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2004-01-30 BayPacific
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2004-01-30 BayPacific
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So I don’t necessarily think that you can say that, from the outset, the condition was <br />violated. It was all part of the original contemplated agreement between the parties. The <br />quarry would operate for a period of time and then end and be restored to the open space <br />purposes. <br />Finally, with respect to the Supreme Court case that Mr. Kornberg had mentioned, that <br />Supreme Court case, first of all, doesn’t change the fact that the proposed use conflicts <br />with this long-term vision, which is what you’re here to make a recommendation on. <br />Secondly, the case that he mentions is a case named Fong v. Hashimoto. And that case <br />deals with one theory of enforcement that is available to the Waikoloa Development <br />Company and its affiliates; and it deals with this one theory in very narrow <br />circumstances. The Fong case was an action by a mauka landowner against his makai <br />neighbor to enforce certain height restrictions on building. Fong, who was trying to <br />enforce those restrictions, was not the original beneficiary of the covenants on which he <br />was trying to rely. And, so, it was incumbent on him in that Fong case to establish his <br />rights to enforce it. We don’t have that situation here because the deed restrictions in <br />question run to the benefit of my clients, they’re the named beneficiaries. So I don’t <br />think that that case should be dispositivefor you. In addition, there are other legal <br />theories which would permit us to enforce the deed restrictions. <br />The questions that I have here today for the Waikoloa Village Association is what <br />prompts this 180 degree reversal from the vision of these lands if they were to be <br />originally used for open space purposes. You have before you a copy of the deed. And I <br />believe the Village Association signed that deed so they can’t claim ignorance of what <br />they were getting. <br />That really is all I have to say, unless there are questions. <br />FUJIKAWA:Any questions, Commissioners, to Mr. Yuen? Go ahead, <br />Springer? <br />SPRINGER:Thank you. With regard to your discussion of open space and the <br />citations from the General Plan regarding that open space perhaps being complementary <br />to urban development, what use does your client envision for the former quarry site in its, <br />now that it has fallen into disuse? <br />L. YUEN:My clients don’t own this piece of property any longer. But what <br />we had always envisioned was that this entire buffer area be exactly that and serve as <br />recreation space and, you know, open grasslands to provide an open area, and to preserve <br />use for the Waikoloa Village. <br />SPRINGER:Mr. Chair? <br />FUJIKAWA:Go ahead. <br />12 <br /> <br />
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