2009-01-15 THAWAIIAN RAINFOREST - Laserfiche WebLink

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WATANABE: Okay. Mr. Woodward? WOODWARD: At our last meeting when this was addressed, one of the attorneys for your client essentially stated that there was access given some time in the 1930s and then it should be a slam dunk, that there were a few little technical things going on and the title company should clear it up. Where are we with that? FUKE: Very good question, Commissioner Woodward. I’d like to defer that to Mr. Paul Sulla who’s right in the back. WATANABE: Well, Mr. Sulla you did sign up as someone that would testify. So maybe you could provide that now. So let me swear you in. Would you raise your right hand, please. Do you swear or affirm to tell the truth now before the Planning Commission? SULLA: I do. WATANABE: And would you speak into the mike please; and name and address first, and then if you could respond to Mr. Woodward’s question. SULLA: My name is Paul Sulla; and I have my practice on 2061 Kalanianaole Road here in Hilo. I’m an attorney for the applicant, the Hawaiian Rainforest Water Company. WATANABE: Would you like to respond to Mr. Woodward’s question regarding where are we with the determination of access? SULLA: Okay, certainly. First off, just the nature of the concern is that I understand in access and easements situations there are really three kinds of roads, really. There’s a private-private road, there’s a private-public road, and then there are public roads. And this category of this road is really in the private-public road, because everybody in the public has had access through that and can drive through there. There’s no restrictions on it; and that has been going on since the development of the land. So we’re dealing with a technical issue here having to do with the private landowner that still holds title to the road and, you know, is working on maintenance issues and all that. Those have not been the problem. And so what has been the problem was that the easement that was granted to this parcel, to both parcels, failed to be carried forward in deeds, subsequently in the chain of title through poor draftsmanship and, also, surprisingly by error in the Land Court allowing a parcel to be reconveyed without carrying forward the easement. Now this is what the Land Court is for, is to protect that sort of stuff. So the Land Court will ultimately have to correct the absence of that grant being carried forward by the precedessors, that includes my client. So we have the title company, we have an attorney in Ashford and Wriston in Honolulu, name is Wayne Nasser, who has been preparing it, for getting it ready to file to the Land Court, a petition to correct their mistake and to have this straightened out. This was not an issue that we felt to be a major one because our insurance carrier, Fidelity, affirmatively insured over it based upon the earlier deed and knowing that we have that right. It’s just a technical defect in the title. So that’s essentially where we stand with it. And we also want to note that that earlier 1938 deed is recognized by Shipman as valid and they recognized that it was granted earlier, and that under that 1938 deed there were some restrictions that they haven’t sought to enforce upon us, and we’ve agreed to them. But in the situation we are now in, EXHIBIT A 3