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HomeMy WebLinkAboutPD BACKGROUND REPORT (PL-REZ-2022-023) BKe`AlohaLaniLLCREZ-7/8/22 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND REPORT KE`ALOHA LANI,LLC CHANGE OF ZONE APPLICATION (PL-REZ-2022-000023) KE`ALOHA LANI, LLC has submitted an application for amendments to Condition E (Timing of Fire Flow Improvements) and Condition I (Timing of Roadway Improvements) of Ordinance No. 17-65 which reclassified 6.505 acres of land from an Agricultural-20 acres (A-20a) to a General Industrial-20,000 square feet (MG-20) zoning district. The applicant is requesting these amendments to change the development trigger for these required improvements from prior to issuance of Certificate of Occupancy to prior to Final Subdivision Approval. The subject property is located east of Highway 11 (Volcano Highway), west of Railroad Avenue, and north of Highway 130 (Kea`au-Pahoa Highway), Kea`au, Puna, Hawaii, TMK: (3) 1-6-141:002. PROPOSED ACTION 1. Applicant's Request: The applicant, Ke `Aloha Lani LLC, has submitted an application to amend conditions of Change of Zone Ordinance No. 17-065,which was originally approved on September 29, 2017 to change the zoning from an Agricultural (A-20a)to General Industrial (MG-20) zoning district for 6.505 acres of land. Concurrently, Ordinance No. 17-064 was approved to change the State Land Use Boundary designation from Agricultural to Urban. As the subject ordinance has infrastructure obligation conditions that the applicant has not met or reasonably fulfilled, the applicant is requesting to amend certain conditions of the ordinance, specifically Condition E and I of Change of Zone Ordinance No. 17-065. These amendments are to the following conditions: ■ Condition E: (Timing of Fire Flow Improvements) ■ Condition L (Timing of Roadway Improvements) The following are the specific amendment requests (material to be deleted is bracketed/struck through, material to be added is underscored: Amend Condition E: `Prior to receipt ofFinal Subdivision Approval, the -1- applicant shall provide afire hydrant within 150 feet of the property, and either upgrade the ecisting 4-inch waterline for a distance of approximately 500 feet or provide a private water system capable ofproviding a minimum flow of 2,000-gallons per minute for a 2- hour duration and a pipeline velocity of less than 10 feet per second. " Amend Condition L• "The applicant shall provide a 10 foot wide road and utility easement along the subject property frontage of Slaughter House Road. The Easement shall provide reciprocal rights for access to all lots along Slaughter House Road. Prior to receipt of a�'�s of J final subdivision approval, the applicant shall improve the road and utility easements over TAIK's 1-6-141:001, 024, 027, and 028 to provide road improvements meeting the County Department of Public Works Standard Details R-33 and R-34 to include travel lanes, shoulders and drainage swales within a 60 foot wide right-of-way. The improvements within the 60 foot wide right-of-way shall be privately owned and maintained unless a road lot is created and dedicated to the County of Hawaii." 2. Reasons for the Request: According to the applicant, they request that the water and road infrastructure improvements should be implemented in conjunction with a subdivision and not a certificate of occupancy for a structure or use when not accompanied by a subdivision. The reason is that the requirement for the industrial or commercial level roadway improvements is specifically triggered or called for in the Subdivision Code and not necessarily triggered when one seeks a building permit for a permitted use. Furthermore,the applicant believes that the water requirement is driven by the industrial zoning and any subdivision based on that zoning designation. Lastly,the applicant states that the requirement or standard, like the road improvement requirement, would not be applicable if a use were permitted with a Special Permit. Therefore, the applicant is requesting similar consideration,i.e. that the road and water infrastructure improvements be deferred to the subdivision and not building permit process. 3. Landowner: Hawaii Brewery Development Co Inc. 4. Supportive Information: The applicant has submitted the attached in support of the request. (Planning Department Exhibit 1 —Change of Zone Amendment Request -2- dated March 21,2022) BACKGROUND INFORMATION 5. History of the Establishment of Industrial Uses in the Area: Since 1993, one water bottling facility has been established in the immediate area and three other adjacent properties to the south have been permitted to establish brewery, distillery,water and soft drink bottling facilities with accessory visitor and food service facilities. These facilities were permitted on a 14.5-acre property by Special Permit(SPP)No. 842,which was issued to Hawaii Brewery Development Co. Ltd on May 27, 1993. The 14.5-acre property has since been subdivided into 4 lots that are all covered by SPP 842 and therefore allow a brewery, distillery,water and soft drink bottling facility on each lot. Currently only one water bottling facility has been established on a 7-acre portion of the 14.5-acre site on TMK 1-6-141:001, which is located to the southeast of the subject property. The previous landowner, Hawai`i Island Distilling, LLC sought and was granted a change of zone in 2017 for the subject property and in 2020, Hawaii Island Distilling, LLC was granted an administrative time extension. (Planning Department Exhibit 2 —May 12,2020 PD Letter) In 2021, Hawaii Island Distilling, LLC sought and was granted a Condominimum Property Regime to create two units on the subject property. (Planning Department Exhibit 3—November 24,2021 Letter from Michael Sakai) In 2022,the current landowner Ke`Aloha Lani LLC secured interest in the property. STATE AND COUNTY PLANS 6. State Land Use Designation: Urban. 7. General Plan LUPAG Map Designation: In February 2017, the Planning Director determined that the General Plan designation for this property is Industrial. Industrial areas include uses such as manufacturing and processing, wholesaling, large storage and transportation facilities,light industrial and industrial-commercial uses. 8. County Zoning: General Industrial (MG-20). 9. Puna Community Development Plan (CDP): The Puna CDP was adopted by the Hawaii County Council, Ordinance 08 116, on September 10, 2008. The project site is situated just outside the boundaries of the proposed Kea`au Regional Town Center,which -3- is located just to the south and west of the subject property. 10. SMA: The Special Management Area(SMA) is a part of the Coastal Zone Management Program and regulated by the County. The project site is located over three (3) miles from the shoreline and is not situated within the SMA. DESCRIPTION OF PROPERTY AND SURROUNDING AREAS 11. Subject Property: The irregularly shaped 6.505-acre subject property is improved with a permitted 306 kW ground-mounted solar photovoltaic array,which will remain. The PV array was given a final inspection on April 2, 2015, under Building Permit No. BH2O14-02033. Additionally, there is an open, active Building Permit No. 991076 for a prefabricated storage building that has not yet been built. The remainder of the property is vegetated and vacant of structures. 12. Surrounding Zoning and Land Uses: Surrounding properties are zoned A-20a, A-5a and FA-2a. Parcel 1,which the subject parcel was once a portion of, is the site of a water bottling facility and zoned A-5a. The three properties to the south are vacant and zoned FA-2a. To the north, is the site of two agricultural warehouse structures and zoned A-20a. There are various Special Permits approved in the area, including several processing facilities for papaya, pickled vegetables, fruit and macadamia nut. One is across from the Kea`au HELCO substation and the other is located on the southeast corner of the East Milo Street Extension/Railroad Avenue junction. 13. Agricultural Lands of Importance to the State of Hawaii (ALISH): Unclassified. 14. Flood zone: According to the Department of Public Works (DPW) Engineering Division,the subject parcel is currently designed as Zone X on the Flood Insurance Rate Map (FIRM). Zone X is an area determined to be outside the 500-year flood plain. 15. U.S.D.A. Soil Survey: The property is classified as Panaewa very cobbly hydrous loam, 2 to 10 percent slopes. 16. Land Study Bureau Soil Productivity Rating: The western portion of the property is classified as "D" or"Poor" soils. The eastern half of the property is classified as "C" or "Fair" soils. 17. Archaeological/Historical Resources: According to the applicant, an archaeological inventory survey of the site was not conducted as the site has already been disturbed. -4- The State of Hawai`i Department of Land and Natural Resources-Historic Preservation Division provided a no-effect letter dated July 12, 2022. 18. Flora/Faunal Resources: No professional floral or faunal surveys were conducted of the project site. The site has been extensively cleared formerly for sugar cane and later as a cattle-holding pen. The site is not known to be a habitat for any rare or endangered animal life. 19. Cultural Resources: There is no evidence of any traditional and customary Native Hawaiian rights being practiced on the site,nor existence of any known valued cultural, historical or native resources in the area. 20. Public Access: There is no record of a designated public access to the shoreline or mountain areas that traverses the property. 21. Traffic: No traffic study was prepared for the subject property. The applicant stated that the projected use will not cause any significant increase in the projected traffic flow utilizing the existing improved roadways. PUBLIC SERVICES AND FACILITIES 22. Access: Access to the project site is from the Kea`au-Pahoa Bypass onto a frontage road, known as Volcano Road. Volcano Road connects to Shipman Road(formerly Slaughter House Road), a private road, approximately one mile from the Bypass. Access to the property is from an extension of Shipman Road to the property which is via two side by side 25-foot wide road and utility easements located via the flagpole portions of TMK's: 1-6-141:001 and 024 and continue over TMK's: 1-6-141:027 and 028. Both Volcano Road and the Shipman Road have a pavement width of 20-feet within a 50-foot wide right-of-way. The pavement width within these easements is 20 feet wide. The General Plan and Subdivision Code state that industrial streets shall have a minimum right-of-way width of 60 feet with a minimum pavement width of 24 feet. At the time of the original rezoning request,the Department of Public Works did not recommend improvements because access to the property is over private lots with utility and roadway easements. However, several of the industrial rezonings previously approved along Milo Street required the applicant to comply with the standards outlined in Standard Details for Public Works Construction R-33 and R-34. Standard Detail R-33 identifies the street -5- cross section for business & industrial standards,which is a 60-foot wide right of way with 12-foot wide paved travel lanes, 8-foot wide paved shoulders and 10-foot wide paved drainage swales. 23. Water: There is an existing 5/8-inch meter currently serving the subject parcel,which is limited to an average usage of 400-gallons per day or one (1)unit of water. Potable water from the County can only be used for non-production purposes, such as handwashing, restroom and for employees to drink. DWS has indicated that the onsite well and County water system cannot be interconnected in any way. Should the applicant develop a different industrial use on the property than the proposed microbrewery,they will be required to submit estimated water usage calculations and DWS will determine if additional or larger water meter(s)will be required for the industrial land use. The County water system in the area includes a 16-inch waterline in the Keaau Bypass right- of-way,which branches off to a 6-inch waterline on Shipman Road but only to the area where the road turns left. At that point it drops down to a 4-inch waterline fronting the subject property. DWS system standards require that a minimum flow of 2,000-gallons per minute for a 2-hour duration and a pipeline velocity of less than 10-feet per second be available at the site for fire protection for industrial land uses. The existing 4-inch waterline fronting the property is inadequate for fire protection and the nearest fire hydrant is more than the required 150 feet from the property. 24. Wastewater: There is no municipal wastewater system in the area. According to the applicant, an enhanced septic system meeting with the requirements of the Department of Health will be required. 25. Solid Waste: The applicant indicated that the solid waste will be handled through commercial haulers and deposited in the Hilo landfill. 26. Other Utilities/Services: Electricity, cable and telephone are available to the site. Police,fire protection and emergency medical services are located in Kea`au, less than two miles from the property. AGENCIES' COMMENTS 27. Department of Public Works Engineering Division: Planning Department Exhibit 4 —May 25,2022 Memo -6- 28. Department of Water Supply (DWS): Planning Department Exhibit 5—May 20, 2022 Memo 29. Department of Environmental Management: Planning Department Exhibit 6 —May 6, 2022 Memo 30. Police Department: Planning Department Exhibit 7 —May 5, 2022 Memo 31. Fire Department: Planning Department Exhibit 8 —May 9, 2022 Memo 32. Department of Health: Planning Department Exhibit 9 —May 13, 2022 Memo 33. State Department of Land and Natural Resources —Engineering Division: Planning Department Exhibit 10 -May 5, 2022 Memo 34. State Department of Land and Natural Resources —Historic Preservation Division: Planning Department Exhibit 11 —July 12, 2022 Memo AGENCIES/ORGANIZATIONS -NO COMMENTS/NO CONCERNS 35. Department of Land and Natural Resources —Land Division. APPLICANT'S RESPONSE TO AGENCIES' COMMENTS 36. Planning Department Exhibit 12: May 23, 2022 letter from Sidney Fuke responding to DEM, Police, Fire, and DOH comments. 37. Planning Department Exhibit 13: June 4,2022 letter from Sidney Fuke responding to DPW and DWS comments. PUBLIC COMMENTS As of the date of this writing, the Planning Department has not received any objections from the general public or adjacent landowners on the subject application. -7- SidneyFuke, Planning Consultant 100 Pauahi Street,Suite 212•Hilo,Hawaii 96720 •Planning•Variance-Zoning Telephone: (808)969-1522•Cell:(808)989-0640 Subdivision•Land Use Permits E-mail:sidfuke@hawaiiantel.net Environmental Reports March 21, 2022 Mr. Zendo Kern, Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo,HI 96720 Dear Mr. Kern: Subject: Amendment Request—Ke'Aloha Lani, LLC (Formerly Hawaii Island Distilling,LLC) Ordinance No. 17 65 (REZ 17-000218) Kea'au, Puna, HI,TMK: 1-6-141: 002 On September 29, 2017, Ordinance No. 17 65 became effective which resulted in the zoning of the subject property, consisting of 6.505 acres, from Agriculture (A-20a) to General Industrial (MG-20. The purpose of the rezoning was to enable the development of a 7,500+/- square foot beverage processing facility and a 2,000+/- square foot supportive visitor/retail sales/tasting center with a kitchen. The zoning also enabled the subdivision of the property into several industrial lots. GENERAL BACKGROUND To provide a contextual background and general understanding of the request, the following is a brief historical overview of the land use entitlements associated with the subject and adjoining properties. • Hawaii Brewery Development, Inc. secured a Special Permit (SPP 842) from the Planning Commission on May 27, 1993 to establish a brewery and soft drink bottling facility and a visitor facility on approximately 14.5 acres of land. The 14.5+acres were part of two (2)parcels consisting of a total of 21+ acres and identified then by TMK: 1-6-141: portions of 1 and 2. (Exhibit A) • On November 21, 2003, because only the bottling facility was completed, a time extension to allow completion of the balance of the project was granted. Shortly thereafter, the 14.5+acre area was also rezoned from A-20a to A-5a (Ordinance No. 04 21)to allow the subdivision of the bottling facility (the developed portion of the Special Permit) from the balance of the project. • On March 18,2010, the undeveloped 7.8+acre (TMK: 1-6-141: 024) was rezoned from A-5a to Fa-2a (Ordinance No. 10 20). This was to enable different operators to fund and develop different components of the Special Permit. (Exhibit B) Planning Dept. Exhibit 1 Mr. Zendo Kern, Director March 21, 2022 Page 2 • Subsequent to the rezoning action,the two(2)parcels(21+ acres)were then consolidated and resubdivided into three (3) lots. Final approval was granted on November 21, 2011. o Two (2) of these lots, consisting of 7+acres each, covered the 14.5+ acre area of the Special Permit. The lot with the bottling plant was assigned TMK: 1-6-141: 001. The undeveloped portion of the Special Permit was assigned TMK: 1-6-141: 024. o The remaining lot consisted of 6.5+acres and was assigned TMK: 1-6- 141: 002. • Several time extensions of the Special Permit to complete construction of the project were approved,with the last one occurring on February 1,2018. (Exhibit C) • The former owner, Hawai'i Island Distilling,LLC, (HID) sought a new Special Permit for another brewery, soft drink and water facility on the 6.5+ acre (TMK: 1-6-141: 002). In a letter,dated February 13, 2017,the Planning Department returned the application noting that the request and then applicant were similar to all of the other properties affected by the original Special Permit. The Department also suggested several options, one of which included the rezoning of the property into the General Industrial (MG-20) zone. (Exhibit D) • HID then sought and secured approval(Ordinance No. 17 65)of having that property rezoned from A-5a to MG-20 on September 29, 2017. (Exhibit E) LLC. The subject property was recently conveyed to the applicant,Ke'AIoha Lani, NATURE OF REQUEST As will be discussed below, in spite of the intended use being similar,the roadway and water improvement requirements will vary between a Special Permit and a Zone Change/Subdivision. As HID then and,now the current applicant,has no plans to subdivide the subject property in the near term,the applicant would like to • have the existing 18-foot wide paved road be deemed sufficient(as if the use were allowed via a Special Permit); ■ have any required water system be determined in conjunction the building permit process by the Fire Department; and Mr.Zendo Kern, Director March 21, 2022 Page 3 ■ defer the stipulated the road and water improvement requirements of the Zone Change and Subdivision implemented in conjunction with any land subdivision of the property. Prior to issuance of any occupancy permit affecting the subject property, there were water and road improvement requirements outlined as Conditions of Ordinance No. 1765. Relative to water system, Condition E required"afire hydrant within 150 feet of the property, and either upgrade the existing 4-inch water line to a 120inch waterline for a distance ofapproximately 800 feet or provide a private water systema capable of Providing a minimums flow of 2,000-gallons per minute for a 2-hour duration and a pipeline velocity of less than 10 feet per second. " Please note that this is a standard that the Department of Water Supply applies for Industrial Zones. On road improvements, Condition X required that • a 50-foot wide right-of-way be widened to 60 feet; and • an existing 18-foot wide paved road be widened to 24 feet wide with appropriate shoulders,consistent with the County Department of public Works Standard Details R-33 and R-34 within the 60-foot right-of-way. Please note that according to the staff report relating to the rezoning application, the Department of Public Works did not recommend any improvements "because the access to the property is over private lots with utility and roadway easements. " The report continued that"The General Plan and Subdivision Code state that industrial streets shall have a minimum right-of-way of 60 feet with a minimum pavement width of 24 feet." In sum,the applicant is requesting that the water and road infrastructure improvements be implemented in conjunction with the subdivision and not a certificate of occupancy for a structure or use when not accompanied by a subdivision. Towards that end,it requests that Conditions E and I be amended as follows: Condition E: Prior to receipt of ja Certificate of Occupancy)Final Subdivision Approval the applicant shall provide afire hydrant within 150 feet of the property, and either upgrade the existing 4-inch waterline for a distance of approximately 800 feet or provide a private water system capable of providing a minimum flow of 2,000-gallons per minute for a 2-hour duration and a pipeline velocity of less than 10 feet per second." Condition l: The applicant shall provide a 10 foot wide road and utility easement along the subject property frontage of Slaughter House Road The Easement shall provide reciprocal rights far access to all lots along Mr. Zendo Kern, Director March 21,2022 Page 4 Slaughter.House Road. Prior to receipt of[a Certificate of occupancy] anal subdivision approvel the applicant shall improve the road and utility easements over TMK s 1-6-141: 001, 024, 027, and 028 to provide road improvements meeting the County Department of Public Works Standard Details R-33 and R-34 to include travel lanes, shoulders and drainage swales within a 60 foot wide right-of-way. The improvements within the 60 foot wide right-of--way shall be privately owned and maintained unless a road lot is created and dedicated to the County of Hawaii. " (Bracketed items to be deleted; underscored items to be added.) JUSTIFICATION OF REQUEST I. Requirements Applicable to Subdivision As noted earlier, the Plarm ng Department's staff report associated with the rezoning of the subject property from A-20a to MG-20,noted that "The General Plan and Suhdivision Code state that industrial streets shall have a right-of-way width of 60 feet with a minimum pavement width of 24 feet. " (Emphasis added) This was the basis for the Department recommending compliance with the Standard Detail R-33 and R-34. The requirement for the industrial or commercial level road is specifically triggered or called for in the Subdivision.Code. It is not necessarily triggered when one seeks a building permit for a permitted use. For example, if one were to construct a warehouse (industrial use)on a portion of a larger parcel,there would be no requirement for having a 24-foot wide pave road within a ba-foot right-of-way to access the warehouse. Likewise, if four(4) single-family dwellings were constructed on an acre of property zoned RS-I0, there would he no requirement to have a County approved road to each of the dwelling. However,in both situations, should the property upon which the warehouse is situated is to be subdivided from the balance of the property or the area of the four(4) dwellings are to be subdivided into four(4)lots,the Subdivision Code relative to access and associated infrastructure, even on a de facto basis,would have to be complied with. Likewise,the water requirement is driven by the Industrial Zoning and any subdivision based on that zoning designation. This requirement or standard, like the road improvement requirement,would not be applicable if a use were permitted with a Special Permit. Accordingly,you will note that neither the original Special Permit nor any of its extension included the language or requirements of Conditions E and 1. Mr.Zendo Kern, Director March 21, 2022 Page 5 The applicant is requesting similar consideration, i.e., that the road and water infrastructure improvements be deferred to the Subdivision and not Building permit processes. 2. Adeguacy of Road and Water Systems In this situation,the subject site has its access over an easement which conceivably could be considered a"street". However,the applicant maintains that the easement with its 18-foot wide paved road—while providing access- should be considered more as an internal roadway within a larger project rather than a street. It would be akin to a main access road within a retail complex, such as a Costco or a Shopping Center. To lend credence or support to this position,please look at Special Permit No. 842 for the adjoining property consisting of 14.5 acres, which was issued on June 7, 1993 for a brewery,water and soft drink bottling facility. (Exhibit A) Condition 6 relating to road improvements stated, "Access to the subject property shall meet with the approval of the Department of Public Works. The applicant shall provide pavement improvements within the entire length of the roadway stab (TMK• 1-6- 141: 24) in a manner meeting with the approval of the Department of Public Works,prior to the issuance of a certificate of occupancy for the proposed development. "It did not have the language of Condition I. In conjunction with the issuance of the certificate of occupancy for the water bottling facility,the access was improved with an 18-foot wide paved road. The Windward Planning Commission subsequently considered a number of time extension amendments (last one occurring on October 3, 2018), and that condition has not changed,with the exception of the reference to the TMK and an editorial change from Condition 6 to Condition 5. (Exhibit Q The condition required— similar as the earlier one in concept-that "Access to the subject property shall meet with the approval of the Department of Public Works. The applicant shall provide pavement improvements within the entire length of the roadway stub Easement(409 and 412) in a manner meeting with the approval of the Department of Public Works,prior to the issuance of a certificate of occupancy for the proposed development." It should be noted that this is a private road that is not a through street. As such, the projected number of vehicles should be very low. Further,not being a through street minimizes speeding. Finally, its 18-foot wide paved roadway is more than adequate to accommodate emergency vehicles. The Special Permit and its amendments did not have any express condition relating to water. Water for fire protection is addressed via the Building Permit Mr. Zendo Kenn, Director March 21,2022 Page b process. The Fire Department is one of the reviewing and approval agencies, at which time the appropriate Fire Code relative to water is addressed. 3. Lack of Relief and Subdivision Process The 7+acre area was rezoned from A-5a to FA-2a to allow the 3-lot subdivision (Ord.No. 10 20) on March 18, 2010. (Exhibit B)There was no condition mandating specific road improvement requirement. That was deferred to the Subdivision process. Pursuant to that,Tentative Subdivision Approval was granted on November 29, 2010 which required a minimum 20-foot wide dedicable standard road within a 50-foot wide right-of-way. (Exhibit F)The applicant requested a variance to allow the existing 18-foot wide paved road be deemed adequate for the proposed 3-lot subdivision. The requested variance was subsequently approved on March 23,2011 (Exhibit G). In its approval,the Planning Director noted that"The intent and purpose of access requirements to a proposed subdivision is to ensure legal and physical access to the proposed lots that is clearly defined and accessible from a public road by domestic and farm vehicles,police,fire, and other service vehicles under various weather conditions without constant maintenance. " It then concluded that • "the current roadways(Shipman and Slaughter House Roads) are sufficient access to the subject property. " • The variance request o "would he consistent with the general purpose of the zoning district and the intents and purposes of the Zoning Cade, Subdivision Code and the County General Plan"and a "will not materially detrimental to the public's welfare and will not cause substantial adverse impact to the area's character and to adjoining properties." If not for the language of Conditions E and I of Ordinance No. 17 65,the applicant would have sought to apply for a variance. However, since that procedural absence is not available,the applicant is requesting modification of those conditions. 4. Deferring and Not Eliminating Re uirement Finally, the applicant is not seeking to eliminate these requirements. It recognizes Mr. Zendo Kern,Director March 21,2022 Page 7 that at some point in time,the land will be subdivided. As such, it is requesting that the full requirement be deferred to the subdivision process, when the potential for more intensive activity should occur. Pursuant to your amendment requirements,please find attached the letter of authorization and the list of surrounding property owners. The fling fee of$250 is being submitted electronically As always,please feel free to contact me if you have questions on this matter. Thank you very much. nc�rely SIDNEY M. FUKE Planning Consultant Enclosures Copy---Mr. Ryan Emmons, Ke'Aloha Lani, LLC wl enclosures via email DocuSign Envelope ID:BDAOA729-34B2-4EFF-ACA9-242OB4UA7432 TO WHOM IT MAY CONCERN: Please be informed that Ke'Aloha Lani, LLC is the owner of a parcel identified by TMK: 1-6-141: 002. The undersigned are the authorized members of the LLC and hereby authorize our planning consultant, Sidney M. Fuke, to file and process a request to amend Conditions E and I relating to water and roadway improvements, respectively, of Ordinance No. 17 65. 3/18/2022 RYAN EMMONS (Date) Co-Managing Member-- Ke`Aloha Lani, LLC 59-571 Ke'iki Road Haleiwa, Hawai'i 96712-9628 AQUINO,MARTHA ANN KEALIIVVAHINEO1 FURUKADO,IDA-MAE FURUTANI,SUEKO TR PO BOX 487 HC 2 BOX 5813 CIO REID FURUTANI KEAAU HI 96749 0487 KEAAU HI 96749 8400 62-B KAIWIKI RD HILO HI 96720 HAA,ALBERT K SR HAWAII BREWERY DEV CO INC HCR 2 BOX 5813 C/O BENDER CONSULTING LTD HAWAII BREWERY DEV CO INC KEAAU Hi 96749 8400 1188 BISHOP ST STE 811 CONDO HONOLULU HI 96813 3303 HAWAII BREWERY DEVMT CO INC HAWAIIAN SOLO COMPANY LTD HAWAIIAN SOLO COMPANY LTD CIO BENDER CONSULTING LTD C/O DIAMOND HEAD PAPAYA CO DIAMOND HEAD PAPAYA CO 1188 BISHOP ST STE 811 16-309 OLD VOLCANO RD APT A 16-309 OLD VOLCANO RD APT A HONOLULU HI 96813 3303 KEAAU HI 96749 8102 KEAAU HI 96749 8102 HOULE,PET ER T ISE MOTO CONTRACTING INC LTD KAIEWE,JOHN JR-DECD HC 3 BOX 10058 648 PIILANI ST PO BOX 73 KEAAU HI 96749 9217 HILO HI 96720 4613 KEAAU HI 96749 0073 KE'ALOHA'LANI LLC KE'ALOHA'LANI LLC MISHPACHA LLC 59-571 KE IKI RD 736 CtMA LINDA LANE 8460 S EASTERN AVE STE A HALEIWA HI 96712 9628 SANTA BARBARA CA 93108 1813 LAS VEGAS NV 89123 2865 ODA,ELAINE MIEKO PURDYCO LTD W H 5HIPMAN LTD PO BOX 124 DBA ISLAND PRINCESS RD 16-127 LAPAAU KEAAU HI 96749 0124 2846 UALENA ST KEAAU HI AAA D HONOLULU HI 96819 1943 W H SHIPMAN LTD WAIAKEA,INC SR-ROADWAY 5800 HANNUM AVE STE A135 CULVER CITY CA 90230 6685 f ! 06�0g/2003 16:10 PAZ 0002 - i �6e�]7trs ��'pYn3]SlXira , .,t r+[►,�wi1 irs $vam J r fiiYej if win Mth- M cobs)961-62$a i&w(M.35 p6t,9615 LTUnM 71 1993.. nom. �sar+�us..��x�a�+x•�������:�:.. .:.; • 47 4 7 Ri).aUsa Avenue, Sultte ZU ��ar fir. Se�de�•,. -:' •�':��� � .�:�:; ...,. :` . ' :. .. . SjD�eNy i�#il17 T1..]1?F_r_ffi�j,t-: 1 Breve -,Pd V;.,e:la'p:p. eL't 00. 'Ltd,td , Bey, Dater aid six ar hk Battlin � .. a's`p...-:��ii:' oiic.%, -'!'• - .. . .... , '�F. .. i..: . . - 71anr 1-hi"`C_ _VWu%g 1&�cc ; h 6 1 d-.pUb1.1 a hearing. on- Permit No.. a 4 2� tp ���s�� watgr antj s1 1oft .icl;Wc, bptt?.,ing f4cty_i ty arsd rexated. f' p . - 1. p to ? . h..-5, A.�tAki off'• - -$red In th.e- Stag �a� - �Y {� a �.. '_ ;3[liii 1ti ccnamisxc�n '�.10at : 7CI t t.. 45G which allowed the x t',t . s164 fte OPEC. include. the ;ea*t ve t r � ire ,... . ,.. . - . TQiaE �. kt y-; rrersotr�ri Katie Ppa� - W�G ;� ter; ' .I ... . Approval, or thu..M -' ' jr ISO based on the fo.11owinq: r ." -Tha &-WLUpA)4q t will .prom�t •th.e p n Offe6j� vcriegs juja -Mubeetivds of Chapter .205 Mawsil kgy j2k4 S Caters-. as zmpndeo" Thd sta a ]lard Vg: J�hw RuIes and, protect, and erlcourava thm d w-a 4in�-t4t pt I thP!su uses to Vllivb they' *f th'O P�tl lic' haalt-h and welfar-M - 0f the people 'Pt._��:-�t�t�e casib 6-e— diatrxcte, the Intgrit. -of Ose Z4V -aUle$ and R-ciguintJan,5 is to presex a or kea�i' 1��tds' ❑� h�g� �gx-iC'��.t-�xY2iI. ,�c�t�rrt�.a�. �� ac��.oaz�tu�a.� �xse� • ; Exhibit A 06f0$/�003 M10 FAX. Nix Mare1w Babdal, President Paas 2 x 'he fiend on -wlilph the prOpased Use i �L� � �� xtsilited exs a'�eta a ter' tura' a SOMIs within . �••: as 2mpartant �xtu�an�t+ a � rxgo � mag Oyatpnt and "Wr Or "P64ra by the Lang study An reaU for agx x t:3.ter x productivity. whi1e e011s wukan the Project elite are ka tly Vultano fw ilgripilltu�:al usMecr the prc �anaed �Yewer�x grid• b�t�Z�.ttg ap��t�.o� 'v�.��•-,•�.;' st3C'�3� whlcn. were,bpi in 194j. Several propaaoa aaaitions to aha ax :stirig �xc�hterrcixsa and is►� 'eouse caanp�exsc3ide 'the-v i 'truCUOb of a new Machina vo ;e �:-, �s• . _ y r Qe`4�� Cter/ service-NA yip c ca 3ng i;Id• t 4. m x' V�men it °Sas ar et i p a i6t site"i ies kandgart fa •trimne 'dy '`[ r rt xte iota s c+ Q atS;rixs:Y The�fcarAf, it r� a it a pace that ,Y t 51 pra se W t q .a�dtersely i$t;iLMt tkxe• r�icu u x �icY m. r...• : $ ... .t $a at'sr .wthsrn t '� siura� r �i '• arid. n` • crttrar • t t •:, •• �•��n� s •gsirp is v� � � t�. LaI1,�3. �l�e ��W. }. :,�„�f •r.:+-: °e.,L'i�, �:f.. :.,a• -: - '• !'^� r 1'"�•i.�+yC.�zl�;' �j ,ro:�• Tit ]� ..�' r� r � "�.'!:•` @z!p'��,Yi, : _LY'•r.+.Pi :}lr: rL JrLHG• PIM - 'K H' .- •kr Wit.•' � n - ,�;:- 7 .�+ ,�^� ,�•r•-eFT" ' r. .:ve •.i - �!' 3wr.':" ,'9t.���, `CpB $►� U1 $ yl�tY7r ��i37sfi� 4� ea7s' ir• �.1: +irk• �; 3r 'e cs Eakic? 'ai it# _ e �fir . 7 - ' i•.'s� ._ ..x .a,:f:. . - .. s.c,: .rs a' _k •-;._+-=.. _ Y'fY7: ::' Rr. .. `•" !. 4' ,'�`.r�,�.v,a,w i3fd; d`?S y :i"+ ,n .. x•• � I��Y .i„r_ 43.i y�, �4.. 'd -. xrove�hp_p` �, a •�•� :��.�rSi.:3•y�Jv;+'v. ,'r l�:`:• -! i �. �.L1CL.� a '!"`g .Y..-i-..�' .� .. .,.�. r. TrIL '- •!� k;•: 'fi cl i..Z. �p.'.' � '9y SO•!J ,e,2� Y'Aa'? • •' w,C. ,•,' �4 i; `.:' �A } Tra. t''�.te Ni S.ln:•.._..w .1:¢:r. :}•y t P'PJ ,�:��rr Nt. "':Y��r' i�: ,y��y., '�v:- ',F •..` �° •SS•.,. :J 3c.{qr L'� Pr f�7• '; •-Y'1 '••' -t .+e. , ' .. _ ,r�{.' _ �• _ •, .� �a r•�rr,,���],�r�^,�y �y'y} �yy�+{.,�r Me •7 edl• :1�. .� _ .�-'f., y' �'M,F.'1+J" IiA✓•��_.�rr �Etlf•.•', `��,[���• '•5,}'• - r::.� jt. Et 7rx j"� Ved • '' #.n:.Y . •. %'�: �? - i''•if' '`}$ 4'r 4� •7 I• J. V�,�',`!' 'q '� 17+'Y',^I�i 7,T A� .. v .Y.+�i•�,. •. 6 ':1: �` .S Fy}`:'C :Ri, '••\ .. .;�.,/!ti.. t� Y3� xw}.w��F��- Kn�.•�Vc�f,..�a .� �';'•Y�^F!V!�ry a�••sa�• I ' +r _ ^.'y'i i. ••s� j: ;r.. .�,..� -'.. s• .�.,:r�..e'�' 3 f'•• k: f- -4'-� L.sY.:-' •[- t I- " �fcan,&kl�yr key y�.s� irf-e17�gtj�h,gy��ptn �c g e �z�st�:ng �.n�tasty�x_ .at.t �i��{ iS"!�f ►+µ'L^GLYVS.6 K�'Sl'�Y':.:.2 k •- �A. .:a-+�n� li5i i.c`_? . F• �. ��a� : P,Pz 'i� � of t xar� est+'°�v d-��t1�e�'3�� .�#�����`��nt �r�tri ' Tlan$ 7e prsl,icy ts - ' Te; GdKF3 �„ N �► t7egrt�stc �i 'aracat'e'4r ° L' .y$ ' part ,r n gx ''�?7 ac a ung i i •=moi • 6Ultit.�nxr . w and physical' '4TIVIrg �3�=v�=t `�C�m� zr dwtriAl dev'elop7signt •shall ho la a.tecl• �n arElae ._ .'�iiim ia .a ,f ut ° Scei, and . .� rL`7 S-��i' ��Yr���Te��S ~a^fr -R:':i=.: +.r•..-�s, 3,r n'�,-Y' :7y�1� c=.�•f•. xhdU%trial development iuhal.L maint xin or ixprvve the i q"AlIty of the present Mvll-onrfient. Dg��9/20�3 16:10 PAX Up 0 4 ` Mane 7, 1993 +� Ink etr a�, tfu�t'i�s tray ba ,nc t� glnse to raw ' • iaat���s�.� ��. key xE�4�x'a��. - ..: . . tnffer zanea shall be ent6bli&h4d b1�ktwq.0.n ibdugt-riax and adjacent nonccr gpgt ible-]ries of -lapid., Although industrial 1-pnaturle'. appea t.•Qf. th. .ss request at thl- 4 Paa .ocular Iobatian• wmild•:a Ido allow for ot�ie7r �� 'awed us6s'• Qf the bi6wary that :,ay be�-apen to the _ x? 11 f- t¢urs r-t .the prop bsed. •b'.ewery low aY 3ljabI6 to tYx>3 -pu.I{I the ]tr x •rna]�u $c U y .'prq �sY.: ... - .. besr �.n ��fxa x^� �]�� will be zP�de i e 'a-1htuie:vmi ridha�e any Ei1-grv%�,fLcgn , �"���e., n 'alae urraur�d f g kp rt s.. -jl eq' �?4 1�!r .'f '!: t m st L�' �x..: rliCtuX s- "Ari'i�io� l r 'ti s ,..rs: . auctr ;tr�s � axopo �' w,111• � herenf-y`k�e l is k �n 'eh t r' l ax�;'tihe ' or Par s.7 u'ght Oh' s . .-. '• ";A;;��ri �blFi;•_�a�''la��� -�.rs -=����a��,�ri :�>�• 4�cc��5s.o� -��.:y��rs�'�rd�a����; _ .- . :.. i3rt�: F = riiiks3a�-ty c .trte.s--: tW o _rdtj o .thy projrect s%ta in c i sg a I x+i "e x _• t� p ;� .. as l •dx'Y+ng -pnd• pj� asA�:��',,p���'#�� ` rrc3.sin( aataw 'Usaa wie • , • an'��.Q �:r$, .th�i�••tYi� �i�a.FQ��a�` tide'•�wa,�.�:•riQ� •q�ne� ��ai�'� ar�.�rs� - . .. - : i�njsirt�ts.�t� �tzrr�t�ii`t3�.x'i,g:L3z'c4p����.�i�q • -�.� ���'-��"'`�rk `;�;'•�.=:. . - . g . on- of any Xdv's�ki .-Yrisk� 1Z cr :nga.sempt �c '6�r p r e landt c tp .x't i yy,.,:fpl4 :,Pt , Sr a . • •' $ �€3gF; '�8 .7i$sTr`�myI1�r]a�..•,;"!: �}�4t �E]x1��j'21t�.-`f!�•.��� •piL'G.r�j•,,�6f�:t�e.�.l���s.:�'�ir r. .. .. a ata'd;to bbl n�g��� b�e, �����ally rhe' •carip-tM• to 'd�r� - wh�dt: may halve' eari••q sia MCI b1t the: farm or: Za ' ON . T2ze p apased x se ki' ZI r� t sib t rit_1al"y 0�xter of 01jahoq the $ sart a ai char; ctc�r v the lan>3 apd the pts-_Vmh r�: -Y�; . •preyi.ouely.melt oii d, the E*star 61apghterhausie o�6�at n..-hed.. ; ;. iee :fY ex st h ]'C es P years The' gLP���c�Y�� t,T. .. rr the mtiit . tr sx3sxnc� tictrese::: ¢-'hs, >: W -and 'bit .ip9ap�rat i dn4. Due to cctxcmrn s d rec a 'c ung .tlae ap iratiat �sf tie ,p-i�¢pQi9qtd viz'it - cys t ria :cata "° ' c�te�, .3t ,is.- .-r�aom�eryc�e� that-tYxg planrrint� I}ep�rtiri�.a'�'••��'���sc�ss th's prppppmd vi-pit4o r destination center uee� 3 pe-arO :ft'vm' •thia d�X6� Q:e nae of a cQii: .0$tm.Ge c�a�pancy tax` 6h� Ltt r da's n t tin �C, t fi Use tQ dngure f.Cs 4aptj:�rticd tie OrI41nal bitent •and •pu�pasa• for grAnting of this ap7odia.1 G"jdG =LF a4�j"Z OS/Q9��p03 18:11 FAX - •• �nQ5 �i Marc*t3s t�anderE President Jens 7, 1993 Page 4 Thu prapatsad iiae will not unrftaso xably burddn -puriyic a-1811cies to provide roadgand gtrd Ats r 9(kwats j wa-ter, drainage, $ oS? fTf1 'Gi$ hei�t�r p9lice .arld fire proteGt10ni lWastewat�r dS�pbzal will be 'acaommodateid within individual waatewater troatmanh MyEtem(t.) . '+hg, napartxen't of HAalh will 07if Qraq wastewater d igpa ga l x-egala t f uns: county water savailable t� taxa gu1aj ect prOparty, which will be. supg�em r�tr�r� icy°'ari ex3.sUbg well. 4��r e�s�erst��t] utili-tibe and servicer .aria gar will h� made available+ Ac�ego from •the V*Ican9 Hi0hWay ft`ontl'�Igexaad � ,to they. subject prope�y w���- ��' via . Slal�gfatar7icauae-.�c�ac�� a private raad�.i r hrjrja1v Wis th ��" aP�rQ m fel deet wathi aft apgracirnse , '.4' r. a: S Vilvel bhoulders., Fri�zn 'Glij�ti1hterha�i e I ad: �. l en prvc e iav �ti 6. toadwaY stub owned by W,H: sri ani dna; Wis rod dvay _a'tub, which prov`idea Ritcads too'the'•1Ceaau 14 m ghee aci�'itY and ,t46, pr6j 12pt E'itt fi hay a :pavdmeht. -, 3idih Of approx-I at tv l0 teat- wRhin .a •56--foat ,right-0.f-Vay. Catxcern -regffrtling the ade4ilhor. of this roadw4y stab.. ¢' acicra=adat : the rased`u z+rr�- saiaec hY slIrrbur��lfri prax-t�r - d vndr. aI4 the; 4an i lml. + citEi�miss nnta. APriL �Ar. �9�� *80t .'rn on the aubj eco apt a oatiu .r' - 4e�tei metigr�;t2x hies$ landown6rs, the'applioant, ' ane aff6at -e.genc r ep es tati�ra rQ ft A �n the cle.rifi'&&tion Of the pxapaOad pir�afact and - _ -- __dus arL 03f. s �ii �nxaranar road 'fagn(l that Auch �a����ri��°.Q� ftiiny, rtig�}ts' v�hart Yee$ S.Lity is how. Ths r Barer 1t i r c mm n oc�-t t t-tics 110U)gM of apieratian vf thetQ00 �d farrry/betZi :v�.sir r Rpra 46fly.. A-:. with 'wtli6r raqueata . r sl ecial P6rri.it .urhla nflii=res d nth fnon�sgr . uXtr�r x i aturr, tb' -apPliaant spa I- peov*, the prf,Yats r aadvay &tub with a-Minimuzrs pavement width rtzich u d a�,2ow fcx� .two wrzy ti ,�, .iYi $ Y. ftki rex' iiia rwit the 0MV42 at Ma QepartmOrnt of Public Works. singe most o� the canc�no regardin'4 trziff10 revo"Ived around the pra�aS d V7E tr�L cire�* opratri , t use.r�r f }�a lftd tv e 0hortstratf.onm of the= b&t!r m4hufactux►ing ra ass, sampl ung of of! rglated 'n no abf.�ia� and a g�atir�g Capaoity not to expand X50 p,,p,,. Unusual. aanditionsx tr4inds and ne&rjs have- s>, Bert airz a tete 4istriot bvundarxes and re'•gulationa Wena established, Ag.IrJC,Itural act�Vitiez has wititegsed a d•eclirla avar th.a yeLars, -most evidently with the clas4n- t�f Hrtlteaku' �ttt�� �ofnpan�. ah xzng aotiYxtie hada alse Xa494 similar eac'nomia degline. �t��re i ca cxx of the a.alanCls economy has harm Pptight as a. bu r a7minst t vi aontSnual deal.izie of the Agricultural a� 'd � , 't�l� INV-d N3-VA IV RN h� I ,�a 1 fid � �u - `')/200S lg:Zl FAX I Mr. Marcus &snderr, )?rmnidont aurae 1, , 93 €gaga 5 indumbry. Tha appliaant Vjgbes .to lzti.lize w$tj�r Aram an aki;stlw on-site wall tar its brew!"g and V&t8r/goft•drink OperatiOnS. while not agricultiA re ih the ust�ax sense, the proposed use w41� 4t•iIJ40 an on--mite resource v' ec6nomic! �urptisee. APprOval of this, r6que9t is nub7act to the f6ilowing conditions! I. The applicantr Or asg,lgnii shall be reoponsible far aamp,.ying with all Of thO lusted conaitions of appF+awh l �. the ap�a�,3,�ant� its �t�C�c����r� or as'sign� aha�,X i.�xc��rirr��.fy an4 hold the County Oe UAW�ii and owheka of slnughterhouee. Kok.d (T14K: harmlasts tr&a. And-.a 4j-pit any a abi t t, claim or davand- 0pj7aparty a6m5ve, peraonEfl -Irdury. and death- arizing out of ani a6t -¢r, ombtsion off' tha CspFxA-cante •it$ SxWoe-s�Drs car agaignox okftcer:;4. Lindsg' - undo r -this pgrmit,yr relating to Ot connected with the granting of s. CORM-Olida.ticln and the *iibj 0bt propgg7tler. sh-axi b ori�ta f xt d for to Fi.rr l PlAn' APp c 4. Fin'al Plan Approval eat- the.$t"Ckry and ,h6ttling Miall be aeaLL-aa fxpm- the P.11inning- Dt�partment. •PIana &hall identify exi,�t ing and. propased st=ucturei3r Paved (Pocrate �r ��p�,a�t�cQn�rete� �r�v�ew�y' and ���'�,�i�g �rea•�- ���v��a�ed with the proposiad uae- APPI'OPrA,ata -,landacaIjIng shall, 'be . p� ovide4. icor the purpose OZ Mltiy4tino nosss� aria' visual ��u]paotS which m4y be -glengrateQ Jay the fact Tif-y. S; Csrnat ct on f renovation of the pr6p.rased hrew,rery and battling i acii`f;y nn;l rales l �mp�G�S} rats. ahall be 001ffgig $d and a oert3g ieatefeGuan �. &ued wa.th n is ivo Y earn from the efrdctive date a� th�.s Spepi.al Permit. 6. Acce-ma to the eubJ eCt gzapexTty AhaII meet with the. approval ,C)f thON Departmelit of.FfWlu Warks; The aPpIlcant shall Pr.Wide PAveMgnt within- the entAra length cif y. thra&dway a'tl4b ('TMMC; 1;5-R f = 24) J-7n a with "e approval vt the n6�4rtMeht Of Mblic WorkNr prior hu the i==mancxa of a aertifxtMte of oeaupAhd:Y for the: gropoged development. 7, The: Visitor destination center operations shall be Iai m.lted to the 1 ourr- from 7:G0 a.m. to &rat] p.m, r dally. $ '4� AV-j H-VIA 1VNPIVN Nvl--VA,vq b t�: 1 ' ? 'flj i (1�3/U9/2Q03 18;11 FAX 0007 n r Mr, Marcos 8enderl pr,�F�ident June" 7, 1P�as W , Page 6 S, The Viai.tor de8tination canter shan be iimited to demayintrati.ons, Of beer naY uract'drxngtr beer tam r and the ratAIJ Dale of related. me-%orabi„lia, 80ating 4�$paolty of "a 4F�!Xrter shall nzL t excintgd 250 Peop1e. 9, The Planning Department ahzi ll reasgs$g�;s thz visitor dusti.natiar aent$r crperatians for cantinuad can4orma.nam ag4lftat the nrlg,inal 1htent apd purpoke far grantitxq the Special �arm.it three (3). gears from 4$te of i:�zuaneja of a cert, flohte. of rccnpandy for the Vi sitvr deatinatian center, Ar. )may 44-, requested by the PXahnjnq Di.reatox, than applicantShah prcvi.de ' 11 4Vai.l,4 3n 0rm ioh nea�e�shry for tha prOrTr 46sessment of tbig Visitor dAhtee op6ratiajts, . which, shall ancluda a .detailed account o� ajj &OTapj,..ntst r'6aftl"�d by tho app"Cant and its d.jspntritjQn, vigilt6r countm, and other rslevant Lnfor�ati qh, _940trld the, .' nive6to�' f h4 t �risi.tox de'wt natign Ckthter operation not within the orlyi hl Intent ;or grantIngr -Lho Special Paj7,n, .t, the utter ahAll 'be-brought before the Pla-i n ting Commission -Eo'' re cons Iderativn F Tha appIgmA ct shall +domrc 1 P. Y'. with app I xcatbl a .laws i ru L4E�=- and ''•r Z-eguxatiane bf tha alfact&d agancies, inciudi.ng those be • the 1]�p�artment �xf Nva I.th attid t?�• �r�pztrtment a� �,�c,�ir�r� upon cOPPl izince with m,11 nz�ndit3 bhs •of appr�val� ITI o6n jvnetion With 'the Appli.catign -for a oex�ti�i�ate Qf yur-Upancy 4nd. Tri a the opeoih4 Qf t'he bix air pry, thio applicant eb4, 1 P' U'bmit a final sthtns _rfap6rt,. ill %iriting, Ito the Plarming ,department v' 12, An extena3on cf time felt the parEormanPo Cof. coriditidns Wi.th'n the pjprmzt may be gr*sited by tho-Pla.nhil q airoiatox Upon the- fol-ldw1hg Qirdukgtanoas. I) the t ri--aerf¢xmance i the result. o candid ons-tLat coul4l riot have be��i f�+res�:en or are beyond the control df- tho applicant,. atu<:aess'xrg, 'or assicjns Anil +,hat ar6•nct tho result og their fault Or naq�lgq,ncg; P). 4xanti2eg br the tite extensi i-an would npt be corrtr4ry tp the 0eneral ftwl car • . zoning Coad0) greih .ing of thip time extaMi ioh �culd not be o6ritri% �, to�t1le orli;1nal .=aasons for the g anting of th.ap rm ,t; find d) the • i � euttens on granted shall bi;� for a perind no+_ to ext6ed the Period 01:1ginElI ly, grantad fOr PexfOrbarice C 1.e. c9nditi on to be pdrfGrr4ed Within olle y1m4r nay, Pad oxtanded far up to Ono adLlit�ana l y�!a.r) . Furtber, ahould any of -Ehe canditi ani ria b m�L' or substantiAllY cr nP i*d saa.th in a C 'd -0h INV-d W3_VA IWIVU, NVE-VAN 4Y'310'71 71,'FCZ 'you 11,qfl p[i/p�/2pQ3 13,1 . FAX NV. karOIAO Bender, P278side.n.t auna 7, 1993 gaga 7 timely eushign, the Dtreotor Phall initiate prooedures to revoke thio pp-rAlt: This apprml does not, hawEverr, Eanotion the spealfia plans szxb a t iad xrith the-- PPI Q4t, on ag they may be, subj Lct to ch"' qa g:.Ve-n apaPi fiO Cods ana regulatary thn Aff�eated agencies. Should yOU have, a'nY gUestiOrs j plaaaa feat. free to contact �tndney Nakano ai- Paryu Arai ❑f the planning aepartmeFnt 4t 5- 61-82a8. xOr VD`harable Stepjien K. Vesghizra, Mayor Mr. Erw*t Hato oux rzi DepArtm4n-t of PObl id WerkS 1ppapartment of Water supply celInty Raul property TAX giYiSian 64tExtq nand Ude canmis5-,6xi Flan Ap] roval sealcia z 71,.�,Z 197 '53q COUNTY OF HAWAI I STATE OF HAWAY1 BULL No, 1-97 ORDINANCE NO JLO 20 AN ORDINANCE AMENIDW3 SECTION-25-8-77 WUNA MTRICTZONTE MAP), :Aid f I CLE 9,CHAPTER 25(ZON1 NG CODC-)OP Tn. HAWrA14I COUINTY CODE 1983 (2€0-5 ED I T 10 N V8 V C Iq A—NGJ N G THE D i sT Rj cr cLA ss iF icA Tim i-Ro m AGRTCLILTU'RAL-5 ACRES(A-5-aj TO FANMILY ACTRICULTURA I,.-2 ACRES(FA-2a) AT KEA'AU, PL.'NA DISTRICT,HAWAF1,COVE-RED BY TAX IWAP KEY. m rr ORDA IN-ED BY THIE COUNCIL OF THE COUNTY OF HAWAN: 9ECTION I. smtj6n f X22.Arhicic 8,CTrjpW 25 t Z. -oning Code)of the 14, w aj1 County Code.1-0$3 I-AX5 U91on3),tis amorldod -6b district classification of pp4perty dmrtbd berei iWtcr its,follovc The the fol-lawing-art-a slupawd at Kea!au-,Puns District. &-,ifijmmg°;.t themokhmitest.comer of this.parcel ofland and rwmiug by Wmuths measured clockwise four:Trac South. Alefte,Lot 9721 of Land Court Application 1053 (Map$S91 the azimuft and distances for the next six(6)coni-se's being; .i. 25T 35'. 31-52 f1cm 2. Thealong a wrvc to tho q- ght having a radius of 431.18 fml, the chord azirnufb and distance being: 2-W 54' 3W 103.58 f"t; 3 274- 14' 9333 Leet; 4. 270' 40' 32" 045.64 5. 360' 40' 32" 12 I8.98 fcet; EXHIBIT B 6 270' 33' 7'10 91) 1cct; 7. Thence along lot 3-E of Land Cour Application 1689(Map 7). aloe"a curve to the lett having a radius of 1 166.28 feet, the chord azimuth quid distance being: 314" 08' 28" 96.86 feet; 8. 21' 00' 71.36 feet along Lot 9187-B of[and Court Application 1053 (Map 590); 9. 90° 33' 1439.38 feet along Lot 9187-B of Land Court Application 1053 (Map 590); 10. 183' 23' 49" 329.50 feet along Lot A-31-A-4 of Land Court Application 1053 (Map 134); IL 94' 14' 93.29 feet along Lot A-31-A-4 of Land Court Application 1€)53 (Map 134); 12. Thence along Lot A-3I -A-4 of Laud Court Application 1053 (Map 134), along a cun•e to the left having a radttts of 38 1.18 feet, the chord azimuth and distance being: 86' 54' 30" 97.20 feet; 13. Thence along Lot A-31-A-4 of Land Court Application 1053 (Map 134), along a curve to the left having a radius of42.84 feet,the chord azimuth and distance being: 39' 35' 30" 55.06 feet; 14. 179' 36' 61.32 feet along Lots 1150-C and 1151)-B of I and Court Application. 1053 (Map 81)to the point of beginning and containing an arca of 7.829 acres. All as shown on the map attached hereto, marked Exhibit"A" and by rcicrenco made a part Hereof. SECTION 2. In accordance with Section 25-2.44, Hawai'i County Code 1983 (2005 Edition), the County Council finds the following conditions are- Necessary to prevent circumstances which may be adverse to the public health. safety and welfare: or -2- f I) Reasonably conceived to fulfill needs cttrectly from tilt land use prOposed with resp ct to: (A) Protection of tho public From the potentially deleterious effcx-ts of the prgpmed use,or ($) Ftt-lltllment of the need for public service dentctnds createdby the Proposed age. A. The applicant„its successors gar assigns-shall by responsible for complying xvith all of the stated co nr jhorLj•6f ppr- Val. B. -The appHmmts,snrccssor&ot assipm):shall be responsible lor-complying with al reqtuir er is of'CIraPter-2K Ha-WW I kbVised Stauttes,relating to perp issible mar within:the�'We Unid,,Uw Agricultural Disric-t. C. The-taec uimd w&er cornmitmer:tt.,payment shall be,submitted t6 Clic Department of Wmater 811pply in aedoka.fta c with-its"Water Commitment Gu delines Policy, Wahl i ride b0iidred anti-OLAty(,I&Q)days froth Che effective date or.Ns ordi�iatt�,�, D. Final Subdivision Appmval of the subject property sball be secured im-aliin five(5) years from the effeetive•d41WJ.afthxs ordinance. E. Restrietive covenants to the deeds of all proposed lots within the property-shatl give notice that the terns.dthe zoning ordinance prohibit ilii:corrstrul boon of a second dw.clling uriit and condom,himm property teg-I'D:s ori each lot. This restriction may, be removed by amendment of this ordinance by the County Council. The ovwner,ofthe property may also,in addition,impose private covenants matncti-ng the number of dwelltnms_ A copy of the proposed covenant{s)to be recorded with the State Bureau of Conveyances shall be -3- submitted to the Planning Director for review and approval prier to the issuance orr-'inai Subdivision Approval. A copy of the recorded document shall be filed with.the Planning Department upon its receipt horn the Bureau of Conveyances, I'. All driveway connections to shalI conform to Chapter 22, County Streets, of the Hawfai`i County Code. G. All development-generated runoff shall be disposed of on srte and shall not be directed toward any adjacent properties. Ifregttired, a drainage study shall be prepared and submitted to the Department of Public Works and any required drainage improvements shall be constnicted, meeting the approval of the Department of Public Works prior to final Subdivision Approval. H. All earth xork and gradin;shall conform to Chapter 10, Erosion and Sediment Control of the Hawaii County Code. 1. The method of savage disposal shall rneet with the requirements ofthe Department of Health. J. Should any remains ofhistoric sites such as rock walls,terraces,platforms,marine shell concentrations or human burials be encountered, work in the immediate area shall cease and the Department or Land and Natural Resources-Historic Presem ,ation Division[DLItR-HPI))shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DI.NR-HPD when it finds that sufficient mitigative mcasures have been taken. K. If the applicant, successors,or assigns develops residential units on the subject property. the applicant shall make their lair share contribution to mitigate the potential regional impacts of the property%Ath respect to parks and recreation, -4- z fsrt,police, solid.waste disposal facilities and roads. Tbc fair share eomttnburton shall become Niue and payable prior-to receipt of Final Subdivision Approval. The fair share contribution lbr each lot shall he based on the actu,,tj nutitber of residents-al fifths developed. "l'lie fir sham contribution in a Conn o:fcash. land, factinies or any combigatTon t I&M.-`shah be detcj)nined by-tile Coulity Council. Thu fair sham conimbation naay:lae adju%ed ann-tally beVinni-ng three y ars aR-or the:trifcetive date of dais.ordirtance;,bawd on the p(m2grtt4ge eharscgc in the Honolulu Consumer Pri-m4ndex(MCPII. The fair share contrrlautron shall ha-ve a con hint d value of 87,698.11 per mult..iglet family residonlial writ($1 X,99.i_frA per singte farmiil�'resW'6ndal.ur tf). `h 'Wal ainountshayl be dotcim-d mcd with the actual nunrhor,af units�accOd-ingIa the a-kula#ion and paytiaent pr v.W.'t) s-set forth i]d dits vtiditiokx. The fair Aare ccmvihxt40Ii per 100#11a FaQai:ly res Id-entiAl IInT [single f"hni1y residential umti-O snail be aflocated ars follows: L *3,797.26 per rimItiple gym.vly residential Uliit 4-5,78 .79 per single faintly rq,14en iarl un,0,to 11te County to gap port Mark and recreational iMproVements.AM factlitie!, $120.01 per malripl'e fmiuly residential unit(8279:07 per single funny residcndirl tintt)to the County-tb suppon-police lacilittes; 3. $369.17 per mailfiple Chirally residmi.al unit[$��:1.Z.fl per single family residential unit)to the County 16suppart fire facilatie"s, 4. $164,54 per multiple fam-1lyh!ssiden ial unit{S241.32 per single family residential unit)to the County to support solid waste facilities, and �. $3,247.12 per III LlItiple larnI ly residential unit{$5,140.06 per single family residential unity to the..County to support road and traffic improvements. In licit of paying the fair share:contribution, the applicants may contribute land and/or construct iniprovements/facilities related to parks and recreation, fire, police, solid waste disposal facilities and roads within the region impacted by the proposed development. subject to the review and recommendation of'the Planning Director, upon consultation with the appropriate agencies and approval of the County Council. L. Should the Council adopt a Unified Impact Fees Ordinance selling forth criteria for imposition of exactions or the assessment of impact fees.conditions include(] herein shall he credited towards the requircnrtnts of the Unified Impact lees Ordinance. M. The applicant shall comply with all other applicable laws, rules, regulations and requirements ofaffected agencies for the development of the subject property. N. An initial extension of time for the performance of conditions within the ordinance may he granted by the Planning Director upon the following circurnstances; I. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors or assigns, and that are not the result of their fault or negligence. 2. Granting of the time extension would not he contrary to the General Plan or Zoning Code. -fi- 7 3. Granting of the tin7e exienston would not be contrary to rho onginal =Sons iior the grarttj na of the change of 7otae. 4. The time extemion granted shall be for a period not to exceed[he period originally gattted for performance(r.e„a c-andttion to be perfor ned within one year may he cxlftdcd for up to one additional year), 5. If the applicant(s)should require an addilional extenswn of time,.the Planning Departmcnl shall submit the applicalit's roguest to the County C-Ouncil fir apptopnizte action_ itatild t,y of the conditions not be-met or substantially coluplicd with in a lrifdy n apner,:dw Planning Dirwtor,my me rt:zvnnlg of the area to Its 'or' mor6 appropriate dcsignalibri SECTION 3. In the cW011t that MY portion Of this ordinance is declared invalid,such invalidity shall no!affeel itre,othc r parts of this erdtnttncc S ECTFON- 4. This ordi.trance shall tare ellect VoI7 its approval. INMODUGED BY- C+atWC'L MEMBER,C-OUNTY OF HAWAN H� , t-taluai`i Date of int rod action: PebrmwY U, 2010 Datc of l st R eadinK. Bebnmry 18, 2014D Date of'3nd Reading: Marla 3, 2030 Effective Date: tech 18, 2010 REFERENCE, Conxr 673 -7- OFTICC OFTHE COUNTY CLERK coull;y o I'l4a mat-i Hilo.ffiawdri REC-i: 1111roducod th ---n-ald ikeda 'A '.(ITFP DalIntrudLiveO Febz��,!--�y �18, 2010 F First Ktridmg Pebruary 1-81 �01C NOES A13S Ex Februarjr 27, ~20110 f ItT H J oj-d x x I ku,d ii X x Sevviid liodim, fla---cu 3, 2010 YbsWrnplo x To 11, 21010 Returoud M&KC-4 2010 I+ W- ch $6, 2,610. R01.1-CALL VU111 A Y US NCIF...,-i tfbl-Wte-q March -2-51 2-020 X Or lu,I t tax -F x --------------------- ti lhtfi)yV.wjhT B-ill Ilav odot-yedbythe Cmint qshe Y Cor0cl-Alw/V (ifix APPROVED AS To F0 AND LE-.GALrrY- -GORFOR"ATfONVOUNSEL DEr -Y Ca TY OF HAWAN )' 'i F)m Date MAIR 12 2010 '97 Ord No to 20 Harry o ,4�. `• ,�� Joseph Clarkson,Chair v. •: :� Donald Ikeda,Vice Chair Donn Dela Crux Grego ry Henkel, Myles Miyasato Thomas Raffipiy County of Hawaii WINDWARD PLANNING CQMAUSSYQN Auguni Center - 101 Paiiahi Street,Suite 3 ■ Hilo,Hawaii 96720 FEB 16 2018 Phone(808)961-8288 Fax(808)961.8742 Mr. Sidney Fuke Planning Consultant 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: SUBJECT: Special Permit No.SPP 842 (Docket No. SPP 93-000003) Applicant: Hawaii Brewery Development Company, Inc. Request: Time Extension to Comply with Condition No. 4 (Complete Construction) Tax Mau Kev: 1-6-141:0101 0241 027& 028 The Windward Planning Commission, at its duly held public hearing on February 1, 2018,voted to approve the above-referenced request to amend Special Permit No. 842 to allow a time extension to complete construction which allowed the development of a brewery,water and soft drink bottling facility on 14.587 acres of land situated within the State Land Use Agricultural District. District. The project site is located east of Highway I 1 (Volcano Highway) and north of Highway 130 (Kea`au-Pahoa Highway), Kea`au,Hawaii. Approval of this amendment is subject to the following conditions: 1. The applicant, successors, or assigns shall be responsible for complying with all of the stated conditions of approval. 2. The applicant, its successors or assigns shall indemnify and hold the County of Hawaii and owners of Slaughterhouse Road (TMK: 1-6-141: 22)harinless from and against any loss, liability, claim or demand for the property damage,personal injury and death arising out of any act or omission of the applicant,its successors or assigns,officers, employees, contractors and agents under this pen-nit or relating to or connected with the granting of this peri-nit. 3. Final Plan Approval of the brewery, distillery and soft drink bottling facility shall be secured from the Planning Department. Plans shall identify existing and proposed structures,paved(concrete or asphalt-concrete)driveway and parking Hawaii County is ran EguaI Opportunity Provider and Employer EXHIBIT C Mr. Sidney Fuke Planning Consultant Page 2 areas associated with the proposed use. Appropriate landscaping shall be provided for the purpose of mitigating any noise and visual impacts which may be generated by the facility. 4. Construction of the proposed brewery, distillery, or bottling facility and related improvements on one of the lots covered by TMK: 1-6-141: 24, 27& 28 shall be completed and a certificate of occupancy issued before October 18,2023. Further, construction on the remaining two lots shall be completed and certificate of occupancy issued before October 18, 2028. Prior to establishing a use permitted under the existing FA-2a zoning, an amendment to delete the affected lot or portion thereof from the.Special Permit shall be filed with the Planning Department. A recorded instrument informing all three lot owners of this conditional use requirement shall be filed with the Planning Department prior to the conveyance of any of those lots. 5. Access to the subject property shall meet with the approval of the Department of Public Works. The applicant shall provide pavement improvements within the entire length of the roadway stub (Easement 409 &412) in a manner meeting with the approval of the Department of Public Works,prior to the issuance of a certificate of occupancy for the proposed development. 6. The visitor destination center operations shall be limited to hours from 7:00 a.m. to 6:30 p.in.,daily. 7. The visitor destination center shall be limited to demonstrations of beer manufacturing, beer sampling and the retail sale of related memorabilia. Seating capacity of the center shall not exceed 250 people. 8. The Planning Department shall reassess the visitor destination center operations for continued conformance against the original intent and purpose for granting the Special permit three(3)years from the date of issuance of a certificate of occupancy for the visitor destination center. As may be requested by Planning Director, the applicant shall provide all available information necessary for the proper assessment of the visitor center operations,which shall include a detailed account of all complaints received by the applicant and its disposition., visitor counts and other relevant information. Should the Director find the visitor destination center operation not within the original intent for granting the Special permit,the matter shall be brought before the Planning Commission for reconsideration. Mr. Sidney Fuke Planning Consultant Page 3 9. The applicant shall comply with applicable laws, rotes and regulations of the affected agencies, including those of the Department of Health and the Department of Liquor Control. 10- Upon compliance with all conditions of approval, in conjunction with the application for a certificate of Occupancy and prior to the opening of the brewery, the applicant shall submit a final status report, in writing, to the Planning Department_ [Note: Ramseyer version available upon request.] This approval does not, however, sanction the specific plans submitted with the application as they may be subject to change given specific code and regulatory requirements of the affected agencies Approval of this permit is based on the reasons given in the attached Findings Report. Should you have any questions,please contact Maija Jackson of the Planning Department at 961-8159. Sincerely, Ose Clarkson, Chairman Windward Planning Commission LHawai i brewerydevel opm en tam end S P P 842 wpe Enclosure: PC Findings Report cc wlenclosures: Department of Public Works Department of Water Supply County Real Property Tax Division- Hilo State Land Use Commission GIS Section COUNTY OF HAWAII PLANNING CONII��IISSION FINDINGS HAWAII BREWERY DEVELOPMENT CO., INC. AMENDMENT TQ SPECIAL PERMIT NO. 842 Eased on the following considerations, an amendment to Special Permit No. 842 to amend Condition No. 4(complete construction) is approved. HAWAFT BREWERY DEVELOPMENT CO., INC. has submitted a request to amend Special Permit No. 842,which allowed the development of a brewery and water and soft drink bottling facility on 14.587 acres of land situated within the State Land Use Agricultural District. The property is located east of Highway 11 (Volcano Highway) and north of Highway 130 (Kea`au-Pihoa Highway), Kea`au, Puna, Hawaii, TMK: (3) 1-6- 141:001, 024, 027 and 028. The applicant requests an extension of time to Condition No. 4 (complete construction) of Special Permit No. 842 which allowed the development of a brewery.and water and soft drink bottling facility on 14.587 acres of land situated within the State Land Use Agricultural District. Condition No. 4 states in part, "Construction of the proposed brewery,distillery,or bottling facility and related improvements on TMK: 1-5-141:24,27& 28 shall be completed and a certificate of occupancy issued within five years from the effective date of this third amendment."With an effective date of the third amendment being October 18, 2013, Condition No. 4 would require completion by October 18,2018. - The applicant requests the additional time to find suitable operators of the various components of the project. The original 14.5-acre property has since been subdivided into four parcels at two acres in size of which one accommodates the existing Hawaiian Springs bottled water facility with the other remaining three lots vacant.The construction completion deadline for the three undeveloped lots in October 18, 2018. Progress has been made in finding suitable operators; however, it will not be possible to complete construction on all three lots by the deadline. Therefore, the applicant requests a 5-year time extension to complete construction on one of the three lots, and that construction on the second lot be completed 5 years thereafter,and construction on the final lot be completed 5 years after the second lot. This would provide for a 15-year construction timeline to develop all three lots_ The applicant has proposed the following new language(material requested for deletion is bracketed and struck through; material requested as an addition is underscored): "4. Construction of the proposed brewery, distillery, or bottling facility and related improvements on one of the lots covered by TMK: 1-6-141:24,27& 28 shall be completed and a certificate of occupancy issued before October 18 2423. Further, construction on the second lot shall be corn feted and certificate of occu rigy issued within five 5 ears of completion of the first lot. Construction on the third or last lot shall be completed and certificate of oc2Upgy issued within five 5 ears of completion of the second lot.Prior to establishing a use permitted under the existing FA-2a zoning, an -I- amendment to delete the affected lot or portion thereof from the Special Permit shall be filed with the Planning Department. A recorded instrument informing all three lot owners of this conditional use requirement shall be filed with the Planning Department prior to the conveyance of any of those lots." On June 7, 1993, Special Pen-nit No.842 was approved by the Planning Commission to establish a brewery, water and soft drink bottling facility and related improvements. A water bottling facility was established on 7+acres ofthe approximately 14.5-acre site,which is identified as TMK 1-6-141:001. On December 16, 2003, the Planning Commission granted the first 5-year extension of time to complete construction of the brewery and soft drink bottling component of the project. Subsequently, on April 18, 2006, the applicant secured Final Plan Approval for the brewery. On December 18, 2009, the Planning Commission granted a second amendment to complete construction,and the County Council approved a concurrent change of zone from A-5a to FA-2a for approximately 7.829 acres on Match 18,2010. On November 21,2011, Final Subdivision Approval was secured for the subdivision of the approximately 7.82-acre property into three lots(TMK 1-6-141:024,027, 028). The reason for the subdivision was to increase the potential of attracting different operators for a brewery, distillery, soft drink, or a water bottle facility on the various lots. Lastly, on October 18, 2013 the applicant secured a third 5-year extension of time to complete construction from the Planning Commission. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant,successors or assigns,and that are not the result of their fault or negligence. The water bottling facility has been completed as required under the Special Permit, but the brewery and soft drink bottling components have yet to be completed. The applicant is in a better financial position to commence with the construction of the project,and has made a concerted effort to complete construction of the various components of the project, including the satisfaction of the required rezoning conditions such as the payment of the fair share impact fees and completion of water line improvements.The applicant has recently completed a test well on parcel 027,which has a capacity of 250 gallons per minute or 3 60,000 gallons per day.With a joint venture company, the applicant intends to fully outfit the well and have it operational in early 2019, with the rest of the structural components completed by 2023.The focus of this well and facility will be non-alcoholic beverage. Granting of the time extension would not be contrary to the General Plan or Zoning Cade. Since the Special Permit was approved in 1993,there has been one change to the General Plan LUPAG Map designation for the property. In 2015 the County Council changed the designation from Low Density Urban to Medium Density Urban for the subject permit area. This change was made to encourage more corrunercial and higher density residential development in and near Kea`au Town. The permit area is also adjacent:to and a northerly extension of an area along Railroad Avenue which is designated Industrial on the LUPAG Map. Conditions of approval would require the applicant construct all improvements consistent with the prevailing Zoning Code standards such as setback,height, parking, and landscaping. -2- Granting of the time extension would not be contrary to the original reasons for the granting of the permit. The land an which the proposed use is located is unsuited for agricultural uses. Soils within the property are classified as "Other Important Agricultural Land" according to the AL1SH map and "D" or "Poor" by the Land Study Bureau for agricultural productivity. While soils within the project site are fairly suitable for agricultural uses,the property is not currently being utilized for intensive agricultural purposes. A water bottling facility has been established on approximately seven acres of the original 14.5-acre site with the balance subdivided into three 2-acre lots. Therefore, it is anticipated that the granting of additional tizne to establish the proposed use on the remainder of the original 14.5-acre project site will not adversely impact the agricultural land inventory within the County of Hawaii and the request is not contrary to the intent and purpose of the State Land Use Law. The proposed use will not have any significant adverse effects on surrounding properties. Other existing industrial uses are located in the immediate vicinity ofthe project site, including a kim Ghee processing facility,macadamia nut drying and processing plant, and a papaya packing plant. Given the use of similar industrial-type uses within the area,it is not anticipated that the proposed use will generate any adverse impacts to surrounding properties. The proposed use will not substantially alter or change the essential character of the land and the present use or unreasonably burden public agencies to provide roads and streets, sewers,water, drainage,school improvements,police and fire protection. The original reasons for the approval of the Special Permit remain unchanged. Accordingly, approval of this request would not be inconsistent with the original reasons for approval of the Special Permit. Based on the above,the request to amend Condition No.4 of Special Permit No. 842 would not be contrary to the objectives sought to be accomplished by the State Land Use Law Rules and Regulations or the original reasons for approving this permit. -3- Hang Kim mayor �xtY Michael Yee �•t ' Director Darya Arai *':•r`' Deputy Dfrecror �TF'OF•54 Fiz West Hawaii Vice 74-5044 Ane Keohokalole Hwy ■ • East Hawaii o.6fice Kaiiva-Kona,Hawaii 96740 County of Hawaii 101 Fauna street suits 3 Phone(908)323-4770 Hila,Hawaii 96720 Fax(808)327-3563 PLANNING DEPARTMENT Phone(808)961-8288 Fax(808)961-8742 February 13, 2017 Mr. Sidney M. Fuke Planning Consultant 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: Special Permit Application Applicant: Hawaii Island Distilling,LLC Request: Proposed Beverage Processing and•Bottling Facility With Visitor Center Facility Subject:. Return of Application Tax Ma Ke : 1-6-141: 402 We are returning the above-referenced application. The main reason for returning the application is that the landowner is the same landowzier for all parcels affiliated with the approval of S.Decial Permit No. 842 (TMKs: 1-6-141:001, 024, 027& 028), and the current proposed parcel (TNII<: 1•-6-14.1:002). Special Permit No. 842 was approved to allow the establishment of a brewery,water and soft drink bottling facility on 14.5 acres of land. The.same land owner is currently proposing a similar use (proposed beverage processing and bottling facility with a visitor center facility) on an adjoining property(TMK: 1-6-141:002),which is 6.505 acres in size. This brings the total acreage for all parcels that would be covered under a Special Permit to approximately 21 acres, which requires approval before the State Land Use Commission. After reviewing your application,we are requesting that the applicant choose one of the below listed options to proceed with processing this proposed use: 1. The first option is to submit a Special Permit application that covers all 21+acres that will go before the Land Use Commission for approval. If approved., Special Peralit No. 842 would be revoked. D www.cohplanningdept.cora Hawaii County is as Equal ly-Promer and wplowr planning&awaucounbLM Mr. Sidney M. Fuke Planning Consultant Page 2 February 13,2017 2. The second option would be to rezone TMK.- 1-6_141:002 to the State Land Use Urban district and the County's General Industrial (MG) zoning district, which is the only zoning district that allows breweries, distilleries, and alcohol manufacturing facilities. The General Plan designation for the property can be interpreted as industrial and Medium Density Urban given the location,of the Industrial mode just to the east of the subject property. 3. The last option would be similar to the second option but would include the entire 21 acres. The applicant would need to submit a State Land Use Boundary Amendment application to the Land Use Commission from Ag to Urban for the 21+acres and submit a change of zone to General Industrial (MG)zoning district for the 2.1+acres. We will hold the filing fee for the resubmitted application. if you have any questions,please feel free to contact.Teff Darrow at 961-8158- Sincerely, NvIIC L YEE Planning Director Enclosures: Original and Copies of Application, Receipt for Filing Fee JWD:mad P-\wpwm6O\Jeff�Lettm\Retum-Review Permit LetterslLFuke-HawaulstandDistilhag-RETSPp.doe �r ar q COUNTY OF HAWAI`i • �• STATE OF HAWAZtI •rf.6F.Hl1 T ORDINANCE NO. 17G5 BILL NO, ba AN ORDINANCE AMENDING SECTION 25-8-22 (PUNA DISTRICT ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAII COUNTY CODE 1983 (2015 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL—TWENTY ACRES (A-20a) TO GENERAL INDUSTRIAL—20,000 SQUARE FEET (MG-20)AT KEA`AU, PUNA,HAWAII, COVERED BY TAX MAP KEY: 1-6-141:002. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 25-8-22, Article 8, Chapter 25 (Zoning Code)of the Hawaii County Code 1983 (2016 Edition, as amended)is amended to change the district classification of property described hereinafter as follows: The district classification of the following area situated at Kea`au, Puna, Hawaii, shall be General Industrial—20,000 square feet.(MG-20): LOT 9677: Being a Portion of Land Court Application 1053 as Shown on Map 559 Situated at Kea`au, Puna, Island of Hawaii, Hawaii Beginning at the southwest corner of this parcel of land and running by azimuths measured clockwise from True South: 1. 1830 24' 04" 99.08 feet along Lot A-3I-A-2 of Land Court Application 1053 as shown on Map 134; Thence along Lot 1092-E of Land Court Application 1053 as shown on Map 81 for the next thirteen(13)courses, the azimuths and distances between points being: -1- EXHIBIT E 2. 1960 06' 14" 74.02 feet; 3. 2710 01' 14" 45.01 feet; 4. 2420 06' 14" 105.03 feet; 5. 2790 01' 14" 45.01 feet; 6. 216° 01' 14" 95.03 feet; 7. 241' 31' 14" 40.01 feet; S. 3030 31' 14" 48.02 feet; 9. 2690 21' 14" 44.01 feet; 10. 2140 01' 14" 130.04 feet; 11. 2640 21' 14" 316.10 feet; 12. 2430 01' 14" 173.06 feet; 13. 2080 31' 14" 55.02 feet; 14. 2390 12' 14" 119.98 feet; 15. Thence along Lot 3 of Land Court Application 1689, along a cure to the left having a radius of 1,168.28 feet, the chord azimuth and distance being: 358° 13' 45" 200.83 feet; Thence along Lot 9678 of Land Court Application 1053 as shown on Map 559 for the next four(4) courses, the azimuths and distances between points being: 16. 560 01' 18" 286.59 feet; 17. 430 19' 56" 218.81 feet; 18. 160 25' 100.00 feet; -2- 19. 900 40' 32" 644.86 feet to the point of beginning and containing an area of 6.505 acres. All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof. SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2016 Edition, as amended), the County Council finds the following conditions are: (1) Necessary to prevent circumstances which may be adverse to the public health, safety and welfare; or (2) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to.- (A) o:(A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use, A. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. Construction of the proposed development, as substantially represented by the applicant, or as permitted by the zoning district classification, shall be completed within five(5) years from the effective date of this ordinance. Prior to construction, the applicant shall secure Final Plan Approval for the proposed development from the Planning Director in accordance with Section 25-2-71, Chapter 25 (Zoning Code), Hawaii County Code. Plans shall identify all existing and/or proposed structure(s),paved driveway access and parking stalls, fire department access, and landscaping associated with the proposed development. -3- Landscaping shall be indicated on the plans for the purpose of mitigating any adverse noise or visual impacts to adjacent properties in accordance with the requirements of Planning Department's Rule No. 17 (Landscaping Requirements) and Chapter 25 (Zoning Code), Hawaii County Code. C. The applicant,its successors or assigns shall not use water from the County system for distilling,brewing, or other similar water bottling production facilities. D. The applicant shall provide maximum daily water usage calculations prepared by a professional engineer licensed in the State of Hawaii and a water commitment deposit in accordance with the"Water Commitment Guidelines Policy" shall be submitted to the Department of Water Supply prior to the submittal ofplans for Plan Approval review to the Planning Department. Based upon the calculations, if required, the applicant shall install a larger or additional service lateral or meter, and rennit the prevailing facilities charge to the Department of Water Supply. The applicant is responsible for maintaining valid water commitments to support the proposed development until such time that required water facilities charges are paid in full. E. Prior to receipt of a Certificate of Occupancy, the applicant shall provide a fire hydrant within ISO feet of the property, and either upgrade the existing 4-inch waterline to a 12-inch waterline for a distance of approximately 800 feet or provide a private water system capable of providing a minimum flow of 2,000- gallons per minute for a 2-hour duration and a pipeline velocity of less than 10 feet per second. F. Should a larger crater meter be required, a reduced pressure type backflow prevention assembly must be installed within five(5) feet of the meter on private property and must be inspected by the Department before water service can be activated. -4- G. Subject to other agencies' requirements to construct improvements within the road right-of-way fronting the property affected by the proposed development, the applicant shall be responsible for the relocation and adjustment of the Department's affected water system facilities, should they be necessary,which may include conveying the water system improvements and necessary easements to the Water Board. H. All driveway connections to Slaughter House Road shall conform to Chapter 22, County Streets, of the Hawaii County Code. I. The applicant shall provide a 10-foot wide road and utility easement along the subject property frontage of Slaughter House Road. The easement shall provide reciprocal rights for access to all lots along Slaughter House Road. Prior to receipt of a Certificate of Occupancy, the applicant shall improve the road and utility easements over TMK's 1-6-141:001, 024, 027 and 028 to provide road improvements meeting the County Department of Public Works Standard Details R-33 and R-34 to include paved travel lanes, shoulders and drainage swales within a 60-foot wide right of way. The improvements within the 60-foot wide right-of-way shall be privately owned and maintained unless a road lot is created and dedicated to the County ofHawai`i. J. All development-generated runoff shall be disposed of on site and shall not be directed towards any adjacent properties. K. All earthwork and grading shall conform to Chapter 10, Erosion and Sediment Control of the Hawaii County Code. L. During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices utilized during construction projects of the State of Hawaii. -5- M. The applicant shall meet the requirements of Chapter 50, Food Safety Cade, of the Department of Health rules related to food manufacturing(including water bottling). N. The method of sewage disposal shall meet with the requirements of the Department of Health, a. To protect any Hawaiian hoary bats in the vicinity of the property, barbed wire fencing shalt not be used in the permit area and woody vegetation over 15 feet in height shall not be disturbed, trimmed or removed during bat birthing and pup gearing season of June 1st to September 15th without first conducting surveys for bat nests and coordinating with US Fish and Wildlife Service(USFWS) if nests are found. Surveys shall be conducted by a qualified biologist. P. `1'o protect any Hawaiian hawks in the vicinity of the property, ground clearing, grabbing activities and construction shall not occur in the permit area during hawk breeding season of March to September without first conducting surveys for hawk nests and coordinating with USFWS if nests are found. Surveys shall be conducted by a qualified ornithologist. Q. To protect any seabirds (Hawaiian petrels,Newell's shear-waters and band-ramped storm petrel) in the vicinity of the property, any lighting shall be fully shielded so that the bulb can only be seen from below bulb height. The lights shall be turned off when human activity is not occurring in the lighted area. R. Should any remains of historic sites such as rock walls, terraces, platforms, marine shell concentrations or human burials be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-State Historic Preservation Division(DLNR-SHPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-SHPD when it finds that sufficient mitigative measures have been taken. -6- S. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. T. To ensure that the Goals and Policies of the Housing Element of the General Plan are implemented, the applicant shall comply with the requirements of Chapter 11, Article I of the Hawaii County Code relating to the Affordable Housing Policy. This requirement shall be approved by the Administrator of the Office of Housing and Community Development prior to the issuance of Final Pian Approval. U. The applicant, its successors or assigns shall comply with all other applicable laws, codes, rules,regulations and requirements of affected agencies for the development of the subject property. V. An initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors or assigns, and that are not the result of their fault or negligence. 2. Granting of the time extension would not be contrary to the General Plan or Zoning Code. 3. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. -7- 4. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition,to be performed within one year may be extended for up to one additional year). 5. If the applicant(s) should require an additional extension of time, the Planning Department shall submit the applicant's request to the County Council for appropriate action. Should any of the conditions not be met or substantially complied with in a timely manner, the Planning Director may initiate rezoning of the area to its original or more appropriate designation. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: C�� .1COUNCIL MEMBE , COUNTY OF HAWAII Kona , Hawai`i Date of Introduction: September 7, 2017 Date of l st Reading: September 7, 2017 Date of 2nd Reading: September 20, 2017 Effective Date: September 29, 2017 REEERENa Comm. 386 -8- FA-lo A-2 A-20a A-200 A-20a LOT 9677 AGRICULTURAL-TWE NTYACRES(A-20a)TO A-20a GEN ERA L IN DD STMAL-20,000 SQUARE FEET(MG-20) 6.505 ACRES A-200 A-200 A-20a A-20o A-200 A-20o A-20a A-200 A-5o O D A-200 FA-2a FA-2a p9! r� A-20a !� 7- D FA-2a d 1 I L I D A-20n r A-5a a ' I I MCK-2 c KFA ALJ-PAHoA BYPASS RE) + R-20n Feet 0 250 500 1,090 1,500 2,000 AMENDMENT TO THE ZONING CODE AMENDING SECTION 25-8-22 (PUNA DISTRICT ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL -TWENTY ACRES (A-20a)TO GENERAL INDUSTRIAL - 20,000 SQUARE FEET (MG-20) AT KEA`AU, PUNA, HAWAII MAP PREPARED BY. TMK:(3)1-8-141:002 COUNTY OF HAWAII, PLANNING DEPARTMENT DATE:March 30,2017 EXHIBIT "A" Hawaii Island Distil]ing Map: 1389 OFFICE OF THE COUNTY CLERK `y OP MM, County of Hawaii Kona,Hawaii 2017 SEP 29 PH 4; .1 Introduced By: Karen Eoff (B/R) ROLL CALL VOTE Date Introduced. September 7, 2017 AYES NOES ABS LX First Reading: September 7, 2017 Chung X Published: September 16, 2017 David X Eoff X REMARKS: Kanuha X Lee Loy X O'Hara X Poindexter X Richards X Second Reading: September 20, 2017 Ruggles X$ 0 1 0 To Mayor. September 28, 2017 Returned: Septergber 29 2017 ROLL CALL VOTE Effective: September 29 2017 Published: October 14 AYES NOES ABS EX 2017 Chung X David X REMARKS: Eoff X Kanuha X Lee Loy X O'Hara X Poindexter X Richards X Ruggles X 9 0 OT 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council puhlished as indicated above. COU ll.CHIA RP ON pproue Disapproved dhis 2� day 0f � 20 11 NT�YCLERIf 1 Bill No.: 60 M�4YR, C0UNT FHAWAFI Reference: C-386/PC-25 Ord No.: t7 65 r� SV aF William P.Kenoi ,a?'•':t:''';. Mayor ]Bobby Jean Leitbead Todd • ,i'IarrrringDireetor Margaret K mu nnaga +�•.,,�.,,�•��` Deputy, anni tgDireeior �y�'nf•K►,'N County of Hawaii PLANNING DEPARTMENT AuPwn Ceuta a 101 Pauah's Street,Suite 3 . Hilo,Hawaii 96720 November 29, 2010 Phone(808)961-8288 • Fax(808)961-8742 Sidney Fuke Planning Consultant, 300 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: TENTATIVE APPROVAL SUBDIVIDER: HAWAII BREWERY DEVELOPMENT CO, INC, Proposed Subdivision of Lot 9722, Land Court Application 1053, as shown on Map 592, Into Lots 9722-A, 9722-B and9722-C, Kea`au, Puna, Island of Hawaii, Hawaii TMK; 1-6-141:424 SUB-10-000986 Please be informed that Tentative Approval of the preliminary plat map dated April 1, 2010, is hereby granted with modifications and conditions. The subdivider is now authorized to prepare detailed drawings of the subdivision plan in accordance with Chapter 23, Subdivision Control Code, County of Hawaii, as modified, Before final approval can be granted, the following conditions must be met: 1) Water System a) Provide a water system meeting with the approval of the Department of Water Supply, b) Submit water system construction plans for approval by affected agencies. c) Pay installation and facilities charges as required by the Department of Water Supply. 2) Drainage a) identify all watercourses and drainage ways and encumber with drainage easements. EXIII I�' Hawai`i County is an Equal Qp mrd Employer Sidney Fuke Planning Consultant Page 2 November 29,2010 3) Access and Roadway Improvements a) Access to the subdivision from Volcano Road is over an existing private roadway. Construct a minimum 204 wide dedicable pavement with paved shoulders and swales within a minimum 50-ft. wide right-of-way conforming to Std. Det. R-33 and R-34 from Volcano Road to the subdivision. if the existing road has already been constructed to this standard, provide a professional engineer's certification or certified as-built construction plans. b) Submit subdivider's legal access over the private road. c) For Easement 412,construct minimum-164 wide.nondedicable pavement within a minimum 20-ft. wide right-of--way conforming to Std-. Det:R-39.. IWhere grades-are 8% or greater; the roadway section shall be paved per Std. Det: R-34.-_Lot 97227C appears to be connecting to Easement 409 for access as well, therefore create a road lot in replace of'Easement 412 and shorten the pole for Lot 9722-C to connect to the south boundary-of the road lot instead of the north boundary. d) If Easement 409 and Easement 412 are to be used as a common access easement for the subdivision and adjacent lots, disregard previous Condition No. 7 and construct minimum 20-ft. wide dedicable pavement with paved shoulders and-swales within a minimum 504 wide right-of- way conforming to Std. Det. R-33 and R-34. If the road has already been constructed to this standard, provide a professional engineer's certification or certified as-built construction plans. e] Subdivision roadway design, including allowable street grades and minimum sight distance requirements shall conform to the standards of the code, f} Submit construction pians and drainage report 6o reviewwand comment. Ij Additional storm runoff due to development shail-be disposed within the subdivision and shall not be discharged onto adjacent`propgrties�pr roadways. ii} Install streetlights/signs/pavement markings=as required by the Traffic Division, De parfrr�enf of Public Worsts. 5 4) All easements affecting proposed lots shall be identified-for-its purpose and to which proposed lot(s) and/or grantee(s) the easement is in favor-of..This shall be shown on the final plat map. 5) Comply with all conditions of approved Change'of,Zone Ordinance No. 10 420(REQ-09=000107), especially Condition "D"related to the appropriate time frame for Final Subdivision Approval by March 18, 2015; Condition "E"regarding Restrictive.Deed.Covenants prohibiting the construction of a second dwelling unit and condom inium'praperty regime_;on.e'ach lot. This deed covenant shall submit to the Planning-Director for approvat prior to issuance of final Subdivision Approval and recorded with the State Bureau of Conveyances;--and Condition "K`related to construction of residential units on the property and payment of all Fair Share Contributions or In lieu of paying Fair Share Contribution, contributing land and/or construction.improvements/facilities related to,parks and recreation, fire, police, solid waste proposal facilities and roads with approval by County Council, Sidney Fuke Planning Consultant Page 3 November 29, 2010 6) Property Tax Certification. Submit written proof that all taxes and assessments on the property are paid to date, 7) Surveyor's Certification. Place property markers in accordance with the final plat map. Surveyor shall submit certification upon completion. 8) Final Plat Map. Submit ten (10)copies of the final plat map prepared in conformity with Chapter 23, Subdivisions, within one year from the date of tentative approval, on or before November 29,2411.. If not, tentative approval to the preliminary plat map shad be deemed null and void. Only upon-v�rri#ten request from the subdivider and for good cause, the director may grant to the subdivider an extension-`of time within which the subdivider may file the final plat. As part of final plat map submittal,provide an additional copy of the final plat,map as a".dwg" or".dxf" diskette file prepared by CAD software. In the alternate,a digital copy of the final plat mato may be e-mailed to the Tax Maps and Records Supervisor at plannin co.hawaii.hims, - 9) Time Limit. Subdivider shall complete all requirements specified as conditions for tentative approval of the preliminary plat map within three(3) years of said tentative approval, on or before November 29, 2013, An extension-of not more than two(2) years may be granted by the director upon timely request of the subdivider. Please be aware that if at any time during the fulfillment of the foregoing conditions, should con cems emerge such as environmental problems on other problems'which were earlier overlooked or not anticipated/accounted for in data/reports available to date, this could be sufficient cause to immediately cease and desist from-further abtivities on the proposed subdivision, pending resolution of the problems. The Planning Director shall confer with the listed officers to resolve the problems and notify you accordingly. No final approval for recordation shall be granted until all the above conditions have been met. Land shall not be offered for sale,lease or rent until final approval for recordation of the subdivision is granted by the Planning Director or the proposed subdivision has been issued a preliminary order of registration by the Department of Commerce and Consumer Affairs (DCCA) in accordance with the requirements of Chapter 484, Hawaii Revised Statutes. There has been considerable legal controversy over subdivisions'in the agricultural district, including the recent Kelly,et.al. v, 1250 Oceanside Partners et.al.; Civil -No. 00-1-0192K. Because of the state of the- law at this time,we recommend that subdividers in the State Land Use Agricultural district consult with, and rely on, independent legal counsel in deciding whether their-subdivisions comply with the requirements of Chapter 205, Hawaii Revised Statutes. We also recommend that you advise lot purchasers to consult with, and to rely on, independent legal counsel regarding permissible uses and the effect of Land Use Commission Rule 15-15-25(b), Hawaii Revised Statutes Section 205-4.5, and Hawaii County Planning Department Rule No. 13, on the requirements to build and occupy dwellings on lots within the subdivision. .A Sidney Duke Planning Consultant Page 4 November 29, 2010 Should you have any questions, please feel free to contact Ed Cheplic of this department, Sincerely, BJ LEITHEAD TODD Planning Director ETC:Inm P:iwp601Summb=MnW$uba2010-4%UB-10-000986Hawaii&ew 8VC0TA.doc Enc,: PPM (04-01-10) xc: Manager, DWS Director, DPW District Environmental Health Program Chief, DDH Hawaii Brewery Development Co. Inc, Robert T. Shirai, PLS, Island Survey, Inc. REZ-09-000107(brd. 10 020) William P.Kenoi �NYY•Pf Mayor �: Br Leithead Todd director Margaret K.Masunaga +r�r' '•"yin`' ❑epwy �•GFH� County of Hawaii PLANNING DEPARTMENT Aupuni Center * 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720 Phone(808)9614288 . Fax(808)961-8742 March 23,2011 Mr. Sidney Fuke, Planning Consultant 100 Pauahi Street, Suite 212 Hilo,HI 96720 Dear Mr. Fuke: SUBJECT: Application: VARIANCE—VAR 10-056 Agent: MR. SIDNEY FUME,PLANNING CONSULTANT Applicant: HAWAII BREWERY DEVELOPMENT CO.,INC. Owner: HAWAII BREWERY DEVELOPMENT CO., INC. Request: Variance from Chapter 23, Subdivisions, Article 6,Division 2,Improvements Required Tax Mal) Ke : 1-G-141024 SUB 10-0409$6 After reviewing your variance application, the Planning Director certifies the approval of Variance — VAR I0-056 subject to variance conditions. The variance permits proposed 3-lot subdivision (SUB 10-000986) to be created without providing access and roadway improvements, identified by the Department of Public Works and required by Tentative Approval letter dated November 29, 2010. The variance is from Hawaii County Code, Chapter 23, Subdivisions, Article 6, Division 2, Improvements Required. The Planning Director has concluded that a variance application from the roadway requirements for the proposed subdivision be approved based on the following findings: BACKGROUND 1. Location. The subject property, comprising approximately 7.82 acres, being Lot 9722, Land Court application 1053, is situated at Keaau, Puna, Hawaii. Hawaii County is an Equal t7ppt�W1T1&ei-and Employer Mr. Sidney Fuke, Planning Consultant Page 2 March 23, 2011 2. Zoning. The subject property is zoned Family-Agriculture — 2 acres (FA-2a) by the County and designated Agriculture "A" by the State Land Use Commission (LUC)_ 3. Subdivision Request/PPM. The applicant or subdivider submitted a subdivision application (SUB 10-000986) proposing to subdivide the subject property into three(3) lots and a revised preliminary plat reap(PPM),dated July 21, 2010. 4. Variance Application. The variance application and request for variance from roadway requirements, to permit the proposed subdivision, was acknowledged by Planning Department letter dated February 1, 2011. This variance application includes background history, circumstances and information regarding the pending subdivision application. 5• Agency Comments and Requirements.- a. equirements:a. The State of Hawaii Department of Health {DOH} memorandum is dated February 3, 2011. Refer to memorandum in variance file. b. Hawai'i County Fire Department (HFD) memorandum is dated February 10,2011. Refer to memorandum in variance file. C. The Department of Public Works (DPW) memorandum is dated February 24, 2011. Refer to memorandum in variance file. 6. Public Notice. The applicant submitted copy of notices sent to surrounding property owners, including affidavit stating notices were sent or mailed to surrounding property owners by U.S.P.S. According to the affidavit, notice(s) were mailed by the applicant to a list of surrounding property owners on February 9, 2011. Notice of this application was published in the Hawaii Tribune Herald and West Hawaii Today on February 7, 2011. The applicant submitted an affidavit, dated February 9, 2011, regarding sign posted on the subject property and photograph of the posted sign. T Comments from Surrounding Property Owners or Public. a. Objection letter dated February 23, 2011 sent by Keisuke Horiike, Hawaiian Solo Company. Mr. Sidney Fuke,Planning Consultant Page 3 March 23,2011 b. Objection letter dated. February 16, 2011 sent by David G. Schell, GM, Kea'au operations, Island princess Macadamia. C. Objection letter dated February 24, 2011 sent by Peter&Judi Houle. d. Support letter dated March 1, 2011 signed by Rick Hadley, Chairman and CEO,Hawaiian Springs, LLC. ALTERNATIVES/SPECIAL AND UNUSUAL CIRCUMSTANCES Lot Access/Roadways. The subdivider has been requested to construct access and roadways pursuant to an earlier DPW memorandum dated September 24, 2010, or roadway requirements pursuant to Chapter 23, Subdivisions. The subject property currently has access to Volcano Road (a public roadway)via Shipman Road (a private roadway) and Slaughter House Road(a private access). In lieu of improving or constructing roadways required by the DPW memorandum the owners contend that the existing paved private roadways are sufficient access to the subject property. The additional 2 lots to be created by the proposed subdivision will create minimal additional impact. The owner is requesting a variance not to construct roadway improvements, specifically by allowing the retention of the existing private 22-24 foot roadway from Volcano Road to the site and without having to improve the shoulders and swales within a 5041. wide right-of-way conforming to Std_ Detail R-34 and street lights. The variance is also to permit the existing 18- foot paved goad within the project area to be deemed sufficient as it meets with the requirement of Section 23-88 (Nan-dedicable Street; private dead-end street) of the Subdivision Code. Furthermore the application seeks relief from providing a professional engineer's certification or certified as-built plans for said roadways. INTENT AND PURPDSE Roadway Variance. The intent and purpose of access requirements to a proposed subdivision is to ensure legal and physical access to the proposed lots that is clearly defined and accessible from a public road by domestic and farm vehicles, police, fire, and other service vehicles under various weather conditions without constant maintenance. Therefore, given the circumstances cited by the applicant and evaluation of the request to improve the existing roadway,required by the Department of Public Works memorandum dated Mr. Sidney Fuke,planning Consultant Page 4 March 23,2011 September 24, 2010, the Planning Director has concluded that the current roadways (Shipman and Slaughter House Roads) are sufficient access to the subject property. Given the circumstances cited by the applicant's representative, riance from the request for va roadway requirements, at this time, would be consistent with the general purpose a the zoning district and the intents and purposes of the Zoning Code, Subdivision Code and the County General Plan. Furthermore, it is felt that this variance will not be materially detrimental to the public's welfare and will not cause substantial adverse impact to the area's character and to adjoining properties. The subject variance application was acknowledged on Februaryl, 2011. Additional time was requested by the Planning Department to complete the variance background report requirements. The applicant granted an extension of time to render a decision on the variance application to March,25, 2011, VARIANCE DECISION—CONDITIONS The variance application, to allow alternative roadway improvements to be constructed/retained in lieu of certain roadway improvements stipulated by Department of Public Worsts dated September 24, 2010, to permit proposed 3-lot subdivision (SUB 10-000986) is hereby approved subject to the following variance conditions: 1- The applicant, owners, their assigns, or successors shall be responsible for complying with all stated conditions of approval. 2. ROAD VARIANCE. The subdivider, owners, their assigns, or successors understand that the three (3) lots arising out of SUB 10-000986 will use and maintain the privately-owned road, and/or any other necessary casement(s), on their own, without any expectation of governmental assistance to maintain the existing privately-owned access or roadway improvements within Shipman and Slaughter House Roads identified on the subdivisions preliminary plat map, or any other necessary access and utility easement(s)within or upon proposed lots or proposed subdivision. The applicant, owners, their assigns, or successors shall file a written agreement or approved written document with the Planning Department within one (1) year from the issuance of tentative subdivision approval and prior to receipt of final subdivision approval of SUB 10-000986. The proposed lots shall form an Homeowner or Road Association or include appropriate deed language, being covenants, conditions, and restrictions, which affect the entire property and/or Mr. Sidney Fuke, Planning Consultant Page 5 March 23,2011 Proposed lots arising from the approval of the pending subdivision application and be duly recorded at the Bureau of Conveyances of the State of Hawaii by the Planning Department at the cost and expense of the applicant: a- The applicant and/or owner(s) shall indemnify and defend the State of Hawaii or County of Hawaii from any and all liability arising out of vehicular access to and from the subject property utilizing this existing private utility and access easement. b. Upon written demand of the County of Hawai`i, the applicant and /or owners, their assigns, or successors shall agree to participate and pay their fair share percentage of any improvement district adopted for the purpose of roadway improvements serving the proposed lot(s) arising out of SUB 10-040986- Should the improvement district require acquisition of any privately-owned rights-of-way fronting the lots arising out of SUB 10- 000986, such rights-of-way shall be dedicated to the County without cost and the value of the dedication credited to the fair share contribution of the respective lot owners). Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. c- The future lot owner(s) agree to participate in any goad maintenance agreement or/and pay their fair share to maintain the roadway. In the event that there are any amendments or changes to the subdivision after the agreement is signed, the applicant shall be responsible for informing the County Planning Department of such amendments or changes so that the agreement can be amended concomitantly. Further, the written or recorded agreement shall be binding upon the owners), their successors or assigns and shall be incorporated as an exhibit and made part of each agreement of sale, deed, lease, or similar documents affecting the title or ownership of the existing property or approved subdivided lots. 3. The subdivision application's final plat map for proposed 3-lot subdivision shall meet all the requirements of the Hawaii County Zoning Code and the Subdivision Code not covered by this variance. 4. The subdivider, owners), their assigns or successors shall pay any outstanding real property taxes and comply with all other applicable State statutes and County ordinances pertaining to building improvements and land use. Mr. Sidney Fuke, Planning Consultant Page 6 March 23, 2011 Should any of the foregoing stated conditions not be complied with, the Planning Director may Proceed to declare subject Variance—VAR 10-056 null and void, y Sincerely, BJ LEITHEAD TODD Planning Director LHN:mad PAAdmin Permits DivisicnWariance\2010 Fi1esIVAR 10-456 Hawaii Brewery\Decision.doc xc: DPW—Engineering Division SUB 10-000986 TO WHOM IT MAY CONCERN: Please be informed that Hawaii Brewery Development Co, Inc. (HBDC) has an Option Exercise Agreement with Ke'Aloha'Lani, LLC (KA.L) to purchase a property identified by TMK: 1-6-141: 002. While we believe KAY, enjoys the rights of a landowner, one way or another, please be informed that HBDC has no objections to KAL submitting and processing a request, through its planning consultant, Sidney M. Fuke, to amend Conditions E and I relating to water and roadway improvements, respectively, of Ordinance No. 17 65. The undersigned is the authorized member of MDC. VA CA� —L-11 e" MARCUS SENDER (Date) President, Hawai'i Brewery Development Co., Inc STATE OF HAWAII OFFICE OF THE ASSISTANT REGISTRAR I t' RECORDED r March 16,2022 8:01 AM bac o s --11762058 on Cert(s)421847 issuance of Cert(s) Isl LESLIE T K66ATA Pkg 11983749 FEH ASSISTANT REGISTRAR Conveyance Tax 316250.60 LAND COURT SYSTEM REGULAR SYSTEM Ater Recordation Return by Mail ( ) Pickup } To: 7Q. � 11Q<1-11— Ke'Aloha'Lani LLC . -7r� �b L 735 Cima Linda Lane TflE. Santa Barbara CA 93108 PAULO Tax Map Key No.: (3) 1-6-141-002 Total Pages: a;LT AGREEMENT OF SALE Seller agrees to sell to you and you agree to buy from Seller the Property described below for the purchase price and upon and subject to the terms, conditions and agreements set forth in this Agreement. 1. WORDS USED OFTEN IN THIS DOCUMENT. l a. "Seiler" - HAWAII BREWERY DEVELOPMENT CO., INC., a Hawaii corporation, whose post office address is 1188 Bishop Street, Suite 811, Honolulu, Hawaii 96813. 011 "You" or "You- — ECE'ALOHA'LANI LLC: a Ilwwaii lirr►itcd liability company, `( whose post office address is 736 Cima Linda Lane, Santa Barbara, California I 93108. 1 2W772v4 c. "Agreement" - This written contract containing the terms and conditions under which you, as purchaser, agree with Seller to purchase the Property described below. d. "Bylaws" - The Bylaws of the Association of Unit Owners of Hawaiian Brewery Condominium Project, filed on October 7, 2021 in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No. T-11602092 and noted on Transfer Certificate of Title No. 421,847, with all amendments to it and all other documents and instruments related to it, governs and restricts use of the Property, This document is recorded and is more particularly described in Exhibit "A" attached to and made a part of this Agreement. e. "Declaration" - The Declaration of Condominium Property Regime, filed on October 7, 2021 in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No. T-11602091 and noted on Transfer Certificate of Title No. 421,847, with all amendments to it and all other documents and instruments related to it, governs and restricts use of the Property. This document is recorded and is more particularly described in Exhibit"A" attached to and made a part of this Agreement. f. "Property" — Unit 9677-A, which has a limited common element land area of approximately 5.364 acres,more or less, as shown on Condominium Map 2510 (the "Condominium Map"), filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii. The Property is more fully described in said Exhibit „A« g. "Recorded"or"Recording"-Recorded or recording at the Bureau of Conveyances of the State of Hawaii) ecorded or recording in the Office of the Registrar of the Land Court of the State of Hawaii, as applicable. 2. PURCHASE PRICE The purchase price for the Property will be paid as follows: a. Down Payment The Down Payment must be paid when you sign this Agreement. You may subtract any deposit you have already made toward the purchase of the Property from the Down Payment amount shown above to arrive at the sun you must pay when you sign this Agreement. b. Balance You agree to pay the balance of the purchase price as follows: You be charged interest on the unpaid balance of the purchase price at the rate of per year from the date this Agreement is recorded until you 2 2948772x4 have completely paid it off. You agree to pay the amount of plus accrued interest thereon,on June 1, 2022, You also agree to pay monthly payments n the 5th day of each month to the date that is the earlier to occur of(i)March 2032, or(ii) the date that you sell, transfer or assign your interest in the Property or this Agreement, on which date the remaining unpaid balance of the purchase price, together with any unpaid interest due, and any unpaid advances and expenses incurred by Seller on your behalf,must all be paid in full. 3. MONTHLY INSTALLMENT PAYMENTS. Your monthly installment includes (i) the monthly payments described in Paragraph 2(b) above, plus (ii) as set forth in a written notice from Seller, all real property taxes and assessments for the Property and other charges paid or payable by Seller for which you are responsible under this Agreement, and will be applied to the following in the order shown: a. First, to any late charges due; b. Next, to reimburse Seller for any funds advanced by Seller for you or on your behalf, Next,to the following charges in the following order, all of which you must pay: (i) real property taxes and other assessments required to be paid by taxing or governmental authorities, and (ii) all other items required to be paid according to the Declaration, the Bylaws and other relevant documents related to the Property; C. Next,to the interest then due on the unpaid balance; and d. Finally,the remainder, if any,to the unpaid balance. 4. YOUR RIGHT TO PREPAY. You may pay, along with, and in addition to, the installments provided for in Paragraph 2(b), any multiple of$ 104.00 on account of the unpaid balance of the purchase price. You may also pay the entire balance remaining unpaid at any time. The amount of any payments of principal you make pursuant to Paragraph 2(b) shall go to reduce the principal payment you otherwise owe on such date pursuant to Paragraph 2(b), You will not be charged a penalty for any such prepayments of principal. If any prepayment is made, later monthly payments will not be deferred, but will be reduced to reflect a decrease in interest accruing on the remaining principal balance. 5. INCREASE IN YOUR MONTHLY INSTALLMENT PAYMENT. If any of the charges listed in Paragraph 3 above increase, your monthly installment payment will increase by the same amount, effective as of the date of the increase, and such increase shall be applied toward the same item which shall have so increased. 6. MANNER AND PLACE OF PAYMENT, All payments due under this Agreement must be paid in United States money,and be delivered or mailed to Seller at its address set forth above or such other address provided to Buyer by Seller or, at the direction of Seller, by 3 24k8772v4 automated clearing house wire transfer to Seller's account. All payments due under this Agreement must be paid in United States money, and be delivered or mailed to Seller at the address shown above. 7. CHARGE FOR LATE PAYMENT. If you do not pay on time, meaning within five (5) calendar days after the date payment is due, you must pay a late charge to Seller equal to five percent (Sada) of the payment then due. The late charge is to compensate Seller for inconvenience and additional work resulting from your not paying on time, and does not affect or reduce Seller's right to collect any other amounts due under this Agreement or to declare a default. In addition to the late charge, you agree to pay all late charges or additional interest Seller must pay because you have not paid on time. If you do not pay any late charge required to be paid by the terms of this Agreement, it will be added to the unpaid balance and will be due on the next monthly installment date, and you will be charged interest on that amount at the same rate as is charged on the unpaid balance. 8. TENANCY. Your interest in this Agreement and the Property,and any transfer of title to the Property to you under the provisions of Paragraph 27 of this Agreement shall be, as TENANT IN SEVERALTY. 9. SELLER RETAINS TITLE AS SECURITY. Title to the Property will be retained by Seller until you have paid all amounts due under this Agreement and until you have done all other things required by this Agreement. 10. USE OF THE PROPERTY. After you sign this Agreement and it is delivered to Seller, you may use the Property as if you owned it, If you fail to do any of the things required by this Agreement, the Declaration and/or the Bylaws (except as otherwise stated herein), you will be in default and may lose the right to use the Property.You are not a tenant,agent or representative of Seller, and your use of the Property is as a purchaser of the Property, 11. RISK OF LOSS. Chapter 508,Hawaii Revised Statutes,as amended(the Uniform Vendor and Purchaser Risk Act)is incorporated by reference which means it is here and now made a part of this Agreement. You bear the risk of loss from damage or destruction of the Property, or condemnation of the Property, from the date this Agreement is recorded or from the date the Property is made available to you for your use, whichever occurs first. Among other things, this means that you do not have the right to cancel this Agreement if the Property is damaged or destroyed,or condemned. 12.. YOU PAY ALL TAXES,ASSESSMENTS AND OTHER CHARGES. You must pay when due all read property taxes, electricity, telephone, communication, data, cable television, sewer, water and other utility charges, assessments, insurance, association of unit owners dues and assessments solely in relation to those derived on or from the use of or allocated to the Property only (and not with respect to any other condominium unit created pursuant to the Declaration and/or Bylaws), and all other charges of every kind which are imposed with respect to the Property or the use of the Property, whether billed 4 2948772Y4 to you or to Seller. payments must be paid prior to delinquency in United States money and must be delivered or mailed directly to the respective payee for the account of Seller. If you fail to make any payment required by this Agreement, Seller may make such payment for you, and you must then reimburse Seller for those payments and for all costs and expenses incurred by Seller because you have not paid the amounts due.if Seller makes any payment for you,all such payments and costs and expenses incurred by Seller because you have not paid will be added to the unpaid balance of this Agreement, will become due on the next monthly installment due date and will accrue interest at the same rate as on the unpaid balance until repaid. If Seller asks you to do so,you must, at your expense, provide Seller with proof(including canceled checks and updated statements) that you have made all payments due with respect to the Property. For purposes of clarity, you shall be solely responsible for all assessments, expenses, charges, or other costs solely derived from, or borne out of the use of, the Property and Seller shall be solely responsible for all assessments, expenses,charges, or other costs solely derived from, or borne out of the use of, the associated lot under the Declaration known as Unit 9677-13. 13. PRORATION OF CHARGES. All taxes, assessments and other charges which must be paid with respect to the Property in accordance with this Agreement will be prorated between you and Seller as of the date of the recording of this Agreement, Any taxes and assessments levied against the Property after this Agreement is Recorded and shall be paid by you. 14. INSURANCE. a. Hazard Insurance. Once the permitting process to build a structure on the Property has been applied for, then you agree to individually obtain and maintain hazard insurance to cover the Property, including all improvements that now are or in the future will be subject to and covered by this Agreement. The insurance must cover loss or damage caused by fire, hazards normally covered by the broad form of"extended peril coverage" hazard insurance policies,and other hazards for which Seller requires coverage including floods, if the Property is located within flood zones eligible for federally subsidized flood insurance. The amount of the policy must be at least equal to the full replacement cost of the insurable improvements covered by this Agreement. All insurance policies must have an "inflation guard"hider, and must name you and Seller as an insured. The amount paid by the insurance company is called "proceeds." In case of loss, the proceeds must be used to repair, restore, or replace the damaged or destroyed property unless otherwise decided by you and Seller. Any surplus will be paid to Sollor and bo appliod t4 reduoe the .,r,pzazd balance_ b. Liability Insurance. You agree to obtain, at your expense, comprehensive public liability insurance covering injury, death, loss or damage to persons and property occurring on or about the Property in an amount not less than the minimum amount of such insurance customarily provided for in vacant land policies, commercial 5 building policies, or homeowner's insurance policies in use in the State of Hawaii for similar property (as the case may be). C. Requirements About Insurance. All policies must include endorsements (agreements) by the insurance company to give you and Seller at least thirty (30) days advance written notice of any cancellation or reduction of insurance or of nonrenewal of the policy, and to forward to all of them copies of all endorsements issued after the date of such policies. All policies obtained by you must name Seller as an additional insured and must be made out in your name and the name of Seller, as its interest may appear. Receipts for premiums and all insurance policies or certificates of insurance policies shall be delivered to Seller. 1f you buy additional insurance, it must also be made payable to Seller,and whether or not made payable like that,the proceeds may be claimed by and given to Seller by appropriate legal proceedings. d. You Can Buy Insurance From Any Company. You are free to obtain all insurance policies required under this Agreement from any insurance company authorized to do business in the State of Hawaii having a rating of"A" or better. 15. OBSERVANCE OF LAW. You agree always to observe and comply with the Declaration,the Bylaws and all laws,rules and regulations affecting the Property or its use. 16. CONTROLLING DOCUMENTS; COMPLIANCE; VOTING RIGHTS. This Agreement is subject to the provisions of the Declaration and the Bylaws. If there is any conflict between the provisions of this Agreement and the provisions of the Declaration and the Bylaws, the provisions of the Declaration and the Bylaws shall control, unless otherwise expressly stated herein. Except as otherwise stated herein, You agree to at all times obey and comply with all of the provisions of the Declaration and the Bylaws, and further agree to reimburse Seller for any and all costs incurred because of your failure to do so. All of the voting rights of an Owner as provided in the Declaration and the Bylaws shall be exercised by you, subject to the terms of this Agreement. 17. USE. You agree not to use the Property or allow others to use the Property for any illegal, improper or offensive purpose or in any manner which constitutes a nuisance. 18. INSPECTION. At any time during normal business hours after giving you at least 24 hours prior notice, Seller and/or Seller's agent shall huvc the right to inspcct the Property for the purpose of determining whether you are complying with the provisions of this Agreement. 19_ REPAIR; MAINTENANCE; WASTE. You agree to keep the Property in good condition. You further agree that you will not damage or destroy the Property, or any 6 2948772v4 structures, improvements or utility facilities located on or under the Property. Of course, normal wear and tear is permitted as long as it is not excessive, 20. CONSTRUCTION AND ALTERATIONS. You may construct, build, improve or otherwise make alterations (collectively, "Alterations") to the Property, so long as such Alternations are performed in compliance with all applicable laws. Seller will promptly sign any and all required permits or other documents reasonably requested by you in order for you to perform such Alterations, which shall not be delayed, withheld or conditioned. 21. ATTACHMENTS, LIENS .AND ENCUMBRANCES. You may not permit your interest in this Agreement or in the Property to be attached, seized, hened, restrained, impounded or encumbered in any manner. This means that you may not permit anyone else with or without your approval to obtain any interest in or claim to your interest in this Agreement or in the Property. 22. INDEMNITY. You agree to indemnify, hold harmless, defend and reimburse Seller for any and all losses or expenses Seller may incur because of(a) your failure to keep your promises or to perform any of the terms or conditions of this Agreement; (b) your failure to comply with the Declaration,the Bylaws, and any law,rule or regulation which applies in respect of the Property or the use of the Property; (c) mechanics' or materialmens' liens being filed against the Property resulting from improvements to the Property made by or for you; or (d) the injury or death of, or loss or damage to the property of any person occurring on the Property or because of the condition or use of the Property; except to the extent that any such losses or expenses resulted from the gross negligence or willful misconduct of Seller. You agree to pay all expenses, liabilities and obligations incurred by Seller in connection with any of the above, including attorneys' fees and such amounts as Seller agrees to pay in settlement of any claim. 23. SELLER'S EXPENSES. You agree to pay to Seller, on request, all expenses, including attorneys' fees,incurred by Seller in enforcing any provision in this Agreement,correcting any breach by you, including your failure to make payment when due, in regaining possession and use of the Property, or in connection with any suit brought against you in which Seller is named as a party; except to the extent that any such suit resulted from the gross negligence or wilful misconduct of Seller. 24. TRANSFER OF YOUR INTEREST. You agree not to sell, assign, transfer, mortgage or encumber your interest in this Agreement or in the Property, or enter into any subagreement of sale before this Agreement is fully paid and satisfied, unless such sale or mortgage pays and satisfies the entire remaining outstanding balance under this Agreement as pari of such proceeds and contemporaneously with such closing. Notwithstanding the foregoing, or any other provision in this Agreement, prior to this Agreement being fully paid euid autisficd, you shall only be permltted to cell or transfer your entire interest in this Agreement and in the Property to Waiakea, Inc.; provided that at the time of the sale or transfer 1)you and/or the individual and personal owners of you, together with any and all formal entities, trusts, or the like which you and/or the individual and personal owners of you own at least a 51% ownership in ("Seller Affiliates"), own at least 25% of the fully diluted capital stock of Waiakea, Inc.; and 2) at least one of the individual and personal 7 29a8772va owners of you have a Board seat of Waiakea, Inc. In the event that a sale or transfer to Waiakea, Inc. is effectuated under this Section 24 and Waiakea, Inc. then gets sold to a party other than you and/or the Seller Affiliates prior to the full payment and satisfaction under this Agreement, the entire remaining balance owed and due under this Agreement shall be accelerated and due upon the closing of such sale of Waiakea, Inc. If you transfer or sale your interest in this Agreement to Waiakea, Inc. pursuant to this Section 24, you shall remain a guarantor for all remaining payments owed to Seller until this Agreement has been full paid and satisfied, and you shall remain liable for all remaining payments to Seller should Waiakea, Inc. fail to timely make a payment until this Agreement has been fully paid and satisfied. 25. CONDEMNATION. A taking of property by any governmental authority by eminent domain is known as condemnation. If the Property or any portion of the Property is condemned, any proceeds paid on account of the condemnation will be applied first to the payment of any advances by Seller and Seller's attorneys' fees and costs, second to any unpaid interest, late charges and other amounts due under this Agreement, third to the unpaid balance, and any surplus remaining will belong and be paid to you. You may not cancel this Agreement if the Property or any portion of the Property is condemned. 25. LIMITATION ON SELLER'S RIGHT TO MORTGAGE, Seller may not further mortgage the Property. 27. TRANSFER OF TITLE TO YOU. When you pay all amounts due under this Agreement and have obeyed all of the other terms and provisions of this Agreement,Seller will transfer title to the Property to you with standard warranties and with the consent of all persons, if any, whose consent is required, free of all encumbrances except those mentioned in Exhibit "A,"the lien of real property taxes not yet due,and those liens you have caused to be placed on the Property. An "encumbrance" is an interest in or claim on the Property by someone other than you. Seller will have the right to open a "closing escrow" at an escrow company licensed to do business in Hawaii in order to facilitate the satisfaction of this Agreement and the transfer of legal title to you. The escrow fee for any such closing escrow will be shared equally. You agree to pay for costs of any title update (if you wish to obtain such an update) and recordation costs, and Seller will pay for the cost of drafting the satisfaction conveyance document. Seller specifically disclaims any.and all warranties (oral or written) concerning (i) the nature and condition of the Property and its suitability for any and all activities and uses that you may elect to conduct on the Property; (ii) the manner,construction,condition and state of repair or lack of repair of the improvements on the Property; (iii) the nature and f--xWnt of any right-of-way,lien,encumbrance, license,reservation,condition,or otherwise; (iv) the compliance of the Property or its operation with any laws, rules, ordinances or regulations of any government or other body, it being specifically understood that you had a full opportunity before the Recording of this Agreement, to determine for yourself the condition of the Property; and(v) any other matter whatsoever.The sale of the Property as 8 29487724 provided in this Agreement is made on a strictly "AS IS" „WHERE IS" basis as of the date of the Agreement is Recorded, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, ANY IMPROVEMENTS LOCATED ON THE PROPERTY OR ANY SOIL CONDITIONS RELATED TO THE PROPERTY. YOU SPECIFICALLY ACKNOWLEDGE THAT YOU ARE NOT RELYING ON(AND SELLER HEREBY DISCLAIMS AND RENOUNCES)ANY REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF OF SELLER OF ANY KIND OR NATURE WHATSOEVER. YOU, FOR YOURSELF AND YOUR SUCCESSORS AND ASSIGNS, HEREBY RELEASE SELLER FROM AND WANES ANY AND ALL CLAIMS AND LIABILITIES AGAINST SELLER FOR,RELATED TO,OR IN CONNECTION WITH, ANY ENVIRONMENTAL CONDITION AT THE PROPERTY (OR THE PRESENCE OF ANY MATTER OR SUBSTANCE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY),INCLUDING, BUT NOT LIMITED TO, CLAIMS AND/OR LIABILITIES RELATING TO (IN ANY MANNER WHATSOEVER) ANY HAZARDOUS, TOXIC OR DANGEROUS MATERIALS OR SUBSTANCES LOCATED IN, AT, ABOUT OR UNDER THE PROPERTY, OR FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION (ACTUAL OR THREATENED) BASED UPON, CONNECTION WITH OR ARISING OUT OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, 42 U.S.C. §9601 ET SEQ. ("CERCLA"), THE RESOURCE CONSERVATION AND RECOVERY ACT, 42 U.S.C. §6941 ET SEQ. ("RCRA"), AND THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT, 42 U.S.C. §9641 ET SEQ. ("SARA") OR ANY OTHER CLAIM OR CAUSE OF ACTION (INCLUDING ANY FEDERAL OR STATE BASED CAUSE OF ACTION)RELATED TO ENVIRONMENTAL MATTERS OR LIABILITY WITH RESPECT TO OR AFFECTING THE PROPERTY. YOU REPRESENT TO SELLER THAT YOU HAVE CONDUCTED, BEFORE THE DATE THAT THIS AGREEMENT IS RECORDED, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF,AS YOU DEEMED NECESSARY TO SATISFY YOURSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY AND WILL RELY SOLELY ON SAME AND NOT ON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO. YOU NOW ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY Nur HAVE BEEN REVEALED BY YOUR INVESTIGATIONS, AND YOU 9 2)48772va WAIVE, RELINQUISH, AND RELEASE SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN. THAT YOU MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER, AT ANY TIME BY REASON OF OR T- --ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONNS OF ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES, OR MATTERS REGARDING THE PROPERTY. YOU AGREE THAT SHOULD ANY CLEANUP, REMEDIATION, OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE THAT THIS AGREEMENT IS RECORDED, SUCH CLEANUP, REMOVAL, OR REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT YOUR SOLE COST AND EXPENSE. You acknowledge and agree that these Existing "As Is" provisions are a material factor in Seller's entering into this Agreement and that Seller is unwilling to sell the Property to you unless Seller is released as expressly set forth above_ YOU, WITH YOUR COUNSEL, HAVE FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH ABOVE AND UNDERSTANDS THEIR SIGNIFICANCE AND EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH ABOVE ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO YOU FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH ABOVE. THE TERMS AND CONDITIONS OF THE EXISTING "AS IS" CONDITION PROVISIONS WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT AND WILL NOT MERGE WITH THE PROVISIONS OF ANY DEED. 28. YOUR REMEDIES. If Seller breaches any term, covenant or condition of this Agreement,you may, if you are not then in default, sue Seller to seek an adequate remedy, or you may pursue any other remedy allowed by law. Seller agrees to pay to you, on request, all expenses, including attorneys' fees, incurred by you in enforcing any provision in this Agreement or correcting any breach by Seller. 29. DEFAULT. If for any reason you fail to make any payment within five (5)calendar days after it is due and do not cure such failure within ten (10) calendar days after notice by Seller, or breach any other promise or agreement contained in this Agreement and do not cure such breach within ten (iu) calendar days after wriurn nutis:c by S01cr, or if you become bankrupt, or if you sell, transfer or assign your interest in the Property or this Agreement in violation of Section 24 of this Agreement, you will be in default. 30. SELLER'S REMEDIES. If you are in default, Seller will have the right to do any or all of the following: 10 29a8772v4 a. Accelerated Maturity. Seller may require that you irnm.ediately pay to Seller the unpaid balance and all advances made by Seller for you or on your behalf and Seller may sue you for any amount remaining unpaid plus all other sures due under this Agreement.You agree to pay all costs,including attorneys' fees,of any suit brought by Seller to recover amounts remaining unpaid. b. -Cancellation. Seller shall have the right,but not the obligation to notify you of the default in writing, and within ten (10) calendar days after Seller's written notice of default,you agree to execute and deliver in recordable form to Seller,a Cancellation of Agreement of Sale in the form attached hereto as Exhibit "B" and made a part hereof. Seller shall have the right, but not the obligation to, record the executed Cancellation of Agreement without the need for any further consent, approval or action by you, and you hereby consent to such Recording of the executed Cancellation of Agreement of Sale. In such event, the Seller (1) may retain absolutely all payments made by you hereunder, to compensate the Seller for the Seller's damages, and for the loss of use of the Property and the Seller's inability to sell the same, free and clear, to a third party while the Property was in your possession, and(2) may take possession of the Property without service of further notice or legal process and without your permission, and in so doing, may expel and remove you from the Property and all persons having possession of the Property, and your and their personal property, without being liable for any damages resulting therefrom. Seller may also sue to have this Agreement canceled and may retain all amounts previously paid by you as an agreed compensation for the use of the Property and to reimburse Seller for all costs and expenses incurred as a result of your default. You agree to pay all costs, including attorneys' fees, of any suit brought by Seller to cancel this Agreement. C. Public Sale. Seller may foreclose this Agreement just as though it were a mortgage and may, with or without going to court, sell the Property at a public auction. You agree that, in any event of such foreclosure, Seller is irrevocably appointed your attorney-in-fact to execute and deliver any conveyance of the Property free of the provisions of this Agreement. This power is coupled with an interest and is not affected by your disability which means, among other things, that you cannot terminate or limit your appointment of Seller as your attorney-in-fact. Seller may purchase the Property at any such sale,and after the sale and transfer of title to the Property, you will not have any right to or interest in the Property. The proceeds of the sale will be applied first to the payment of any advances by Seller and to the costs and expenses (including attorneys' fees) of Seller resulting from foreclosure, second to the payment of interest due under this Agreement, then to payment of all other sums due under this Agreement including the unpaid balance, and anything left will be paid to you. If the sale proceeds do not cover costs, expenses, interest and all other sums due under this Agreement,you agree to pay Seller the difference. If you do not pay, Seller may obtain a judgment for the difference, and Seller will be entitled to all costs, including attorneys' fees, Seller incurs to recover the difference from you. 11 2948772v4 d. Possession After Cancellation or Foreclosure. If you or any person leasing, renting or guying the Property from you remains in possession of the Property after this Agreement has been canceled or foreclosed as provided above, Seller may, at its election, deem the person in possession to be a tenant-at-will (meaning that the person may be evicted at any time with proper notice). From then until the person gives up possession of the Property, the person in possession shall pay a monthly rental equal to twice the monthly payment provided in Paragraph 2(b) above, or one and one-half percent (1.50%)of the unpaid balance,whichever is higher. In addition to all other remedies for the collection of rentals and the recovery and possession that are available to landlords under Hawaii law, Seller shall have the right to bring and pursue an action for summary possession (to get possession of the Property) as provided in Chapter 666 of the Hawaii Revised Statutes, as amended; and you agree to pay all costs incurred by Seiler in connection with any such suit, including reasonable attorneys' fees. e. Other Remedies. Seller is not limited to the remedies set forth above, and may have any other remedy against you permitted by law and in equity. 31. SELLER CAN SUE FOR DEFAULT EVEN IF SELLER DID NOT SUE FOR THE SAME TYPE OF DEFAULT BEFORE. Seller's acceptance of any payment due under this Agreement,whether or not the payment is late,does not prevent Seller from suing you on any default on your part, including your failure to make payment on time. A waiver of one violation does not constitute a waiver of any other violation, whether of the same or some other provision of this Agreement. 32. PERSONAL PROPERTY WILL STAY ON THE PROPERTY. You agree not to remove any personal property, including appliances and furnishings, from the Property or any building of the Property, and you further agree to keep all personal property,including appliances and furnishings, in good condition. You agree to replace at your expense any item in or on the Property, which is obsolete, lost, broken or beyond repair. 33. TREATMENT OF EXCESSIVE INTEREST PAYMENTS. If any payment or part of any payment by you is or is deemed to be a payment of more interest than allowed by law, that payment or part of a payment will be deemed to be and treated as a payment on the unpaid balance. 34. NOTICES. All notices given under this Agreement must be in writing and sent by either registered or certified mail, return receipt requested, postage prepaid, addressed to Seller or to you at the address given on the first page of this Agreement. All notices are deemed given when mailed in the foregoing manner. Seller may change its address, or you may change your adaxess for notices 1-�y giving notice in the foregoing manner. 35. COUNTERPARTS. The parties hereto agree that this instrument may be executed in counterparts, each of which shall be deemed an original, and said Counterparts shall together constitute one and the same instrument, binding all of the parties hereto, notwithstanding that all of the parties are not signatories to the original or the same 12 x9as3rzvs counterparts. For all purposes, including, without limitation, recordation, filing and delivery of this instrument, duplicate, unexecuted and unacknowledged pages of the counterparts may be discarded, and the remaining pages assembled as one document. 36. POST-CLOSING COVENANTS. As a material inducement for you and Seller to enter into this Agreement, the following post-closing covenants shall apply to this Agreement - -- and the transfer and sale of the Property after the Closing of the sale of the Property. - a. ROAD AMENDMENTS AND IMPROVEMENTS. Seller will use reasonable efforts to seek an amendment of the County of Hawaii Ordinance No. 17-65 (the "Ordinance") to remove the conditions requiring improvements to the current road (the "Road") providing access to the Property (the "Ordinance Amendment"). If (i) the Ordinance Amendment is not approved and the Road is required to be improved in order to meet the conditions set forth in the Ordinance,or(ii)any other governmental regulation or administrative agency requires that the Road be improved, or (iii) Seller and you otherwise agree to make improvements to the Road,then Seller and you shall each pay for fifty percent (50%)of the cost of such Road improvements and any associated utilities required by the county or other governmental or administrative agency as part of such Road improvements. Prior to making any Road improvements pursuant to this Section,the party proposing to construct such Road improvements shall (1) give the other party at least sixty (60) days prior written notice of such Road improvements, which notice shall include a copy of the plans and specifications for the Road improvements, the bids of at least two contractors for the construction of the Road improvements, and a timeline for the Road improvements, and (2) obtain the written consent of the other party to such Road improvements, which consent shall not be unreasonably withheld or delayed. The Parties shall cooperate with each other in connection with the construction of any Road improvements. The construction of any Road improvements by a Party shall be diligently pursued to completion and shall not unreasonably interfere with the use of the Road by the other party. The other party shall pay its fifty percent (50%) share of the cost of the Road improvements to the party constructing such Road improvements within fifteen (15) days following the presentation of invoices and supporting documentation for such costs, The provisions of this Section shall survive the full satisfaction of the Agreement of Sale 37. SURVYVAL, All provisions, requirements, and obligations contained in this Agreement shall be terminated and of no force and effect upon the full payment of all amounts due under and in full satisfaction of this Agreement, along with the full transfer and conveyance of title to you, except for Sections 1, 8, 11, 12, 13, 22, 23, 27, 28, 33, 34, 35, 36, 37 and 38,which Sections shall survive the termination or expiration of this Agreement. 38. DEFINITIONS AND MISCELLANEOUS. This Agreement will be construed and interpreted in accordance with the following: a. Definitions, 13 290772v4 (i) "Seller" and "you" mean and include male or female, one or more than one person,individuals,partnerships or corporations, and their and each of their respective successors, successors in trust, devisees, heirs, personal representatives and assigns, according to the context. (ii) "Successors" means and includes persons or entities who succeed to (are -- - f given)rights and obligations under this document. (iii) "Successors in trust" means and includes persons or entities who succeed to (are given) rights and obligations under this document as a trustee under a trust. (iv) "Personal representatives" means and includes those persons designated by a court to handle the estate of a person who has died. (v) "Assigns" means and includes those persons or entities to whom rights and obligations under this Agreement are assigned(transferred). (vi) "Devisees" means and includes those persons or entities who inherit rights in the Property by way of an express statement in a will. (vii) "Heirs" means and includes those persons or entities who inherit rights in the Property by virtue of laws passed by the legislature(rather than by way of an express statement in a will). b. Joint and Several Liability. If there is more than one of"you," each of you will be jointly and severally liable under this Agreement. This means, among other things, that each of you will be separately liable for all of the promises in this Agreement. For example, each of you promises to pay the entire purchase price, not just part of it. C. Binding Effect. This Agreement is binding on and is for the benefit of the parties to this Agreement and their respective successors, successors in trust, devisees, heirs, personal representatives and assigns. d. Paragraph Headings. The underscored paragraph headings used in this Agreement are used only for convenience and as identification guides, and are not controlling; nor do they enlarge or restrict the meaning of the particular paragraph to which they apply. C. Severability. The invalidity, illegality or unenforceability of any provision of this Agreement will not affect the validity, legality or enforceability of any other provision of this Agreement. f_ Whole Agreement. Seller will not be liable to you and you will not be liable to Seller for any representations made concerning the Property, or regarding the terms of this Agreement, except those which are set forth in this Agreement. 14 2948772v4 g. Amendment. This Agreement may be amended or modified only by a written document signed by both you and Seller. h. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Hawaii. The sole and exclusive place for the determination of any lawsuit relating to the validity and enforceability of this Agreement and/or any instr unent relating to it shall be either an appropriate court of the State of Hawaii or that court of the United States which includes the State of Hawaii within its territorial jurisdiction. i. Time is of the Essence. Time is of the essence of this Agreement.This means that if you promised to do something by a specific time, you have broken this Agreement if you do not do it by that time. Doing it later is not acceptable. (The remainder of this page is intentionally left blank.) 15 2948772x4 BY SIGNING THIS AGREEMENT OF SAL ,you and Seller agree to all of the above. You and Seller signed this Agreement of Sale o,n C4� 202--L- HAWAII 422HAWAII BREWERY DEVELOPMENT CO., INC. a Hawaii corporation By: 4111� a6�C.4� Name: 1r Title: Fre6 t „Seller" ISE'ALOHA'LANI LLC a Hawaii limited liability company By: Name; Title: "You" 16 2948772v4 BY SIGNING THIS AGREEMENT OF SALE, you and Seller agree to all of the above. You and Seller signed this Agreement of Sale on .— — HAWAII BREWERY DEVELOPMENT CO., INC. a Hawaii corporation By: Name. Title: "Seiler" KE'ALOHA'LANI LLC r a Hawaii limited liability company By: Name: � �Cx Title:„ QULt r - "You" 16 x94SMva f STATE OF HAWAII ) ss. COUNTY OF HONOLULU /1" On this day of 2ti�, before me personally appeared LJQ,r-6v—,, to me personally known or satisfactorily proven, and who executed the foregoing instrument and acknowledged that helshelthey executed the same as his/her/their free act and deed, and if applicable in the capacity shown, having been duly authorized to execute such instrument in such capacity. WITNESS my hand and seal. R" (si:a • PA 'r �, ......... 9��''. Print Name: �Q. oxA fro Notary Public, State of Hawaii _ * 9b-31,4 * ~ My commission expires: `f' BARBARA T.PAULO `L� EXPIRATION:December 14,2022 ���rJllrl1111�►�y� ��� A�7trr���flrrUWAA NOTARY CERT1�1eA STAT£OF fiA �4 OTA 4r - DM 06%. r)d 1t14 G g J COA D" �rr�rriif��rtii►��� 134RBARA T. PAULO ExPrRATI['N:December 14,2022 17 x9as7nva } 1 CAUFORMIiA LLL-PURPOU ACKNOWULDOMENT CML CODE§ 1189 Ed6 notary public or other Officer COMPlating this certificate verifies only the idwttity of the individualwho signed the c�jrnent To which this u rtiflcate is attached,and not the mAhMnass,accuracy,or validity of that document. State of California ) County of L (1 Sej V GES } On C rn Before e, L C S T'ti 0 Date Here insert Name and Title of the Officer personally appeared arrre(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Ware subscribed to the within instrument and acknowledged to me that heJsheithey executed the same in his/herAheir authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAt_7Y OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. sH�ursokw+urz WITNESS my hand and official gest. kot-y Ar"'-Glllornk €ommiutan+37�! f1 "r C11".cXM-M"4,Tari Signature Si store t Notary Public Place Notary Seal Above oPnavAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Qescilptlon of Attached Dacumerrt s A L Title or Type of Document: C- E E Document -3 - G "� °L Number of Pages: Sign er Than Named Above: Capacity(ies) Claimed by Slgner(s) Signer's Name: Signer's Name: ❑Corporate Officer — 7ttie(s): ❑Corporate Offic — Title(s): L Partntsr — �irnrtocS ❑ C3�rtiprol © Partner — f- trn'sted ©GBr1AYal ❑individual El Attorney in Fact ❑ Individual J Attorney In Fact ❑Trustee ❑Guardian or G serva#or ❑Trustee C Guardian or Conservator Other: ❑ Other: Signer is Representing: Signer Representing: Agemp- 02014 Nahmal Notwy Association• wvwv.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) neM#5907 ti EXHIBIT "A" -FIRST:- Unit No. 9667-A of the Condominium Project known as "HAWAIIAN BREWERY CONDOMINIUM PROJECT", as established by Declaration of Condominium Property Regime dated September 15,2021, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No.T- 11602491, as amended, and as shown on Condominium Map No. 2510 and any amendments thereto. Together with appurtenant easements as follows: (A) Non-exclusive easements in the common elements designed for such purposes for ingress to, egress from, utility services for and support of said Unit; in the other common elements for use according to their respective purposes. (B) Exclusive easements to use other limited common elements appurtenant thereto designated for its exclusive use by the Declaration, as amended, but subject to any easements affecting the same. -SECOND:- An undivided 82.4596 percent (82.4596%) interest in all common elements of the Project and in the land on which said project is located as established for said Unit by the Declaration, or such other interest as hereinafter established for said Unit by any amendment of the Declaration, as tenant in common with all other owners and tenants thereof. The land upon which said Condominium Project HAWAIIAN BREWERY CONDOMINIUM PROTECT is located is described as follows: All of that certain parcel of land situate at Keaau, District of Puna, Island and County of Hawaii, State of Hawaii, described as follows: LOT 9677, area 6.505 acres, more or less, as shown on Map 559, Paled in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 1053 (amended) of W.H. Shipman, Limited Together with access to a public road over Lot A-31-A-3, as shown on Map 134, Lot 1092-K-1, as shown on Map 224, Lot 1092-U,as shown on Map 81, and Lot 1150-13-1,as shown on Map 457, as set forth by Land Court Order 142415, filed on June 25, 2001. 19 2948772x4 ,�y7 -Note:- Lot A-31-A-3 and Lot 9678 were consolidated and resubdivided into Lots 9721 and 9722 as shown on Map 592, as set forth by Land Court Order No. 162794. —Being land(o described in Transfer Certificate of Title No. 421,847 issued to HAWAII BREWERY DEVELOPMENT CO., INC.,a Hawaii corporation. BEING THE PREMISES ACQUIRED BY DEED GRANTOR : KE-HI LAND CORPORATION, a Hawaii corporation GRANTEE : HAWAII BREWERY DEVELOPMENT CO.,INC., a Hawaii corporation DATED : September 10, 1993 FILED : Land Court Document No. 2066824 Together with a non-exclusive easement for utility purposes and for ingress and egress over, across and under Easement 409, as granted by ROADWAY EASEMENT dated November 23, 2021, filed as Land Court Document No. T-116£2156; subject to the terms a provisions contained therein. Together also with a non-exclusive driveway easement affecting Lot 9721, as granted by DRIVEWAY ACCESS EASEMENT dated February___, 2022, filed as Land Court Document No. T-11741248, as shown on the map attached thereto as Exhibit "C"; subject to the terms and provisions contained therein. SUBJECT,HOWEVER, TO THE FOLLOWING: 1. Unrecorded GRANT OF EASEMENT by W. H. SHIPMAN,LTD. to HILO ELECTRIC LIGHT COMPANY, LIMITED, now known as HAWAII ELECTRIC LIGHT COMPANY, INC., dated August 27, 1970, as mentioned in instrument recorded in Liber 9167 at Page 2. (Not noted on Transfer Certificate(s)of Title referred to herein) 2. The terms and provisions contained in the following: INSTRUMENT ; PARTIAL. CANCELLATION AND SURRENDER, GRANT OF ACCESS AND UTILITY EASEMENT; AND AMENDMENT OF LEASE DATED May 20, 2002 FILED Land Court Document No. 2806411 20 2948772x4 r. 3. GRANT TO HAWAIIAN ELECTRIC LIGHT COMPANY, INC. and HAWAIIAN TELCOM, INC. DATED March 13, 2017 FILED Land Court Document No. T-9972332 GRANTING a right and easement for utility purposes referenced on map attached thereto Said Grant was amended by ixnstr=ent dated August 7, 2020, filed as Land Court Document No. T-11252272. -Note:- Said above Grant was also recorded as Document No_ A-63180723. 4. The terms and provisions contained in the following: INSTRUMENT : DECLARATION OF CONDOMINIUM PROPERTY REGIME FOR "HAWAIIAN BREWERY CONDOMINIUM PROJECT" DATED September 15, 2021 FILED Land Court Document No. T-11602091 MAP 2510 and any amendments thereto Said Declaration was amended by instrument dated November 23, 2021, filed as Land Court Document No. T-11662157. -Note:- Any recorded amendments to said Declaration affecting apartments other than the specific apartment described herein,are not shown. 5. The terms and provisions contained in the following: INSTRUMENT : BY-LAWS OF THE ASSOCIATION OF UNIT OWNERS DATED September 15,2021 FILED Land Court Document No. T-11602092 21 2sas772va Ny 6. The terms and provisions contained in the following: INSTRU N ENT : ROADWAY EASEMENT DATED :November 23, 2021 FILED : Land Court Document No. T-11662156 7. The terms and provisions contained in the following: INSTRUMENT : DRIVEWAY ACCESS EASEMENT DATED : February_, 2422 FILED : Land Court Document No. T-11741248 8. A non-exclusive Turn Around Easement in favor of Lot 9721, as granted by DRIVEWAY EASEMENT dated February __, 2422, filed as Land Court Document No. T-11741248,as referenced on the Exhibit "C" attached thereto. 9. Discrepancies, conflicts in boundary lines, shortage in area, encroachments or any other matters which a correct survey or archaeological study would disclose. END OF EXHIBIT"A' 22 2948772v4 MmAe SidneyFuke, Planning Consultant 100 Pauahi Street,Suite 212•Hilo, Hawaii 96720 •Planning•Variance•Zoning Telephone:(888)969-1522 Cell:(808)989.0540 •Subdivision•Land Use Permits AW"W E-mail:sidfuke@hawaiiantel.net +Environmental Reports April 7, 2022 Mr. ,tendo Kern,Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo, HI 95720 Dear Mr. Kern: Subject: Amendment Request—Ke'Aloha Lani, LLC(Formerly Hawaii Island Distilling,LLC) Ordinance No. 17 65(REZ 17-000218) Kea'au Puna HL TMK: 1-6-141: 002 This is in response to your staff's — Ms. Jessica Andrews—request for more information regarding the previously submitted application. Ms. Andrew's request is noted in italics first, followed by my response. The applicant is requesting to deferfire requirements (hydrant&fire flow) and road improvements until final subdivision approval, rather than prior to certificate of occupancy. Please provide more detailed justification for this request, given that the applicant seems to be asking for relief from fire code requirements and road improvements. o Applicable Requirement It is our understanding that the Department of Water Supply (DWS) requirements are governed by the zoning designation of a property and come into play only when a land is subdivided. As it is not involved in the building permit review/approval process,its requirements must be worked out directly with that office. As such, Conditions D (daily water usage calculation), E (fire flow and hydrant), and F (meter size and backflow preventer) are excerpted versions of the DWS' regulations(and not the Fire Code), which are predicated upon both the MG zoning and the subject site being subdivided. The Fire Department(FD),however, reviews and approves building permits, As such, the Firc Code comes into play then. The Code in certain instances have the same requirement as the DWS regulations. During the building permit process, the FD will apply its Code to determine whether a fire hydrant is needed within a certain distance with certain pressure capability,as well as other fire suppression requirements. You will note,however,that excerpted versions of the Fire Code are not listed as a condition of the ordinance. Mr.,endo Kern, Director April 7, 2022 Page 2 o Providintions To Address R uirements While there may be understandable reasons for inserting specific provisions of a rule or code as a condition of the ordinance, there are some drawbacks. For one, if the rule or code changes resulting in a conflict,it leaves one in a quandary as to which provision should be complied with. Invariably and technically,one would need to amend the condition. The other is that often time,there are alternatives or options to address a specific code requirement. For example, in lieu of a fire hydrant, it is not uncommon for the Fire Department to provide alternative ways to address fire suppression,such as sprinklers and construction material. Further, if exemptions are still sought,one could file an appeal with the Fire Board of Appeals (which is currently listed as "inactive!)or possibly the Board of Appeals. In that regard,when the adjoining property was rezoned to FA-2a, (See Exhibit B, Ord. No. 120),aside from payment of the water commitment fee (Condition Q,there was no further excerpts of the DWS' rules. There were also no specific road standard requirements. Had there been,the then landowner would have had to amend the rezoning ordinance instead of securing a variance from the roadway requirements. And the variance was approved. (See Exhibit G). If the specific provisions are noted as conditions(as in this situation), it limits the ability for one to find options—such as noted above—to that requirement short of an amendment to the Ordinance. The request is to enable one to seek options. In situations like this,it might be best to merely let the zoning condition requiring compliance with all applicable rules and regulations suffice. o Acceptable Safeguards As currently worded,the improvements would be required prior to issuance of vcaupruncy permit, and an occupancy permit is tied in to a building,permit. Hence,whether a permit is for a storage shed to accommodate the photovoltaic system or a bottling plant,all of the stipulated improvements would have to be made. The question then is whether the extensive improvements are needed or justified for a storge shed? More than likely not. Mr. Zendo Kern,Director April 7, 2022 Page 3 The related question is-absent such a requirement,are there adequate safeguards?The answer is"yes",inasmuch as the Fire Department is part of the review/approval process for a building permit, as well as the Engineering Division of the Department of Public Works. o Not Avoidance But Deferral Finally,the applicant is not requesting the avoidance of having to make the stated water and road improvements. Instead, it is requesting that they be deferred to the subdivision review/approval process and not the occupancy permit process. In the meantime,as noted above,there are sufficient safeguards. The review and approval process being sought is one that is similar to the building permit for which a Special Permit was issued, as in the case with the adjoining properties. • The application states that the landowner is Ke'Aloha Lan!, LLC, but RPT lists the owner as Hawaii Brewery Dev Co Inc. Can you provide documentation to prove the change in ownership? Please find attached a recorded copy of the Agreement of Sale,with the value portion redacted,as well as a separate letter of authorization from the former landowner to cover all bases. • Condition B of Ord 17-65 required Final PA and completion of Construction by Sept. 29, 2022. Please address whether the applicant will seek a time extension? Please be informed that the subject ordinance received a time extension to September 29, 2027. A copy of this letter,dated May 12, 2020,is attached for your information. As such, it has not intention to seek an extension in conjunction with this request. • Please provide a summary of the status of all other conditions of Ord 17-65. Since approval of the rezoning, the former landowner constructed a photovoltaic field on the subject property. That field is already operational and services the adjoining water bottling facility. The new owner intends to develop a bottling/beverage facility consistent with the zoning within the allotted time of September 27,2027. As it has access to a potable well, the proposed beverage facility will not utilize County water as stipulated by Condition C. Ironically, that is one of the reasons it believes that the DWS rules should not apply to a specific use but to the subdivision. The other conditions (D, E, F)relate to the water requirements,which are the matter of this application. Mr. Zendo Kern, Director April 7, 2022 Page 4 The roadway requirements of Condition 1,which is also the subject of this application—is being requested to be deferred to the subdivision process. The other conditions relate to construction activities (D—driveway connection; J— development generated runoff, K—earthwork/grading permit; L—fugitive dust and runoff sedimentation; M----food service; M—wastewater; and R— inadvertent archaeological finds)and thus not applicable at this time. Please note that inasmuch as residential uses are not allowed in the Industrial zone,Condition T is not applicable. Finally,please note that a report addressing Conditions U and P was prepared and submitted to your office in a letter, dated January 6, 2022. A copy is also attached. I trust that the foregoing, with enclosures,adequately address your staff's comments. Further,on behalf of the applicant,we have no objection in extending the application acceptance reviewing requirement by an additional 7 days due to the need to respond to your questions. Thank you very much! S' cerely, SIDNEY M. FUKE Planning Consultant Enclosures Copy —Mr. Ryan Emmons, Ke'Aloha Lani,LLC wf encl via email Mr. Marcus Bender, Hawai'i Brewery Development Co., Inc. wl encl via email aN-[V OF yy• Harry Kim Michael Yee Mayor 1]irector Roy Take moto April Surprenant Managing Director Acting Deputy Director West Hawaii Office East Hawaii office 74-5044 Ane Keohokalole Hwy101 Pauahi Street,Suite 3 Kailua-Kona, Hawaii 96740 County of Hawai`i Hilo,Hawaii 96720 Phone(808)323-4770 Phone(808)961-8288 Fax[808)327-3563 PLANNING DEPARTMENT Fax(848)961-8742 May 12, 2020 Mr. Sidney Fuke, Planning Consultant 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: Change of Zone Ordinance No. 17 65 (REZ 17-000218) Applicant: Hawaii Island Distilling, LLC Request: A-20a to MG-20 Subject: Administrative Time Extension for Condition B Tax Map Key: 1-6-141:002 This is to acknowledge receipt of your letter dated April 30, 2020, requesting an administrative time extension to comply with Condition B (complete construction) of Change of Zone Ordinance No. 17 65. Condition V allows for an administrative time extension for a period not to exceed the period originally granted. Based on the reasons within your letter, we will grant a 5-year time extension to September 29,2027 to comply with Condition B. Please be informed, however, should you need an additional extension of time to comply with Condition B, your request and reasons, along with 20 copies of that request shall be forwarded to the Planning Commission with a $250 filing fee. A public hearing will be held by the Planning Commission, who will forward their recommendation to the County Council. If you have any questions, please feel free to contact Jeff Darrow at 961-8158. Sincerely, r4t ICH EL YEE Planning Director JWD:mads P::,publiclwpwin60'JefELetterslTitne ExtlLFuke-AdminTER-CondB-REZ17-28 Ldoc www_hipiannirgdent.cotn Hawaii Catinty if an Equal Opportunity Providee and Employer I nnin n hawaiieaunt . or SidneyFuke, Planning Consultant 100 Pauahi Street, Suite 212•Hilo,Hawaii 96720 ■Planning■Variance■Zoning Tetephone:(808)989-1522 Cell:(808)989-0640 •subdivision•tared Use Permits E-mail:sidfuke®hawaiiantel.net •Environmental Reports January 6, 222 Mr. tendo Kern, Director Planning Department COUNTY OF HAWAI I 101 Pauahi Street Hilo, HI 96720 Dear Mr. Kern: Subject: Conditions O and P, Rezoning Ordinance No. 17 65 Hawaii Island Distilling, LLC Kea'su, Puna,HI TNIK: 1-6-141: 002 Please find attached a letter report, dated January 5, 2022, from AECOS, Inc. to the landowner that specifically addresses Conditions a and P relating to the protection of any potential Hawaiian Hoary hats and Hawaiian hawks within the subject site. The report recommended, subject to some caveats,that: a. Hawaiian Hoary Bat: To avoid potential adverse impacts, woody vegetation taller than 15 feet should be avoided or minimized between June 1 and September 15. b. Hawaiian Hawk: Likewise,to avoid potential adverse impacts, clearing of tall trees between March and September should be avoided. Unless informed otherwise, any site clearing of the property will adhere to the recommended mitigations outlined in that report. Thank you very much? irtcerely, SIDNEY M. FUKE Planning Consultant Enclosure —LCner Report, dated January 3, 2422 from AECOS, Inc- Copy—Mr. Marcus Sender, Hawai'i Island Distilling, LLC wl enclosure via email AECOS, Inc. 45-939 Kamehameha Highway, Suite 104+Kaneohe HI 96744 +Telephone: (848)234-7770♦ *Email: aecosC aecos.com♦ January 5, 2022 Mr.Marcus Bender Re.9677x1—5.564 acres Hawaiian Hawk and Hawaiian hoary bat PC conditions. To whom it may concern. I was retained by Marcus Bender to review two standard conditions included by the Hawaii Planning,Commission pertaining to the property in question.These two conditions are 0,and P of Ordinance No. 17-65.I farther visited the site on December 28. ?021.to determine if the current habitat on the site that has not been mowed or otherwise altered is suitable habitat that potentially could be utilized by cither-Hawaiian Hawk(Bolen solitarius)or Hawaiian hoar•hats[L[rsiulzt.r GineWus sef)Inr ). Hawaiian hoary bat: The climax secondary-vegetation present on the site could potentially be used by a roosting hat,they have been recorded in similar habitat by this biologist on the leeward side of the Island.The principal impact that the construction may pose to bats is during the clearing and grabbing phases as vegetation is removed.The removal of vegetation within the prc?iect site may temporarily displace individual bats using the vegetation for roosting. As bats USC multiple roosts within their home territories,the potential disturbance resulting from the removal of the vegetation is likely to be n}inimal. During the puppin8 season,females carrying their pups may be less able to rapidly vacate a roast site as Elie vegetation is cleared.Additionally, adult female bats sometimes leave their pups in the most tree while they forage.Very small pups may he unable to flee a tree that is being felled, ■ Potential adverse impacts from such disturbance can be avoided or minimized by not clearing woody vegetation taller than 4.6 m (15 ft) between June I and September 15, the period in which bats may have pups. Basically, what this comes down to is that if the clearing is not conducted between those dates there is no further issue regarding this listed species and any modification to the property. Hawaiian Hawk: Hawaiian Hawks were formerly listed as an endangered species by the federal government but was delisted cn January 2,2020. It continues to be listed as an endungered species by the State of Hawaii. Hawks are relatitiely common in the lowlands of the Island of Hawaii —The unaltered habitat on the site is not in tray opinion particularly- suitable for nesting Hawks.The vegetation is frankly too thick.with no arnergent large trees suitable as nest substrates.Condition P states that either nesting Hawk surveys be conducted daring the nesting season whicl basically would be in snid to late February, or clearing be avoided between Ibfarch and September.This is a standard condition on Elie leeward side of the Island. Potentint nclvers:e impactn to potentially nesting t-ta«aiian Hawk-s.' can he avoided l+y not clearing tall trees bCLWV'Cn Ml nrcl7 And Sap;vrl,tycr—Vt'by thu%vk nuati u dwri,iS the o rly pnrt aF the nesting season.What this comes down to is that if the clearing is not conducted between those dates there is no further issue regarding this State listed species and any modification to the property. If you have any questions,please feel free to reach out to me at da%,-idr00�ru)hawaii.rr.com,or on my cell phone 1808)937-0124. V Sincerely _ t � Re8snald lE.Day.id Senior Biologist A ECQS.lnc� Harry Kim `•r'O "•� �?,`� Michael Yee Mayor ��d v Director Roy Takemoto •f April Surprenant Managing Director e�;.�� Acting Deputy Director West Hawaii Office East Hawaii Office 74-5044 Ane Keohokalole Hwy101 Pauahi Street,Suite 3 Kailua-Kona,Hawaii 96740 County of Hawaii Hilo,Hawaii 96720 Phone(808)323-4770 Phone(808)961-8288 Fax(808)327-3563 PLANNING DEPARTMENT Fax(808)961-8742 May 12, 2020 Mr. Sidney Fuke, Planning Consultant 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: Change of Zone Ordinance No. 17 65 (REZ 17-000218) Applicant: Hawaii Island Distilling,LLC Request: A-20a to MG-20 Subject: Administrative Time Extension for Condition B Tax Map Key: 1-6-141:002 This is to acknowledge receipt of your letter dated April 30, 2020, requesting an administrative time extension to comply with Condition B (complete construction) of Change of Zone Ordinance No. 17 65. Condition V allows for an administrative time extension for a period not to exceed the period originally granted. Based on the reasons within your letter, we will grant a 5-year time extension to September 29,2027 to comply with Condition B. Please be informed, however, should you need an additional extension of time to comply with Condition B, your request and reasons, along with 20 copies of that request shall be forwarded to the Planning Commission with a $250 filing fee. A public hearing will be held by the Planning Commission, who will forward their recommendation to the County Council. If you have any questions,please feel free to contact Jeff Darrow at 961-8158. Sincerely, r47(, IC EL YEE Planning Director Planning Dep.. JWD:mads Exhibit 2 P:\public\wpwin60\Jeft\Letters\Time Ext\LFuke-AdminTER-CondB-REZ17-28Ldoc www.hinlanninedeot.com Hawai'i County is an Equal Opportunity Provider and Employer planningAhawaiicountv.2ov MAY 12 2020 MICHAEL H. SAKAI Attorney at Law 902 City Financial Tower 201 Merchant Street Honolulu, Hawaii 96813-2977 Phone(808)531-4171,Ext.31 Facsimile(808)521-1369 Email mhslaw@yahoo.com November 24,2021 Planning Department County of Hawaii 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Re: Notice of Registration of Condominium Property Regime Tax Map Key: (3) 1-6-141-002 Owner: Hawaii Brewery Condominium Project ("Owner") The undersigned represent the Owner of the fee simple interest in the subject property. In accordance with the rules of the Real Estate Commission, State of Hawaii, the following documents are being provided for your information: 1. Application and Questionnaire. 2. Draft Developer's Public Report. 3. Condominium Map. Please note that the filing was or is being submitted to the Real Estate Commission. As of this date, the Public Report has not been issued. Please call me if you require any further information. Very truly yours, '� E� - Michael H. Sakai Planning Reps. Exhibit _ _ 3 CONDOMINIUM MAP CHECKLIST(Chapter 5146) PROJECT NAME: Hawaiian Brewery Condominium Project REGISTRATION NO. (For Office Use Only) O RECORDED WITH THE DECLARATION OF CONDOMINIUM PROPERTY REGIME Page 1 1. Site plan depicting location,layout of all buildings and projects included or anticipated to be included in the condominium property regime,and depicting access for the units to a public road(include name of the public road)or to a common element leading to a public road NIA 2. Floor plan of all buildings NIA 3. Elevations of all buildings NIA 4. Layout,boundaries,unit numbers and dimensions of the units NIA 5. Location of the units NIA 6. To the extent there is parking,a parking plan showing location,layout and stall numbers of all packing stalls included in the condominium property regime 1 7. Layout,location and numbers or other identifying information of the limited common elements,if any. 1 8. Description of any land area that constitutes a limited common element Description of any land area that constitutes a limited common element is described in the Declaration at Page(s)4 NIA 9. Any additional information that is not inconsistent with Chapter 5148,HRS. Yes 10. Certificate of architect,engineer or surveyor attached to the map. This material can be made available for individuals with special needs.Please contact the Senior Condominium Specialist at 586-2643 to submit your request. CM: 2510 Filed: 10-7-21 No. of Sheets: 1 ® Po soio'E SZL�7/Q1f.97tt(/. �kHILD R9 .HAWAII 98]20.02ib TELEPHONE(808)0359106 F f5'0)E51-8105 CERTIFICATE OF SURVEYOR Hawaiian Brewery Condominium Project STATE OF HAWAII } )ss. COUNTY OF HAWAII ) The undersigned,being a licensed professional land surveyor with the State of Hawaii and bearing Certificate Number 5985,hereby certifies to the best of his knowledge that Condominium Map dated February 4,2021 for the project"Hawaiian Brewery Condominium Project"situate at Old Volcano Road,Kemu,Hawaii 96749 and identified by Tax Map Key:(3) 1-6-141:002,accurately reflects the location and dimensions of the spatial units,their respective limited common elements ad common elements of the Project,if any.Floor plans mid elevation of the structures comprising and/or contained within the Project are subject to a separate certification by a registered Hawaii architect or engineer,if any. DATED: Hilo,Hawaii 6epf. iii�.p2( ERT T.SHIRAI Licensed Professional Land Surveyor LS-5985 License expires 04/30122 SUBSCRIBED and sworn��tto��before�m,�e this t6 day of C� +AW 2= 7I e1 I 1?11wass', 11�"I/��/'�y��y� ' NOTARY Name: V N3JIFW.J = PUBLIC My comrnissr n expires: 2 2025 c—,N.� oo-z�r Notary Public,State of Haw DocwnentDate: D9IlllX:Li °°°• OF HR �,``` Number of Pages: l F f Document Description:Certificate of Surveyor ---——----————--- -------------___ __—___------------- I {Map�)E 1�ge't"•/ I� S _ X ./ UNIT 9677-A (5.364 ACRES) n&' : (LIMITED COMMON ELEMENT 1) / LOT 9677 IS 6.505 ACRES ws I UNIT 9677-B (1.141ACRES) II8 4tP (LIMITED COMMON I S U ELEMENT 2) I� g aw,��� 8 ea��Me",aoe Nim era I k as 3s2) o Lee A-m-A-a {Marr tea) v e I 9r22—A (Hna 64]) L(M»Ba3) OAAA 9 2 PLAN SHOWING T•>•'i� PROJECT PLOT PLAN SPECIAL ATTENTION HAWAIIAN BREWERY CONDOMINIUM PROJECTLOT 677 * � THIS IS A CONDOMINIUM MAP,NOT A SUBDIVISION OF LAND COURT APPLICATION 8053,AS SHOWN ON MAP 559 �ff tlt✓' The heavy dashed linea which appear on Ne Project Flo,s rve to ddinlate me boundarle.of B,e llmitea common dement,ond area appurtenant to KEAAU,PUNA,ISLAND OF HAWAII,HAWAII , mY �6y me L.' pective dominium partment and DO NOT represent legally parMea� subres divided Iota other dashedmes Iwhich may be shown Hereon represent Survey and Plan by Islentl SMfVe Inc. ants,radial Itnss antl/or topographic features and era designated y, 4Y wish eneir reep.ative pumases. P.O.Box 4215,Hlio,Hawaij 96720 December 22,2020 eaemr r.sHMµpts Revised February 4,2021 state or hEwon em,roe.ts_sses ua.a» .pn»Apre yp,zozz Tox Map 0),(3)1-6-141:002 Si-.: 15'x 21"=2.19 Sq•Ft. 7 L STATE OF HAWAII OFFICE OF THE ASSISTANT REGISTRAR RECORDED ,W4October 7, 20218:01 AM '1,.:;,- 6 Doc No(s)T- 11602091 °I� ;,,:1''�ti. '•',;I on Cert(s)421847 Issuance of Cert(s) I /s/LESLIE T KOBATA Pkg 11879377 LAO ASSISTANT REGISTRAR I I I I I I RETURN BY: Mad() Pick-Up () PREMIER TITLE Michael H.Sakai, Esq. 705 South King Street,Suite 208-2 Order No. 22 v Honolulu, Hawaii 96813 T�;s ,iariimuntmotalns pages L TMK:(3) 1-6-141-002 CM Exhibit A: Property Description Exhibit B: Unit 9677-B Solar Farm DECLARATION OF CONDOMINIUM PROPERTY REGIME Hawaiian Brewery Condominium Proiect KNOW ALL MEN BY THESE PRESENTS: 1.0 SUBMISSION OF CONDOMINIUM PROPERTY REGIME. That HAWAII BREWERY DEVELOPMENT CO., INC., a Hawaii corporation, whose address is 1188 Bishop Street, Suite 811, Honolulu, Hawaii 96813, hereinafter collectively called "Declarant" or "Developer", does hereby submit the land described hereafter to the provisions of Chapter 5148, Hawaii Revised Statutes, as amended, known as the Condominium Property Act with respect to said land and any existing improvements thereon to be known as the "Hawaiian Brewery Condominium Project" condominium project, and in 1 furtherance thereof hereby makes the following declarations as to division, covenant, restrictions, limitations, conditions and uses to which the land and improvements and appurtenances to be constructed and existing thereon may be put, and as a portion thereof may be existing, hereby specifies that said Declaration shall constitute covenants to run with the land and shall be binding on said Declarant, its successors and assigns. 2.0 DESCRIPTION OF PROPERTY. The property consists of that certain fee simple property located at Old Volcano Road, Keaau, Hawaii 96749, containing approximately 6.505 acres, more or less of land area, and is more particularly described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property"). 3.0 DESCRIPTION OF PROJECT. The Project consists of two (2) spatial units, each being contained within its own spatial coordinates or area as further described herein (each of the spatial units may be replaced with a structure in accordance with the terms of this Declaration). The floor plans, elevations, dimensions and location of the units being further described in Condominium Map No. �5 1 o filed concurrently herewith in the Office of the Assistant Registrar of the Land Court, State of Hawaii (the "Recording Office"), (the "Condominium Map"). 4.0 DIVISION OF PROJECT. 4.1 PROJECT. The Project is hereby divided into the following two (2) freehold estates: a. Unit 9677-A. Unit 9677-A consists of one freehold estate consisting of a spatial unit which is a spatial area which has been designated for separate ownership, the horizontal boundaries (footprint) of which is the same as the limited common element boundary of Unit 9677-A as described and located in the Condominium Map. The height and/or vertical limit of the unit is the horizontal plane that is seventy-five (75) feet above and below the finished grade of the ground area enclosed by the horizontal boundaries of the spatial unit. The net area of this unit is approximately 5.364 acres (which is the same as the limited common element land area appurtenant to this unit without any reduction of the area of any applicable setbacks and any easement that the limited common element is subject to). This spatial unit may be replaced by a physical structure as further described in Section 17.0 of this Declaration. The unit includes the appurtenant limited common element land area described in Section 4.4.a below. 2 b. Unit 9677-B. Unit 9677-B consists of one freehold estate consisting of a spatial unit which is a spatial area which has been designated for separate ownership, the horizontal boundaries (footprint) of which is the same as the limited common element boundary of Unit 9677-B as described and located in the Condominium Map. The height and/or vertical limit of the unit is the horizontal plane that is seventy-five (75) feet above and below the finished grade of the ground area enclosed by the horizontal boundaries of the spatial unit. The net area of this unit is approximately 1.141 acres (which is the same as the limited common element land area appurtenant to this unit without any deduction of the area of any applicable setbacks and any easement that the limited common element is subject to). This spatial unit may be replaced by a physical structure (which as further described in Section 17.0 of this Declaration. This unit does not have any structures however there is presently a solar farm with a chain link fence located on the unit. The unit includes the appurtenant limited common element land area described in Section 4.4.a below. 4.2 Boundary. The boundary of any spatial unit is the same as the boundary of the limited common element land area of the unit, extending 75 feet above and below the surface/ground area. The boundary of a unit with an improvement such as a structure will include its entire structure and the limited common element land area appurtenant to such unit. The boundary of each unit that is subsequently improved with a structure is the exterior finished surfaces of the units' perimeter frame, walls, roofs, foundations, lanais, railings, windows and frames, doors, beams, and post, if any. 4.3 COMMON ELEMENTS. All remaining portions of the Project are hereby designated as and herein called the "common elements", including specifically but not limited to: a. Land. The land described herein in Exhibit "A" in fee simple. b. Utilities. Each Unit is or will be serviced by its own water and electric meters. Any utility lines that only service a single unit shall be deemed to be owned by the unit that it services. Any lines that are shared are a part of the common elements and each unit shall be equally responsible for its maintenance, repair, upkeep and replacement. C. Easements. The common easements for drainage and all common or shared installations for underground and/or above ground utilities, including electricity, 3 water, telephone, and cable television, which run upon, over or under the limited common elements of a unit or common element driveway or other easements, if any. d. Other Common Elements. Any and all other structures, improvements, apparatus and installation of common use, and all other parts of the Project necessary or convenient to the existence, maintenance and safety of the Project, or normally in common use. The expansion, enlargement or any change to any access or utility easements that presently services the Project which would cause an increase in expenses or change the nature of such easement shall require the consent and approval of 100%of the common interest and unit owners. 4.4 LIMITED COMMON ELEMENTS. Certain parts of the common elements, herein called the "limited common elements", are hereby designated and set aside for the use of certain units, and such units shall have appurtenant thereto exclusive easements for the use of such limited common elements as follows: a. Yard Areas. Each unit has an appurtenant limited common element land area or yard. The limited common element yard areas are shown on the Condominium Map and described below. Each of the limited common element land areas are subject to the utility easements, access and road easements shown in the Condominium Map and/or described in this Declaration, if any. The Declarant has reserved the right to change the location of the easements which would be reflected in an amendment to the Condominium Map. Each unit owner is responsible for maintaining its own yard and all improvements located within its limited common element land area, unless such improvement is a common element or an easement that is shared and utilized by all units such as the driveway, or a utility line that belongs to and is the responsibility of another unit owner. Any shared easement areas will be maintained equally by each unit that it services. The yard areas are subject to utility and other easements as described in this Declaration and/or in the Condominium Map and an owner will not be permitted to alter any improvements placed in such area by the Declarant or the Association. Each Unit and its appurtenant limited common land area are subject to the easements described in Section 6.0. (1) Unit 9677-A. The land area surrounding and under Unit 9677-A is a limited common element of the Unit and is for the exclusive use of the Unit and consists of approximately 5.364 acres, as shown on the Condominium Map; subject, however, to an easement for all electrical and mechanical lines and other related improvements (collectively the "Solar System") which serves the Solar Farm on Unit 4 9677-B and provides transmission of electrical power to an adjoining property (presently Lot 9721) and which are in existence as of the date this Declaration is filed in the Recording Office. The Solar Farm is further described in Exhibit "B"; provided that it is only intended to show the general layout of such system and shall not be deemed to be any representation or warranty as to the actual location or configuration of the Solar Farm. Such easement includes the right of the owner of Unit 9677-B to maintain, repair, service and replacement all or any portion of the Solar System. This easement shall automatically terminate and be of no further effect upon the Solar Farm being removed or abandoned by the unit owner thereof. (2) Unit 9677-13. The land area surrounding and under Unit 9677-B is a limited common element of the Unit 9677 and is for the exclusive use of the Unit and consists of approximately 1.141 acres, as shown on the Condominium Map. There are no structures on Unit 9677-8, however there is a Solar Farm located on it as further described in Exhibit "B" attached hereto and incorporated herein by this reference. b. Mailboxes. The mailbox assigned to a unit shall be limited to the use of such unit. Provided that postal delivery service is available to the Project, each unit shall at all times have at least one mailbox appurtenant to it. The Declarant has the right to determine the location of the mailboxes, numbering and assignment scheme for the mailboxes unless such responsibility is delegated to the unit owners by the Declarant. An easement shall exist for the location of each mailbox if not located entirely within the limited common element appurtenant to the Unit. C. Parking. Each unit shall provide its own parking on or within its limited common element land area which may not interfere with the use of any access easement. d. Other Limited Common Elements. Any fences, walls or utility systems or lines which are located within the limited common land area and which services or benefits only one Unit shall be deemed a limited common element of such Unit and such Unit owner(s) shall be solely responsible for its maintenance, repair and replacement. Any other common elements of the Project which are rationally related to less than all of the units and whose use and benefit is also limited to just that single unit shall be deemed a limited common element of such unit. 5.0 COMMON INTEREST. Each unit shall have appurtenant thereto an undivided interest in all the common elements of the Project, herein called "common interest", 5 and the same proportionate share in the common profits and expenses of the Project and for all other purposes, including voting. The common interest for the units is as follows: Unit 9677-A is 82.4596% and for Unit 9677-B is 17.5404% with some rounding so that the total common interest of all units is 100%. The common interest was determined by using the limited common element land area of the unit as the numerator and the total land area of the Project as the denominator. 6.0 EASEMENTS. In addition to any easements designated in the limited common elements, each unit shall have and be subject to and have appurtenant thereto the following easements: a. Access and Utilities. Non-exclusive easements in the common elements and limited common elements designated for such purposes as ingress to, egress from, utility services for, and support and maintenance and repair of each Unit and in the other common elements for use according to their respective purposes. If any part of the common elements, limited common elements or unit encroaches upon any unit or limited common element or common element, a valid easement for such encroachment and the maintenance thereof so long as it continues shall and does exist; provided that this provision shall not be applicable to the construction of a structure, other improvements or the installation of a fence or other improvement by a unit owner subsequent to the time this Declaration was recorded at the Recording Office. In the event of minor shifting or settling of any common element improvement, minor encroachments of any parts of the common elements due to such construction, shifting and maintenance thereof shall exist. b. Association Easement. The Association of Unit Owners (hereinafter "Association") shall have the right to be exercised by its Board of Directors to enter upon any limited common element from time to time during reasonable hours as may be necessary for the operation of the Project, including the maintenance and repair of any common utility components, and to enter into a unit for making emergency repairs therein necessary to prevent damage to the common elements, limited common elements, or to the unit or another unit or units. C. Utility Lines. Each unit owner shall have an easement in common with the owner of the other unit to use all pipes, wires, ducts, cables, conduits, poles, public utility lines and other common elements located in any other units limited common element that serves such unit owner's unit. The repair and replacement of any such lines is the responsibility of the owner of the unit that is serviced by such lines; unless 6 damage is caused by another unit owner in which the unit owner causing such damage shall be responsible for its repair. Unit 9677-A is subject to the easement in favor of Unit 9677-B for the Solar System as described in Section 4.4.a(1). d. Roadway Access. No Unit owner may install or maintain any fence, wall or landscaping that would impair, restrict or interfere with access over and across any access easements, drives or roadways. e. Declarant Easements. The Declarant reserves the right to grant, convey, amend, establish and create any and all utility easements that may be required for the development and construction of any additional improvements in the Project or as may be necessary for the betterment of the Project and the units or as may be required in connection with the construction of any improvements or structures for a unit owned by the Declarant. This reserved right includes the installation, repair, maintenance and replacement of the applicable utility lines and other mechanical or other improvements and installations. The easement(s) may be located within a unit's limited common element yard area (both above and below the surface of the ground); provided that such new and additional easement(s) shall not interfere with the use and enjoyment of any existing structure or improvement. By way of example but not limitation, the Declarant could establish an easement to run power or other utility lines over and across the limited common element yard area of a unit and to connect such lines to any power pole located within the unit's yard area if the same are necessary to provide power to a unit owned by the Declarant. f. Solar Easement. There shall be a solar easement over and across all of the units in the Project and their respective Yard Areas for the purpose of assuring adequate access to direct sunlight for the solar energy production for the Solar Farm (the "Solar Easement"). This Solar Easement shall apply to all physical improvements and structures and all landscaping located on or within a Unit's Yard Area. No improvement, structure, trees, shrubbery or other landscaping shall be maintained on or within any Yard Area that would interfere with the access to direct sunlight for the Solar Farm. This easement shall automatically terminate and be of no further effect upon the Solar Farm being removed or abandoned by the unit owner thereof. 7.0 ALTERATION AND TRANSFER OF INTERESTS. Except as herein specified, the common interest and easements appurtenant to each unit shall have a permanent character and shall not be altered without the consent of all of the unit owners affected, expressed in an amendment to this Declaration and duly filed. The common interest and easements shall not be separated from the unit to which they appertain and shall be deemed to be conveyed, leased or encumbered with such unit even though such interest or easements are not expressly mentioned or described in the conveyance or other instrument. The terms of this section are subject to the Declarant's reserved rights. 7.1 SUBDIVISION OF A UNIT. Notwithstanding the terms of Section 7.0, a unit owner may subdivide his unit whereby his unit is divided into two or more units; provided that that the aggregate total common interest of any unit that is subdivided shall be equal to the common interest of the unit prior to its subdivision. The unit owner subdividing a unit shall file an amendment to this Declaration and the Condominium Map to reflect such subdivision. 8.0 USE. The units shall be occupied and used as general industrial ("MF-20") by the respective owners thereof, their tenants, and guest, and such other uses permitted by applicable County Ordinances, subject to such limitation as may be contained herein, the Bylaws and any Building Rules which may be adopted from time to time governing the use of the units. Each unit owner may use the common elements of the Project in accordance with the purpose for which they were intended, subject however to the exclusive use of limited common elements. 8.1 EXCEPTIONS FOR PERSONS WITH DISABILITIES. Each Unit is solely responsible for compliance with any applicable disability laws, rules and regulations. 9.0 ADMINISTRATION OF PROJECT; ASSOCIATION OF UNIT OWNERS. Administration of the Project shall be vested in its Association consisting of all owners of units in the Project in accordance with the Bylaws of the Association filed concurrently with this Declaration. The owners of any unit upon acquiring title thereto shall automatically become a member of the Association and shall remain a member thereof until such time as its ownership ceases for any reason at which time his membership in the Association shall automatically cease. Operation and use of the Project and the maintenance, repair, replacement and restoration of the common elements and any additions and alterations thereto shall be in accordance with the provisions of the Condominium Property Act, this Declaration and the Bylaws. 10.0 MANAGING AGENT AND SERVICE OF PROCESS. Operation of the Project shall be conducted by the owners provided that the Board may appoint a managing agent or fiscal agent in accordance with the Bylaws. The Declarant shall be authorized to receive 8 service of legal process in all cases provided in said Condominium Property Act until all units are sold and thereafter, the successor shall be appointed by the Board of Directors in which event such successor or any member of the Board of Directors, residing in the County of Hawaii, may be served with such process of service. 11.0 COMMON EXPENSES. The common expenses for the Project shall be determined in the following manner: Expenses determined for the group with respect to the common elements contained in the Project and in any units, are common expenses and shall be allocated based on a unit's percentage common interest. Each of the unit owners shall maintain their own respective unit (structure and other improvements) including the finished surfaces of such units and their respective limited common land areas. Individual lines to a unit for any utility service including the installation, repair, and replacement of such line shall be the responsibility of each respective unit. Any utilities that are provided on a common meter basis and any other expenses that are taken on a group basis are to be prorated in accordance with their common interest. The cost of utilities that are metered or submetered on a per Unit basis and the cost of maintaining such utilities shall be paid by the respective unit owner thereof. The Board shall from time to time assess the common expenses against all of the units according to their respective obligations as heretofore provided and the unpaid amount of such assessments against any unit shall constitute a lien against such unit, which may be foreclosed by the Board or Managing Agent as provided by said Condominium Property Act, provided that 30 days' prior written notice of the Association's intention to foreclose shall be mailed, postage prepaid, to the unit owner and all other persons having any interest in such Unit as shown in the Association's record of ownership. Suit to recover any money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the same. 11.1 EXPENSES DUE TO NEGLIGENCE. Notwithstanding the foregoing, all charges costs and expenses incurred by the Association or any other unit owenr which are necessitated by the negligence, misuse or neglect of the unit owner or occupant shall be charged to such unit owner or to such unit owner renting or leasing or otherwise allowing such occupant,as a special assessment secured by the lien of Section 11.0. 11.2 BUILDING AND ZONING VIOLATIONS. If any unit is cited or otherwise notified by the County of Hawaii, the State of Hawaii, or any other governmental agency or regulatory body for violating a zoning ordinance, building code, or other regulation (a 9 "violation"), the owner of the unit in violation shall remedy said violation within thirty (30) days of receiving said citation or notice, at the sole cost and expense of said unit owner, including payment of any and all applicable fees, fines, and penalties. Failure by the owner of a unit to remedy, cure or bring into compliance any specific violation received or as established by this Declaration shall constitute grounds for legal action against the owner of the unit in violation for declaratory relief, an injunction, and money damages, including attorney's fees and costs. The unit owner in violation shall further indemnify and hold the other unit owner harmless from all claims, fines, damages and/or actions that arise from or relate to the violation of the violating unit owner. 12.0 COMPLIANCE WITH DECLARATION, BYLAWS AND DECISIONS. All unit owners, their tenants, families, employees, servants and guests, and any other persons who may in any manner use the Project or any part thereof, shall be bound by and comply strictly with the provisions of this Declaration, the Bylaws of the Association and any building rules and all agreements, decisions and determinations of the Association, lawfully made or amended from time to time, and failure to comply with any of the same shall be grounds for an action to recover monies due, for damages or injunctive relief, or any other remedies available in law or in equity, maintainable by the Board or Managing Agent on behalf of the Association or, in a proper case, by any aggrieved unit owner. 13.0 INSURANCE. Each owner shall at all times keep the unit (and structure and other structures, if any) and all improvements, including on or within the limited common element land area of the unit insured against loss or damage by fire and flood with extended coverage including demolition and debris removal with an insurance company authorized to do business in Hawaii, in an amount as near as practicable to the full replacement cost therefor without deduction for depreciation in the name of such unit owners and its mortgagees. The insurance shall be in an amount not less than the full insurable replacement cost (less deductibles) with coverage for increased cost of construction due to building code requirements. The insurance policy shall name the Association as an additional insured for liability coverage and the payee for all other coverages shall be the owner of such unit or any lender that the owner may designate. In every case of such loss or damage all insurance proceeds shall be used with all reasonable speed by the owner, for rebuilding, repairing or otherwise reinstating the unit in a good and substantial manner according to the original plan and elevation thereof or such modified plans conforming to laws and ordinances then in effect or in such other manner that the owner may determine; subject however to the rights of any lender named in such policy. 10 Each unit owner shall at its own cost and expense, procure and maintain comprehensive general liability insurance for personal injury and property damage arising out of his respective Unit and limited common element land area, and such insurance policy shall name the Association as an additional insured. If applicable, each unit owner shall at its own cost and expense, procure and maintain flood insurance. The Association may review the adequacy of any owner's hazard and liability insurance and may establish additional coverages for all policies. 14.0 UNINSURED CASUALTY. In case at any time or times any improvements of the Project shall be substantially damaged or destroyed by any casualty not herein required to be insured against, whether to rebuild, repair, or restore such common element improvements shall be determined by vote of unit owners representing eighty percent (80°x) of the common interest, that is, the common element improvements shall be rebuilt, repaired or restored unless the unit owners representing at least eighty percent (80%) of the common interests for the Project vote not to rebuild, repair or restore and such vote is reflected by an instrument expressing such decision. The cost of any rebuilding, restoring, or repairing the common element improvements shall be a common expense, provided that in no event shall such cost include any personal property of a unit owner. In the event of a partial or total destruction or damage of a unit, whether to rebuild, repair, or restore such improvement shall be determined by the unit owner and its mortgagee. 15.0 MAINTENANCE RESERVE FUND. The Board shall establish and maintain a maintenance reserve fund for the common elements, if any, pursuant to Section 5146- 148, Hawaii Revised Statutes, as such may be amended from time to time. The interest of each unit owner in said fund cannot be withdrawn or separately assigned but shall be deemed to be transferred with such unit even though not expressly mentioned or described in the conveyance thereof. In case the condominium property regime hereby created shall be terminated, said fund remaining after full payment of all common expenses of the Association shall be distributed to all unit owners as their interests may appear, except for the interests of owners of any units then reconstituted as a new condominium property regime 16.0 AMENDMENT OF DECLARATION. Except as otherwise provided in this Declaration or in the Act, this Declaration and (if necessary) the Condominium Map may 11 be amended by the affirmative vote or written consent of one-hundred percent (100°x6) of the common interest appurtenant to the units and shall be effective only upon recording in the Recording Office, an instrument setting forth such amendment and vote, duly executed by such unit owners or by the proper officers of the Association. However, at any time prior to recording with said Recording Office, a unit deed conveying a unit to a party other than the Declarant, the Declarant may amend this Declaration (including the Bylaws, the Condominium Map and other exhibits) in any manner, without the approval, consent or joinder of any unit purchaser. Provided further, that this Section 16.0 and any other provision or section in this Declaration which gives the Declarant any right, authority or reservation can be amended only if, in addition to the foregoing vote or written consent of the unit owners, the Declarant or its successors or assigns gives written consent to such amendment. 16.1 AMENDMENTS REQUIRING DECLARANT'S AND FIRST MORTGAGEE'S CONSENT. Notwithstanding the foregoing, in addition to obtaining the necessary votes or consents specified above, proposed amendments to the Declaration that changes any of the provisions listed below shall require both the Declarant's consent (if done during the Reserved Right Period) and the consent of the holders of first mortgages, if any, on the units holding more than 51% of the common interest: (i) the expansion or contraction of the condominium property regime, or the addition, annexation or withdrawal of property from this regime; (ii) the undivided interest in the common elements appurtenant to any unit; (iii) assessments, assessment liens or the subordination of such liens; (iv) the maintenance reserve fund and maintenance and repair of the Project; (v) the convertibility of units in to common elements or of common elements into units; (vi) requirements or restrictions on the leasing of units; or (vii) the rights of the holder or insurers of first mortgages on units in the Project. The foregoing provision does not apply to the Declarant when the Declarant is exercising any of the Declarant's Reserved Rights as specified in this Declaration, including those enumerated in Sections 16.2 and 21.0. 16.2 DECLARANT'S ABILITY TO AMEND THIS DECLARATION. Notwithstanding the foregoing and notwithstanding the sale or conveyance of any units, the Declarant may amend this Declaration, the Bylaws (and, when applicable the Condominium Map) without the approval, consent or joinder of persons then owning the unit in order to: (a) record the "as-built" verified statement (with plans if so applicable) required by Section 5146-34, Hawaii Revised Statutes, as amended so long as such amendment is a verified statement of a registered architect or professional engineer 12 certifying that the recorded final plans fully and accurately depict the layout, location, unit numbers and dimensions of a unit(s), as built; (b) to reflect the construction of a structure or the Declarant's interest to construct a structure in place of a spatial unit in the Project; (c) update or correct the title description of the land or the boundaries or layout of the driveway, or utility easements which are described in the Condominium Map or to reflect any access or other easement to the Project; (d) correct any misstatement of fact; (e) exercise its rights under Declarant's Reserved Rights as described in this Declaration; (f) comply with the law, requirements imposed by the Real Estate Commission and the requirements of any institutional lender, the Department of Planning, the Building Department, Department of Health, any utility provider, and the requirements, if any, of any title insurers, and to comply with any other State, federal or local law applicable to the Project; and (g) relocate, install, and furnish overhead and/or underground electrical utility lines, poles, wastewater drainage lines, water lines, fire hydrant(s) and water meters and establish and grant easements for each of the foregoing and remove existing easements that may no longer be necessary due to the installation of new lines or services which includes any easements relating to the Solar Farm. 17.0 ALTERATION OF UNITS. a. General. It is intended that each unit owner (including the Declarant for any units that it owns) be given the greatest amount of flexibility with regard to constructing a structure(s) consistent with what is shown on the Condominium Map for a particular unit. Notwithstanding the foregoing, no unit owner shall perform any of the following acts: (i) engaging in any construction activity which would adversely affect the structural integrity of another unit in the Project or any common elements; or (ii) installing, repairing or replacing any electrical, plumbing, or other mechanical feature in a manner that would jeopardize the soundness or safety of another unit in the Project. Notwithstanding the foregoing,the Declarant may construct a structure on any unit that 13 it owns without the consent of the Association. All construction work shall be undertaken in a manner that minimizes the disturbance of the other Unit and once commenced, shall complete the work within one year unless delays are caused by reasons beyond the control of the unit owner such as acts of nature, strikes, permitting and regulatory issues, and materials and supply issues. b. Certain Work Prohibited. Notwithstanding anything to the contrary, no unit owner shall do any work, which could jeopardize the soundness or safety of the Project, reduce the value thereof, and impair any easement or hereditament. The limited common element land area shall not be graded in any manner that would increase the water runoff into an adjoining property or unit. All improvements to a Unit and its appurtenant limited common element land area shall take in to consideration and address water drainage and runoff. If any construction work will interfere with or affect any existing utility line that services another unit then the constructing unit owner shall be responsible for moving the line(s)to another suitable location. Additionally, the construction of any additional improvements shall be subject to the following additional limitations: (i) Size of Structures. In no event shall the total improvements on or within the limited common area of a unit consists of more than its prorata share of the total lot coverage and/or density permitted by the County Ordinances. The prorata share shall be 82.46% for Unit 9677-A (5.364 acres/6.505 acres) and 17.54% for 9677-B (1.141 acres/6.505 acres). So long as there is a functioning and active solar photovoltaic farm on Unit 9677-13, no structures may be erected on the limited common element of Unit 9677-A that would interfere with the Solar Easement or any easement for the Solar System in favor of Unit 9677-13. This restriction shall automatically terminate and be of no further effect upon the Solar Farm being removed or abandoned by the unit owner thereof. For the purposes of this Declaration, a Solar Farm shall be deemed abandoned if it is not operational for a period of two (2) years unless within such time period the owner thereof has commenced the construction, repair and/or installation of a new or replacement solar system. (ii) Setback. The setback for all structures shall be the limited common element boundary lines for each respective unit. (iii) Utility Lines. All utility lines installed by a unit owner shall be underground unless it is unreasonable or impractical to do so. 14 C. Bonding. Prior to commencing any improvements permitted to be made pursuant to this Section 17.0, and as a condition to the unit owner's right to undertake such improvements and alterations, the unit owner shall provide to the Declarant if prior to the time the Association has been formed) (i) a certification in form and content reasonably satisfactory to the Declarant signed by a licensed architect or licensed engineer duly registered in the State of Hawaii, that such improvement or construction are consistent with the Condominium Map, (ii) satisfactory evidence that all governmental approvals required for such construction have been duly obtained or can be duly obtained, (iii) that such improvements and alterations shall be conducted in a manner that is in full compliance with applicable environmental laws, and (iv) if requested by the Declarant, the unit owner shall provide evidence satisfactory to the Declarant of sufficient funds or financing to complete such construction or, in lieu thereof, require that the owner obtain a performance and lien payment bond, naming as a dual obligee the Association and the Declarant for a penal sum of not less than 100% of the estimated cost of such construction. If applicable, the Declarant and any other unit owner shall join in with a unit owners' building permit or other application that are reasonably necessary in connection with obtaining the approvals for the applicable governmental agencies; provided that all cost and expenses shall be borne solely by the unit owner and all consents and joinders of the Declarant or any other unit owner shall be made without any liability to the Declarant or any other unit owner. The foregoing requirements in (i) to (iv) shall not be applicable to a structure being constructed by the Declarant on any unit that it owns. After the Declarant sells all of the units, the unit owners may by unanimous agreement elect to continue to enforce the requirements in items (i) to (iv) above and absent such agreement, such provisions shall be deemed to be terminated and cancelled. d. Amendment to Declaration and Condominium Map. Each unit owner that constructs a structure pursuant to this Section 17.0 shall upon completion of such structure record an "as-built" verified statement (with plans if so applicable) required by Section 51413-34, Hawaii Revised Statutes, as amended, together with an amendment to this Declaration. Such amendment to the Declaration and Condominium Map shall not require the approval or consent of any other unit owner or the Association so long as such amendment includes a verified statement of a registered architect or professional engineer or professional surveyor certifying that the recorded final plans contained in the Condominium Map are consistent with the plans as filed with the appropriate governmental agency and that they fully and accurately depict the layout, location, unit numbers and dimensions of the units, substantially as built. The unit owner shall file the 15 amendment not later than one year after the completion of construction of the improvements. No joinder by the Association shall be required for any amendment made pursuant to this Section 17.0.d. 18.0 DEFINITIONS. The terms "majority' or "majority of unit owners" herein mean the owners of the units to which are appurtenant more than fifty percent (50%) of the common interests of the Project and any specified percentages of the unit owners mean the owners of the units to which are appurtenant such percentage of the common interests. The term "owner" herein or any pronoun used in place thereof shall mean and include the masculine, feminine, or the singular or plural number and jointly and severally individuals, firms or corporations and their respective heirs, executors, administrators, successors and assigns, according to the context thereof. The term "unit" herein shall mean and include the units in the Project. The term "Project" herein shall mean and include all of the land and improvements in the Condominium Property Regime now existing and hereafter added. 19.0 ARBITRATION OF DISPUTES. At the request of any party, any dispute concerning or involving one or more-unit owners and the Association, the Board, the Managing Agent or one or more other unit owners relating to the interpretation, application or enforcement of the Act, the Declaration, the Bylaws, or any Building Rules, shall be submitted first to mediation before a single mediator and if such dispute is not resolved by mediation, then to arbitration as provided by Section 5146-162, Hawaii Revised Statutes. Nothing in this Section 19.0 shall be interpreted to require the arbitration of any dispute which is either exempt from arbitration pursuant to Section 5146-162, Hawaii Revised Statutes, or determined to be unsuitable for arbitration pursuant to Section 5146-162(c), Hawaii Revised Statutes, or for matters relating to the exercise and enforcement of a unit owner's rights under Section 11.2 of this Declaration. 20.0 SUBORDINATION AND INTERPRETATION. This Declaration and any amendments hereto are subordinate and subject to the Act (as the same may be lawfully amended from time to time), which shall control in case of any conflict. All terms herein (except where clearly repugnant to the context) shall have the same meaning as in said Act. In case any provision of this Declaration shall be held invalid, such invalidity shall not render invalid any other provisions hereof, which can be given effect. 16 21.0 DECLARANT'S RESERVED RIGHTS. The Declarant shall have the right to execute, acknowledge, process and record any and all instruments necessary or appropriate for the purposes of carrying out the provisions and exercising the rights, powers and privileges granted by this Section 21.0, and for any other reserved right contained in this Declaration (collectively the "Reserved Rights"), all as the true and lawful attorney-in- fact of the respective owners of units in this Project and their respective mortgagees. The filing of a unit deed serves as the unit owners grant of the power of attorney to the Declarant. The grant of the power of attorney is coupled with an interest and shall be irrevocable. If not previously exercised, the Reserved Rights shall terminate on December 31, 2031. The Declarant shall not be required to obtain the consent or joinder of any person, including the Association, any unit owner, or any mortgagee. The Reserved Rights include making an amendment to this Declaration, Bylaws of the Association, and Condominium Map that may be necessary or desirable to correct any typographical error, to comply with any request of an institutional lender for the Project, or title insurer, or to otherwise comply with the requirements of Chapter 5148, Hawaii Revised Statutes, any Building Code, or Zoning Ordinance or to take any other action necessary or desirable in connection with any of its Reserved Rights. In exercising the foregoing Reserved Rights, the Declarant may at any time file and process to final approval an application for building permits, grant easements, joint developments, subdivision applications, record any restrictive covenants that are required by any governmental authority, execute and file instruments and documents, record amendments, deeds, or other instruments necessary or appropriate to carry out any of the foregoing. In lieu of the power of attorney the Declarant may request that a unit owner provide a joinder and/or consent to any of the foregoing matters. Each unit owner shall provide its written joinder and/or consent within ten (10) days of being presented with the same. Failure to do so will entitle the Declarant to execute such consent on behalf of the unit owner. Each and every owner acquiring an interest in a unit in the Project consents to the Reserved Rights contained in this Section 21.0 and the amendments to this Declaration, Bylaws and the Condominium Map and the filing thereof. The Reserved Rights may be assigned by the Declarant to a successor developer, in whole or in part, by an instrument executed by both the assignor and assignee and duly filed at the Recorder's Office. 17 22.0 PROJECT COMPLIANCE. The Project, as presently contemplated in this Declaration, is in compliance with existing County zoning and all applicable permitting requirements, as provided by Section 5146-5, Hawaii Revised Statutes. 23.0 TAX MAP KEY AND ADDRESS. The tax map key and address may change for the Project and/or individual units. Declarant may amend the Declaration to reflect any new tax map key number and the assignment of a street address, however it is not required to do so. (End of text,signature page follows) 18 IN WITNESS HEREOF, the Declarant has executed these presents this 11,4day of Se e 10 Az=21. HAWAII BREWERY DEVELOPMENT CO.,INC. a Hawaii corporation By MARCUS I. BENDER Its President STATE OF HAWAII ) ss CITY AND COUNTY OF HONOLULU ) On ' �' in the First -Circuit, State of Hawaii, before me personally appeared MARCUS I. BENDER to me personally known, who, being by me duly sworn or affirmed did say that he executed the foregoing instrument identified or described as a Declaration of Condominium Property Regime — Hawaiian Brewery Condominium Project, as his free act and deed, and if applicable in the capacity shown, having been duly authorized to execute such instrument in such capacity. The foregoing instrument is dated 2`0and contained p g?8� 4ht!Pq..o•f this acknowledgment/ rtificatio . ••••9999.. 0 ��.25� •: *; Name: r •• • �qr'••.....••• X, e Notary Public, State of Hawap •••• FOF H A`��l.••' My commission expires: '1-11.2-Y �L •••9999.••• Doc Date: / #Pages: •'•• �1D B. T.40 0••, ICA •.......� o Name: F�s tCi it '• Doc-De[scrl tion: ; • • /�,.r/ irhC- w•t'hrrq Q�Jrs rwe Mer.y1 ��G/l * 'Z •*• f7 i * i • Signature Date d+r • • NOTARY CERTIFICATION •'• '4 ��`'� F0F0 .•' •'•••....9.000 EXHIBIT"A" All of that certain parcel of land situate at Keaau, District of Puna, Island and County of Hawaii, State of Hawaii, described as follows: Lot 9677, area 6.505 acres, more or less, as shown on Map 559, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 1053 (amended) of W. H. Shipman, Limited. Together with non-exclusive easements of Ingress and egress to a public road, and for utility purposes,over, under and upon the following: Lot A-31-A-3, as shown on Map 134; Lot 1092-K-1, area 1.133 acres, as shown on Map 224; Lot 1092-U, area 2.876 acres, as shown on Map 81; and Lot 1150-B-1, area 0.428 acre, as shown on Map 457, all filed in said Office with Land Court Application No. 1053 (amended) of W.H. Shipman, Limited. Together with, a non-exclusive easement for access and utility purposes to road located on Lot 9678, as shown on Map 559. as granted by instrument dated May 20, 2002, filed as Land Court Document No. 2806410 thru 2806411. Being a portion of the property conveyed by the following: WARRANTY DEED Grantor: KE-HI LAND CORPORATION, a Hawaii corporation Grantee: HAWAII BREWERY DEVELOPMENT CO., INC., a Hawaii corporation Dated: September 10, 1993 Filed: as Land Court Document No. 2066824. Being a portion of the property described in and covered by Transfer Certificate of Title No. 421,847 issued to HAWAII BREWERY DEVELOPMENT CO., INC., a Hawaii corporation. 20 SUBJECT, HOWEVER,to the following: 1. Mineral and water rights of any nature. 2. Terms and provisions of PARTIAL CANCELLATION AND SURRENDER; GRANT OF ACCESS AND UTILITY EASEMENT; AND AMENDMENT OF LEASE, made by HAWAII BREWERY DEVELOPMENT CO., INC., a Hawaii corporation, as Lessor, and HAWAIIAN NATURAL WATER COMPANY, INC., a Hawaii corporation, as Lessee, dated May 20, 2002,filed as Land Court Document No. 2806410 thru 2806411. 3. Terms and provisions of that certain LANDLORD'S AGREEMENT AND WAIVER dated April 25, 2003, made by and between AMCON DISTRIBUTING COMPANY and GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION, recorded as Document No. 2003-179414. (Also affects other property) (Not noted on Transfer Certificate of Title herein referred to) 4. GRANT, dated March 13, 2017, in favor of HAWAII ELECTRIC LIGHT COMPANY, INC., a Hawaii corporation and HAWAIIAN TELCOM, INC., a Hawaii corporation, filed as Land Court Document No. T-9972332 and also recorded as Document No. A-63180723. Re: Granting an easement for utility and incidental purposes over, under, across and through a portion of the land herein described. AMENDMENT TO GRANT OF EASEMENT dated August 7, 2020, filed as Land Court Document No. T-11252272. 21 �... til '� t. '" _�' .i�� -i q�F.i• .�.• .r "'S,.Y' ._x'-- ri •,.rs 4rc Y. v44 A Ai at / ,. 40 N a 1 b x — — — x g— —p4 .� x RRq - z� i s .•�f.:' o p r i_ i z mmv a s ^�C'fr'�• ��; r.. - - - � - - - dal - r9w �: t Sao __j _ ---- I � I . '• I I I I I I I I II �I I I X I w I I 2 11 w I LuIILIJII U) a f II �1 I I f I a ;n:; I m P � 4; DEPARTMENT OF PUBLIC WORKS COUNTY OF HAWAII HILO, HAWAII DATE: May 25, 2022 IffeW&W44M TO: Zendo Kern, Planning Director FROM: Department of Public Works, Engineering Divisio(jv�-� SUBJECT: AMENDMENT TO CHANGE OF ZONE ORD. NO. 17-65 (REZ-17-000218) Applicant:Ke`Aloha Lani, LLC (formerly Hawaii Island Distillery, LLC) Request: Amendment to Conditions E and I to Replace "Certificate of Occupancy" with "Final Subdivision Approval" as the Required Timing to Complete these Conditions Related to Roadway and Water Improvements TMK: 1-6-141:002 We have reviewed the subject request forwarded by your memo dated May 3, 2022 and provide the following comments: Condition E: We have no objection to the proposed changes to Condition E. Condition I: We have no objection to the proposed changes to Condition I. Questions may be referred to Robyn Matsumoto at 961-8924. Planning Depi. County of Hawaii is an Equal Opportunity Provider and Employer Exhibit 4 o�WAT Q�4 �AAt� 19 �8 DEPARTMENT OF WATER SUPPLY • COUNTY OF HAWAII 345 KEKUANAO`ASTREET, SUITE 20 • HILO, HAWAII 96720 TELEPHONE (808)961-8050 • FAX (808)961-8657 May 20, 2022 CDS# PLANNING DEPT MAY 23 2022 PM3:f 4 REVD HAND DELIVERED TO: Mr. Zendo Kern, Director Planning Department FROM: Keith K. Okamoto, Manager-Chief Engineer SUBJECT: Change of Zone Amendment Application No. PL-REZ-2022-000023 Amendment to Change of Zone Ordinance No. 17-65 (REZ-17-000218) Applicant— KeAloha Lani, LLC (formerly Hawaii Island Distillery, LLC) Request—Amendment to Conditions E and I to Replace"Certificate of Occupancy"with "Final Subdivision Approval" as the Required Timing to Complete these Conditions Related to Roadway and Water Improvements Tax Map Key 1-6-141:002 We have reviewed the amendments to the subject application and have the following comments and conditions. Please be informed that there is an existing 5/8-inch meter serving the subject parcel, which is limited to an average usage of 400 gallons per day or one (1) unit of water. There is an existing 4-inch waterline fronting the subject parcel. The Department has no objection to the proposed applications' request, subject to the following conditions: 1. The Department understands that the potable water needs for the project will be provided by an onsite potable water well. Therefore, the Department requests estimated maximum daily water usage calculations, prepared by a professional engineer licensed in the State of Hawaii, showing the anticipated use of water from the Department's water system. It shall be noted that the two sources of water shall not be interconnected in any way. Upon receipt and approval of the water usage calculations, the Department will determine if the existing water allocations are adequate to support the proposed demand. If the proposed demand exceeds the existing allocations, the Department will determine if additional water can be made available, the meter size and applicable facilities charge. 2. Should a larger meter be required, a reduced pressure type backflow prevention assembly must be installed within five (5) feet of the meter on private property and must be inspected by the Department before water service can be activated. . . . Nater, Our 9dost(recious Wsource . . . Ka ZWai A Kane. . . Planning De R' The Department of Water Supply is an Equal Opportunity provider and employer. Exhibit 5 Mr. Zendo Kern, Director Page 2 May 20, 2022 3. The Department's Water System Standards require that a minimum flow of 2,000 gallons per minute for a 2-hour duration and pipeline velocity less than 10 feet per second be available at the site for fire protection for industrial land uses. The existing 4-inch waterline fronting the property is inadequate and the nearest fire hydrant is more than the required 150 feet. We recommend that the applicant consult the Fire Department for any fire protection requirements or alternatives. 4. Subject to other agencies' requirements to construct improvements within the road right-of-way fronting the property affected by the proposed development, the applicant shall be responsible for the relocation and adjustment of the Department's affected water system facilities, should they be necessary. Should there be any questions, please contact Mr. Troy Samura of our Water Resources and Planning Branch at(808) 961-8070, extension 255. Sincerely yours, u��Otb Keith K. Okamoto, P.E. Manager-Chief Engineer TS:dfg copy—KeAloha Lani, LLC DWS Customer Service Section (Hilo) Ramzi I.Mansour Mitchell D.Roth `�':" �,�;�; Mayor Director Lee Lord Brenda Iokepa-Moses Managing Director Deputy Director County of Hawai'i DEPARTMENT OF ENVIRONMENTAL MANAGEMENT 345 Kekuanao`a Street,Suite 41 •Hilo,Hawai'i 96720 -cohdem@hawaiicounty.gov Ph: (808)961-8083 •Fax: (808)961-8086 MEMORANDUM TO: Zendo Kern, Director Planning Department FROM: Ramzi I. Mansour, Di ctor Department of Environmental Management DATE: May 6, 2022 SUBJECT: Change of Zone Amendment Application No. PL-REZ-2022-000023 Amendment to Change of Zone Ordinance No. 17-65 (REZ-17-000218) Applicant: Ke'Aloha Lani, LLC (formerly Hawai'i Island Distillery, LLC) Request:Amendment to Conditions E and I to Replace "Certificate of Occupancy"with "Final Subdivision Approval" as the Required Timing to Complete these Conditions Related to Roadway and Water Improvements Tax Map Key: (3) 1-6-141:002, Puna, Hawaii The Solid Waste Division has reviewed the subject application and offers the following comments and/or recommendations (contact the Solid Waste Division for details): ( X ) No comments. ( ) Commercial operations, State and Federal agencies, religious entities and non-profit organization may not use transfer stations for disposal. ( ) Aggregates and any other construction/demolition waste should be responsibly reused to its fullest extent. ( ) Ample and equal room should be provided for rubbish and recycling. ( ) Green waste may be transported to the green waste sites located at the West Hawaii Organics Facility and East Hawaii Organics Facility, or other suitable diversion programs. ( ) Construction and demolition waste is prohibited at all County Transfer Stations. ( ) Submit Solid Waste Management Plan in accordance with attached guidelines. ( ) Existing Solid Waste Management Plan is to be followed. Provide update to the department on current status. ( ) Other: County of Hawai'i is an Equal Opportunity Provider and Employer Planning Dep;. Exhibit _-- Ramzi I. Mansour, Director May 6, 2022 Page 2 The Wastewater Division has reviewed the subject application and offers the following comments and/or recommendations (contact the Wastewater Division for details): ( ) No comments. ( ) Require connection of existing and/or proposed structures to the public sewer in accordance with Section 21-5 of the Hawaii County Code. ( ) Require Council Resolution to approve sewer extension in accordance with Section 21- 26.1 of the Hawaii County Code. Complete Sewer Extension Application. ( ) Require extension of the sewer system to service the proposed subdivision in accordance with Section 23-85 of the Hawaii County Code. ( ) Check or line out as applicable: [ ] If required by the Director of the Department of Environmental Management("Director of DEM"), [ ] Applicant shall conduct a sewer study in accordance with the applicable wastewater system design standards prior to approval to connect to the County sewer system. Applicant shall provide such sewer line or other facility improvements as the Director of DEM may reasonably require, which the sewer study may indicate are advisable for mitigation of impacts of the proposed project. Contact Wastewater Division Chief for details. ( ) Proposed activity may be subject to existing or future federal, state, or county regulation under Title 40 CFR 403.5, prohibiting discharge of certain pollutants into publicly owned treatment works. Contact the Hawaii Department of Health for information regarding pretreatment standards. (X) Applicant shall follow Department of Health regulations. ( ) Other: RM:pls 2 1Y Of M� Mitchell D. Roth Paul K. Ferreira 1luror 1 Police Chief i r•.yi r Kenneth Rugado Jr. /)epup•Police Chief County of Hawai' i POLICE DEPARTMENT 349 Kapi'olani Street • I lilo,Hawaii 96720-3998 (808)935-3311 . Fax(808)961-2389 May 5, 2022 COH PLANNING DEPT MAY 6 2022€m 10: RECD HAND DELIVER TO ZENaIO KERN, PL4NNING DIRECTOR 1 FROM X�?KEN ".K. QUIOCHO, ASSISTANT POLICE CHIEF AREA I OPERATIONS BUREAU SUBJECT: CHANGE OF ZONE AMENDMENT APPLICATION NO. PL-REZ-2022- 000023; AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 17-65 (REZ-17-000218); APPLICANT: KE'ALOHA LANI, LLC (FORMERLY HAWAII ISLAND DISTILLERY, LLC); REQUEST: AMENDMENT TO CONDITIONS E AND I TO REPLACE "CERTIFICATE OF OCCUPANCY" WITH "FINAL SUBDIVISION APPROVAL"AS THE REQUIRED TIMING TO COMPLETE THESE CONDITIONS RELATED TO ROADWAY AND WATER IMPROVEMENTS; TAX MAP KEY: (3) 1-6-141 :002, PUNA, HAWAII Staff, upon reviewing the provided documents, does not anticipate any significant impact to traffic and/or public safety concerns. Thank you for allowing us the opportunity to comment. If you have any questions, please contact Captain Scott Amaral, Puna Patrol, at 965- 2716 or via email at scott.amaral@hawaiicounty.gov. SA:I li/22HQ0519 "Hawai'i Counly is an Equal Opportunity Provider and Employer' Planning Depi. Exhibit 7 Mori, Ashley From: Henderson, Royd Sent: Monday, May 9, 2022 10:27 AM To: Araujo, Jaclyn; Planning Internet Mail Cc: Andrews,Jessica Subject: RE: Request for Comments on App. No. PL-REZ-2022-000023 for Ke'Aloha Lani, LLC on TMK: (3) 1-6-141:002 To whom it may concern, I have reviewed the request for comments for the amendment to Ordinance No. 17 65. HFD responses are as follows: 1. HFD will apply all applicable Fire codes to any applications that change the use of a building or a certificate of occupancy for the properties. 2. HFD will comment on any upcoming subdivision approvals at the time of request applying all applicable codes and requirements as necessary. 3. HFD will comment on any future building permits at the time of request applying all applicable codes and requirements as necessary. Thank you, Royd Royd Henderson Fire Prevention Inspector II Hawaii Fire Department Prevention Branch (808) 9377867 From:Araujo,Jaclyn Sent:Wednesday, May 04, 2022 10:39 AM To: DPW Eng <dpweng@hawaiicounty.gov>; dwsengineeringreview@hawaiidws.org; cohdem <cohdem@hawaiicounty.gov>; HCPDONE <HCPDONE@hawaiicounty.gov>; Fire Admin <fire@hawaiicounty.gov>; Kurashige, Palani <Palani.Kurashige@hawaiicounty.gov>; Henderson, Royd <Royd.Henderson@hawaiicounty.gov>; Kawasaki, Edward <Edward.Kawasaki@hawaiicounty.gov>; Baybayan, Clinton <Clinton.Baybayan@ hawaiicounty.gov>; Honda, Eric<Eric.Honda@doh.hawaii.gov>; michael.une@doh.hawaii.gov; dlnr@hawaii.gov; dlnr.land@hawaii.gov; Surprenant, April <April.Surprenant@hawaiicounty.gov>; Morrison, Bethany<Bethany.Morrison@ hawaiicounty.gov> Cc:Andrews,Jessica<Jessica.Andrews@hawaiicounty.gov>; Dacayanan, Melissa <Mel issa.Dacayanan@ hawaiicounty.gov> Subject: Request for Comments on App. No. PL-REZ-2022-000023 for Ke'Aloha Lani, LLC on TMK: (3) 1-6-141:002 Importance: High i Planning Depi. Exhibit 8 Aloha Kakou, Please see attached Memo r"e tion. Link to review the application in the County's web-based EPIC system can be found below: 0 K.e'.A.1.2.h a L..a..qi..........L.L.0 s C h..a..n..gf of Zone Amendment A_pphcation We kindly ask that you submit your comments g to .p.!2!2.!2in @hawaficoun y no later than May 25, 2022. Should you have any questions, please feet free to reach out to Planner, Jessica Andrews (cc'd herein) at (808) 961-8155. Have a wonderful day Et take care! Mahato nui loa, _7ac1)w,Araujo Planning Commission Support Technician County of Hawaii - Planning Department 101 Pauahi Street, Suite 3 Hilo, HI 96720 Phone: (808) 961-8288 COUNTY OPHAWAVI Electron"i c Processing and Information Center (EPIC) We hope that the County of II Nawal11's EPIC system has made your app[lcaflon process convenllent and easy. Connecflng Mth us for h6lp Is just a c[lclk away. C[Iclk here to request support. IFor more Informadon go to https-//hawaiicountyhi-energovpub.tylerhost.net/Apps/SelfService#/home. Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s)and may contain confidential and/or privileged information. Any review, use,disclosure,or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. DAVID Y.IGE o F„ ELIZABETH A.CHAR,M.D. GOVERNOR OF HAWAII p �g es 9 y DIRECTOR OF HEALTH "t01° STATE OF HAWAII DEPARTMENT OF HEALTH P.O. BOX 916 HILO,HAWAII 96721-0916 MEMORANDUM DATE: May 13, 2022 TO: Mr. Zendo Kern Planning Director, County of Hawaii FROM: Eric Honda District Environmental Health Program Chief SUBJECT: Change of Zone Amendment Application No. PL-REZ-2022-000023 Amendment to Change of Zone Ordinance No. 17-65 (REZ-17=000218) Applicant: Ke'Aloha Lani, LLC (formerly Hawaii Island Distillery, LLC) Request: Amendment to Conditions E and I to Replace "Certificate of Occupancy"with "Final Subdivision Approval: as the Required Timing to Complete these Condition Related to Roadway and Water Improvements. TMK: 1-6-141:002, Puna, Hawaii The Health Department found no environmental health concerns with regulatory implications in the submittals. Planning Dept. Exhibit [�.❑r kq SUZANNE D.CASE DAVID Y.IGE �93g.. CHAIRPERSON GOVERNOR OF HAWAII W:' BOARD OF LAND AND NATURAL RESOURCES COMMISSION ON WATER RESOURCE MANAGEMENT nE anu rya f:.Q Y 6 a STATE OF HAWAII Srale of Ha'N� DEPARTMENT OF LAND AND NATURAL RESOURCES LAND DIVISION POST OFFICE BOX 621 HONOLULU,HAWAII 96809 May 23,2022 County of Hawaii Planning Department Attn: Ms. Jessica Andrews via email: plan ning(o-)hawaiicounty.gov 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Dear Ms. Andrews: SUBJECT: Change of Zone Amendment Application No. PL-REZ-2022-000023 - Amendment to Change of Zone Ordinance No. 17-65 (REZ-17-000218) - Request for Amendment to Conditions E and I to Replace "Certificate of Occupancy" with "Final Subdivision Approval" as the Required Timing to Complete these Conditions Related to Roadway and Water Improvements located at Puna, Island of Hawaii; TMK: (3) 1-6-141:002 on behalf of Ke'Aloha Lani, LLC (formerly Hawaii Island Distillery, LLC) Thank you for the opportunity to review and comment on the subject matter. The Land Division of the Department of Land and Natural Resources (DLNR)distributed or made available a copy of your request pertaining to the subject matter to DLNR's Divisions for their review and comments. At this time, enclosed are comments from the (a) Engineering Division and (b) Land Division-Hawaii District on the subject matter. Should you have any questions, please feel free to contact Darlene Nakamura at (808) 587-0417 or email: darlene.k.nakamura(o-)_hawaii.gov. Thank you. Sincerely, Russell Ts4J1 Russell Y. Tsuji Land Administrator Enclosures cc: Central Files 10 VS. O F 01 SV 7AN—W FL CAST. DAVID Y.IGE GOVERNOR OF HAWAII ROARD OF LAT%1),k11)NAIURAL kFSOURCFS _Fk RFS0URCV COMM ISS FOT N ON X1 Al MA'1'AGF%1F'%1 VW1_0 ad a STATE OF HAWAII DEPARTMENT OF L..7ND AND NATURAL RESOURCES I-AN 1)DIVISION POS FOF FI C F ROX 621 HONOLULU,HAWAII 96909 May 5,2022 MEMORANDUM FROM: T97 DLNR Agencies: Div. of Aquatic Resources Div. of Boating & Ocean Recreation X Engineering Division (DLNR.ENGR(a-)hawaii.gov) X Div. of Forestry& Wildlife (rubyrosa.t.terragoCcDhawaii.gov) Div. of State Parks X Commission on Water Resource Management (DLNR.CWRM(c-Dhawaii.gov) Office of Conservation & Coastal Lands X Land Division— Hawaii District Wordonx.heitehawaiixiov) TO: FRE)Mr Russell Y. Tsuji, Land Administrator Fussq//Tsuji SUBJECT: Change of Zone Amendment Application No. PL-REZ-2022-000023) Amendment to Change of Zone Ordinance No. 17-65 (REZ-17-000218) Request for Amendment to Conditions E and I to Replace "Certificate of Occupancy" with "Final Subdivision Approval" as the Required Timing to Complete these Conditions Related to Roadway and Water Improvements LOCATION: Puna, Island of Hawaii; TMK.- (3) 1-6-141:002 APPLICANT: County of Hawaii on behalf of Ke'Alloha Lan!, LLC (formerly Hawaii Island Distillery, LLC) Transmitted for your review and comment is information on the above-referenced subject matter. Please submit comments by May 23, 2022. If no response is received by the above date, we will assume your agency has no comments. Should you have any questions about this request, please contact Darlene Nakamura at dadene.k.nakamura(&hawaii.clov. Thank you. BRIEF COMMENTS: We have no objections. We have no comments. We have no additional comments. (V Comments re I cludedlattached. Signed: Print Name: Carty S. Chang, Chief Engineer Division: -Engineering Division Date. May 16,2022 Attachments cc: Central Files DEPARTMENT OF LAND AND NATURAL RESOURCES ENGINEERING DIVISION LD/Russell Y. Tsuji Ref: Change of Zone Amendment Application No. PI REZ-2022-000023) Amendment to Change of Zone Ordinance No. 17-65 (REZ-17-000218) Request for Amendment to Conditions E and I to Replace"Certificate of Occupancy"with "Final Subdivision Approval" as the Required Timing to Complete these Conditions Related to Roadway and Water Improvements Location: Puna, Island of Hawaii TMK(s): (3) 1-6-141:002 Applicant: County of Hawaii on behalf of Ke'Aloha Lani,LLC (formerly Hawaii Island Distillery, LLC) COMMENTS The rules and regulations of the National Flood Insurance Program (NFIP), Title 44 of the Code of Federal Regulations(44CFR), are in effect when development falls within a Special Flood Hazard Area (high-risk areas). Be advised that 44CFR, Chapter 1, Subchapter B, Part 60 reflects the minimum standards as set forth by the NFIP. Local community flood ordinances may stipulate higher standards that can be more restrictive and would take precedence over the minimum NFIP standards. The owner of the project property and/or their representative is responsible to research the Flood Hazard Zone designation for the project. Flood zones subject to NFIP requirements are identified on FEMA's Flood Insurance Rate Maps (FIRM). The official FIRMS can be accessed through FEMA's Map Service Center(msc.fema.gov). Our Flood Hazard Assessment Tool (FHAT)(http://gis.hawaiinfip.or /FHAT) could also be used to research flood hazard information. If there are questions regarding the local flood ordinances, please contact the applicable County NFIP coordinating agency below: I- • Oahu: City and County of Honolulu, Department of Planning and Permitting (808) 768-8098. a Hawaii Island: County of Hawaii, Department of Public Works(808)961-8327. o Maui/Molokai/Lanai County of Maui, Department of Planning(808)270-7139. a Kauai: County of Kauai, Department of Public Works(808) 241-4849. Signed: CARTY S. CHANG, CHIEF ENGINEER Date: May 16,2022 Mori, Ashley From: Lebo, Susan A <susan.a.lebo@hawaii.gov> Sent: Thursday, July 14, 2022 5:00 AM To: Planning Internet Mail; Naleimaile, Sean P Cc: Andrews, Jessica Subject: TMK: (3) 1-6-141:002, Amendment Request for Change of Zone Ordinance Attachments: 3-1-6-141_2022PR00593_2207SN07_ARCHY_6E42_COM M ENTS.pdf Hello, Attached is a pdf copy of our division's review of the following: HRS Chapter 6E-42 Historic Preservation Review— Amendment Request for Change of Zone Ordinance Applicant: Ke Aloha Lani, LLC. (formerly Hawaii Island Distilling, LLC) Kea'au Ahupua'a, Puna District, Island of Hawaii TMK: (3) 1-6-141:002 Sincerely, Susan Susan A. Lebo, PhD SHPD Archaeology Branch Chief (808) 321-9000 cell 1 Planning Dep . Exhibit ___11 ro+ SUZANNE D.CASE A F N CHAIRPERSON DAVID Y.IGE 't f.e "q}L tiBOARD OF LAND AND NATURAL RESOURCES GOVERNOR OF HAWAII COMMISSION ON WATER RESOURCE MANAGEMENT e ROBERT K MASUDA YFIRST DEPUTY p5 adV Ni K4LE0 MANUEL dV DEPUTY DIRECTOR-WATER ❑ �' d'` ° AQUATICRESOURCES BOATINGANDOC£ANRECREATION BUREAU OF CON�TIANCES COMMISSION ON WATER RESOURCE MANAGEMENT CONSERVATION AND COASTAL LANDS STATE OF HAWAII CONSERVATION AND RESOURCES ENTORCEMENT ENGINEERING FORESTRY AND WILDLIFE t�teofwz y DEPARTMENT OF LAND AND NATURAL RESOURCES KAHOOLA ISTO9RIC D�SRR E�MMIS.SION LAND STATE HISTORIC PRESERVATION DIVISION STATE PARKS KAKUHIHEWA BUILDING 601 KAMOKILA BLVD,STE 555 KAPOLEI,HAWAII 96707 July 12,2022 IN REPLY REFER TO: Zendo Kern,Director Project No.2022PR00593 County of Hawaii,Planning Department Doc.No. 2207SN07 101 Pauahi Street, Suite 3 Archaeology Hilo,HI 96720 planning@hawaiicounty.gov Dear Mr.Kern: SUBJECT: HRS Chapter 6E-42 Historic Preservation Review— Amendment Request for Change of Zone Ordinance Applicant: Ke Aloha Lani,LLC.(formerly Hawaii Island Distilling,LLC) Kea`au Ahupua`a,Puna District,Island of Hawaii TMK: (3)1-6-141:002 This letter provides the State Historic Preservation Division's (SHPD's)review of subject request for an amendment of an existing County of Hawaii Change of Zone application [Ordinance No. 17-65 (REZ 17-000218)]. The applicant/landowner, Ke Aloha Lani, LLC, is requesting an amendment to stipulations covered in the approved rezoning ordinance of the subject parcel from Agriculture (A-20a) to General Industrial (MG-20). The current request was received by our office on June 5, 2022. The submittal includes the County of Hawaii amendment request application submitted by the County of Hawaii.The current project area is the entire 6.53-acre parcel. Project Description Ke Aloha Lani,LLC is requesting the amendment to the current rezoning ordinance to satisfy several stipulations as agreed upon in the current ordinance. The proposed project area has been subject to a previous SHPD review (Log No.2014.04097,Doc.No. 1409SN24)for grubbing activities associated with the installation of a solar array. Findings SHPD records indicate that the project area has not been subject to any archaeological inventory surveys (AIS). No historic properties have been identified within or in the near vicinity of the subject parcel. The previous SHPD review was done prior to the consolidation of TMK: (3) 1-6-141:001 and 002 into the current parcel designation as parcel 002. On September 9, 2014, a SHPD staff archaeologist conducted a site visit to confirm the presence or absence of historic properties in the area of the proposed project. No surface remains were visible. SHPD has reviewed additional County of Hawaii permits regarding the development of the property and determined that it was unlikely that historic properties were present (Log No. 2003.1883 Doc. No 0310JK03; Log No. 2009.4038, Doc. No. 091 ITD23).No new information has been received since the previous determinations. Determination Based on current information,the SHPD has no objections to the requested amendments to existing ordinance. Please contact Sean Naleimaile at(808)933-7651 or at sean.p.naleimailekhawaii.gov for any questions or concerns regarding this letter. Mr.Kern July 12,2022 Page 2 Aloha, Alan S.Downer,PhD Administrator, State Historic Preservation Division Deputy State Historic Preservation Officer cc: Jessica Andrews,jessica.andrewskhawaiicount�gov SidneyFuke, Planning Consultant 100 Pauahi Street,Suite 212•Hilo, Hawaii 96720 •Planning•Variance•Zoning Telephone:(808)969-1522 Cell:(808) 989-0640 •Subdivision•Land Use Permits E-mail:sidfuke@hawaiiantel.net •Environmental Reports May 23, 2022 Mr. Zendo Kern, Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo, HI 96720 Dear Mr. Kern: Subject: Rezoning AMENDMENT Application (REZ 2022-000023) Ke'Aloha Lani,LLC (Formerly Hawaii Island Distillery,LLC) TMK: (3) 1-6-0141: 002 Thank you for providing additional agency comments regarding the subject matter. In response to these comments, we provide the following: a. The Department of Environmental Management had no comments relative to solid waste and required compliance with Department of Health regulations on matters relating to wastewater. The applicant will comply. b. The Police Department did "not anticipate any significant impact to traffic and/or public safety concerns. " c. The Fire Department noted that it will require compliance with the appropriate Fire Codes in conjunction with any building permit, certificate of occupancy, and will provide appropriate comments during the subdivision review process. Given that, it confirms that applicant's position that there is no need to have specific provision of its codes recited in the rezoning ordinance, provisions which may change from time to time. d. Finally,the State Department of Health 'found no environmental health concerns with regulatory implications. " We trust that the above adequately responded to the comments. If not or if there are further questions, please let me know. Thank you very much. SincereW SIDNEY M. FUKE Planning Consultant Copy —Ke'Aloha Lani, LLC w/ enclosures via email Planning Depi. Exhibit __1 SidneyFuke, Planning Consultant P.O.Box 1345•Hilo, Hawal'i 96721 •Planning•Variance•Zoning Cell:(808) 989-0640 •Subdivision•Land Use Permits E-mail:sidfuke@hawaiiantel.net •Environmental Reports June 4, 2022 Mr. Zendo Kern, Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo, HI 96720 Dear Mr. Kern: Subject: Rezoning AMENDMENT Application (REZ 2022-000023) Ke'Aloha Lani, LLC (Formerly Hawaii Island Distillery, LLC) TMK: (3) 1-6-0141: 002 This is in response to comments from the Department of Water Supply (DWS) and Department of Public Works (DPW) regarding the subject matter. We would like to appreciatively note that DPW expressly noted that it had no objections to any of the proposed amendments. The DWS also had no objections to the request subject to a several conditions. The applicant has no objections to the conditions with the understanding that the "estimated maximum daily water usage calculations"be provided prior to submittal of any plans for Plan Approval. Based upon that analysis, the appropriate DWS' requirements would be complied with, which may include installation of a larger meter, payment of the applicable facilities charge, relocation, if needed, of any water infrastructure within the right-of-way, and other items outlined in its comments. We trust that the above adequately responded to the comments. If not or if there are further questions, please let me know. Thank you very much. incerely, y,( 1 N SIDNEY M. FUKE Planning Consultant Copy—Ke'Aloha Lani, LLC w/ enclosures via email Planning Dep . Exhibit __-.13