The administration of Big Island mayor Steve Yamashiro has adopted a policy that could lead to a new round of substandard subdivisions – not in Puna and Ka’u this time, but marching up the Hamakua Coast and around the north end of the island. The policy centers on a new interpretation of what should be counted as a “lot” of record.
Among those taking advantage of the policy are such major landowners as C. Brewer’s Mauna Kea Agribusiness subsidiary and attorney Donn W. Carlsmith.
Specifically, the county Planning Department is using a definition of “lot” that allows the process known as consolidation and resubdivision effectively to become a way to create subdivisions without having to put in place expensive infrastructure and improvements required for most subdivisions. The new policy allows parcels of any size – including road remnants and ditch, flume, and railway rights of way – to be counted as lots for purposes of parcel consolidation and resubdivision. Lots that could never be built upon in their present configuration are thus able to be converted into buildable lots through the PC&R process.
Planning Director Virginia Goldstein denies that the definition of lot has changed from what it was in past administrations. “The present interpretation has been in place since way before my time,” she said. (Goldstein has been planning director since December 1992.)
Staff planners disagree, as does at least one former planning director (none wished to be quoted on the record). Planners say they were given specific instruction to change the way they counted pre-existing lots, although the instruction was not in writing.
In addition, correspondence from the planning director’s office supports the view that current policy departs from that of the past. In a letter sent out in July 1993 responding to a landowner who had inquired about the number of pre-existing lots within an area of 13-plus acres, Goldstein informed him that one of the parcels was bisected by an abandoned ditch right-of-way held in separate ownership at one time. The two lots created when the original lot was biflircated could be considered as separate lots off record, Goldstein said, but, she added: “The ditch right-of-way itself, however, was not a separate buildable lot. Therefore it may not be considered as a lot for consolidation resubdivision purposes.
Goldstein now rejects any suggestion that a lot need be “buildable” for it to be counted for such purposes. “A pre-existing lot of record is such regardless of its size or buildability,” she told Environment Hawai’i.
A Matter of Density
The term “parcel consolidation and resubdivision” refers to the process of talking contiguous pieces of property, erasing the property lines that divide them, and then redrawing those lines so as to yield a number of lots no greater than the number that existed at the outset. Because the process is not supposed to result in any increase in the density of the total land area involved, counties have traditionally exempted the consolidation-and-resubdivision process from the type of scrutiny and approvals – usually from the Planning Commission – required for normal subdivisions, in which the final outcome is a number of lots greater than the number at the outset.
(Consolidation and resubdivision is allowed in other counties. However, in Honolulu, all resulting lots must be in conformity with the zoning ordinance. Hawai’i County has no similar requirement.)
Density is usually defined according to the number of “buildable” or “developable” lots in a given area. A rough definition of a buildable or developable lot is one on which a house or other structure may be erected in conformity with state and county zoning laws and building permit requirements.
The rationale for allowing consolidation and resubdivision hinges, then, on the notion that the only lots to be counted as pre-existing lots are those that are “buildable” or “developable.”
Only in this manner is it possible to ensure that the process will not result in an increase in density of a given area.
Goldstein maintains that the question of density does not arise in consolidation and resubdivision. In any event, she told Environment Hawai’i, county ordinances give her office the discretion to impose requirements for improvements should the planning director deem them necessary for public health and safety.
When asked whether she had ever imposed such requirements as a condition of consolidation and resubdivision, Goldstein said she had imposed a drainage requirement in one case, but so far had not required roads, water lines, or other improvements.
Goldstein denied that this would set the stage for another round of substandard subdivision developments in Hawai’i County, along the lines of those that were approved in the 1950s and 1960s, before the county adopted zoning laws requiring improvements as a condition of subdivisions. The ability to impose such requirements would ensure that this did not happen, she said.
Still, in Environment Hawai`i’s review of several files relating to parcel consolidations and resubdivisions, the lack of infrastructure requirements would seem to mean more houses will be built on unsewered lots in coastal areas served by substandard roads.
Here are two case studies of PC&R in the Onomea area, just a few miles north of Hilo.
In Onomea, landowner and attorney Donn W. Carlsmith is seeking to have the county approve a parcel consolidation and resubdivision for 10 lots having a total area of about 50 acres for land zoned Ag-20 (that is, where the minimum lot size of conforming lots is supposed to be 20 acres). In their present configuration, none of the lots are conforming (that is, at least 20 acres), while four of those lots are not buildable. One is a road lot. A second is a long, narrow railroad right-of-way. Two others are small, steep cliff-side, or pali, lots lying between a former flume right of way and the old Mamalahoa Highway (now called the Scenic Route).
On March 11, 1996, land use consultant Gregory R. Mooers (a former deputy planning director for the county) informed the Planning Department of Carlsmith’s intent to consolidate and subdivide a few non-conforming lots. When one lot was determined to be non-continguous (it lay across a government road from the other parcels), the number of lots was reduced to 10.
In a letter April 18, 1996, Goldstein advised Mooers to consult with the county Public Works Department “relative to the county owned road in the area.” The road, recently named the Onomea Arch Access Road, mandates from the new Mamalahoa Highway (Route 19) eastward to the Scenic Route.
The Road
In 1954, the government road had been re-aligned. A sharp curve had been smoothed out by grading a new roadway on private property owned by Onomea Sugar Company. The old roadway was landscaped and became a part of the manicured gardens of Carlsmith’s estate. At the time, Onomea Sugar Company signed a “right-of-entry and agreement that gave its consent to the county taking immediate possession of the private roadway, with the understanding and assurance that the county of Hawai’i will negotiate with the Commissioner of Public Lands” to complete the exchange.
No one can explain why the exchange was never accomplished. Eventually, both the private bypass road and the old government road were posted ‘private,’ preventing many members of the public from traveling the length of the Onomea Arch Access Road for fear of trespassing.
In 1978, Carlsmith executed an exchange deed with C. Brewer’s subsidiary, Mauna Kea Sugar Co. (now known as Mauna Kea Agribusiness). The agreement provided for Carlsmith to take possession of land that included the private road linking the two sections of government road; the two narrow pali lots, described earlier in this article; and another lot of 5.6 acres. In return, Carismith would deed to C. Brewer land he owned elsewhere. However, as the exchange deed states, the private roadway and adjoining land of about 2 acres “cannot now be conveyed because they require subdivision and relocation of a county road.”
Mauna Kea Agribusiness agreed “to convey these parcels” to Carlsmith “at such time as all subdivision requirements have been satisfied and these properties can be legally conveyed… Until such conveyance is completed, [Mauna Kea Agribusiness] shall continue to be the legal owner of such parcels.”
Questions Arise
In May 1995, Deputy Chief Engineer Jiro Sumada wrote Carlsmith: “Late last year we received a complaint claiming that you are blocking the county road… Because the roadway is considered a public access … we cannot tolerate such restrictions.”
As an alternative to opening the old road, Sumada suggested the exchange of the county road for the private realignment. Carlsmith responded favorably on May 24, 1995. In a separate letter, Carlsmith informed Mooers of the proposed exchange. “[I]t’s probably a good excuse for and time to do the whole consolidation and resubdivision,” Carlsmith wrote. However, he admonished Mooers to avoid losing “any tax keys” [parcels], including the private roadway lot or the lot between the roadway and the old government road.
One of the prerequisites for any exchange or conveyance of public land is an authorizing resolution from the County Council. Although the county Planning Department had received notice of Carlsmith’s intention to consolidate and resubdivide the land (and, in the process, absorb the county-owned road into the private resubdivided lots), no mention of this was made during the council’s deliberation on the resolution, which was unanimously adopted on July 18, 1996.
Chapter 343
Another condition that must be satisfied before public lands can be disposed of is compliance with Chapter 343, the state’s environmental disclosure law.
Soon after the council adopted the resolution approving the roadway exchange, the Department of Public Works retained consultant Ron Terry to prepare an environmental assessment, as required by Chapter 343. As part of that work, Terry sent out letters to a long list of government agencies, including the Planning Department, that might have an interest in the exchange. Goldstein responded on October 30, 1996, noting that her department had no record of the roadway parcel ever having been subdivided from the adjacent 1.9-acre parcel. To remedy this, she said, a subdivision application would need to be submitted to the Planning Department before the exchange could go through.
In January, Mooers formally applied for the consolidation and subdivision of 10 pre-existing lots to which Carlsmith claimed ownership. Included were the roadway lot and adjoining 1.9-acre lot, still owned at the time by Mauna Kea Agribusiness – and still separated from the other properties by the county roadway. Although Goldstein had notified Terry that the roadway lot and ad-joining property were still just one lot, Goldstein approved Mooers counting them as two lots for purpose of consolidation and subdivision.
And, while Goldstein told Environment Hawai`i that non-contiguous properties could not be included in parcel consolidations and resubdivisions, again, Mooers’ proposed inclusion of the roadway lot and adjoining 1.9-acre parcel – lots that were not contiguous with the other property – was not challenged by Goldstein or her staff.
On March 24, 1997, Goldstein granted tentative approval of the Carlsmith consolidation and resubdivision. She reminded Mooers, however, that “land shall not be offered for sale, lease, or rent until final approval for recordation of the subdivision.”
Meanwhile, at DPW
The draft environmental assessment for the roadway exchange was distributed to county officials in mid January. And, on February 15, 1997, Goldstein received from the Department of Public Works the forms needed to effect the roadway subdivision required before the county exchange could go through. In a covering letter, Chief Engineer Donna Kiyosaki noted that “Mr. Richard Armstrong, on behalf of Mauna Kea Agribusiness Co., Inc…. has signed the subdivision application form authorizing this department to proceed with the subdivision.”
On February 28, Goldstein granted final approval of the subdivision – lifting out the private roadway from the private parcel – required as a condition of the land exchange.
Notice of availability of the draft environmental assessment for the roadway exchange appeared in the April 23, 1997, “Environmental Notice” of the Office of Environmental Quality Control. Neither the project description nor the draft EA itself made any mention of the role that the roadway exchange played in the Carlsmith consolidation and resubdivision. In fact, the draft EA stated that no secondary impacts (including population change) would result from the proposed exchange.
Stalling Out
Comments received on the draft EA pointed out the relationship between the Carlsmith PC&R and the roadway exchange. On learning of this, Gary Gill, director of the OEQC, wrote Chief Engineer Kiyosaki on May 23 that “if such a re-subdivision is planned or could be made possible by the proposed exchange of roadway right of way, we recommend that a new Draft EA containing this important information be prepared.”
In discussions with Environment Hawai`i, both Ron Terry, who prepared the draft EA, and Galen Kubo, head of the Department of Public Works Engineering Division, were emphatic in their denials of any knowledge of the Carlsmith parcel.
The county has now determined that the draft Environmental Assessment is sufficient for purposes of the roadway exchange and has issued a finding of no significant impact for the project. Gary Gill has also informed at least one party who commented on the draft EA that the exchange is in no way connected to the parcel consolidation and resubdivision.
In the meantime, a map found in the Department of Public Works files shows the Carlsmith property as it is proposed to be configured following final approval. Three of the newly configured lots are marked “SOLD.” According to a chart at the top of the map, prices of the lots (some with houses, others vacant) range from a low of $125,000 (for a 2.7-acre vacant lot) to $1.5 million (for a 10.4-acre lot with a main house, two rentals, a warehouse, two greenhouses, and a potting shed).
On Christmas Eve, 1996, Robert G. Williams, president and principal broker of The Prudential/OrchidIsle Properties, wrote Virginia Goldstein. The purpose of the letter was to seek her concurrence in a determination of the number of “pre-existing legal lots of record” for several parcels owned by Mauna Kea Agribusiness in Onomea, a stone’s throw north of the consolidation and resubdivision proposed by Carlsmith. The total area involved is about 95 acres. Again, existing zoning is for 20-acre agricultural lots. Of the five existing lots identified by tax map key, two are conforming (that is, larger than 20 acres).
Maps accompanying the letter illustrated each of the separate grants or lots that Williams wished to claim as pre-existing. Most of the old grants, dating back to the 1880s, were bisected by a railroad right of way. Two were split by the Scenic Route. But by the most colorful map was that of the railroad right of way itself. Not only did the railroad’s path bisect several grants, thus creating three lots of record for each one that had existed before (under Goldstein’s interpretation). In addition, the railroad lot extended well south of the limit of the remainder of the property owned by Mauna Kea. By counting this extension as two additional lots neither buildable in any meaningful sense – two more “lots of record” could be added to the total quotient of lots allowed in the consolidation and resubdivision.
Altogether, Williams sought Goldstein’s confirmation of 26 “pre-existing legal lots of record” -which Goldstein granted on February 21 of this year. Of the 26 lots confirmed, perhaps as many as eight are so small or so configured as to not be buildable lots. None of the proposed lots in the preliminary plat map conforms with current zoning.
In April, M&E Pacific submitted preliminary plat maps of the proposed consolidation and resubdivision. Tentative approval was still pending at press time.
Despite the lack of final approval, “Mauna Kea’s Onomea” lots were included in a June 25 “caravan” tour of “pending projects” of C. Brewer organized by Bob Williams of The Prudential/Orchid Isle Properties. Asking prices for the 26 lots ranged from $135,000 to $275,000.
Yet a third C. Brewer “pending” project was scheduled for a visit by the caravan. That project, marketed as the Wainaku Farm Lots, consists of about 20 lots varying in size from 5 acres to 26 acres. That development also is to be the result of a parcel consolidation and resubdivision. However, as of late July, the county Planning Department has yet to receive an application for the PC&R necessary to create the lots being sold.
Volume 8, Number 1 August 1997