HomeMy WebLinkAboutPL-SMA-2022-000018, PL-SPP-2022-000018 01.06.23 K. POMEROY & K. TOUBMAN TESTIMONYDeVera, Ashley
From: Katherine <k2pome@gmail.com>
Sent: Friday, January 6, 2023 1:50 PM
To: LPCtestimony
Cc: Karl Toubman; Katherine
Subject: TESTIMONY REGARDING Applicant: AHU POHAKU HOOMALUHIA LLC
Attachments: 4 fences blocking access.jpg; 4 fences marked.jpg; western coastal fence.jpg;
PCRS.jpeg; BOC Doc 2009-829853 Public Access.pdf; 4 fences blocking public
access.pdf; 010623 Plannning Commission Letter.pdf
Please find attached our 1/6/23 testimony and supporting documents. The testimony is in this email and
attached as a PDF.
Thank you,
Katherine Pomeroy and Karl Toubman
January 6, 2023
To: Leeward Planning Commission / Kona Planning Office
West Hawaii Civic Center
74-5044 Ane Keoholkalole Hwy, Building E,
Kailua-Kona, HI 96740
From: Karl Toubman and Katherine Pomeroy
PO Box 1556, Kapa'au, HI 96755
Cell: 808.895.1911
RE: Applicant: AHU POHAKU HOOMALUHIA LLC ( Formerly Robert Watkins and Jean Sunderland). (PI- SMA -
2022 -000018).
Special Permit (SPP 01-000006 and PL -SPP 20222022-000018, Tax Map Key: 5-4-009:014
AND Application for an amendment to Special Permit No. 1117
Honorable Leeward Planning Commissioners,
As people who use Maluhia Road as an easement to our farm, and as members of the Kohala community, we are against
the proposed changes set forth in the applications cited above for the following reasons:
1. Maluhia Road is unsafe. Adding more traffic is foolish. According to the applicant's permit, that road needs
to be 20' wide. There are places where it is not, with steep cliffs preventing the 20' width. Along the west side
are 5 drisco water lines, further preventing widening of the road. There is no road maintenance agreement among
the 17 users of that easement. The overgrowth further exacerbates the blind curves on Maluhia Road. Maluhia
Road is not fit for the current traffic, let alone increasing it as proposed. Two cars cannot pass on Maluhia Road.
To our knowledge, the Retreat does not carry a current liability insurance policy for Maluhia Road. Are the
neighbors/Maluhia easement grantees subject to liability for accidents on Maluhia Road? The special permit
stipulates that HIR cannot use Union Mill Road or go through Kamehameha Park, although they have used Union
i
Mill for their Retreat on many occasions in the past. Another plan HIR had to ameliorate the Maluhia traffic was
to use shuttle buses. That never happened.
2. Hawaii Island Retreat will be on the real estate market soon. According to a Hawaii Life realtor, Hawaii
Island Retreat will soon be on the market for around $15-19,000,000. It appears that they want to add value to
their real estate at the expense of the community. On 12/28/22, I spoke with Jessica Andrews, the planner in
charge of this application. She was not aware of this fact. Why was this not disclosed to the planner in charge?
3. Much of the TMK is in a SMA and conservation zone. Where will the new building(s) be located? There
are already 3 buildings in the SMA that they use as their hotel/Retreat. How was this allowed? They have also
held wedding events in the restricted use zones.
4. They have not complied with the shoreline access condition of their special permit. It has been blocked
off and re-routed. The Public Access signs on Akoni Pule Hwy and Pratt Road were taken down for over a year
and before that the signs were not always posted. They just put some of the Public Access signs up again and
unlocked some of the public access gates recently, presumably so as to appear in compliance.
5. The entire Public Access should be walked by a planner with the attached public access doc and map
as a reference (attached). Most alarming is that coastal public access going east is blocked by what appears to by
4 hog wire fences that extend to the coastal cliffs (see attached map of eastern section). The most westerly fence
has no gate (see attached photos). Two of the middle fences have gates near the coastline, but are burdened with
billy goats and cattle at various times. Even if someone climbed the first fence at their peril on the cliff (and it
appears that some people have done so), they would still have to chance the gauntlet of the livestock. It is hard to
tell from a distance, but it appears that the fourth, most easterly fence has no gate, thus restricting coastal access
through the adjacent Lot 22 from Lot 16. The coastal public access has been blocked with fencing for easily over
10 years.
6. Failure to comply with several conditions of SP NO. 1117. They have not been "good neighbors." The
most glaring example (and there are many) is that the now defunct Honopueo Community Association members
were forced to pay for Maluhia Road improvements that was required by the county for their Special Permit.
None of the other owners have a special permit and could use that road as it was. HIR then sued the neighbors to
get additional compensation for those improvements. There was no countersuit, and the Retreat got less than half
(about $4500 per lot) of what they originally sought ($10,000 per lot).
7. Will the shoreline public access be preserved after the PCRS? The Retreat is applying for another PCRS
to restrict the Retreat to 5 acres and retain the other land that has the currently blocked shoreline public access on
it. See attached photo, which is posted on Lokahi Road, NOT on Akoni Pule Hwy. The community should
finally have the ENTIRE shoreline public access open, unburdened, accessible, and safe.
8. Where would they get the water for this project? They only have a 5/8" water meter on Akoni Pule for
county water.
Thank you for attention to these longstanding concerns.
Sincerely,
Karl Toubman and Katherine Pomeroy
TMK 5-4-009-024-000 Parcel 54009024000
Attachments
1. BOC doc 2009-829853
2
2. Map of eastern shoreline public access from BOC doc 2009-829853
3. Three photos of burdened public access
4. PCRS sign photo on Lokahi Road
January 6, 2023
To: Leeward Planning Commission / Kona Planning Office
West Hawaii Civic Center
74-5044 Ane Keoholkalole Hwy, Building E,
Kailua-Kona, HI 96740
From: Karl Toubman and Katherine Pomeroy
PO Box 1556, Kapa'au, HI 96755
Cell: 808.895.1911
RE: Applicant: AHU POHAKU HOOMALUHIA LLC ( Formerly Robert Watkins and Jean Sunderland).
( PI- SMA -2022-000018).
Special Permit (SPP 01-000006 and PL -SPP 20222022-000018, Tax Map Key: 5-4-009:014
AND Application for an amendment to Special Permit No. 1117
Honorable Leeward Planning Commissioners,
As people who use Maluhia Road as an easement to our farm, and as members of the Kohala community,
we are against the proposed changes set forth in the applications cited above for the following reasons:
1. Maluhia Road is unsafe. Adding more traffic is foolish. According to the applicant's permit, that
road needs to be 20' wide. There are places where it is not, with steep cliffs preventing the 20'
width. Along the west side are 5 drisco waterlines, further preventing widening of the road.
There is no road maintenance agreement among the 17 users of that easement. The overgrowth
further exacerbates the blind curves on Maluhia Road. Maluhia Road is not fit for the current
traffic, let alone increasing it as proposed. Two cars cannot pass on Maluhia Road. To our
knowledge, the Retreat does not carry a current liability insurance policy for Maluhia Road. Are
the neighbors/Maluhia easement grantees subject to liability for accidents on Maluhia Road? The
special permit stipulates that HIR cannot use Union Mill Road or go through Kamehameha Park,
although they have used Union Mill for their Retreat on many occasions in the past. Another plan
HIR had to ameliorate the Maluhia traffic was to use shuttle buses. That never happened.
2. Hawaii Island Retreat will be on the real estate market soon. According to a Hawaii Life
realtor, Hawaii Island Retreat will soon be on the market for around $15-19,000,000. It appears
that they want to add value to their real estate at the expense of the community. On 12/28/22, I
spoke with Jessica Andrews, the planner in charge of this application. She was not aware of this
fact. Why was this not disclosed to the planner in charge?
3. Much of the TMK is in a SMA and conservation zone. Where will the new building(s) be
located? There are already 3 buildings in the SMA that they use as their hotel/Retreat. How was
this allowed? They have also held wedding events in the restricted use zones.
4. They have not complied with the shoreline access condition of their special permit. It has
been blocked off and re-routed. The Public Access signs on Akoni Pule Hwy and Pratt Road were
taken down for over a year and before that the signs were not always posted. They just put some
of the Public Access signs up again and unlocked some of the public access gates recently,
presumably so as to appear in compliance.
5. The entire Public Access should be walked by a planner with the attached public access doc
and map as a reference (attached). Most alarming is that coastal public access going east is
blocked by what appears to by 4 hog wire fences that extend to the coastal cliffs (see attached
map of eastern section). The most westerly fence has no gate (see attached photos). Two of the
middle fences have gates near the coastline, but are burdened with billy goats and cattle at various
times. Even if someone climbed the first fence at their peril on the cliff (and it appears that some
people have done so), they would still have to chance the gauntlet of the livestock. It is hard to
tell from a distance, but it appears that the fourth, most easterly fence has no gate, thus restricting
coastal access through the adjacent Lot 22 from Lot 16. The coastal public access has been
blocked with fencing for easily over 10 years.
6. Failure to comply with several conditions of SP NO. 1117. They have not been "good
neighbors." The most glaring example (and there are many) is that the now defunct Honopueo
Community Association members were forced to pay for Maluhia Road improvements that was
required by the county for their Special Permit. None of the other owners have a special permit
and could use that road as it was. HIR then sued the neighbors to get additional compensation for
those improvements. There was no countersuit, and the Retreat got less than half (about $4500
per lot) of what they originally sought ($10,000 per lot).
7. Will the shoreline public access be preserved after the PCRS? The Retreat is applying for
another PCRS to restrict the Retreat to 5 acres and retain the other land that has the currently
blocked shoreline public access on it. See attached photo, which is posted on Lokahi Road, NOT
on Akoni Pule Hwy. The community should finally have the ENTIRE shoreline public access
open, unburdened, accessible, and safe.
8. Where would they get the water for this project? They only have a 5/8" water meter on Akoni
Pule for county water.
Thank you for attention to these longstanding concerns.
Sincerely,
Karl Taubman and Katherine Pomeroy
TMK 5-4-009-024-000 Parcel 54009024000
Attachments
1. BOC doc 2009-829853
2. Map of eastern shoreline public access from BOC doc 2009-829853
3. Three photos of burdened public access
4. PCRS sign photo on Lokahi Road
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Notice Pursuant to
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bequest: Consolidation of
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existing lotsarld
resubdivision into two dots
Number of Lots: 2
Size of Property: 53.433 Acres
TaxMap Key: 5-4-.009: 014 &
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LAND COURT
Return By Mail [] Pick -Up n To:
CARLSMITH BALL LLP
STEVEN S.C. LIM
121 Waianuenue Avenue
Hilo, Hawaii 96720
REGULAR SYSTEM
TITLE OF DOCUMENT:
AFFIDAVIT OF STEVEN S.C. LIM
RE ERRATA FLY SHEET
TAX MAP KEY(S): 5-4-009:005 and 014 4826-4422-9123/03-02-09
(This document consists of 3 pages.)
AFFIDAVIT OF STEVEN S.C. LIM
RE ERRATA FLY SHEET*.
STATE OF HAWAII
) SS.
COUNTY OF HAWAII
STEVEN S.C. LIM, being first duly sworn on oath, deposes and says that:
1. He is a partner in the law firm of Carlsmith Ball LLP, attorney for Declarant
Robert R. Watkins and Jean M. Sunderland, husband and wife, fee owners Robert R.
Watkins and Jean M. Sunderland, husband and wife, are the owners in fee simple of the
following: (a) Lincoln Burial Plot, being further identified as Tax Map Key No.
(3) 5-4-009:005, (b) Lot 16, being further identified as Tax Map Key No. (3) 5-4-009:020,
and (c) as to an undivided 50% interest in and to Lot 9, being a portion of Grant 2732 to
Kamaka, being further identified as Tax Map Key No.: (3) 5-4-009:014, and Charles A.
Anderson and Lisa L. Anderson, husband and wife, are the owners in fee simple, as to an
undivided 50% interest in and to Lot 9, being a portion of Grant 2732 to Kamaka, being
further identified as Tax Map Key No. (3) 5-4-009:014.
2. The fly sheet attached to the Declaration of Public Access Easements
recorded in the Bureau of Conveyances of the State of Hawaii on February 27, 2009 as
Document No. 2009-029853, erroneously referenced the instrument as a Declaration of
Access and Utility Easements, and should have referenced the instrument as a Declaration of
Public Access Easement.
FURTHER YOUR AFFIANT SAYETH NAUGHT.
- 2 -
LAND COURT
Return By Mail i l Pick -Up [11To:
STEVEN S.C. LIM
CARLSMITH BALL LLP
121 Waianuenue Avenue
Hilo, HI 96720
THE ORIGINAL OF THIS DOCUMENT
RECORDED AS FOLLOWS:
STATE OF HAWAII
BUR2AU OF CONVEYANCES
Doc 2009.029818
FEB 27, 200810:00 AM
REGULAR SYSTEM
TOTAL NUMBER OF PAGES:
TITLE OF DOCUMENT:
DECLARATION OF ACCESS AND UTILITY EASEMENTS
PARTY TO DOCUMENT:
DECLARANT:
ROBERT R. WATKINS and JEAN M. SUNDERLAND, husband and
wife, whose mailing address at Post Office Box 63, Hawi, Hawaii 96755,
and CHARLES A. ANDERSON and LISA L. ANDERSON, husband
and wife, whose mailing address is Post Office Box 367, Paauilo, Hawaii
96776
TAX MAP KEYS: (3) 5-4-009:005 and 014
4834-0692-5059/1/8/09
STATE OF HAWAII
) SS:
COUNTY OF HAWAII
On this MARckt 3 , 2009, before me personally
appeared STEVEN S.C. LIM, 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 to execute such instrument in such
capacity.
4. 46 UMW _ 1,..
•1.. IPI wivo-
lifiliesso
Nath LEOANNALISSA 1iGN�)
Notary Public, State of Hawaii
My commission expires: to - 14--11)
NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Affidavit of Steven S.C. Lim re Errata Fly Sheet
Document Date: Mstrzc.t 3 , 2009
No. of Pages (including this page): Three (3)
Jurisdiction (in which notarial act is performed): Third Circuit
Signati re of Notary D
LEOANNALISSA YUNG
r
MA/2a/ 3 2609
of :t'tarization and
erti 's ion Statement
Printed Name of Notary
DECLARATION OF PUBLIC ACCESS EASEMENTS
This Declaration of Public Access Easements ("Declaration") is made this d 9
DeambV" , 2008, by ROBERT R. WATKINS and JEAN M. SUNDE day of
BLAND, husband
and wife, whose mailing address at Post Office Box 63, Hawi, Hawaii 96755 and CHARLES A.
ANDERSON and LISA L. ANDERSON, husband and wife, whose mailing address is Post
Office Box 367, Paauilo, Hawaii 96776 (hereinafter collectively referred to as "Declarant").
RECITALS:
WHEREAS, ROBERT R. WATKINS and JEAN M. SUNDERLAND, husband and wife,
are the owners in fee simple of the following: (a) Lincoln Burial Plot, being further identified as
Tax Map Key No. (3) 5-4-009:005, (b) Lot 16, being further identified as Tax Map Key No.
(3) 5-4-009:020, and (c) as to an undivided 50% intereset in and to Lot 9, being a portion of
Grant 2732 to Kamaka, being further identified as Tax Map Key No.: (3) 5-4-009:014;
WHEREAS, CHARLES A. ANDERSON and LISA L. ANDERSON, husband and wife,
are the owners in fee simple, as to an undivided 50% interest in and to Lot 9, being a portion of
Grant 2732 to Kamaka, being further identified as Tax Map Key No. (3) 5-4-009:014;
WHEREAS, JEAN M. SUNDERLAND is the Subdivider of those certain real properties
being the consolidation of Lot 9, being a portion of Grant 2732 to Kamaka, and the Lincoln
Burial Plot, and the resubdivision into Lots 9A and 9B, situate at Hanaula, District of North
KohalX County and State of Hawaii, under Subdivision Application No. 05-000042 (the
"Project");
WHEREAS, pursuant to the provisions of Hawaii Revised Statutes Section 46-6.5
relating to Public Access, the County of Hawaii has adopted Hawaii County Code Chapter 34
(Public Access) which provides for implementation of public access over private property in
appropriate locations to the ocean, shorelines and mountain areas by requiring dedication of land
for such public rights-of-way by fee or easement as a condition precedent to final subdivision
approval or the issuance of a building permit for a multiple -family development where adequate
-2-
public access is not already provided, including provisions requiring the County of Hawaii
("County") to be responsible for all improvement costs, liability and maintenance issues;
WHEREAS, in order to assure that public access is provided within the Project to and
along designated shoreline access areas, the Declarant hereby agrees to be bound by, and to
encumber the Project identified and depicted on Exhibit 1, attached hereto and incorporated
herein by reference (collectively the "Subject Property"), by recordation of this Declaration in
the Bureau of Conveyances of the State of Hawaii, and/or the Land Court, as applicable; and
WHEREAS, the recordation of this Declaration at the Bureau of Conveyances of the
State of Hawaii, and/or the Land Court, as applicable, shall constitute full and final compliance
with all public access requirements of Section 46-6.5, Hawaii Revised Statutes ("HRS"), Chapter
205A, HRS, Chapter 343, HRS, Ala Loa and Ala Kahakai, Chapters 23 (Subdivision) and 34
(Public Access), Hawaii County Code, and Subdivision Application No. 05-000042.
NOW, THEREFORE, The Declarant hereby declares and the County agrees to the
following perpetual non-exclusive easements for vehicular and pedestrian public access over,
upon, across and through the Subject Property, which shall be appurtenant to, and shall run with
each respective Lot as approved under Subdivision Application No. 05-000042 as further
described hereinbelow and depicted on Exhibit 1, attached hereto and incorporated herein by this
reference.
I. DECLARATION OF EASEMENTS
4.0
Y
Declarant further declares, and the County hereby acknowledges and accepts, that each
Lot within the Subject Property, which is encumbered by one or more of the public access
rights-of-way designated herein, shall be held, sold, conveyed, encumbered, leased, occupied and
improved, subject to the limitations, restrictions, easements, covenants and conditions set forth in
this Declaration, all of which are established, declared and agreed to be for the purpose of
enhancing and protecting the value, desirability, attractiveness or usefulness of public access to
the ocean, shorelines and/or mountain areas through the Subject Property, as applicable. These
limitations, restrictions, easements, covenants and conditions shall run with the land and shall be
binding upon all persons having or who acquire any right, title or interest in and to any Lot,
which is encumbered by one or more of the public access rights-of-way designated herein,
(regardless of whether any provision of this Declaration specifically so provides), shall be
subject to the terms and conditions of the Public Access Plan on file with the Planning
Department in Special Management Use Permit No. 417 and Special Permit No. 1117, and shall
inure to the benefit of the County and owner of each Lot, but only to the extent expressly
provided herein. Notwithstanding anything contained in any deed, agreement or other
instrument to the contrary, the public access easements set forth herein may only be amended by
written agreement of the owner(s) of the affected Lot and the County.
The Public Access Easements shall consist of two (2) perpetual non-exclusive easements
for vehicular access purposes, and eight (8) perpetual non-exclusive easements for pedestrian
purposes over, upon, across and through the Subject Property owned by Declarant, as more
particularly depicted on Exhibit 1, attached hereto and incorporate herein by reference.
Declarant expressly reserves their protections and rights under Hawaii Revised Statutes Chapter
520, relating to Landowners' Liability.
The public shall have use of the private vehicular easements for the purpose of accessing
the appurtenant public pedestrian access easements as follows:
A. Vehicular Easements. The vehicular access easements shall not be public
highway and the County assumes no responsibility for the maintenance of the
vehicular access easements.
1. Easement J-1 for vehicular access purposes, being 20 -ft. wide containing
an area of 0.024 acre, affecting Lot 9B (Extfibit 2).
2. Easement J-2 for vehicular access purposes, being 20 -ft. wide containing
an area of 0.355 acre, affecting Lot 9B (Exhibit 3).
B. Pedestrian Easements.
1. Easement PA -1 for pedestrian access purposes being 4 -ft. wide footpath
15 to 20 ft. from top of cliff, containing an area of 0.128 acre, affecting
Lot 9A (Exhibit 4);
2. Easement PA -2 for pedestrian access purposes being 4 -ft. wide, containing
an area of 0.072 acre, affecting Lot 9B (Exhibit 5);
-4-
3. Easement PA -3 for pedestrian access purposes being 4 -ft. wide, containing
an area of 0.176 acre, affecting Lot 9B (Exhibit 6);
4. Easement PA -4 for pedestrian access purposes being 4 -ft. wide, containing
an area of 0.005 acre, affecting Lot 9B (Exhibit 7);
5. Easement PA -5 for pedestrian access purposes being 4 -ft. wide, containing
an area of 0.021 acre, affecting Lot 9B (Exhibit 8);
6. Portion of Easement H for pedestrian public access purposes, containing
an area of 0.269 acre, affecting Lot 9-B (Exhibit 9);
7. Easement H for pedestrian public access purposes, containing an area of
0.671 acre, affecting TMK: (3) 5-4-009:020 (por.) (Exhibit 10); and
8. Easement A-1 for pedestrian access purposes being 4 -ft. wide, containing
an area of 5,315 square feet, affecting TMK: (3) 5-4-009:020 (por.)
(Exhibit 11).
II. MISCELLANEOUS PROVISIONS
A. Maintenance and Control of the Public Access Easements. The Declarant shall be
solely responsible for maintaining, controlling, insuring and repairing the
vehicular and pedestrian public access easements within the Subject Property, and
any and all improvements constructed upon and/or located within said public
access easements, in a good and safe condition, ordinary wear and tear excepted.
B. Statutory Authority. The Declarant agrees that this Declaration of Public Access
Easements is intended to comply with the objectives and policies relating to
shoreline access set forth in Chapter 205A, as amended, of the Hawaii Revised
Statutes. The Declarant further agrees that the use of the Public Access
Easements by the general public for the purposes permitted hereunder constitutes
use for "recreational purposes" within the meaning of the Hawaii Recreational
Use Statute, Hawaii Revised Statutes Chapter 520, Landowners' Liability.
C. Reserved Right to Amend. Notwithstanding anything contained herein to the
contrary, Declarant hereby reserves the right to amend this Declaration, and to file
and record any Grant of Public Access Easements, at its sole discretion, without
the consent or joinder of any Project lot owner, occupant, mortgagee, lien holder
or any other person or entity for the purpose of granting and recording the
surveyed location of the Public Access Easements and meeting any requirement
imposed by any applicable law, any federal, state or county government, any
governmental or judicial action, order or decree, any institutional mortgage lender
or any governmental or quasi -governmental agency including, without limitation,
the Federal National Mortgage Association, Federal Home Loan Mortgage
-60
-5-
Corporation, the U.S. Department of Housing and Urban Development or the
Office of Veterans Administration. Each and every Project lot owner, occupant,
mortgagee, lien holder and other party acquiring an interest in the Project, or the
Project lots therein, by such acquisition, consents to such amendments and Grant
as described herein; and appoints Declarant and its assigns, whichever may be
applicable, his or her attorney-in-fact with full power of substitution to execute
and deliver such documents and instruments and to do such things on his or her
behalf, which grant of such power, being coupled with an interest, is irrevocable
for the term of said reserved rights, and shall not be affected by the disability of
such party or parties. No amendment hereto shall negate or adversely impact any
of Declarant's reserved rights hereunder without the prior written consent of
Declarant.
Declarant shall have the absolute right, notwithstanding the lease, sale or
conveyance of any Project lots and without being required to obtain the consent or
joinder of any Project lot owner(s), mortgagee, lien holder, or other persons, to
record and/or file any cancellations, amendments, releases and any and all other
instruments necessary or appropriate for the purposes of effecting the public
access easements. Each and every party acquiring an interest in any Project lot or
lands covered by this Declaration, by such acquisition, consents to such
amendments, deletion and removal and to the filing or recordation of such
documents as may be necessary or convenient to effect the same, agrees to
execute such document and do such other things on its behalf, which grant of such
power, being coupled with an interest, is irrevocable and shall not be affected by
the disability of any such party.
In the exercise of the foregoing rights, Declarant may at any time: (i) file and
process a revised final plat map with the County of Hawaii for the designation of
the public access easements, (ii) record the affidavit of the surveyor with metes
and bounds description and map of said public access easements with the Bureau
of Conveyances and/or Land Court, as applicable, (iii) if deemed necessary record
amendmentsio this Declaration, and (iv) record the cancellation of said
Declaration.
The rights reserved to Declarant under this Section shall extend to Declarant, and
their successors and assigns.
D. Termination. Unless earlier terminated pursuant to the express terms hereof, this
Declaration shall remain in effect perpetually until cancelled or terminated by the
Declarant.
E. Severability and the Rule Against Perpetuities. If any provision of this
Declaration, or any section, sentence, clause, phrase or word or the application
thereof in any circumstances shall be held invalid, the validity of the remainder of
this Declaration and of the application of such provision, sentence, clause, phrase
or word under any other circumstances shall not be affected. If any provision of
this Declaration would violate the Rule Against Perpetuities or any other
limitation on the duration of the provisions contained herein imposed by law, then
such provisions shall be deemed to remain in effect only for the maximum
permissible period permitted by law or until 21 years after the death of the last
survivor of the now living descendants of former President William Clinton and
of President George W. Bush, whichever is later.
F. Interpretation. The captions and headings hereof are for convenience only and
shall not be considered to expand, modify or aid in the interpretation, construction
or meaning of this Declaration. As used herein, the singular shall include the
plural and the masculine shall include the feminine and neuter.
G. Binding Effect. This Declaration shall inure to the benefit of, and be binding upon
Declarant, the Project and Subject Property, the Project lot owner(s), and/or the
County of Hawaii, as appropriate, and their respective heirs, personal
representatives, successors, and assigns.
H. Assignment to State of Hawaii and/or United States of America. Upon the
precondition that all applicable provisions of this Declaration that benefit the
Declarant and its respective heirs, personal representatives, successors and assigns
are in full force and effect, and with the prior written consent of the Declarant, the
Declarant may assign its rights, obligations and duties under this Declaration in
whole or in part to the applicable department or agency of the State of Hawaii,
County of Hawaii and/or the United States of America. In the event of any such
assignment, in whole or part, the Declarant and its successors and assigns shall be
released as to the agreed maintenance and liability obligations for the portion(s)
so assigned.
Applicable Law. This Declaration shall be governed by the laws of the State of
Hawaii both as to interpretation and performance.
J. Counterparts/ Facsimile Signatures. This Declaration may be executed in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument, and in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK
PORTION OF EASEMENT J-1
For Access and Utility Purposes
(20 R. wide)
Beginning at the west corner of this parcel of land, also being the south corner of
Easement J on the westerly boundary of Lot 9B (Portion of Grant 2732 to Kamaka) and the
easterly boundary of Lot 8 (Portion of Grant 2732 to Kamaka), the coordinates of said point of
beginning referred to Government Survey Triangulation Station "PUU 0 NALE" being
16,550.10 feet north and 14,978.92 feet east and running by azimuths measured clockwise from
true south:
1. 172° 00'
2. 262° 00'
3. 352° 00'
4. 18° 51' 32"
U.
UCENSED
PROFESSIONAL
LAND
SURVEYOR
No. 2671
I U•
July 8, 2008
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
71.98 feet along Easement J (Lot 8 (Portion of Grant 2732
to Kamaka));
20.00 feet along the remainder of Easement J-1;
32.48 feet along Easement J-2;
44.27 feet to the point of beginning and containing an area
of 0.024 Acre.
Tax Map Key: 3`I Div. 5-4-09:Portion 14
1
l
RO +NEY KAWAMURA
Licensed Professional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
1 of 1
-y.
EXHIBIT 2
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EXHIBIT I
STATE OF HAWAII
COUNTY OF HAWAII
dated
The attached document: Declaration of Public Access Easements,
DEC 2 9 2008
which consists of - e (? k ( J
y � ) pages (including this page), was
executed by LISA L. ANDERSON on this c24114L day of
008 in the Third Judicial
Circuit of the State of Hawaii, to me personally known to be the person, who personally
appeared before me and 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 to execute such instrument in such capacity.
Printed
Name:
MONIQUE M. EDWARDS
NOTARY PUBLIC, STATE OF HAWAII
COMMISSION EXPIRES: 11/4/2010
My commission expires:
STATE OF HAWAII
COUNTY OF HAWAII
dated
The attached document: Declaration of Public Access Easements,
DEC292008
which consists of
- /i /AL ( ) pages (including this page), was
executed by CHARLES A. ANDERSON on this Qtfiltday of _f.kwilif.x 2008 in the Third
Judicial Circuit of the State of Hawaii, to me personally known to be the person, who personally
appeared before me and 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 to execute such instrument in such capacity.
Printed
Name:
[Notary Signature]
MONIQUE M. EDWARDS
NOTARY PUBUC, STATE OF HAWAII
COMMISSION EXPIRES: 11/4/2010 /
i
My commission expires:
IN WITNESS WHEREOF, the Declarant has hereunto caused this Declaration to be
executed as of the date hereinabove set forth.
ROBERT R. WATKINS
JEAN M. SUNDERLAND
CHA ES A. ANDERSON
-8-
IN WITNESS WHEREOF, the Declarant has hereunto caused this Declaration to be
executed as of the date hereinabove set forth.
CHARLES A. ANDERSON
LISA L. ANDERSON
-8-
STATE OF HAWAII
COUNTY OF HAWAII
SS.
The attached document: Declaration of Public Access Easements,
dated a E d - E E -r 9, 02 0 p .7
which consists of 74-r4-.717--C-r,-,T,
(c -/ ) pages (including this page), was
za-
executed by ROBERT R. WATKINS on this /.da of
Y o�'c - . 200a in the Third
Judicial Circuit of the State of Hawaii, to me personally known to be the person, who personally
appeared before me and 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 to execute such instrument in such capacity.
Printed
Deme:
Mary Lou C. Igaacio
+.
My commission expires:
t'a t(ao tt /
NOTARY CERTIFICATION
J1
Doc. Date: 60 • # Pages:
Name: /-/Q ry �'� a �?7rwcioThIrd Cir;Uit
Doc. Description:f .r . ,� .7 v
f 4 c E E. P"iFSEr7173
n. p
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Sao V ..• 'QA, "':
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iUC./c
(q61WINIOStWiNita:%-t
s" 2 PUBLIC : O
* commission No. : *
cP •. 94-489.. P
•.4: OF Np;.
STATE OF HAWAII
COUNTY OF HAWAII
ss.
The attached document: Declaration of Public Access Easements,
dated e c= '
, u . f✓ 7c4. -t -ty -
which consists of
c=2 7 c.loj
n
( - ? ) pages (including this page), was
executed by JEAN M. S ► ERLAND on this / day of, 2004 in the Third
Judicial Circuit of the State of Hawaii, to me personally known to be the person, who personally
appeared before me and 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 to execute such instrument in such capacity.
Printed
Name:
P? 1.ou Igictamo
My commission expires:
NOTARY CERTIFICATION
Doc. Date: / Z ' # Pages: > i
Name: N,c r y It a C. Tsp.( es Third Circuit
Doc. Descriptial:
nit .%%, „n„rNq,,,,,•
b [ L etc €S1 f irSE7. s..v
oa+.
s
•8OF
'UC'
(nutar) pl`J is
„kako
�'".., OF N
CENTERLINE EASEMENT PA -5
For Public Access Purposes
(4 ft. wide)
Beginning at the north end of this easement on the southerly side of Centerline Easement
PA -3, the coordinates of said point of beginning referred to Government Survey Triangulation
Station "PUU 0 NALE" being 16,645.71 feet north and 15,442.65 feet east and running by
azimuths measured clockwise from true south:
1. 17° 00'
2. 350° 00'
3. 323° 00'
4. 345° 00'
May 7, 2008
HILO ENGINEERING, INC.
-. 484 Kalanikoa Street
Hilo, Hawaii 96720
97.00 feet;
40.00 feet;
35.18 feet;
52.74 feet to Easement H and containing an area of 0.021
Acre.
Tax Map Key: 3rd Div. 5-4-09:Portion 14
RO NEY . KAWAMURA
Licensed Professional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
1 of 1 EXHIBIT 8
Portion of Easement H
For Public Access Purposes
Beginning at the east corner of this parcel of land, also. being the south corner of Lincoln
Burial Plot Easement on the westerly boundary of Lot 16 (Portion of Grant 2754 to Kalama 1),
the coordinates of said point of beginning referred to Govemrnent Survey Triangulation Station
"PUU 0 NALE" being 16,337.86 feet north and 15,564.71 feet east and running by azimuths
measured clockwise from true south:
1. 39° 23' 35.00 feet along Lot 16 (Portion of Grant 2754 to Kalama
1);
2. 129° 23' 122.24 feet;
Thence along a curve to the left with a radius of 140.00 feet, the chord azimuth and distance
being:
3. 350° 59' 59" 163.50 feet;
4. 39° 23'
20.09 feet along Lot 16 (Portion of Grant 2754 to Kalama
1);
Thence along a curve to the right with a radius of 160.00 feet, the chord azimuth arid distance
being:
5. 184° 46' 03"
6. 324° 53'
b•R4
245.97 feet;
145.00 feet to the point of beginning and containing an area
of 0.269 Acre.
4
UCENSED 44%.
PROFESSIONAL br
LANG
SURVEYOR
No. 2671
1 1.1 •
May 7, 2008
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
Tax Map Key: 3r° Div. S-4-09:Portion 14
RO NE r M. KAWAMURA
Licensed Professional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
1 of 1
EXHIBIT 9
EASEMENT H
For Access and Utility Purposes
(20 ft. wide)
Beginning a the east corner of this parcel of land, also being the south corner of Lincoln
Burial Plot on the westerly boundary of Lot 16 (Portion of Grant 2754 to Kalama 1), the
coordinates of said point of beginning referred to Government Survey Triangulation Station
"PUU 0 NALE" being 16,337.86 feet north and 15,564.71 feet east and running by azimuths
measured clockwise from true south:
1. 39° 23' 35.00 feet along Lot 16 (Portion of Grant 2754 to Kalama
1);
2. 129° 23' 122.24 feet;
Thence along a curve to the left with a radius of 140.00 feet, the chord azimuth and distance
being:
3. 314° 51' 46" 266.09 feet;
4. 243° 00' 153.60 feet;
Thence along a curve to the right with a radius of 250.00 feet, the chord azimuth and distance
being:
5. 257° 46' 07" 127.46 feet;
Thence along a curve to the left with a radius of 80.00 feet, the chord azimuth and distance
being:
6. 239° 16' 0'1;':' 87.77 feet; +►
7. 206° 00' 123.61 feet;
Thence along a curve to the right with a radius of 100.00 feet, the chord azimuth and distance
being:
8. 233° 00' 90.80 feet;
9. 260° 00' 104.49 feet;
10. 29° 00'
25.74 feet along Lot 15 (Portion of Grant 2754 to Kalama
1);
11. 80° 00' 88.30 feet;
1 of 2
EXHIBIT 10
Thence along a curve to the left with a radius of 80.00 feet, the chord azimuth and distance
being:
12. 53° 00' 72.64 feet;
13. 26° 00' 123.61 feet;
Thence along a curve to the right with a radius of 100.00 feet, the chord azimuth and distance
being:
14. 59° 16' 07" 109.71 feet;
Thence along a curve to the left with a radius of 230.00 feet, the chord azimuth and distance
being:
15. 77° 46' 07" 117.26 feet;
16. 63° 00' 153.60 feet;
Thence along a curve to the right with a radius of 160.00 feet, the chord azimuth and distance
being:
17. 149° 00' 319.22 feet;
18. 324° 53'
oQ� UCENSED
!v PROFESSIONAL
++ LAND
'► SURVEYOR
.y_ No. 2671
M•
145.00 feet along Lincoln Burial Plot to the point of
beginning and containing an area of 0.671 Acre.
I U•
Revised: November 5, 2002
October 24, 2002
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
Tax Map Key: 3rd Div. 5-4-09:Portion 01
Licensed Professional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/04
2 of
LEGAL DESCRIPTION OF EASEMENT A-1, A 4.00 (FOUR) FOOT WIDE EASEMENT
FOR ACCESS PURPOSES
AFFECTING LOT 16, an 18.210 ACRE TRACT OF LAND (TMK (3) 5.4-009:020)
(Page 1 of 2)
Being 4.00 (four) feet wide along the North and West side of e
West side of Easement "C", lases a portion of Grant 2754 Kato � 1, at and along
County and State of Hawaii, containing an area of 5,315 square feet, mosituate re or sNonopueo
, an•
msd thus
bounded and described as per survey as follows:
Beginning at a point for the Northeast comer of this herein described
line of said Lot 16, being the West line of Lot 22 of this subdivision, saidbeing 9 the East,
8°11' from the common North corner of said Lot 18 and Lot 22 Pmt Ing d po.11int
feet,
beginning referred to Government Survey Triangulation , the coordinates being
ngid point of
,439.78
feet North and 16,946.32 feet East and running by azimuths measured � b°1Tr a South:
clockwise from Trete South:
Thence along the remainder of Grunt 2754 with the following
twenty-two (22) courses:
1. 8°11'00" 4.11
feet along Lot 22 to a point at Easement "VL -5`;
Thence
(7) courses the Easement "VL -5', with the following seven
2. 85°00'00" 108.34 feet to a point
3. 98°00'00" 158.41 feet to a point
Thence along a curve to the left with a radius of 45.00
feet, the chord azimuth and distance being:
4. 56°30'00" 59.64 feet to a point
5. 15°00'00" 4' 79.62
feet to a point
8. 35°00'00" 155.00 feet to a point
7. 27°00'00" 202.00
feet to a point
8. 19°00'00" 165.00
feet to a point
Thence along the Easement "C, with
(3) courses:following three
Thence along a curve to the left with a radius of 385.00
feet, the chord azimuth and distance being:
9. 34°30604" 73.80 feet to a point
10. 29°00'00" 78.20
feet to a point;
11. 23°00'00" 239.17
feet to a point
1
EXHIBIT 11
Continued Easement A-1,
12. 80°00'00" 4.77 feet along Easement "H" to a
point;
Thence upon and across said Lot 16, with the following ten
(10) courses:
13. 203°00'00" 241.98 feet to a point
14. 209°00'00" 78.41 feet to a point
Thence along a curve to the right with a radius of 389.00
feet, the chord azimuth and distance being:
15. 214°26'47" 73.83 feet to a point
16. 199°00'00" 164.54 feet to a point
17. 207°00'00" 202.56 feet to a point;
18.215°00'00" 154.57
feet to a point;
19. 195°00'00" 78.91
feet to a point
Thence along a curve to the right with a radius of 49.00
feet, the chord azimuth and distance being:
20. 236°30'01" 64.94 feet to a point;
21. 278°00'00" 157.95
feet to a point
22. 265°00'00" 108.82 feet the point of beginning and containing an area of 5315
square feet, more or less.
,.
Description prepared by:
October 14th, 2008
PATTISON LAND SURVEYING INC.
Thomas"G attison
Licensed Professional Land Surveyor
Certificate No. 10743, expires 4/30/10
2
y
Pg G. PgrTi.
LICENSED
PROFESSIONAL
LAND
SURVEYOR j
No. 10743
Ail v.
CENTERLINE EASEMENT PA -3
For Public Access Purposes
(4 ft. wide)
Beginning at the west end of this easement on the easterly side of Easement J-2, the
coordinates of said point of beginning referred to Government Survey Triangulation Station
"PUU 0 NALE" being 17,112.96 feet north and 15,270.67 feet east and running by azimuths
measured clockwise from true south:
1. 312° 30'
2. 269° 25'
3. 234° 21'
4. 310° 04'
5. 35° 44'
6. 20° 07'
7. 37° 14'
8. 21° 51'
9. 357° 26'
10. 350° 00'
11. 359° 40'
12. 235° 00'
180.00 feet;
110.00 feet;
70.00 feet;
12.03 feet;
91.00 feet;
52.00 feet;
96.00 feet;
55.00 feet;
50.00 feet;
60.00 feet;
'20.60 feet;
31.97 feet;
Thence along a curve to the left with a radius of 30.00 feet, the chord azimuth and distance
being:
13. 208° 30' 26.77 feet;
Thence along a curve to the right with a radius of 150.00 feet, the chord azimuth and distance
being:
14. 199° 00' 87.71 feet;
1 of 3
EXHIBIT 6
Thence along a curve to the right with a radius of 20.00 feet, the chord azimuth and distance
being:
15. 253° 30' 24.35 feet;
Thence along a curve to the left with a radius of 80.00 feet, the chord azimuth and distance
being:
16. 276° 30' 40.06 feet;
17. 262° 00' 70.00 feet;
Thence along a curve to the left with a radius of 100.00 feet, the chord azimuth and distance
being:
18. 235° 00' 90.80 feet;
Thence along a curve to the right with a radius of 160.00 feet, the chord azimuth and distance
being:
19. 229° 13' 30" 115.85 feet;
20. 250° 27' 70.00 feet;
Thence along a curve to the right with a radius of 400.00 feet, the chord azimuth and distance
being:
21. 258° 01' 105.34 feet;
Thence along a curve to the Left with a radius of 105.00 feet, the chord azimuth and distance;,,
being:
22. 212° 00' 168.99 feet;
23. 158° 25' 50.00 feet;
Thence along a curve to the left with a radius of 100.00 feet, the chord azimuth and distance
being:
24. 134° 42' 30" 80.42 feet;
Thence along a curve to the right with a radius of 70.00 feet, the chord azimuth and distance
being:
25. 153° 08' 93.92 feet;
2 of 3
26. 195° 16'
ti't
14
*
4
M.Kq
LICENSED
PROFESSIONAL
LAND
SURVEYOR
No. 2671
1 U•
May 7, 2008
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
G
18.22 feet to the ocean and containing an area of 0.176
Acre.
RO NEY ; . KAWAMURA
Licensed Pr • fessional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
Tax Map Key: 3`d Div. 5-4-09:Portion 14
3 of
CENTERLINE EASEMENT PA -4
For Public Access Purposes
(4 ft. wide)
Beginning at the north end of this easement on the southerly side of Centerline Easement
PA -3, the coordinates of said point of beginning referred to Government Survey Triangulation
Station "PUU 0 NALE" being 16,645.71 feet north and 15,442.65 feet east and running by
azimuths measured clockwise from true south:
1. 325° 00'
M.
UCENSED
PROFESSIONAL
LAND
SURVEYOR
No. 2671
I U
May 7, 2008
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
57.64 feet to Lincoln Burial Plot Easement and containing
an area of 0.005 Acre.
Tax Map Key: 3rd Div. 5-4-09:Portion 14
4.
RO EY . KAWVL. n_—
AMURA
Licensed Pr • fessional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
4,
1 of 1 EXHIBIT 7
CENTERLINE EASEMENT PA -2
For Public Access Purposes
(4 ft. wide)
Beginning at the east end of this easement on the westerly side of Easement J-2, the
coordinates of said point of beginning referred to Government Survey Triangulation Station
"PUU 0 NALE" being 17,141.33 feet north and 15,239.70 feet east and running by azimuths
measured clockwise from true south:
1. 312° 30' 61.66 feet;
2. 223° 45'
374.23 feet;
Thence following along the edge of cliff (15' to 20' away from edge of cliff) to top of gulch and
containing an area of 0.072 Acre.
May 7, 2008
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
V
Tax Map Key: 3rd Div. 5-4-09:Portion 14
1�t
RODNEY. KAWAMURA
Licensed Professional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
1 of 1
+l
EXHIBIT 5
CENTERLINE EASEMENT PA -1
For Public Access Purposes
(4 ft. wide footpath 15-20 ft. from top of cliff)
Beginning at the west end of this easement on the westerly side of Lot 9A (Portion of
Grant 2732 to Kamaka) and the easterly side of Lot 4 (Portion of Grant 2845 (Lot 2) to Rebecca
Kaleohaalulu), the coordinates of said point of beginning referred to Government Survey
Triangulation Station "PUU 0 NALE" being 18,357.31 feet north and 14,670.62 feet east and
running by azimuths measured clockwise from true south:
Following along the edge of cliff (15' to 20' away from edge of cliff) to the westerly side of Lot
913(Portion of Grant 2732 to Kamaka) and containing an area of 0.128 Acre.
/C4144.
LICENSED
PROFESSIONAL
LAND
SURVEYOR
No. 2671
rl �.
May 7, 2008
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
Tax Map Key: 3`d Div. 5-4-09:Portion 14
4.
1
•VA% r)
RO 'NEY . KAWAMURA
Licensed P . fessional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
1 of 1
4.
EXHIBIT 4
EASEMENT J-2
For Access and Utility Purposes
(20 ft. wide)
Beginning at the south corner of this parcel of land, also being the east corner of
Easement J-1, the coordinates of said point of beginning referred to Government Survey
Triangulation Station "PUU 0 NALE" being 16,592.00 feet north and 14,993.23 feet east and
running by azimuths measured clockwise from true south:
1.. 172° 00' 32.48 feet;
2. 210° 00' 100.00 feet;
Thence along a curve to the right with a radius of 200.00 feet, the chord azimuth and distance
being:
3. 220° 00' 69.46 feet;
Thence along a curve to the left with a radius of I25.00 feet, the chord azimuth and distance
being:
4. I95° 00' 143.40 feet;
5. 160° 00' 148.20 feet;
6. 222° 30' 81.28 feet;
7. 312° 30' 80.00 feet;
8. 222° 30' 88.94 feet; ,,,
9. 132° 30' 22.00 feet;
10. 222° 30' 20.00 feet;
11. 312° 30' 42.00 feet;
12. 42° 30' 128.94 feet;
13. 132° 30' 80.00 feet;
14. 42° 30' 49.14 • feet;
15. 340° 00' 136.06 feet;
1 of 2
EXHIBIT 3
Thence along a curve to the right with a radius of 145.00 feet, the chord azimuth and distance
being:
16. 15° 00' 166.34 feet;
Thence along a curve to the left with a radius of 180.00 feet, the chord azimuth and distance
being:
17. 40° 00' 62.51 feet;
18. 30° 00' 125.60 feet to the point of beginning and containing an area
of 0.355 Acre.
O} UCENSED \G
a PROFESSIONAL
LANG
* SURVEYOR s
vG No. 2671
1
May 7, 2008
HILO ENGINEERING, INC.
484 Kalanikoa Street
Hilo, Hawaii 96720
Tax Map Key: 3rd Div. 5-4-09:Portion 14
RO NE M. KAWAMURA
Licensed Professional Land Surveyor
Certificate No. 2671
Expiration Date of License: 4/30/10
2 of
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