Sierra Club executive committee members believe that the special permit process is not appropriate to grant uses of commercial projects on lands zoned state agriculturalThe letter states in part
The Special Permit process is not appropriate for granting nonagriculture-related commercial uses on agricultural lands.However, Hawaii Revised Statutes §205-6, titled "Special permit," provides
The appropriate procedure for considering applications for commercial uses that have no relation to agriculture on Agricultural land is to apply for a variance or a rezoning, and to make the showing that the proposed uses would meet the standards associated with a variance or rezoning. If the proposed uses met those standards, then the application for the variance or rezoning could legitimately be considered on its own merits.
Instead, the Kilauea Pavilion permit application has used the vehicle of a “Special Permit” as an end-run around compliance with the necessary variance or rezoning standards.
(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired.Sierra Club might argue that special permits are not appropriate for granting nonagriculture-related commercial uses on agricultural lands, however there is no explicit prohibition in 205 or stated in definitive terms in any case I'm aware of.
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(c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter.
The Sierra Club letter states other legal grounds not discussed here for it's opposition to the permit. See the link to see the complete statement.
3 comments:
Charley, you need to also look at Land Use District Regulation 5-2 to get the 5-point test to be applied in determining what may be "unusual and reasonable" under Sec. 205-6 as the HSC used in NEIGHBORHOOD BOARD NO. 24,
639 P.2d 1097, 64 Haw. 265, 1982.HI.40212.
You also need to read the Neighborhood Board case if you are going to be commenting knowledgably on the subject.
Brad
Brad, I always appreciate your comments. Isn't the proposed development under15 acres? If so, the five guidelines would be found in Chapter 13 of the county planning commission rules of practice and procedure. It's a technical point since the guidelines are the same.
I'm familiar with the case you cite. However it doesn't really stand four corners with the case here. There the court found that "allowance of a special permit for the development of a recreational theme park covering 103 acres of agricultural land, a major commercial undertaking which developers estimate will attract approximately 1.5 million people annually to the Waianae Coast, accordingly frustrates the objectives and effectiveness of Hawaii's land use scheme" and that something of that scale and magnitude "is more properly the subject of a district boundary amendment petition."
It is entirely possible that a court would find that the special permit process is perfectly appropriate for the present project with its much smaller scale and impact. Or maybe not.
If it met the 5-point test for a Special Permit, but bases on a full review of the facts, it does not.
On a separate issue, the whole parcel is 15.77 acres. The project approval process was split into two phases for a number of reasons, one of which is to get it below the 15 acre requirement with the LUC. But they have still been relying upon the larger acreage figure to get it under the 10% impervious lot coverage requirement. Regardless, the 5-point test for "unusual and reasonable" is not met here for the Special Permit based on a full reading of the facts. Further this precedent compromises land use districting laws for the whole state 15 acres or less at a time.
Brad
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