2004-01-30 BayPacific - Laserfiche WebLink

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subject property and the purported claim by the Waikoloa Land. We do have the Applicant’s attorney, Mr. Steven Kornberg, present; and, so, if you have specific questions relating to that matter, he’d be more than willing to respond to them. SPRINGER:Is now the time? FUJIKAWA:Yeah, go ahead. Could you kindly raise your right hand? Do you swear to tell the truth on this matter now before the Hawaii Planning Commission? KORNBERG:I do. FUJIKAWA:Can you state your full name and your address, please? KORNBERG:Yes, Steven A. Kornberg, 75-167 Kalani Street, Kailua-Kona, Hawaii. FUJIKAWA:Go ahead. Commissioner Springer, you have a question? SPRINGER:Thank you. Mr. Kornberg, I’m looking at a letter dated January 23, 2004 from Goodsill, Anderson, Quinn and Stifel. Are you familiar with that document? KORNBERG:Yes, I am. SPRINGER:What my concern is, is that Waikoloa Land has advised both the Waikoloa Village Association and Bay Pacific’s consultant, Mr. Fuke, that the Waikoloa Village Association must comply with the applicable deed restrictions. And do you have any comment on that? KORNBERG:Yes, I do, Commissioner Springer. Thank you very much and thank you, Members of the Commission. The history of that use restriction is such that we don’t believe that it’s a valid use restriction affecting this land. The very day, actually, that that deed was recorded, that has that language in it, they also recorded a lease for 20 years to use that very land for a quarry site, which is, in fact, in direct violation of that use restriction. And I think there’ve been other examples of the use by Waikoloa Land when it suits them to Light Industrial uses. You’re not familiar with the law on covenants and use restrictions but basically you can’t have them selective. The person who creates the restriction can’t say this applies to everybody else but me; and when there has been, over time, an ignoring of the use restriction and uses directly in violation of the use restriction, the courts say that you lose the right to enforce that use restriction. From a technical point of view, there’s a Hawaii Supreme Court case that requires, in creating such a restriction, that the benefited parcel be identified; and we don’t believe that the language even complies technically with what’s necessary to create a restriction. But we really believe that the history is such that there is no valid restriction. 5