07-15-2022 Applicant Response to Hualalai Comm. Assoc. Testimony (REMAND SPP-16-188)

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Mr. Michael Vitousek July 15, 2022 Page 2 excavation operations, which Bolton has voluntarily withdrawn. Any review of the Director's prior determination that Bolton's drainage floodway improvement project did not require a Special Permit needed to have been initiated by filing an appeal of that decision within thirty days of September 21, 2016. See HCC § 25-2-20. Further, the Director's prior determination was unequivocally correct, as the definition of"commercial excavation"which would require a Special Permit expressly excludes the excavation of natural materials that is related to or occasioned by an impending development. See HCC § 25-1-5 (defining "commercial excavation" as "any excavation or removal of natural materials for profit which is not related to or not occasioned by an impending development of the site of such excavation"). Petitioner states that the "exact nature of the activity that is before the commission in SPP 16-000188"is "[a] flood control project that is augmented by other activities." Bolton factually disagrees with this statement as its Application for Special Permit SPP NO. 16-000188 was for a baseyard/staging area and commercial excavation operations. On its face, the Application was for a baseyard/staging area, storage of materials, stockpiling and crushing of natural materials for commercial use, and a security dwelling. Bolton's Application further explained that Bolton was pursuing the Special Permit due to the Zoning Code enforcement action, which Bolton understood to require a Special Permit for"commercial excavation"in distinction to its permitted work for the drainage floodway improvement project. Finally, Bolton notes that two associations which are members of Petitioner, the Heights on Hualalai and Pualani Estates at Kona have Declarations of Covenants, Conditions and Restrictions ("CC&Rs") which expressly acknowledge and waive any claims based on dust or noise complaints due to activities on surrounding properties. These CC&Rs and a sample Warranty Deed and Reservation of Rights for Pualani Estates at Kona Phase 3 have been enclosed for the Leeward Planning Commission's reference. The CC&Rs for Pualani Estates at Kona, which encumbered and bound all property within that subdivision, provided for each lot owner to understand and acknowledge that: the Community is located near or adjacent to properties which are or may be used for agricultural, farming, animal husbandry or related uses (the "Agricultural and Farming Properties"), commercial and other purposes; further development, construction and sale of residential, commercial, industrial,recreational and public projects by the Declarant and others is ongoing and may continue within the Community and within the vicinity of the Community for an indefinite period; lands adjacent to the Community may used for ... rock processing and crushing, quarrying ... [and] easements shall be retained over the Property for some or all of the foregoing described uses, including, specifically, easements permitting the commencement, continuation and resulting effects of the foregoing uses, and all activities incidental to such uses (collectively ... referred to herein as the ("Surrounding Uses")). See Pualani Estates at Kona Declaration of Covenants, Conditions, Restrictions and Easements ("Pualani Estates CC&Rs") § 17.1. 2