HomeMy WebLinkAboutCOM 0092.029 2004-2006Harry Kim
Mayor
February 22, 2005
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PLANNING DEPARTMENT
i01 Pauahi Street, Suite 3 e Milo, Hawaii 96720-3043
(808)961-8288 a Fax(808)961-8742
Honorable Virginia Isbell
Council Member
HAWAII COUNTY COUNCIL
25 Aupuni Street
Hilo, Hawai'i 96720
Dear Council Member Isbell:
SUBJECT: CONTINENTAL PACIFIC, LLC - BILL 356
TMK: 2-8-8:103
I am writing in response to your memo of February 18, 2005.
Christopher J. Yuen
Director
Roy R. Takemoto
Deputy Director
Regarding the "Agreement", I have enclosed a copy of a "Settlement Agreement" signed
April 12, 2002. This settled the dispute at the Board of Appeals related to Continental -
Pacific's claims to 224 "plantation camp" pre-existing lots, and approximately 14 other
miscellaneous claimed pre-existing lots. In summary, the Settlement Agreement
compromises the number of pre-existing lots and sets the basic standards for the eventual
subdivision of the property, which was done under sec. 23-7 of the Subdivision Code.
The Settlement Agreement contains an agreement regarding public access that was
largely implemented in the subdivision of the property.
The public access easement through the Pepeekeo Pt. area is contained in the final
subdivision map for the coastal area, Sub. 7644, rev. 2. I have enclosed a copy. The
Pepeekeo Pt. area (around the lighthouse) was not actually subdivided in Sub. 7644
because of the pending rezoning application, but Sub. 7644 does include the public
access easements through the point area.
Hawaii County is an equal opportunity provider and employer.
r -
Comm. No. -12 • 2.9
Ref. To:
Ref. Dote
Honorable Virginia Isbell
Council Member
HAWAI'I COUNTY COUNCIL
Page 2
February 22, 2005
The section of Chap. 34, Hawaii County Code that you cite, does call for the Planning
Director to determine the location of existing public access trails and to establish them by
rule. This inventory is a project that we have devoted a great deal of time to in the
Planning Department since 2001, however, we have not been able to complete it for a
number of reasons, including a recent personnel change. We have made considerable
progress on this, but are not yet at the point where we can present this to the public as a
proposed rule.
I hope this satisfactorily answers your questions in your February 18 memo. Please do
not hesitate to call or write if you need further clarification or information.
Sincerely,
j
CHRISTOPHER J. YUEN
Planning Director
CJY:pak
Wpwin60lChrisNirginia Isbell - Continental Pacific
Attachments
cc: Honorable Gary Safarik
Hawaii County is an equal opportunity provider and employer.
SETTLEMENT AGREEMENT FOR BOARD OF APPEALS AND
SUBDIVISION OF CONTINENTAL PACIFIC, LLC LANDS
BOARD OF APPEALS ('BOA")
BOA 01-23 TMK (3) 2-7-07:01 and (3) 2-8-04:01 mauka lands at Kainole Camp / Maukaloa Camp
BOA O 1-31 TMK (3) 2-8-07:01 makai lands at Pepeekeo Mill Village
BOA 01-32 TMK (3) 2-8-08:03, 05 and 12, makai lands between Pepeekeo Mill and Honomu
Village at Kahua
BOA 01-33 TMK (3) 2-8-09:01, makai lands at Pepeekeo Mill and Honomu Village at Kapehu,
Kaupakuea, Kahua 1 and Kahua 3
Continental Pacific LLC - "Continental Lands":
Makai Lands: TMK (3) 2-8-07:1, 05 and 53
TMK (3) 2-8-08:01, 03, 05, 12, 13, 14, 16, 17, 19 and 32
TMK (3) 2-8-09:01
Mauka Lands: TMK (3) 2-7-07:01 and 12
TMK (3) 2-7-09:16
TMK (3) 2-7-10:03
TMK (3) 2-8-04:01
TMK (3) 2-8-09:03 and 09
I. SETTLEMENT AGREEMENT
In consideration of the rights, obligations and duties herein, this letter memorializes the
settlement agreement ("Agreement") reached between the County of Hawaii and its Planning
Department ("County of Hawaii or "County") and Continental Pacific, LLC ("Continental')
relating to the subdivision of the Continental Pacific, LLC lands at Hamakua described herein
("Continental Lands").
A. This Agreement is in compromise of a disputed claim in which the Board of
Appeals recognized certain pre-existing lots within the Continental Lands, and that the County
continues to dispute. This Agreement fully and finally settles all issues relating to all pre-
existing lots of whatever type within the Continental Lands, Special Management Area (HRS
Chapter 205A), Public Access (HCC Chapter 34) and Subdivision (HCC Chapter 23) obligations
asserted by the County over the subdivision of the Continental Lands. Continental, for itself, its
heirs, successors, and assigns, in settlement of this claim, hereby agrees that this settlement
2019077.1.054151-00002 4/12/2002 13:11
extinguishes all claims for pre-existing lots of whatever type within the Continental Lands
covered by this Agreement.
B. Continental will withdraw the four (4) appeals referenced herein which are
pending the April 12, 2002 bearing with the Board of Appeals. The County of Hawaii will
withdraw its letters on pre-existing lot determinations for the Continental Lands.
C. This Agreement is without prejudice to Continental's right to challenge the
application of Chapter 34 with respect to property not covered by this Agreement. By entering
into this Agreement Continental does not wnoede that the County of Ilawaii properly exercised
its authority under Chapter 34.
D. The County of Hawaii does not waive its potential rights to require further public
access over the lands covered by this Agreement pursuant to Chapter 34 for any further
applications for land use approvals, such as subdivisions, rezonings and SMA permits, other than
the applications contemplated herein, to which public access conditions may be attached
nursuant to law.
E. The County of Hawaii agrees that any rules and ordinances adopted or amended
after the Board of Appeals hearing on February 8, 2002 and until April 12, 2002 shall not apply
to the subdivision of Continental Lands as described herein because this is a settlement of a
disputed claim. The County of Hawaii agrees not to adopt any rules that would change the
requirements for these subdivisions to obtain final subdivision approval in a way inconsistent
,pl with the terms and intent of this Agreement. The County administration agrees not to introduce,
and shall actively object to any proposed ordinances that would change the requirements for
these subdivisions to obtain final subdivision approval in a way inconsistent with the terms of
this Agreement. The County administration will support any changes necessary to the proposed
ordinance regarding pre-existing lots so that it would not apply to alter the terms of this
Agreement, and agrees that if this Agreement is executed before the proposed ordinance becomes
law, it would not affect the terms of this Agreement. This paragraph does not apply to laws or
rules necessary to protect public health or safety.
F. All the terms, rights, obligations and duties of the parties to this Agreement shall
inure to the benefit of and be binding upon the parties and their respective heirs, devisees,
personal representatives, successors and permitted assigns.
G. Subdivisions:
Tentative Approval: The County of Hawaii agrees to expedite processing
for tentative approval of the preliminary map(s) for subdivision of the
Continental Lands. As the terms are used in this Agreement, "expedite" or
"expeditiously" shall mean the Planning Department's receipt and
rejection, or acceptance for processing and transmittal of relevant
2019077.1.054151-00002 4/12/2002 13.1 1
documentation for agency comments, within twenty-one (2 1) calendar
days for any SMA and within ten (10) working days for any subdivision,
provided, however that these time provisions shall not apply until the
execution of this Agreement by all parties.
2. Final Subdivision Approval: The County of Hawaii agrees to expedite
review and approval of the final plat(s) and issuance of final subdivision
approval(s) for all lots proposed within the Continental Lands pursuant to
the terms herein.
No Bar to Incremental Subdivisions: The parties hereby agree that the
subdivision(s) of the Continental Lands contemplated herein, even if
processed separately or incrementally, shall not operate as a bar or
preclusion that would negate or delete the pre-existing lots remaining in
the yet to be subdivided area(s) and/or bulk lots.
II. MAKA_I LANDS: Continental shall process one or more subdivisions in the lot
configurations as generally shown on the R.M. Towill Corporation March 9, 2002 proposed
subdivision map identified as Exhibit A, attached hereto and incorporated by reference herein.
References to lot numbers within the Makai Lands in this Agreement are described in Exhibit A.
A. Pre-existine Lots. The County of Hawaii recognizes 92 pre-existing lots (Mill Lot
not included) determined as follows:
1. 53 lots by Grant, LCA, etc. (minimum lot size 1-3 acres) (School Grant
Lot shall be created as a separate lot pending final determination of title.)
If Continental's title to the School Lot is confirmed prior to final
subdivision approval, consolidated Lots 69 and 70 may be subdivided into
two (2) lots with a minimum lot size of 5 acres. If title is confirmed after
final subdivision approval, the School Lot shall be consolidated into the
lot in which it is located.
2. 14 lots in settlement of BOA 01-32 and BOA 01-33 (minimum lot size 1-3
acres)
3. 25 lots out of the 153 claimed camp lots (minimum lot size 5 acres). This
recognition of camp lots shall be without prejudice to the County's right to
deny any other proposed camp lot subdivisions in other cases. In addition,
the above determination of camp lots includes the County's non-
recognition of the approximately 70 claimed camp lots at Kaupakuea
Camp. Continental hereby waives any additional camp lots that may exist
within the Makai Lands.
2019077.1.054151-00002 4/12/2002 13:11
4. Continental to create 1 bulk lot to initially create open area, which shall be
exempt from SMA assessment and SMA Major and/or Minor permit
requirements, and which may be subdivided and/or rezoned in the future
pursuant to the then applicable requirements of the Zoning Code and
Subdivision Code. This bulk lot shall count against the total of pre-
existing lots herein.
5. Undevelopable Lots: If any roadway lots are created, they shall not count
against the number of lots Continental is allowed to subdivide herein.
Continental shall create an easement for the Japanese Cemetery, and create
a lot for the Chinese Cemetery with appropriate easements for access.
This cemetery easement and cemetery lot shall not count against the
number of lots Continental is allowed to subdivide herein.
6. Tax Deed Lots: If any of the tax deed lots acquired by Continental are
redeemed prior to December 6, 2002, Continental shall not be allowed to
count that lot in the total of pre-existing lots.
B. SMA. Continental shall submit separate SMA Assessments for all development
within the Special Management Area, including, without limitation, the development proposed
within the SMA/SLU Urban District and SMA/SLU Agricultural District. The processing for the
Continental Lands within the SMA shall be subject to the following provisions.
., 1. Lots within the SLU Urban District:
a. Continental shall process a SMA Major permit application and a
current certified shoreline survey for a maximum of twelve (12)
lots (Lot 21 through and including Lot 30 within the SMA and
Urban District, and Lot 41 and Lot 43 within the SMA and
Agricultural District). The Planning Director hereby agrees in
principle that the creation of these 12 lots, with the use restrictions
and protections provided in this Agreement, and appropriate
conditions, can meet the criteria for a SMA Major Permit, and the
Planning Director shall provide a recommendation consistent with
this Agreement on the SMA application to the Planning
Commission. If the Planning Commission approves the SMA
Major Permit, the County of Hawaii shall expeditiously process the
preliminary plat and final subdivision approval, consistent with the
terms of the SMA approval.
b. The twelve (12) lots created within the Urban District and within
the SMA shall be limited in density to one single-family dwelling
per lot, together with accessory uses, guest quarters and other
Pi
2019077.L0541 51-00002 4/12/2002 13 1 1
permitted uses within the Single -Family Residential zoning district
pursuant to the Hawaii County Code. Continental shall record
restrictive covenants running with the land for these twelve (12)
lots addressing this limitation on use with the Bureau of
Conveyances. The restrictive covenants shall be enforceable by
the County and the lot owners.
C, The proposed lots, or portions thereof currently located within the
Limited Industrial (ML -20) and General Industrial (MG -5a) zoned
areas (Lots 21, 22, 23, 24, 25, 26, 41, 42 and 43) are not presently
zoned to allow Residential uses and shall be submitted for rezoning
by Continental to Single Family Residential (RS -20) in that the
County agrees that the Residential zoning is consistent with the
General Plan and Residential zoning criteria. The area of Lot 91 (4
to 6 acres) has been determined by the County to be consistent
with the General Plan LUPAG Map for light industrial use, and
submitted for rezoning by Continental from SLUC Agricultural
and Agricultural (A -20a) to SLUC Urban and Light Industrial
(ML -20). The County agrees in principle that for Lot 91, the
Limited Industrial zoning is consistent with the historical use of the
area, and that an area of Limited Industrial is needed to support the
agricultural uses in the general area. The County shall
concurrently and expeditiously process these applications and shall
provide a recommendation consistent with this Agreement and a
finding of consistency with the General Plan LUPAG map to the
Planning Commission and County Council.
d. All lots created within the present State Land Use Urban District
and not within the SMA, shall be limited to one single-family
dwelling per lot, guest houses, and other uses permitted within the
Single -Family Residential District pursuant to the Hawaii County
Code. Continental shall record restrictive covenants so limiting the
uses, which shall be enforceable by the County as well as the lot
owners.
e. Prior to final subdivision of the affected areas, the County of
Hawaii may initiate a rezoning of areas within the existing State
Land Use Urban District to an RS zoning with a larger minimum
building site area than the present zoning. Continental shall
consent to and support the rezoning if (1) the proposed minimum
building site area is less than the size of the applicable lot, as
shown on the preliminary plat map, (2) the rezoning does not
change the permitted uses, and (3) the rezoning does not impose
2019077.1.054151-00002 4/12/2002 13:11
additional obligations on the lot owners or Continental. If the
rezoning occurs, the limitation to one single-family dwelling per
lot need not be a deed covenant, unless desired by Continental.
2. Lots within the SLU Agricultural District:
a. SMA Exemption: Continental and the County agree that there are
currently 13 lots, or portions thereof, within the SMA. The County
of Hawaii shall grant an SMA exemption for a maximum of
thirteen (13) developable pre-existing lots (Lots 31, 32, 33, 34, 36,
37, 38, 1, 3, 4, 5, 6 and 7) approximately one to six acres in size
located within the SMA and Agricultural District. The
consolidation and resubdivision of these thirteen (13) lots into the
proposed configuration as proposed in Exhibit A is not
"development" because it does not pose a significant
environmental or ecological effect in that the resulting lots are not
concentrated on a beach or other sensitive coastal area, the lots are
located approximately 300 feet from the shoreline, and in
consideration of the other requirements of this Agreement,
including the provisions relating to public access and limitations
on the use of the bulk lot. In the event that the Conservation
District line within the Continental Lands is re -interpreted by the
State Land Use Commission (or changed by boundary amendment)
in the makai direction from its present location approximately as
shown on Exhibit A, approximately 300 feet from the cliff edge, all
dwellings shall be setback from the certified shoreline a minimum
of 330 feet. Lots 35, 39, 40, 44 and 2 are determined to be outside
of the SMA, or in the case of Lots 44, 2 and 39, if not outside the
SMA, the boundaries shall be adjusted so that they are not within
the SMA, or upon Continental's sole option, one or more of the
lots shall be included in the SMA Major permit application noted
herein. The County hereby waives the requirement for submittal of
a certified shoreline survey for these exempt lots in that they are
located a considerable distance from the shoreline by a band of
SLUC Conservation District land.
Location of south and north lots outside SMA: Continental shall
locate the oceanfront lots proposed at the south end (Lot 71
through and including Lot 81) and north end (Lot 8 through and
including Lot 20) of the Continental Lands outside of the SMA.
The County of Hawaii shall not require processing of a SMA
Assessment or SMA Use Permit (Major or Minor) for these lots.
Continental may, at its sole option, relocate any or all of the
2019077.1.054151-00002 4/12/2002 13.1 1
oceanfront lots on the south end within the SMA, and if so, these
lots shall be included in a SMA Major Permit application. At the
north end, a landscape buffer shall be planted by Continental along
the mauka edge of the road extending to the north end of the
Continental Lands in the general area of Lots 3 through 20.
C. Consolidated Lot 20: At the north end, Continental shall include
building setback covenants limiting development of Lot 20 to the
northern -most side of the lot adjacent to Kapehu Stream.
d. Farm Dwellings: Development of farm dwellings and additional
farm dwellings on all lots within the SLU Agricultural District
shall be pursuant to the applicable regulations of HRS Chapter 205
and HCC Chapter 25.
e. Shoreline Areas Fronting Lots: Continental shall record covenants
covering the use and management of the shoreline areas within the
portions of bulk Lot 92 in the SMA, which shall allow, without
limitation, private park, agricultural uses and open space
recreational areas. At the north end of the Continental Lands
(fronting Lots 30 through and including 38,and Lots 1 through and
including 20) these covenants shall also prohibit the further
development of residential and/or farm dwellings within the area
currently designated SLU Conservation and within the County
Special Management Area. Any development in the area shall
comply with all applicable laws. The restrictive covenants shall be
enforceable by the County and the lot owners.
Lots 69 and 70: Continental shall consolidate Lots 69 and 70 into
one (1) lot with a minimum lot size of 10 acres, provided however,
that Lots 69 and 70 may be subdivided into two lots with a
minimum lot size of 5 acres each if the title contingency noted in
Section II.a.1. herein is resolved in Continental's favor.
C. Public Access
The County and Continental agree to the five (5) pedestrian public access
and parking easements as more particularly shown on the map marked
Exhibit "A" attached hereto and incorporated herein. As used herein, the
term "pedestrian public access" shall mean and be limited to pedestrian
foot traffic, and does not include use by bicycles, motor bikes, all -terrain
vehicles or motorized vehicles of any type, or horse, mule or other animal
use. The County of Hawaii hereby agrees and stipulates that the terms of
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this Agreement and the recordation of the Easements for Public Access for
the Continental Lands at the Bureau of Conveyances, State of Hawaii,
shall constitute full and final compliance with all public access
requirements for the Continental Lands of Hawaii Revised Statutes
("HRS") Section 46-6.5, HRS Chapters 205A and 343, the Ala Loa or Ala
Kahakai, and Hawaii County Code Chapter 23 (Subdivision) and Chapter
34 (Public Access).
2. Mauka-Makai
a. Vehicular: The vehicular easements, public parking areas and
access road(s) thereto shall not be "County highways", and shall be
designated on the final subdivision maps as easements for public
vehicular travel and parking over private property. There shall be
public vehicular access allowed on Pepeekeo Mill Road, and along
the Old Railroad right-of-way, the present road along Waimaauou
Stream (unless equivalent vehicular access is provided), a new 10 -
foot wide driveway from the Railroad right-of-way down along
Kapehu Stream to the public access parking area at the Beach Road
cul-de-sac, and along the segment of road leading makai from the
Banyan Tree on TMK (3) 2-8-9: 1, to the various public parking
easements, as shown on Exhibit "A". Continental shall initially
grade and prepare the parking easements to be suitable for parking
vehicles. The vehicular accesses shall not be public highways and
the County assumes no responsibility for the maintenance of the
vehicular accesses. Continental expressly reserves its protections
and rights under Hawaii Revised Statutes Chapter 520, relating to
Landowners's Liability.
b. Pedestrian: Continental shall provide mauka-makai pedestrian
public access from the public parking areas shown on Exhibit "A"
in the makai direction along a 10 -foot wide mauka-makai
alignment to the 10 -foot wide lateral pedestrian public access
easement(s) shown on Exhibit "A".
3. Lateral
a. No vehicular lateral access.
b. Lateral pedestrian public access: Continental shall provide a ten
(10) foot wide lateral pedestrian public access within the shoreline
setback area fronting the ocean throughout the Continental Lands.
Due to the extreme slopes of the Alia Stream and Makea Stream at
0
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the shoreline area, the County acknowledges that the lateral access
may not be continuous in these locations.
4. Designation of easements on subdivision map: The pedestrian public
access easements (mauka-makai and lateral) described in this Agreement
shall be entered on the final subdivision maps as easements in favor of the
County of Hawaii.
5. The various vehicular and pedestrian public access easements described
herein shall not be officially open to the public until easement documents
have been accepted by both parties and the easements conveyed to the
County. Enactment of rules governing the use of the public accesses
pursuant to Chapter 34, Hawaii County Code, shall also be a condition
precedent to the official opening of the public accesses. Public access to
the shoreline at the Makai Lands shall be open between 6:00 a.m. to 6:00
p.m., seven days a week. Access for night fishing past 6:00 p.m. shall be
allowed pursuant to a permit or registration system approved by the
County.
6. The descriptions of the public access easements on Exhibit A are the
parties' best efforts to describe the locations of the desired public access
easements. The parties agree that the exact locations of some of the trails
in question must be physically located on the ground and cannot be
exactly specified on maps at the present time. The lateral shoreline access
shall be designated on the subdivision map(s) as an easement for lateral
shoreline access, 10 -feet wide, approximately 25 -feet mauka from the edge
of the cliff, or within the makai-most cane haul road, whichever is closer
to the cliff edge, unless physical constraints preclude such location.
Continental shall survey, and Continental and the County shall stake this
lateral shoreline access easement within six (6) months from the issuance
of final subdivision approval for the lots affected by the subdivision. In
determining the final locations of the trails and access points, the parties
agree to be guided by the following principles: the goal is to establish
public access that provides safe and feasible pedestrian access to the
shoreline and along the coast with a minimum of site improvement.
Where vehicular access is specified, the route should follow the existing
roads. Where the public access crosses gulches, there must be a safe,
feasible route to get from one side of the gulch to the other. Where the
public access runs along the top of the sea cliff, the route should be close
to the cliff, but not so close that it is hazardous. If portions of the sea cliff
erode away, destroying the trail or making it hazardous, the trail must be
relocated to a safe location in the immediate vicinity. Where the trail goes
along the top of the sea cliff, there shall be spur trails to permit pedestrians
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to go down the sides of the cliff at locations where it is safe to do so.
These will be at locations traditionally used by surfers and fishermen. In
general, the trails will follow field roads or existing paths where possible.
Where the trails do not exist on the ground in the area of the desired lateral
public access, Continental has no obligation to make trails, except that
Continental shall initially grade the mauka-makai pedestrian easements
sufficient for foot traffic.
D. Subdivision Improvements for Roadways Drainage and Water
The subdivision improvements for roadways, drainage and water shall
meet the minimal standards for public health, safety and welfare (not
County -standards). The County reserves the right to require Continental
to provide and construct on-site subdivision improvements necessary to
protect the minimum requirements of public health, safety and welfare,
provided however, that these improvements shall not contradict specific
provisions of this Agreement. Continental shall utilize and improve the
existing plantation roadways and drainage improvements to service all lots
within the Continental Makai Lands as follows:
a. Subdivision roadways shall have a minimum right-of-way of fifty
(50) feet, and the abandoned railroad right-of-way and Pepeekeo
Mill Road shall have a minimum right-of-way of sixty (60) feet.
Continental shall asphalt and pave (1 ''/2" a/c, 9 feet wide) the two
(2) stubout roads located near Lots 35 and 39 on Exhibit A, and the
subdivision road from the existing a/c road out to Lot 20 (1'/z" a/c,
18 -feet wide, within a 50 -foot right-of-way, with a suitable sub-
base. Continental shall also improve with cinder -packed treatment
the portion of Higa Road from its intersection with the Railroad
Right -of -Way near Lot 70, up to the area near Lot 63. With the
exception of the existing rights of other owners to access the
Hawaii Belt Road, the mauka intersection of Higa Road with the
Hawaii Belt Road shall be gated if requested by the County or the
State Department of Transportation in the future, and vehicular
access through the intersection after installation of the gate shall be
limited to emergency access purposes for the lot owners.
Continental shall record covenants notifying all lot owners within
the Makai Lands of this contingent requirement for the gate.
The remaining subdivision improvements for access, roadway,
traffic controls, streetlights, drainage and water shall be as follows:
70 of the 93 Makai lots will be located along private asphalt roads
(Lots 1 through and including 51, 53, 54, 56 through and including
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63, 70, 88, 89, 91 and 92) or County asphalt roads (Lots 84
through and including 87). The remaining 23 lots (Lots 52, 55, 63
through and including 69, 71 through and including 83, and 90)
are, or will be located along the existing heavy rock based, cane -
haul road which are, or shall be covered with at least 3 inches of
packed cinder. All cane -haul roads have been well established for
years. No access intersection, traffic controls (other than stop
signs, pavement striping and similar minor traffic control devices)
and streetlights shall be required for subdivision. All existing
drainage and strearn culverts were designed and built by sugar cane
engineers many years ago, are constructed with reinforced concrete
(according to Continental). The County shall process these
subdivision(s) as pre-existing lots with non-dedicable
improvements which will not be formally inspected by the County.
The subdivision improvements for the Makai Lands described
herein satisfy the applicable requirements for subdivision as
proposed in Exhibit "A".
C. Private Water System: To service Lots 1 through and including
51, and Lot 91, Continental shall install a private potable water
distribution system designed and stamped by a licensed engineer,
and built as designed, either through a master meter or separate
water meters. Continental shall pay all applicable Department of
Water Supply charges for the initial installation of the private
water system. If water usage exceeds the capacity of the master
meter, and the Department of Water Supply requires a larger meter,
the managing entity shall pay all applicable charges for the
upgrade. The managing entity shall inform the Department of
Water Supply in writing of any connections in addition to Lots 1-
51 and Lot 91, and shall pay all applicable Department of Water
Supply charges. Continental shall form a homeowners' association
or other entity to manage and maintain the water distribution
system prior to the occupancy of any dwellings on these lots. The
remaining lots within the Makai Lands may be served by water
catchment systems which shall comply with the County's
requirements for water catchment systems. Continental shall
record covenants giving notice to all lot purchasers of the private
water system and maintenance by the homeowner's association or
other entity.
d. Continental shall establish drainage easements, CCRs and one or
more mandatory associations of lot owners to own, manage and
maintain the privately -owned project roadways, drainage and water
2019077.1.054151-00002 4/12/2002 13:11
improvements. The association(s) shall have the power to file and
enforce liens against any lot owners who fail or refuse to pay any
association dues or maintenance assessment, including without
limitation, fees for maintenance of common road and utility
systems. Continental shall disclose the existence of the power
plant and ash piles within the Makai Lands to all prospective lot
purchasers.
2. Individual Wastewater Systems: Continental shall require individual
purchasers to implement individual wastewater systems for each lot
pursuant to the septic tank requirements of the State Department of Health,
provided, however, that Continental shall not be required to utilize a
sewage treatment plant nor connect to the County sewer system, provided,
however that in the event an extension of the public sewer system is
constructed within the Makai Lands, pursuant to Hawaii County Code
Chapter 21 relating to Sewers, the individual lots that are accessible to a
sewer shall be subject to the sewer connection requirements of Section 21-
5 of the Hawaii County Code.
Road Maintenance Fund: Upon the sale of each of Lots 71 through and
including 81, and Lots 56 through and including 69, Continental shall
deposit $5,000 into escrow as seed money for the road maintenance fund
applicable to those lots.
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III. MAUKA LANDS: Continental shall process one or more subdivisions in the lot
configurations as generally shown on the R.M. Towill Corporation March 16, 2002 proposed
subdivision maps (Lots 1 through 50, inclusive) and March 20, 2002 (Lots 52 through 76,
inclusive, and Mauna Kea Agribusiness 9 lots / 2 lots) identified as Exhibits B-1 and B-2,
attached hereto and incorporated herein by reference. Reference to lot numbers within the
Mauka Lands in this Agreement are described on Exhibits B-1 and B-2 respectively.
A. County of Hawaii recognizes a total of 86 lots determined as follows:
56 pre-existing Grants, LCA, etc. The minimum lot sizes for these 56 lots
shall be as follows:
a. The eight (8) non -conforming lots below 9.99 acres in size shall
have a minimum lot size of 5.0 acres.
b. The fifteen (15) non -conforming lots below 19.99 acres in size
shall have a minimum lot size of 10.0 acres.
C. The thirty-three (33) lots above 20.0 acres in size, shall have a
minimum lot size of 20.0 acres.
2. 30 out of the 71 camp lots. The 30 camp lots shall each have a minimum
lot size of 20 acres, provided however, that these camp lots may be
subdivided into lots less than 20 acres in size, but not less than 10 acres, if
14-0 Continental can demonstrate to the County's satisfaction that smaller lot
sizes will create a more functional lot(s) without significantly
compromising the intent of establishing the minimum lot size in the
zoning district. This recognition of camp lots shall be without prejudice to
the County's right to deny any other proposed camp lot subdivisions in
other cases. Continental hereby waive its rights to any additional camp
lots that may exist within the Mauka Lands.
3. The portion of the Continental lands (TMK 3-2-8-07:portion of 01; TMK
3-2-8-03:01; and TMK 3-2-8-04:01) under the control of Mauna Kea
Agribusiness shall be allocated 9 lots and 2 lots, respectively, and all these
lots shall have a minimum lot size of 20 acres. Mauna Kea Agribusiness
shall be solely responsible for all costs, and negotiating and developing the
subdivision infrastructure and lot configurations for these areas with the
County. Any subdivision application by Mauna Kea Agribusiness for
these lands will not be part of this Agreement.
13
2019077.1.054151-00002 4/12/2002 13:11
4. Road Maintenance Fund: Upon the sale of each of Lots 52 through and
including 76, Continental shall deposit $5,000 into escrow as seed money
for the road maintenance fund applicable to those lots.
B. Subdivision Improvements for Roadways Drainage and Water
The subdivision improvements for access, roadways, traffic controls,
streetlights, drainage and water shall meet the minimal standards for
public health, safety and welfare (not County -standards). The County
reserves the right to require Continental to provide and construct on-site
subdivision improvements necessary to protect the minimum requirements
of public health, safety and welfare, provided however, that these
improvements shall not contradict specific provisions of this Agreement.
Continental shall utilize and improve the existing plantation roadway and
drainage improvements to service all lots within the Continental Mauka
Lands as follows:
a. Subdivision roadways shall have a minimum right-ot-way of fifty
(50) feet. The subdivision roadway and drainage improvements
shall be as follows: All twenty-five (25) non -conforming lots and
twenty (20) of the conforming lots shall be located along paved
roads, owned by either the County or private parties with no
further improvements required. The balance of thirty (30)
,fir conforming lots shall be located along existing cane -haul roads,
which are, or shall be improved with rock base and 3 -inch cinder
topping. Continental shall asphalt and pave (9 -feet wide, 1%" a/c)
one or more portions of the subdivision roads, in the Onomea
portion of the Mauka Lands up to a maximum total of 3,000 linear
feet at location(s) selected by the County, with the exception of
the Mauna Kea Agribusiness lands noted in Paragraph III.a.3,
above. The paved roadway areas shall include suitable water bars
and drainage to limit erosion of the subdivision roadways. No
access intersection, traffic controls (other than stop signs,
pavement striping and similar minor traffic control devices) and
streetlights shall be required for subdivision. All existing drainage
improvements and concrete culverts have been established for
years. The County shall process these subdivision(s) as pre-
existing lots with non-dedicable improvements which will not be
formally inspected by the County. The subdivision improvements
described herein for the Mauka Lands satisfy the applicable
requirements for subdivision as proposed in Exhibits 'B-1" and
"B-2"
14
2019077.1.054151-00002 4/12/2002 13: 1 1
b. The County of Hawaii shall process the Mauka Lands (86 lots)
subdivision as a pre-existing lot subdivision which is exempt from
meeting the water system requirements of the Subdivision Code
(HCC Chapter 23) and Zoning Code (HCC Chapter 25). If any of
the lots will be serviced by water catchment systems, the systems
shall comply with the County's requirements for water catchment
systems.
c. Continental shall establish drainage easements, CCRs and one or
more mandator/ associations of lot owners to own, manage and
maintain the privately -owned project roadways, drainage and water
improvements. The association(s) shall have the power to file and
enforce liens against any lot owners who fail or refuse to pay any
association dues or maintenance assessment, including without
limitation, fees for maintenance of common road and utility
systems.
2. Individual Wastewater Systems: Continental shall require individual
purchasers to implement cesspools and/or individual wastewater systems
for each lot pursuant to the requirements of the State Department of
Health, provided, however, that Continental shall not be required to utilize
a sewage treatment plant nor connect to the County sewer system,
provided, however, that in the event that an extension of the public sewer
system is constructed within the Mauka Lands pursuant to Hawaii County
Code Chapter 21 relating to Sewers, the individual lots that are accessible
to a sewer shall be subject to the sewer connection requirements of Section
21-5 of the Hawaii County Code.
IV. GENERAL TERMS
A. Issuance of Final Subdivision Approval. The Planning Director shall
expeditiously issue final subdivision approval for the Subdivision application(s) upon
Continental's submission of a final plat map, and satisfying the conditions of tentative
subdivision approval in the respective Subdivision application(s), whichever is later. All lot
purchasers shall be informed by deed covenants that the subdivision infrastructure has not been
made to County standards, has not been inspected or otherwise approved by the County, and that
the County has no obligation to repair, maintain, inspect, or replace the roads, bridges, culverts,
water systems, drainage, or other infrastructure in the subdivision.
B. No Admission. The parties hereto acknowledge that neither this Agreement, nor
the fact of settlement, nor the settlement negotiations or proceedings are, may be construed as,
may be deemed evidence of, or may be used at any time as an admission, presumption, or
inference of fault, wrongdoing or liability of any party in any case, action, or proceeding in any
15
2019077.1.054151-00002 4/12/2002 13: 1 1
court, administrative agency, or other tribunal, or in any manner, for any purpose whatsoever,
except, however, that this Agreement may be used in any action for the enforcement of this
Agreement.
C. Advice of Counsel. No party has made any representations of fact or opinion to
another party to induce this compromise, and this compromise is made by the parties with full
knowledge of the facts and possibilities of the case, and with the advice of, or the opportunity to
obtain experienced counsel.
D. Authority to Execute: The parties represent and warrant that their signatories to
this Agreement have the authority to execute and bind the party or parties on whose behalf this
Agreement is signed.
E. Entire Agreement. This Agreement constitutes the entire agreement among the
parties and may be changed, modified, or amended only by all parties executing a written
instrument.
F. No Waiver. Waiver of any breach of this Agreement by any party shall not be
deemed a waiver by such party of any other breach of this Agreement.
G. Governing Law. This Agreement shall be governed by and interpreted under the
laws of the State of Hawaii. In the event of any dispute or litigation relating to the matters within
the scope of this Agreement, the parties consent to the jurisdiction of the courts of the Circuit
Court of the Third Circuit, State of Hawaii, and further agree that the courts of the Circuit Court
of the Third Circuit, State of Hawaii shall constitute the place of sole, exclusive, and mandatory
jurisdiction and venue over such disputes or litigation.
H. No Party Deemed Drafter. The terms of this Agreement have been negotiated at
arms' length among knowledgeable parties represented by experienced counsel. As a result, the
rule of "interpretation against the draftsman" shall not apply in any dispute over interpretation of
the terms of this Agreement.
1. Prior Agreements Cancelled. This Agreement contains the entire agreement
among the parties and supersedes and cancels each and every other prior conflicting agreement,
promise and/or negotiation among them. The terms of this Agreement are contractual and are
not a mere recital.
J. Further Documents and Acts. The parties agree to execute any other or further
documents, and to grant any approvals and perform any and all other acts reasonably required to
carry out the purpose of this Agreement.
K. Attorneys' Fees and Costs. Each party hereto shall bear its own attorney's fees
and costs.
16
2019077.1.054151-00002 4/12/2002 13:11
9
L. Enforcement. If any party to this Agreement goes to court to enforce any
provision of this Agreement, the prevailing party shall receive its reasonable attorney's fees and
costs.
The Parties acknowledge that the terms of this Settlement Agreement have been read, that
its provisions are fully understood, and that the same have been duly agreed upon and signed by
the Parties as their free act and deed.
IN WITNESS WIIEREOF, the Parties have duly executed this Settlement Agreement on
this day of 1 `! 2001
RECOMMEND APPROVAL:
PLANNING DEPARTMENT
By: �
CHRISTTH1 J. N
Its Planning Director
APPROVED AS TO FORM AND
LEGALITY
Deputy Corporation Counsel
2019077.1.054151-00002
17
CONTINENTAL PACIFIC, LLC
�1
By
RE A. HENDERSON
Its Manager
COUNTY OF HAWAII,
a municipal Hawaii corporation
B . rawLt /�
HARgY KIM
Its Mayor
4/12/2002 13:1 1
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