONDOMINIUM LOT OWNERS (Amend SMA 314) was called to order at 9:48 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chairman Brandi Beaudet presiding. COMMISSIONERS PRESENT: Brandi Beaudet, Scott Church, Collin Kaholo, Barbara Nobriga, Sonny Shimaoka, Keith Unger and Thomas Whittemore ALSO PRESENT: Danny Patel (Counsel to the Commission), Duane Kanuha (Planning Director), Daryn Arai (Planning Program Manager), Jeff Darrow (Planner), Maija Jackson (Planner) and Noriko Sauer (Commission Secretary) And approximately 16 people from the public in attendance. APPLICANT: ALII BEACH ESTATES III CONDOMINIUM LOT OWNERS (SMA 314) Amendment to Condition No. 3 (time to complete construction of three remaining dwellings) of Special Management Area Use Permit No. 314, which allowed the construction of six single-family residential units and related improvements within the Special Management Area (SMA). The property is located approximately 450 feet southeast (Keauhou side) of Kahakai Elementary School, stnd Hōlualoa 1 and 2, North Kona, Hawai‘i, TMK: 7-6-17: 006. BEAUDET: Today’s third agenda item is Ali‘i Beach Estates III Condominium Lot Owners, SMA 314. DARROW: Good morning, Mr. Chairman. Good morning, Members of the Planning Commission. Our next applicant is Ali‘i Beach Estates III Condominium Lot Owners. They are requesting an amendment to Condition 3 of Special Management Area Use Permit No. 314. For orientation this subject application is located within the North Kona District of Hawai‘i. More specifically, we are looking in the Hōlualoa area. For reference we have Ali‘i Drive running in a north-south direction on the left side of the map. We also have Kahakai Access Road and Royal Poinciana Drive. For access to the subject property we have Stardust Lane and Hōlualoa Beach Road. The different colors on the map represent our County zoning. The mustard color, yellow, represents Single-Family Residential-7,500 square feet, and that is the subject property, as well as the surrounding properties in the area. This is an aerial photo. The subject property is outlined in red. Again, for reference we have Kahakai Access Road, Stardust Lane and Hōlualoa Beach Road. Currently there are two dwellings constructed on the property. There is an additional three dwellings that remain to be constructed on the property. 1 EXHIBIT C The applicants have requested, number one, to delete Condition No. 3 or, if that’s not feasible, to have a five-year time extension to comply with the requirements of Condition 3. Currently that states that the construction of the remaining three dwellings shall be completed within five years from the effective date of this amendment, and then our standard language. You will also notice on the bottom that there are some requirements for a 52-foot future road widening setback along the northeastern boundary, this is to accommodate the Keauhou to Kahului Parkway, which runs on the northeastern portion of this property, as well as a 7.5-foot future road widening setback along the northwestern property, which is Stardust Lane. The applicant in their development plan has identified these particular setbacks on the plan. The Planning Department is requesting – since this original application was submitted, the applicants are now pursuing a CPR, or Condominium Property Regime, through the Planning Department. With our changes in our Rules, the same requirements for a Condominium Property Regime are the same as going through a subdivision. And so what we’d like to do, rather than put the timing of the condition for the construction of the dwellings, because that’s unsure at this point and there is no clear direction as to when the timing would be, we’d like to place the timing on the approval of the Condominium Property Regime or the subdivision approval, which is common place in many of our subdivision requests and conditions regarding construction that includes a subdivision. We usually don’t wait until all the dwellings are constructed within a subdivision to finally approve it; we just wait for the final subdivision or CPR approval to be done, then the applicants are released from the condition. So we are requesting that Condition 3 be changed to not reflect the timing on the dwellings but to reflect the timing on either a Final Condominium Property Regime or a Final Subdivision Approval, and this would be within five years from the effective date. The remaining language would remain the same. And those again are delineated on the plans that have been submitted to the Planning Department, as well as in the application. Additionally, on Condition 6 we are reflecting that instead of the Fire Department approval be done through Plan Approval, we will be looking at the same provision through Final Condominium Property Regime Approval or Final Subdivision Approval. This is the original site plan. Originally, they were looking at six dwellings, but in the process of some of the activities that occurred through this development plan, they ended up having to downsize to five units. So this is the current plan. Unit G reflects the 52-foot future road widening setback for Kahakai Access Road, and then there also is a 7.5-foot future road widening setback on Stardust Lane. And again, currently we have two dwellings; there remains three dwellings that need to be constructed. These are some site photos. This is an access to one of the dwellings on the property. This is another access to the subject property. This is Stardust Lane. I believe that’s Hōlualoa Beach Road on the right. And so you can see that Stardust Lane has been improved with a 20-foot paved roadway. This is looking makai on Stardust Lane, again, with the subject property on the left. And this is additionally another dwelling that is located on the access road, and I believe this is Hōlualoa Beach Road. The Planning Director is recommending approval of the five-year time extension request, with the recommended changes to Conditions No. 3 and 6. That concludes our presentation. Any questions? 2 EXHIBIT C BEAUDET: Commissioners? CHURCH: Just curious. So the property remains a single piece of property; it’s not subdivided right now. DARROW: Correct. CHURCH: But there are two dwellings on the property. Are they owned by a single owner or there are two owners? DARROW: Two owners. CHURCH: So there must be undivided interest then as tenancy in common. What is the ownership there? DARROW: It is through a Condominium Property Regime; so basically, what you would see is several owners to one single property and they own elements in common. I’m not extremely familiar with how the layout is for this particular ownership. I believe the applicant can touch upon that. But usually what will happen is you’ll have several owners of one property. CHURCH: But that has not been filed; a Condominium Regime has not been yet --. DARROW: It has been. CHURCH: -- oh, has, okay. DARROW: Yes. CHURCH: There it is then. Okay, thank you. DARROW: What’s happened now is, previously the applicant would apply to the Real Estate Commission for a CPR, the Planning Department has now changed their Rules that you, to be able to go through a CPR through the Planning Department, you have to meet the same requirements that you would need to meet through a subdivision. So it would make sense that, if you are going to go through that, that you would go through the subdivision to be able to have your ownership, separate ownership, to each of the lots at that point. Any other questions? So just to reiterate, or just to go further with that, the applicants have spoken with the owners, and they are in the process of deciding whether or not they want to withdraw the CPR and go forward with a subdivision so that they could have their own ownership interest in the properties. And that’s why we made the change to add in Final Subdivision Approval in the conditions. BEAUDET: Thank you, staff. Any further discussion, Commissioners? I’d like to call the applicant or its representative forward. Please raise your right hand. Do you swear or affirm to tell the truth now and before the Leeward Planning Commission? 3 EXHIBIT C VITOUSEK: Yes. AYABE: Yes. BEAUDET: If you could please introduce yourself. VITOUSEK: I’m Randy Vitousek, and -. AYABE: Lisa Ayabe. BEAUDET: Thank you. VITOUSEK: If I may, Mr. Chair, Lisa is the one who is actually doing the hard work of putting these together, but I just want to give you a little bit of background. The parcel you see that the CPRs are on was owned by the Loo family, and they sold it to Mr. Clayton Manning. And Mr. Manning, when he got a CPR and got an SMA permit, sold the CPR units to five different owners, and then defaulted on the note to the Loos. And so here we have five CPR owners with the fee underneath their CPRs being foreclosed by the Loo family. So there was litigation that came out of it, and the court reached the resolution among the owners and Loo, you know, the fee owner of the property, and appointed our, we, our firm is appointed by the court to try to straighten out the SMA and CPR issues so that the properties can be finally, you know, deeded to the different families; in other words we are not representing a developer, the developer is out of this, we are representing the Third Circuit Court and being paid by the five owners in order to try to get the CPR finalized, amended and squared away, and get the SMA permit in place so that these people can finally get what they thought they bought about 20 years ago. And so that’s the context that this is in. The Planning Department has been fantastic in working with us, working with the court, to try to reach this resolution. And Lisa is the one who has really been doing the nuts and bolts that has been difficult, so I’m going to turn it over to her. But I just really want you to know that this is, that’s the context, you know, the context is we are appointed by the court, we answer to the court, and we are trying to get the permitting squared away and the CPR squared away so that they can finally effectuate the settlement that they reached in litigation between Manning and Loo. Thank you. BEAUDET: Thank you, Mr. Vitousek. AYABE: Hi. So I just wanted to explain that, you know, the owners were requesting an amendment to the Condition 3 relating to the construction. As you can see, the owners have Unit C and Unit E, have already constructed their dwelling. And their concern with respect to the SMA permit as it currently stands is that they are tied to the construction of dwellings on Units A/B, D and F, and they really don’t have control over that; so they are just concerned about having the, you know, they wanted to modify the existing language so that they have more control. We are all working together to satisfy the outstanding conditions under the tentative approval. The owners are exploring whether or not they want to pursue a subdivision, which is why Jeff mentioned the alternate language to give the owners some flexibility. There are multiple owners, and so getting agreement from all of them takes a little bit of time. Also to come up with the funds necessary to 4 EXHIBIT C make the required improvements. We did make the water improvements, as you may have noted, so at this point we are just getting the funds to meet the 12,000-dollar, I believe, outstanding facility charges, and then we are working on conveying those improvements to the Board of Water Supply. If there are any questions, I’m happy to answer them. CHURCH: Yes. How were they doing with regard to property taxes, County property taxes? Are they in arrears on that, too? AYABE: No, I don’t believe they are in arrears. They are, the owners are lis-, so the Declaration of CPR was recorded, and the owners, as listed on the RPT website, are paying individually for their respective CPR. The problem here is that because we have not, we need to amend it, and it hasn’t, since Clayton Manning didn’t submit it to the Real Estate Commission, none of these owners can really sell their lots, and so, or really it’s a difficult situation; they need to get Final Public Report. So this is where they are and they are really trying to meet all of the requirements necessary in order to satisfy requirements under the tentative approval, the SMA conditions. And then the next step would be to get a developer’s report from the Real Estate Commission, should they decide to pursue the, continue to pursue the CPR. BEAUDET: Commissioners, any more comments or questions of the applicant? Thank you for your presentation. I have before me, in front of me here, that there are two individuals that have signed up for testimony, and I’d like to call up Elisa Stene and Marjorie Able. Could you please each raise your right hand? Do you now swear or affirm to tell the truth now and before the Leeward Planning Commission? TESTIFIERS: Yes. BEAUDET: If you could each introduce yourself, starting with you, ma’am. STENE: Elisa Stene. ABEL: Marjorie Abel. BEAUDET: If you could speak into your, and please state your address. STENE: Currently we own the lot that is diagonally on a corner, it’s a, no address, it’s a TMK, it’s the corner of Hōlualoa Beach Road and Stardust Lane; so it’s at the, let’s see, the corner, it would be opposite Unit A and B diagonally makai and north. ABEL: Yes. BEAUDET: If you could just introduce yourself, and then we’ll start with the testimony of you first. ABEL: Sorry, I’m Marjorie Able. We acquired the property in January of this year, so just newly aware of this situation. 5 EXHIBIT C STENE: Well, our concern is primarily any more development going on in this area. I know the particular issue here is extending some sort of condominium project or subdivision; however, that to me is a red flag for more future development. The area in question is, well, this area is Kahakai Access Road, which is maybe a State road, and Stardust Lane, which is a private road. There are no traffic regulations on Stardust Lane because it’s a private road. You mentioned that there were improvements to Stardust Lane, as it had been paved. There are no street signs or speed limits there; it’s out of control. With elementary school, when this original thing came up in 1991 and it was approved that you are trying to get an extension on, I imagine the neighborhood was quite different. Currently, I think there are over 600 students that go to this elementary school. And Kahakai School Access Road has the most faded-out crosswalk ever, there are no other, I, well, my point is is if these were County roads, there would be a lot of maintenance going on, especially with the school around, to ensure the certain regulations were enforced, well, not ensure it but at least suggest that they should be followed and therefore enforced. So the problem is it’s like no man’s land; people speed through Stardust Lane. Both of their entrance ways are on very dangerous places, and I don’t know if any of that has really been considered. Hōlualoa Beach Road is basically all dirt and dust. So if three more places are built on this place that I think is originally an acre, which would be RS-7, that’s like two places that are already there now. Why are we even considering extending anything that’s going to like make this more high density without any of those issues being addressed? So that’s all I have to say. ABEL: And basically, I’m echoing the same sentiment. You have three more units, every unit has two vehicles, they make three trips in and out a day, that’s, it’s just a lot of traffic there. People walking their children to school from Hōlualoa Beach Road have no sidewalk. It’s just a dangerous, it’s a dangerous situation waiting for an accident to happen. It’s not these people’s fault unfortunately, but it’s going to add to the problem unless there is some mitigating factor. And 7.5 setback on Stardust Lane is not going to make a difference. BEAUDET: Thank you. Question, Jeff. So maybe we can just reiterate that approval for the number of dwellings has already been processed along with conditions that the property owners are obligated to. So maybe you can just speak on that a little bit. DARROW: Sure. This SMA permit was approved in 1991. At that time numerous conditions, including, you can see, the extensive road widening setbacks, were placed as conditions on this. When the Planning Department looks at SMA permits, we are bound by certain criteria to review it by. In the past the Planning Department was, or the Planning Commission actually, was challenged when they started placing conditions on SMA permits to do road improvements that had no nexus to the coastal zone or the SMA. And so as a result of that – that case was Larry Topliss versus the Planning Commission – in response to the ruling, unless we can prove a direct nexus that this development is having a negative impact on the SMA or the coastal zone, that we can’t legally place these types of conditions on these permits. We can as far as work with the Department of Public Works, which we have in this particular case and in the previous amendment, to be able to place conditions to take care of this particular development and its impacts. As far as regional impacts as mentioned, Stardust Lane was originally a part of, before Topliss decision, was a condition in the SMA permit; but I believe the developer across the street ended up paving the road, so that condition was released. In regards to the concerns regarding speeding and signage and things, Stardust Lane is a private road, I’m not sure who the ownership is, but it would probably fall 6 EXHIBIT C upon the owner of the road, or possibly speak with Public Works to see if there is anything they could do in regards to signage for slowing down, or the Police Department to maintain speeds on the roadway. BEAUDET: So Stardust Lane is a right-of-way for adjoining properties, or is it a TMK? DARROW: I would have to, let me look at one thing here, so Stardust Lane looks like it’s connected to Kahakai and does not have a separate, but in our comments previously from Public Works, they stated Stardust Lane was a private road. So it does not look like it has its own TMK on this particular map. But again, in regards to this particular application, because this is just an SMA permit, if this was a Change of Zone, this would be different; we would be looking at regional impacts as well. BEAUDET: Thank you. CHURCH: Yes. In the event that a subdivision comes about, those lots look pretty compact. Are there any challenges that you would foresee with regard to a variance of zoning that we might face or setback requirements that could be violated? Is anything like that evident to you? DARROW: Yes, that would be in our Condition No. 3. We’ve been working together with the Subdivision Section in regards to the current map that is submitted to the Planning Department, to confirm that this particular map would also meet the requirements for Final Subdivision Approval, and they have confirmed that it will. In regards to setbacks, if you look at Condition No. 3, the last sentence, it says, “No variance from the minimum yard setback requirements of the Zoning Code shall be applied for or granted except for ‘Unit C’ and ‘Unit E’ identified on the New Development Plan.” And the reason why is because those are the two parcels, or units, that have been developed at this time. BEAUDET: What’s the average size of those lots? DARROW: Seventy-five hundred square feet. They have to meet minimum zoning, which is RS-7.5. BEAUDET: Commissioners, any more comments or discussion with staff? SHIMAOKA: I just had one question. Is 75 still the minimum? DARROW: Yes. SHIMAOKA: It is the minimum. BEAUDET: Before we proceed, for the record there are no other members of the audience who wishes to testify, so I’d like to ask for a motion to close this portion of the public hearing. WHITTEMORE: So move, to close the public hearing portion. 7 EXHIBIT C UNGER: Second. BEAUDET: All those in favor. COMMISSIONERS: Aye \[unanimously\]. BEAUDET: If there are, Commissioners, if there is no further comments or discussion, I’d like to ask for a motion of action. DARROW: Mr. Chairman? If I could remind the Commission regarding the requested amendments as well that were handed out to the Commission on the yellow and the green piece of paper, those are requested amendments to the conditions that were handed out originally. Additionally, if recommended for approval, we are requesting that the recommendation reflect the additional language wherever we refer to the Final Condominium Property Regime, that we also include Final Subdivision so that the recommendation can reflect the change in conditions. Thank you. BEAUDET: Commissioners? SHIMAOKA: With the testifiers’ concern with congestion on the traffic, can you kind of give us the Planning Department’s mana‘o on that? DARROW: In regards to this particular application, I mean it’s clear that there is traffic issues in Kona, in regards to an SMA permit, unless there is, as mentioned, we can show that there is a direct nexus between affecting the Special Management Area, it’s, we are held from being able to resolve those issues with an SMA permit. Other permits or ordinances, we can try to place in roadway conditions, and we do, it’s a standard procedure, we’ll have curb, gutter, sidewalks, we’ll have road pavement requirements, street lighting, different things. But in this particular application we are held. And even as, I mean, even this SMA permit has some pretty strict conditions; they are giving up a 52-foot future road widening setback on a portion on their property, as well as a 7.5-foot future road widening on this in response to the improvements that are proposed in the future for this area to help with minimizing traffic and things. But again, as far as, we did receive comments from Police and they had no comments, but, again, this would be their jurisdiction as far as trying to slow down speeding vehicles. Signage, it would, I’m not sure how Public Works would respond to that, but I think that would be the appropriate agency to speak to in regards to signage. Thank you. BEAUDET: Commissioner Shimaoka, that suffices? Okay. Thank you. So if that brought further clarity to the position that we have and what we are actually considering here, again, I’d like to ask for a motion of action. UNGER: I’d like to make a motion. BEAUDET: Go ahead. UNGER: I move that the application to amend Special Management Area Use Permit, Docket Number SMA 314, be approved pursuant to the Planning Department’s recommendations, findings 8 EXHIBIT C and proposed conditions, including the amendment to Special Management Area Use No. 314, as revised, No. 6, specifically, the applicant shall provide fire protection measures meeting with the approval of the Fire Department prior to the issue of either a Final Condominium Property Regime or a Final Subdivision Approval. NOBRIGA: Second. DARROW: As well as Condition 3? UNGER: As stated. DARROW: Okay. UNGER: Right, as well as Condition 3 pursuant to the Planning Director’s recommendations, findings and proposed conditions. DARROW: Thank you, Commissioner Unger. Thank you, Commissioner Nobriga. BEAUDET: So it has been moved for a favorable recommendation by Commissioner Unger and seconded by Commissioner Nobriga. Staff, roll call, please. DARROW: Thank you, Mr. Chairman. With that, we’ll take the roll call. Commissioner Unger? UNGER: Aye. DARROW: Commissioner Nobriga? NOBRIGA: Aye. DARROW: Commissioner Church? CHURCH: Aye. DARROW: Commissioner Kaholo? KAHOLO: Aye. DARROW: Commissioner Shimaoka? SHIMAOKA: Nay. DARROW: Commissioner Whittemore? WHITTEMORE: Aye. DARROW: And Mr. Chairman? 9 EXHIBIT C BEAUDET: Aye. DARROW: The motion passes, six to one. The discussion ended at 10:20 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 10 EXHIBIT C