Kohala Development On Ag Land Skirts Rezoning, Redistricting Process

posted in: February 2013 | 0

While development of the Villages of `Aina Le`a is mired in proceedings before state and federal courts as well as the Hawai`i County Board of Appeals, a gated residential development on agricultural land just a short distance away seems to have sped toward final Planning Department approval in mere months.

The project calls for development of 144 two-acre house lots on 811 acres of land in the state Agricultural District, a few hundred feet north of the northern boundary of land owned by Bridge `Aina Le`a. County zoning provides for a minimum of five acres per lot, but, by being permitted as a Planned Unit Development, the smaller lots can be clustered into one portion of the land, with a remainder lot of about 364 acres being kept in open space on the northern portion of the land. In addition to the house lots, the developer proposes constructing a solar farm covering about three acres in the northwestern corner of the property.

The sole member of the development entity, 1010 Puako LLC, is David Patmoi of Maui. In 2010, the company received tentative approval for a subdivision of 142 five-acre lots on the property. In early 2012, the nature of the project changed to a Planned Unit Development, with the clustered two-acre lots.

Approval of the project, for which no environmental impact statement or assessment was prepared, was granted on December 18 by the county planning director, B.J. Leithead-Todd.

Historic Site Survey

As part of the minimal review for planned unit developments, the county Planning Department sought comments from several state and county agencies, including the State Historic Preservation Division (SHPD), an arm of the Department of Land and Natural Resources.

In comments on the application, SHPD archaeological branch chief Theresa Donham wrote, “A review of our records indicates that there are known archaeological sites within the limits of this project area,” documented in a limited 1994 report on a corridor for a water line. Another limited survey in 2010 identified five historic sites, Donham continued.

“In August 2011, SHPD reviewed a subdivision application for this project and requested that an archaeological inventory survey should be conducted if additional archaeological remains are present in the project area and if so to outline an appropriate course of mitigation for the sites. We recommend that the inventory survey be completed before the final plat approval in order to allow for the creation of historic preservation easements if significant historic properties are identified.”

The application indicated that field work for an archaeological survey had been completed in 2012 and that no sites were found that would impede the development as proposed. However, Donham wrote, “No report documenting this referenced survey has been submitted to SHPD and we have not been afforded the opportunity to comment on site significance assessments or treatment recommendations for this area.”

“Further,” she continued, “our office has received information from the Ala Kahakai National Historic Trail that a historic trail runs through this property, and it does not appear that this trail is accounted for on the conceptual development plan.”

Donham concluded with a request that the county take no action on the permit until SHPD was given the opportunity to review and approve a report that details the findings of the 2012 survey. Also, she asked that the county consult with representatives of the Ala Kahakai National Historic Trail and the DLNR’s Na Ala Hele trail program.

In Leithead-Todd’s letter of approval, however, there is no requirement that there be further consultation with SHPD or other offices about the possible presence of archaeological sites. While there is a catch-all condition that the requirements of consulted agencies be complied with as recounted in summaries contained in the county’s approval letter, the SHPD letter, with its recommendations and requests, contains no requirements as such.

Assurances

William Moore, the planning consultant who submitted the PUD application on behalf of 1010 Puako, was asked whether the developer would prepare the survey requested by Donham.

In an email, Moore noted that a year before the PUD application was filed, 1010 Puako “secured Tentative Subdivision Approval for a 142 lot subdivision for the subject area,” with each lot averaging about five acres. The developer then “applied for the PUD knowing that if the PUD was denied, they could proceed with the five-acre subdivision,” Moore continued.

As a condition of the earlier subdivision approval, the developer was required to “conduct an archaeological inventory survey for review and comment” by the DLNR, Moore wrote. As part of the “background submittal” to the county for the PUD, he continued, the developer had committed to receiving “final approval of the completed survey and report … from the State Historic Preservation Office prior to the commencement of any ground-disturbing activities.”

“Accordingly, while not a specific condition of the PUD approval, 1010 Puako, LLC, fully understands that it will be required to secure approval of the Archaeological Inventory Survey prior to final subdivision approval for its proposed development,” Moore stated.

Water

In its November 13 comments on the application, the Mauna Lani Resort Association raised the issue of the impact of the well that 1010 Puako is proposing to use for irrigation as well as a feed stock for desalination plants to provide water for domestic purposes.

“Pumpage in excess of the safely developable long-term supply of groundwater … will likely result in salinity increases in nearby wells,” including those used by the resort, wrote attorney Randy Vitousek on behalf of the MLRA.

The county Department of Water Supply voiced similar concerns for its well two miles to the east “The applicant should confirm that the proposed private well will not adversely impact the department’s deep well that is being used to service its existing customers,” the DWS wrote. The Planning Department, however, did not require any such confirmation.

On December 6, Vitousek, writing again on behalf of the resort association, informed the planning director that the property had been listed for sale. “The listing and its related website both reinforce and intensify the association’s concerns regarding the project” in five areas, including domestic water.

“The comment letter [of November 13] noted that the applicant failed to provide a specific and concrete plan to develop a permanent water system,” Vitousek wrote. The real estate listing and a related website “describe the project’s water source as requiring the installation of a ‘reverse osmosis treatment system on each lot,’ ” he continued. “The attempt to sell the subject property and to require that many critical utilities be constructed and maintained by individual lot owners suggests that the applicant is attempting to maximize its profit while limiting its expenditures.”

Asking price for the property, described in the listing as “810 magnificent acres with full ocean view,” is $6 million.

Agricultural Use?

The resort association also challenged the appropriateness of the development on agriculturally zoned land, stating that it “is not an agricultural use under [Hawai`i Revised Statues Chapter] 205 or the Hawai`i County Zoning Code. The two-acre lots are not suitable for agricultural purposes and the development is more urban or rural in character than agricultural. … The applicant should be pursuing a district boundary amendment before the state Land Use Commission, not a PUD before the Planning Department.”

In that same vein, the association also criticized the use of the PUD process to approve the development. “This is a major project in a previously undeveloped area,” Vitousek wrote. “The PUD process is not intended to be utilized in this manner” and is rather intended “for projects of a smaller scope and with fewer potential impacts as the process provides limited opportunities for public participation in the development planning and impact mitigation processes.”

In Vitousek’s December letter, he repeats the concern over the inappropriate application of the PUD process to a large, undeveloped parcel in the Agricultural District. “The PUD process is not intended to and should not be used in this fashion” he writes. “The applicant boldly states on its website that ‘[h]aving successfully completed the necessary county approvals, 1010 Puako now has a clear path to entitlement.’ The association urges the Planning Department to reject the PUD application and encourage the applicant to pursue the appropriate permitting processes.”

The website, http://puakoland.com, also touts the project as “possibly the first sustainable development in Hawai`i,” with “abundant sunshine and a well producing over 1.1 million gallons per day.” There is no mention of the high chloride content of the water (420 to 440 parts per million, as opposed to potable water, where the EPA-recommended maximum is 250).

On January 16, the Mauna Lani Resort Association petitioned the county Board of Appeals, seeking a review of the PUD approval. No hearing had been set as of press time.

— Patricia Tummons

Volume 23, Number 8 February 2013

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