COM 0042.025 2004-2006 - Laserfiche WebLink

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January 3, 2005 Page 3 In reasonable reliance on the project entitlements and the Development Agreement, and consistent with their desire to become a part of the Kona community, the Hokuli'a Lot Owners purchased their lots with the intention of building upon them. The land use changes for the Hokuli'a property embodied in Draft 1 of the proposed General Plan would violate the Development Agreement, designed to benefit the Hokuli'a Lot Owners. In furtherance of the County's promise that "Oceanside shall have the right to develop the Project," Section 21 of the Development Agreement provides in pertinent part: Anr subsequent change in any applicable law adopted by the COUNTY ....which alters or amends the Land Use Regulations,` including with limitation, any moratorium, shall be void as to the Property. Designating lands in Hokuli'a as "important Agricultural Land" constitutes a change in the Land Use Regulations and any action that seeks to impose such a change constitutes an actionable breach of the Development Agreement. Equally important, there are other significant long term impacts that might well follow from the County's proposed new land use designation. [f the Crial court's decision enjoining the construction of homes at Hokuli'a is overturned on appeal, the new designation would create a substantial new litigation risk that the issuance of building permits for individual homes or future subdivision approvals might be challenged based upon an assertion that the intended use of the IoC or of the area to be subdivided does not satisfy the new policy embodied in the Important Agricultural Land designation. 1f the trial court order is affirmed on appeal, other problems may well surface. In order to proceed with the development of Hokuli'a, the trial court's order requires Oceanside to process an application before the State of Hawaii's Land Use Commission ("LUC") to move the Hokuli'a lands into the state land use urban district. Hawaii Comity's proposed designation of Hokuli'a lands as "Important Agricultural Land" would materially affect Oceanside's ability to obtain LUC approval because it would provide a basis for a determination that the current development plan is inconsistent with the County's general plan. In October of 2003, the Third Circuit Court enjoined the issuance of any additional building permits to Hokuli'a Lot Owners. As a result, the property rights of the Hokuli'a Lot Owners have been severely impacted by a judicial decision rendered in an action where they were never parties and had no opportunity to he heard. The Hokuli'a Lot Owners have been denied procedural due process and the judge's action constitutes a govenunental taking without compensation. Adoption of Draft 1 in its -1"he Development Agreement defines "Land Use Regulations" in Sec[ion 2. v. which states: "Land Use Regulations" shall mean any and all State and County laws, ordinances, resolutions, rules and policies governing the permitted uses of the Property, including without limitation, uses density, design, height size and building specifications of proposed buildings; construction standards and specifications for roads and utilities, roadway improvements; affordable housing; community benefit assessments; water utilization and all exaction requirements applicable to the development of the property; made applicable and m force as of the date of this Ageement. Ytll<OI$-0pJl 633 West Fifth Street, 54`" Ploor, Los Angeles, California 90071-2005 Telephone: 213. 241. 0900 Facsimile: 213. 241. 0990 www.bknlawyers.com