2020-09-21 Leeward Exh A (SPP 20-000218)

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JACKSON: I believe the proposed improvements will be on the limited common elements. VAN PERNIS: And who owns the limited common elements. JACKSON: The applicants. VAN PERNIS: And then terms of the easement, have you reviewed the easement and seen whether it allows commercial traffic? JACKSON: The easement over Waiono Ranch Road was provided in the deed, it was described in the deed, and it did not describe any limitations. VAN PERNIS: Isn't it correct that any of the owners up in Waiono Meadows could litigate to stop the use of the commercial activity in the easement? JACKSON: That's a legal question. VAN PERNIS: All right, the other legal question would be, what is the liability of the county for allowing a use that is not allowed by the Condominium Property Regime? MUKAL Again this is John Mukai for the Planning Department—it's not the Planning Department's, I mean, it's a private matter between the condo owners; they can do whatever they want to each other. But don't expect Planning to go in and be the arbiter of the CPRS or any of the CC&Rs on the property. VAN PERNIS: But it's going to allow a certain use regardless of not being an arbitrator of the CPR meaning. MUKAL That's why they applied for the Special Permit. CARR SMITH: Very good, thank you. Mr. Vitousek. VITOUSEK: Yeah, I just, I just kind of want to echo Commissioner Van Pernis's concern. In the, you know, I do understand what the counsel is saying about how the Planning Commission or county is not the arbitrator of a CC&R concern. But my understanding is that the CC&Rs are the lowest level of enforcement for that property, meaning that they have to be adhered to but technically it's up to the members of the association to enforce that privately through action, through legal action. I agree with Mr. Van Pernis that for us to be approving an action that would basically be setting up the community to have to police itself seems like it could potentially put the county in liability, and I would like to know a little bit more about that. Specifically, my question, you know, is coming from the CC&Rs, Section 5.3(7), Use of the Product [sic -Project], "All occupants shall exercise care in the use of musical instruments, radios, televisions and amplifiers, and shall otherwise avoid making noises that may disturb other occupants"; so, to me, the CC&Rs are indicating that they are not allowing loud noises, loud 10 EXHIBIT A