HomeMy WebLinkAboutPD BACKGROUND REPORT (PL-PDI-2022-000004)BPDinitiatedKMRREZREZrep eal. crk.3.6.23
COUNTY OF HAWAI`I PLANNING DEPARTMENT
BACKGROUND REPORT
PLANNING DIRECTOR INITIATED
REPEAL CHANGE OF ZONE ORDINANCE NOS. 95 70 and 98 63 (REZ 798)
The Planning Director has initiated the repeal of Change of Zone Ordinance No. 95 70 and
No. 98 63, which amended Section 25-8-2 (North and South Kona Districts Zone Map), Chapter
25, Article 8, of the Hawaii County Code 1983 (2016 edition, as amended), by reverting the
current zoning of the subject properties from Agricultural 1-acre (A -la), Agricultural 3-acres
(A-3a), Agricultural 200-acres (A-200a), Agricultural 255-acres (A-255a), and Agricultural
8,000-acres (A-8000a) to their original, Agricultural 20-acres (A-20a) zoning district for
11,185.708 acres of land. The rezone area, consisting of six parcels begins approximately 1.2
miles east (mauka) of Hawaii Belt Road in the vicinity of Greenwell Mountain Road and
extends approximately 8.6 miles further east (mauka) at Kealakekua, Kiloa, Waipunaula,
Kalama, Kumu, and Kalamakowali, North Kona, Hawaii, TMKs: (3) 8-2-012:001, 012, 014
(por.), 015 and (3) 8-2-001:101 (por.) (Formerly Tax Map Keys: 8-2-012:012 and a portion of
001.).
PLANNING DIRECTOR'S REQUEST
Request: The Planning Director is initiating a request to repeal Ordinance Nos. 95 70
and No. 98 63 in response to a written request submitted by representatives of the
landowners of 5 parcels (or portions thereof) totaling approximately 11,185.708 acres of
land. The ordinances sought to rezone parts of two properties from Agricultural 20-acres
(A-20a) to Agricultural 1-acre (A -la) for 787.589 acres of land, Agricultural
3-acres (A-3a) for 1,836.537 acres of land, Agricultural 200-acres (A-200a) for 200 acres
of land, Agricultural 255-acres (A-255a) for 255 acres of land, and Agricultural 8,000-
acres (A-8000a) for 8,106.309 acres of land. According to the request, the repeal would
revert the zoning of these lands back to their original, Agricultural 20-acres (A-20a)
zoning district. The landowners also request that the Planning Director concurrently
process revocation of the related Use Permit No. 121 (for 18-hole golf course) and
Special Permit 898 (private recreational center) issued for the project area. These
revocation actions can be processed administratively pursuant to Planning Commission
1
Rules.
2. Reasons for the Request: The preceding entitlements were secured by the original
applicant, Japan -based Kealakekua Development Corporation (KDC) to facilitate the
development of a master planned agricultural community consisting of approximately
500 agricultural lots, an 18-hole golf course and clubhouse, a 4-acre private recreational
center, a 200-acre agricultural park, a 255-acre equestrian center, a wastewater treatment
plant, a County dedicable water system, and a 8,455-acre forest reserve. In the late
1990's, KDC was forced to forgo its development plans and sell the project area due to
the collapse of the Japanese asset price bubble in the early 1990s which resulted in the
company's inability to develop the project. As a result, the project area was sold in 2002
and again in 2004 to Kealakekua Heritage Ranch (KHR). Since acquiring the project
area, KHR has abandoned the intensive development plans originally proposed by KDC
to shift the focus to forest conservation, restoration, and stewardship, in addition to
pursuing low -impact agricultural opportunities and activities. To that end, KHR worked
with State and Federal government entities through the State and U.S. Forest Legacy
Programs to encumber a 9,107.97-acre portion of the 11,185-acre proj ect area with a
conservation easement which was recorded in 2011 (discussed in more detail below). In
2013 the Planning Department approved a parcel consolidation/resubdivision that
rearranged property lines in large part to accommodate the conservation easement area
mentioned above. The project area underwent a second parcel consolidation/
resubdivision in 2017 to rearrange property lines to create a 224.99-acre parcel
(TMK 8-2-012:014), which was similarly encumbered by two perpetual conservation
easements in 2017 and granted to the Hawaiian Islands Land Trust (discussed in more
detail below).
Based on the preceding, the landowners are requesting that the Planning Director repeal
both of the ordinances covering the project area pursuant to Condition Z (Substantial
Non -Compliance), as they are in technical non-compliance with Condition B, which
states (in part): "The effective date ofthe change ofzone shall be: when the applicant
provides assurance satisfactory to the Departments of Water Supply and Planning, upon
consultation with the State Department of Health and the Department of Land and
Natural Resources, that a water sources) ofsufficient quality and quantity has/have been
established within five years from the enactment of this amendment; provided that a
maximum one year extension may be granted by the Planning Director with reasonable
and sufcient justification. " Moreover, the current landowners have no intention to
develop the project and extensive infrastructure improvements originally envisioned by
KDC and required under the existing ordinances, as is evidenced by the encumbrance of
more than 75% of the property in perpetual conservation easements which severely limit
the development potential of those lands. While the zoning was never technically
effectuated, the subject ordinances still govern activities that can occur within the project
area, limiting the landowners' ability to utilize their lands as permitted under the original
A-20a zoning in the remaining lands unencumbered by conservation easements. The
landowners wish to be free of the subject ordinances to allow them the ability to pursue
permissible uses under the original A-20a zoning on those remaining lands that are
unencumbered by the conservation easements and be afforded the same rights and
privileges of landowners with existing agricultural zoning without rezoning conditions.
3. Landowners: Kealakekua Mountain Reserve, LLC (TMK: 8-2-012:001) , Kona Hills
LLC (TMK: 8-2-012:012); HCC Farms LLC (TMK: 8-2-012:014); Kealakekua Heritage
Ranch, LLC (TMK: 8-2-012:015); and Kealakekua Ranch LTD (TMK: 8-2-001:101).
4. Supporting Information: (Planning Department Exhibit 1 — Repeal request letter
from February 13, 2020 and additional information letter dated December 9, 2020)
BACKGROUND INFORMATION
5. March 1, 1994: Effective date of Use Permit No. 93-6 for the development of an 18-hole
golf course, clubhouse, and related improvements (Planning Department Exhibit 2-
Use Permit No. 93-6).
6. April 17, 2022: Effective date of Special Permit No. 93-9 for the development of a
private recreation center on four acres of land (Planning Department Exhibit 3- Special
Permit No. 93-9).
7. May 23, 1995: Effective date of Change of Zone Ordinance No. 95-70, which proposed
to reclassify a total of 11,185.708 acres of land across two parcels from an A-20a zoning
district to A -la, A-3a, A-200a, A-255a, and A-8,000a zoning districts (Planning
Department Exhibit 4-Change of Zone Ordinance No. 95-70).
8. July 10, 1998: Effective Date of Change of Zone Ordinance No. 98-63, which amended
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Change of Zone Ordinance No. 95-70 to change the timing trigger on compliance with
Condition B of the subject ordinance (Planning Department Exhibit 5-Change of Zone
Ordinance No. 98-63).
9. June 27, 2011: Recordation date with the State Bureau of Conveyances for a "Deed of
Conservation Easement and Restriction of Development Rights " (See Exhibit B of the
repeal request), which allows use of the land consistent with stated conservation values
(forest ecosystems, forest resources and products including, but not limited to,
commercial forest product values and pharmacopeia, as well as open space, recreational,
and research/educational values). This perpetual easement, for 9,017.97 acres was
granted to the State Board of Land and Natural Resources. This easement prohibits the
construction of permanent dwellings or structures, land alterations, and subdivision of
land in the easement area and allows reforestation and forest management activities,
harvesting of forest resources, preserving open space, and limited recreational, research,
and educational activities.
10. April 10, 2014: Approval date of Subdivision No. SUB-13-001285, a 3-lot subdivision
whose primary purpose was to create a standalone parcel that consisted primarily of the
9,017.97-acre conservation easement mentioned above.
11. March 17, 2016: Recordation date with the State Bureau of Conveyances for a "Grant of
Conservation Easement-HCC Farms LLC" (Planning Department Exhibit 6-Grant of
Easement Dated March 17, 2016) which granted a perpetual easement over 74.99-acres
of land within what is now TMK: 8-2-012:014 to the Hawaiian Islands Land Trust for the
purposes of preserving coffee farmlands and their agricultural use, conservation of native
`Ohi`a forest ecosystem, wildlife habitat, preservation of open space and scenic values,
water resource protection, and protection of historical and cultural resources. While the
owners are allowed to continue the agricultural use of the land, conditions of the
easement prohibit owners from converting any portion of the property to non-agricultural
uses, subdividing the property, severely limiting the ability to construct dwellings and
other structures and improvements, and prohibits the placement of new roads or other
impervious surfaces on the property.
12. April 26, 2017: Approval date of Subdivision No. SUB-16-001672, a second 3-lot
subdivision with the primary purpose of creating a standalone 224.99-acre parcel for a
conservation easement over the 74.99 acres referenced above plus an additional 150
acres. The total land area is now TMK 8-2-012:014.
13. June 30, 2017: Recordation date with the State Bureau of Conveyances for a "Grant of
Conservation Easement-HCC Farms LLC 150 Acre Expansion " (See Exhibit C of the
repeal request), which granted a perpetual easement over an additional 150-acre land
area to the Hawaiian Island Land Trust and includes the same rights and restrictions as
the original easement mentioned above.
STATE AND COUNTY PLANS
14. State Land Use Designation: Agricultural.
15. General Plan LUPAG Map: Important Agricultural Lands and Extensive Agriculture.
16. County Zoning: Agricultural 1-acre (A -la), Agricultural 3-acres(A-3a), Agricultural
200-acres (A-200a), Agricultural 255-acres (A-255a), and Agricultural 8,000-acres
(A-8000a).
17. Kona Community Development Plan: The Kona CDP, adopted by the Hawaii County
Council by Ordinance No. 08-131 on September 25, 2008 affects the subject properties.
The subject property is situated outside the "Kona Urban Area" and outside of the
Kealakekua "Rural Town TOD" area.
DESCRIPTION OF SUBJECT PROPERTY AND SURROUNDING AREA
18. Subject Properties: The rive (5) subject properties are located approximately 1.2 miles
east (mauka) of the Hawaii Belt Road/Koa Road intersection in Kealakekua and extend
approximately 8.6 miles further east (mauka). They are as follows:
■ TMK 8-2-012:014 is the makai most parcel of the project area. Only a portion of this
this irregularly shaped, 224.99 acre parcel is subject to the original rezoning action (to
A -la and A-3a). The property is vacant of any dwellings and appears to be used for
orchard and pasture purposes. Approximately 150 acres of this property was
encumbered by a conservation easement in 2017 (as discussed above).
■ TMK 8-2-001:101 is situated directly to the north of parcel 14 and is generally
rectangular in shape. Only a portion of 9.968 acre parcel is subject to the rezone
action (to A-3a). The property is improved with a 1,412 square foot, 5-bedroom
dwelling built in 1972.
■ TMK 8-2-012:012 of parcels 14 and 101 and is irregularly shaped. The entire 500-
5
acre property is subject to the rezone action (to A -la and A-3a). The property is
improved with two, one -bedroom dwellings built in 1970 and 2013 respectively, and
other various outbuildings and agricultural structures. The property is primarily used
for orchard crops.
■ TMK 8-2-012:015 is situated directly east (mauka) of parcels 12 and is irregularly
shaped. The entire 1,204.49-acre property is subject to the rezone action (to A -la, A-
3a, and A-200a), is vacant of any structures, and is used for pasture purposes.
■ TMK 8-2-012:001 is situated to the south and east (mauka) of the other properties and
is irregularly shaped. All but 400 acres of the 9,627.2-acre parcel is subject to the
rezone action (to A -la, A-3a, A-200a, A-255a, and A-8,OOOa). Approximately
9,017.97 acres was encumbered by a conservation easement in 2011.
■ It should be noted that while the landowner's written request included
TMK 8-2-012:013 in the subject line, this 100-acre parcel is part of a 400-acre
exclusion from the rezone ordinances, thus there is no need to include this parcel in
the repeal request.
19. Surrounding Zoning/Land Uses: Properties directly makai (west) of the project area are
largely zoned A-5a and consist of dwellings, farms, and vacant land. Properties directly
to the north, east (mauka) and south of the project area are primarily zoned A-20a and
consist of large tract pasture lands. There is also a 5,400 parcel directly to the south
which has Forest Reserve zoning.
20. FIRM: The majority of the project area is situated within Zone "X", designated as an
area of minimal flood hazard. There are some areas along the makai portions of TMK
8-2-012:001, 012, 014 and TMK 8-2-001:101 that are designated as Zone "AE" (the base
floodplain where the base flood elevations are provided) and Zone "XS" (an area of
moderate flood hazard).
21. Flora/Fauna Resources: Formal flora (Botanical Resource Survey by Char and
Associates, July 1991) and fauna (A Study of Birds and Mammals by Phillip L. Brunner,
August 1991) studies were included as part of the environmental assessment conducted
for the original project. The flora study found that roughly 70% of the project area
consisted of pastureland consisting of introduced grasses and herbs and small stands of
`Ohi`a trees, where other native plants were found. None of the species on the site were
C1
listed as endangered or threatened. The conservation easement for the 9,107.97-acre area
also mentions that there are closed `Ohi`a lehua mesic forest, open Koa forest with
Mamane, and open Koa forest. The fauna study observed several endemic bird species
(short eared owls, Hawaiian hawks, common Amakihi, Apapane, I`iwi and `Elepaio) and
16 other introduced birds were also observed. Terrestrial animals included introduced
species such as feral pig, cows, mongoose, cats, and dogs as well as rodents. None of the
preceding species were listed as endangered. All the conservation easements discussed
above include protecting ecological resources of the native forest ecosystem, open space,
and water resources.
22. Archaeological Resources: An archaeological Assessment (AA) of the entire project
area was conducted by Cultural Surveys Hawaii in April 1991. The AA determined that
given the limited number and widely dispersed spacing of identified archaeological sites
(including prehistoric and historic Hawaiian sites) over such a large project area, they
would not be an impediment to the development of the project site. The AA also
determined that a portion of the project area makai of the 3,000-foot elevation as part of
the Kona Field System (State Site 50-10-37-6601), which could indicate a higher
possibility of archaeological sites within that area. Cultural Surveys Hawaii also prepared
an archaeological inventory survey (AIS) entitled, "Archaeological Inventory Survey for
the Kealakekua Development Company Phase I Area (8-02-12:1) " for a portion of the
project area between the 2,200- and 3,200-foot elevation in August 1991. The AIS
identified 19 sites, the majority of which were believed to be associated with homestead
sites or enterprises of Japanese immigrants that were utilized between 1900 and 1930
(including cookhouses, cisterns, gardens, charcoal and meat smoking kilns, furos, roads,
etc.). Only one site was thought to be prehistoric (a minor agricultural terrace feature).
Three sites were recommended for data recovery or retention under significance criteria
C (excellent example of site type) and D (likely to yield information important in
prehistory or history). Nine sites were considered significant for their information content
and the final seven sites were considered to be "no longer significant" since the AIS
provided adequate information about them. By letter dated February 22, 1993, the State
Historic Preservation Division (SHPD) accepted the AIS and agreed with the significance
evaluations but required more information on the mitigation proposals for data recovery
and preservation. Specifically, SHPD indicated that at least one, if not all three Japanese
homestead sites identified in the AIS needed to be preserved in place and undergo
interpretation with public access to the sites. Finally, SHPD required additional research
to determine whether components of long -low mounded walls in the northwest part of the
project site had prehistoric elements which would help inform the chronology of the
upper spread of the Kona Field System. Conditions of approval of the subject ordinances
require an archaeological mitigation plan consisting of an archaeological data recovery
plan and a detailed interim protection preservation plan for sites that the AIS required for
each treatment prior to submitting plans for subdivision review (note that the three sites
slated for preservation are situated within what is now TMK 8-2-012:012). In addition,
the ordinance requires the development of a detailed map of known lava tube/cave
systems in the project area and mitigation measures to ensure that the golf course and
related drainage system would not harm the same. While the repeal of the subject change
of zone ordinances will delete these conditions, any subsequent subdivision or significant
land alteration will be subject to HRS 6E-42 review and additional studies/mitigation
may be required.
23. Cultural or Native Gathering Rights: No known traditional and customary Native
Hawaiian rights are being practiced on the site.
24. Public Access: There is no known designated public access to the mountains or ocean
through the subject properties.
PUBLIC FACILITIES AND SERVICES
25. Access: Access to the makai most property (TMK 8-2-012:014) is from Koa Road which
turns into Greenwell Mountain Road, a private, single -lane, paved road with 8 to10-foot-
wide pavement within a 60-foot road lot. Within the project area are a series of farm and
ranch roads with varying widths and surfaces. Conditions of the subject change of zone
ordinances required the original applicant to conduct significant roadway infrastructure
improvements to accommodate the originally proposed development. While repealing the
subject change of zone ordinances would allow the current landowners relief from this
condition, roadway standards for any subsequent subdivision or development of the
properties would need to meet the requirements of the County Code.
26. Water: Only TMK 8-2-012:014 is serviced by County water. Condition B of the
ordinances required the original applicant to develop a water source and distribution
system meeting with the requirements of the County Department of Water Supply to
service the originally proposed development. While repealing the subject change of zone
ordinances would allow the current landowners relief from this condition, water supply
for any subsequent subdivision or development of the properties would need to meet the
requirements of the County Code.
27. Wastewater: There is no County sewer system servicing this area. Wastewater disposal
for any new dwellings in the area would need to meet with the approval of the State
Department of Health in conjunction with the issuance of a building permit.
28. Solid Waste: There is no municipal solid waste collection on Hawaii Island, thus solid
waste disposal will need to be conducted by individual lot owners at a solid waste
transfer station or landfill in compliance with the requirements of the Department of
Environmental Management.
29. Essential Utilities and Services: All essential utilities and services are available to the
properties.
AGENCIES' COMMENTS
30. None were solicited or received.
PUBLIC COMMENTS
31. The Department has not received any written comments or objections from the public or
adjacent landowners.
I
CARLSMITH BALL LLP
A LIMITED LIABILITY LAW PARTNERSHIP
121 WAIANUENUE AVENUE
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HILO, HAWAII 96721-0686
TELEPHONE 808,935.6644 FAx 808.935.7975
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SLIMeCARLSMITH.COM
February 13, 2020
Michael Yee o
Director
Planning Department
101 Pauahi Street, Suite 7
Hilo, Hawaii 96720
Attn: Jeff Darrow -- -3
Re: Request for Planning Director -initiated rezoning of Change of Zone r
Ordinance No. 98-63, pursuant to Condition Z -
Affected landowners: Kealakekua Mountain Reserve, LLC; Kona Hills LLC,
HCC Farms LLC, Kealakekua Ranch, Ltd, Kealakekua Heritage Ranch LLC, and
Kealakekua Ranch, Ltd.
Tax Map Key Nos.: (3) 8-2-012:001, 012, 013, 014 (por.), 015, and 8-2-001: 101
(por.) jformerly (3) 8-2-012:012 and a portion of 001] (collectively referred to
herein as the "Property)
Dear Mr. Yee:
On behalf of the landowners subject to Change of Zone Ordinance No. 98-63 ("Ord. No.
98-63"), specifically Kealakekua Mountain Reserve, LLC ("KMR"); Kona Hills LLC, HCC
Farms LLC, , Kealakekua Heritage Ranch LLC, and Kealakekua Ranch, Ltd, we respectfully
request that the Planning Director initiate a rezoning of the Property pursuant to Condition Z, to
revert the existing zoning designations back to its original A-20a zoning. Condition Z of Ord.
No. 98-63 specifically states the following:
"Further, should any conditions not be met or substantially complied with in a timely
fashion, the Director shall initiate rezoning of the area to its original designation."
The landowners also request that the Planning Director concurrently process revocation
of the related Use Permit No. 121 (for 18-hole golf course) and Special Permit 898 (private
recreational center) issued for the Property.
Planning Dept.
Exhibit 1
HONOLULU HILO KONA
4838-4873-1016.6.065938-00001
MAUI
131360
February 13, 2020
Page 2
The following discussion will provide the necessary background, justification, and basis
for the subject request.
I. Historical Background on Property.
The Property was originally entitled in the mid- 1990s by Japan -based Kealakekua
Development Corporation ("KDC") to allow for development of a master planned agricultural
community. The proposed development at the time consisted of approximately 500 agricultural
lots, an 18-hole golf course and clubhouse, a 4-acre private recreational center, a 200-acre
agricultural park, a 255-acre equestrian center, a wastewater treatment plant, a County dedicable
water system, and a 8,455-acre forest reserve.
The Property was originally entitled under the following permits:
Use Permit 121, issued on March 1, 1994, allowed the development of an 18-hole
golf course, clubhouse, and related improvements;
2. Special Permit 898, issued on April 17, 1995, allowed the development of a private
recreational center on 4 acres of land in the vicinity of the golf clubhouse;
Ordinance No. 95-70, adopted on May 23, 1995, was further amended by Ord. No.
98-63, adopted on July 2, 1998, which rezoned TMK: (3) 8-2-001:001 and 012, from
A-20a to A -la, A-3a, A-200a, A-225a, and A-8000a respectively, to align with the
KDC master plan for the area.
In the late 1990's, KDC was forced to forgo its development plans and sell the Property
due to the collapse of the Japanese asset price bubble in the early 1990s and the resulting
deterioration of the Japanese economy, which directly affected the ability of KDC's parent
company to finance the project. In 2002, Koa Road LLC acquired the Property, and the Property
was eventually sold to Kealakekua Heritage Ranch ("KHR") in 2004.
The Property has since been subdivided twice, resulting in the rearrangement of existing
parcels through consolidation-resubdivision actions starting with a 3-lot subdivision (Lots 17-A,
1-A-1, and 1-A-2) approved by that Planning Department on April 10, 2014 under Final
Subdivision Approval No. SUB- 13-001285, followed by another 3-lot subdivision (Lots 1-A-1-
A, 1-A-1-B, and 1-A-1-C) approved on April 26, 2017 under Final Subdivision Approval No.
SUB-16-001672. The primary purpose of SUB-13-001285 was to create a standalone parcel that
consisted primarily of a conservation easement (Lot 1-A-2), which we discuss in the following
section below. Similarly, SUB-16-001672 was also processed to create a 224.99-acre parcel (Lot
1-A-1-B) for the purpose of establishing a conservation easement. See attached "Exhibit A" -
Tax Map with conservation easement overlay.
II. Conservation Easements.
The 2011 Conservation Easement (9,017.97 acres)
4838-4873-1016.6.065938-00001
February 13, 2020
Page 3
Shortly after KHR's acquisition of the Property, the intensive development plans
originally proposed by KDC were abandoned to shift the focus to forest conservation,
restoration, and stewardship, in addition to pursuing low -impact agricultural opportunities and
activities. In its quest to pursue this new vision for the Property, KHR worked closed with the
Department of Land and Natural Resources ("DLNR") and State Forest Stewardship Advisory
Committee ("SFSAC"), and through the assistance of the U.S. Forest Legacy Program, KHR
voluntarily recorded a Deed of Conservation Easement and Restriction of Development Rights in
favor of the State of Hawaii for over 9,017.97 acres (the " 2011 Conservation Easement") of the
approximately 11,185 acres of land rezoned by Ord. No. 98-63. See Exhibit B - Deed of
Conservation Easement and Restriction of Development Rights (Doc. No. 2011-100084).
The 2011 Conservation Easement area is largely comprised of the land area currently
identified as TMK: (3) 8-2-012:001 ("Parcel 001 " or Lot 1-A-2). The 2011 Conservation
Easement includes all of the A-8000a and A-200a zoned land designated under Ord. No. 98-631
as well as large areas of existing A-3a zoning and a portion of A-1 a zoning along the makai
boundaries of Parcel 001.
The 2011 Conservation Easement does not include the existing A-255a zoned area
within Parcel 001, as due to the historical structures present in this area, the Forest Legacy
Program deemed the area incompatible with the easement and the program purposes. As for the
additional acreage in this parcel, KHR's successor -in -interest, Kealakekua Mountain Reserve
LLC ("KMR"), is currently making use of these lands for growing native seedlings and
processing sustainably harvested wood, thus furthering the objective of utilizing the Property for
less impactful agricultural uses. The remaining A-1a and A-3a zoned lands are located within
TMK: (3) 8-2-012:012, 014, and 015, and these largely vacant pasture lands were excluded from
the 2011 Conservation Easement.
An important component of the 2011 Conservation Easement is that it guarantees that no
residential development activities or other more intensive uses can occur within its boundaries,
while also restricting intensive commercial forestry and other impacts that could adversely affect
the existing forest ecosystem. The 2011 Conservation Easement specifically: (i) eliminates
subdivision or partitions, (ii) meaningfully restricts, under State approval and oversight,
construction of temporary or permanent structures, including but not limited to buildings, barns,
sheds, parking lots, antennas, and satellite dishes, (iii) eliminates the construction of dwellings,
(iv) restricts the alteration to the land, including but not limited to the excavation or removal of
soil, sand, gravel, rock, lava, peat or sod, (iv) controls erosion or water pollution; (v) restricts the
alteration of water courses (vi) eliminates waste disposal, (vii) limits the construction of new
utilities, (vii) prohibits mining (viii) limits signage, and (ix) controls the introduction of non-
native invasive species or non -naturalized plant or animal species, with the exception of those
plants and species approved by the State of Hawaii.
' The 2011 Conservation Easement also includes approximately 400 acres of land with pre-existing A-20a zoning
(Exclusion 1) not subject to Ord. No. 98-63. Exclusion I is located immediately adjacent and north of TMK: (3) 8-
2-012:013.
4838-4873-1016.6.065938-00001
February 13, 2020
Page 4
Ord. No. 98-63 does not preclude the landowner from constructing multiple farm
dwellings in the A-8000a, A-255a and A-200a zoning (assuming the landowner could secure
Planning Director approval). Without the restrictive 2011 Conservation Easement in place
(which the State of Hawaii inspects on a regular (no less than annual) basis and can enforce
directly), Ord. No. 98-63 could also be amended with favorable political will, at any time, to
allow for more intensive uses within the A-8000a, A-255a, and A-200a zoned areas. However,
the 2011 Conservation Easement has established a large tract of open space in perpetuity, while
ensuring the forest ecosystem will be improved and protected, but also allowing more sustainable
forest activities to occur, including properly managed and sustainable timber harvesting, passive
recreational use, and increased research opportunities and educational pursuits.
KHR also commissioned the preparation of the "Hawaii Forest Stewardship Management
Plan", which was ultimately superseded by "Hawaii Multi -Resource Forestry Management
Plan", to guide future activities and management within the 9,017.97-acre 2011 Conservation
Easement (the "Management Plan"). The Management Plan, which was extensively reviewed
and was approved by the DLNR's Division of Forestry and Wildlife and SFSAC on August 7,
2013, incorporates the vision and provides the necessary framework to manage the property and
restore the forestlands to an ecologically sound, native flora -dominated forest.
The Management Plan specifically describes the practice and methods to implement and
enhance ecosystem conservation efforts, reforestation, weed and pest management, fire
management, timber production, livestock management, and scientific, educational, and
recreational uses, in addition to management of sensitive historical features. A few of the
important components of the Management Plan (between years 2013 and 2023) provides that
2011 would implement the following:
1. Forest Reforestation. Approximately 75% of the 2011 Conservation Easement is
considered forested by the standards established by the DLNR. The Management
Plan proposes that approximately 500 acres would be reforested during the life of the
Management Plan.
Reforestation efforts focus on maintaining and enhancing high quality forest areas
through removal of livestock and reduction of invasive species. The native tree cover
will also be increased with new plantings and encouragement of natural growth from
existing seed banks.
Reforestation and the implementation of the management practices described in the
Management Plan will also help to enhance the understory and overstory vegetation
cover, which as a result, is expected to even further mitigate the already limited
flooding potential to areas downslope of the 2011 Conservation Easement, and
improve water recharge of the underground aquifers.
2. Management of all existing infrastructure, including roads, water, and fences.
Maintaining and improving the existing roadway infrastructure will not only support
overall management operations within the Conservation Easement, but it will also
help to facilitate access for emergency and wildfire protection.
4838-4873-1016.6.065938-00001
February 13, 2020
Page 5
The existing water system infrastructure will be maintained to provide a suitable
water supply for livestock operations, the nursery and special uses, and to support
wildfire suppression. KHR has a helicopter water dip tank/pond within the
Conservation Easement to make additional water available to assist with any wildland
firefighting efforts.
Prior to the adoption of the Management Plan, KMR's predecessors installed
approximately 20 miles of replacement livestock fencing within portions of the
Property. KHR is also planning an additional 10 miles of livestock fencing to support
livestock removal and to complement the on -going forestry and native forest
restoration efforts.
Preparation of an "Education, Research, and Recreational Opportunities Plan"
("ERROP"). The ERROP is intended to facilitate use of the 2011 Conservation
Easement lands for scientific, educational, and recreational pursuits. The 2011
Conservation Easement lands include some of the most pristine and diverse
ecosystems to engage in unique hands-on, outdoor, nature -based learning.
Recreational opportunities, such as camping, hiking, and horseback riding will also be
developed in the ERROP. Under the current access planning, the property has hosted
an average of 150 person -nights on site for Hawaii Island -based youth groups. KMR
is working with the Hawaii Agricultural Research Center and the UH's Tropical
Hardwood Tree Improvement and Regeneration Center to advance scientific research
and the improvement of native tree reestablishment in Hawaii.
The 2011 Conservation Easement represents a highly collaborative effort between the
landowner and the State of Hawaii to advance the conservation purposes articulated in the 2011
Conservation Easement. As stated above, the easement is perpetual and can only be amended to
further the protections of the conservation values on the Property.
The HCC Farms Conservation Easement
HCC Farms LLC ("HCC") has likewise designated a conservation easement covering
150 acres of the 224.99-acre TMK: (3) 8-2-012:014. This easement was granted to Hawaii
Islands Land Trust ("HILT") by Grant of Conservation Easement dated June 30, 2017 recorded
in the State of Hawaii Bureau of Conveyances as Document Nos.: A-63900541A thru A-
63900541B. See Exhibit C attached. The HCC Farm Conservation Easements are similar in
many respects to the 2011 Conservation Easement and have the purpose of preserving important
ecological features on the HCC Farms property while permitting sustainable agriculture. The
HCC Farms Conservation Easement includes all of the land in TMK (3) 8-2-012:014, subject to
Ord. No. 98-63, and is shown on the Tax Map included as "Exhibit A".
Uniquely, the HCC Farms Conservation Easement has restrictions that ensure that non -
permeable surfaces are significantly controlled and limited. This ensures that potential run-off
from the HCC property is minimized and the footprint of any agricultural structures are
constrained.
4838-4873-1016.6.065938-00001
February 13, 2020
Page 6
The HCC Farms Conservation Easement is an excellent model of how cultivated
landscapes (the HCC Farms property has coffee orchards) can be properly planned and restricted
to ensure that sensitive ecological features on the land are preserved and enhanced. Through
cooperation with HILT, the HCC property has been used for agricultural tours highlighting this
conscientious land -use approach.
III. Reasons underlyinll the request for Planning Director -initiated rezoning.
The landowners subject to Ord. No. 98-63 are requesting that the Planning Director
initiate a rezoning of the Property pursuant to Condition Z, to revert the existing zoning
designations back to the original A-20a zoning. We are making this request because Ord. No.
98-63 is currently in technical non-compliance for failure to comply with Condition B, which
specifically states that "the effective date of the change of zone shall be:
(1) when the applicant provides assurance satisfactory to the Departments of Water
Supply and Planning, upon consultation with the State Department of Health and the
Department of Land and Natural Resources, that a water sources) of sufficient quality
and quantity has/have been established within two years from the enactment of this
ordinance; provided that a maximum one year extension may be granted by the Planning
Director with reasonable and sufficient justification;"
The KDC development plan for 500 dwellings, an 18-hole golf course and clubhouse,
including other intensive uses, has never aligned with KHR's philosophy of preserving important
ecological features on the land while permitting sustainable agriculture. This philosophy was the
impetus for placing over 75% of the Property into a Conservation Easement. KHR and the other
land owners currently subject to Ord. No. 98-63 have no intention to develop the extensive water
system required under the KDC development to comply with Condition B. Unfortunately, since
Ord. No. 98-63 still governs the activities that can occur within the boundaries of the subject
Ordinance, any attempt to process plans for a legitimate agricultural pursuits or activities,
allowable as permissible uses under the County's zoning laws for agricultural land, would be
rejected because of this existing entitlement.
The landowners are respectfully requesting that the Planning Department invoke
Condition Z of Ord. No. 98-63 to process a Planning Director -initiated reversion of the existing
zoning of the Property to its original pre-existing A-20a zoning designation, as specifically
required by Condition Z, based on non-compliance.
This is a reasonable request, as conservation easements have already encumbered more
than 75% of the Property, which is more restrictive than what was provided for under either Ord.
No. 98-63, or even the original A-20a zoning (if Ord. No. 96-83 was never processed for the
Property in the first place). The landowners want to be free of Ord. No. 98-63 to allow them the
ability to pursue permissible uses under the original A-20a zoning on those remaining lands that
are unencumbered by the conservation easements, and be afforded the same rights and privileges
of landowners with existing agricultural zoning without rezoning conditions.
4838-4873-1016.6.065938-00001
February 13, 2020
Page 7
KHR is also requesting that the Planning Department initiate proceedings to process
concurrent revocations of Use Permit 121 and Special Permit 898 with the Leeward Planning
Commission, for all the reasons identified above.
Finally, we have included Fee Owner's Letter of Authorizations for all the affected
landowners subject to Ord. No. 98-63, which authorizes our firm to process the requested
Planning Director -initiated reversion of Ord. No. 98-63 for the entire Property.
If you have any questions regarding this request or if you require additional information,
please feel free to contact me or my paralegal Jason Knable at 935-6644 at any time. Thank you
for your assistance with this request.
Very truly yours,
en S.C. Lim
SSL/jkkl
cc: Kealakekua Mountain Reserve, LLC
Kona Hills LLC, HCC Farms LLC
Kealakekua Ranch, Ltd
Kealakekua Heritage Ranch LLC
Kealakekua Ranch, Ltd.
SSL/jkkl
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R-31 STATE OF HAWAII
BUREAU OF CONVEYANCES
RECORDED
JUN 27, 2011 08:01 AM
DOC NO(S) 2011-100084
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DEPT. OF [AND AND NATURAL RESOURCES
LAND DIVISION
Tax Map Key No.: (3)8-2-012:001 Total No. of Pages: �3S'
DEED OF CONSERVATION EASEMENT AND RESTRICTION OF DEVELOPMENT RIGHTS
THIS DEED OF CONSERVATION EASEMENT AND RESTRICTION OF
DEVELOPMENT RIGHTS ("Easement') is made this _ day of , 2011, by
KEALAKEKUA HERITAGE RANCH, LLC, a Hawaii limited liability company, having the physical
address of 81-6580 Mamalahoa Highway, Kealakekua, HI 96750 ("Grantor"), in favor of THE
STATE OF HAWAII by its BOARD OF LAND AND NATURAL RESOURCES ("Grantee").
RECITALS
A. Grantor is the sole owner in fee simple of that certain real property situate at
Kealakekua, District of South Kona, County of Hawaii, State of Hawaii, consisting of 2
contiguous parcels totaling 11,470 acres, more or less, and bearing tax map key ("TMK")
number: (3)8-2-012:001 all as more particularly described in Exhibit A (the "Protected Property")
and shown on Exhibit B (site maps), which are attached to and incorporated into this Easement
by this reference.
B. The Protected Property. The Protected Property is 9,017.97 acres of the
approximately 11,470 acre parcel owned by Grantor located on the western slope of Mauna Loa
in the South Kona District, County of Hawaii. Grantor's 11,470 acres (the "Larger Parcel")
constitutes the mauka portion of the Kealakekua ahupua'a beginning at approximately the 2,200
foot elevation to approximately the 6,100 foot elevation. The terrain is undulating and contains
many different forest types including mixed open forest, closed 'ohi'a lehua mesic forest, ope
PRELIM. APPR'D.
119649_1.DOC "EXHIBIT B" �I_,i_�+ _i "
Attorney Ge~d
koa forest with mamane, and open koa forest. The Larger Parcel also contains acres of
forestland that were converted many decades ago to pastureland.
The following land use designations relate to the Protected Property:
1. State District Boundary. The Protected Property is classified as
"Agriculture," as defined by Hawaii Revised Statutes (HRS) Chapter 205. Use of the
Protected Property is limited as set forth in HRS Chapter 205.
2. County Zoning. The Protected Property is zoned "Agriculture," as defined
by Chapter 25-5-70 of the Hawaii County Code, and is limited to the uses prescribed
therein.
C. Development. The above land designations permit subdivision of the Protected
Property and construction of dwellings or other structures. The locations for possible future
structures shall be approved in writing by Grantee. No permanent dwellings shall be permitted
on the Protected Property.
D. Conservation Values. The Protected Property possesses important forest
ecosystems, forest resources and products including, but not limited to, commercial forest
product values and pharmacopeia, as well as open space, recreational, and
research/educational values collectively, the "Conservation Values". These specific
Conservation Values are of interest for protection through this Easement:
1. Forest Ecosystems — The Protected Property contains ecologically
significant forest ecosystem values including, but not limited to, overall watershed health, forest
health protection, and biodiversity. The Protected Property contributes to the overall watershed
health of Kealakekua ahupua'aANatershed and larger Kona region through contribution to
groundwater and aquifers recharge that supply the island with fresh water, capture of cloud drip
and condensation by vegetative cover, more specifically canopy trees and shrubs, and
reduction of soil loss due to erosion. Continued management focusing on water quality and
quantity improvement and coral reef protection through forest health protection and
corresponding reductions in soil erosion are essential to the overall health of the property and
the State. Forest health protection by means of suppression of invasive vegetation and feral
animals is further described in the required multi -Resource Forest Management Plan or Forest
Stewardship Plan (the "Plan"). The Protected Property contains and contributes to Hawaii's
overall blodiversity including threatened and endangered plant and animal species.
2. Forest Resources and Products — The Protected Property is comprised of
a significant amount of forest resources and products including, but limited to carbon (woody
biomass, trees, shrubs, grass, and soil carbon), timber resources (living, dead and dying trees),
cultural gathering material, pharmacopeia, as well as other forest products. The parties agree
that commercial and non-commercial vegetative management can also promote forest health.
Preservation of the Protected Property's forest resources and products is not only important to
conserve natural characteristics of the region, but also for management and to continue to
promote Hawaiian industries and cultural practices. The preservation of the Protected Property
as a working forest enables the Property to continue to provide the public and society with a
wide -range of goods and services (i.e., high -quality jobs, local/sustainable industry, a diversity
of forest based commercial goods, pharmacopeia, etc.).
I Open Space — Preservation of the Protected Property's conservation and
419099_I .DOC 2
P 84". A.-PR-D. )
D-PQ'In,WW+~.
agricultural values including the property's forests and timberland resources contribute to the
scenic and greenbelt qualities of the larger Kona region. Preservation of these scenic qualities
provides a significant public benefit and will preserve the Protected Property's scenic value and
existing natural resources including, but not limited to, native species populations; ohia, koa,
mamane, sandalwood and mamaki and various other mixed forest types; ecosystem habitat for
threatened and endangered species; as well as important geological features found on the
property. Removal of development rights from the Protected Property preserves the open
space values including reducing potential congestion on local roads and highways that would
result from residential development of the property.
a. Recreational, Research and Educational Values — The Protected
Property's recreational and research values contribute to the overall access to recreational
opportunities in the State and to the availability of locations and land types needed to expand
the knowledge base on Hawaiian ecosystems, geologic features, historic ranching practices and
restoration practices. The Protected Property's roads and trails, camping areas, archeological
and culturally important features, and unique research opportunities, including, but not limited to
human, animal and ecosystem perspectives are an important public benefit for the State and the
Protected Property. The parties recognize that access to the Protected Property for these
values is best achieved through facilitated and controlled means, in order to facilitate the
protection of the other Conservation Values.
The Conservation Values of the Protected Property are further documented in an inventory of
relevant features of the Protected Property "Baseline Documentation." The Baseline
Documentation, which has been reviewed and accepted by Grantor and Grantee, consists of
reports, maps, photographs, and other documentation that collectively provide an accurate
representation of the Protected Property at the time of the execution of this Easement and
which is intended to serve as an objective informational baseline for monitoring compliance with
the terms of this Easement.
E. Furthermore, the clearly delineated open space conservation goals and
objectives as stated in the Forest Legacy Program pursuant to Section 1217 of Title XII of the
Food, Agriculture, Conservation and Trade Act of 1990 (16 U.S.C. § 2103C), which was created
"to protect environmentally important private forest lands threatened with conversion to non -
forest uses" are represented by the Conservation Values and Purpose (as defined in Section 1
below) protected by this Easement. This project ranked high in the national selection process
for the Forest Legacy Program when it was funded by the U.S. Forest Service. Given that this
Easement and its purpose represent the advancement of the goals, objectives and purposes of
the Hawaii Forest Legacy Program, that Program has awarded a grant for the partial purchase
of this Easement through the U.S. Forest Service Forest Legacy Program. The grant was
made available in two phases, the first phase including 3,882.79 acres, the second phase
including 5,135.18 acres. For convenience in future monitoring and simplicity of documentation,
the parties have chosen to incorporate both phases in this single easement.
HRS Chapter 198 provides that any public body and any organization which
qualifies for and holds an income tax exemption under section 501(c)(3) of the Federal Internal
Revenue Code of 1986, as amended, and whose organizational purposes are designed to
facilitate the purposes of HRS Chapter 198, may acquire and hold conservation easements by
purchase, agreement, donation, devise, or bequest.
F. Grantee is a public body qualified to hold a conservation easement under
chapter 198. ,
419699_i.DOC 3
PRELIM. APPR`D.
Dapartmenl ad the
Attorney Gewaral
G. Grantor desires that the Conservation Values of the Protected Property be
preserved and maintained in perpetuity by permitting only those uses of the Protected Property
that do not significantly impair or interfere with the Conservation Values. And Grantee desires
to accept this Easement to preserve and protect in perpetuity the Conservation Values of the
Protected Property for the benefit of this generation, and the generations to come.
NOW THEREFORE, in consideration of the mutual covenants, terms, conditions, and
restrictions contained in this Easement, Grantor hereby voluntarily grants, conveys and warrants
to Grantee a conservation easement in perpetuity over the Protected Property, as defined in this
Easement, subject only to the mutual covenants, terms, conditions and restrictions contained in
this Easement and title matters of record as of the date of this Easement.
COVENANTS AND RESTRICTIONS
9. Purpose. The purpose of this Easement is to preserve the traditional forest
values of the Protected Property (defined as the Conservation Values), subject to the limited
use rights set forth herein (the "Purpose"), which Conservation Values include, but are not
limited to, the capacity of the Protected Property to sustainably produce commercial wood
products and other agricultural or agroforestry products consistent with the establishment and
maintenance of a productive and healthy forestland provided by, or anticipated to be restored on
the Protected Property; and (to the extent it is consistent with the sustainable resource
production values of the Protected Property), the relatively natural habitat provided by the
Protected Property, the historically and culturally sensitive features of the Protected Property,
and the open space characteristics of the Protected Property.
2. Rights Conveyed to Grantee. To accomplish the Purpose of this Easement the
following rights are conveyed to Grantee:
(a) Protection: Grantee has the right to enforce the provisions of this
Easement so as to: (i) preserve and protect the Protected Property in perpetuity; (ii) prevent any
use of or activity on the Protected Property that will significantly impair or interfere with the
Conservation Values; and (iii) enhance the Conservation Values of the Protected Property.
(b) Access: Grantee has the right to reasonable access to the Protected
Property to carry out the Purpose of this Easement as described below:
(i) To enter the Protected Property at least annually, at a reasonable
time and upon prior written notice to Grantor, for the purpose of making inspections to monitor
compliance with this Easement or to make a determination regarding the appropriateness of a
requested use or activity.
(ii) To enter the Protected Property at such other times as are
necessary if Grantee, in its sole discretion, has reason to believe a violation of the Easement is
occurring or has occurred, for the purpose of mitigating or terminating the violation and
otherwise enforcing the provisions of this Easement. Such entry shall be upon prior reasonable
notice to Grantor of not less than 24 hours, and Grantee shall not in any case unreasonably
interfere with Grantor's allowed uses and quiet enjoyment of the Protected Property.
(c) Enforcement: Grantee has the right to enforce this Easement and the
covenants and restrictions herein, including, but not limited to, the right to enjoin any use of, or
activity on, the Protected Property that is inconsistent with the terms and Purpose of t
. pro.
LDoPartmem of ow
419699 l.D(3C 4 A1lorney Ce~4
Easement, and to require the restoration of such areas or features of the Protected Property as
may be damaged by uses or activities inconsistent with the provisions of this Easement.
3. Grantor's Reserved Uses and Activities Consistent With the Purpose of the
Easement. Grantor reserves for itself all rights accruing from ownership of the Protected
Property that are not expressly prohibited by this Easement and are not inconsistent with the
Purpose of this Easement. Grantor expressly and specifically reserves the following rights:
(a) Forest Management: Forest management and timber harvesting is
permitted on the Protected Property for commercial purposes in accordance with applicable
Federal, State, and local laws and regulations and the provisions of the Plan (as may be
amended from time to time); prepared by Grantor and approved in writing by Grantee. This Plan
shall be consistent with the provisions of section 5(f) of the Cooperative Forestry Assistance Act
of 1978, as amended, 16 U.S. C. 2103a (f), and shall be subject to revision in order to
incorporate forest management practices that are prescribed under federal or state law. Any
amendment or material modification of the Plan must be approved by Grantee in accordance
with Section 6, below. Approval shall not be unreasonably withheld by Grantee and proposed
forest management activities presented in the Plan will be permitted unless they are expressly
prohibited by this Easement or inconsistent with the Purpose of this Easement or the provisions
of applicable federal or state law. In the event of any inconsistency or conflict between the
provisions of this Easement and the Plan, terms of this Easement shall prevail. Grantee
acknowledges that the Plan may, at Grantor's discretion, provide for commercial forest
management and agrees that commercial management when conducted sustainably and
pursuant to the terms of the approved Plan furthers the Purpose of this Easement. The parties
agree that the annual removal of 250,000 board feet or less of live timber (as measured in
International 1/4 Inch Rule board foot volume or similar system) and the salvage of dead trees is
considered to be de minimus commercial management and shall be permitted, if included in the
Plan, without restriction unless it is directly inconsistent with express restrictions contained
within this Easement or the provisions of applicable federal or state law. Any anticipated annual
live tree harvest amount exceeding 250,000 board feet shall be subject to the following
requirements and restrictions according to Professional Forestry standards:
(i) Prior to the first annual live tree harvest exceeding 250,000 board
feet following the execution of this Easement, Grantor shall conduct a timber cruise of the
merchantable forest inventory (which shall be defined to include trees greater than or equal to
eight inches (8") diameter at breast height (dbh) or greater) on the Protected Property. The
timber cruise volume estimates shall have a sampling error objective of ten percent (10%) at a
ninety percent (90%) level of confidence unless otherwise approved in writing and in advance
by Grantee. Grantor shall provide the timber cruise to Grantee within sixty (60) days following
completion. Additionally, Grantor shall conduct an inventory of the Protected Property no later
than every ten (10) years following the initial cruise, and every ten (10) year period thereafter.
Grantor shall provide each inventory to Grantee within sixty (60) days following completion.
(ii) The Plan shall contain a description of each forest stand or forest
type with a relatively uniform and similar forest conditions. Forest stand and associated forest
type maps shall be provided at a level of detail necessary to support professional forest
planning and forest type timber operations pursuant to this Easement and shall include, at a
minimum, tree numbers and stand volume by species (i.e. stand tables). Additionally, the Plan
shall specify silvicultural harvest methods, schedules and equipment. r
PRBI}M. APPR'D.
DepGc*nem ei *wt
Alcor" Gew®rai
419699_ 1 _DOC 5
(iii) Timber harvests will not remove more than twenty-five (25)
percent of the net merchantable inventory on the Protected Property in any ten (10) year period.
(iv) Grantor is permitted to use any silvicultural harvest method
provided that forest openings created through timber harvest may not exceed five (5) acres in
size. For purposes of this Easement, an Opening is an area in which post -harvest stand
stocking levels are less than an average of twenty (20) trees (greater then or equal to eight (8)
inches dbh), per acre and/or an equivalent volume within the area where actual tree harvesting
occurred.
(b) Agriculture. Agricultural activities that comply with federal, state and local
regulations and do not significantly impact or degrade the Conservations Values, including, but
not limited to, the raising and managing of livestock, are permitted. Notwithstanding the
foregoing, under no circumstances shall there be permitted any activity that imports raw
material(s) (commodities or livestock not produced as a result of the harvest of forage or
agricultural crops on the Property) onto the Protected Property for the purpose of fattening
livestock for commercial slaughter (i.e., a feed lot) unless otherwise permitted through
consultation and written approval of Grantee. Areas throughout the Protected Property
undergoing native forest restoration, as detailed in the Plan, shall exclude managed livestock
through the use of livestock proof fencing, until such time the planted vegetation is not
susceptible to grazing pressure.
(c) Hunting. Grantor may use the Protected Property for hunting of game
animals and for management purposes.
(d) Public and Private Access. This Easement allows Grantor to authorize
public and/or private access to any part or all of the Protected Property for permitted uses, on
such terms and conditions as Grantor deems appropriate in its sole discretion. In the event that
public access is authorized, that access shall be subject to terms and conditions established by
Grantor, after consultation with Grantee, that are intended to limit the extent and intensity of the
permitted use, in a manner consistent with preservation and protection of the Conservation
Values on the Protected Property.
(e) Recreational Uses. This Easement allows Grantor to authorize low
impact, passive recreational uses including, but not limited to, horseback riding, bird watching,
hiking, camping, photography, mountain biking, picnicking, and hunting, within the Protected
Property. In the event that any broader recreational use is contemplated, that use shall be
subject to terms and conditions established by Grantor, after consultation and written approval
by Grantee, that are intended to limit the extent and intensity of the permitted use, in a manner
consistent with preservation and protection of the Conservation Values on the Protected
Property, and in no event shall recreational uses that significantly impact or degrade the
Conservation Values be allowed.
(f) Construction of Improvements. The construction or reconstruction of any
improvement within the Protected Property is permitted only as authorized in or pursuant to this
Easement, provided that the improvement does not impair the Conservation Values and then
only on the condition that Grantor obtains all required permits and approvals from the state and
county. No permanent residences shall be permitted on the Protected Property.
(€) Maintenance or Replacement. Grantor may maintain, repair,
remodel, and make limited additions to any existing or subsequently constructed structures, ay�d
PRELIM. APPR D.
419699 LDOC Department ei #40
6 Anomey Geae"d
improvements expressly permitted by this Easement. In the event of removal or destruction of
any or all of said structures and improvements, or future structures and improvements (as
permitted by herein), to replace them with structures and improvements of a similar function and
use, in the same general locations. Additions to existing structures shalt not exceed more than
ten percent (10%) of its footprint at the time this easement is executed or, if it is constructed
subsequent to the execution of this easement, its original footprint.
(ii) Educational or Recreational Improvements. Grantor may
construct, maintain, repair, enlarge, and replace a reasonable number of nonpermanent
enclosed or unenclosed recreational improvements (such as trails, campgrounds, monitoring
stations, or other research facilities), as part of a plan to provide educational access,
recreational access or facilitated public access within the Protected Property, provided,
however, that Grantor shall consult with and obtain Grantee's written approval before
constructing any such improvements.
(iii) Hunting and Recreational Structures. After consultation with and
written approval of Grantee with regard to location and design, Grantor may construct, maintain,
repair, enlarge, and replace one (1) hunting structure and one (1) recreational structure within
the Protected Property. These structures may not exceed two thousand five hundred (2,500)
square feet of floor area each. Reasonable accessory structures, including but not limited to
restrooms, may also be constructed to be used in conjunction with the hunting and recreational
structures. The area associated with a structure shall not exceed one (1) acre (or a total area
for both structures less than .0002% of the Protected Property). No permanent residences shall
be permitted on the Protected Property.
(iv) Roads. Existing roads within the Protected Property are identified
in the Baseline Documentation to the best of Grantor's knowledge. Grantor may repair or
maintain existing roads. After consultation with Grantee, Grantor may: (A) relocate existing
roads for the purpose of improving or protecting habitat, accessing or repairing fences for
management purposes, reducing soil erosion or improving the driving surface and conditions or
(B) construct unimproved roads necessary or appropriate for property management and
sustainable resource production as permitted in this Easement. Construction of any new
improved road for any purpose requires Grantee's written approval.
(v) Utilities. Grantor may repair, modernize and replace such utilities
as may exist on the Protected Property. After consultation with and written approval of Grantee,
Grantor may also install new utilities within the Protected Property to serve authorized
improvements and uses in the Protected Property and/or to establish a water supply for such
improvements or uses. Limited utilities may be installed for development on the Larger Parcel
provided that alternative placement is not feasible or possible within excluded envelops.
Grantor must consult with and obtain written approval of Grantee for plans for utilities within the
Protected Property prior to construction of the utility. The term "utilities" includes, without
limitation, electric power lines and facilities, sanitary facilities (provided that any such facility is
connected to a wastewater collection and disposal system which does not entail any discharge
within the Protected Property or utilizes a no -discharge waste system (e.g. self -composting
toilets)), storm sewer facilities as required by local or state government, telephone and
communications cable systems, and their respective appurtenant facilities. Any utility lines
installed in the Protected Property shall be installed underground and any utility shall be
designed to minimize its visual impact.
(vi) Fences. Grantor may repair and replace or remove
fences and, after consultation with Grantee, may build new fences anywhere on the F
419699 1. DOC 7
PRt WA. AM'O,
Department of die
Adtomey Geaervi
Property for purposes of reasonable and customary management not inconsistent with the
preservation and protection of the Conservation Values. The use of fences may also be utilized
in conjunction with the establishment of introduced vegetation as detailed in the Plan.
(vii) Water Resources. Grantor may maintain, enhance and develop
water resources on the Property in accordance with applicable state and federal regulations, for
permitted agricultural uses, fish and wildlife uses, domestic needs, educational and recreational
uses. Permitted uses include the following: the right to restore, enhance and develop water
resources, including ponds; to locate, construct, repair, and maintain irrigation systems; to
develop wells, water storage and delivery systems including, but not limited to water pipelines,
and to develop stock watering capture and delivery facilities. Grantor agrees that water uses
are for the urger Parcel and that exportation of water is not permitted except with written
approval of Grantee.
(viii) Cultural. Historical and Archaeological Sites. Grantor may
maintain, preserve and protect, and may establish appropriate buffers and walls around, any
cultural, historical or archaeological sites located within the Protected Property provided that all
work is conducted in accordance with federal, state, and county laws and regulations.
(g) Access by Native Hawaiians. Nothing herein shall prevent the exercise of
any rights of Native Hawaiians for traditional and customary practices as may be required by
Hawaii law.
4. Uses and Activities Inconsistent With the Purpose of the Easement. Any use of,
or activity on, the Protected Property not authorized under Section 3 or inconsistent with the
Purpose of this Easement is prohibited ("Prohibited Activity'), and Grantor acknowledges and
agrees that it will not conduct, engage in or permit any such use or activity. Without limiting the
generality of the foregoing, the following uses of, or activities on, the Protected Property are
inconsistent with the Purpose of this Easement and shall be prohibited, except as expressly
provided in Section 3 above:
(a) Subdivision. The legal or "de facto" division, subdivision or partitioning of
the Protected Property.
(b) Structures. The placement or construction on the Protected Property of
any permanent or temporary buildings, structures, or other improvements of any kind including,
without limitation, buildings, barns, dwellings, sheds, roads, parking lots, antennas, and satellite
dishes.
(c) Alteration of Land. The alteration of the surface of the Protected
Property, including, without limitation, the excavation or removal of soil, sand, gravel, rock, lava,
peat, or sod.
(d) Erosion or Water Pollution. Any use or activity of or on the Protected
Property that causes or is likely to cause significant soil degradation or erosion or significant
pollution of any surface or subsurface waters.
(e) Alteration of Water Courses. The draining, filling, dredging, ditching, or
diking of wetland areas, the alteration or manipulation of ponds and water courses, or the
creation of new wetlands, water impoundments, or water courses on the Protected Property.
PROW. APM'D.
419694 LD(?C Money GeLmand
8 /
(f) Waste Disposal. The disposal or storage on the Protected Property of
rubbish, garbage, debris, unregistered vehicles, abandoned equipment, parts thereof, or other
unsightly, offensive, or hazardous waste or material.
(g) Utilities. The installation on the Protected Property of new utility systems
or extensions of existing utility systems, including, without limitation, water, sewer, power, fuel,
and communication lines and related facilities.
(h) Signs. The placement of commercial signs, billboards, or other
advertising material on the Protected Property.
(i) Mining. The exploration for, or development and extraction of, minerals
and hydrocarbons on or below the surface of the Protected Property.
0) Introduced Vegetation. Grantor will not introduce or release nonnative
invasive species (as listed in the State of Hawaii's Weed Risk Assessment list) or non -
naturalized plant or animal species, with the exception of species as described in the Plan or as
needed to maintain Conservation Values, and approved by Grantee. Desirable nonnative plant
species needed to improve and stabilize soils or improve habitat for native birds may be
introduced, but should comply with recommendations in the Plan and must be approved by
Grantee.
(k) Environmental Laws. The violation of, knowing allowance, or knowing
continuation of any violation of any applicable federal, state, or local law, regulation, or
requirement relating to protection of the air, water, or soil, human health and the environment
("Environmental Law") by Grantor, Grantor's agents, employees, or third party whom Grantor
has the right and ability to reasonably control.
5. Invasive Non -Native Species. Grantor agrees to implement methods of
controlling invasive non-native species on the Protected Property, and to encourage the
establishment of appropriate native species on the Protected Property as described in the Plan.
6. Notice and Approval.
(a) Notice. To afford Grantee an opportunity to ensure that any use or
activity proposed by Grantor is designed and carried out in a manner consistent with the terms
and Purpose of this Easement, Grantor shall notify Grantee and receive Grantee's written
approval prior to undertaking certain activities permitted only after prior approval by Grantee as
identified in this Easement, in Section 3 and Section 4. Grantor shall notify Grantee in writing
not less than seventy-five (75) days prior to the date Grantor intends to undertake the use or
activity for which approval is required. The notice shall describe the nature, scope, design,
location, timetable, and any other material aspect of the proposed activity in sufficient detail to
permit Grantee to make an informed judgment as to its consistency with the terms and Purpose
of this Easement.
(b) Approval. Where Grantee's approval is required, Grantee shall grant or
withhold its approval in writing within sixty (60) days of receipt of Grantor's written request for
approval. If at any time during the sixty (60) day period Grantee reasonably requests additional
specified information regarding the requested use or activity, Grantor shall provide such
information to Grantee within five (5) days. Grantor's failure to timely provide the additional
reasonably requested information shall be deemed sufficient reason for Grantee to withholr=orney
419699_1.DOC (�
approval. If Grantee reasonably requires more than sixty (60) days to respond to the notice,
Grantee may so notify Grantor in writing during the sixty (60) day period and will have an
additional sixty (60) days to respond. Grantee may also withhold approval based upon its
reasonable determination that the action as proposed would be inconsistent with the terms of
this Easement. If Grantee's approval is withheld, Grantee shall provide Grantor with its
reason(s) for such disapproval, and, if possible, what changes or additions to Grantor's request
that would enable Grantor to receive Grantee's approval. Grantee's approval may include
reasonable conditions, which must be satisfied in undertaking the proposed use or activity.
A request by Grantor shall be conclusively deemed approved upon Grantee's
failure to grant or deny approval within the time periods prescribed above.
If Grantor must undertake emergency action to protect health or safety on the
Protected Property or must act by and subject to the requirement of any governmental agency,
Grantor may proceed with such action without Grantee's approval provided, that Grantor shall
first make a reasonable attempt under the circumstances to give verbal/telephone notice to
Grantee of the proposed action.
(c) Addresses for Notices and Responses. Any notice, demand, request,
consent, approval, or communication that either party desires or is required to give to the other
shall, except as otherwise provided herein, be in writing either served personally or sent by
certified mail, return receipt requested, postage prepaid, addressed as follows:
To Grantors: Kealakekua Heritage Ranch, LLC.
Post Office Box 2240
Kealakekua, Hawaii 96750
To Grantee: State of Hawaii, Board of Land and Natural Resources
Post Office Box 621
Honolulu, Hawaii 96809
or to such other address as either party from time to time shall designate by written notices to
the other.
7. Dispute Resolution. If a dispute arises between the parties concerning the rights
or obligations of either party under this Easement, the parties shall, within thirty (30) days of
discovery of the dispute and delivery of notice thereof, arrange a face-to-face meeting of
representatives of the parties and each make good faith efforts to resolve the dispute. If such a
meeting is unsuccessful in resolving the dispute by sixty (60) days after the date that the initial
request to meet was made, then either party may pursue all available equitable and legal
remedies.
8. Grantee's Remedies.
(a) Default. Notice of Violation. Grantee's Right to Cure. If Grantee
determines that the Grantor is in violation of the terms of this Easement, or that a violation is
threatened, Grantee shall give written notice to Grantor of such violation or threat of violation,
and demand corrective action sufficient to cure or prevent the violation and, where the violates
419699_1.DOC 10
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involves injury to the Protected Property resulting from any use or activity inconsistent with the
terms and Purpose of this Easement, to restore the portion of the Protected Property so injured
to its prior condition in accordance with a plan approved by Grantee.
(b) Grantor's Failure to Respond. Grantee may bring an action as provided
in Section 8 if Grantor:
(i) Fails to cure or prevent the violation within thirty (30) days after
receipt of notice thereof from Grantee; or
(ii) Under circumstances where the violation cannot reasonably be
cured within the thirty (30) day period, fails to begin curing such violation within the thirty (30)
day period or fails to continue diligently to cure such violation until finally cured.
(c) Injunctive Relief. Grantee shall be entitled to pursue and enforce any and
all remedies as may be available at law or pursuant to this Easement, including damages
pursuant to HRS Section 198-5. Grantee's rights under this Section apply equally in the event
of either actual or threatened violations of the terms of this Easement. Grantor agrees that
Grantee's remedies at law for any violation of the terms of this Easement are inadequate and
that Grantee shall be entitled to injunctive and other relief to which Grantee may be entitled,
including specific performance of the terms of this Easement, without the necessity of proving
either actual damages or the inadequacy of otherwise available legal remedies. Grantee's
remedies described in this paragraph shall be cumulative and shall be in addition to all remedies
now or hereafter existing at law or in equity.
(d) Damages. Grantee shall be entitled to recover money damages for any
injury to the Conservation Values protected by this Easement or for the violation of the terms of
this Easement. In assessing such damages, there may be taken into account, in addition to the
cost of restoration, the loss of scenic, aesthetic, or environmental value to the Protected
Property, and other damages.
(e) No Bond Required. Any action for injunctive relief or damages may be
taken without Grantee being required to post bond or provide other security. Grantor is barred
from using this provision regarding damages as an affirmative defense against Grantee's rights
to injunctive relief.
(f) Emergency Enforcement. If Grantee, in its sole discretion, determines
that a violation of this Easement has created circumstances requiring immediate action to
prevent or mitigate significant damage to the Conservation Values of the Protected Property,
Grantee may pursue its remedies under this section without prior notice to Grantor or without
waiting for the period provided for cure to expire; provided, that Grantee shall first make a
reasonable attempt under the circumstances to give verballtelephone notice to Grantor of the
violation and proposed action.
(g) Costs of Enforcement. In the event Grantee must enforce the terms of
this Easement, the costs of restoration necessitated by acts or omissions of Grantor or anyone
under Grantor's control or authority or anyone in contractual privity with Grantor, in violation of
the terms of this Easement, and Grantee's reasonable enforcement expenses, including
attorney's fees, shall be borne by Grantor. In the event that Grantee secures redress for an
Easement violation without initiating or completing a judicial proceeding, the costs of such
restoration and Grantee's reasonable expenses shall be borne by Grantor. If Grantor ultirnpW
MUM. pro.
419699 I.DOC Deportment of OwI I altumey Gem"
prevails in any judicial proceeding inflated by Grantee to enforce the terms of this Easement,
each party shall bear its own attorneys' fees and costs.
(h) Grantee's Forbearance. Forbearance by Grantee to exercise its rights
under this Easement in the event of any breach of any terms of this Easement by Grantor, its
agents, employees, contractors, family members, invitees or licensees shall not be deemed or
construed to be a waiver by Grantee of such term or any of Grantee's rights under this
Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any
breach by Grantor shall impair such right or remedy or be construed as a waiver.
W Waiver of Certain Defenses. Grantor acknowledges that it has carefully
reviewed this Easement and has consulted with and been advised by counsel of its terms and
requirements. In full knowledge of the provisions of this Easement, Grantor hereby waives any
claim or defense it may have against Grantee under or pertaining to this Easement based upon
waiver, laches, estoppel, or prescription.
0) Acts Beyond Grantor's Control. Nothing contained in this Easement shall
be construed to obligate Grantor (or to entitle Grantee to bring any action against Grantor) to
abate, correct, or restore any condition on the Protected Property or to recover damages for any
injury to or change in the Protected Property resulting from causes beyond Grantor's control,
including, without limitation, fire, flood, storm, and earth movement, or for acts of trespassers, or
from any prudent action taken by Grantor under emergency conditions to prevent, abate, or
mitigate significant injury to the Protected Property resulting from such causes. Reasonable
restoration of significant acts of destruction (more than 5 acres) to vegetation on the Protected
Property that are incurred by ecotourism ventures, recreation hale activities, by guests or
residents will be an obligation of the Grantor and must be conducted in consultation with and
written approval of the Grantee.
(k) Estoppel Certificates. Grantee shall, within thirty (30) days of a request
by Grantor, execute and deliver to Grantor, or to any party designated by Grantor, any
document, including an estoppel certificate, that certifies, to the best of Grantee's knowledge,
Grantor's compliance or lack thereof with any obligation of Grantor contained in this Easement
and otherwise evidences the status of this Easement. Such certification shall be limited to the
condition of the Protected Property as of Grantee's most recent inspection. If Grantor requests
more current documentation, Grantee shall conduct an inspection, at Grantor's expense, within
thirty (30) days of receipt of Grantor's written request.
9. Costs, Liabilities and Insurance, Taxes, Environmental Compliance and
Indemnification.
(a) Costs, Legal Requirements, Liabilities and Insurance. Grantor retains all
responsibilities and shall bear all costs and liabilities of any kind related to the ownership,
operation, upkeep, and maintenance of the Protected Property, including the maintenance of
any insurance coverage desired by Grantor. Grantor remains solely responsible for obtaining
any applicable governmental permits and approvals for any activity or use permitted by this
Easement, and any such activity or use shall be undertaken in accordance w%th all applicable
federal, state, and local laws, regulations, and requirements. Grantor shall keep the Protected
Property free and clear of any contractual liens or encumbrances that may be senior to the
terms and conditions of this Easement.
(b) Taxes. Grantor shall pay before delinquency all taxes,
41%99_1.DOC 12
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fees, and charges of whatever description levied on or assessed against the Protected Property
by competent authority (collectively "Taxes"), including any taxes imposed upon, or incurred as
a result of, this Easement, and shall furnish Grantee with satisfactory evidence of payment upon
request. If Grantor fails to pay any Taxes when due, Grantee is authorized, but in no event
obligated, to make or advance such payment of Taxes upon three (3) days prior written notice to
Grantor, in accordance with any bill, statement, or estimate procured from the appropriate
authority, without inquiry into the validity of the Taxes or the accuracy of the bill, statement or
estimate, and the obligation created by such payment shall bear interest until paid by Grantor at
the maximum rate allowed by law.
(c) Representations and Warranties. Grantor represents and warrants that to
the best of Grantor's knowledge:
0) There are no apparent or latent defects in or on the Protected
Property, other than lava tubes;
(ii) Grantor and the Protected Property are in compliance with all
federal, state, and local laws, regulations and requirements applicable to the Protected Property
and its use;
(iii) Except as has been disclosed to Grantee by Grantor through the
Environmental Site Assessments, Phase I dated April 23, 2010 and Phase ll dated November
10, 2010, conducted on the property by Grantee and Grantor respectively, there has been no
release, dumping, burying or abandonment on the Protected Property by Grantor or any other
person, or migration from any source off site, on or to the Protected Property, of any
substances, materials, or wastes which are defined as hazardous, toxic, dangerous, or harmful
and/or as a pollutant by any federal, state or local law, regulation, statute, or ordinance. The
Grantor shall seek a determination from the Hawaii Department of Health of no further action for
sites disclosed through the Environmental Site Assessment, Phase I dated April 23, 2010;
(iv) There is no pending or threatened litigation affecting the Protected
Property or any portion of the Protected Property that will materially impair the Conservation
Values of any portion of the Protected Property. No civil or criminal proceedings have been
instigated or are pending against the Grantor or its predecessors by government agencies or
third parties arising out the alleged violations of environmental laws, and neither Grantor nor its
predecessors in interest have received any notices of violation, penalties, claims, demand
letters, or other notification relating to a breach of environmental laws.
(d) Remediation. If at any time, there occurs, or has occurred, a release in,
on, or about the Protected Property of any substance now or hereafter defined, listed, or
otherwise classified, pursuant to any federal, state, or local law, regulation, or requirement as,
toxic or dangerous to the air, water, or soil, or in any other way harmful or threatening to human
health or environment, Grantor agrees to take all steps necessary to assure its containment and
remediation, including any cleanup that may be required.
(e) Control. Grantor shall not itself perform or knowingly permit any
Prohibited Activity to be performed by Grantor, its agents or employees, or those within
Grantor's ability reasonably control. Grantor will take reasonable steps to prevent, halt and/or
enjoin any Prohibited Activity by a third party but shall not be liable for any Prohibited Activity
performed or engaged in by any third party over whom Grantor has no ability to reasonably
control. Nothing in this Easement shall be construed as giving rise to any right or abilityAn
"ALJM- AMWD.
Par ma o sf Uw
419699_I.DOC t 3 Ai+orney C w nd
Grantee to exercise physical or managerial control over the day-to-day operations of the
Protected Property. Nothing in this Easement shall be construed as giving rise, in the absence
of a judicial decree, to any right or ability of Grantee to become an "operator" with respect to the
Protected Property within the meaning of the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, or the environmental laws of the State of
Hawaii.
(f) Indemnification. Grantor agrees to release and hold harmless, indemnify,
and defend Grantee and its members, directors, officers, employees, agents, and contractors
and the personal representatives, heirs, successors, and assigns of each of them (collectively
"Indemnified Parties") from and against all liabilities, penalties, costs, losses, damages,
expenses, causes of action, claims, demands, or judgments, including, without limitation,
reasonable attorney's fees, arising from or in any way connected with:
(i) Grantor's failure to perform the obligations and covenants set forth
in this Easement;
(ii) Injury to or the death of any person, or physical damage to any
property, resulting from any act, omission, condition, or other matter related to or occurring on or
about the Protected Property, regardless of cause, unless due solely to the negligence of any of
the Indemnified Parties acting within the scope of their authority; and
(iii) The obligations, covenants, representations and warranties in
subsections (a) through (e) of this Section 9.
10. Subsequent Transfer or Extinguishment.
(a) Extinguishment. A court with jurisdiction may, if it determines that
conditions upon or surrounding the Protected Property have changed so much that it becomes
impossible or impracticable to fulfill the Purpose of the Easement, extinguish or modify this
Easement in accordance with applicable State law, at the joint request of both Grantor and
Grantee. If this Easement is extinguished by judicial proceeding, Grantee shall be entitled to
the value of the Easement calculated in accordance with Section 10(b) below.
(b) Valuation. This Easement constitutes a real property interest immediately
vested in Grantee. Easement Value Ratio shall mean the ratio of the value of this Easement on
the effective date of the Easement, to the value of the Protected Property unencumbered by this
Easement on the effective date of the Easement. The values shall be those values determined
in Grantee's 2010 appraisal of the Protected Property. The Easement Value Ratio shall remain
constant. If this Easement is extinguished as described in subsection (a) above, Grantor agrees
to pay to Grantee the fair market value of the Easement, which the parties stipulate is the value
of the Protected Property unencumbered by this Easement on the date of its extinguishment,
multiplied by the Easement Value Ratio. The value of the Protected Property unencumbered by
this Easement on the date of its extinguishment shall be determined by an appraisal by
Grantee.
(c) Condemnation. If all or any of the Protected Property shall be taken by
exercise of the power of eminent domain or acquired by purchase in lieu of condemnation,
whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in
part, Grantor and Grantee shall act jointly to recover the full value of the interest in the Protected
Property subject to the taking or in lieu purchase and all direct or incidental damages resulti
MMUM. AP"'D,
419699_I.DOC 14 Deportment o6 *4
AAorney Goa"
from the taking or in lieu purchase. All expenses reasonably incurred by Grantor and Grantee in
connection with the taking or in lieu purchase shall be paid out of the amount recovered. Except
as provided by applicable law, Grantor and Grantee agree that Grantee's share of the balance
of the amount recovered shall be an amount determined by multiplying the amount recovered by
the Easement Value Ratio.
(d) Application of Proceeds. The Grantee's portion of the proceeds shall be
used to further the purposes of the United States Forest Service Forest Legacy Program.
(e) Subsequent Transfers. Grantor agrees to:
W Incorporate the terms of this Easement by reference in any deed
or other legal instrument by which it divests itself of any interest in all or a portion of the
Protected Property, including without limitation, a leasehold interest;
(ii) Describe this Easement in any executory contract for the transfer
of any interest in the Protected Property;
(iii) Give written notice to the Grantee of the transfer of any interest in
all or a portion of the Protected Property no later than fifteen (15) days before the date of such
transfer. Such notice to Grantee shall include the name, address, and telephone number of the
transferee or the transferee's representative.
The failure of the Grantor to perform any act required by this paragraph shall not impair the
validity of this Easement or limit its enforceability in any way.
11. Amendment. If circumstances arise under which an amendment to or
modification of this Easement would be appropriate, Grantor and Grantee are free to jointly
amend this Easement; provided that no amendment shall be allowed that shall affect the
qualification of this Easement or the status of Grantee under any applicable laws, including HRS
Chapter 198, Section 170(h) of the Internal Revenue Code of 1986, and the Forest Legacy
Program (P.L. 101-624; 104 Stat. 3359), as amended (or any successor provisions(s) then
applicable). Any such amendment shall be consistent with the Purpose of this Easement, shall
not affect its perpetual duration, shall be in accordance with the Assignment and Succession
referred to in Section 12 below and shall be recorded in the State of Hawai'i Bureau of
Conveyances.
12. Assignment and Succession.
(a) Assignment. This Easement is transferable, but Grantee's rights and
obligations under this Easement may be assigned only to an organization that is a qualified
organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986,
as amended (or any successor provision then applicable), and the applicable regulations
promulgated thereunder, and authorized to acquire and hold conservation easements under
HRS Chapter 198 (or any successor provision(s) then applicable) and in accordance with the
provisions of the Assignment of Rights referenced in subsection (b) below. As a condition of
such transfer, the successor shall agree to exercise its rights under the assignment consistent
with the terms and Purpose of this Easement.
(b) Succession. If at any time it becomes impossible for Grantee to ensure
compliance with the covenants, terms, conditions and restrictions contained in this Easeme ,
PRBUM. APPWO,
41%99_1.DOC 15 DOPONment of"
Aiic�mey Gen"
Grantee shall cease to exist or to be a qualified organization under Section 170(h) of the
Internal Revenue Code of 1986, as amended (or any successor provision then applicable) or to
be authorized to acquire and hold conservation easements under HRS Chapter 198 (or any
successor provision(s) then applicable), then Grantee's rights and obligations under this
Easement shall be transferred to a successor approved by Grantor and Grantee or, failing such
joint approval, shall vest in such organization as a court having jurisdiction shall direct, pursuant
to the applicable Hawaii law and the Internal Revenue Code of 1986, as amended (or any
successor provision(s) then applicable), and with due regard to the terms and Purpose of this
Easement.
13. Recordation. Grantee or Grantor shall record this instrument in a timely fashion
in the official records of the Bureau of Conveyances, DLNR, State of Hawaii, and in any other
appropriate jurisdictions, and Grantee may re-record it at any time as may be required to
preserve its rights in this Easement.
14. Reversionary Clause. Notwithstanding any other provision to the contrary, the
Grantee acknowledges that this Easement was acquired with Federal funds under the Forest
Legacy Program (P.L. 101-624; 104 Stat. 3359) and that the interest acquired cannot be sold,
exchanged, or otherwise disposed, except as provided in Section 12, unless the United States
is reimbursed the market value of the interest in land at the time of disposal as calculated in
accordance with Section 10(b). Provided however, the Secretary of Agriculture may exercise
discretion to consent to such sale or extinguishment upon the State's tender of equal valued
consideration acceptable to the Secretary.
15. General Provisions.
(a) Controlling Law. The interpretation and performance of this Easement
shall be governed by the laws of the State of Hawaii.
(b) Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the
terms and Purpose of this Easement and the policy and purpose of Hawaii Revised Statutes
Chapter 198. If any provision in this instrument is found to be ambiguous, an interpretation
consistent with the terms and Purpose of this Easement that would render the provision valid
shall be favored over any interpretation that would render it invalid.
(c) Severability. If any provision of this Easement, or its application to any
person or circumstance, is found to be invalid, the remainder of the provisions of this Easement,
or the application of such provision to persons or circumstances other than those as to which it
is found to be invalid, as the case may be, shall not be affected.
(d) Entire Agreement. This instrument sets forth the entire agreement of the
parties with respect to the Protected Property and supersedes all prior discussions,
negotiations, understandings, or agreements between Grantor and Grantee relating to the
Protected Property, all of which are merged into this Easement. No alteration or variation of this
instrument shall be valid or binding unless contained in an amendment that complies with
Section 11.
(e) No Forfeiture. Nothing contained in this Easement will result in a
forfeiture or reversion of Grantor's title in any respect.
P WOm. APPR'D.
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4196991. DOC 1C
Attorney GerwrJ
(f) "Grantor'- "Grantee". The terms "Grantor" and "Grantee," wherever used
in this Easement, and any pronouns used in their place, shall be held to mean and include,
respectively the above -named Grantor, and its personal representatives, heirs, successors, and
assigns, and the above -named Grantee, its personal representatives, successors and assigns.
(g) Successors and Assigns. The covenants, terms, conditions, and
restrictions of this Easement shall be binding upon, and inure to the benefit of, the parties to this
Easement and their respective personal representatives, heirs, successors, and assigns, and
shall continue as a servitude running in perpetuity with the Protected Property.
(h) Termination of Rights and Obligations. A parry's rights and obligations
under this Easement terminate upon transfer of the parry's interest in the Easement or
Protected Property, except that liability for acts or omissions occurring prior to transfer shall
survive transfer.
(i) Counterparts. The parties may execute this instrument in two or more
counterparts, which shall be signed by both parties. Each counterpart shall be deemed an
original instrument as against any party who has signed it. In the event of any disparity between
the counterparts produced, the recorded counterpart shall be controlling.
0) Headings and Captions. The headings, subheadings and captions used
in this Easement are for convenience of reference only and are not to be used to construe,
interpret, define, or limit the sections to which they may pertain.
(k) Conservation Easement. The conveyance of this Easement is a
conveyance of an interest in real property and constitutes a "conservation easement" as defined
in HRS Section 198-1.
(1) Easement Runs With Protected Property. This Easement runs with the
land and shall be binding upon Grantor's personal representatives, heirs, successors, and
assigns in perpetuity.
16. Schedule of Exhibits. The following Exhibits are attached to and incorporated
into this Easement by this reference:
(a) Legal Description and Survey of Protected Property Subject to Easement
(b) Site Maps
Executed and effective the day and year first above written.
IN WITNESS WHEREOF, the STATE OF HAWAII. by it Board of Natural Resources,
has caused the seal of the Department of Land and Natural Resources to be hereunto affixed
and the parties hereto have caused these presents to be executed the day, month and year first
above written.
Approved by the Board
KEALAKEKUA HERITA NCH, LLC,
of Land and Natural
a Hawaii limited Uability
Resources at its meeting
held on April 21, 2011.
By:
Its:
APPROVED AS TO FORM:
"Grantor"
THE STATE OF HAWAII
J U INA.
Ddpub^ttomey General By:
WILLIAWJ. A JR.
Dated: vltl�`� 11 Chairperson
Board of Land and Natural Resources
r^_anteew
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f,,to+��uy Gentllul
.e 196W_ I.DOC 18
STATE OF HAWAII
SS.
COUNTY OF HAWAII
On his day of Jal%c . 2011, before me personally appeared
/37AS ACC to me personally known, who, being by me duty sworn or
affirmed, did say that such person executed the foregoing instrument as the free act and deed
of such person, and if applicable, in the capacities shown, having been duly authorized to
execute such instrument in such capacities.
Dot_ Date- U17
Name:4T—e—�
Doc. Descriotinn-
NOTARY CERTIFICATION
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74_ �103A/
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41%" LDOC 19
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STATE OF HAWAI`I
SURVEY DIVISION
DEPT. OF ACCOUNTING AND GENERAL SERVICES
C.S.F. No. 25,081 HONOLULU
H.S.S. Plat 221
CONSERVATION EASEMENT
Kalama and Keaiakekua, South Kona, Island of Hawaii, Hawaii
Comprising the following:
May 26, 2011
A. Portion of Royal Patents 3607 and 7533, Land Commission Award
8452, Apana 9 to A. Keohokalole.
B. Portion of Grant 5206 to Francisco Deniz.
Beginning at the southwest corner of this easement and at the southeast
corner of Grant 1613 to C.B. Kalaau, the coordinates of said point of beginning referred to
Government Survey Triangulation Station "PUU OHAU" being 10,684.07 feet South and
23,991.17 feet East, thence running by azimuths measured clockwise from True South: -
1. 1490 06' 50" 2288.90 feet along Grant 1613 to C.B. Kalaau;
2. 2410 28' 807.32 feet along the remainder of Grant 5206 to Francisco
Deniz;
3. 3390 38' 42" 134.51 feet along the remainder of Grant 5206 to Francisco
Deniz;
4. 3110 46' 03" 151.35 feet along the remainder of Grant 5206 to Francisco
Deniz;
5. 326" 28' 51" 178.76 feet along the remainder of Grant 5206 to Francisco
Deniz;
_1_ ,
C.S.F. No. 25,081 May 26, 2011
6. Thence along the remainder of Grant 5206 to Francisco Deniz on a curve to the left with
a radius of 195.00 feet, the chord azimuth and
distance being:
2900 15' 32" 230.46 feet;
7. 2540 02' 13" 140.17 feet along the remainder of Grant 5206 to Francisco
Deniz;
8. 238" 48' 21" 163.79 feet along the remainder of Grant 5206 to Francisco
Deniz;
9.
259"
27'
29"
158.88
feet along the remainder of Grant 5206 to Francisco
Deniz;
10.
2540
10'
18"
209.30
feet along the remainder of Grant 5206 to Francisco
Deniz;
11.
2450
45'
13"
257.60
feet along the remainder of Grant 5206 to Francisco
Deniz;
12,
2420
17'
44"
217.93
feet along the remainder of Grant 5206 to Francisco
Deniz•,
13.
2280
10'
58"
153.55
feet along the remainder of Grant 5206 to Francisco
Deniz;
14.
2130
14'
52"
175.45
feet along the remainder of Grant 5206 to Francisco
Deniz;
15.
2210
53'
49"
265.63
feet along the remainder of Grant 5206 to Francisco
Deniz;
16. 2400 08' 27" 230.38 feet along the remainder of Grant 5206 to Francisco
Deniz;
17. 2220 54' 20" 329.31 feet along the remainder of Grant 5206 to Francisco
Deniz;
18. 2340 10' 43" 290.39 feet along the remainder of Grant 5206 to Francisco
Deniz;
19. 2230 26' 29" 179.23 feet along the remainder of Grant 5206 to Francisco
Deniz;
�patiµ. ,, cA the
Oppoll"norol
pitorp
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C.S.F. No. 25,081 May 26, 2011
20. 1960 32' 56" 230.83 feet along the remainder of Grant 5206 to Francisco
Deniz;
21. 2290 53' 26" 129.08 feet along the remainder of Grant 5206 to Francisco
Diaz and along the remainder of R.P.s 3607
and 7533, L.C. Aw. 8452, Ap. 9 to A.
Keohokalole;
22. 2850 19' 14" 150.13 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
23. 2380 43' 31" 191.07 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
24. 2250 56' 16" 169.78 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
25. 2600 26' 15" 76.74 feet along the, remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
26. 271° 45' 41" 219.19 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
27. 2670 28' 16" 70.97 feet along the remainder of RP.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
28. 2540 54' 39" 269.28 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
29. 2650 06' 24" 273.32 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
30. 259° 31' 08" 192.02 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
31. 2710 08' 55" 164.13 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
32. 2730 03' 19" 224.37 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
33. 2750 36' 18" 174.02 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
PIMUM.APPR'O.
"t 01 tho
OeP°r,n°G_erd4
Attorn&Y
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C,S.F. No. 25,081
May 26, 2011
34. Thence along the remainder of R.P.s 3607 and 7533, L.C. Aw. 8452, Ap. 9 to A.
Keohokalole on a curve to the right with a
radius of 155.00 feet, the chord azimuth and
distance being:
2970 57' 22" 117.89 feet;
35. 3200 18' 26" 138.34 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
36. 2890 03' 36" 84.66 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
37. 2750 23' 17" 110.92 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
38. 2960 08' 40" 124.82 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
39. 3260 18' 17" 221.95 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
40. 2740 29' 27" 148.51 feet along the remainder of R.P.s 3607 and 7533,
L.G. Aw. 8452, Ap. 9 to A. Keohokalole;
41. 2380 24' 46" 99.02 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
42. 2440 21' 40" 63.61 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
43. 2270 3 P 57" 152.02 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
44. 2460 38' 32" 200.04 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
45. 2570 36' 57" 158.97 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
46. 252" 59' 42" 231.30 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
47. 2520 59' 42" 132.46 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
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M*LL%A. A►"'D.
C.S.F. No. 25,081 May 26, 2011
48. 2630 34' 51" 144.06 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
49. 2750 17' 29" 126.50 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
50. 2610 13' 06" 262.59 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
51. Thence along the remainder of R.P.s 3607 and 7533, L.C. Aw. 8452, Ap. 9 to A.
Keohokalole on a curve to the left with a radius
of 145.00 feet, the chord azimuth and distance
being:
2430 43' 23.5" 87.18 feet;
52. 2260 13' 41" 183.72 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
53. 2350 13' 58" 225.67 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
54. 2410 20' 0T' 334.38 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
55. 2830 47' 47" 70.47 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
56. Thence along the remainder of R.P.s 3607 and 7533, L.C. Aw. 8452, Ap. 9 to A.
Keohokalole on a curve to the left with a radius
of 165.00 feet, the chord azimuth and distance
being:
2520 47' 57.5" 169.95 feet;
57. 2210 48' 08" 104.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
58. 2350 36' 49" 130.11 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
59. 2510 35' 04" 259.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
60. 2660 27' 33" 107.20 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
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MUM. APPIM.
D,pwvn.-d of IM
Aoamey G*Pewd
C.S.F. No. _25,081 May 26, 2011
61. 2730 22' 47" 244.49 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
62. 2680 00' 58" 166.02 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
63. 278" 33' 40" 159.03 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
64. 2880 58' 57" 115.47 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
65. 3160 40' 12" 264.25 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
66. 3070 00' 53" 52.44 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
67. 2620 06' 02" 183.66 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
68. 283" 46' 56" 108.03 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
69. 2750 57' 58" 152.32 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap, 9 to A. Keohokalole;
70. Thence along the remainder of R.P.s 3607 and 7533, L.C. Aw. 8452, Ap. 9 to A.
Keohokalole on a curve to the right with a
radius of 25.00 feet, the chord azimuth and
distance being:
3290 51' 58.5" 40.40 feet;
71. 230 45' 59"
91.73 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
72. 349° 36' 43"
85.34 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
73. 3250 13' 56"
120.76 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
74. 2980 16' 43"
71.86 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
"KIM, ArPR'D.
D-pork—,,# of Uw
AMar—y Goa.rW
C.S.F. No. 25,081 May 26, 2011
75. 2940 50' 48" 146.43 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
76. 3130 54' 308.40 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
77. 293Q 23' 52" 93.20 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
78. 2760 08' 16" 192.86 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
79. 2700 39' 14" 122.33 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
80. 2860 13' 16" 437.40 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
81. 2760 49' 19" 171.70 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
82. 2900 48' 12" 188.80 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
83. 2840 26' 06" 216.35 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
84. 2780 01' 17" 139.31 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
85. 2510 36' 14" 191.60 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
86. 2380 07' 34" 144.20 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
87. 2560 18' 19" 112.79 feet along the remainder of R.Rs 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
88. .2790 01' 56" 106.59 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
89. 2890 46' 43" 151.71 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
r.�
-7-
C.S.F. No. 25,081 May 26, 2011
90. 2750 24' 41" 143.02 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
91. 2570 33' 37" 183.64 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw, 8452, Ap. 9 to A. Keohokalole;
92. 2440 24' 31" 141.41 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
93. 2620 39' 10" 342.05 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
94. 2580 19' 02" 156,48 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
95. 2610 47' 27" 310.75 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
96. 2800 10' 17" 494.33 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
97. 2660 46' 06" 69.87 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
98. 2600 38' 54" 529.58 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
99. 2650 26' 39" 117.26 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
100. 2500 41' 53" 143.35 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
101. 2680 33' 38" 71.48 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
102. 2540 26' 53" 98.07 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
103. 2540 45' 57" 173.61 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
104. 1640 45' 57" 60.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
- 8 -
"KiM. A"ro.
D-P-rtmenf of d,e
AM-ney G*nor,d
C.S.F. No. 25,081 May 26, 2011
105. 1200 17' 17" 252.65 feet along the remainder of R.P.s 3607 and 7533,
L.C, Aw. 8452, Ap. 9 to A. Keohokalole;
106. 1680 58' 55" 351.31 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
107. 1190 18' 22" 228.49 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
108. 1840 59' 42" 440.67 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
109. 1470 46' 38" 208.48 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
110. 1510 39' 08" 261.47 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
111. 1470 48' 34" 233.57 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
112. 1770 32' 13" 414.25 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
113. 1640 11' 12" 729.70 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
114. 278° 28' 39" 686.97 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
115. 2770 30' 43" 490.06 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
116. 2670 09' 37" 643.72 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
117. 293° 19' 29" 168.98 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
118, 2970 06' 11" 632.33 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
119. 1800 45' 255.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
M
Anorr-y Ga+wrd
C.S.F. No. 25,081 May 26, 2011
120. 1790 15' 625.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw, 8452, Ap. 9 to A. Keohokalole;
121. 1690 30' 403.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
122. 1750 40' 300.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
123. 1740 20' 205.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
124. 182° 30' 310.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
125. 830 00' 81.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
126. 1790 40' 783.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
127. 1770 30' 130.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
128. 1760 50' 515.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
129. 600 00' 60.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
130. 1480 00' 591.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
131. 1530 00' 590.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
132. 1480 00' 500.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
133. 01570 00' 290.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
134. 1660 00' 240.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
D-p-+rn.nr of Ow
Ananoy Gonard
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C.S.F. No. 25,081
135. 1700 00'
136. 830 45' 45"
137. 540 45'
138. 630 30'
139. 560 00'
140. 590 00'
141. 68° 00'
142. 740 00'
143. 910 20'
144. 620 30'
145. 700 05' 56"
146. 130 48' 25"
147. 670 49' 27"
148. 660 16' 09"
149. 720 01' 21"
May 26, 2011
315.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
1125.65 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
403.38 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
625.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
368.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw, 8452, Ap. 9 to A. Keohokalole;
212.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
145.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
595.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
468.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw, 8452, Ap. 9 to A. Keohokalole;
240.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
2421.57 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
1275.75 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
388.53 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
470.10 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
312.25 feet along the remainder of R.P.s 3607 and 7533, I
Aw. 8452, Ap. 9 to A. Keohokalole;
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Pn APPR'D.
of
An—_y Go++oro/
C.S.F. No, 25,081 May 26, 2011
150. 800 34' 48" 389.19 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
151. 75Q 06' 07" 99.67 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
152. 810 51' 14" 247.64 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
153. 910 43' 46" 397.64 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
154. 83" 13' 09" 408.75 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw, 8452, Ap. 9 to A. Keohokalole;
155. 770 24' 28" 642.47 feet along the remainder of KP.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
156. 1100 59' 54" 137.37 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
157. 1160 59' 52" 252.84 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
158. 85" 39' 27" 233.17 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
159. 670 39' 28" 321.36 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
160. 46° 28' 07" 219.29 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
161. 320 29' 46" 318.85 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
162. 500 47' 01" 234.59 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
163. 640 22' 55" 198.30 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
164, 740 19' 37" 508.51 feet along the remainder of R.P.s 3607 and 7533, L.
Aw. 8452, Ap. 9 to A. Keohokalole; /
-12-
"ftu. '�'em-°
orrtey Gana
C.S.F. No. 25,081 May 26, 2011
165. 630 08' 30" 509.37 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
166. 760 34' 47" 182.46 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
167, 1100 03' 59" 98.99 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
168. 242" 00' 256.51 feet along R.P.s 4386 and 7532, L.C. Aw. 8452, Ap.
10 to Keohokalole;
169. 2360 53' 50" 16,829.25 feet along R.P.s 4386 and 7532, L.C. Aw. 8452, Ap.
10 to Keohokalole;
170. 2930 30' 2376.00 feet along Grant 3155 to H.N. Greenwell;
171. 2440 30' 3082.83 feet along Grant 3155 to H.N. Greenwell;
172. 2930 30' 3286.45 feet along Grant 3155 to H.N. Greenwell;
173. 2810 10' 2739.00 feet along Grant 3155 to H.N. Greenwell;
174.
2650
00'
2574.00 feet along Grant 3155 to H.N. Greenwell;
175.
2740
08' 11"
5800.94 feet along Grant 3155 to H.N. Greenwell;
176. 2560 40' 5644.00 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to Lota
Kamehameha;
177. 3570 00' 2240.00 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to Lota
Kamehameha;
178. 3550 10' 4826.50 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to Lota
Kamehameha;
179. 3440 10' 2392.00 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to Lota
Kamehameha;
180. 130 15' 2720.00 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to Lota
Kamehameha;
181. 360 50' 4455.00 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to Lota
Kamehameha;
-13-
0"„,a^n, 0( *-
Gonecci
C.S.F. No. 25,081
182. 860 30'
183. 1020 45'
184. 950 29' 21"
185. 210 06' 40"
May 26, 2011
4818.00 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to
Lota Kamehameha;
4462.50 feet along R.P. 7844, L.C. Aw. 7715, Ap. 12 to
Lota Kamehameha;
28,060.00 feet along R.P. 4513, Mahele Aw. 32 to Kanele;
2468.20 feet along R.P. 4513, Mahele Aw. 32 to Kanele;
186. 470 1 l' 40" 1980.70 feet along R.P. 4513, Mahele Aw. 32 to Kanele to
the point of beginning and containing a
GROSS AREA OF 9372.76 ACRES and a
NET AREA of 9017.97 ACRES after
excluding therefrom Lot 1-B (99.79 Acres) and
Exclusive Parcel D (255.00 Acres) as shown
on plan attached hereto and made a part hereof
and more particularly described as follows:
LOT 1-B: Being a portion of Royal Patents 3607 and 7533, Land Commission Award
8452, Apana 9 to Keohokalole.
Beginning at the northeast comer of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station "PUU OHAU"
being 448.93 feet South and 54,694.83 feet East, thence running by azimuths measured
clockwise from True South:-
1. 340" 56' 30" 146.71 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
2. 3330 17' 254.31 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
3. 3520 03' 30" 286.65 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
�i o4 �h•
p.Po'i� �,et,ecal
-14-
C.S,F. No. 25,081
4. 3500 06' 30"
5. 3430 45'
6. 5° 09'
7. 21 ° 25'
8. 250 56' 30"
9. 460 05'
10. 3440 48' 30"
11. 2980 53'
12. 280 14'
13. 4° 09'
14. 170 08' 41"
15. 1040 30' 30"
16. 1370 46'
17. 940 17'
18. 880 05'
May 26, 2011
76.22 feet along the remainder of R.P.s 3607 and 7533, L.G.
Aw. 8452, Ap. 9 to A. Keohokalole;
43.75 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
84.24 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
173.19 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
99.28 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
164.77 feet along the remainder of RP.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
7.21 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
498.62 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
509.38 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
396.91 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
291.54 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
368.02 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
907.94 feet along the remainder of R.P.s 3607 and 7533, L.C.
A-vv. 8452, Ap. 9 to A. Keohokalole;
515.57 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
87.99 feet along the remainder of R.P.s 3607 and 7533, L.
Aw. 8452, Ap. 9 to A. Keohokalole; p1twAp",p
A"Off-sy Gonarol
-15- /
C.S.F. No. 25,081
19. 1010 35'
20. 1400 41' 30"
21. 1970 36' 30"
22. 2190 37' 30"
23. 1630 29' 30"
24. 1720 55' 30"
25. 1940 25'
May 26, 2011
339.50 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
360.62 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
320.14 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
131.36 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
204.08 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
318.78 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
537.84 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
26. 2700 00' 1835.28 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole to the point
of beginning and containing an AREA OF 99.79
ACRES.
EXCLUSION PARCEL D: Being a portion of Royal Patents 3607 and 7533, Land
Commission Award 8452, Apana 9 to Keohokalole.
Beginning at the southwest corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station "PUU OHAU"
being 4703.10 feet South and 42,634.04 feet East, thence running by azimuths measured
clockwise from True South:-
1. 1830 00' 1180.00 feet along the remainder of R.P.s 3607 and 7533, L.C.
Aw. 8452, Ap. 9 to A. Keohokalole;
PRftIM. APn'D.
0 Pon-eM of the
Attorney G...
-16-
C.S.F. No. 25,081 May 26, 2011
2. 1530 00' 1230.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
3. 2580 30' 120.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
4. 264" 00' 195.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
5. 309" 00' 807.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
6. 2330 30' 1030.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
7. 2450 00' 150.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
8. 2750 00' 275.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
9. 3030 00' 102.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
10. 2290 30' 280.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
11. 2390 00' 110.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
12. 244° 00' 125.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
13. 245° 30' 410.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
14. 2490 00' 200.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
15. 240° 00' 190.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
16. 2330 00' 215.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
-17-
D+partm.nt of *,e
Anorney Genercj
C.S.F. No, 25,081
17. 2250 00'
18. 2230 30'
19. 3590 30'
20. 880 30'
21. 890 14' 59"
22. 1830 00'
May 26, 2011
500.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
427.47 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
4307.41 feet.along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
806.10 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
1110.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
415.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
23. 93" 00' 1875.00 feet along the remainder of R.P.s 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole
to the point of beginning and containing an
AREA OF 255.00 ACRES.
SURVEY DIVISION
DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES
STATE OF HAWAII
Compiled from map and desc. furn. by
Pattison Land Surveying, Inc. Said map
and desc. have been examined and checked
as to form and mathematical correctness but
not on the ground by the Survey Division.
By:
Glenn J. Kodani
Land Surveyor ry
-18-
KWON AW
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4 EXHIBIT "la"
STATE OF HAWAII
Pt� OF"�l BUREAU OF CONVEYANCES
RECORDED
June 30, 2017 8:01 AM
1,
Doc No(s) A-63900541A thru A-63900541E
I !al LESLIE T. KOBATA
REGISTRAR
1 7/11 DDN
B — 33014233
LAND COURT R GULAR SYSTEM
Return by Mail x 0 Pick -Up To:
HAWAIIAN ISLANDS LAND TRUST TG:
6
126 Queen Street, Suite 306 TGC. `--1 o CI �l
Honolulu, HI 96813
TMK: (3) 8-2-012:014 (por.) Total No. of Pages ZI
TITLE. OF DOCUMENT:
GRANT OF CONSERVATION EASEMENT
HCC Farms LLC 150-Acre Expansion
THIS cLRA NT OF A CONSERVATION EASEMENT is made and entered this
day of JUN 3 U 2017 , 2017, by HCC FARMS LLC, a Hawaii limited liability company
(hereinafter referred to as "GRANTOR"), having an address at 900 Fort St. Mall, Suite 1320,
Honolulu, Hawaii 96813, and the HAWAIIAN ISLANDS LAND TRUST, a Hawaii nonprofit
corporation whose address is 126 Queen Street, Suite 306, Honolulu, HI 96813 (hereinafter
referred to as the "GRANTEE"). The Grantee and the Grantor are hereinafter referred to as the
"Parties".
Exhibits to this Grant of Conservation Easement include the following:
Exhibit A Legal Description of Property
Exhibit B Map of the Property
"Exhibit C"
RECITALS:
A. PROPERTY. Grantor is the owner in fee simple of approximately 224.99 acres,
more or less of real property in Hawaii County, Hawaii, bearing tax map key ("TW) number:
(3) 8-2-012:014 ("Grantor's Farm"). The Property is 150 acres of Grantor's Farm and is
legally described in Exhibit A and depicted in Exhibit B attached hereto and incorporated by
reference herein ("the Property"). The Property contains two (2) distinct zones: The
Agricultural Zone and the Ecological Zone, described in greater detail in Section 1 of the Terms
and Conditions.
B. CONSERVATION VALUES. The Property, in its present state, has significant
agricultural, ecological, scenic and aesthetic, open space, and water resource values, including,
but not limited to, the preservation of farmland " and the preservation of " relatively natural
habitat of wildlife and plants or similar ecosystem", as those phrases are used in Section
170(h)(4)(A)(ii) and (iii) of the Internal Revenue Code, as those sections may be amended from
time to time, and in the regulations promulgated thereunder (collectively, the "Conservation
Values"). Such Conservation Values and the Property's state of improvement are documented in
a Baseline Documentation Report as described in Section E below. All of these Conservation
Values are of great importance to Grantor and to the people of the State of Hawaii and are
worthy of conservation.
In particular, the Property lies east of Captain Cook, Hawaii, and consists of land which
Grantor has planned for a productive coffee farm with trees that are grown in soils of statewide
agricultural importance. The average rainfall on the Property is 60 inches per year which is
within the ideal range for growing Kona coffee, a world renowned and signature product of
Kona, Hawaii, as well as other potential crops that could contribute to the agricultural
sustainability and food security of Hawaii Island. Preservation of coffee farm lands and crop
lands is an important aspect of the Kona Community Development Plan. Agricultural use of
land protects the soil and allows for the natural percolation of water into the ground and into the
water table thus contributing to clean water and increased water quality for surrounding
landowners. The Kona Community Development Plan (2008) emphasizes conserving of natural
resources, open space and watersheds. Therefore, protecting this land with a permanent
conservation easement will perpetuate these desired qualities. These attributes constitute the
"Agricultural Values" of the Property.
The Conservation Values of the Property include native `Ohia forest, forest birds, and
other fauna associated with Hawaii's forested lands. The Property includes heavily forested
ridges with native Ohia trees and hapu'u tree ferns. These forested ridgelines are important for
both resident forest bird species including the Apapane and the federally listed Hawaiian Hawk,
the `lo, which are known to nest on the Property. These attributes constitute the "Ecological
Values" of the Property.
The scenic and aesthetic values of the Property are significant in that it lies directly
above Kealakekua Bay, the Bay where Captain Cook first landed in Hawaii. The view shed of
the Bay is in direct line of view of the Property and of the millions of tourists and local residents
who travel through this area where HCC Farms is located. These attributes constitute the
"Scenic and Aesthetic Values" of the Property.
2
0
Additionally, the property is bordered by the Kealakekua Heritage Ranch on which a
conservation easement was previously placed on 9,000 acres. Grantor completed a conservation
casement on the other 74.99 acres of Grantor's Farm in March, 2016. This current conservation
easement placed on the remainder of Grantor's Farm will result in a large protected tract of land
that is over 10,000 acres in size and will complete the preservation of all land Grantor currently
owns in this area. The Property has agricultural zoning which could result in the subdivision and
development of homesites, which are very desirable in that they are close to town, they all have
spectacular views of the ocean and coastline, and there is county water available as well as
electricity. These attributes constitute the "Open Space Values" of the Property.
The use of the Property for agriculture contributes to the "Water Resource Values" on
the Property because the permanent crop cover will allow the rainfall on the land to percolate
into the aquifer instead of running down the steep hillsides causing erosion, siltation and other
problems. The aquifer is extremely important to the residents of this area because it is the source
of their drinking, household and irrigation water. Water Resource protection is an important
Conservation Value of the Property.
C. EXISTING USES. The Property is currently used for grazing cattle and is
intended for the cultivation and production of coffee beans. Intended improvements on the
Property are related to coffee production, including fences, agricultural storage buildings, coffee
mills, workforce housing and access roads. The Conservation Values of the Property have not
been and are not likely to be adversely affected to any substantial extent by the use of the
Property for the production of coffee or other agricultural produce, as authorized in this
Easement.
D. QUALIFIED ORGANIZATION. The Hawaiian Islands Land Trust (Grantee) is
a non-profit corporation created to preserve and conserve natural areas for aesthetic, scientific,
charitable and educational purposes and is an organization qualified under Section 170(h) of the
Internal Revenue Code, as that section may be amended from time to time, and in the regulations
promulgated thereunder, to receive qualified conservation contributions.
E. BASELINE. An inventory of the natural characteristics, ecological and aesthetic
features, physical conditions, present uses and the Conservation Values of the Property has been
prepared at the time of this grant, all of which are documented in a "Baseline Documentation
Report", prepared by the Grantee and signed and acknowledged by the Grantor and a
representative of Grantee, establishing the condition of the Property at the time of this Grant.
This Baseline Documentation Report consists of reports, maps, photographs, and other
documentation that the parties agree collectively provide an accurate representation of the
Property at the time of this Grant and which is intended to serve as an objective information
baseline for monitoring compliance with the terms of this Conservation Easement. A copy of
this Baseline Documentation Report is maintained at the office of the Grantee, and may be used
by Grantee in any enforcement action.
F. CONSERVATION COMMITMENT. Grantor and Grantee recognize the value and
special character of the Property and acknowledge a common purpose to conserve the
Conservation Values of the Property, and to prevent its use or development for any purpose or in
3
any manner that would conflict with the maintenance of the Property in its current agricultural,
ecological, scenic, aesthetic, open space, and watershed conditions; and
G. GRANTOR'S INTENT. Grantor as owner of the Property intends to convey to
Grantee the right to preserve and protect the Conservation Values of the Property in perpetuity.
NOW, THEREFORE, in consideration of the facts above recited and of the mutual
covenants, terms, conditions and restrictions contained herein, and in consideration of the
payment of FIVE HUNDRED THOUSAND DOLLARS and NO CENTS ($500,000.00) to
Grantor, and pursuant to the laws of the State of Hawaii and in particular Hawaii Revised
Statutes ("HRS") 198-3 which provides that any public body and any organization which
qualifies for and holds an income tax exemption under section 501(c) of the Internal Revenue
Code of 1954, as amended, and whose organizational purposes are designed to facilitate the
purposes of HRS Chapter 198, may acquire and hold conservation easements by purchase,
agreement, donation, devise or bequest and pursuant to Section 170(h) of the Internal Revenue
Code, as may be amended, the laws of the State of Hawaii, and in particular IIRS 198, as may
be amended, Grantor hereby voluntarily grants and conveys unto Grantee and their successors
and assigns forever, a Conservation Easement in perpetuity over the Property, of the nature and
character, and to the extent hereinafter set forth and consisting of the following terms and
conditions ("Easement").
TERMS AND CONDITIONS
1. PURPOSE. This Section 1, in its totality and as stated below, constitutes the
"Purpose" of this Easement. The Purpose of this Easement is as follows:
The Ecological Zone. The parties acknowledge that specific GPS coordinates are being
collected for the Ecological Zone that will precisely identify the boundary for that zone. The
parties agree that in not more than one -hundred eighty (180) days from the recording of this
Easement, Grantor, subject to Grantee's approval, will prepare and append to the Baseline
Documentation Report a map with the specific boundary of the Ecological Zone depicted
along with a detail of its GPS coordinates. The parties further agree that under no
circumstances shall the area in the Ecological Zone be less than twenty (20) acres. The
primary purpose of this Easement for the Ecological Zone of the Property is to preserve and
protect the Ecological Values of the Property (the "Ecological Zone Primary Conservation
Purpose"). No use or activity in the Ecological Zone shall be permitted that would result in
the significant impairment of Ecological Zone Primary Conservation Purpose.
The Agricultural Zone. The Agricultural Zone will consist of all land that is not designated
part of the Ecological Zone. The primary purpose of this Easement for the Agricultural Zone
of the Property is to preserve and protect the Agricultural Values of the Property (the
"Agricultural Zone Primary Conservation Purpose"). No use or activity in the
Agricultural Zone shall be permitted that would result in the significant impairment of the
Agricultural Zone Primary Conservation Purpose.
To the extent that the preservation and protection of the other Conservation Values may
be accomplished without impairing the Primary Conservation Purpose of each zone, it is also the
purpose of this Easement to protect those other Conservation Values, and to such extent, no
activity which shall significantly impair those additional Conservation Values shall be permitted
except as may be otherwise provided in this Easement. The Parties agree that the Owner's
retention of certain rights specified in this Easement, including expressly permitted recreational,
commercial and improvement rights, is consistent with the Purpose of this Easement, provided
those rights are exercised in accordance with the terms of this Easement.
Grantor intends that this Conservation Easement will confine the use ofthe Property to
those uses consistent with the terms of this Conservation Easement as well as the specific
required management activities specified in the Management Plan (hereinafter referred to as the
"Management Plan"), incorporated by this reference. A copy of the Management Plan, as
amended from time to time, will be maintained at the office of Grantee. The Management Plan,
which is intended to support the Purpose of the Conservation Easement, sets forth specific
activities by which the Property shall be maintained. Grantor and Grantee shall have the right
from time to time to propose amendments to the Management Plan. Any such amendment must
be jointly approved as provided in Paragraph 15 herein. Any decision to agree to an amendment
to the Management Plan will be in the sole and absolute discretion of each Party.
2. PROHIBITED USES/RESTRICTIONS. Any activity on or use of the Property
inconsistent with the Purpose of this Easement is prohibited. Without limiting the applicability
of the foregoing, the following activities and uses are expressly prohibited except as provided in
paragraph 4 below:
2.1. Conversion to Non -Agricultural Activity. The Property shall not be converted to
non-agricultural use. Any use or activity permitted under this Easement, including, but not
limited to, the residential, recreational, open space, natural area preservation and/or restoration
uses authorized herein, shall not be considered as conversion to non-agricultural use.
2.2. Condominium Property Regime. The parcel may not be divided or developed
under a Condominium Property Regime.
2.3. Additional Structures. There shall be no construction or placing of any house,
garage, barn or other building or improvement, tennis or other recreational court, golf course,
landing strip, mobile home, swimming pool, fence or sign (other than those permitted under
subparagraphs 4.12 and 5.4, below), asphalt or concrete pavement (other than permitted in
subparagraph 4.9, below), billboard or other advertising display, antenna, utility pole, tower,
conduit, line, wind turbine, automatic yard light (except motion detection lights) or related
structures, or any other temporary or permanent structure or facility on the Property except as
provided for in subparagraphs 4.16 — 4.17, below. Before undertaking any placement or
construction that requires advance permission, the Grantor shall notify Grantee and obtain
written permission, as described in Paragraph 6 below.
2.4. Recreational Improvements. No recreational improvements are permitted.
2.5. Separate Conveyance. The Property consists of 150 contiguous acres. Any
conveyance of these 150 acres must be as a single legal tract and must include the 74.99 acre
tract that was encumbered by a conservation easement on March 17, 2016 and recorded as
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Document A-59200621 in the Hawaii Bureau of Conveyances. The combined two parcels are
estimated to total 224.99 acres and may not be divided, partitioned, or subdivided.
2.6. Mining. There shall be no mining, drilling, exploring for or removal of minerals
from, on or under the Property.
2.7. Topography. There shall be no ditching, trenching, draining, diking, filling,
excavating, removal of topsoil, sand, gravel, rock or other materials (including the removal of
substratum from streambeds), or any change in the topography of the land in any manner except
in conjunction with any use or activity specifically authorized herein or in the Management Plan.
2.8. Water. There shall be no manipulation or alteration of creeks, streams, surface or
subsurface springs or other bodies of water or the shorelines thereof, except for those
manipulations or alterations designed to benefit the agricultural operation as set forth in
Paragraph 4 below.
2.9. Dumping. There shall be no long-term storage, dumping or accumulation of
ashes, trash, non-compostable garbage, waste, refuse, debris, Hazardous Materials or unsightly
or offensive material on the Property, except that certain hazardous or toxic substances and
agricultural by-products may be stored in the Agricultural Zone, as needed, in association with
agricultural uses otherwise permitted in this Easement.
2.10. Roads. Except as permitted under Paragraph 4 below, there shall be no building
of new roads or other rights of ways except for unpaved paths and trails consistent with the
preservation of the Property. Existing unpaved roads may be maintained but shall not be widened
or improved, relocated, except as permitted under Paragraph 4 below.
2.11. Motorized Vehicles. "There shall be no operation of dune buggies, motorcycles,
all -terrain vehicles (ATVs) or other types of motorized recreational vehicles on the Property,
except as necessary to carry -out activities otherwise allowed by this Easement. Cars, trucks, and
other farm and ranch vehicles shall not be considered as recreational vehicles when used for uses
and activities permitted under this Easement. All permitted vehicle use shall be conducted in a
manner that minimizes damage to the Conservation Values of the Property.
2.12. Native Plant Removal. The clearing, cutting, removing, or destruction of native
trees, or other vegetation within the Ecological Zone, except as permitted under paragraph 4 of
the Easement (unless otherwise restricted by the required activities in the Management Plan) for
permitted land management or conservation activities. The use of dead trees for personal use
firewood is allowed as is the selling of timber or other forest products that are removed as
allowed by the Easement (unless otherwise restricted by the required activities in the
Management Plan).
2.13. Density. Neither the Property nor any portion of it shall be included as part of the
gross area of other property not subject to this Easement for the purposes of determining density,
lot coverage or open space requirements under otherwise applicable laws, regulations or
ordinances controlling land use and building density. The parties have extinguished the
development rights. No development rights that have been encumbered or extinguished by this
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Easement shall be transferred to any other lands pursuant to a transferable development rights
scheme, cluster development arrangement or otherwise. Grantor may participate in a
consolidation/resubdivision with an adjacent parcel using the legal parcels currently comprising
the Property.
3. GRANTOR'S RIGHTS OF OWNERSHIP. It is the purpose and intent of all parties
to restrict any uses of the Property which are inconsistent with the Conservation Easement.
However, it is not the purpose or intent to restrict Grantor's exercise of its rights incident to
ownership and alienation. Grantor shall have the unfettered right to lease, sell, mortgage, give,
grant or otherwise convey the Property, provided that any such conveyances are expressly
subject to the terms of this Conservation Easement.
4. GRANTOR'S RESERVED RIGHTS. Notwithstanding anything else set forth in this
Conservation Easement, and without limiting the generality of the otherrights granted to the
Grantor, the Grantor reserves for himself/herself, Grantor's heirs, successors and assigns, all
rights as owners of the Property to use the Property for all purposes that are not expressly
prohibited herein and are not inconsistent with this Easement, and is granted the right to do and
perform the following activities and uses on the Property, or a portion of the Property as the case
may be, in accordance with applicable laws of the State of Hawaii and the County of Hawaii and
subject to this Conservation Easement and the required activities in the Management Plan.
Without limiting the applicability of the foregoing, the following rights are expressly reserved:
4.1. Consistent Acts: To engage in all acts or uses not prohibited herein that are
consistent with the terms, conditions and purposes of this Conservation Easement.
4.2. Conveyance. Grantor may sell, give, mortgage, lease or otherwise convey
the Property, provided that such conveyance is subject to this Easement and written notice
is provided to the Grantee in accordance with Paragraph 6 below.
4.3 Access. To have all manner of access to and personal use and enjoyment of the
Property, including, without limitation, the right to undertake activities reasonably necessary to
carry out the rights reserved to Grantor, provided such actions are not inconsistent with the
terms, conditions and purposes of this Conservation Easement and the required activities in the
Management Plan.
4.4. Maintenance. To perform routine maintenance and upkeep to the extent
consistent withthe terms, conditions and purposes of this Conservation Easement.
4.5. Equipment. To utilize maintenance equipment of every type and description,
including, but not limited to, watering equipment, tractors, lawn mowers, and other motorized
vehicles, in connection with the activities and uses permitted herein.
4.6. Agricultural Operations. The Agricultural Zone may be used for agricultural
production, including preparing land for, and the cultivation of, row crops or other crops
including coffee trees, orchards, hay, pasture, and range; raising of poultry and livestock;
breeding or boarding of animals; horticulture; apiaries; viniculture; and, forestry.
4.7. Fences and Other Similar Structures. Grantor may, but shall not be obligated to,
repair, replace, maintain, improve or remove any fence or corral located on the Property as of the
date of this Easement. The Grantor may construct, repair, replace, maintain, improve or remove
additional fencing as the Grantor deems necessary to secure the Property or in connection with
any use or activity permitted under this Easement.
4.8. Water for Agricultural Purposes. To the extent required for agricultural purposes,
including grazing of livestock and crop irrigation on Grantor's Farm, Grantor may drill water
wells, make irrigation improvements, or make improvements to existing stock ponds. New
impoundments or expansions of existing impoundments are permitted only with the written
permission of the Grantee, as described in Paragraph 6 below. Such alterations shall be made in a
manner that does not adversely affect water quality or quantity, and minimizes negative impacts
to soils.
4.9. Roads. Grantor may build new roads/trails in connection with the activities and
uses permitted in this Easement, or relocate existing unimproved roads/trails on the Property,
provided the disturbance to soils is minimized. Existing pasture roads/trails are identified in the
Baseline Documentation Report. Abandoned roads shall be returned to native vegetation cover,
either by letting natural succession occur or by replanting with appropriate native species (based
on soil type) using local ecotypes. Grantor may improve, maintain, or harden the surface of any
road (i.e., using asphalt, concrete, macadam), subject to the restrictions on Impervious Surfaces
found in subparagraph 4.17(b).
4.10. Native Species. Grantor may undertake to restore and/or enhance the native plant
and animal communities on the Property to the extent consistent with the other terms of this
Easement and the required activities in the Management Plan.
4.11. Hunting and Fishing. Grantor, Grantor's invitees, licensees, and lessees may hunt
on the Property, in compliance with all state and federal laws.
4.12. Signs. Grantor may place on the Property interpretive signs, such as signs
identifying that the Property is protected by this Easement, or signs identifying habitat
improvements, as well as "no hunting," "no trespassing" or similar signs.
4.13. Preservation. Grantor may, but shall not be obligated to, undertake activities
necessary to maintain or enhance the Conservation Values of the Property, as identified in
Recital B of this Easement and in the Baseline Documentation Report.
4.14 Timber Resources and Vegetation Removal. The selective harvesting of timber
for personal or commercial use, and removing, moving or clearing vegetation is permitted for the
following purposes: habitat enhancement and protection, controlling disease; protecting persons
or property; wildfire prevention or containment; firewood from the Agricultural Zone for personal
use; maintaining existing fields and open pastures in the Agricultural Zone, as documented in the
Baseline Documentation Report; preparing land in the Agricultural Zone for agricultural use;
and, subject to the Grantee's prior approval, as described in Paragraph 6 below. These
conditions apply to both living and standing dead trees. Excavation and/or removal of plants or
trees is also allowed if such plants or trees: (1) are designated as noxious weeds or considered to
be an invasive woody plant species; (2) were planted or installed in the Agricultural Zone for
agricultural purposes (i.e., crops, orchard trees); or (3) are removed in the Agricultural Zone by
agricultural or forestry practices that do not significantly compromise the Conservation Values of
the Property.
4.15 Chemicals. Grantor reserves the right to use chemical fertilizers, herbicides,
pesticides, fungicides, biocides, defoliants and natural controls for the management of
undesirable plants and pests, and for agricultural purposes provided that (i) such use must be in
compliance with all applicable federal, state, and local statutes and regulations, (ii) such use must
be in those amounts and with a frequency of application that constitutes the minimum necessary
for control; (iii) such use must beapplied consistent with labeled instructions, and (iv) such use is
consistent with the Conservation Values. Notwithstanding anything herein to the contrary, aerial
spraying of biocides, herbicides, defoliants, chemical fertilizers or other chemicals is not
permitted.
4.16 Utility Services and Septic Systems. Installation, maintenance, repair,
replacement, removal, and relocation of electric, gas, and water facilities, sewer lines and/or
other public or private utilities, including telephone or other communication services over or
under the Property for the purpose of providing electrical, gas, water, sewer, or other utilities to
serve permitted improvements on Grantor's Farm, and the right to grant easements over and
under the Property for such limited purposes, is permitted. Grantor shall not permit or grant
easements for utility transmission or distribution facilities or systems without the written consent
of the Grantee, as described in Paragraph 6 below. Maintenance, repair or improvement of a
septic system(s) or other underground sanitary system that exists on the Property at the time of
this Easement, or the construction of a septic or other underground sanitary system, for the
benefit of any of the improvements permitted herein, is permitted, provided that the impact of
such installation and maintenance on the Conservation Values is limited to the greatest extent
possible. All other utilities are prohibited on the Property including, but not limited to, cellular
communication towers or structures.
4.17 (a) Single -Family Residential Dwellings. One residential dwelling may be
constructed in the Agricultural Zone at a location to be mutually determined by Grantor and
Grantee and with the advance written permission of the Grantee, as described in Paragraph 6
below. The Grantee shall give such permission within a reasonable time if it determines that the
proposed building, structure, or improvement is not inconsistent with the Purpose of this
Easement. The maximum footprint of the residential dwelling must be no more than 5,000
square feet. The permitted residential dwelling may be constructed in various pods (or separate
buildings with disconnected roofs), provided that no pod shall be more than 50 feet from another
portion of the residential dwelling. No other residential dwelling may be built on the Property
(except the workforce housing permitted in subparagraph 4.17(c)). Footprint means the total
ground area covered by a structure calculated on the basis of the exterior dimensions of any
perimeter walls (whether at or above ground level and including any balconies, carports or
breezeways, patios or terraces, decks and porches), but excludes the floor area of additional
A
levels of the residential dwelling constructed directly above the area already included in the
calculation of the Footprint.
(b) Impervious Surfaces. Impervious Surfaces located on the Property, including
those existing on the date of this Easement or those constructed in the future, as indicated in the
Baseline Documentation Report or any amendment to the Baseline Documentation Report, shall
not exceed five percent (5%) of the total area of the Property. An "Impervious Surface" is
defined as any material which covers land and significantly restricts or is impenetrable to the
percolation of water directly into the soil, including any permanent, non -seasonal roof tops,
decking, concrete, macadam or asphalt surfaces, and paved areas. Naturally occurring features
on the Property shall not be considered Impervious Surfaces for the purposes of this five percent
(5%) restriction. The total area of impervious surfaces, including all impermeably surfaced
roads, buildings, mills, bunkhouses, etc. must be 5% or less which allows for a total area of
impervious surfaces of approximately 7.5 acres.
(c) Other Structures & Improvements. Existing structures, including agricultural
structures and improvements, may be repaired, reasonably enlarged, and replaced at their current
locations, as shown on Exhibit B, without further permission from the Grantee. New buildings,
including barns, sheds, mills, nurseries, agricultural warehouses, drying decks, workforce
housing and other structures and improvements to be used primarily for agricultural purposes
(including the processing or sale of farm products) may be built on the Property without any
further permission of Grantee provided they are located in the Agricultural Zone. All
construction or reconstruction is subject to all applicable zoning regulations and must be
consistent with permits required by and issued by Hawaii County under its laws and ordinances
for such construction activities. The construction of any new building is subject to the 5%
impervious surface restriction.
5. RIGHTS of GRANTEE. To accomplish the purpose of this Easement, the following
rights are conveyed to Grantee by this Easement:
5.1. Protection. Grantee has the right to preserve and protect in perpetuity the
Conservation Values of the Property, to prevent any use of, or activity on, the Property that will
be inconsistent with the Purpose of the Easement and the required activities in the Management
Plan, and to enhance, by mutual agreement between the Grantor and the Grantee, the
Conservation Values as set forth herein.
5.2. Access. Grantee has the right to enter upon the Property for the purpose of
making inspections to monitor compliance with this Easement and for enforcement purposes:
(a) Annual Monitoring. Upon seven (7) days prior notice to Grantor (provided
consistent with the terms of Paragraph 7, below), and without unreasonably interfering with the
Grantor's use of the Property, Grantee shall have the right of enter upon the Property, but not
including building interiors, at reasonable times and in a reasonable manner in order to monitor
Grantor's compliance with, and otherwise enforce the terms of, this Easement; provided that in
the absence of evidence which gives Grantee a reasonable basis to believe there has been a
violation of the provisions of this Easement (which evidence shall be made available to Grantor
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at the time of such notice and request to enter the Property), such entry shall not occur more
often than once per year;
(b) Emergency Entry. Where Grantee has a reasonable belief that there is a
significant and imminent threat to any of the Conservation Values, Grantee has the right to enter
the Property, but not including building interiors, without notice. However, where time permits,
Grantee shall make good faith efforts to provide at least 24 hours' notice to Grantor.
5.3. Enforcement. To enforce this Easement and the covenants and restrictions herein
pursuant to Paragraph 8 hereof.
5.4 Easement Signage. To place and maintain one (1) sign on the Property, at a
mutually agreeable location, which is clearly visible to the public from the abutting road, which
indicates the Property is conserved by the Grantee.
5.5 Studies and Observation. With Grantor's approval, make scientific and educational
observations and studies and take samples in such a manner so as not to disturb the quiet
enjoyment of the Property by the Grantor. Grantor shall be allowed to participate in all such
observations and studies. Any data collected on the Property pursuant to this Section will be
provided to Grantor.
5.6 Invasive Species Control. To remove or control invasive plants or animals in the
Ecological Zone, at no additional cost to Grantor, and at Grantee's option; such activities by
Grantee shall not relieve the Grantor of the responsibility of removing and controlling invasive
species in accordance with appropriate federal, state and county laws and regulations.
6. PRIOR NOTICE AND APPROVAL. Grantor shall not undertake or permit any
activity requiring prior approval by the Grantee without first having notified and received
approval from the Grantee as provided herein.
(i) Notice. In the case of any use, act, or improvement for which Grantee's prior
written approval is required pursuant to Sections 2 or 4 herein or in the Management Plan, or
any use, activity, or improvement not specifically contemplated herein which might have a
deleterious effect on the Conservation Values, Grantor shall notify Grantee in writing not less
than thirty (30) days prior to the date Grantor intends to undertake the use or activity for which
such prior approval is sought. The notice shall describe the nature, scope, design, location,
timetable, and any other material aspect of the proposed activity in sufficient detail to permit
Grantee to make an informed judgement as to its consistency with the Purpose of this
Easement.
(ii) Approval. Where Grantee's approval is sought or required, Grantee shall
grant or withhold its approval in writing within sixty (60) days of receipt of Grantor's written
request for approval, and if Grantee withholds or conditions its approval, such notice shall
include a description, in reasonable detail, of the reasons for such decision. Grantee's approval
may be withheld or conditioned only if Grantee makes a reasonable determination that the
action as proposed would be inconsistent with the Purpose of this Easement. If Grantee makes
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a reasonable determination that the action as proposed would be inconsistent with the Purpose
of this Easement, then Grantee's approval may include reasonable conditions that will
eliminate or mitigate such inconsistency, which must be satisfied before undertaking the
proposed use or activity. If Grantor must undertake emergency action to protect health or safety
on the Property or must act by and subject to the requirement of any governmental agency,
Grantor may proceed with such action without Grantee's approval only if Grantor notifies
Grantee prior to taking such action and Grantee cannot provide its approval, with or without
conditions, within such time as is reasonable under the circumstances for Grantor to commence
taking such action.
Should the Grantee fail to post its response to Grantor's request for approval within sixty (60)
days (plus any mutually agreed upon extensions) of its receipt of Grantor's request, the
proposed activity is automatically deemed consistent with the terms of the Easement and
approved.
7. ADDRESSES FOR NOTICE AND RESPONSES. Any notice, demand,
request, consent, approval, or communication that either party desires or is required to give to
the other shall be in writing either served personally or sent by certified mail, return receipt
requested, postage prepaid, addressed to the appropriate party, at the appropriate address set
forth in this Section. Notices shall be served at the following addresses or to such other
address as any of the parties from time to time shall designate by written notices to the other:
To Grantors: HCC Farms, LLC, a Hawaii Limited Liability Company
900 Fort Mall Street, Suite 1320
Honolulu, HI 96813
808-533-1500 or 816-868-1872
With a copy to: Gregory Hendrickson
The Law Offices of Gregory D. Hendrickson
P.O. Box 124
Kealakekua, HI 96750
808-217-7773
To Grantee: Hawaiian Islands Land Trust
126 Queen Street, Suite 306
Honolulu, HI 96813
808-791-0729
8. REMEDIES. In the event that Grantee becomes aware of a violation of the terms
of this Easement, Grantee shall give notice to the Grantor, as specified in Paragraph 6, of such
violation via certified mail, return receipt requested, and request corrective action sufficient to
abate such violation and restore the Property to its previous condition. Failure by the Grantor to
cause discontinuance, abatement or such other corrective action as may be requested by Grantee
within thirty (30) days after receipt of such notice, or under circumstances where the violation
cannot reasonably be cured within the thirty (30) day period, fails to begin curing such violation
within the thirty (30) day period and fails to continue diligently to cure such violation until
12
finally cured, shall entitle Grantee to enforce by proceedings at law or in equity the provisions of
this Easement including, but not limited to, the right to require the restoration of the Property to
its condition at the date of this Easement, subject to the reserved rights of the Grantor set forth
herein. Grantee, or its successors or assigns, shall not waive or forfeit the right to take action as
may be necessary to ensure compliance with the terms and conditions of this Easement by any
prior failure to act. If Grantee, in its sole discretion, determines that circumstances require
immediate action to prevent or mitigate significant damage to the Conservation Values of the
Property, Grantee may pursue its remedies under this Paragraph 8 without prior notice to the
Grantor or without waiting for the period for cure to expire.
Nothing herein shall be construed to entitle Grantee to institute any enforcement
proceeding against the Grantor for any changes to the Property due to causes beyond the
Grantor's control, such as changes caused by fire, flood, storm, volcanic eruptions, earthquakes,
infestations, natural deterioration, the acts of third parties legally authorized to act by recorded
document or other legally established rights, the unauthorized wrongful acts of third persons, or
from any prudent action taken by Grantor under emergency conditions to prevent, abate, or
mitigate significant injury to the Property resulting from such causes or to protect bona fide
public health or safety in an emergency situation; provided, however, that the Grantor shall
notify Grantee of any occurrence which would adversely affect or interfere with the Purpose of
the Easement, whether caused by the acts or omissions of the Grantor or third -parties. However,
this paragraph shall not apply to a Grantor who may reasonably be expected to have knowledge
of an impending, or on -going, violation of the terms of this Easement by a trespasser or third
party, and fails to take reasonable and prudent steps to prevent or stop such violation. This
paragraph shall not be construed to relieve the Grantor of the obligation to clean up garbage or
materials dumped on the Property by third -parties or to otherwise maintain the Property in a
condition consistent with the purposes of this Easement.
Grantee shall be entitled to seek expedited injunctive relief to enforce its rights with
respect to the Property, and the Grantor waives any bond requirement otherwise applicable to
any petition for such relief. Grantee shall have the right to report to regulatory authorities any
environmental conditions or any potential or actual violations of environmental laws with respect
to the Property.
In the event either party becomes involved in legal proceedings against the other to
enforce such party's respective rights or interests under this Easement, the prevailing party shall
be entitled to receive from the non -prevailing party reasonable attorney's fees, court costs, and
other expenses incurred in connection with any such proceedings.
9. LIMITATION OF GRANTEE RIGHTS. Nothing contained herein shall
give rise, in the absence of a judicial decree, to any right or ability of Grantee to become the
owner, arranger or operator of the Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act by exercising physical control over
the day-to-day operations of the Grantor, or becoming involved in management decisions of the
Grantor regarding the generation, handling or disposal of hazardous substances.
10. DISCRETIONARY CONSENT. If owing to unforeseen or changed
circumstances, any of the uses, improvements or activities that are prohibited or limited by terms
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of the Easement are deemed appropriate and desirable by Grantor and Grantee, Grantee may give
consent for such uses, improvements or activities only if it determines, in its sole discretion, that
such activities (1) do not violate or are not in conflict with any Purpose of the Easement and (2)
either enhance or do not significantly impair any Conservation Value protected by this Easement.
Any requests for discretionary consent by Grantor under this Paragraph shall be in writing and
shall describe the proposed use, improvement or activity in sufficient detail to allow Grantee to
judge the consistency of the proposal with the Purposes of this Easement. Grantor shall not
commence work on or engage in the proposed use, improvement or activity until it receives
Grantee's written consent, and then only upon the specific terms and conditions thereof. Any
such consent shall be revocable at Grantee's discretion. Notwithstanding the foregoing, Grantee
shall not consent to any use, improvement or activity that would result in the termination or
extinguishment of this Easement under state or federal law; that would provide private inurement
or impermissible private benefit; or that would allow any residential, commercial or industrial
structures, or any commercial or industrial uses or activities, not otherwise provided for above.
11. GRANTEE'S DISCRETION. Enforcement of the terms of this Easement shall be
at the sole discretion of Grantee, and any forbearance or delay by Grantee to exercise its rights
under this Easement, in the event of any breach of any term of this Conservation Easement by
Grantor, shall not be deemed or construed to be a waiver by Grantee of such terms or of any
subsequent breach of the same or any other terms of this Easement or of any of Grantee's rights
under this Easement. No delay or omission by Grantee in the exercise of any right or remedy
upon any breach by Grantor shall impair such right or remedy or be construed as a waiver.
12. WAIVER OF CERTAIN DEFENSES. Grantor hereby waives any defense of
laches, estoppel, or prescription.
13. UPKEEP AND MAINTENANCE OF PROPERTY. Grantor retains all
responsibilities and shall bear all costs and liabilities of any kind related to the
ownership, operation, upkeep and maintenance of the Property in accordance with the
purposes of this Easement, the Management Plan, and the requirements established by
the County of Hawaii and the State of Hawaii
14. PERPETUAL BURDEN. This Easement shall run with and burden the Property
in perpetuity and shall bind the Grantor, Grantor's heirs, successors and assigns.
15. AMENDMENT. If circumstances arise under which an amendment to or
modification of this Easement and/or Management Plan would be appropriate, Grantor and
Grantee are free to jointly amend this Easement and/or Management Plan, provided that no
amendment shall be allowed that will affect the qualification of this Easement or the status of
Grantee under any applicable laws, including HRS Chapter 198, as may be amended, or Section
170(h) of the Internal Revenue Code of 1954, as amended, and any amendment shall be
consistent with the purposes of this Easement, and shall not affect its perpetual duration.
Furthermore, any such amendment to the Easement must be recorded in the State of Hawaii
Bureau of Conveyances.
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16. ASSIGNMENT. This Easement is in gross and may be assigned or transferred
by the Grantee, or his or her successors or assigns, and such transfer shall be duly recorded. The
Grantee agrees that, if it transfers or assigns its interest in this Easement:
a. The organization or entity receiving this interest will be a qualified organization as
that term is defined in Section 170(h)(3) of the Internal Revenue Code, as that section
may be amended from time to time, and in the regulations promulgated thereunder
and which is organized and operated primarily for one of the conservation purposes
specified in Section 170(h)(4)(A) of the Internal Revenue Code, as that section may
be amended from time to time, and in the regulations promulgated thereunder;
b. The transferee or assignee will be required to carry out in perpetuity the conservation
purposes which this Easement was originally intended to advance; and
c. Grantee will obtain Grantor's approval of the assignee organization. which approval
shall not be unreasonably withheld by Grantor.
17. DISSOLUTION OF GRANTEE. If Grantee shall cease to exist or to be a
qualified organization under Section 170(h) of the Internal Revenue Code, as may be amended,
or to be authorized to acquire and hold conservation easements under HRS Chapter 198, as may
be amended, and a prior assignment is not made pursuant to Section 16 herein, then the
Grantee's rights and obligations shall become immediately vested in the State of Hawaii, acting
by and through the Department of Land and Natural Resources or any successor agency. If the
State of Hawaii, acting by and through the Department of Land and Natural Resources or any
successor agency, is no longer in existence at the time the rights and obligations under this
Easement would otherwise vest in it, or if the State of Hawaii, acting by and through the
Department of Land and Natural Resources or any successor agency, is not qualified or
authorized to hold conservation easements at that time, or if it shall refuse such rights and
obligations, then the rights and obligations under this Easement shall vest in such organization
with a similar mission as a court of competent jurisdiction shall direct pursuant to the
applicable laws and with due regard to the requirements for an assignment pursuant to Section
16 herein.
18. SUBSEQUENT TRANSFERS BY GRANTOR. Unless this Easement is
extinguished, as set forth below, the Grantor agrees that the terms, conditions, restrictions and
purposes of this Easement will either be incorporated by reference or inserted by the Grantor
in any subsequent deed or other legal instrument by which the Grantor divests himself/herself
of any interest in all or part of the Property. The Grantor agrees to notify Grantee, its
successors and assigns, of any such conveyance in writing by certified mail within thirty (30)
days after closing.
19. TERMINATION AND PROCEEDS. This Easement constitutes a real property
interest immediately vested in Grantee, which the parties stipulate to have a market value equal
to the proportionate value that the Easement, at the time of this grant, bears to the value of the
Property, without deduction for the value of the Easement, at the time of the grant of this
Easement. Notwithstanding that this Easement is an obligation, and not a financial asset,
15
should it be extinguished, which may be accomplished only by judicial proceedings, or should
any interest in the Property be taken by the exercise of the power of eminent domain or
acquired by purchase in lieu of condemnation subject to the prior written consent of Grantee,
Grantee is entitled to a share of the proceeds of any sale, exchange, or involuntary conversion
of the Property formerly subject to this Easement, according to Grantee's proportional interest
in the Property, as determined and as required under Treasury Regulations § 1.170-A-
14(g)(6)(ii), as may be amended. Grantee's proportional interest is determined as of the date of
this grant and will not include value attributable to authorized improvements to the Property
made after the date of this grant, except as to improvements that are made by or at the expense
of Grantee. Grantee will use such proceeds in a manner consistent with the conservation
purposes of this Easement.
20. TITLE WARRANTY. Grantor hereby warrants and represents that the Grantor is
seized of the Property in fee simple and has good right to grant and convey this Easement, that
the Property is free and clear of any and all encumbrances except those of record that have
been approved by Grantee and that Grantee and its successors and assigns shall enjoy all of the
benefits derived from and arising out of this Easement. Any present or future mortgage on the
Property has been or will be subordinated to this Easement.
21. HAZARDOUS MATERIALS. Grantor warrants that he is in compliance with and
shall remain in compliance with, all applicable Environmental Laws. Grantor warrants that there
are no notices by any governmental authority of any violation or alleged violation of, non-
compliance or alleged non-compliance with or any liability under any Environmental Law
relating to the operations or conditions of the Property.
Grantor warrants that he has no actual knowledge of a release or threatened release of any
Hazardous Materials on, at, beneath or from the Property. Moreover Grantor hereby promises
to hold harmless and indemnify the Grantee against all litigation, claims, demands, penalties
and damages, including reasonable attorneys' fees, arising from or connected with the release or
threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising
from or connected with a violation of any Environmental Laws by Grantor or any other prior
owner of the Property. Grantor's indemnification obligation shall not be affected by any
authorizations provided by the Grantee to Grantor with respect to the Property or any
restoration activities carried out by Grantee at the Property; provided, however, that Grantee
shall be responsible for any Hazardous Materials contributed after this date to the Property by
Grantee.
"Environmental Law" or "Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or
requirements of any governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water, solid waste, hazardous
materials, worker and community right -to -know, hazard communication, noise, radioactive
material, resource protection, subdivision, inland wetlands and watercourses, health protection
and similar environmental health, safety, building and land use as may now or at any time
hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils,
explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals,
hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic
chemicals, radioactive materials, infectious materials and any other element, compound, mixture,
solution or substance which may pose a present or potential hazard to human health or the
environment.
22. GENERAL INDEMNIFICATION. Grantor shall indemnify and hold harmless
Grantee for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees,
penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of
any person or governmental authority, and other liabilities (whether legal or equitable in nature
and including, without limitation, court costs, and reasonable attorneys' fees and attorneys' fees
on appeal) to which Grantee may be subject or incur relating to the Property, which arise from
Grantor's negligent acts or omissions or Grantor's breach of any representation, warranty,
covenant, agreements contained in this Easement, or violations of any Federal, State, or local
laws, including all Environmental Laws.
Grantee shall indemnify and hold harmless Grantor for any and all liabilities, claims,
demands, losses, expenses, damages, fines, penalties, suits, proceedings, actions, and costs of
actions, sanctions asserted by or on behalf of any person or governmental authority, and other
liabilities (whether legal or equitable in nature and including, without limitation, court costs, and
reasonable attorneys' fees and attorneys' fees on appeal) to which Grantor may be subject or
incur relating to the Property, which arise from Grantee's willful misconduct or negligent acts or
omissions.
23. TAXES If the Property is subject to taxes, assessments, fees, and/or charges of
whatever description, then Grantor shall pay before delinquency all such taxes, assessments,
fees, and charges of whatever description levied on or assessed against the Property by
competent authority, and shall furnish Grantee with satisfactory evidence of payment upon
request. Grantee is authorized, but in no event obligated, to make or advance, on Grantor's
behalf, any payment of delinquent taxes and/or assessments in accordance with any bill or
statement procured from appropriate authority, without inquiry into the validity of the taxes or
the accuracy of the bill or statement, provided it gives ten (10) days prior written notice to
Grantor of its intention to do so. Grantor hereby agrees to reimburse Grantee for any such
payment made on its behalf. The obligation created thereby shall bear interest until paid by the
Grantor at the lesser rate of (1) Prime Rate of Interest plus two (2%) percentage points as
defined by the Wall Street Journal or any successor publisher, or (2) the maximum rate allowed
by law, whichever is lower, and shall be a lien upon the Property.
24. COSTS AND LIABILITIES. Grantor retains all responsibilities and shall bear
all costs and liabilities of any kind related to the ownership, operation, upkeep, and
maintenance of the Property, including the maintenance of adequate comprehensive general
liability insurance coverage. Grantor remains solely responsible for obtaining any applicable
governmental permits and approvals for any activity or use permitted by this Easement and
requiring that such permits and approvals and all such activities or uses shall be undertaken in
accordance with all applicable federal, state, and local laws, regulations, and requirements.
17
Grantor shall keep the Property free of any liens arising out of any work performed for,
materials furnished to, or obligations incurred by Grantor. The foregoing notwithstanding,
Grantee shall bear all costs and liabilities of any kind arising from, relating to or associated
with activities or uses engaged in by Grantee on the Property.
25. MAINTENANCE OF INSURANCE; INDEMNIFICATION. As long as this
Conservation Easement remains in effect and after a structure is constructed on the Property,
Grantor shall maintain one or more policies of insurance (e.g. homeowner's insurance, umbrella
insurance, or commercial general liability insurance), certifying Grantee as an additional insured
against all claims for bodily injury, death and property damage occurring on the Property, which
collectively provide coverage for bodily injury and property damage occurring on or about the
Property with minimum limits of One Million Dollars ($1,000,000) per occurrence. Such
insurance shall be effected under valid enforceable policies with insurers authorized to do
business in Hawaii. Certificates of all such insurance shall be delivered to Grantee upon the
recording of this Easement. Each such policy shall provide against cancellation without at least
ten (10) days prior written notice to each insured named therein, pursuant to clauses typically
available in the State of Hawaii, if such clauses are available.
26. GENERAL PROVISIONS.
26.1. Access. Nothing contained in this Easement shall give or grant to the public a
right to enter upon or to use the Property or any portion thereof where no such right existed in
the public immediately prior to the execution of this Easement.
26.2. Successors. The covenants, terms, conditions and restrictions of this
Conservation Easement shall be binding upon, and inure to the benefit of the parties hereto and
their respective successors and assigns, and shall continue as a servitude running in perpetuity
with the Property.
26.3. Hawaii Law. This Conservation Easement shall be and is deemed to be a
conservation restriction under the laws of the State of Hawaii only, and shall be construed and
given effect in accordance with the laws of the State of Hawaii and not otherwise.
26.4. Duplicate Originals. Grantor and Grantee shall execute this Conservation
Easement in duplicate, each party retaining an original.
26.5. Notice(s). Any notices shall be mailed to the address (es) listed in Section 7.
Upon any transfer of the ownership of the fee interest, or the assignment of the rights of Grantee
as provided in Sections 16 and 18 herein, any change in the address (es) shall be provided to the
other party.
26.6. Re-recording. The Grantee is authorized to record or file any notices or
instruments appropriate to assuring the perpetual enforceability of this Easement; for such
purpose, the Grantor appoints Grantee as Grantor's attorney -in -fact to execute, acknowledge
and deliver any necessary instrument on Grantor's behalf. Without limiting the foregoing, the
Grantor agrees to execute any such instruments upon request.
26.7. Definitions. The terms "Grantor" and "Grantee" as used herein shall be deemed
to include, respectively, the Grantor, Grantor's heirs, successors and assigns, and Grantee, its
successors and assigns.
26.8. Severability. If any provision of this Easement or the application thereof to any
person or circumstance is found to be invalid, the remainder of the provisions of the Easement
and the application of such provisions to persons or circumstances other than those as to which
it is found to be invalid shall not be affected thereby.
26.9. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the grant to affect the
Purpose of this Easement and the policy and purpose of the Hawai' i Revised Statutes Chapter
198 and applicable federal law. If any provision in this instrument is found to be ambiguous, an
interpretation consistent with the Purpose of this Easement that would render the provision valid
shall be favored over any interpretation that would render it invalid.
26.10. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to the Easement and supersedes all prior discussion, negotiations, understandings, or
agreements relating to the Easement, all of which are merged herein.
26.11. Termination of Rights and Obligations. A party's rights and obligations under
this Easement terminate upon transfer of the party's interest in the Easement or Property, except
that liability for acts or omissions prior to transfer shall survive transfer.
26.12. No Merger. Should Grantee acquire fee title to the Property, no merger shall
occur and this Easement and the fee shall continue to be managed as separate estates.
26.13. Reasonableness Standard. Except as otherwise set forth herein, Grantor and
Grantee shall follow a reasonableness standard and shall use their best efforts to make any
determinations that are necessary or are contemplated to be made by them (either separately or
jointly) under this Easement in a timely manner and shall cooperate with one another and shall
take all other reasonable action suitable to that end.
26.14 Counterparts. Grantor and Grantee agree that this Easement may executed in
counterparts, each of which shall be deemed an original, and said counterparts shall together
constitute one and the same agreement, binding on all Parties hereto, notwithstanding all of the
Parties are not signatory to the original or the same counterparts. For all purposes, duplicate
unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining
pages assembles as on document.
Remainder of this page left blank intentionally
NK
TO HAVE AND TO HOLD the above -described Conservation Easement to the use,
benefit, and behalf of the Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, the Grantor has executed this Conservation Easement this
day of JUN 10 9017 . 2017.
HCC FARMS LLC,
a Hawaii limited liability company
By HONOLULU COFFEE REAL ESTATE
HOLDINGS, LLC,
a Delaware limited liability company
Its Member
By ---
EDWARD F. SCHULTZ
Its Presiding Manager
GRANTOR
Date:
ACCEPTANCE
The foregoing Conservation Easement is hereby duly accepted by Grantee this day of
2017.
Hawaiian Islands Land Trust
Title:
20
TO HAVE AND TO HOLD the above -described Conservation Easement to the use, benefit,
and behalf of the Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, the Grantor has executed this Conservation Easement this
day of , 2017.
GRANTOR
HCC Farms LLC
By its:
Date:
ACCEPTANCE
The foregoing Conservation Easement is hereby duly accepted by Grantee this 2�'7 day of
C , 2017.
Hawaiian Islands Land Trust
By: �IA
Title: C�
27
2i
STATE OF HA1/ All )
F?� (�. lit) SS:
G IGN COUNTY OF )
�n this l?iw 28 W , before me personally appeared
to me personally known/proved to me on the
basis of satisfactory evidence, who, being by me duly sworn or affirmed, did say that such
person executed the foregoing instrument as the free act and deed of such person, and if
applicable in the capacity shown, having been duly authorized tg.�xecute such instrument in such
capacity.
I -A 1►ttfr
(Notary's Stamp or Seal)
Name:
Notary Public, State of Hawaii
My commission expires:
NOTARY CERTIFICATION STATEMENT
Document Title/Description:
Document consists of,
Date of Document:
Date of Notarial Act &
Notary Certification Statement:
V0d 0 2 2W
GRANT OF CONSERVATION EASEMENT
HCC ` (Farms LLC 150-Acre Expansion
14- pages (including this page and Exhibit A)
Undated at Time
1 U N 2 8 2A7
Jurisdiction in which notarial act performed Judicial 'ircui State of Ha 'an
93-u2 _= Name: FJ TaA:-aw ;FIo
(P•'�����
(Notary's Stamp or Seal)
Notary Public, State of Hawaii
21
STATE OF HAWAII )
11 ) SS:
CV�J,q COUNTY OF �A zu L X1 )
O s ION 2 8 7911 , before me personally appeared
�. E S , to me personally known/proved to me on the
basis of satisfactory evidence, who, being by me duly sworn or affirmed, did say that such person
executed the foregoing instrument as the free act and beef such person, and if applicable in the
capacity shown, having been duly authorized to exe to suck instrument in such capacity.
Name: Roy J. T e,^^ Ns;v
Notary Public, State of Hawaii
My commission expires: �l Oy Ll 2 200
(Notary's Stamp or Seal)
Document Title/Description: GRANT OF CONSERVATION EASEMENT
HCC Farms LLC 150-Acre Expansion
Document consists of: � � pages (including this page and Exhibit A)
Date of Document: U„ laled at Time
Date of Notarial Act &
Notary Certification Statement: J U N Z N J
Jurisdiction in which notarial act performed: gird J dicial 6,ircuit, State of Hawaii
TA
93-621 '=
C) F.
IIIII
(Notary's Stamp or Seal)
Name: Rai,. j. Tagj,,Z,,Mo
Notary Public, State of Hawaii
29
n.
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Land situated on the Easterly end of Kalamakowali Homestead Road at Kalamakumu and
Kalamakowali, South Kona, Island and County of Hawaii, State of Hawaii.
Being portions of:
Lot1-A-1-B;
Royal Patent 4497, Land Commission Award 8559 to C. Kanaina and;
Grant 5206 to Francisco Deniz.
Beginning at the Southwesterly corner of this easement, being also an angle on the
Westerly property line of Lot 1-A-1-B and being the Southeasterly corner of Kalamakowali
Homestead Road, the coordinates of said point of beginning referred to Government Survey
Triangulation Station "PUU OAHU" being 9,270.70 feet South and 21,802.89 feet East and
running by azimuths measured clockwise from True South:
1. 16cr 09, 30.00 along the Easterly end of Kalamakowali
Homestead Road to a point;
2. 197' 38' 30" 641.10 feet along Lot 2-A (Revised) of the
Kalamakowali Homesteads and along
Grant 4015 to F. Deniz to a pipe in concrete;
3. 144 20' 269.8 feet along Grant 1610 to Pupule to a point;
4. 133' 19' 493.9 feet along Grant 1610 to Pupule to a "+" on
rock:
5. 176 12' 30" 136.76 feet along stonewall and along Royal
Patent 1669, Land Commission
Award 8516-B, Apana 2 to Kamaikui to a
on rock;
6. 71° 25' 15" 407.75 feet along Royal Patent 1669, Land
Commission Award 8516-B, Apana 2 to
Kamaikui to a 3/4 inch pipe;
23
i%,
Thence, for the next three (3) courses following along middle of stonewall, along Lot 1
and along the remainder of Royal Patent 4497, Land Commission Award 8559 to
C. Kanaina:
7.
151'
38' 30"
158.42
feet to a point;
8.
15Z
24' 30"
247.75
feet to a point;
9.
156
27'
28.43
feet to a 3/4 inch pipe;
10.
216
18'
1,080.50
feet along middle of stonewall, Lot 1 and the
remainder of Royal Patent 4497, Land
Commission Award 8559 to C. Kanaina to a
point;
11.
179
58' 30"
134.98
feet along middle of stonewall, Lot 1 and the
remainder of Royal Patent 4497, Land
Commission Award 8559 to C. Kanaina to a
3/4 inch pipe (found at the South face of
stonewall);
12.
239
33'
359.48
feet along stonewall, Lot 17-A and along
Grant 867 to Preston Cummings to a 1/2 inch
pipe;
Thence, for the next six (6)
courses following along Lot 1-A-1-A of this subdivision and
along
the remainders of
Lot 1-A-1
and Royal Patent 4497, Land Commission
Award 8559 to C. Kanaina:
13.
329
46' 30"
1.50
feet along stonewall to a point;
14.
24(7
12'
63.64
feet to a point;
15.
306
30'
14.22
feet to a spike (set);
16.
30Z
30'
169.98
feet to a spike (set);
17.
236
00'
2,007.96
feet to a spike (set);
18.
204
30'
167.00
feet to a spike (set);
Thence, for the next nine (9) courses following along the West side of stonewall and
along
Lot 1-A-1-A and along Grant 5206
to Francisco Deniz:
19.
354
30'
68.00
feet to a spike (set);
20.
356
04'
226.80
feet to a spike (set);
21.
359'
22'
87.50
feet to a spike (set);
22.
4
07' 40"
185.10
feet to a spike (set);
24
v�i
23.
4
29'
30"
275.20
feet to a spike (set);
24.
359
05'
123.70
feet to a spike (set);
25.
356
31'
132.50
feet to a spike (set);
26.
356
40'
94.90
feet to a spike (set);
27.
356
10'
152.40
feet to a spike (set);
28.
354
39'
2,101.95
feet along Lot 1-A-1-A to a spike (set);
Thence for
the next six (6) courses following
along Lot 1-A-2:
29.
74
02'
13"
24.89
feet to a spike (set);
Thence, following
on a
curve to the right
with a radius of 195.00 feet, the chord azimuth
and distance being:
30.
110'
15'
32"
230.46
feet to a spike (set);
31.
146
28'
51"
178.76
feet to a spike (set);
32.
131'
46'
03"
151.35
feet to a spike (set);
33.
159
38'
42"
134.51
feet to a spike (set);
34.
61°
28'
1,960.72
feet to the point of beginning and containing
an area of 150.000 Acres, more or less.
25
IA4
sr'!
33
EXHIBIT B
MAP
FEE OWNER'S LETTER OF AUTHORIZATION
Tax Map Key (3) 8-2-012-014
Kealakekua and Waipunalula, District of South Kona, County and State of Hawaii
The undersigned is the fee owner of the real property above -identified, and hereby authorized
Carlsmith Ball LLP, to apply for, execute and process any and all County, State and Federal government
permit applications, and to participate in any proceedings related to the above referenced property, and to
participate in proceedings related to said property.
A photostatic or facsimile copy of this executed authorization shall also be considered as effective
and valid as the original.
Subscribed and sworn (or affirmed) before
me this fig_ day of j)jce,,,Q 2019.
i9.AtL L\� AIvE
Name:
Notary Public, State of t {t t
My commission expires: uI7 o1 ) Zo z2
HCC FARMS, LLC, a
Hawaii limited liability company
By:v�-
Its: �nro� ik
Address: _I I t Z r-o S1 Sv t44- 4 dv
1- at41iu ox 96 6/
`% % ' �p\1 AKA844y
NOTARY
PUBLIC —_
Comm. No.
17-574
F OF tir .�
(Notary Stamp of Seal)
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Fee Owner's Letter of Authorization
Document Date:
No. of Pages:
Jurisdiction (in which notarial act is performed):
h t2S i C � 12c,K t
`t'1 zo 19
Signature of Notary Date of Notarization and
Certification Statement
CmAiU P0&_PyA&NC—
Printed Name of Notary
NOTARY
PUBLIC -
Comm. No.
17-574
(Notary Stamp or Seal)
FEE OWNER'S LETTER OF AUTHORIZATION
Tax Map Keys (3) 8-2-001-101 and (3) 8-2-012-013
Kealakekua and Waipunalula, District of South Kona, County and State of Hawaii
The undersigned is the fee owner of the real property above -identified, and hereby authorized
Carlsmith Ball LLP, to apply for, execute and process any and all County, State and Federal government
permit applications, and to participate in any proceedings related to the above referenced property, and to
participate in proceedings related to said property.
A photostatic or facsimile copy of this executed authorization shall also be considered as effective
and valid as the original.
Subscribed and sworn (or affirmed) before
me this 220 day of O i r _, 2019.
Name: t�„L,nn an
Notary Public, Stattoowo
My commission expires: M 14' 70
KEALAKEKUA RANCH LTD.
By: Rhonda Kavanagh
Its: CEO
Address: PO Box 399
Captain Cook, HI 96704
(Notary Stamp of Seal)
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Fee Owner's Letter of Authorization
Document Date: dC u
No. of Pages: I
Ju 'sdict'on (in which no act is-rformed):
10 22( 1
Signature oANotaryU Date of Notarization and
Certification Statement
InVf&� hn
Printed ame of Notary (Notary Stamp or Seal)
FEE OWNER'S LETTER OF AUTHORIZATION
Tax Map Key (3) 8-2-012-012
Kealakekua and Waipunalula, District of South Kona, County and State of Hawaii
The undersigned is the fee owner of the real property above -identified, and hereby authorized
Carlsmith Ball LLP, to apply for, execute and process any and all County, State and Federal government
permit applications, and to participate in any proceedings related to the above referenced property, and to
participate in proceedings related to said property.
A photostatic or facsimile copy of this executed authorization shall also be considered as effective
and valid as the original.
Subscribed and sworn (orrmed) before
me this day of yWe_ , 2019.
�NXV C
Name:
Notary Public, State of
My commission expires: C�/e70
KONA HILLS, LLC, a
Delaware limited liability company
AUSTIN D. BELOTE
Notary. Public - California 11
Stj([)iiyo County D
rttittission # 2157908
My -Comm. Expires Jun 24, 2020
(Notary Stamp of Seal)
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Fee Owner's Letter of Authorization
Document Date:
No. of Pages:
Jurisdiction (in which notarial act is performed):
Signature of Notary Date of Notarization and
Certification Statement
Printed Name of Notary
AUSTIN D. BELOTE
Notary Public - California `
5a�n;Dieoo County z
Coitimission #t 2157908
My Comm. Expires Jun 24, 20 0
(Notary Stamp or Seal)
FEE OWNER'S LETTER OF AUTHORIZATION
Tax Map Key (3) 8-2-012-015
Kealakekua and Waipunalula, District of South Kona, County and State of Hawaii
The undersigned is the fee owner of the real property above -identified, and hereby authorized
Carlsmith Ball LLP, to apply for, execute and process any and all County, State and Federal government
permit applications, and to participate in any proceedings related to the above referenced property, and to
participate in proceedings related to said property.
A photostatic or facsimile copy of this executed authorization shall also be considered as effective
and valid as the original.
Subscribed and sworn (or affirmed) before
me thisP, 55+hday ofMar-Ch , 20+8. _DLON
N e:
Notary Public, State of �AcLA,,'a_k i
My commission expires: February 25, 2022
KEALAKEKUA HERITAGE RANCH, LLC, a
Hawaii limited liabi company
By: Thomas W. Pace
Its: Manager
Address: ?.o .3SKW(a F KrA Arrx,k. 4( 70-0
L• BUTTS
NOTARY
PUBLIC
No. 18-41
sTq� OF NAP
(Notary Stamp of Seal)
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Fee Owner's Letter of Authorization
Document Date:
No. of Pages:
Jurisdiction (in which notarial act is performed):
ature of Notary Date of Notarization and
Certification Statement
Jean L. Buttens
Printed Name of Notary (Notary Stamp or Seal)
FEE OWNER'S LETTER OF AUTHORIZATION
Tax Map Key (3) 8-2-012-001
Kealakekua and Waipunalula, District of South Kona, County and State of Hawaii
The undersigned is the fee owner of the real property above -identified, and hereby authorized
Carlsmith Ball LLP, to apply for, execute and process any and all County, State and Federal government
permit applications, and to participate in any proceedings related to the above referenced property, and to
participate in proceedings related to said property.
A photostatic or facsimile copy of this executed authorization shall also be considered as effective
and valid as the original.
KEALAKEKUA MOUNTAIN RESERVE, LLC, a
Hawaii limited liability company
By: doTERRA, Inc.
Its: Manager
By: orey indl
Its: President
Address: 3M S 13on W �; PYAgn - (SroUt, UT 0400'L
Subscribed and sworn (or affirmed) before
me this _ day of f , 20 �-q-gtW
MEGAN WOOTTON
Yti�•e.ol awl tUvt�hn i , r �= _�._. �•.
NOTARY PUBLIC -STATE OF UTAH
/�l1 '�: 1� 1�
,,��• , COMMISSION# 700038
Name:Li=:..... f
-�' COMM. EXP, 04-19-2022
Notary Public, State of 1 /1
My commission expires: 4 im uxL2— (Notary Stamp of Seal)
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Fee Owner's Letter of Authorization
Document Date: ! I Z I/ 1 h
No. of Pages:
Jurisdiction (in which notarial act is performed):
+4 0f [Ai-Ah / CW!!1 ' Of VA&kA M E G A N W 0 0 T T 0 N
�6i2 1 ! I " 1 � NOTARY PUBLIC -STATE OF UTAH
Signature of Notary Date of Notarization and ffP COMMISSION # 700038
Certification Statement �::�' COMM. EXP. 04-19-2022
OLI—M&- A (A) b U
Printed 14ame of Notary (Notary Stamp or Seal)
CARLSMTTH BALL LLP
A LIMITED LIABILITY LAW PARTNERSilIP
121 WAIANUENUr AVENUE
P.O. Box 686
HILo, HAWAII 96721-0686
TEI.E.PHONE 808.935.6644 FAX 808.935.7975
W W W.CARLSMITH.COM
SLIMOCARLSMITH.CUM
December 9, 2020
Zendo Kern
Director
Planning Department
101 Pauahi Street, Suite 7
I-lilo, Hawaii 96720
Attm Christian Kay
CGH 0' ANNTN
DEC 29 20G EPT
20 Pm31:0
[tc: Request for Planning Director -initiated rezoning of Change of Zone
Ordinance No. 98-63, pursuant to Condition Z
Affected landowners: Kealakekua Mountain Reserve, LLC; Kona Hills LLC,
I ICC Farms LLC, Kealakekua Ranch, Ltd, Kealakekua Heritage Ranch LLC, and
Kealakekua Ranch, Ltd.
'I'ax Map Key Nos.: (3) 8-2-012:001, 012, 013, 014 (por.), 015, and 8-2-001: 101
(par.) ,[formerly (3) 8-2-012:012 and a portion of 001 ] (collectively referred to
herein as the "Property")
Dear Mr. Kern:
On behalfof the landowners subject to Change of Zone Ordinance No. 98-63 ("Ord. No.
98-f>;"}, specifically Kealakekua Mountain Reserve, LLC ("KMR"); Kona Hills LLC, HCC
farms l.[.C, Kealakekua Heritage Ranch LLC, and Kealakekua. Ranch, Ltd, this will respond to
the Planning Dcpartment's for additional information on the overnight camping and agricultural
"10L11-" activities, as stated in our request for a Planning Director initiated zoning reversion for the
Prolicrty. We understand that these specific uses are not permitted in the State Land Use
Agricultural District, nor are they allowed by County zoning, so this will confirm that the
affected landowners will cease the subject activities and obtain the necessary permits from the
County prior to resuming these activities.
We also kindly request that the Planning Department use the original zoning designations
and metes and bounds descriptions found in Ordinance No. 95-70 to change the current zoning
designations back to its original designations prior to Ordinance No. 95-70, as this is the intent of
the zoning reversion request that we are seeking.
I I' � o a have any questions regarding this request or if you require additional information,
plcase i"; ! I: c•: to contact me or my paralegal Jason Knable at 935-6644 at any time. Thank
again 161` ycxll- assistance with this request.
Planning Dept. HILO KONA MAUI
Exhibit 1 1:18 9 41
- - 1.065938-00001
December 9, 2020
Page 2
SSL/jkkI
cc: Kealakekua Mountain Reserve, LLC
Kona Hills LLC, HCC Farms LLC
Kealakekua Ranch, Ltd
Kealakekua Heritage Ranch LLC
KcalakckLia Ranch, Ltd.
SSI. jkkl
Very truly yours,
4Ste S.C. Lim
4 82.9-5671-3941.1.06593 8-00001
Stephen K. Yamashiro
Mayor
C ounk of �ttf -
PLANNING COMMISSION
25 Aupuni Street, Room 109 • Hilo, Hawaii 96720-4252
(808) 961-8288 Fax (808) 961-9615
CERTIFIED MAIL
March 1, 1994
Mr. Sachi Noma, Director
Kealakekua Development Corporation
PO Box 945
Captain Cook, HI 96704
Dear Mr. Noma:
Applicant: Kealakekua Development Corporation
Use Permit Application (USE 93-6)
Request: 18-Hole Golf Course, Clubhouse & Related Improvements
Tax Map Ke : 5-2-12:01 & 12
The Planning Commission at its duly held public hearing on
February 17, 1994, voted to approve the above application.
Use Permit No. 121 is hereby issued to develop a golf course,
club house and related improvements. The project site, formerly
Kealakekua Ranch Lands, consists of approximately 11,184 acres,
situated between the 2,200 and 6000 foot elevation, (mauka) east
of Captain Cook, mauka of the intersection of Koa Road and Hawaii
Belt Road, Kealakekua, South Kona, Hawaii.
Approval of this request is based on the following:
The granting of this request will be consistent with
the general purpose of the zoned district, the intent and
purpose of the Zoning Code and the County General. Plan. The
establishment of an 18-hole golf course and related
facilities within the State Land Use Agriculture District
and the County's Agriculture zoned district may be permitted
through the granting of a Use Permit. The General Plan Land
Use Pattern Allocation Guide (LUPAG) Map designates the
subject area for Extensive Agriculture and Orchards. The
subject request will provide a form of perpetual open space
which will maintain the current open and forested character
of the subject property and the surrounding area along with
its natural and scenic qualities. The proposed development
would be consistent with the policies of the Recreation and
Open Space elements of the General Plan which state that
Planning Dcr;-
Exhibit 2
MAR I W4
Mr. Sachi Noma
March 1, 1994
Page 2
recreational facilities in the County shall reflect the
natural, historic, and cultural character of the area, and
that the recreational use should be compatible with the
adjacent areas. To further ensure that these General Plan
elements are implemented further data recovery and
interpretive preservation will be required and provided for
by conditions of approval. The granting of this proposal
would complement the goals of the General Plan's
Recreational element which states to "Provide a diversity of
environments for active and passive pursuits" and to
"provide a wide variety of recreational opportunities...."
A condition of approval shall be an Impact Fee to implement
the Land Use element policy concerning meeting communities
needs. This provision would be consistent with the policy
of the Land Use element that states "The county shall
encourage the development and maintenance of communities
meeting the needs of its residents in balance with the
physical and social environment.", This impact fee will
encompass a wide range of community needs in addition to the
recreational needs that this proposal will satisfy. Golf
courses are permitted uses within the State Land Use
Agricultural District provided that the affected lands are
not classified either A or B soils by the Land Study Bureau.
The Land Use Study Bureau's Overall Master Productivity
Rating for agricultural use of the subject area for the
proposed golf course is Class "C" or (Fair) and "E« (Very
Poor), therefore, a golf course is permissible in the this
area of the subject property. Golf courses are a permitted
use within the County's Agriculture zone district provided a
Use Permit is secured from the County Planning Commission.
The desired use will not be materially detrimental to
the public welfare nor cause substantial adverse impact to
the community's character or surrounding properties. The
character of the subject area of the property is pasture,
open space and forest. The subject property is currently
being used for cattle grazing, an orchid farm and equestrian
activities. The proposed golf course and related
improvements shall be part of an overall master agricultural
plan which will include support wastewater, drainage,
recreational activities. However, it is important to note
that a major portion of the master plan is devoted to Forest
and Agricultural uses. The creation of a perpetual open
space golf course use which will be designed with golf
course fairways and playing areas left in a relatively
natural condition to complement the forest surroundings. In
addition, the golf course will be designed in an 18-hole
"core" configuration which is compatible with the forestry
i
Mr. Sachi Noma
March 1, 1994
Page 3
objectives of the Kealakekua Development project master plan
to have an environmentally and ecologically sensitive golf
course design. The golf course design will include the
retention of important archaeological sites, retention of
existing rock walls where possible, integrating drainage
management with the golf course and utilize an integrated
pest management approach for course maintenance. Water usage
for the course will be developed from existing ground water
resources. The impacts to the proposed agricultural
resources of the area are negligible. This finding is
consistent with the Land Study Bureau's classification and
the ALISH system map for soils in the area. The proposed
golf course will also be consistent with the requirements of
Chapter 205, Hawaii Land Use Commission rules and County of
Hawaii zoning requirements. The proposed golf course and
related improvements shall continue to promote as its
primary goal, an Agricultural base in conjunction with the
recreational aspect of the golf course with the proposed
agricultural master plan.
The granting of the proposed use will not adversely
affect similar or related existing uses within the
surrounding area, community or region. The proposed golf
course "core" configuration design will be compatible with
the proposed overall agricultural master plan and as such
will not adversely affect the surrounding properties.
The desired use will not unreasonably burden public
agencies to provide roads and streets, sewers, water,
drainage, school improvements, police and fire protection,
and other related infrastructure. Water is and/or will be
made available to the subject property for the proposed golf
course. The primary access to the project site shall be via
Koa Road which will be fully improved in accordance with the
requirements of the Department of Public Works and the
Department of Transportation, Highways Division. Wastewater
will be disposed of in a manner meeting with the new
wastewater treatment facility which will have the approval
of the Department of Health. All other utilities or
facilities are or will be made available to support the
proposed use.
Approval of this request is subject to the following conditions:
1. The applicant, successors or assigns shall comply with
all of the stated conditions of approval.
Mr. Sachi Noma
March 1, 1994
Page 4
2. The applicant shall indemnify and hold the County of
Hawaii harmless from and against any loss, liability,
claim or demand for the property damage, personal
injury or death arising out of any act or omission of
the applicant, its successors or assigns, officers,
employees, contractors and agents under this permit or
relating to or connected with the approval of this
permit.
3. The Applicant shall provide assurance(s) satisfactory
to the Planning Director, upon consultation with the
Department of Land and Natural Resources -Commission on
Water Resource Management and the Department of Health,
that a water source(s) of sufficient quality and
quantity to support the total irrigation needs of the
golf course be established prior to the issuance of a
certificate of occupancy or opening of the golf course,
whichever occurs first.
4. Final Plan Approval for the proposed golf course and
related improvements shall be secured from the Planning
Director. In the design and review of any
improvements, noise and visual impacts shall be
minimized through appropriate siting, height, bulk,
color schemes, and landscaping. The Planning Director
shall determine the related improvements and accessory
uses to the golf course not inconsistent with the
applicable provisions of the Zoning Code at the time of
plan approval review.
5. Construction of the golf course and related
improvements shall be completed within five (5) years
from the date of receipt of Final Plan Approval.
6. A detailed drainage study shall be prepared by the
applicant for review and approval by the Department of
Public Works prior to submittal of plans for Plan
Approval review of the golf course. The Study shall
take into consideration the the drainage system,
retention basins and "Reduced Turf" design to be
incorporated within the golf course. A drainage system
shall be installed meeting with the approval of the
Department of Public Works, prior to issuance of a
certificate of occupancy or golf course opening,
whichever occurs first.
7. In the design of the golf course, the County of Hawaii
Planning Department's Guidelines for Golf Course Design
Mr. Sachi Noma
March 1, 1994
Page 5
(November 1989, as amended) shall be utilized. The
Planning Director shall determine appropriate setback
requirements (i.e. building and property line) at the
time of plan approval review. Easements for golf
course purposes over and across abutting lots, either
existing or proposed, shall not be permissible, except
as may be approved by the Planning Director.
B. The new Koa Road improvements shall be constructed to
County dedicable standards, meeting with the approval
of the County Department of Public Works. These road
improvements shall be installed prior to issuance of a
certificate of occupancy or golf course opening,
whichever occurs first. The Koa Road shall allow for
perpetual public use by easement or be dedicated to the
county. No golf cart path shall be permitted to cross
over Koa Road, except as may be approved by the
Planning Director and Chief Engineer. Furthermore,
direct access from future residential lots adjoining
this alignment will not be permitted.
9. Intersection improvements at the Mamalahoa Highway-Koa
Road intersection, including traffic signals and
channelization, shall be installed in a manner meeting
with the approval of the State Department of
Transportation and the county Department of Public
Works, prior to issuance of a certificate of occupancy
or golf course opening, whichever occurs first.
10. An archaeological mitigation and interpretation plan
shall be prepared and submitted for approval by the
Planning Director, in consultation with the Department
of Land and Natural Resources -Historic Preservation
Division and Hawaiian community organizations, prior to
submitting plans for plan approval review. The Plan
shall consist of three subplans; (1) an archaeological
data recovery plan for the sites to undergo data
recovery, (2) a detailed interim
protection/preservation plan for the sites to undergo
preservation, and (3) an interpretation plan which
shall include buffer zones, signage, and long-range
preservation concerns which may be submitted at a later
date. Approved mitigation measures shall be
implemented prior to or in conjunction with any land
alteration activity within the project area. The Plan
shall also include a detailed map of known lava
tube/cave systems located within the project site and
Mr. Sachi Noma
March 1, 1994
Page 6
mitigative measures to ensure that the golf course and
related drainage systems do not impact these cave
systems.
11. Should any unanticipated archaeological sites or
features be uncovered during land preparation
activities, work within the affected area shall
immediately cease and the Planning Director immediately
notified. Work within the affected area shall not
resume until clearance is obtained from the Planning
Director.
12. The use of pesticides and herbicides in conjunction
with all phases of operation shall conform with the
applicable regulations of appropriate governmental
agencies.
13. Prior to the commencement of construction, any portion
of the proposed golf course development are overall
monitoring plan on the potential pollution of
groundwater shall be submitted to the Planning Director
for approval in consultation with the State Department
of Health.
14. 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.
15. Prior to construction, the applicant shall demonstrate
to the satisfaction of the Planning Director that all
proposed off -site construction material such as topsoil
or sand are being supplied from an approved quarry or
resource site.
16. A program for public play at the proposed golf course
shall be developed meeting with the approval of the
Planning Director, prior to the issuance of a
certificate of occupancy or the opening of the golf
course, whichever occurs first. The Program shall
include, but not be limited to, the provision of public
play, at kama'aina rates, at least one (1) day per
month.
17. The Applicant shall establish a program for employee
housing and which shall be submitted for the review and
Mr. Sachi Noma
March 1, 1994
Page 7
approval of the Planning Director and Housing Agency
together with the submittal of plans for plan approval
of the golf course and clubhouse. The program shall
include provisions for on -site or off -site housing for
the employees at a ratio to be determined by a study of
surrounding housing opportunities and employee needs.
The ratio shall be no less than 10% and no more than
50% of the number of employees. The program may also
include consideration for other alternatives such as
rental housing subsidies or housing allowances. The
approval of the program shall be secured prior to the
issuance of a certificate of occupancy with the golf
course.
18. A job training program for the operating phase of the
golf course and golf clubhouse shall be developed and
submitted to the Planning Director for review and
approval prior to the issuance of a certificate of
occupancy or opening of the golf course, whichever
occurs first.
19. Comply with all other applicable laws, rules,
regulations and requirements, including those of the
Departments of Health and Public Works.
20. An annual progress report shall be submitted to the
Planning Director prior to each anniversary date of the
permit. The report shall include, but not be limited
to, the status of the development and to what extent
the conditions of approval are being complied with.
This condition shall remain in effect until all of the
conditions of approval have been complied with and the
Planning Director acknowledges that further reports are
not required.
21. An initial extension of time for the performance of
conditions within the permit may be granted by the
Planning Director upon the following circumstances: a)
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; b) the
granting of the time extension would not be contrary to
the general plan or zoning code; c) granting of the
time extension would not be contrary to the original
reasons for the granting of the permit; and d) the time
extension granted shall be for a period not to exceed
the period originally granted for performance (i.e., a
Mr. Sachi Noma
March 1, 1994
Page 8
condition to be performed within one year may be
extended for up to one additional year). Further,
should any of the conditions not be met or
substantially complied with in a timely fashion, the
Director shall initiate procedures to revoke the
permit.
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.
For your information, the Planning Commission denied the requests
for a contested case hearing by John Olson and Lunakanawai
Hauanio.
Should you have any questions, please feel free to contact Rodney
Nakano of the Planning Department at 961-8288.
Sincerely,
Donald L. Manalili, Chairman
Planning Commission
RKN:smn
xc: Honorable Stephen K. Yamashiro, Mayor
Planning Director
Department of Public Works
Department of Water Supply
County Real Property Tax Division - Kona
West Hawaii Office
Plan Approval Section
Department of Land and Natural Resources, Commission on
Water Resource Management
Department of Land and Natural Resources, Historic
Preservation Division
State Department of Health
State Department of Transportation
County Housing Agency
Stephen K. Yamashiro
Mayor
CERTIFIED MAIL
April 17, 1995
i -
�Te ow'xa'�
(611unk of (WH it
PLANNING COMMISSION
25 Aupuni Street, Room 109 • Hilo, Hawaii 96720-4252
(808) 961-8288 Fax (808) 961-9615
Sandra Pechter Schutte, Esq.
101 Aupuni Street
Suite 104-A
Hilo, HI 96720
Dear Ms. Schutte:
Special Permit Application 93-9
Applicant: Kealakekua Development Corporation
Request: Construction of Recreation Center
Tax Map Key: 8-2-12:1 and 12.
After duly held public hearings held by the Planning Commission on
November 10, 1993, February 17, 1994, April 14, 1994, December 16,
1994, February 16, 1995, and March 30, 1995, and contested case
hearing conducted by their hearing officer on November 22, 1994, and
December 1, 1994, the Planning Commission voted to approve the
above -referenced application. Special Permit No. 898 is hereby
issued for a private recreation center east (mauka) of Captain Cook,
mauka of the intersection of Koa Road and Hawaii'Belt Road,
Kealakekua, North Kona, Hawaii.
Approval of this request is based on the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND CONDITIONS
Procedural Matters
1. In April 1993, Kealakekua Development Corporation ("KDC")
submitted an application to the County of Hawaii Planning
Commission for a special permit, pursuant to Section 205-6,
Hawaii Revised Statutes ("HRS"), and Rule 6 of the Planning
Commission Rules of Practice and Procedure ("Commission Rules"),
to allow the establishment of a private recreation center and a
wastewater treatment facility on two separate four -acre sites
within its property (TMK: 8--2-12:01 consisting of 11,184 acres
Planning Dept.
Exhibit,_. _. 3_
Sandra Pechter Schut`te, Esq.
Page 2
of land) situated within the State Land Use Agricultural
District, as part of a larger project proposed for KDC's
property.
2. John L. Olson ("Olson") was granted standing as a party to the
proceeding.
3. On April 14, 1994, the Commission considered and approved the
petition of the Office of State Planning ("OSP") to intervene as
a party to the special permit contested case proceeding. The
Commission further denied an objection to the -contested case
hearing procedure filed by William Pa'akaula Kalawai'anui, and
denied Kalawai'anui status as a party in the contested case
proceeding. The Commission also voted to appoint David B. Kaapu
as the hearing officer to preside over the contested case
proceeding.
4. By letter dated July 26, 1994', OSP withdrew asFa party from the
contested case hearing.
5. KDC subsequently submitted notice to the Commission on
September 30, 1994, that it intended to withdraw the portion of
its special permit application seeking approval for the
construction and operatign of a sewage treatment plant on its
property.
G. The contested case hearing on the special permit application was
held on November 22, 1994, at the Kona Surf Hotel and on
December 1, 1994, at the office of John L. Olson, Esq.
7. Present at the contested case hearings were Sandra Pechter
Schutte, Esq., representing KDC; John L. Olson, representing
himself and his family; and Frederick Giannini, Esq., Deputy
Corporation Counsel, representing the County of Hawaii Planning
Department.
8. On December 1, 1994, the hearing officer and parties made a
visual inspection of the land and made the following findings:
a. Access to the land is presently over a one lane blacktop
road.
b. Access from the edge of the proposed larger development is -
presently over a one lane unpaved road of about 0.7 miles;
thereafter, the property was reached by foot. .
C. The site is presently used as pasture and is lava, with
some soil, grass and Chia and kola trees the land is of
uneven grade.
Sandra Pechter Schutte, Esq.
Page 3
d. The site is pastoral, pristine and quiet.
e. There is no development of the property in view from the
site of the proposed recreation center.
9. The special permit sought by KDC is part of a master planned
project proposed by KDC for its 11,184 acre parcel of land
("KDC's land"). The entire parcel is situated within the State
Land Use Agricultural District.
10. KDC's master plan includes the proposed rezoning of KDC's land
into a golf course agricultural park, equestrian center
conservation area and various agricultural home sites with a
minimum lot size of one (1) acre.
11. The proposed rezoning was recommended for approval by the
Commission in March 1994, subject to certain conditions, and the
application is pending before the Hawaii County�Council.
12. KDC's master plan includes the establishment of a recreation
center on approximately four acres of KDC's land in the vicinity
of the golf course clubhouse complex.
13. The uses proposed for KDC'js land are permitted uses within the
State Land Use Agricultural District, pursuant to the State Land
Use law, Chapter 205, HRS, except for the recreation center.
14. The recreation center is not a permitted use within the State
Land Use Agricultural District; therefore, this use can only be
established if a special permit is issued by the Commission in
accordance with Section 205--6, HRS and Rule 6 of the Commission
Rules.
Descri tion of the Pro ert
15. The four -acre parcel on which the recreation center is proposed
to be located (the "Recreation Center Property") is situated on
the east (mauka) side of the Hawaii Belt Road intersection, at
Kealakekua, South Kona, Hawaii.
16. The Recreation Center Property is designated Agriculture under
the State Land Use system. The Land Use Pattern Allocation
Guide (LUPAG) Map of the County General Plan designates the
Recreation Center Property for Extensive Agriculture and Orchard
use: The present County Zoning for the Recreation Center
Property is Agriculture, with a minimum lot size of 20-acres
(A-20a) .
17. The Recreation Center Property is entirely surrounded by KDC's
land.
Sandra Pechter Schutte, Esq.
Page 4
18. The Recreation Center Property and the surrounding KDC land are
presently being used for cattle grazing.
19 Olson is an adjoining property owner to KDC's land; however,
Olson's property is at least one-fourth mile away from the
Recreation Center Property.
20. Physical access to KDC's land is by way of Kiloa or Koa Roads,
both private roads, and KDC must still acquire additional land
for the required roadway extending from the Hawaii Belt Road to
its proposed development.
21. The Land Study Bureau's detailed land classification system,
which rates land within the State from Class A (highest rating)
down to class E (poorest rating) designating the overall
(master) productivity rating of the Recreation Center Property
as "C" or Fair and "E" or Very Poor.
22. The slope for the majority of the Recreation Center Property
varies between five to ten (5-10) percent with lower elevations
reaching gradients of 15 percent or more.
23. There are no known endangered or threatened plant species on the
Recreation Center Property, and the area is not a habitat for
any endang6red animal species.
24. Although there are identified archaeological sites on KDC's
land, there are no such sites where the recreation center
facilities are proposed.
25. A natural drainageway intersects the Recreation Center Property;
however, this drainageway is not located in the area in which
the recreation center buildings are proposed.
Description of Recreation Center Project
26. The recreational center proposed by KDC is intended to provide
various indoor and outdoor recreational amenities, including_
swimming and wading pools, deck area, a spa and tennis courts,
showers and restroom facilities within the complex and parking
adjacent to the complex.
27. The present floor plan shows approximately 6,000 square feet of
developed area for the recreation center.
28. There are presently 45 parking spaces proposed by KDC for the
recreation center facility, and there is adequate land area
within the Recreation Center Property to provide additional
parking if requested by the County.
Sandra Pechter Schutte, Esq.
Page 5
29. KDC will construct and maintain, in private ownership, the road
leading to the Recreation Center Property. Neither the State
nor the County will be required to construct or maintain the
roads leading to the Recreation Center Property.
30. KDC will develop a private source of water to service all of its
lands as well as the Recreation Center Property. Water from the
present County water system will not be required for the
recreation center.
31. KDC proposes to develop an on -site private wastewater disposal
system, in accordance with the State Department of Health
standards, to handle the wastewater disposal for the recreation
center.
32. KDC proposes to design and construct a drainage system as part
of its larger development which will reduce the. natural flow of
surface water generated through KDC's land, and thereby reduce
the risk of flooding to downstream properties. It is
anticipated that this drainage system will handle any surface
water runoff generated because of the recreation center
development.
f
33. KDC intends to build and operate the recreation center as a
private facility for the benefit of the lot owners on KDC's
land. The recreation center is not intended for use by the
general public.
34. A special permit may be issued by the Commission, with
appropriate performance conditions, pursuant to Rule 6-7 of the
Commission Rules, if the standards under Rule 6-6 of the
Commission Rules are met. These standards require that the use:
(a) Is an unusual and reasonable use of land situated within
the Agricultural or Rural District, whichever the case may
be; and
(b) Would promote the effectiveness and objectives of
Chapter 205, Hawaii Revised Statutes, as amended.
35. Rule 6-6 of the Commission Rules also requires the Commission to
consider the criteria under Rule 6-3(b)(5). These criteria
provide that:
(a) Such use shall not be contrary to the objectives sought to
be accomplished by the Land Use Law and Regulations;
(b) The desired use shall not adversely affect surrounding
properties;
Sandra Pechter Schutte, Esq.
Page 6
(c) Such use shall not unreasonably burden public agencies to
provide roads and streets, sewers, water, drainage, school
improvements, and police and fire protection;
(d) Unusual conditions, trends, and needs have arisen since the
district boundaries and regulations were established;
(e) The land upon which the proposed use is sought is unsuited
for the uses permitted within the district;
(f) The proposed use will not substantially alter or change the
essential character of the land and the present use; and
(g) The request will not be contrary to the General Plan and
official Community Development Plan and other document such
as Design Plans.
Use Promotes the Db�ectives of HRS Chapters 205, 205A and Rules of
the Commission and Not Contrar to Land Use Law and Regulations
36. KDC's use of four acres of its property for a recreation center
will not be contrary to the objectives sought to be accomplished
by the State land use law because the area represents only a
small portion out of KDC'p 11,000 acre agricultural parcel. It
is also consistent with the overall objectives of the land use
law which permits recreational uses on Agricultural lands.
37. The recreation center proposed by KDC is an unusual use of the
land since the facility will be used in conjunction with
permitted uses in the Agricultural district. It will also be a
reasonable use of the land within the district given the soil
capabilities of the land which have been rated fair to poor.
38r, The Planning Department, in reviewing the proposed special
permit application, recommended to the Planning Commission that
they grant the special permit.
39. The Planning Department found in its review of the special
permit application that a special permit would be a more
appropriate procedure than changing the LUC boundary and
rezoning because the use of a special permit would enable the
Planning Department to more closely limit construction and
activity on the agricultural land and not open it up to the
numerous possible uses which could be brought about by boundary
amendment and rezoning, thereby keeping more control over the
agricultural nature of the land.
40. In the past, the Planning Department has recommended special
permits in situations involving recreation centers as parts of
golf courses on agricultural land.
Sandra Pechter Schutte, Esq.
Page 7
41. In evaluating the recreation center project, the Planning
Department concluded that it was a reasonable use on
agricultural land and that it would not have any essentially
detrimental effects on agricultural resources.
Adverse Effect on Surrounding Propert
42. KDC's proposed recreational center will not adversely affect
surrounding properties.
43. KDC's proposed recreational center is sufficiently removed from
surrounding properties so that it would should not have any
adverse visual impact upon the surrounding properties.
44. The Planning Department determined that as a part of the entire
project, the recreation center would not cause drainage
problems.
s
45. KDC has created a drainage plan which will incorporate drainage
ditches across the watershed area on the property to intercept
runoff water, and direct it to settlement basins, detention
basins or sumps to prevent flooding.
46. KDC's flood plan will reduce the amount of runoff water that
goes through portions of the area proposed for the recreation
center.
47. Flooding has occurred infrequently on the property in question
in the past; however, most of the runoff water has been directed
by an existing drainage pattern into drywells, lava tubes and
other natural areas. There have been no chronic flooding
problems; however, properties located makai of this overall
parcel have experienced damage to,their property in the past
from water runoff from the overall KDC parcel.
Impact on Public Agencies
48. The proposed recreational center should not unreasonably burden
public agencies to provide roads and streets, sewers, water, -
drainage, school improvements and police and fire protection
because all of the roads and streets, sewage treatment, and
drainage improvements are being developed privately by KDC.
School facilities will not be needed for the recreation center
and the impacts upon police and fire protection would be
negligible given the nature of the private facility. -
49. KDC plans to dispose of wastewater generated at the site of the
recreation center by an on -site disposal system similar to a
septic tank, which requires Health Department approval, but no
separate permission from the Planning Department.
Sandra Pechter Schutte, Esq.
Page 8
50. The recreation center proposed by the special permit application
should not generate more than a minimal traffic impact outside
of the project site, because the majority of the traffic going
to and from the recreation center would be contained on the
project site. The recreation center is designed as an amenity
to the proposed subdivision and golf course and will not be open
to the public; therefore, most traffic will be on -site and not
from Mamalahoa Highway. Neither the County nor the Applicant
conducted an independent traffic study for the recreation center
alone; however, the overall project including the golf course,
subdivision and recreation center would generate approximately
200 vehicle trips between 7:30-8:30 a.m. daily and between
4:00-4:30 p.m. onto or from Mamalahoa Highway.
Unusual Conditions Trends and Needs
51. Unusual conditions, trends ana needs have arisen since the
district boundaries and regulations were first,'established in
the 1960s which would justify the approval of a recreation
center by means of a special permit. In the 1960s, communities
depended in large part on government to provide them with
recreational facilities, including parks and community centers,
whereas today those facilities must be provided by the private
sector. Also, there has peen a strong emphasis for the last ten
years on special amenities, such as recreational facilities, as
part of an'overall development package. These amenities were
not common when the district boundaries were first established.
Land Unsuited for the Uses Permitted Within the District
52. The land within the proposed area is designated as Agricultural.
53. The land on which the proposed recreation center is being
proposed contains marginal agricultural lands and, thus, is
unsuited for agricultural activities.
54. The Planning Department noted in its recommendation that the
soil in the area of the property in question is rated as C
(fair) or E (very poor) .
55. The overall plan of the recreation center and the surrounding
development was to preserve the best agricultural lands for
agricultural use.
Use Will -Not Substantially Alter or Change the Essential Character of
the Land
56. The proposed recreational center will not substantially alter or
change the essential character of the land and its present use
because the entire 11,000 acres surrounding the recreational
Sandra Pechter Schutte, Esq.
Page 9
center site will remain in agricultural use or other uses
permitted on agricultural lands.
Use Will Not Be Contrary to General Plan
57. The proposed recreational center will not be contrary to the
General Plan because given the small size of the parcel relative
to the overall property, the emphasis of the overall plan will
remain in agricultural uses as recommended by the General Plan.
58. The Commission has issued special permits in the past for
recreation centers situated lands within the State Land Use
Agricultural District.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the subject matter of this
special permit application as'well as the parties involved
herein.
2. The recreation center proposed by KDC is an unusual and
reasonable use within the agricultural district which may be
permitted under Section 205-6, HRS, and Rule 6 of the Commission
Rules.
3. Based upon'the testimony and evidence presented, the proposed
recreation center located in the KDC property is not contrary to
the objectives sought to be accomplished by the land use law and
regulations, because it will not be detrimental to agricultural
activity on the most productive types of soil.
4. Based on the testimony and evidence presented, the proposed
recreation center on the KDC property will not adversely affect
surrounding properties.
5. Based on the testimony and evidence presented, the proposed
recreation center on the KDC property will not unreasonably
burden public agencies to provide roads and streets, sewers,
water drainage, school improvements, police and fire protection.
G. Based on the testimony and evidence presented, unusual
conditions, trends, and needs have arisen since the distract
boundaries and regulations were established.
7. Based upon the testimony and evidence presented, the subject
property is of a relatively unproductive soil type and is
unsuited for the uses permitted within the district.
Sandra Pechter Schutte, Esq.
Page 10
8. Based upon the testimony and evidence presented, the proposed
recreation center will not substantially alter or change the
essential character of the land and the present use.
9. The proposed use is not contrary to the General Plan.
10. If any finding of fact herein is found, upon review, to be a
conclusion of law, then that finding shall be considered a
conclusion of law notwithstanding its placement in these
findings, and if any conclusion of law herein is found, upon
review, to be a finding of fact, then that conclusion shall be
considered a finding of fact notwithstanding its placement in
these findings.
CONDITIONS
Special Permit No. 898 for the recreation center is approved
subject to the following conditions, under Section 205--6, HRS and
Rule 6 of the Planning Commission.
1. Approval of the Department of Health of any wastewater or sewage
disposal.
2. All surface water run-off, generated by the recreation facility
be disposed of on -site. Approval of the drainage design and
construction shall be by the Department of Public Works.
3. That access to the recreation center be constructed in a manner
meeting with the approval of the Department of Public Works and
completed prior to the issuance of the certificate of occupancy
for the recreation center.
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.
�f t
Sandra Pechter Schutte, Esq.
Page 11
Should you have any questions, please feel free to contact Connie
Kiriu or Daryn Arai of the Planning Department at 961-8288.
Sincerely,
Wilton K. Wong, Chairman
Planning Commission
CRK:syw
LKeala0l.PC
xc: Honorable Stephen K. Yamashiro, Mayor
Planning Director
Department of Public Works
Department of Water Supply
County Real Property Tax Division
West Hawaii Office
State Land Use Commission
Department of Land & Natural Resources
Plan Approval Section
John L. Olson, Esq.(Certified Mail P008 113 364)
David Kaapu, Esq.
Department of Health
Office of State Planning
COUNTY OF HAWAII :STATE OF HAWAII
BILL NO. 225
ORDINANCE NO. _ 95 70
AN ORDINANCE AMENDING SECTION 25-86 (NORTH AND SOUTH KONA
DISTRICTS ZONE M.AP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE
HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM
AGRICULTURAL (A-20a) TO AGRICULTURAL (A-1a), (A-3a), (A-.200a),
(A-255a) AND (A-8000a) AT KEALAKEXUA, KILOA, WAIPUNAULA, KALAM.r,
KUMU, AND K.ALAM.AKOWALI, SOUTH KONA, HAWAII, COVERED BY TAX MAP
KEY 8-2-12:12 AND A PORTION OF 1.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Section 25-86, Article 3, Chapter 25 (Zoning Code)
of the Hawaii County Code, is amended to change the district
classification of properties described hereinafter as follows:
The district classification of the following area
situated at Kealakekua, South Kona, Hawaii, shall be
Agricultural (A-8000a):
PARCEL A:
Beginning at the Southwest corner of this parcel of land,
being also the Southeast corner of Parcel C, the coordinates
of said point of beginning referred to Government Survey
Triangulation Station "PUU OHAU", being 8,399 29 feet South
and 40,509.01 feet East and thence running by azimuths
measured clockwise from true South:
1. 190' 00, 604.85 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A_ Keohokalole;
2. 1840 00' 465.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
3. 1820 00665.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Planning Dept.
Exhibit 4
4 . 1770 0 0 '
5.
175'
30'
6.
1780
00'
7.
1750
30'
8.
1810
30'
9.
1800
45'
10.
179'
15'
11.
169°
30'
Award 8452: 9 to A.
Keohokalole;
987.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
280.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
255.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
450.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
210.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
255.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
625.00 feet along Parcel H, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
403.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission:
Award 8452: 9 to
Kechokalole;
-2-
12. 175° _-0
13.
174°
20'
14.
182
30'
15.
a °
00'
16.
179'
40'
17,
177'
30
18.
176'
50'
19.
600
00'
20.
148'
00'
3 _fees along Parcel
7533 an--' 360 7 , Land COMn.Ss-
1war_--8452 : 9 `0 ;.
Keohokalole;
205.00 feet along Parcel B a_o_i n
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
310.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
81.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
783.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
130.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
515.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
60.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
591.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
-3-
21. 153' 0 0 '
22. 1480 00'
23. 157' 00'
24. 166' 00'
25. 1700 00,
26. 175' 00'
27. 183' 00'
28. 191° 00'
Award 8452: 9 to A.
Keohokalole;
590.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
500.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
290.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
240.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
315.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
215.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
185.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
150.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
-G-
29
30
31.
32
33
34
35
NO
37
63° 00'
7,ee� alo c Parcel 3 a,
_on
O_ Royal Patien_s
7533 and 3607, Lard Comriss�on
Award 8452: 9
Keohokalole;
5'= =5
953.00 fee7- along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
63' 30'
625.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
56' 00,
368.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
59° 00,
212.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
68° 00,
145.00 feet along Parcel, B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
74' 00
595.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 6452: 9 to A.
Keohokalole;
91° 20,
468.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
620 30'
240.00 feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
-5-
Award 8452: 9 to A.
Keohokalole;
38. 780 00,
2,926.00
feet along Parcel B, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
39. 351` CO,
1,340.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
40. 8V 48'
4,110.00 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to A.
Keohokalole;
41, 2360 53' 50"
14,822.76
feet along Royal Patents 4386
and 7532, Land Commission
Award 8452, Apana 11 to A.
Keohokalole;
42. 2930 30'
2,376.00
feet along Grant 3155 to H.N.
Greenwell;
43. 244' 30'
3,082.83
feet along Grant 3155 to H.N.
Greenwell;
44, 293' 30'
3,286.45
feet along Grant 3155 to H.N.
Greenwell;
45. 281' 10'
2,739.00
feet along Grant 3155 to H.N.
Greenwell;
46. 265' 00'
2,574.00
feet along Grant 3155 to H.N.
Greenwell;
47. 274' 08' 11"
5,800.94
feet along Grant 3155 to H.N.
Greenwell;
48. 256' 42' 37"
5,645.69
feet along Royal Patent 7844,
Land Commission Award 7715,
Apana 12 to Lota Kamehameha;
49. 3570 �511
2,224.10
feeL along Royal Patent 7844,
Land Commission Award 7715,
Apana 12 rc Lota Kamehameha;
-c-
50. 355°
5 ana Rota_
- ssi0n Award 77_3
pa -,a 7-2 to Lota Kamehame_ - ,
3�
22 few- _
alon Raga+ patent 78�
man --='L-L-Ss? on ywarQ 777 S
Apana =2 to Lota Kamehameha;
52. 130 08S3" 2,720.25
feet along Royal. Patent 7844,
Land Commission Award 7715,
Apana 12 to Lota Kamehameha;
53. 36° 41' 52" 4,453.95
feet along Royal Patent 7844,
Land Commission Award 7715,
Apana 12 to Lota Kamehameha;
54. 860 20' 35" 4,810.89
feet along Royal Patent 7844,
Land Commission Award 7715,
Apana 12 to Lota Kamehameha;
55. 102° 43' 24" 4,468.67
feet along Royal Patent 7844,
Land Commission Award 7715,
Apana 12 to Lota Kamehameha;
56. 95' 31' 02" 13,828.78
feet along Royal Patent 4513,
Mahele Award 32 to Kanele, to
the point of beginning and
containing an area of
8,761.309 acres, and excluding
Parcel D (255 acres) and
Exclusion 1 (400 acres)
leaving a net area of
8,106.309 acres. (Refer to
Parcel A, Parcel D, and
Exclusion 1 as shown on
Exhibit "A" - Description of
Exclusion 1 follows.)
EXCLUSION 1: (SITUATED AT KEALAKEKUA, SOUTH KONA, HAWAII)
Beginning at the Southeast corner of this parcel of land, the
coordinates of said point of beginning referred to Government
Survey Triangulation Station "PUU OHAU", being 3,462.92 feet
South and 56,389.37 feet East and thence running by azimuths
measured clockwise from true South:
1. 104° 00' 1,667.59 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole;
2. 104° 36' 37" 368.02 feet along remainder of Royal
-7-
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole and also
the southerly boundary of Lot
1-B;
3. 1370 51' 14" 907.79 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole and also
the southerly boundary of Lot
1-B;
4. 940 22' 45" 515.44 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole and also
the southerly boundary of Lot
1-B;
5. 88' 09' 13" 87.94 feet along remainder of Royal
- Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole and also
the southerly boundary of Lot
1-H;
6. 1010 40' 53" 339.46 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A_ Keohokalole and also
the southerly boundary of Lot
1-B;
7. 140° 46' 46" 360.57 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole and also
the southerly boundary of Lot
I -B;
S. 197' 41' 11" 320.09 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
3 to A. Keohokalole and also
the southerly boundary of Lot
f
G 1 C O
2 131.36 -feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 6452, Apana
-6-
9 ecO -Ok lo! and also
SOu-I-2
-emainder
- Of ?ovate
Parants 7533 ax.0 3607, Land
Commission Award 8452, Adana
9 to A- Keohokalole and also
the southerly boundary of Lot
11. 1730 01' 29" 318.79 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Adana
9 to A. Keohokalole and also
the southerly boundary of Lot
1-S;
12. 1690 00' 935.00 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award B452, Apana
9 to A. Keohokalole;
13. 1390 00` 800.00 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole;
14. 152` 00' 770.00 feet along remainder of Roval
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole;
15. 174' 00' 855.00 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole;
16. 2700 00' 795.00 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole;
17, 320` 00' 245.00 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
9 to A. Keohokalole;
18. 297' 00' 1,120.00 feet along remainder of Royal
Patents 7533 and 3607, Land
Commission Award 8452, Apana
MM
9 to A. Keohokalole;
19. 275' 00'
675.00 feet along remainder of Royal
Patents 7533 and 3607,
Land
Commission Award 8452,
Apana
9 to A. Keohokalole;
20. 2520 00
450.00 feet along remainder of
Royal
Patents 7533 and 3607,
Land
Commission Award 8452,
Apana
9 to A. Keohokalole;
21. 278' 00,
1,000.00 feet along remainder of Royal
Patents 7533 and 3607,
Land
Commission Award 8452,
Apana
9 to A. Keohokalole;
22. 250' 00,
500.00 feet along remainder of Royal
Patents 7533 and 3607,
Land
Commission Award 8452,
Apana
9 to A. Keohokalole;
23-. 225` 00'
429.84 feet along remainder of Royal
Patents 7533 and 3607,
Land
Commission Award 8452,
Apana
9 to A. Keohokalole;
24. 00 00'
5,243.63 feet along remainder of
Royal
Patents 7533 and 3607,
Land
Commission Award 8452,
Apana
9 to A. Keohokalole, to
the
point of beginning, and
containing an area of
400 acres. (Refer to Exclusion
1 as shown on Exhibit "A".)
The district classification
of the following area
situated at Kealakekua,
South Kona, Hawaii, shall be
Agricultural (A-3a):
PARCEL B:
Beginning at the Southwest corner of this parcel of land,
being also the Southeast corner of Parcel E, the coordinates
of said point of beginning referred to
Government SUrVev 'Triangulation Station "PUU OHAU", beir_a
7,G28.0? feet South and 30,453.49 feet East and thence running
^v azi:iuths measured clockwise frcm true South:
17� DC' D^cD. DC -feet along Parcel E, alcncx
2• 830 3 0 '
3 . 1460 30'
4. 236' 5 3 ' 501,
S. 260' 48'
6. 171, 00'
7. 258' 00,
8. 2420 30'
9. 2710 2 0 '
ema-nCler O oYal PaLe s
7533 7
rwa_l 5�
A. Keur.oka!o'_--;
, 925 .00 -feet ai o-,c Farce_ 7, _lo: a
remainder of Royal Patennts
7533 and 3607, Land Co -,,,mission
Award 8452: 9 to
A. Keohokalole;
524.96 feet along Parcel E, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
1,030.00 feet along Royal Patents 4386
and 7532, Land Commission
Award 8452, Apana 11 to
A. Keohokalole;
4,110.00 feet along Parcel A, along
remainder of Royal. Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
1,340.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
2,926.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
240,00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
466,00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
-11-
10. 2540 00' 595.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
11. 248' 00' 145.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
12. 239` 00' 212.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
13. 2360 00, 368.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
14. 2430 30' 625.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
15. 2340 45' 952.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
16. 243' 00, 775.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
17. 110 00' 150.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
-'8• 00'_85.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commissio.,
-12-
AWaYd 8452. 9 --:0
7
yeah ckaICDie
9 3 5 5
along parce? aio
remainder of ?ovalJpaten�s
7533 and 3507, Land rorrfission
Award 5452. 3 tp
A. Keohokalole;
20. 350° 00'
31.5.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, sand Commission
Award 8452: 9 to
A. Keohokalole;
21_ 3460 00
240.00 feet along parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
22. 337° 00'
290.OD feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
23. 328° 00,
S00.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
24. 3330 00'
590.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award. 8452: 9 to
A. Keohokalole;
25. 328' 00'
591.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
26. 240° 00'
60.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
-13-
27. 3560 50'
515.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
28. 357' 30'
130.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
29, 3590 40'
783.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
30. 263' 00'
81.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
31. 20 30'
310.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
32. 3540 20'
205.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
33. 355` 40'
300.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
34. 3490 30'
403.00 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
15'
f
o'25.G0 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Lard Commission
Parcel .-i, dlloi!:J
remainder of Roval Patents
7533 and 3E"07, Land Commzssl_o::
Award
�.. Keohokalole;
37. 1' 30,
79.65 feet along Parcel A, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
38. 101' 00,
777.11 feet along Parcel C, along
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
39• 40' 00,
3,346.73 feet along Parcel C, along
remainder of Royal Patent-s
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
40. 6' 00,
1,145.00 feet along Parcel C, alone
remainder of Royal Patents
7533 and 3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
41. 95' 31' 02"
7,102.32 feet along Royal Patent 4513,
Mahele Award 32 to Kanele, to
the point of beginning and
containing an area of
1.,645.207 acres. (Refer to
Parcel B as shown on Exhibit
T,1 . )
"Alp
The district classification of the following area
situated at Kealakekua,
South Kona, Hawaii, shall be
Agricultural (A-200a):
PARCEL C:
Beginning at the Southeast corner of this parcel of land,
being also the Southwest corner of Parcel A, the
coordinates of said point of beginning referred to
-15-
Government Survey Triangulation Station "PUU OHAU", being
8,399.29 feet South
and 40,509.01 feet East and thence
running by azimuths
measured clockwise from true South:
1. 95' 31, 02"
3,000.00 feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
2. 1860 00'
1,145.00 feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
3. 220' 00'
3,346.73 feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
4. 281' 00,
777.11 feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
5. 11 30'
130.35 feet along Parcel A, along
Royal Patent 4513, Mahele
Award 32 to Kanele;
6. 355' 30
450.00 feet along Parcel A,. along
Royal Patent 4513, Mahele
Award 32 to Kanele;
7. 358' 00'
255.00 feet along Parcel A, along
Royal Patent 4513, Mahele
Award 32 to Kanele;
8. 355° 30'
280.00 feet along Parcel A, along
Royal Patent 4513, Mahele
Award 32 to Kanele;
9. 357* 00'
987.00 feet along Parcel A, along
Royal Patent 4513, Mahele
Award 32 to Kanele;
10. 2' 00'
665.00 feet along Parcel A, along
Royal Patent 4513, Mahele
Award 32 to Kanele;
11. 41 00'
485.00 feet along Parcel A, along
Royal Patent 4513, Mahele
Award 32 to Kanele;
12. 70. DO'
604.65 feet along Parcel A, along
Royal Patent 4513, Mahele
.sward 32 to Kanele, to the
-16-
pOlnr o� beginnJ ng and
Ca tdlnl 1G an a' -ea c
acres, more or '_ess.
(Refer vo Parcel - as snow
on E'xhzbit "A".)
Tile distrlc�
classifjcatlon of the follow-J;Zg area
situated at Kealakekua, South Kona, Hawaii, shall be
Agricultural {A-255a}:
PARCEL D:
Beginning at the Southwest corner of this parcel of land,
being the coordinates of said point of beginning referred
to Government Survey Triangulation Station, ,pUU OHAU,,
Being 4,703.10 feet South and 42,634.04 feet East and
thence running by azimuths measured clockwise from true
South:
1. 183' 00'
1,160.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
2. 153' 00,
1,230.00
feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
3. 258' 30'
120.00
feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
4. 264' 00'
195.00
feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
S. 309' 00'
807.00
feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
6. 233' 30'
1,030.00
feet along remainder of
-17-
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
7• 245' 00,
150.DO feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
B. 275' 00,
275.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
9. 303' 00,
102.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
10. 229` 30,
280.00 feet along remainder of
Royal,Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A_ Keohokalole;
11. 239° 00,
110.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
12. 244° 00,
125.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
13. 2450 30'
410.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
14. 249' 00
200.00 feet along remainder of
Royal Patents 7533 and
,G07, Land Commission
,ward 8452: 9 to
�1c-
240' 30'
16-
2331
00,
17.
225'
00'
18.
223'
30'
19.
359,
30'
20. 88° 30'
21. 69' 15'
22, 183- 00,
23. 93' 00'
-•- tieonOka_ol�,
RovalaPaterits�753 3�and�
3507, I'and Commission
Award 8452: 9 to
A - Keohokalole;
215.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
500.00 feet along remainder or
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
427.47 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 6452: 9 to
A. Keohokalole;
4,307.41 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
806.10 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award. 6452: 9 to
A. Keohokalole;
1,110.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
415.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: 9 to
A. Keohokalole;
1,875.00 feet, to the point of
-19-
beginning and containing an
area of 255 acres, more or
less. (Refer to Parcel D as
shown on Exhibit "A".)
The district classification of the following area
situated at Kealakekua, Kiloa, Waipunaula, Kalama Kumu and
Kalamakowali, South Kona, Hawaii, shall be
Agricultural (A -la) :
PARCEL E:
Beginning at the Southeast corner of this parcel of land,
being also the Southwest corner of Parcel B, the
coordinates of said point of beginning referred to
Government Survey Triangulation Station "PiUU OHAU", being
7,428.01 feet South and 30,453.49 feet East and thence
running by azimuths measured clockwise from true South:
1.
950
31, 02"
4,097.99
feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
2.
21'
15' 42"
1,000.00
feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
3.
910
19,
1,873.51
feet along remainder of
Grant 5206 to F.'Deniz;
4.
40"
00,
261.17
feet along remainder of
Grant 5206 to F. Deniz;
5.
620
00,
282.00
feet along remainder of
Grant 5206 to F. Deniz;
5.
59'
00,
490.00
feet along remainder of
Grant 5206 to F. Deniz;
7.
66,
00,
530.00
feet along remainder of
Grant 5206 to F. Deniz;
8.
155`
59, 14"
2,439.21
feet along remainder of
Grant 5206 to F. Deniz, and
along remainder of Royal
Patent 4497, Land
Commission Award 8555 to G.
Xan aina ;
- 2 0 -
a 2,,, 00'
10 . 239' OQ
3
11. 1540 00'
12, 146' 00'
13. 4 8 ' 22' 4 5 "
14 . 155' 00'
15. 158, 00'
16, 270' 56' 41"
17. 242' 00,
18. 236' 53' 50"
13 57 =a't along Roya? a-, en
Lan--'�ommi ssion Awan.--_
a759 o G. Ka:aaina;
1675 =ee- along Royal Paten
7 , Land Com,,,ission
Aware
8559 to G. Kanaina;
112.14 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 6452: Agana 9 to
A. Keohokalole;
517.95 feet along remainder of
Royal patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
42.66 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
1,139.81 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
1,150.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
5,849.79 feet along remainder of
Royal Patents 4386 and
7532, Land Commission
Award 8452: Apana 11 to
A. Keohokalole;
322.90 feet along Royal Patents
4386 and 7532, Land
Commission Award 8452:
Apana 11 to A. Keohokalole;
976.49 feet along Royal Patents
7533 and 3607, Land
-21-
Commission Award 8452:
9 to A. Keohokalole;
19. 3260 30' 524.96 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
20. 2630 30, 1,925.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
21. 353° 00' 4,080.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole, to the
point of beginning and
containing an area of
787.589 acres. (Refer to
Parcel-E as shown on
Exhibit "A".)
The district classification of the following area
situated at Kealakekua, Kiloa, and Waipunaula, South Kona,
Hawaii, shall be Agricultural (A-3a):
PARCEL F:
Beginning at the Northwest corner of this parcel of land,
the coordinates of said point of beginning referred to
Government Survey Triangulation Station "PUU OHAU", being
3,864.80 feet South and 20,507.95 feet East and thence
running by azimuths measured clockwise from true South:
1. 2440 2021" 326.06 feet along Royal Patents
4386 and 7532, Land
Commission Award 8452:
Apana 11 to A. Keohokalole;
2. 338° 00' 1,150.00 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
feet along remainder of
-22-
?28° 22 =5:,
5 . 3260 00 '
6. 334' 00'
7. 59' 00' 30"
8. 61' 00'
9. 149' 3 9 ' 05"
10. 8 4 ' 19' 4 5 "
11. 103' 10' 34)"
12. 113' Si
ice_ Pa=?n S %733 and.
Ke0r o;tia c IL ,
�B feet a?ona remainder of
Roval Patents 7533 and
3607, sand CommisslDri
Award 8452: Apana 9 to
A. Keohokalole;
517.95 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
112.14 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
160.75 feet along Royal Patent
4497, Land Commission
Award 8559 to G. Kanaina;
139,57 feet along Royal Patent
4497, Land Commission
Award 8559 to G. Kanaina;
62.B5 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
37.74 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
69.95 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
220.54 feet along remainder of
Royal. Patents 7533 and
-23-
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
13. 147' 22' 201, 179.60 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
14. 2220 42' 20" 99.93 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A_ Keohokalole;
15. 160' 04' 20" 156.81 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
16 155` 31' 20" 137.50 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
17. 152' 3220" 179.01 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
18. 1520 48' 50" 692.23 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
19. 155' 21' 20" 130.30 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
20, 156' 31' 24" 112.20 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
-24-
73 -ee_ along remainder 0=
ano
_ C•
360 i, :,a1.d Com7 sslsn
YWard 8 =52 . _-`-,pa: a 9 to
A. Keohckalo' e;
22. 160° 23' ��
20
-122.35 feet along remainder cf
Royal Patents 7533 and
3607, Land Commission
Award 8452: Agana 9 to
A. Xeohokaiole;
23. 163° 56' 50"
254.25 feet along remainder of
Royal Patents 7533 and
3607, Land Commission
Award 8452: Apana 9 to
A. Keohokalole;
24. 158' 04' 50"
328.69 feet along remainder Royal
Patents 7533 and 3607, Land
Commission Award 8452:
Apana 9 to A. Keohokalole,
to the point of beginning
and containing an area of
24.796 acres. (Refer to
Parcel F as shown on
Exhibit "A".)
The district classification of the following
area
situated at Kalamakowali,
South Kona, Hawaii, shall be
Agricultural (A--3a) :
PARCEL G:
Beginning at the Northwest corner of this parcel of land,
being also the Southwest corner of Parcel H, the
coordinates of said point of beginning referred to
Government Survey Triangulation Station "PUU OHAU", being
8,723.29 feet South and 22,817.78 feet East and thence
running by azimuths measured clockwise from true South:
1. 246' 00' 530.00 feet along remainder of
Grant 5206 to F. Deniz;
2. 2390 00' 490.00 feet along remainder of
Grant 5206 to F. Deniz;
3. 242' 00' 282.00 feet along remainder of
Grant 5206 to F. Deniz;
-25-
4. 2206 00' 261.17 feet along remainder of
Grant 5206 to F. Deniz;
5. 2710 19' 1,873.51 feet along remainder of
Grant 5206 to F. Deniz;
6. 21` 15' 42" 1,486.02 feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
7. 470 35' 48" 2,004.67 feet along Royal Patent
4513, Mahele Award 32 to
Kanele;
8. 1490 18' 26" 2,301.81 feet along Grant 1613 to
G.B. Kalaau to the point of
beginning and containing an
area of 113.838 acres.
(Refer to Parcel G as shown
on Exhibit
_ The district classification of the following area
situated at Kalamakowali, South Kona, Hawaii, shall be
Agricultural (A-3a):
PARCEL H:
Beginning at the Southwest corner of this parcel of land,
being also the Northeast corner of Parcel G, the
coordinates of said point of beginning referred to
Government Survey Triangulation Station "PUU OHAU", being
8,723.29 feet South and 22,817.78 feet East and thence
running by azimuths measured clockwise from true South:
1. 61° 28, 1,153.40 feet along Grant 1613 to
G.B. Kalaau;
2. 1600 09, 30.00 feet along Grant 4015 to
Francisco Diniz;
3. 1970 38' 30" 641.10 feet along Grant 4015 to
Francisco Diniz;
4_ 144° 20' 269.80 feet along Grant 1610 to
Pupule;
5. 1330 19' 4-93.90 feet along Grant 1610 to
Pupule;
780 _ 7" 1-6.7L feeW alone Royal Patent
- 2 6 -
q Lan r, ,
along ?o_.ra Pa -en
4 oi�lm�J�� JAL =wa r�l
8» to :�ana.ina ;
8. 152° 1855"
43 41 feet along stonewall, along
remainder of Royal Patent
4497, Land Commission Award
8559 to G. Kanaina;
9. 216' 18'
1,080.50 feet along fence, along
remainder of Roval Patent
4497, Land Commission Award
8559 to G. Kanaina;
10. 179° 58' 30"
135.23 feet along remainder of
Royal Patent 4497, Land
Commission Award 8559 to G.
Kanaina;
11. 239° 33'
358.91 feet along Royal Patents
7533 and 3607, Land
Commission Award 8452:
Apana 9 to A. Keohokalole;
12. 335' 59' 12"
2,439.21 feet along remainder of
Royal Patent 4497, Land
Commission Award 8559 to G.
Kanaina, and along
remainder of Grant 5206 to
R. Deniz, to the point of
beginning and containing an
area of 52.696 acres.
(Refer to Parcel H as shown
on Exhibit "A".)
All as shown on the map attached hereto, marked
Exhibit "A+' and by reference made a part hereof.
SECTION 2. These changes in district classification are
conditioned upon the following:
(A) the applicant, successors or assigns shall be
responsible for complying with all of the stated
conditions of approval;
-27-
(B) the effective date of the change of zone shall be:
(1) when the applicant provides assurance
satisfactory to the Departments of Water Supply
and Planning, upon consultation with the State
Department of Health and the Department of Land
and Natural Resources, that a water source(s)
of sufficient quality and quantity has/have
been established within two years from the
enactment of this ordinance; provided that a
maximum one year extension may be granted by
the Planning Director with reasonable and
sufficient justification; and
(2) an agreement together with the appropriate
bond, surety or other security deemed
acceptable by the Planning Director, is
executed between the applicant and the County
through its Departments of Water Supply and
Planning for the actual development of proven
source and its water transmission and
distribution system to County Dedicable
Standards within one year from the official
date of compliance with condition B(1);
provided that a one year extension may be
granted by the Planning Director with
reasonable and sufficient justification. Such
water system shall be in accordance with the
requirements of the Rules and Regulations and
the Water System Standards of the Department of
water Supply and shall provide sufficient water
capacity and pressure for:
2b-
lots ::iakal w'es- ) subj�c
^rope- -•:
ancl
--a:ti Mao �?•,
Pla'- 5-2-COI; and -
(ii) fire protection purposes with fire
hydrants along Koa Road and Greenwell
Mountain Road meeting with the approval of
the fire department;
(C) Upon compliance with Condition B(1) and B(2), the
subject property shall be developed in two
increments. The first increment shall be comprised
of a maximum of 300 lots zoned A-1a and A-3a. The
second increment shall be comprised of the remaining
maximum balance of 202 lots. The plans for the
proposed subdivision of the first increment shall be
submitted to the Planning Director within three
(3) years from the effective date of the rezoning as
determined in Condition B. Subdivision plans for
the second increment may be submitted to the
Planning Director only after a South Kona Mamalahoa
Highway Bypass road has been fully constructed in
its entirety between the approximate vicinity of
Keauhou and Captain Cook;
(D) After Final Subdivision Approval is granted for the
last phase of the subdivision of the subject
property, the Planning Director shall initiate an
amendment to the zoning of the golf course area
into a more appropriate zoning classification to
insure that the golf course area is not subdivided;
-29-
(D} The applicant shall reserve in perpetuity a 200-foot
wide easement along the subject property's western
boundary and the parcels designated by TMK Nos.:
8-2-01:42-47 and 98-101, comprising of a 150-foot
wide structural setback and a 50-foot wide landscape
buffer. Such easement and the right-of-way
acquisition documents for the proposed Koa Road
access corridor shall be delineated on plans
submitted for subdivision review of the first
increment. The Koa Road corridor alignment shall be
generally located south of the Kealakekua Shopping
Center at its connection with Mamalahoa Highway, as
represented by the applicant;
(F) a wastewater disposal system shall constructed in a
manner meeting with the approval of the State
Department of Health and/or the Department of Public
Works, whichever is applicable;
(G) a detailed drainage study of the entire project area
shall be prepared by the applicant for review and
approval by the Department of Public Works prior to
submittal of plans for subdivision review for any
portion of the project site or prior to any land
alteration whichever comes first. Drainage
improvements, including any flooding mitigation
measures as required by the chief engineer, shall be
constructed and/or installed in a manner meeting
with the approval of the Department of Public Works.
The drainage study may include a program for the
sequenced installment of the drainage system
improvements;
-�0-
( } an archaeological mi igatio nlan s a!' b,
prepared and sup wtte� : or appro7.7al n'., -
P P.
Director, _n Deaa= �:men-
Nand and tiatural ?eso,_Irces-~istor, ?-es�rvat on
Division and Hawaiian community organizations, pri -
to submitting owns for subdivision review.
- The
Plan shall consist of two subplans;
(1) an archaeological data recovery plan for the
sites to undergo data recovery; and
(2) a detailed interim protection preservation plan
for the sites to undergo preservation.
Approved mitigation measures shall be
implemented prior to or in conjunction with any
land alterations within the project area.
The Plan shall also include a detailed map of known
lava tube/cave systems located within the project -
area and mitigative measures to ensure that the golf
course and related drainage systems do not impact
these cave systems;
(I) should any unidentified sites or remains such as
artifacts, shell, bone, or charcoal deposits, human
burials, rock or coral alignments, pavings or walls
be encountered, work in the immediate area shall
cease and the Planning Director shall be immediately
notified. Subsequent work shall proceed upon an
archaeological clearance from the Planning Director
when the Director finds that sufficient mitigative
measures have been taken;
-31-
(J) a solid waste management plan shall be prepared
meeting with the approval of the Department of
Public works prior to submitting plans for the first
increment of the subject property for final
subdivision approval review. The Plan shall
include, but not be limited to, the management of
construction solid waste as well as operating and
domestic solid waste generated by the proposed
development. Approved recommendations and
mitigation measures shall be implemented at a time
and in a manner meeting with the approval of the
Department of Public Works;
(K) Roadway improvements and access(s) to the subject
Property, including all plans and construction,
shall meet with the approval of the Department of.
Public works and/or the State Department of
Transportation. Prior to the issuance of final
subdivision approval for any portion of the first
increment of the subject property or the issuance
for a certificate of occupancy for any portion of
the golf course; whichever occurs first, such
improvements shall include but not be limited to the
following, subject to final determination by the
planning director in consultation with the chief
engineer:
1. Construct the intersection improvements at the
Mamalahoa Highway-Koa Road intersection,
including signalization and channelization
meeting with the approval of the State
Department Of Transportation and the Department
of Public works;
-�2-
z . Const�uc s juice _ca: G,
-'g cti'eria a
S. a Iwo-wa'
Kanligaki Mar:tiet --o KeeKee 5--aa-
3. Construct shoulder, drainage, road widening,
overlay and restriping improvements to provide
a south bound left -turn pocket at Haukanila
Street (Kona Hospital intersection); a two-way
left turn lane between Halekii Street and
Haukaoila Street; and signalization at the
Mamalahoa Highway-Haukapila Street
intersection; and
4. Widen shoulder areas to provide a minimum of
five southbound and five northbound bus
pullouts along Mamalahoa Highway between Koa
Road and Kuakini Highway.
(�) Subdivision plans for the subject Property shall
include road stub outs to .its, north and south
boundaries below the 3,500 foot elevation and shall
be approved by the Department of Public Works and
the Planning Department;
(M) the applicant shall participate in a program to
construct the South Kona Mamalahoa Bypass road and
shall participate in the funding and construction of
any regional roadway improvements as may be required
by the State Department of Transportation, provided
that any costs borne by the applicant shall be
credited and limited to the amount of its fair share
contribution for regional impacts, as required in
Conditions K and P;
-33-
(N) To ensure that the Goals and Policies of the
Recreation Element of the General Plan are
implemented, the applicant shall:
1. Designate and provide camping sites and related
equestrian and nature -interpretive trail
systems within the subject property meeting
with the approval of the planning director in
consultation with the director of parks and
recreation. The camping sites may be limited
to members and guests of non-profit
organizations, primarily those serving resident
youth of Hawaii County, registered with the
Department of Commerce and Consumer Affairs of
the State of Hawaii for non -commercialized
recreational or educational purposes. The
applicant shall prepare and submit a
recreational and maintenance plan for the
camping sites meeting with the approval with
the planning director in consultation with the
director of parks and recreation, which shall
include but not be limited to:
i. the number, location and design of the
camping sites and accessways;
ii availability on a daily year-round basis
except during maintenance and repairs
which shall be at the applicant's expense;
a maintenance and user fee program
comparable to county and state park fees
to offset maintenance cost; and
- 34 -
zv. Rules and rEcula= ns ~e
-o access, use c �4-pi - -
s- 's
and relate —ails' to d� -
provi _or ne
ealt:; and safe y and wel are of t.-e
'users
3T'd DrQpZrty owners cal i ke .
2. Construct improvements to Greenwell park as
approved by the planning director in
consultation with the director of parks and
recreation.
(0) In lieu of actual construction of
infrastructural improvements as required under
Conditions F, G, J, K, L, M and N, the applicant may
enter into an agreement with the County to assure
the County that the .infrastructural improvements
will be constructed together with the appropriate
bond, surety or other security deemed acceptable by
the Pla;ining Director, appropriate agencies or the
County Council, whichever is applicable. UDon
execution of such agreement and/or filing of the
security with the County, final subdivision approval
for the subject property or portions thereof shall
be granted prior to the actual construction of
required infrastructural improvements;
(P) the Applicant shall pay its fair share contribution
to address potential regional impacts of the projecr-
with respect to park, fire, police, solid waste
disposal facilities, and roads. The fair share
contribution shall be initially based on the
representations contained within the change of zone
application and may be increased or reduced
proportionally if the lot counts are adjusted. The
-35-
fair share contribution based on the total number of
lots for the first increment shall become due and
payable prior to final subdivision approval of any
portion of the first increment of the subject
property. The fair share contribution for the total
number of lots of the second increment shall be due
and payable prior to final subdivision approval for
any portion of the second increment of the subject
property. The fair share contribution for each lot
shall be based on a maximum density for each lot as
determined by the zoning resulting from this change
of zone. The fair share contribution in a form of
cash, land, facilities, or any combination thereof
acceptable to the director, in consultation with the
affected agencies shall have a maximum combined
value of $3,6I9,580.o0. The fair share contribution
described above shall be adjusted annually beginning
three years after the effective date of this
ordinance, based on the percentage change in the
Honolulu Consumer Price Index (HCPI)_ In lieu of
paying the fair share contribution, the applicant
may construct such facilities related to parks,
fire, police, solid waste disposal facilities, and
roads with the approval of the appropriate
agency(ies). Any improvements constructed by the
applicant to satisfy this condition shall be located
within the region;
(Q) comply with all applicable laws, rules,
regulations and requirements of the affected
agencies;
(R) restric:�ive covenants in the deeds of all of the
_ronosed lots within the subject property shall
-36-
- _On 0= a second uWe !iny C=
Juana Dwel�1_ �u_.i �. 'na
a-.7
Dwell ngs 07, 4eac: Der71
t :o pro`'_cie�
approval -s sec
Urec rcm - t
_;ne ::)I n J Di rector.
Restrictive covenants for all lots within the
subject property shall require agricultural
activity. A cony of the proposed covenants) to be
recorded with the Bureau of Conveyances shall be
submitted to the Planning Department for review and
approval prior to final subdivision approval for anv
Portion of the first increment of the subject
property. A copy of the approved covenants shall be
recited in an instrument executed by the applicant
and the county and recorded with the Bureau of
Conveyances likewise prior to final subdivision
approval for any portion of the first increment of
the subject property;
(S) a forest management plan for the 6,100 acre site
zoned A-8000a within the subject property, shall be
prepared and submitted for review and approval by
the Planning Director in consultation with the State
Department of Land and Natural Resources, State
Department of Health, State Department of
Agriculture and U.S. Department of Natural Resources.
Conservation Service. The forest management plan
shall require the following:
1. Include at a minimum the best forest and
reforestation practices, program for
implementation, public access, recreation
consideration and any other applicable forestry
management criteria, including those of the
State Department of Land and Natural Resources
-37-
(i.e. Forest Stewardship Program).
2. The forest management plan shall be included in
a restrictive covenant for the 8,100 acre
parcel, which covenant shall be recorded in the
State of Hawaii Bureau of Conveyances and/or
Land Court. A copy of the covenant to be
recorded shall be filed with the Planning
Director prior to the issuance of final
subdivision approval for any portion of the
first increment of the subject property. A
recorded copy of the covenant shall also be
filed with the Planning Director as soon as
practicable after final subdivision approval of
the first increment_
3. This forest management plan shall govern this
8,100 acre parcel for a period cf forty (40)
years and may be terminated upon the approval
of the Board of Land and Natural Resources.
4. Any termination of the said forest management
plan after the 40-year period shall be
considered an amendment to this ordinance,
requiring County Council approval by ordinance;
(T) Within the A-8000a zoned area, no infrastructure
improvements shall be allowed except those
improvements required for the maintenance of
existing facilities, those improvements identified
in the forest management plan, and those
improvements within the desianated camp sites;
-38-
('' ) 5tre'�L ign�s ii.i!!
lea G ! J oro w �Q' _red D'•i i� ep -
G- Puhl N1GrtiS
(V) an integrated pest management plan and noxious weed
control plan shall be submitted for agricultural
uses for review and approval by the Planning
Director in consultation with the Department of Lard
and Natural Resources, Forestry and wildlife
Division;
(W) 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;
(X) an annual progress report shall be submitted to the
Planning Director prior to each anniversary date of
the approval of this change of zone. The report
shall address in detail the status of the
development and the compliance with the conditions
of approval. This condition shall remain in effect
until all of the conditions of approval have been
complied with and the Planning Director acknowledges
that further reports are not required; and
(Y) an extension of time for the performance of
conditions within the ordinance, with the exception
of Condition C, may be granted by the Planning
Director upon the following circumstances:
-39-
(I) 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;
(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;
(4) the time extension granted shall be for a
period not to exceed the period originally
granted .for performance (i.e., a condition Lo-
be performed within one year may be extended
for up to one additional year); and
(5) should the Applicant require an additional
extension of time, the Planning Director shall
submit the Applicant's request to the County
Council for appropriate action.
W Further, should any of the conditions not be met or
substantially complied with in a timely fashion, the
Director shall initiate rezoning of the area to its
original 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.
-4C-
SECTION 4. This Oluina ce shall L of
w F. 4�'' _sect l?pO:i jr5
app o'vaj .
_ NT ODUCED 3Y :
COUNCIL EMBER, CO TY OP HAWAII
Hilo, Hawaii
Date
of Introduction;
May
3,
1995
Date
of Ist Reading:
May
3,
1995
Date
of 2nd Reading:
May
17,
1995
Effective Date:
May
23,
1995
APPROVED AS TO FORM AND LEGALITY:
ONUTY
CORPORATION COUNSEL
DATE: S11I7/Q
-41-
MQ
Due to the large size of the map for Sill 225, and
its accompanying drafts, it is not a part of the copies, but is on
file -.at the County Clerk's Office and available for viewing upon
request.
L L/L4F Y_e"
v� `"iU
atricia G. Engehard
COUNTY CLERK
OFFICE OF THE COUNTY CLERK
County of Hawaii
3 )+11 _
I L uU
ROLL CALL -VOTE
Introduced By:
E-Lroy T. L _ Osorzo
AYES NOES ABS
Date Introduced:
dV
Arakaki
i K
First Reading:
MaY 3 , I995
Bonk -Abramson
X
Published:
N/A
— Childs
X
De Lima
x
REMARKS:
Domin o
X
Osorio
x
Rz th
X
Riy
X
Smith
X
1 1 I
Second Reading: Mav I7
To Mayor:
may
18
1995
Returned:
May
24,
1995
Effective:
May
23
1995
1ublished
Mdy
31,
1995
REMARKS:
I DO HEREBY CERTIFY that the are oin
indicated above APPROVED as to
FOP ar7d EG 1i
CORPORATION COUNSEL
COUNTY Or HAWAII
Date 2
Approvedlkk.; rptauad this da
y
°f X 9 g
MAN
DRAFT 4
DOLL CALL VOTE
AYES I NOES
ABS I Ex
Arakaki
X
Bonk -Abramson
Childs
X
X
De Lima
x
Domingo
X f
Osorio
x
Rath
X
Ray
X
Smyth
x
6 1 1 1 1 1 1 1
2s adopted by the County Council and published as
vt f
A
IL HAIY CLERK
Bill No.: 225 (Draft 4 }
Reference: C--962/1994/PC-43
Ord No.: 9 5 �
¢Q.
- Y
2AA 00b
teary Fo(lowa fvarlJy elm mlddfa cf alderoa!!�
80 5 270'S 41" 98457e
y0�7 g5
15s32is y $ ��
a
22 5 u op
h2.70 p `p
+' • o A
; F]
02 -�t.20 Ir
L t� tn9° o„ � 221, A2 20
Y 4
tO 1 3 tp� O/ ��' s►
18735
i
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22�60-0 -r
"7 pw p,sp'' Q�fi�2 Q ,3 P�4it'CFL Ca `'
A -20a to Y -3a
v 113.03B Acres
z�
n
Cis Ml Kib.
ooY
Patara
to
45
y ',��6
.o
100 y � to Pbta
NOTE:
Coorafra tea referred to "Puu Ovtj" A
PARCEL E
Ae -2oa to Ag9 - re
707.689 Acres
1�
a
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irf
J_
�Qj
Czrant 3155 to N" N_ Greenwei
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5�'srb� U
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Kdnal&
`i Ve A 745.E
270q�•
1 g'5Geo a��00
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�3 400 Acres 8
PARCEL A
8 J _
�w
—20 to A4 -S000a 8$
9 9 �u
f73 0179" TMJG 8-1-!?:l9
B,1o6-309 Acres 30 79 �
163 '33'56 "
204.04 2194543'
� M � 1313b
� 2 610
1 0* W w
120A0 �� �• Cb `b .mob ► 94 :
aCb,A
$`b � -oo� � � 'ems ► 0
,�9 - 2DB t o Ae -25$A �,- 346a.9a B
8
7 3 255 Acres � 5638937 f
a n d
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$ L- C• '4w_ 7C
Kroh 4703.10 5 0 93-00Iry
42634!_.04 J 9 p n
ap' 4 f0 ry ►a
WIW6
40509-01 E
aec`asoa jy
s
1 ~ 45; 89
�roposeci to
Zoning ,District aoLecierles
tieing Portion& or Qoy61 Patent 7a33 and 3607,
Land Commission sward b4a2:9 to 4. <eohokalole
Rogal Patent 4497/ Lind Commission ,4ward arpa'B to Co. <an6iro,
;eoy461 patent 4366 and 7a32/
Land Commission Award a4,52:11 to A. <eohokalole
and Grant a206 to F. Deniz
.4t Kea lakekua, <00, 61 uJa ipunaula, Ka lama kumu, Ka lama 21 Ka lamakowa 1 i,
<ahauloa, and Ka lama South bona, Hatu6ii
Tax Map 8-2-12: 12 and Por of 1 (3rd DivisTon>
Owner. Kea lak�kua Development Corporation,
Date Cr Fublic Nearing:
Ef%ctive Date:
Ordinance Number:
Revisions by: Planning Department County of 14awail
Tax 1Iap Key: 8-2-12: 12 and portion I lard Division)
a
UCENSED
ppAyF %K')NAL
LAND
SURVEYOR
No. 4729
ti� a
.gIVA+1, a 5.
R. P1, low i l l Corporation
'Russell �f&jbfroa
Licansed P'oreaalonal Land $urvdoor
Licensed C.BrtFrTcate Numbdr 4729
Graphic Sca 1e
Sca le in Feet
r Es
EXHIBIT
NOVEMISIMM t, 1 JM3
f bz R M. 7CWILL CORPORATlDN t!'KEALAKEKU^ oEvML.C1j-M t=-tv-r cofitpaRA-r rate)
/ EErgfnssrrng - 5urveyrng - Plenn►ng - P�otogrammetry - Conatructron h7anagemvr'�t
AN ORDINANCE AMENDING ORDINANCE NO. 95-70, WHICH RECLASSIFIED
LANDS FROM AN AGRICULTURAL (A-20i) TO AGRICULTURAL (A -la, A-3a,
A-200a, A-255a AND A-8000a) AT KEALAKEKUA, KII.OA, WAIPUNAULA, KALAMA,
KUMU, AND KALAMAKOWALI, SOUTH KONA, HAWAII, COVERED BY TAX MAP
KEY 8-2-12:12 AND A PORTION OF 1.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Ordinance No. 95-70, is amended as follows:
"SECTION 2. These changes in district classification are conditioned upon the
following:
(A) The applicant, successors or assigns shall be responsible for complying with all
of the stated conditions of approval;
(B) The effective date of the change of zone shall be:
[(1)] when the applicant provides assurance satisfactory to the Departments of
Water Supply and Planning, upon consultation with the State Department
of Health and the Department of Land and Natural Resources, that a
water source(s) of sufficient quality and quantity has/have been
established within [two] fiyg years from the enactment of this [ordinance]
amendment; provided that a maximum one year extension may be
granted by the Planning Director with reasonable and sufficient
justification. [; and
(2) an agreement together with,the appropriate bond, surety or other security
deemed acceptable by the Planning Director, is executed between the
applicant and the County through its Departments of Water Supply and
Planning for the actual development of proven source and its water
transmission and distribution system to County Dedicable Standards
within one year from the official date of compliance with condition B(1);
Planning Dept.
Exhibit 5
provided that a one year extension may be granted by the Planning
Director with reasonable and sufficient justification. Such] -ng water
system that will be devtj shall be in accordance with the
requirements of the Rules and Regulations and the Water System
Standards of the Department of Water Supply and shall provide sufficient
water capacity and pressure for:
(i) domestic purposes for approximately 70 lots makai (west)
of the subject property and located within current Tax
Map Key Plat 8-2-001; and
(ii) fire protection purposes with fire hydrants along Koa
Road and Greenwell Mountain Road meeting with the
approval of the fire department.
"(C) Upon compliance with Condition B[(1) and B(2)], the subject property shall be
developed in two increments. The first increment shall be comprised of a
maximum of 300 lots zoned A -la and A-3a. The second increment shall be
comprised of the remaining maximum balance of 202 lots. The plans for the
proposed subdivision of the first increment shall be submitted to the Planning
Director within [three (3)] five (5l years from the effective date of the rezoning
as determined in Condition B. Subdivision plans for the second increment may
be submitted to the Planning Director only after a South Kona Mamalahoa
Highway Bypass road has been fully constructed in its entirety between the
approximate vicinity of Keauhou and Captain Cook.
(D) After Final Subdivision Approval is granted for the last phase of the subdivision
of the subject property, the Planning Director shall initiate an amendment to the
zoning of the golf course area into a more appropriate zoning classification to
insure that the golf course area is not subdivided.
(E) The applicant shall reserve in perpetuity a 200-foot wide easement along the
subject property's western boundary and the parcels designated by TMK
Nos.: 8-2-01: 4247 and 98-101, comprising of a 150-foot wide structural
-2-
setback and a 50-foot wide landscape buffer. Such easement and the
right-of-way acquisition documents for the proposed Koa Road access corridor
shall be delineated on plans submitted for subdivision review of the first
increment. The Koa Road corridor alignment shall be generally located south of
the Kealakekua Shopping Center at its connection with Mamalahoa Highway, as
represented by the applicant.
(F) A wastewater disposal system shall constructed in a manner meeting with the
approval of the State Department of Health and/or the Department of Public
Works, whichever is applicable.
(G) A detailed drainage study of the entire project area shall be prepared by the
applicant for review and approval by the Department of Public Works prior to
submittal of plans for subdivision review for any portion of the project site or
prior to any land alteration whichever comes first. Drainage improvements,
including any flooding mitigation measures as required by the chief engineer,
shall be constructed and/or installed in a manner meeting with the approval of
the Department of Public Works. The drainage study may include a program
for the sequenced installment of the drainage system improvements.
(H) An archaeological mitigation plan shall be prepared and submitted for approval
by the Planning Director, in consultation with the Department of Land and
Natural Resources -Historic Preservation Division and Hawaiian community
organizations, prior to submitting plans for subdivision review. The Plan shall
consist of two subplans:
(1) an archaeological data recovery plan for the sites to undergo data
recovery; and
(2) a detailed interim protection preservation plan for the sites to undergo
preservation. Approved mitigation measures shall be implemented prior
to or in conjunction with any land alterations within the project area.
The Plan shall also include a detailed map of known lava tube/cave systems
-3-
located within the project area and mitigative measures to ensure that the golf
course and related drainage systems do not impact these cave systems.
(l) Should any unidentified sites or remains such as artifacts, shell, bone, or
charcoal deposits, human burials, rock or coral alignments, pavings or walls be
encountered, work in the immediate area shall cease and the Planning Director
shall be immediately notified. Subsequent work shall proceed upon an
archaeological clearance from the Planning Director when the Director finds
that sufficient mitigative measures have been taken.
(� A solid waste management plan shall be prepared meeting with the approval of
the Department of Public Works prior to submitting plans for the first increment
of the subject property for final subdivision approval review. The Plan shall
include, but not be limited to, the management of construction solid waste as
well as operating and domestic solid waste generated by the proposed
development. Approved recommendations and mitigation measures shall be
implemented at a time and in a manner meeting with the approval of the
Department of Public Works.
(K) Roadway improvements and access(s) to the subject property, including all plans
and construction, shall meet with the approval of the Department of Public
Works and/or the State Department of Transportation. Prior to the issuance of
final subdivision approval for any portion of the first increment of the subject
property or the issuance for a certificate of occupancy for any portion of the golf
course, whichever occurs first, such improvements shall include but not be
limited to the following, subject to final determination by the planning director
in consultation with the chief engineer:
1. Construct the intersection improvements at the Mamalahoa Highway-Koa
Road intersection, including signalization and channelization meeting
with the approval of the State Department of Transportation and the
Department of Public Works;
-4-
2. Construct shoulder, road widening, overlay and restriping improvements
to establish a two-way left turn lane along Mamalahoa Highway from
Kamigaki Market to KeeKee Street;
3. Construct shoulder, drainage, road widening, overlay and restriping
improvements to provide a south bound left -turn pocket at Haukapila
Street (Kona Hospital intersection); a two-way left turn lane between
Halekii Street and Haukapila Street; and signalization at the Mamalahoa
Highway-Haukapila Street intersection; and
4. Widen shoulder areas to provide a minimum of five southbound and five
northbound bus pullouts along Mamalahoa Highway between Koa Road
and Kuakini Highway.
(L) Subdivision plans for the subject property shall include road stab outs to its
north and south boundaries below the 3,500 foot elevation and shall be approved
by the Department of Public Works and the Planning Department.
(M) The applicant shall participate in a program to construct the South Kona
Mamalahoa Bypass road and shall participate in the funding and construction of
any regional roadway improvements as may be required by the State Department
of Transportation, provided that any costs borne by the applicant shall be
credited and limited to the amount of its fair share contribution for regional
impacts, as required in Conditions K and P.
(N) To ensure that the Goals and Policies of the Recreation Element of the General
Plan are implemented, the applicant shall:
1. Designate and provide camping sites and related equestrian and
nature -interpretive trail systems within the subject property meeting with
the approval of the planning director in consultation with the director of
parks and recreation. The camping sites may be limited to members and
guests of non-profit organizations, primarily those serving resident youth
of Hawaii County, registered with the Department of Commerce and
consumer Affairs of the State of Hawaii for non -commercialized
-5-
recreational or educational purposes. The applicant shall prepare and
submit a recreational and maintenance plan for the camping sites meeting
with the approval with the planning director in consultation with the
director of parks and recreation, which shall include but not be limited
to:
the number, location and design of the camping sites and
accessways;
ii. availability on a daily year-round basis except during maintenance
and repairs which shall be at the applicant's expense;
a maintenance and user fee program comparable to county and
state park fees to offset maintenance cost; and
iv. Rules and regulations to include but not be limited to access, use
of camping sites and related trails, to provide for the health and
safety and welfare of the users and property owners alike.
2. Construct improvements to Greenwell Park as approved by the planning
director in consultation with the director of parks and recreation.
(0) In lieu of actual construction of infrastructural improvements as required under
Conditions F, G, J, K, L, M and N, the applicant may enter into an agreement
with the County to assure the County that the infrastructural improvements will
be constructed together with the appropriate bond, surety or other security
deemed acceptable by the Planning Director, appropriate agencies or the County
Council, whichever is applicable. Upon execution of such agreement and/or
filing of the security with the County, final subdivision approval for the subject
property or portions thereof shall be granted prior to the actual construction of
required infrastructural improvements.
(P) The Applicant shall pay its fair share contribution to address potential regional
impacts of the project with respect to park, fire, police, solid waste disposal
facilities, and roads. The fair share contribution shall be initially based on the
representations contained within the change of zone application and may be
am
increased or reduced proportionally if the lot counts are adjusted. The fair share
contribution based on the total number of lots for the first increment shall
become due and payable prior to final subdivision approval of any portion of the
first increment of the subject property. The fair share contribution for the total
number of lots of the second increment shall be due and payable prior to final
subdivision approval for any portion of the second increment of the subject
property. The fair share contribution for each lot shall be based on a maximum
density for each lot as determined by the zoning resulting from this change of
zone. The fair share contribution in a form of cash, land, facilities, or any
combination thereof acceptable to the director, in consultation with the affected
agencies shall have a maximum combined value of $3,619,580.00. The fair
share contribution described above shall be adjusted annually beginning three
years after the effective date of this ordinance, based on the percentage change
in the Honolulu Consumer Price Index (HCPI). In lieu of paying the fair share
contribution, the applicant may construct such facilities related to parks, fire,
police, solid waste disposal facilities, and roads with the approval of the
appropriate agency(ies). Any improvements constructed by the applicant to
satisfy this condition shall be located within the region.
(Q) Comply with all applicable laws, rules, regulations and requirements of the
affected agencies.
(R) Restrictive covenants in the deeds of all of the proposed lots within the subject
property shall prohibit the construction of a second dwelling or an Ohana
Dwelling unit. The construction of Farm Dwellings on each lot may be
permitted provided approval is secured from the Planning Director. Restrictive
covenants for all lots within the subject property shall require agricultural
activity. A copy of the proposed covenant(s) to be recorded with the Bureau of
Conveyances shall be submitted to the Planning Department for review and
approval prior to final subdivision approval for any portion of the first
increment of the subject property. A copy of the approved covenants shall be
-7-
recited in an instrument executed by the applicant and the county and recorded
with the Bureau of Conveyances likewise prior to final subdivision approval for
any portion of the first increment of the subject property.
(S) A forest management plan for the 8,100 acre site zoned A-8000a within the
subject property, shall be prepared and submitted for review and approval by
the Planning Director in consultation with the State Department of Land and
Natural Resources, State Department of Health, State Department of Agriculture
and U.S. Department of Natural Resources Conservation Service. The forest
management plan shall require the following:
1. Include at a minimum the best forest and reforestation practices, program
for implementation, public access, recreation consideration and any other
applicable forestry management criteria, including those of the State
Department of Land and Natural Resources (i.e. Forest Stewardship
Program).
2. The forest management plan shall be included in a restrictive covenant
for the 8,100 acre parcel, which covenant shall be recorded in the State
of Hawaii Bureau of Conveyances and/or Land Court. A copy of the
covenant to be recorded shall be filed with the Planning Director prior to
the issuance of fatal subdivision approval for any portion of the first
increment of the subject property. A recorded copy of the covenant shall
also be filed with the Planning Director as soon as practicable after final
subdivision approval of the first increment.
3. This forest management plan shall govern this 8,100 acre parcel for a
period of forty (40) years and may be terminated upon the approval of
the Beard of Land and Natural Resources.
4. Any termination of the said forest management plan after the 40-year
period shall be considered an amendment to this ordinance, requiring
County Council approval by ordinance.
F:11
(T) Within the A-8000a zoned area, no infrastructure improvements shall be
allowed except those improvements required for the maintenance of existing
facilities, those improvements identified in the forest management plan, and
those improvements within the designated camp sites.
(U) Street lights within the project site shall be minimized to the best extent
practicable and shall be installed only where required by the Department of
Public Works for safety purposes.
(V) An integrated pest management plan and noxious weed control plan shall be
submitted for agricultural uses for review and approval by the Planning Director
in consultation with the Department of Land and Natural Resources, Forestry
and Wildlife Division.
(W) 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.
(X) An annual progress report shall be submitted to the Planning Director prior to
each anniversary date of the approval of this change of zone. The report shall
address in detail the status of the development and the compliance with the
conditions of approval. This condition shall remain in effect until all of the
conditions of approval have been complied with and the Planning Director
acknowledges that further reports are not required.
(Y) An extension of time for the performance of conditions within the ordinance,
with the exception of Condition [C]B, may be granted by the Planning Director
upon the following circumstances:
(1) the non-perforrance 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;
(2) granting of the time extension would not be contrary to the General Plan
or Zoning Code;
in
(3) granting of the time extension would not be contrary to the original
reasons for the granting of the change of zone;
(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); and
(5) should the Applicant require an additional extension of time, the
Planning Director shall submit the Applicant's request to the County
Council for appropriate action.
(Z) Further, should any of the conditions not be met or substantially complied with
in a timely fashion, the Director shall initiate rezoning of the area to its original
designation. "
SECTION 2. Material to be deleted is bracketed. New material is underscored.
SECTION 3. In the event that any portion of the 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:
C6JNCIL MEMBER, COUNTY OF HAWAII
Hilo, Hawaii
Date of Introduction: June 1, 1998
Date of 1st Reading: June 1, 1998
Date of 2nd Reading: June 16, 1998
Effective Date: July 2, 1998
REfERENC& Comm. 2
APPROVED AS TO FORM AND LEGALITY:
CORPORATION COUNSEL
DATE:
-10-
Introduced By:
Date introduced:
First Reading:
Published:
REMARKS:
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo—, Hawaii ' ,_
Snobby Jean Leithead-Todd (B/R)
_June 1, 1998
June 1, 1998
June 8, 1998
Second Reading: June 16 1998
To Mayor: June 19 . 1998
Returned: ply 2, 199f3 .,,....___._.
Effective: July_ 2, 1998
Published: July 10, 1998
REMARKS.
' G3 01LL c R; 11 1-3 � it
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Arakalu
X
Chuniz
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Leithead-Todd
X
Pay
X
Reynolds
X
Santangelo
X
Smith
X
Tyler
Yagong
X
9
1 0
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
X
Chung
X
Leithead-Todd
x
Ray
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Reynolds
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Santangelo
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Smith
X
TI ler
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Yagong
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9
0
0
I DO HEREBY CEXW�(' j tdie fgre eg BILL was adopted by the County Council and published as
indicated above. FORM AND LEGALITY:
DEPUTY CORPORATION COUNSEL
COUNTY Of HA W A Il
Dote JUN 2 3 1998
Appro ed/ this Z day
Of 19_ .
A R, COUNTY HAWAII
¢O L CHAIRMAN
OUNTY CLERK
Bill No.: 232
Reference: C-822/PC-109
4 63 Ord_ No-: `-'
T �[a
STATE OF HAWAII
OF H
q tl,9SsQaW9 BUREAU OF CONVEYANCES
RECORDED
March 17, 2016 8:01 AM
Doc No(s) A - 59200621
to/ NICKI ANN THOMPSON
REGISTRAR
LAND COURT
Return by Mail x ❑ Pick -Up To:
1 1/3 SKC
B — 32778161
REGULAR SYSTEM
10 ISLANDS LAND TRUST
PO Box 965 � �� ��
Wailuku, HI 96793
le5cyc -41(oo ZZAz1 -,r,r
TMK: (3) 8-2-011:002 and (3) 8-2-011:023 Total No. of Pages 2Z'
TITLE OF DOCUMENT:
GRANT OF CONSERVATION EASEMENT
HCC Farms LLC
R1�7
TfJIS GRANT OF A CONSERVATION EASEMENT is made and entered this J � day of
QVVIW , 2015, by HCC FARMS LLC, a Hawaii Limited Liability company (hereinafter referred
to as "Grantor"), having an address at 900 Fort St. Mall, Suite 1320, Honolulu, Hawaii 96813, and the
HAWAIIAN ISLANDS LAND TRUST, a Hawaii nonprofit corporation whose address is P.O. Box
965, Wailuku, HI 96793 (hereinafter referred to as the "Grantee"). The Grantee and the Grantor are
hereinafter referred to as the "Parties".
Exhibits to this Grant of Conservation Easement include the following:
Exhibit A
Exhibit B
Planning Dept. -
Exhibit 6
Legal Description of Protected Property
Map of the Protected Property
1
RECITALS:
A. PROTECTED PROPERTY. Grantor is the owner in fee simple of approximately 74.99
acres, more or less of real property in Hawaii County, Hawaii, which is legally described in Exhibit A
and depicted in Exhibit B attached hereto and incorporated by reference herein ("Protected Property")
The Tax Map Key identification for the Protected Property are (3) 8-2-011:002 and (3) 8-2-011:023.
The total acreage of the two parcels equals 74.9900 acres plus or minus. The Protected Property
contains two (2) distinct zones: The Agricultural Zone, and the Ecological/Cultural Zone, described in
greater detail in Section I of the Terms and Conditions.
B. CONSERVATION VALUES. The Protected Property, in its present state, has significant
agricultural, ecological, aesthetic, open space, historical/cultural, water resource and educational values,
including, but not limited to, the preservation of farmland "pursuant to a clearly delineated ...
governmental policy", and the preservation of "relatively natural habitat of wildlife and plants or similar
ecosystem", as those phrases are used in Section 170(h)(4)(A)(ii) and (iii) of the Internal Revenue Code,
as those sections may be amended from time to time, and in the regulations promulgated thereunder
(collectively, the "Conservation Values"). Such Conservation Values and the Protected Property's state
of improvement are documented in a Baseline Documentation Report as described further below. All of
these Conservation Values are of great importance to Grantor and to the people of the State of Hawaii
and are worthy of conservation.
In particular, the Protected Property lies south of Captain Cook, Hawaii on a ridge, Kealakekua
Ridge, and consists of a diverse and productive 74 acres on which coffee trees are grown in soils of
statewide agricultural importance. The average rainfall on HCC Farms is 60 inches per year which is
within the ideal range for growing Kona coffee, a world renowned and signature product of Kona,
Hawaii, as well as other potential crops that could contribute to the agricultural sustainability and food
security of Hawaii Island. Preservation of coffee farm lands and crop lands is an important aspect of the
Kona Community Development Plan. Agricultural use of land protects the soil and allows for the
natural percolation of water into the ground and into the water table thus contributing to clean water and
increased water quality for surrounding landowners. The Kona Community Development Plan (2008)
emphasizes conserving of natural resources, open space and watersheds. Therefore, protecting this land
with a permanent conservation easement will perpetuate these desired qualities. These attributes
constitute the "Agricultural Values" of the Protected Property.
The Conservation Values of HCC Farms include native `Ohia forest, forest birds, and other fauna
associated with Hawaii's forested lands. Kealakekua Ridge is divided roughly down the center by a
raised ridgeline heavily forested with native Ohia trees and hapu'u tree ferns. The Kealakekua Ridge is
important for both resident forest bird species including the Apapane and the federally listed Hawaiian
Hawk, the `Io, which are known to nest on the Property. These attributes constitute the "Ecological
Values" of the Protected Property.
The aesthetic values of the HCC Farms are significant in that it lies directly above Kealakekua
Bay, the Bay where Captain Cook first landed in Hawaii. The view shed of the Bay is in direct line of
view of HCC Farms and of the millions of tourists and local residents who travel through this area where
HCC Farms is located. These attributes constitute the "Scenic Values" of the Protected Property.
2
Additionally, the property is bordered by the 11,000 acre Kealakekua Ranch on which a
conservation easement was previously placed. If a conservation easement were to be placed on the HCC
Farms property, this would make for a huge protected tract of land that is over 11,000 acres in size. The
property has been platted into 14 lots of approximately five acres each, which are very desirable in that
they are close to town, they all have spectacular views of the ocean and coastline, and there is county
water available as well as electricity. These attributes constitute the "Open Space Values" of the
Protected Property.
The property is along a ridge that funnels rainwater to the ocean, sometimes in tremendous flows.
The landowner has worked with the Natural Resource Conservation Service (NRCS) to build settlement
basins that slow the flow of water and thus allow the sediment load that the water carries to settle out.
After the installation of settlement basins along the ridge bottom, the runoff remains in the basins and
the soil and silts are used by the HCC Farm as part of their operations. This contributes to protecting
the quality of the water resources along this steep gulch and reducing erosion. These attributes
constitute the "Water Resource Protection Values" of the Protected Property.
During work on the HCC Farms for a grant, the Natural Resource Conservation Service found
that the HCC Farms contains significant archaeological features including: 16 mounds, 35 terraces, two
alignments, one enclosure, and one excavated depression. These are all pre -contact features. These
attributes constitute the "Ecological/Cultural Values" of the Protected Property.
C. EXISTING USES. The Protected Property is currently used for the production of coffee
beans. Improvements on the Protected Property are related to coffee production, including fences, small
agricultural storage sheds, and access roads. The Conservation Values of the Protected Property have
not been and are not likely to be adversely affected to any substantial extent by the use of the Protected
Property for the production of coffee or other agricultural produce, as authorized in this Conservation
Easement. Grantor, as owner of the Protected Property, owns the affirmative rights to identify,
preserve, and protect in perpetuity, its significant relatively natural features and values. Grantor desires
and intends to transfer such rights to the Hawaiian Islands Land Trust.
D. QUALIFIED ORGANIZATION. The Hawaiian Islands Land Trust (Grantee) is a non-
profit corporation created to preserve and conserve natural areas for aesthetic, scientific, charitable and
educational purposes and is an organization qualified under Section 170(h) of the Internal Revenue
Code, as that section may be amended from time to time, and in the regulations promulgated thereunder,
to receive qualified conservation contributions.
TERMS AND CONDITIONS
For and in consideration of the facts above recited and of the mutual covenants, terms,
conditions, and restrictions herein contained and pursuant to the laws of the State of Hawaii and in
particular Hawaii Revised Statutes ("HRS") 198-3 which provides that any public body and any
organization which qualifies for and holds an income tax exemption under section 501(c) of the Internal
Revenue Code of 1954, as amended, and whose organizational purposes are designed to facilitate the
purposes of HRS Chapter 198, may acquire and hold conservation easements by purchase, agreement,
donation, devise or bequest, and in consideration of the payment of $250,000.00 to Grantor, the Grantor
hereby grants and conveys unto the Grantee, and their successors and assigns forever a Conservation
Easement in perpetuity over the Protected Property consisting of the following terms and conditions
("Easement").
1. PURPOSE. This Section 1, in its totality and as stated below, constitutes the "Purpose"
of this Easement. The Purpose of this Easement is as follows:
The Agricultural Zone. The primary purpose of this Easement for the Agricultural Zone of the
Property (as identified and designated on the Map of the Protected Property (Exhibit B)) is to
preserve and protect the Agricultural Values of the Protected Property (the "Agricultural Zone
Primary Conservation Purpose"). No use or activity in the Agricultural Zone shall be permitted that
would result in the significant impairment of Agricultural Zone Primary Conservation Purpose;
The Ecological/Cultural Zone. The primary purpose of this Easement for the Ecological/Cultural
Zone of the Property (as identified and designated on the Map of the Protected Property (Exhibit B))
is to preserve and protect the Ecological Values and the Cultural Values of the Protected Property
(the "Ecological Zone Primary Conservation Purpose"). No use or activity in the Ecological Zone
shall be permitted that would result in the significant impairment of Ecological Zone Primary
Conservation Purpose;
To the extent that the preservation and protection of the other Conservation Values may be
accomplished without impairing the Primary Conservation Purpose of each zone, it is also the purpose of
this Easement to protect those other Conservation Values, and to such extent, no activity which shall
significantly impair those additional Conservation Values shall be permitted except as may be otherwise
provided in this Easement. The Parties agree that the Owner's retention of certain rights specified in this
Easement, including expressly permitted recreational, commercial and improvement rights, is consistent
with the Purpose of this Easement, provided those rights are exercised in accordance with the terms of
this Easement.
2. PROHIBITED USES/RESTRICTIONS. Any activity on or use of the Protected Property
inconsistent with the Purpose of this Easement is prohibited. Without limiting the applicability of the
foregoing, the following activities and uses are expressly prohibited except as provided in paragraph 3
below:
2.1. Conversion to Non -Agricultural Activity. The Protected Property shall not be converted
to non-agricultural use. Any use or activity permitted under this Easement, including, but not limited to,
the residential, recreational, open space, natural area preservation and/or restoration uses authorized
herein, shall not be considered as conversion to non-agricultural use.
2.2. Structures. There shall be no construction or placing of any house, garage, barn or other
building or improvement, tennis or other recreational court, golf course, landing strip, mobile home,
swimming pool, fence or sign (other than those permitted herein), asphalt, concrete pavement, billboard
al
or other advertising display, antenna, utility pole, tower, conduit, line, wind turbine, automatic yard light
(except motion detection lights) or related structures, or any other temporary or permanent structure or
facility on the Protected Property except as provided for in subparagraphs (a) through (e) below. Before
undertaking any placement or construction that requires advance permission, the Grantor shall notify
Grantee and obtain written permission, as described in Paragraph 4 below.
(a) Structures & Improvements —Impervious Surfaces located on the Protected Property,
including those existing on the date of this Easement, as indicated in the Baseline Documentation Report
or those constructed in the future, shall not exceed five percent (5 %) of the total area of the Property.
An "Impervious Surface" is defined as any material which covers land and significantly restricts or is
impenetrable to the percolation of water directly into the soil, including, any permanent, non -seasonal
roof tops, decking, concrete, macadam or asphalt surfaces, and paved areas. Naturally occurring features
on the Protected Property shall not be considered Impervious Surfaces for the purposes of this five
percent (5%) restriction.
Existing structures, including agricultural structures and improvements, may be repaired,
reasonably enlarged, and replaced at their current locations, as shown on Exhibit B, without further
permission from the Grantee. New buildings, including barns, sheds, and other structures and
improvements to be used primarily for agricultural purposes (including the processing or sale of farm
products predominantly grown or raised on the Property) may be built on the Property without any
further permission of Grantee provided they are located in the Agricultural Zone.
(b) Single -Family Residential Dwellings — One residential dwelling may be constructed in
the Agricultural Zone at a location to be mutually determined by Grantor and Grantee and with the
advance written permission of the Grantee, as described in Paragraph 4 below. The Grantee shall give
such permission within a reasonable time if it determines that the proposed building, structure, or
improvement is not inconsistent with the Purpose of this Easement. The maximum footprint of the
residential dwelling must be no more than 5,000 square feet. The permitted residential dwelling may be
constructed in various pods (or separate buildings with disconnected roofs), provided that no pod shall be
more than 50 feet from another portion of the residential dwelling. No other residential dwelling may be
built on the Protected Property. Footprint means the total ground area covered by a structure calculated
on the basis of the exterior dimensions of any perimeter walls (whether at or above ground level and
including any balconies, carports or breezeways, patios or terraces, decks and porches), but excludes the
floor area of additional levels of the residential dwelling constructed directly above area already included
in the calculation of the Footprint.
(c) Recreational Improvements. No recreational improvements are permitted.
(d) Utility Services and Septic Systems — Installation, maintenance, repair, replacement,
removal, and relocation of electric, gas, and water facilities, sewer lines and/or other public or private
utilities, including telephone or other communication services over or under the Protected Property for
the purpose of providing electrical, gas, water, sewer, or other utilities to serve improvements on the
Protected Property permitted herein, and the right to grant easements over and under the Property for
such limited purposes, is permitted. Grantor shall not permit or grant easements for utility transmission
5
or distribution facilities or systems without the written consent of the Grantee, as described in Paragraph
4 below. Maintenance, repair or improvement of a septic system(s) or other underground sanitary
system that exists on the Protected Property at the time of this Easement, or the construction of a septic
or other underground sanitary system, for the benefit of any of the improvements permitted herein, is
permitted, provided that the impact of such installation and maintenance on the Conservation Values is
limited to the greatest extent possible. All other utilities are prohibited on the Protected Property
including, but not limited to, cellular communication towers or structures.
2.3. Separate Conveyance. The Protected Property consists of 74.99 contiguous acres. Any
conveyance of these 74.99 acres must be as a single legal tract.
2.4. Mining. There shall be no mining, drilling, exploring for or removal of minerals from, on
or under the Protected Property.
2.5. Topography. There shall be no ditching, trenching, draining, diking, filling, excavating,
removal of topsoil, sand, gravel, rock or other materials (including the removal of substratum from
streambeds), or any change in the topography of the land in any manner except in conjunction with any
use or activity specifically authorized herein.
2.6. Water. There shall be no manipulation or alteration of creeks, streams, surface or
subsurface springs or other bodies of water or the shorelines thereof, except for those manipulations or
alterations designed to benefit the agricultural operation as set forth in paragraph 3 below.
2.7. Dumping. There shall be no long-term storage, dumping or accumulation of trash, non-
compostable garbage, Hazardous Materials or unsightly or offensive material on the Protected Property,
except that certain hazardous or toxic substances and agricultural by-products may be stored in the
Agricultural Zone, as needed, in association with agricultural uses otherwise permitted in this Easement.
2.8. Roads and Impervious Surfaces. There shall be no building of new roads or other rights
of ways except for unpaved paths and trails consistent with the preservation of the Protected Property.
Existing unpaved roads may be maintained but shall not be widened or improved, relocated, except as
permitted under paragraph 3 below.
2.9. Vehicles. There shall be no operation of dune buggies, motorcycles, all -terrain vehicles
(ATVs) or other types of motorized recreational vehicles on the Protected Property, except as necessary
to carry -out activities otherwise allowed by this Easement. Cars, trucks, and other farm and ranch
vehicles shall not be considered as recreational vehicles when used for uses and activities permitted
under this Easement. All permitted vehicle use shall be conducted in a manner that minimizes damage to
the Conservation Values of the Protected Property.
2.10. Plant Removal and Introduction. The selective harvesting of timber is permitted for the
following purposes: controlling forest disease; protecting persons or property from the hazards of falling
trees or branches or wildfire; firewood for personal use; maintaining existing fields and open pastures, as
documented in the Report; and, subject to the Grantee's prior approval, as described in Paragraph 4
[-I
below. These conditions apply to both living and standing dead trees. Excavation and/or removal of
plants or trees is allowed if such plants or trees: (1) are designated as noxious weeds or considered to be
an invasive woody plant species; (2) were planted or installed for agricultural purposes (i.e., crops,
orchard trees); or (3) are removed by agricultural practices that do not significantly compromise the
Conservation Values of the Protected Property.
2.11. Density. Neither the Protected Property nor any portion of it shall be included as part of
the gross area of other property not subject to this Easement for the purposes of determining density, lot
coverage or open space requirements under otherwise applicable laws, regulations or ordinances
controlling land use and building density. The parties have extinguished the development rights. No
development rights that have been encumbered or extinguished by this Easement shall be transferred to
any other lands pursuant to a transferable development rights scheme, cluster development arrangement
or otherwise. Notwithstanding the foregoing, Grantor may participate in a consolidation/resubdivision
with an adjacent parcel using the legal parcels currently comprising the Protected Property.
3. GRANTOR'S RESERVED RIGHTS. The Grantor reserves for himself/herself, Grantor's
heirs, successors and assigns, all rights as owners of the Protected Property to use the Protected Property
for all purposes that are not expressly prohibited herein and are not inconsistent with this Easement.
Without limiting the applicability of the foregoing, the following rights are expressly reserved:
3.1. Conveyance. Grantor may sell, give, mortgage, lease or otherwise convey the Protected
Property, provided that such conveyance is subject to this Easement and written notice is provided to the
Grantee in accordance with paragraph 4 below.
3.2. Agricultural Operations. The Agricultural Zone may be used for agricultural production,
including preparing land for, and the cultivation of, row crops or other crops including coffee trees,
orchards, hay, pasture, and range; raising of poultry and livestock, breeding or boarding of animals,
horticulture, apiaries, viniculture and forestry.
3.3. Fences and Other Similar Structures. Grantor may, but shall not be obligated to, repair,
replace, maintain, improve or remove any fence or corral located on the Protected Property as of the date
of this Easement. The Grantor may construct, repair, replace, maintain, improve or remove additional
fencing as the Grantor deems necessary to secure the Protected Property or in connection with any use or
activity permitted under this Easement.
3.4. Water for Agricultural Purposes. To the extent required for agricultural purposes,
including grazing of livestock and crop irrigation on the Protected Property, Grantor may drill water
wells, make irrigation improvements, or make improvements to existing stock ponds. New
impoundments or expansions of existing impoundments are permitted only with the written permission
of the Grantee, as described in Paragraph 4 below. Such alterations shall be made in a manner that does
not adversely affect water quality or quantity, and minimizes negative impacts to soils.
3.5. Roads. In order to prevent erosion and soil loss, Grantor may relocate existing
unimproved pasture roads/trails on the Protected Property, provided their total number and cumulative
7
length does not increase and the disturbance to soils is minimized. Existing pasture roads/trails are
identified in the Baseline Documentation Report (defined in Section 6.2 below). Abandoned roads shall
be returned to native vegetation cover, either by letting natural succession occur or by replanting with
appropriate, native species (based on soil type) using local ecotypes. Grantor may improve, maintain, or
harden the surface of any road (i.e., using asphalt, concrete, macadam), subject to the conditions of
Section 2.2(a) above.
3.6. Native Species. Grantor may undertake to restore and/or enhance the native plant and
animal communities on the Protected Property to the extent consistent with the other terms of this
Easement.
3.7. Hunting and fishing. Grantor, Grantor's invitees, licensees, and lessees may hunt on the
Protected Property, in compliance with all state and federal laws.
3.8. Signs. Grantor may place on the Protected Property interpretive signs, such as signs
identifying that the Protected Property is protected by this Easement, or signs identifying habitat
improvements, as well as "no hunting," "no trespassing" or similar signs.
3.9. Preservation. Grantor may, but shall not be obligated to, undertake activities necessary to
maintain or enhance the Conservation Values of the Protected Property, as identified in paragraph B of
this Easement and in the Baseline Documentation Report (defined in Section 6.2 below).
3.10 Timber Resources. Grantor may selectively harvest timber resources from the Protected
Property for personal or commercial use as per paragraph 2.10 above. Such selective harvest shall be
conducted in a manner consistent with the Purpose of this Easement and in accordance with all other
terms and conditions of this Conservation Easement.
3.11 Chemicals. Grantor reserves the right to use chemical fertilizers, herbicides, pesticides,
fungicides, biocides, defoliants and natural controls for the control of noxious weeds and pests, and for
agricultural purposes within the Protected Property, provided that (i) such use must be in compliance
with all applicable federal, state, and local statutes and regulations; and (ii) such use must be applied
consistent with labeled instructions.
4. Prior Notice and Approval. Grantor shall not undertake or permit any activity requiring prior
approval by the Grantee without first having notified and received approval from the Grantee as
provided herein.
4.1 Prior to the commencement of any such activity, Grantor shall send the Grantee written
notice of its/his/her intention to undertake or permit such activity. The notice shall inform the Grantee of
all aspects of the proposed activity, including location, design, materials or equipment to be used, dates
and duration, and any other relevant information, and shall be sent by registered or certified mail, return
receipt requested, to The Hawaiian Islands Land Trust, 2370 Vineyard St., PO Box 965, Wailuku, HI
96793, or such other addresses as Grantor may from time to time be informed of in writing by the
Grantee.
0
The Grantee shall have sixty (60) days from receipt of the notice, as indicated by the date of the
return receipt, to review the proposed activity and to notify Grantor of any objections thereto; provided
that the 60 day period shall not begin until such time as the Grantee has received adequate information
from Grantor to evaluate the proposed activity. In the event that the Grantee requires additional
information to evaluate the proposed activity, the Grantee shall request the specific information needed
from Grantor as soon as practicable and in any case not later than thirty (30) days after the receipt of the
notice of the proposed activity.
The Grantee's decision to approve or disapprove the activity proposed by Grantor shall be sent
by registered or certified mail, return receipt requested, to Grantor at the address first stated above, or to
such other address as the Grantee may from time to time be informed of in writing by Grantor.
A decision by the Grantee to disapprove a proposed activity must be based upon the Grantee's
determination that the proposed activity is inconsistent with the conservation purposes of the Easement.
If, in the Grantee's judgment, it is possible that the proposed activity can be modified to be consistent
with the Easement, the Grantee's decision notice shall inform Grantor of such modification(s). Once
modification is made to the satisfaction of the Grantee or the Grantee otherwise concurs with the matters
set forth in Grantor's notice, the proposed activity may thereafter be conducted in a manner that is
acceptable to the Grantee.
Should the Grantee fail to post its response to Grantor's notice within sixty (60) days of its receipt
of notice or within sixty (60) days of the time that the Grantee has received adequate information to
evaluate the proposed activity, whichever is later, the proposed activity is automatically deemed
consistent with the terms of the Easement and approved.
5. RIGHTS AND REMEDIES of GRANTEE. In order to accomplish the conservation
purposes of this Easement, the Grantee shall have the following rights and remedies:
5.1. Remedies. In the event that Grantee becomes aware of a violation of the terms of this
Conservation Easement, Grantee shall give notice to the Grantor, at Grantor's last known post office
address, of such violation via certified mail, return receipt requested, and request corrective action
sufficient to abate such violation and restore the Protected Property to its previous condition. Failure by
the Grantor to cause discontinuance, abatement or such other corrective action as may be requested by
Grantee within thirty (30) days after receipt of such notice, or under circumstances where the violation
cannot reasonably be cured within the thirty (30) day period, fails to begin curing such violation within
the thirty (30) day period and fails to continue diligently to cure such violation until finally cured, shall
entitle Grantee to enforce by proceedings at law or in equity the provisions of this Easement including,
but not limited to, the right to require the restoration of the Protected Property to its condition at the date
of this Easement, subject to the reserved rights of the Grantor set forth herein. Grantee, or its successors
or assigns, shall not waive or forfeit the right to take action as may be necessary to ensure compliance
with the terms and conditions of this Easement by any prior failure to act. If Grantee, in its sole
discretion, determines that circumstances require immediate action to prevent or mitigate significant
E
damage to the Conservation Values of the Protected Property, Grantee may pursue its remedies under
this Section 5.1 without prior notice to the Grantor or without waiting for the period for cure to expire.
Nothing herein shall be construed to entitle Grantee to institute any enforcement proceeding
against the Grantor for any changes to the Protected Property due to causes beyond the Grantor's control,
such as changes caused by fire, flood, storm, volcanic eruptions, earthquakes, infestations, natural
deterioration, the acts of third parties legally authorized to act by recorded document or other legally
established rights, the unauthorized wrongful acts of third persons, or from any prudent action taken by
Owner under emergency conditions to prevent, abate, or mitigate significant injury to the Protected
Property resulting from such causes or to protect bona fide public health or safety in an emergency
situation; provided, however, that the Grantor shall notify Grantee of any occurrence which would
adversely affect or interfere with the Purpose of the Easement, whether caused by the acts or omissions
of the Grantor or third parties. However, this paragraph shall not apply to a Grantor who may reasonably
be expected to have knowledge of an impending, or on -going, violation of the terms of this Easement by
a trespasser or third party, and fails to take reasonable and prudent steps to prevent or stop such
violation. This paragraph shall not be construed to relieve the Grantor of the obligation to clean up
garbage or materials dumped on the Property by third -parties or to otherwise maintain the Property in a
condition consistent with the purposes of this Easement.
Grantee shall be entitled to seek expedited injunctive relief to enforce its rights with respect to the
Protected Property, and the Grantor waives any bond requirement otherwise applicable to any petition
for such relief. Grantee shall have the right to report to regulatory authorities any environmental
conditions or any potential or actual violations of environmental laws, including noxious weed laws,
with respect to the Protected Property.
In the event either party becomes involved in legal proceedings against the other to enforce such
party's respective rights or interests under this Easement, the prevailing party shall be entitled to receive
from the non -prevailing party reasonable attorney's fees incurred in connection with any such
proceedings.
5.2. Right of Entry. Grantee shall have the right to enter the Protected Property, in a
reasonable manner, with advance notice to the Grantor and at reasonable times, for the purposes of:
a. To enter upon the Premises upon reasonable notice, in a reasonable manner, and at reasonable
times in order to (i) monitor and inspect Grantor's, or its successors' or assigns', compliance
with the covenants and purposes of this Conservation Easement, (ii) investigate any suspected,
alleged or threatened violation and, if found, to enforce the terms of this Conservation
Easement, and (iii) take any and all actions as may be necessary or appropriate, to remedy or
abate the violation hereof;
b. With Grantor's approval, making scientific and educational observations and studies and
taking samples in such a manner as will not disturb the quiet enjoyment of the Protected
Property by the Grantor. Grantor shall be allowed to participate in all such observations and
studies. Any data collected on the Protected Property pursuant to this Section will be
provided to Grantor.
10
Posting signs for the purpose of promoting provisions of this Easement, with Grantor's
approval as to the size and location of signs.
d. Removing or controlling invasive plants or animals in the Ecological/Cultural Zone, at no
additional cost to Grantor, and at Grantee's option; such activities by Grantee shall not relieve
the Grantor of the responsibility of removing and controlling invasive species in accordance
with appropriate federal, state and county laws and regulations.
All notices to the Grantor under this Section 5.2 may be made either in writing or
verbally, at the discretion of the party providing the notice.
5.3. Limitation of Grantee Rights. Nothing contained herein shall give rise, in the absence of
a judicial decree, to any right or ability of Grantee to become the owner, arranger or operator of the
Protected Property within the meaning of the Comprehensive Environmental Response, Compensation
and Liability Act by exercising physical control over the day-to-day operations of the Grantor, or
becoming involved in management decisions of the Grantor regarding the generation, handling or
disposal of hazardous substances.
5.4 Discretionary Consent. If, owing to unforeseen or changed circumstances, any of the uses,
improvements or activities that are prohibited or limited by terms of the Easement are deemed
appropriate and desirable by Grantor and Grantee, Grantee may give consent for such uses,
improvements or activities only if it determines, in its sole discretion, that such activities (1) do not
violate or are not in conflict with any Purpose of the Easement and (2) either enhance or do not
significantly impair any Conservation Value protected by this Easement. Any requests for discretionary
consent by Grantor under this Paragraph shall be in writing and shall describe the proposed use,
improvement or activity in sufficient detail to allow Grantee to judge the consistency of the proposal
with the Purposes of this Easement. Grantor shall not commence work on or engage in the proposed use,
improvement or activity until it receives Grantee's written consent, and then only upon the specific terms
and conditions thereof. Any such consent shall be revocable at Grantee's discretion. Notwithstanding
the foregoing, Grantee shall not consent to any use, improvement or activity that would result in the
termination or extinguishment of this Easement under state or federal law; that would provide private
inurement or impermissible private benefit; or that would allow any residential, commercial or industrial
structures, or any commercial or industrial uses or activities, not otherwise provided for above.
6. GENERAL PROVISIONS.
6.1. Perpetual Burden. This Easement shall run with and burden the Protected Property in
perpetuity and shall bind the Grantor, Grantor's heirs, successors and assigns.
6.2. Easement Documentation. The Grantor and Grantee agree that the natural characteristics,
the ecological and aesthetic features, the physical condition, the present uses and the Conservation
Values of the Protected Property at the time of this grant are documented in an Baseline Documentation
Report, prepared by the Grantee and signed and acknowledged by the Grantor and a representative of
11
Grantee, establishing the condition of the Protected Property at the time of this grant and including
reports, maps, photographs and other documentation. A copy of this Report is maintained at the office of
the Grantee. Such report may be used by Grantee in any enforcement action.
6.3. Access. Nothing contained in this Easement shall give or grant to the public a right to
enter upon or to use the Protected Property or any portion thereof where no such right existed in the
public immediately prior to the execution of this Easement.
6.4. Assi ng ment. This Easement is in gross and may be assigned or transferred by the
Grantee, or his or her successors or assigns, and such transfer shall be duly recorded. The Grantee
agrees that, if it transfers or assigns its interest in this Easement:
a. The organization or entity receiving this interest will be a qualified organization as that term
is defined in Section 170(h)(3) of the Internal Revenue Code, as that section may be amended
from time to time, and in the regulations promulgated thereunder and which is organized and
operated primarily for one of the conservation purposes specified in Section 170(h)(4)(A) of
the Internal Revenue Code, as that section may be amended from time to time, and in the
regulations promulgated thereunder;
b. The transferee or assignee will be required to carry out in perpetuity the conservation
purposes which this Easement was originally intended to advance; and
c. Grantee will obtain Owner's approval of the assignee organization, which approval shall not
be unreasonably withheld by Owner.
6.5. Dissolution of Grantee. In the event of the dissolution of the Grantee, the Grantee's
interest will be assigned only to a public body or to a private non-profit organization which is a qualified
organization as described in paragraph 6.4 of this Easement. The entity or court making such assignment
shall seek Grantor's participation in selecting a suitable assignee.
6.6. Subsequent Transfers by Grantor. Unless this Easement is extinguished, as set forth
below, the Grantor agrees that the terms, conditions, restrictions and purposes of this Easement will
either be incorporated by reference or inserted by the Grantor in any subsequent deed or other legal
instrument by which the Grantor divests himself/herself of any interest in all or part of the Protected
Property. The Grantor agrees to notify Grantee, its successors and assigns, of any such conveyance in
writing by certified mail within fifteen (15) days after closing.
6.7. Extinguishment. The Grantor agrees that this grant of a perpetual Easement gives rise to
a property right, immediately vested in Grantee, with a fair market value that is equal to the
proportionate value that the Easement, bears to the value of the Protected Property as a whole at the time
of conveyance. The proportionate value of Grantee's property rights shall remain a constant fractional
share of the unrestricted value of the Protected Property
If a subsequent unexpected change in the conditions of or surrounding the Protected Property
makes impossible or impractical the continued use of the Protected Property for the conservation
12
purposes described herein, and if the restrictions of this Easement are extinguished by judicial
proceedings (including, but not limited to, eminent domain proceedings), then upon the sale, exchange or
involuntary conversion of the Protected Property, Grantee shall be entitled to a share of the proceeds at
least equal to the proportionate value of the Easement described above. Grantee will use its share of any
and all proceeds received for such sale, exchange or involuntary conversion in a manner consistent with
the Purpose of this Easement.
6.8. Title Warranty. Grantor hereby warrants and represents that the Grantor is seized of the
Protected Property in fee simple and has good right to grant and convey this Easement, that the Protected
Property is free and clear of any and all encumbrances except those of record that have been approved by
Grantee and that Grantee and its successors and assigns shall enjoy all of the benefits derived from and
arising out of this Easement. Any present or future mortgage on the Protected Property has been or will
be subordinated to this Easement.
6.9. Hazardous Materials. Grantor warrants that he is in compliance with and shall remain in
compliance with, all applicable Environmental Laws. Grantor warrants that there are no notices by any
governmental authority of any violation or alleged violation of, non-compliance or alleged non-
compliance with or any liability under any Environmental Law relating to the operations or conditions of
the Property.
Grantor warrants that he has no actual knowledge of a release or threatened release of any Hazardous
Materials on, at, beneath or from the Property. Moreover Grantor hereby promises to hold harmless and
indemnify the Grantee against all litigation, claims, demands, penalties and damages, including
reasonable attorneys' fees, arising from or connected with the release or threatened release of any
Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation
of any Environmental Laws by Grantor or any other prior owner of the Property. Grantor's
indemnification obligation shall not be affected by any authorizations provided by the Grantee to Grantor
with respect to the Property or any restoration activities carried out by Grantee at the Property; provided,
however, that Grantee shall be responsible for any Hazardous Materials contributed after this date to the
Property by Grantee.
"Environmental Law" or "Environmental Laws" means any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any
governmental authority regulating or imposing standards of liability or standards of conduct (including
common law) concerning air, water, solid waste, hazardous materials, worker and community right -to -
know, hazard communication, noise, radioactive material, resource protection, subdivision, inland
wetlands and watercourses, health protection and similar environmental health, safety, building and land
use as may now or at any time hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils, explosives,
reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes,
hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive
materials, infectious materials and any other element, compound, mixture, solution or substance which
may pose a present or potential hazard to human health or the environment.
13
6.10. General Indemnification. Grantor shall indemnify and hold harmless Grantee for any and
all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings,
actions, and costs of actions, sanctions asserted by or on behalf of any person or governmental authority,
and other liabilities (whether legal or equitable in nature and including, without limitation, court costs,
and reasonable attorneys' fees and attorneys' fees on appeal) to which Grantee may be subject or incur
relating to the Property, which arise from Grantor's negligent acts or omissions or Grantor's breach of
any representation, warranty, covenant, agreements contained in this Deed, or violations of any Federal,
State, or local laws, including all Environmental Laws.
Grantee shall indemnify and hold harmless Grantor for any and all liabilities, claims, demands,
losses, expenses, damages, fines, penalties, suits, proceedings, actions, and costs of actions, sanctions
asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or
equitable in nature and including, without limitation, court costs, and reasonable attorneys' fees and
attorneys' fees on appeal) to which Grantor may be subject or incur relating to the Property, which arise
from Grantee's willful misconduct or negligent acts or omissions.
6.11. Real Estate Taxes. The Grantor agrees to pay any and all real property taxes and
assessments levied by competent authority on the Protected Property and that Grantee shall have no duty
or responsibility to manage or maintain the Protected Property.
6.12. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep and maintenance of the Protected
Property, including the maintenance of adequate comprehensive general liability insurance coverage.
Grantor shall keep the Grantee's interests in the Protected Property free of any liens arising out of any
work performed for, materials furnished to or obligations incurred by Grantor.
6.13. Re-recording. The Grantee is authorized to record or file any notices or instruments
appropriate to assuring the perpetual enforceability of this Easement; for such purpose, the Grantor
appoints Grantee as Grantor's attorney -in -fact to execute, acknowledge and deliver any necessary
instrument on Grantor's behalf. Without limiting the foregoing, the Grantor agrees to execute any such
instruments upon request.
6.14. Definitions. The terms "Grantor" and "Grantee" as used herein shall be deemed to
include, respectively, the Grantor, Grantor's heirs, successors and assigns, and Grantee, its successors
and assigns.
6.15. Notices. Any notices required under this Easement shall be sent by registered or certified
mail, return receipt requested, to the following addresses or such addresses as may be hereafter specified
in writing:
14
GRANTOR: HCC Farms LLC
900 Fort St. Mall, Suite 1320
Honolulu, HI 96813
808-533-1500
With a copy to: Gregory Hendrickson
The Law Offices of Gregory D. Hendrickson
P.O. Box 124
Kealakekua, HI 96750
808-217-7773
GRANTEE: Hawaiian Islands Land Trust
P.O. Box 965
Wailuku, HI 96793
808-244-5263
6.15. Severability. If any provision of this Easement or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of the Easement and the application
of such provisions to persons or circumstances other than those as to which it is found to be invalid shall
not be affected thereby.
6.16. Liberal Construction. Any general rule of construction to the contrary notwithstanding,
this Easement shall be liberally construed in favor of the grant to affect the purpose of this Easement and
the policy and purpose of the Hawai'i Revised Statutes Chapter 198 and applicable federal law. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of
this Easement that would render the provision valid shall be favored over any interpretation that would
render it invalid.
6.17. Entire Agreement. This instrument sets forth the entire agreement of the parties with
respect to the Easement and supersedes all prior discussion, negotiations, understandings, or agreements
relating to the Easement, all of which are merged herein.
6.18. Termination of Rights and Obligations. A party's rights and obligations under this
Easement terminate upon transfer of the party's interest in the Easement or Protected Property, except
that liability for acts or omissions prior to transfer shall survive transfer.
6.19 No Merger. Should Grantee acquire fee title to the Protected Property, no merger shall
occur and this Easement and the fee shall continue to be managed as separate estates.
6.20 Reasonableness Standard. Except as otherwise set forth herein, Grantor and Grantee shall
follow a reasonableness standard and shall use their best to make any determinations that are necessary
or are contemplated to be made by them (either separately or jointly) under this Easement in a timely
manner and shall cooperate with one another and shall take all other reasonable action suitable to that
end.
15
TO HAVE AND TO HOLD the above -described Conservation Easement to the use, benefit, and
behalf of the Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, the Grantor has executed this Conservation Easement this C
day of 0,ttLW 6,C i( , 206.
•'
Z,..z
HCC Farms LLC
By its: A,.if e �
*1Nb_A t �
Date: De«-11
16
STATE OF HAWAI'I
Gl'NTY OF
SS.
On this day of f , 20 i, , before me appeared
'�J(OaJ �C� u R , to me personally known, who, being by me duly sworn, did say that
he is the person who executed the foregoing instrument which document consists of 2Y pages, as the
free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to
execute such instrument in such capacity.
•�� • Name of Notary �^
0 r,4/qy ' 7 �i � t i)
v84C Notary Public
cn� No O2-267
9; •.., State of Hawaii
�F HAWP��.••� .
""",,, My commission expires: J k - �1 lot
Doc. Date 11,1 g 'I ( # Pages ZZ
her
Notary Name ���� lh� r�u�. Circuit
LE G ...., S N . .'' ?'i ' Doc. Description: 4my� �V� Ca�+c�cV�r�w �aoewwfkk
* p�lgRYCV F,tvvYl�j l l (i
U86C
No,
of Signature Date
17
ACCEPTANCE
The oregoin Conservation Easement is hereby duly accepted by Grantee this day of
92015.
Hawaiian Islands Land Trust
C9. F-i,
�>GL'+-v (a. hsL� x
Title: c To i
STATE OF HAWAI'I )
COUNTY OF AUf
SS.
On this r)&0 day of b&elnir� , 20 , before me appeared
'yG0#6 - )qshC✓ , to me personally known, who, being by me duly sworn, did say
that he is the person who executed the foregoing instrument which document consists of pages, as
the free act and deed of such person, and if applicable, in the capacity shown, having been duly
authorized to execute such instrument in such capacity. 4.
;; �1* : _ Name of, Notary
T Gwen Vida
Notary Public Expiration Date: October 11, 2018
State of Hawai'i
My commission expires:
Doc. Date /'�'�� # Pages 2--2'
`�,
Notary Name�t# /A Circuit
;a �-
8Doc. Description:
Nota ly Signature Date
18
EXHIBIT A
Legal Description of Protected Property
PARCEL ONE:
PORTION OF GRANT 1613 TO G. B. KALAAU
LAND SITUATED ON THE SOUTHERLY SIDE OF 30-FT. WIDE HOMESTEAD ROAD AND APPROXIMATELY
2,700 FEET EASTERLY OF HAWAII BELT ROAD (MAMALAHOA HIGHWAY) (W.P.H. 8-F) AT
KALAMAKAPALA, KALAMAWAIAWAAWA AND KAHAULOA 1ST, SOUTH KONA, ISLAND AND COUNTY OF
HAWAII, STATE OF HAWAII.
BEING A PORTION OF GRANT 1613 TO G. B. KALAAU.
BEGINNING AT THE NORTHWESTERLY CORNER OF THIS PARCEL OF LAND, BEING ALSO THE
NORTHEASTERLY CORNER OF A PORTION OF GRANT 1186, APANA I TO HOLUALOA AND A POINT ON
THE SOUTHERLY SIDE OF 30-FT. WIDE HOMESTEAD ROAD, THE COORDINATES OF SAID POINT OF
BEGINNING REFERRED TO GOVERNMENT SURVEY TRIANGULATION STATION "LAE 0 KANONI"
BEING 19,542.50 FEET NORTH AND 8,707.65 FEET EAST AND RUNNING BY AZIMUTHS MEASURED
CLOCKWISE FROM TRUE SOUTH:
1.
242'
33' 15"
813.21
FEET ALONG THE SOUTHERLY SIDE OF 30-FT.
WIDE HOMESTEAD ROAD TO A 1/2 INCH PIPE (SET);
2.
2410
28' 45"
1,153.40
FEET ALONG LOT 1-A AND ALONG GRANT
5206 TO F. DENIZ TO A POINT;
3.
329'
19' ]F,
1,677.26
FEET ALONG LOT 1-A AND ALONG GRANT
5206 TO F. DENIZ TO A 1/2 INCH PIPE (FOUND);
4.
530
29'
1,376.29
FEET ALONG THE REMAINDER OF GRANT
1613 TO G. B. KALAAU TO A 1/2 INCH
PIPE IN CONCRETE (FOUND);
THENCE, FOR THE NEXT TEN (10) COURSES
FOLLOWING ALONG MIDDLE OF STONEWALL
AND
ALONG
LOT 4 AND ALONG GRANT 1 180 TO ELEMAKULE:
5.
1460
39'
59.49
FEET TO A 1/2 INCH PIPE (SET);
6.
1430
33'
28.80
FEET TO A 1/2 INCH PIPE (FOUND);
7.
1470
56'
33.10
FEET TO A '/z INCH PIPE (FOUND);
8.
144'
48'
68.30
FEET TO A'h INCH PIPE (FOUND);
9.
1450
16'
54.90
FEET TO A 1/2 INCH PIPE (FOUND);
19
10.
149' 06'
38.90 FEET TO A 1/2 INCH PIPE (FOUND);
11.
134° 36'
33.70 FEET TO A 1/2 INCH PIPE (FOUND);
12.
1500 14'
20.70 FEET TO A'/z INCH PIPE (SET);
13.
1260 42'
15.80 FEET TO A SPIKE (SET);
14.
1590 47'
25.00 FEET TO A SPIKE (SET);
15.
59' 28'
23.50 FEET ALONG LOT 4 AND ALONG GRANT 1 180
TO ELEMAKULE TO A POINT;
THENCE,
FOR THE
NEXT FOURTEEN (14) COURSES FOLLOWING ALONG HOG -WIRE FENCE AND ALONG
GRANT 1190
TO PALAKE:
16.
133'
26'
84.50 FEET TO A POINT;
17.
131 °
17'
116.00 FEET TO A POINT;
18.
1310
32'
106.50 FEET TO A POINT;
19.
129'
42'
132.90 FEET TO A POINT;
20.
1280
05'
26.70 FEET TO A POINT;
21.
1320
47'
29.70 FEET TO A POINT;
22.
135'
09'
53.40 FEET TO A POINT;
23.
1370
24'
112.30 FEET TO A POINT;
24.
139'
45'
110.40 FEET TO A POINT;
25.
1370
35'
89.30 FEET TO A POINT;
26.
1360
55'
85.30 FEET TO A 4 INCH
STEELFENCEPOST
27.
64'
47'
59.90 FEET TO A POINT;
28.
61 °
26'
60.30 FEET TO A POINT;
29.
640 58'
141.80
FEET TO A 3/4 INCH PIPE (FOUND)
30.
145' 30'
20"
597.77 FEET ALONG GRANT 1186, APANA 1 TO
HOLUALOA TO THE POINT OF BEGINNING
AND CONTAINING AN AREA OF 67.582 ACRES,
MORE OR LESS
20
PARCEL TWO:
PORTION OF GRANT 1186, APANA 1 TO HOLUALOA
LAND SITUATED ON THE SOUTHERLY SIDE OF 30-FT. WIDE HOMESTEAD ROAD AND
APPROXIMATELY 2,300 FEET EASTERLY OF HAWAII BELT ROAD (MAMALAHOA HIGHWAY)
(W.P.H. 8-F) AT KALAMAKAPALA, SOUTH KONA, ISLAND AND COUNTY OF HAWAII, STATE
OF HAWAII.
BEING A PORTION OF:
GRANT 1186, APANA I TO HOLUALOA.
BEGINNING AT THE NORTHWESTERLY CORNER OF THIS PARCEL OF LAND, BEING ALSO
THE NORTHEASTERLY CORNER OF PARCEL 1-A AND A POINT ON THE SOUTHERLY SIDE OF
30-FT. WIDE HOMESTEAD ROAD, THE COORDINATES OF SAID POINT OF BEGINNING REFERRED
TO GOVERNMENT SURVEY TRIANGULATION STATION "LAE 0 KANONI" BEING 19,225.03 FEET
NORTH AND 8,258.53 FEET EAST AND RUNNING BY AZIMUTHS MEASURED CLOCKWISE FROM
TRUE SOUTH:
1. 234' 44' 40"
2. 3250 30' 20"
3. 540 32' 30"
550.00 FEET ALONG THE SOUTHERLY SIDE OF 30-FT.
WIDE HOMESTEAD ROAD TO A POINT;
597.77 FEET ALONG GRANT 1613 TO G. B. KALAAU TO
A 3/4 INCH PIPE;
532.60 FEET ALONG GRANT 1190 TOPALAKE TO A 1/2
INCH PIPE IN CONCRETE (FOUND);
THENCE, FOR THE NEXT THREE (3) COURSES FOLLOWING ALONG PARCEL 1-A AND
ALONG THE REMAINDER OF GRANT 1186, APANA I TO HOLUALOA:
4. 143' 50' 30" 275.46 FEET TO A 1 /2 INCH PIPE IN CONCRETE (FOUND);
5. 153' 33' 49.79 FEET TO A POINT;
6. 142' 05' 30" 275.27 FEET TO THE POINT OF BEGINNING AND
CONTAINING AN AREA OF 7.408 ACRES, MORE
OR LESS.
END OF EXHIBIT A
21
LEGEND FOR HCC FARMS LX