Planning Director Initiates Zone Changes To Expedite Approvals for Private Owners

posted in: August 1997 | 0

The administration of Big Island Mayor Steve Yamashiro has embarked on a series of zone changes whose primary beneficiaries are private landowners.

One of the largest and earliest of these is the boundary amendment petition covering lands in North Kona that was brought by the county to the state Land Use Commission in 1994. Initially, the county sought to reclassify to the Urban Land Use District 2,900 acres of agriculture-zoned land, almost all of it privately owned. The area was later expanded to nearly 4,000 acres, before eventually being divided into two separate petitions – one dealing with lands north of Palani Road, the other dealing with lands from Palani Road south to Keauhou.

Following that split, the county has pursued the petition for the southern land alone, which involves a total of 955 acres. Last year, action on the petition stalled when the county ran up against state objections that the county had no plans to preserve historic sites included in the petition area. The county’s response was that conditions addressing state historic preservation concerns would be addressed when developers proposed specific uses of their rezoned land.

Intervening in the case is the hiking group E Mau Na Ala Hele, represented by members Judy Graham and Deborah Chang. The group is seeking to protect historic sites, including trails and other landmarks.

Graham and Chang objected to the county’s statement on historic sites and, on July 19, 1996, the state Historic Preservation Division of the Department of Land and Natural Resources withdrew its earlier concurrence with the county petition. The county then appealed the DLNR’s determination to the state Historic Places Review Board. Days before the scheduled hearing, in November 1996, the county asked that the appeal be postponed. It has yet to be heard.

Meanwhile, the county zoning code was amended so that the county Planning Commission no longer would seem to have authority to impose conditions on developers requiring historic site preservation or mitigation. And this past legislative session, the county, the state Office of Planning, and Don Hibbard, head of the state Historic Sites Division, all testified in support of a bill that would have amended the state’s historic preservation law (Chapter 6E) by redefining a government project so as to exempt from review actions such as the county’s redistricting petition. The bill (House Bill 1749) was not passed out.

At the moment, the county and Hibbard appear to be attempting to work out an agreement on historic preservation. According to Planning Director Virginia Goldstein, that agreement is expected any time – and when it is in hand, the county can once more push forward on its petition.

The petition is just the first in what is proving to be an ongoing series of county actions whose chief, if not sole, beneficiaries are private landowners. Here are two more recent examples:

Kealakekua Resort

Oceanside 1250, a partnership made up of JapanAir Lines and a Washington-state based company, Red Hill 1250, headed by Arizona developer Lyle Anderson, is planning to build a 710-unit subdivision and golf course, known as Villages of Hokukano, in an area of more than 1,500 acres north of Kealakekua Bay. The subdivision consists entirely of lots of greater than one acre. Because the lots are, technically, “agriculture” lots, the developer avoided the need to seek a boundary amendment from the state LUC.

However, plans also called for an 80 unit lodge and dining pavilion in the center of the subdivision. For this, the developer sought to have a 14.9-acre area placed in the Urban district from the Agriculture district. (Any area smaller than 15 acres in size is decided by the county Planning Commission rather than the state Land Use Commission.)

In addition, the county’s Land Use Pattern Allocation Guide (LUPAG) map would need to be amended, since the existing LUPAG map showed the area of the planned resort to be in “orchard” use. To accommodate the resort, the “orchard” land would need to be amended to “resort.” County code establishes 25 acres as the minimum area needed for a designated resort node.

Finally, the county’s general plan would need to be amended, to designate the resort area as a “retreat” within the list of the resort areas for the South Kona district.

In early 1996, Oceanside itself proposed an amendment to the county general plan to allow the lodge. However, Henry Ross, a citizen watchdog with an impressive list of court victories against the county, pointed out that only the county can initiate amendments to the general plan.

Oceanside withdrew its application for the general plan amendment and instead, in April 1996, asked Planning Director Goldstein to initiate the amendment on Oceanside’s behalf. Oceanside general manager Dick Frye expressed to Goldstein the hope that the application for a plan amendment would proceed concurrently with Oceanside’s land use district boundary amendment petition before the county Planning Commission.

Two weeks later, on May 9, 1996, Yamashiro sent to the County Council formal notice of the Planning Department’s intention to pursue the General Plan amendment sought by Frye.

C.J. Villa, a leader of the non-profit group Plan to Protect, which is involved in litigation to overturn earlier approvals given to Oceanside, harshly criticized the county’s action. In an opinion piece published in West Hawai’i Today on May 27, 1996, Villa wrote: “The [county] notice shows us how the county government will, in the guise of serving the public, actually serve as the developer’s agent. The notice asserts that this amendment is ‘initiated by the Planning Director.’ This is an interesting subterfuge, posed merely to fulfill the letter of the law…

“We can imagine that the language in the county code specifying that the planning director, not a private party, initiate such amendments, was put there for a very good reason – namely, that as the servant of the public, the planning director should, after considering the future for an entire region, make intelligent choices about the general plan for the area. We can also imagine that the planning director acting as a front for a private party was specifically not what the law intended. But once again, the county, acting in the interest of a developer, has chosen to subvert the spirit of a law by riding the thin line of its language instead.”

Despite Villa’s objections, the Planning Commission and, later, the County Council gave Oceanside what it wanted. By the end of March 1997, the general plan amendment, LUPAG map, and land use boundary applications were all approved.

Wainaku Farms Small-Lot Subdivision

On August 1, 1996, Planning Director Goldstein initiated a petition to place 14.7 acres of land in Wainaku, just north of Hilo, into the Urban state land use district. The land, owned by C. Brewer subsidiary Mauna Kea Agribusiness Co., Inc., was at the time in the state Agriculture district. Simultaneously, Goldstein initiated an application to change the county zoning on the land from Ag-20 (calling for a minimum size of 20 acres for conforming lots) to RS-15 (allowing residential lot sizes of a minimum of 15,000 square feet each).

Willie K. Tallett, president of Mauna Kea Agribusiness and senior vice president of C. Brewer and Co., Ltd., had authorized Goldstein to make the applications in a letter dated July 30.

On August 2, 1996, James Leonard, managing director of the consulting firm PBR – whose clients include C. Brewer – delivered to the county Planning Department a package containing all the information needed for processing the applications. Among the items Leonard provided were a “revised” background report, metes-and-bounds descriptions of the land tailored to the needs of each separate application, and a “full-size print of the proposed [boundary amendment] Zoning map.”

The same day, a check for $1,000 from C. Brewer Homes, Inc.- another Brewer subsidiary – was delivered to the Committee to Elect Stephen K. Yamashiro, who was in a tight race to win the Democratic Party’s mayoral nomination. Altogether, Brewer Homes contributed $2,500 to the campaign. A political action committee made up of Brewer employees contributed $2,000 more.

In the background report, which was used to justify the applications to the county Planning Commission and County Council, the objectives of the proposed actions are described in this way: “Mauna Kea Agribusiness Company, Inc., and its parent company C. Brewer and Company, Ltd., are proceeding with plans to relocate their corporate offices to Hilo… The proposed State Land Use Boundary Amendment and Change of Zone would allow appropriate urban lands for development.

“The county is initiating the State Land Use Boundary Amendment and Change of Zone as an encouragement to solidify economic growth for the Hilo area. The land use changes would provide greater opportunities for Hawai’i’s people to secure reasonably priced, safe, sanitary, liveable homes… The land use changes would also increase home ownership opportunities and choices.”

To substantiate the economic feasibility of the project, the background report states: “The proposed development has been undertaken based on the assumption that most of the proposed building sites will be sold to future employees of C. Brewer. However, lots will also be available to the general public… Therefore, the proposed development is economically supportive of C. Brewer, as a critical element of its overall plan to relocate their corporate offices to Wainaku.”

The Planning Division sought to have the rezoning approved without any requirement for a contribution from the landowner to make a payment for the subdivision’s impact on recreational facilities. There were already adequate parks existing in the area to accommodate the anticipated growth, the application stated.

On August 12, the Planning Department sent out letters to state and county agencies, seeking to have their written comments on the applications turned by August 28 – a deadline that gave the agencies barely two weeks to have their staff review the project.

In the case of the Department of Land and Natural Resources, that was not enough time. In the initial response from the DLNR, dated September 4, the county was informed that the department had no comment. However, on September 16, Michael Wilson, DLNR administrator, informed Goldstein that the department’s Division of Aquatic Resources had several concerns.

The concerns were outlined in a memo dated August 27, 1996, to acting DAR Administrator William Devick from a staff aquatic biologist identified as D. Eckert. After noting that Mokuhonua Stream borders the site proposed for the boundary amendment, Eckert criticized the information contained in the background report.

“Treatment of resource values in the materials provided is unacceptable,” Eckert wrote. “Discussion of ‘flora/fauna resources’ mentions only ‘botanical resources.’ ‘Recreational facilities’ merely says, in essence, that resources existing elsewhere in the region cover requirements for the planned subdivision.”

Eckert continued: “The application should provide information adequate to evaluate effects of the action requested on aquatic resource values. It should describe resources existing in Mokuhonua Stream and existing public (recreational) use of them. It should explain how the proposed development would affect those resource values, both short-term impacts resulting from construction…; and long-term impacts of subsequent residential use (e.g., impacts of septic systems, residential/landscape chemicals, etc., on stream-water quality and aquatic life in the stream). It should state by what means the applicant commits to preventing or controlling such impacts where harmful, and guarantee specific mitigation if harm to resource values is unavoidable.”

By the time Eckert’s comments were received; the Planning Commission had already held a hearing on the applications. Acting with a haste not usually seen in government agencies, the Planning Department had brought the matter before the County Planning Commission on September 12, 1996 – less than six weeks from the date the application was made. After a hearing during which public testimony was received from one adjacent landowner (concerned the project might cause his property taxes to rise), the commission unanimously approved the applications.

In the discussion of the impact of the project on schools, the background report states that, “because of the limited scope of the proposed development, the number of additional students attending public schools may only increase minimally.” In any case, it goes on to state, “Ha’aheo Elementary School is scheduled lot expansion … [which] is being accommodated through a donation of a 10.7 acre portion abutting the school parcel to the state from Mauna Kea Agribusiness Company, Inc., and C. Brewer Homes, Inc.”

Attached to the Planning Commission’s approval of the rezoning request and, later, to the approval of the County Council, on recommendation of the commission – was a list of conditions, including a description of the “fair share” contribution to infrastructure that is to be paid by the developer when the land is approved for subdivision. While a $7,239.16 contribution for each lot had been proposed initially, that was reduced to $3,748.31 when the contribution for park development was eliminated. Should the projected subdivision of 25 lots be developed, the total contribution would approach $94,000.

By January 16, the combined applications had been heard and approved by the County Council, as Goldstein informed Tallett.

The background report states that, “Should the state Land Use Boundary and Change of Zone amendments be approved, Mauna Kea Agribusiness Company, Inc., and C. Brewer Homes, Inc., expect to begin construction in 1997, following necessary subdivision and permit approvals. The company expects that its proposed development, consisting of house lots, would be available in late 1997.”

Brewer appears to be ahead of schedule in the marketing the lots available. The Prudential Orchid Isle Properties, a Hilo real estate agency, distributed maps of Brewer’s “pending projects,” including the Wainaku lots, to prospective buyers interested in touring the future lot sites in a June 25 caravan.

But Brewer would seem to be falling behind in one key regard. Despite the speedy approvals and the marketing effort, by mid-July, Brewer had still not applied to the county for subdivision of the rezoned land.

Volume 8, Number 1 August 1997