PD Background Report BWA LLC (PL-SPP-2023-033)

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Law Offices of Yeh & Kim Windward Planning Commission December 21, 2022 Page 3 Commission was approved. The economic and other circumstances which have caused Applicant's non-performance were beyond Applicant's control and are not the result of Applicant's fault or negligence. As noted in previous annual progress reports, litigation to seize control over the board of the original applicant, World Botanical Gardens, Inc., together with the great recession of 2008 followed by an unusually slow economic recovery nationwide, interfered with the development of the visitor's center. Despite these difficulties, a zip line operation and Segway tour were constructed as part of the outdoor recreation experience offered to visitors. The aforementioned litigation, unfortunately, has not resolved but continues to wend its way through the judicial system with ongoing appeals. Section 25-2-21 of the Hawaii County Code tolls the time for performance of conditions involving specific time periods for appeals from decisions of the Planning Director. While that section does not specifically apply to decisions of the Planning Commission, it is within the inherent authority of the Commission in the issuance of special permits to determine that the time of performance for conditions may be tolled in analogous situations. More recently, after completing its final zipline segment in 2017 and receiving plan approval and building permits in 2018, simultaneous hurricane events and the Puna lava flow resulted in negative publicity, which had a noticeable effect on the Applicant's cash flow and Applicant's plans for proceeding with the visitor center construction. While 2019 saw improvement in the number of guests, the Covid-19 pandemic took a tremendous toll on Applicant's business operations, along with the wider Hawaii economy, with the many State and County of Hawaii restrictions imposed on residents and visitors alike, including stay-at-home orders, mandatory quarantine for visitors and returning residents, and the implantation of the safe-travels program. When the Special Permit was issued, visitor counts averaged approximately 80-90 visitors per day. More recently, the visitor counts have risen back to approximately 100 visitors per day. The number of vehicles traveling to and from the Applicant's site is between 25 to 35 vehicles per day. Uses of the visitor's center include those previously identified in the Special Permit application and approved by this Commission. Since then, the other outdoor recreational use offerings, as described herein, have been added to Applicant's operations. With the recent rebound in the visitor industry and improving economic situation in the State, County and elsewhere, Applicant is now encouraged and confident that it can proceed with funding for, and begin construction of, the proposed visitor center. 2. Granting of the time extension would not be contrary to the General Plan or Zoning Code or the original reasons for the granting of the Permit. Granting the requested time extension would not be contrary to the General Plan or Zoning Code or the original reasons for granting the Special Permit. There have been no significant changes to Applicant's plans for the development of the visitor center. As described