Kaʻū News Briefs Aug. 18, 2024

KA'U CDP ACTION COMMITTEE'S VOTE DID NOT TRIGGER COMMITTEE TESTIMONY TO THE PLANNING COMMISSION. The Kaʻū Calendar facebook and its www.kaunewsbriefs.com misreported on Aug. 15 that the Kaʻū Community Development Plan Action Committee's 4-3 vote on Aug. 14 would lead to the Committee sending a letter to the Windward Planning Commission concerning whether Black Sand Beach, LLC's request for a Special Management Area permit for its development would be in alignment with the Kaʻū Community Development Plan. 

      Current Events, A Strategic Communications Agency, which is working with developer Black Sand Beach, LLC., pointed out in a letter to The Kaʻū Calendar on Sunday, Aug. 18 that "The Kaʻū Community Development Plan Action Committee 4-3 vote failed to pass their motion to send their draft testimony to

    Current Events also pointed out that "As the vote to transmit the Kaʻū Community Development Plan Action Committee's testimony to the Windward Planning Commission failed, the Action Committee then voted to schedule this matter at its next meeting on September 19, 2024 or sooner, to allow Action Committee members enough time to consider the Applicant's response to the Action Committee's draft testimony. Also discussed was an opportunity where individual committee members may elect to independently reach out to (developer's consultant) Daryn Arai to discuss the Applicant's response." Current Events also wrote to The Kaʻū Calendar: "The thrust of the Kaʻū Community Development Plan Action Committee’s draft testimony was that the SMA Application does not comply with certain applicable policies of the Kaʻū Community Development Plan. Your posting incorrectly states that the "some of the plans by Black Sand Beach, LLC are not in alignment" with the CDP. As presented in the draft testimony, the focus was the on the SMA application rather than any specific plan or plan component.

    "The project’s planning consultant, Daryn Arai, did not make any statement during the Kaʻū Community Development Plan Action Committee's meeting that the Applicant, Black Sand Beach, LLC 'is willing to work with the county and public on adjustments to the plan.'  Mr. Arai did inform the Kaʻū Community Development Plan Action Committee that he will make himself available to answer any questions that the committee members may have regarding the Applicant's response to the Kaʻū Community Development Plan Action Committee's draft testimony."

    Black Sand Beach LLC, the owner of lands within Punaluʻu that are the subject of a SMA Use Permit application, offers this response to the Kaʻū Community Development Plan Action Committee (“Committee”) regarding its testimony dated August 14, 2024 and presented as Communication No. 2024-04.

    Black Sand Beach LLC is appreciative of the time and attention that the Committee has devoted to considering the application and weighing it against the objectives, policies and actions prescribed by the Kaʻū Community Development Plan (“Kaʻū CDP”). Our only disappointment with the proceedings by the Committee is the lack of direct engagement with the Applicant, Black Sand Beach LLC. Absent such opportunities, we offer this response for your collective consideration. 

Black Sand Beach, LLC illustration of plans near Punalu'u Black Sand Beach.

    As referenced in the Committee’s testimony, “committee member Babette Morrow presented a document analyzing the recommendations for Punalu’u Black Sand Beach found in the Ka’ū CDP. On July 11, 2024 the Action Committee was presented with an analysis of the SMA from Ron Whitmore. Ron was the County Planner who acted as project manager for the Ka’ū CDP creation and he played a lead role in writing the CDP.” While both Ms. Morrow and Mr. Whitmore are knowledgeable individuals invested in the development and administration of the Kaʻū CDP, the Committee must not simply defer to information presented by Ms. Morrow and Mr. Whitmore, but must, as a collective body, independently consider all information presented and qualify each and every finding that forms the basis for any action taken by the Committee. Communication No. 2024-09 Chairperson Jason Masters and members of the Kaʻū Community Development Plan Action Committee.

    This being said, we offer the following point-by-point response to the analysis offered in the Committee’s August 14, 2024 testimony, which we have recited in this letter to make for easier reference.      1. The SMA application appears to be consistent with the following Policy Controls: Policy 1, Policy 5, Policy 7, Policy 27. 

    Applicant’s Response: Concur 

    2. The SMA application appears to be inconsistent with the following Policy Controls: 

    • Policy 6: It does not include affordable housing. 

    • Policy 28: A new shoreline setback should have been established. 

     • Policy 29: Necessary assessments were not completed, including for impacts on scenic resources, view planes, water quality, marine life, and cultural resources as well as the impacts of tsunamis and sea level rise. 

    Applicant’s Response: Disagree, as explained further below. 

    Policy 1: Rehabilitate and develop within existing zoned urban areas already served by basic infrastructures, or close to such area, instead of scattered development. Much of Punalu’u is in the State Urban district and is zoned for urban uses, including near the shoreline. 

    Applicant’s Response: Concur 

   • Areas subject to proposed new development and the reestablishment of former uses or rehabilitation of existing facilities are all situated within the State Land Use Urban District, all of which are or will be served by basic supporting infrastructural facilities such as roads, water, sewer, electrical and fire protection systems. 

    Policy 5: Rehabilitate and optimize the utilization of designated resort areas that are presently serviced by basic facilities and utilities, and before new resorts are allowed in undeveloped coastal areas. Punaluu is designated “Minor Resort.” 

    Applicant’s Response: Concur 

    • The SMA Use Permit applications presents an opportunity to rehabilitate Punaluʻu so that both residents and visitors are able to once-again enjoy the treasures that make this established community so special.  

    Policy 6: The development of visitor accommodations and any resort development should complement the character of the area; protect the environment and natural beauty; respect existing lifestyles, cultural practices, and cultural resources; provide shoreline public access; and provide affordable housing to meet demand created by the development. The SMA does not include affordable housing. 

    Applicant’s Response: Inappropriate reference 

    • The purpose of the Special Management Area (SMA) is to preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawaiʻi by placing special controls on development within the area along the shoreline deemed necessary to avoid permanent loss of valuable resources and the foreclosure of management options, and to insure that adequate public access is provided to public-owned or used beaches, recreation areas, and natural reserves, by dedication or other means. The provision of affordable housing related to a proposed development is not a coastal natural resource concern and is, therefore, not subject to review and protection under the statutory guidelines of the SMA. 

    Policy 7: With the adoption of the Ka‘ū CDP, Figures 2, 3, 4, 5, 6, and 7 on pages 43 through 48 are adopted as the official Land Use Policy Map for the Ka‘ū CDP planning area. The land use category definitions are identical to those used in the General Plan LUPAG map (and included in the Glossary). Future land use decisions in the Ka‘ū CDP planning area shall be consistent with the Land Use Policy Map boundaries, designations, and policies herein, unless the CDP and the General Plan are in direct conflict. 

    Applicant’s Response: Concur 

    • The Ninole to Punaluʻu area as identified as a Resort Area (Minor) by the Kaʻū CDP Land Use Policy Map. The General Plan defines a “Minor Resort area” as not exceeding 500 visitor units. The proposed Punaluʻu Village presents a total of 225 residential and short-stay units, in addition to the approximately 100 units that comprises the current communities of Colony I and Kalana Golf Estates. 

    Policy 27: To reinforce existing protections, the official Ka‘ū CDP Land Use Policy Map designates coastal areas in Ka‘ū as open space to be preserved, protected, and connected to the rich network of natural and cultural resources in the region. Development and construction in the coastal “Conservation” and “Open” areas shall be minimized and, when necessary, limited to recreation, research, and education facilities unless otherwise permitted by law. The General Plan “Open” designation limits future uses to “Parks and other recreational areas, historic sites, and open shoreline areas.” However, neither the General Plan LUPAG nor the CDP supersede existing zoning, and the proposed development in the SMA is consistent with the zoning. 

    Applicant’s Response: Concur 

    • The proposed Punaluʻu Village will set aside the entire coastal portion of its properties as a shoreline management area that includes all of the coastal lands designated as Conservation by the State and zoned Open by the County. 

    Policy 28: On lots that are at least partially within the Special Management Area (SMA) in the Ka‘ū CDP Planning Area, establish shoreline setbacks at the earliest stages of the land use planning and development process at a minimum of 1,320 feet (1/4-mile); however, the applicant may request that the setback be reduced by providing information to the Department, including information required for SMA review, which would allow for an assessment of the proposed activity’s impacts and in consideration of the physical limitations of the property. For lots created prior to the date of adoption of the CDP with an average lot depth of two hundred feet or less, the shoreline setback line shall be 40 feet. Figure 4 in the SMA clearly includes “new facilities” as well as development on parcels that abut the shore, including Artisan Garden Hales, Museum Pavilion, Welcome Center, and Beach Club Café, so a new shoreline setback should have been established. 

    Ron Whitmore’s analysis continues: Policy 28 is triggered by proposed development on lots that are at least partially within the Special Management Area (SMA) in the Ka‘ū CDP Planning Area. The assumption is that the SMA includes all areas where structures have the potential for coastal impacts. Along most of Ka‘ū’s shoreline, the SMA extends ~500 feet mauka, but between Punalu‘u and Honu‘apo, it extends to the highway, and at South Point, it extends ~5,000 feet inland. This language was based, in part, on Kauai County’s shoreline setback ordinance, which applies to lands that are not abutting the shoreline but located within five hundred (500) feet of the shoreline. 

    Default: Policy 28 establishes the shoreline setback at a minimum of 1,320 feet (1/4-mile). Unlike the current default of 40 feet, this is not completely arbitrary. It is based on 1) an assessment of the distance of coastal resources from the shoreline in Ka‘ū (as mapped in Appendix V4A) and 2) the ¼-mile standard used by planners to assess the “walkable” distance to sites of interest. 

    Note that most of the public comment during review of the Draft CDP called for much deeper setbacks – a full mile or more. Oft-cited was the 2006 recommendation from the South Kona-Ka‘ū Coastal Conservation Task Force to establish a 1.5 mile “no development” shoreline setback. 

    Applicant’s Prerogative: Importantly, Policy 28 provides the applicant the opportunity to make a case for a different setback by providing information specific to the site and to the proposed activity’s impacts.     Properties Impacted: The application of this policy would not take any entitled land use rights away. Buildable lots and urban-zoned areas in Punaluʻu would retain their rights. Park facilities are either minor structures or eligible for a variance. Otherwise, most coastal parcels in Ka‘ū are large, deep, and zoned Agriculture outside the near-shore conservation district strip, so a setback wouldn’t limit permitted uses.      Applicant’s Response: Further Clarification provided

     • Figure 4 is the SMA application does not show “new facilities” on parcels that abut the shoreline. The narrative within the application clearly describes “possible restoration of portions of former restaurant buildings” to create spaces for a welcome center, museum, café and other educational and recreational types of uses. On Page 4 of the SMA application, the following was disclosed: 

    “Special note should be taken that while the Applicant is proposing the restoration of the former Punaluʻu Restaurant site for educational and recreational types of uses, it will only be pursued if the reuse of the former restaurant buildings and surrounding grounds can be reasonably rehabilitated in light of the regulatory environment that encumbers this particular area, such as the jurisdictional issues related to the shoreline and the anchialine pond, shoreline setback requirements, coastal flood requirements, and other regulatory hurdles. At the very least, the Applicant is committed to the clean-up and maintenance of the existing 62-stall parking lot, which includes bus parking and visitor drop-off area. The Applicant will explore the permitting pathways in the hopes of providing for the clean- up and establishment of passive activities at this former restaurant site, but understands that regulations may not permit certain concept elements to be realized.” 

    • Regarding the recommended shoreline setback at a minimum of 1,320 feet (1/4-mile), Mr. Whitmore did not conclude that the proposed Punaluʻu Village project is inconsistent with Policy 28. He specifically noted that Policy 28 provides the opportunity to make a case for a different setback by providing information specific to the site and to the proposed activity’s impacts. The proposed Village & Wellness Center and is located approximately ¼-mile from the shoreline. The proposed Colony II is located about 1/3rd of a mile from the shoreline. The only significant improvement near the shoreline is the Open Market and Restaurant, located near the former Punaluʻu Restaurant and mauka of Ninole Loop Road. The Open Market and Restaurant will provide opportunities for local vendors to share the bounties of their hard work and talents with visitors to the Black Sand Beach. This location on the mauka side of Ninole Loop Road was selected due to the location of the existing parking lot, providing an opportunity to encourage beach-goers to go to the parking lot and avoid parking on the black sand beach, and to also encourage visitors to spend more time at the Open Market & Restaurant and less time lingering on the crowded beach. We believe that taking a unilateral stance to force all structures and uses at least ¼-mile inland totally disregards the carefully-crafted purpose of locating certain facilities and uses near the coastal portions of the project site in an attempt to lure visitors away from the black sand beach, which is currently the only attraction that brings visitors to the area. The proposed Punaluʻu Village project aims to create opportunities that draws people to other parts of the project site and away from the crowed black sand beach. 

Punalu'u is the lead photo of Ka'u Community Development Plan which can be read at https://www.planning.hawaiicounty.gov/general-plan-community-planning/cdp/kau. See Black Sand Beach, LLC's SMA permit proposal at https://records.hawaiicounty.gov/weblink/1/doc/127617/Page1.aspx

    Policy 29: No development, including subdivision, shall be approved in the SMA unless the development will not have any substantial adverse environmental or ecological effect. 

    In order for the Planning Director to accurately evaluate whether the proposed action will have a substantial adverse effect, the Director shall require that SMA Use Permit Assessment and Use Permit applications include all of the information necessary to assess the proposed activity’s impacts in the Special Management Area, including but not limited to: 

    • A description of the environmental setting and natural resources in the area, including an assessment of impacts on rare, threatened, or endangered species (such as the local green sea and hawksbill sea turtles and the Hawaiian hoary bat) or their habitat and on fresh and coastal water quality; 

   • A description of valued cultural resources or historical sites in the area, including the extent to which traditional and customary native Hawaiian rights are exercised in the area; 

    • An assessment of impacts on coastal scenic and open space resources and view planes, including those outlined in the General Plan, the Community Development Plan, and other adopted plans, as well as the line of sight toward the sea from the state highway nearest the coast and along the shoreline; 

    • Identification and detailed information of existing public access to and along the shoreline to the specifications required by Na Ala Hele and the Ala Kahakai National Historic Trail; 

    • An assessment of impacts on hazard risk, including flooding, tsunami, and coastal erosion and/or sea level rise over the life of the development; 

    • A description of the relationship of the proposed action to land use plans, policies, and control of the affected area, including the General Plan and Community Development Plan including potential impacts on traffic and circulation and required highway improvements. 

    Any development permitted, including those determined to be exempt from the definition of development in Planning Commission Rule 9, shall be subject to terms and conditions to achieve Coastal Zone Management (CZM) and CDP objectives and policies, including conditions that protect natural, cultural, historic, and recreational resources; preserve agricultural land, open space, and view planes; ensure access; mitigate impacts of coastal hazards; limit coastal development; and concentrate new development (particularly if it is not coastal dependent) on vacant land in town/village centers (before converting agricultural land to residential uses), and discouraging speculative residential development. Conditions could include but not be limited to setbacks, restrictions on artificial light, lateral and mauka‐makai access requirements, dedication of conservation and trail corridor easements, cooperation with efforts to manage access and use of coastal resources, minimizing the number of lots abutting or near the shoreline, and maximizing the use of land in the State Land Use Urban district and/or urban LUPAG categories. The Planning Department conditions of approval for the SMA include: “8. The applicant will submit to the Planning Department for review and approval the following updated plans: 1) Water Quality and Marine Life Monitoring Plan, 2) Pond Management Plan, 3) Cultural Resources Management Plan, and 4) Shoreline and Preservation Area Management Plan. These plans shall be submitted prior to any development activities described in this permit.” 

    (1) Pursuant to this Policy, these studies should have been completed before submitting and in support of the SMA application. (2) Pursuant to this Policy, the SMA application should also have included an assessment of impacts on coastal scenic and open space resources and view planes,…, as well as the line of sight toward the sea from the state highway nearest the coast and along the shoreline. (3) Pursuant to this Policy, the SMA-23-46 application should have also included an assessment of impacts on hazard risk, including flooding, tsunami, and coastal erosion and/or sea level rise over the life of the development.   

    Note: The Planning Director has the authority to require an Environmental Assessment (EA) or Environmental Impact Statement (EIS) in support of an SMA application. 

    Applicant’s Response: Further Clarification provided• Black Sand Beach LLC has taken a more direct approach via specific proposed actions that will minimize any potential adverse impacts than the preparation of “plans” in order to demonstrate that the proposed Punaluʻu Villages project will not have a significant adverse impact upon coastal resources. These proposed actions, which are described within the SMA application, include:

    o Addressing the decades of neglect that has occurred within the project site, by undertaking the clean-up, repair and maintenance of existing and abandoned facilities throughout the project site; 

    o the continued repair and maintenance of the existing infrastructural systems that support the existing Colony I and Kalana Golf Estates communities; 

    o Black Sand Beach LLC has already secured an SMA Minor Permit to allow for the establishment of fire breaks, a compost site and maintenance of overgrown vegetation due to decades of neglect; 

Black Sand Beach, LLC plans list additional activities to draw people away from a crowded Punalu'u Beach. Photo by Ophir Danenberg

    o designating about 30 acres of coastal portion of project area as a Conservation Management Area, with the remainder of the coastline from the beach park and black sand beach to the boat ramp as a Shoreline Management Area; 

     o Clean up of the existing 62-stall parking area and directing visitors to this parking lot in order to relief vehicular parking on the black sand beach itself; 

    o Clean up the former Punaluʻu Restaurant area and stabilize the existing dilapidated buildings in order to find possible alternative uses that will encourage the use of this area for educational and community activities; 

    o Aside from the Open Market & Restaurant located across from former Punaluʻu Restaurant area, all other new project components are located approximately ¼-mile inland and away from the shoreline area, minimizing visual impacts to and along the shoreline and practically eliminating the potential impact of storm and tsunami inundation upon project components. Buildings kept at 2-1/2 stories or below in order to minimize visual impacts upon mauka view planes; 

    o The proposed project does not involve the use of lands or introduces a type of use that warrants the preparation of an environmental assessment (EA) or environmental impact statement (EIS) in accordance with the requirements of Chapter 343, Hawaiʻi Revised Statutes. The Planning Director, in its Background Report regarding the SMA application, stated that “Based on a review of the project components within the SMA area, there are no triggers that would require an Environmental Assessment (EA) or Environmental Impact Statement( EIS).” 

    o Most importantly, over 3 years of discussions with kūpuna who have kuleana in Punaluʻu and who have been extremely helpful in guiding Black Sand Beach LLC along this journey towards finding the proper path towards revitalizing everything that makes Punaluʻu, Ninole and Wailau so special. The concept master plan and the reduced scale of the proposed Punaluʻu Village project is a direct reflection of the many hours of talking, listening, and reflection with many members of the Kaʻū community.

    Concluding statement by Black Sand Beach, LLC 

    We find that the Committee’s August 14, 2024 testimony is not entirely accurate, and we hope that the discussion above proves helpful to the Committee as it deliberates on its testimony that will be presented to the Windward Planning Commission. As discussed above, Black Sand Beach LLC finds, as the Planning Director has, that the SMA application presents the proposed Punaluʻu Village project as compliant with the applicable policies of the Kaʻū Community Development Plan.