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developer's own arguments at the Board of Appeals and is in non conformance with the General Plan policies and LUPAG Map land use elements. (see attached documents). The presence of urban zoning and lack of conservation zoning at Pepeekeo Point make it imperative that consideration be given to preserving the ball fields and adjacent common open space along the shoreline. The village's common elements, including the roads, ball fields and adjacent open space along the shoreline were portions of land set aside for public use before the subdivision code was written. These common elements have essentially remained intact all these years and the public continuously perused the azea and used them. Therefore the public has legitimate claim to concessions from the developer. In the BOA CP argued that it should be able to use the old house lots in Pepeekeo Mill Village as pre-existing lots of record for its PC&R. This was based on law and by the example of Hamakua Housing. Hamakua Housing's subdivision applications had been approved for use of camp house lots as pre-existing lots of record in ten cases. CP demanded equal protection under the law and aggued there was no rational basis to treat CP differently under the laws and rules, which had not been formally changed. Hamakua Housing never subdivided the common open spaces to establish house lots. The common open spaces were preserved for the communities' welfare. Now the County Council must review this issue of equal protection under the law and due process and reject Bill 356. I am asking you to take into account the historical use of Pepeekeo Point and the long term use of the common open space. It must be reserved for a general pazk in the public interest. It would benefit the whole island and would service many people, including the nearby residents, people from the surrounding coastal communities, residents of Hilo, and any person who enjoys touring the island. It has been a vital part of the island's life style. The Planning Commissioners were discouraged from using their discretionary power to amend the conditions of SMA 03-009 for the SMA azea at Pepeekeo Point. The Planning Director repeatedly emphasized that the BOA Settlement Agreement was a controlling document. We don't want this project to blow up in everyone's face. There is need for legal review for compliance with HCC Chapter 34, chapter 30, and the General Plan. Approval of the rezoning can be used as leverage to effect positive change by identifying what needs to be done to correct the deficiencies of the subdivision to date. Here are some public access issues: * deficient spacing of mauka makai access easements. Failure to obtain required County Council approval.