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HomeMy WebLinkAboutPD BACKGROUND REPORT (PL-SMA-2022-000018 & PL-SPP-2022-000018) BAhuPohakuHoomaluhia AmendSPP-SMA12/16/22 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND REPORT AHU POHAKU HO`OMALUHIA LLC (FORMERLY ROBERT WATKINS AND JEAN SUNDERLAND) AMENDMENT TO SPECIAL PERMIT NO. 1117 (PL-SPP-2022-000018) AMENDMENT TO SPECIAL MANAGEMENT AREA USE PERMIT NO. 417 (PL-SMA-2022-0000018) AHU POHAKU HO`OMALUHIA LLC (FORMERLY ROBERT WATKINS AND JEAN SUNDERLAND)has submitted applications for an amendment to Special Permit No. 1117 and Special Management Area(SMA)Use Permit No. 417 to increase the number of guest rooms from sixteen to thirty-six by constructing twenty additional guest rooms at Hawaii Island Retreat, on an approximately 5.0-acre portion of a 14.5-acre parcel of land situated in the Special Management Area and the State Land Use Agricultural District. The subject property is located at 54-250 Lokahi Road, approximately 1.2 miles northeast(makai) of Akoni Pule Highway, Hanaula and Honopueo, North Kohala, Hawaii, TNM: (3) 5-4-009:014. APPLICANT'S REQUEST 1. Applicant's Request and Reason for Request: The applicant is requesting to amend the existing Special Permit and SMA Use Permit, originally approved on August 2, 2001,to allow a 16-room permaculture and wellness retreat on an approximately 5.0-acre portion of a 14.5-acre parcel of land situated in the Special Management Area and the State Land Use Agricultural District. The applicant wishes to increase the number of guest rooms from 16 to 36 by building 20, 400-square foot hales with the goal of offering guests the option of single-occupancy rooms. The new hale structures consist of a bedroom and bathroom, with no individual kitchen facilities, and will be sited in a manner that does not disrupt or impact the existing garden and orchards. 2. Employees: The applicant states that there will be up to 5 new full and/or part-time employees with the addition of the proposed 20 guest rooms. 3. Project Timetable and Cost: The applicant intends to prepare construction plans upon approval of the requested amendments, with construction of 10 of the 20 units -1- commencing no later than 18 months after approval, and construction of the remaining 10 units commencing approximately 5 —6 years after approval. The projected cost of the additional 20 units is $1.8 million. 4. Landowner: Alm Pohaku Ho`omaluhia LLC. 5. Supportive Information: The applicant has submitted the attached in support of the request(Planning Department Exhibit 1 —Application to Amend Special Management Area Use Permit No. 417 and Special Permit No. 1117 received on June 14,2022). BACKGROUND INFORMATION 6. SMA Use Permit No. 417 and Special Permit No. 1117 and Amendments: The Planning Commission approved SMA Use Permit No. 417 (SMA 417) and Special Permit No. 1117 (SPP 1117) on August 2, 2001, to allow the establishment of a 16-room Hawaiian Permaculture and Wellness Retreat on approximately 5 acres of land in the Special Management Area and the State Land Use Agricultural District. Both permits were amended by the Planning Commission on January 30, 2004, to allow the use of septic tanks and soil absorption systems field in lieu of an aerobic septic system with a leach field for the retreat as was originally approved. In 2006, the applicant requested a 5- year time extension to comply with Condition No. 3 of SMA 417 and Condition No. 2 of SPP 1117,which required that the proposed retreat be established within 5 years of the effective date of the original permits. The Planning Director granted a 5-year time extension until August 2, 2011,to comply with the respective conditions. Also in 2006, the applicant submitted an application to amend both permits to allow overnight camping and related improvements on the subject property, a request that was subsequently withdrawn. Finally, the applicant submitted a status report on November 11, 2007, indicating compliance with the conditions of approval for both SMA 417 and SPP 1117 as required by the conditions of the respective permits. 7. Planning Director Initiated Review: In 2008, following receipt of complaints from surrounding property owners alleging that the applicant was using Union Mill Road to provide access to the subject property despite Condition No. 6 of SPP No. 1117 which prohibited access across this roadway to the site, and that an unpermitted cesspool had -2- been constructed on the property to service an unpermitted dwelling,the Planning Director notified the applicant that they would conduct an investigation and bring the matter before the Planning Commission. As part of the investigation, the Planning Director also determined that the applicant was not in compliance with Condition No. 6 of SPP 1117, requiring Department of Transportation (DOT) approval of the access drive connection at Akoni Pule Highway. According to the Planning Director at the time, the action brought these matters before the Planning Commission for their review,not to initiate revocation of the SMA and SPP permits and recommended that the applicants come into compliance with all relevant conditions of approval. 8. Notice of Violation and Order: In 2015, following a complaint alleging that the subject property was being used for weddings and that a windmill did not comply with minimum side yard setback requirements, zoning inspectors conducted a site visit and issued a Notice of Violation and Order. The applicant provided a response stating that the subject property no longer hosted weddings or special events. County records show that the applicant submitted for a variance application in 2015,to address the setback violation for the windmill,but the variance was not approved. According to the applicant's letter dated April 8, 2024,the windmill has been removed. 9. Contested Case Petitions and Agreements: On January 19, 2023,the Leeward Planning Commission granted standing to participate in a contested case hearing to petitioners Charles A. Anderson, EWM Enterprises, LP, and Kohala Makani Kai, LLC. The parties held a mediation conference and arrived at an agreement with amendments (see P.D. Exhibit 33), dated February 26, 2024, based on which all three petitions were withdrawn. Additional petitions for standing in a contested case hearing were filed on April 4, 2023, by William Melton and on April 6, 2023,by Dale and Don Franzen. Based on a private agreement(see P.D. Exhibit 35) between the petitioners and the applicant, both petitions were subsequently withdrawn. STATE AND COUNTY PLANS 10. State Land Use Designation: The subject property consists of lands designated Agricultural and Conservation by the State Land Use Commission, however the proposed work will be situated within the Agricultural district. -3- 11. General Plan LUPAG Map: The subject property is designated as Important Agricultural Land and Open, however the proposed work will be situated within the area designated as Important Agricultural Land. 12. County Zoning: Agricultural-20 acres (A-20a). 13. North Kohala Community Development Plan (NKCDP): The North Kohala CDP was adopted by the Hawaii County Council by Ordinance No. 08-151 on November 5, 2008. The plan calls for protection of scenic resources and view planes from Akoni Pule Highway towards the sea, increased public shoreline access, and support for diversified agriculture. 14. Special Management Area (SMA): The project site is located within the Special Management Area; therefore, the proposed development is subject to SMA review. DESCRIPTION OF PROPERTY AND SURROUNDING AREA 15. Subject Property: The 5.0-acre permit area is generally rectangular in shape, slopes gently toward the ocean and has been improved with the following: • A 15,000-square foot main building with 8 guest rooms, a commercial kitchen, dining room, library and other rooms designated for seminars, exercise,yoga and related activities. • Five 400-square foot yurts with no kitchen facilities. • Three 400-square foot hales with no kitchen facilities. • A 1,400-square foot support/maintenance building. • Three 720-square foot spa buildings, including a locker/shower building, an exercise/pool building and a reception room for massage and other spa services. • A gravel parking area with 20 stalls. • Pathways providing shoreline public access. • Three acres of land dedicated to agriculture, including flower gardens, organic vegetable gardens, orchards, and gravel pathways for access. The remaining 9.5 acres of the subject property is steeper terrain with ironwood trees, pasture lands and fruit tree orchards. The shoreline property is located approximately one mile makai of Akoni Pule Highway and was formerly used for sugar cultivation. -4- 16. Surrounding Zoning and Land Uses: Surrounding land uses in the immediate vicinity consist primarily of pasture, agriculture and dwellings,with the closest dwelling located approximately 400 feet mauka of the permit area. Most surrounding lands are similarly zoned A-20a. 17. U.S.D.A. Soil Type: Soils in the project area are classified as Kohala silty clay 0 to 3 percent slopes (KhA). These soils consist of well-drained silty clays that formed in material from basic igneous rock influenced by volcanic ash. They are mostly used for sugar cane cultivation while small areas are used for pasture, orchards, and truck crops. 18. Land Study Bureau Soil Rating: Soils within the permit area are classified as"C" or "Fair" and "E" or"Very Poor" for agricultural productivity. 19. Agricultural Lands of Importance to the State of Hawaii(ALISH): Prime Agricultural Lands and Other Important Agricultural Lands. 20. Coastal Hazards: The property is located within Zone"X," an area determined by FEMA to be an area outside the 500-year floodplain. The makai portion of the property is within the Tsunami Area, including the main lodge and several of the guest hales. In the case of a tsunami event, guests and staff would evacuate via Lokahi Road and Maluhia Road. 21. Flora/Fauna Resources: A botanical survey of the subject property was conducted on February 12, 2001,which confirmed the findings of a 1992 survey for the proposed Kohala Coast Trail by Winona Char. The study noted that endemic or indigenous species of plants found within the general area were situated within the Conservation District and not within the permit area. At that time,the study concluded that the establishment of the retreat center would not impact existing endemic and indigenous plants. The 5-acre permit area presently includes 3 acres of agricultural land planted with fruit trees, including mango, banana, avocado, orange, grapefruit, lemon; Hawaiian medicinal plants, including Olena, Awa, noni, ti, ginger and Lauaki; and organic vegetable gardens. The applicant reports that fauna in the permit area may include the Hawaiian Hawk and Hawaiian Owl. According to the State Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW)the Hawaiian Hawk(`Io) Hawaiian Goose (Nene), Hawaiian Stilt, Hawaiian Coot, Hawaiian Duck, Hawaiian Hoary Bat -5- (Ope`ape`a), and Blackburn's Sphinx Moth may occur in the project vicinity. DOFAW provided guidance on measures to avoid and minimize impacts to listed or endangered species, in addition to guidance on avoiding the spread of invasive species and pathogens. 22. Archaeological/Historical/Cultural Resources: An archeological assessment of the subject property, including the permit area,was done by Haun and Associates on February 16, 2001. The assessment concluded that no historic or prehistoric artifacts or structures were observed on the proposed building sites. Additionally, the applicant reports that no artifacts were found during the construction of existing buildings. By letter dated October 5, 2022,the Department of Land and Natural Resources— State Historic Preservation Division (SHPD) indicated that the subject property was included in a previous project review that resulted in a"no historic properties affected" determination and that due to the impacts on the permit area by the development of the existing retreat center, it is unlikely that any unidentified historic properties remain intact within the permit area. Finally, SHPD noted no objection to the approval of the requested permit amendment. 23. Scenic and Open Space: Akoni Pule Highway, located one mile mauka of the permit area has existing vegetation located makai of the highway that does not allow a clear view plane to the coastline. 24. Coastal Recreational Resources/Shoreline Public Access: The subject property is a shoreline parcel with the permit area located approximately 100 feet from the 150-foot- tall shoreline cliff. Condition No. 5 of SMA 417 required the applicants to develop a public access plan for the subject property that provides, at a minimum, a continuous traversable lateral public access along the coastal portion of the subject property, and access through Hanaula Gulch to the shoreline. Additionally, the applicants were required to allow vehicular access across the subject property and provide parking for a minimum of two vehicles for members of the public to use the shoreline access. In accordance with this condition, the applicants submitted a lateral and mauka/makai public access plan which was recorded with the Bureau of Conveyances on February 27, 2009 (Planning Department Exhibit 2—Declaration of Access and Utility Easements). The Planning Department provided a final verification of compliance with Condition No. 5 of SMA -6- 417 on April 27, 2009 (Planning Department Exhibit 3 —Letter from the Planning Department to Ms.Jean Sunderland and Mr. Robert Watkins). The public access plan provides vehicular access to the subject property from Akoni Pule Highway,by way of access easements, and pedestrian trails provide access to the shoreline. The applicants received authorization from the owner of the access easements, Chalon International of Hawaii, Inc., on September 3, 2001 (Planning Department Exhibit 4—Letter from the Planning Department to Mr. Marc Melton). The applicant remains responsible for maintenance of the public access trails and all signs erected along or near the public access trails must be approved by the Planning Director. The applicant indicated that they currently maintain the public access trails with mowing and that members of the public regularly use the trails to access the shoreline for fishing and hiking recreation. By letter dated March 6, 2024,the Kohala Community Access Group (KCAG)proposed several amendments to the existing Declaration of Access and Utility Easements or recorded public access plan (DAVE). By letters dated April 8 and April 9, 2024, the applicant provided a draft of suggested amendments to the DAVE,pursuant to an agreement between the applicant and the KCAG. PUBLIC UTILITIES AND SERVICES 25. Access: Condition No. 6 of Special Permit No. 1117,now Condition No. 8, stated that access to the permit area from Akoni Pule Highway shall be other than Union Mill Road, rather via an access easement through either Kamehameha Park or near Union Market. The condition further required that the applicant improve the access drive,meeting with the approval of the Department of Transportation (DOT) and improve those portions of Pratt Road and the former cane haul road that provides access to the project site with a minimum 20-foot-wide compacted gravel surface,prior to the establishment of the proposed retreat. The applicant states that they have complied with this condition and the improved access drive has been designated with names,with the mauka portion named Maluhia Road and the makai portion named Lokahi Road. DOT-Highways Division reviewed the application and commented that the proposed project does not appear to significantly impact the State highway system. Additionally, DOT-Airports Division provided comments stating that the Federal Aviation Administration (FAA) will require -7- the applicant to submit a Notice of Proposed Construction or Alteration due to the subject property's proximity to Upolu Airport, and that the applicant and users be aware of potential noise and fumes generated by airport operations. 26. Traffic: The applicant expects there to be a minor increase in traffic on Maluhia Road and Lokahi Road, however they do not expect the traffic to affect Akoni Pule Highway given the relatively small increase in use. The Planning Department has received public comments from adjacent landowners expressing concerns about the impacts of increased use of the access roads, including exacerbation of dust issues and unsafe conditions resulting from cars speeding on the roads. The applicant has met with adjacent landowners and through the mediation process associated with Contested Case Petitions, has drafted an agreement to address road and traffic concerns. 27. Water: Through the original SMA and SPP permit process, the applicant proposed to store potable water in on-site water storage tanks with supplemental bottled water provided to guests. The applicant has since installed water lines to provide county water to the subject property. Currently, the property is served by a 5/8-inch water meter, which is limited to one unit of water with an average daily usage of 400 gallons. The existing meter is located at the intersection of Akoni Pule Highway and Maluhia Road. According to the Department of Water Supply (DWS), the average daily water usage over the past two years is approximately 4,100 gallons per day,which is equivalent to approximately eleven units of water and exceeds the capacity of the existing meter. Additionally, DWS notes that current water availability conditions in the area can only provide one unit of water per existing lot of record, and therefore, the County's existing water system cannot support the proposed project. Extensive improvements and additions,which may include source, storage,booster pumps, transmission and distribution facilities would be required. Further, DWS requests the implementation of water conservation measures to reduce water consumption. The applicant has responded to DWS by noting that the high water usage rate was due largely to recent drought conditions requiring County water for agricultural activities. To address agricultural water needs, the applicant has installed sprinklers and drip lines, and plans to construct a non-potable well, both of which the applicant believes should reduce use of County water. Additionally, the applicant states -8- that the new guest rooms will likely be primarily single occupancy and should not significantly increase potable water demand. According to the Department of Health (DOH), Safe Drinking Water Branch (SDWB), if there is an average of 25 or more individuals served at least 60 days per year,the facility qualifies as a public water system and must comply with Hawaii Administrative Rules (HAR), Title 11, Chapter 20, "Rules Relating to Public Water Systems." 28. Wastewater: As part of the amendment approved by the Planning Commission in 2004, the applicant obtained approval to install a septic system and soil absorption fields in lieu of an aerobic septic system with leach field to service the wastewater needs of the retreat center. The facility is currently serviced by four septic tanks and the applicant proposes to install new septic tanks for the proposed guest rooms,meeting with the approval of the Department of Health (DOH). DOH has indicated that the additional individual wastewater systems could negatively impact the ocean due to proximity and soil type, however, despite attempts to follow up by the applicant, DOH has not specified a preferred method of wastewater disposal. According to the applicant, they will comply with DOH requirements if the proposed septic tanks are deemed insufficient during the building permit process,including the potential installation of an anaerobic septic system. 29. Solid Waste: In accordance with Condition No. 9 of the Special Permit,the applicant submitted a solid waste management plan to the Department of Environmental Management,which was approved. The plan, which remains in place, includes composting of all green waste,paper, cardboard and food waste. 30. Other Essential Utilities and Services: There are 60 existing photovoltaic panels which produce electricity for the retreat center, in addition to storage batteries, converter panels and a back-up generator. Water is heated by solar panels and telephone service is available to the site. Police, fire, and emergency services are available nearby in Kapa`au. AGENCIES' COMMENTS 31. Department of Public Works-Engineering Division: (Planning Department Exhibit 5-December 22,2022,Memo) 32. Department of Water Supply: (Planning Department Exhibit 6-December 14, 2022, Memo) -9- 33. Fire Department: (Planning Department Exhibit 7-December 6, 2022, Memo) 34. Department of Health: (Planning Department Exhibit 8-November 23, 2022, Memo and November 25, 2022, Email) 35. Office of Planning & Sustainable Development: (Planning Department Exhibit 9- December 22, 2022, Letter) 36. Department of Transportation-Airports & Highways Division: (Planning Department Exhibit 10-December 13, 2022, Letter) 37. Department of Land and Natural Resources - Division of Forestry and Wildlife: (Planning Department Exhibit 11-December 20, 2022, Memo) 38. Department of Land and Natural Resources - State Historic Preservation Division: (Planning Department Exhibit 12 —October 5, 2022, Letter) 39. Department of Land and Natural Resources—Engineering Division: (Planning Department Exhibit 13-December 13, 2022, Memo) 40. Department of Public Works —Building Division: (Planning Department Exhibit 14- December 21, 2022, Memo) 41. United States Fish and Wildlife Service: (Planning Department Exhibit 15- November 24, 2022, Memo) AGENCIES -NO COMMENTS OR CONCERNS 42. Police Department, Department of Transportation—Highways Division. AGENCIES -NO RESPONSE 43. Department of Environmental Management, Real Property Tax Office, State Land Use Commission, State Department of Agriculture, Kohala Community Association, Kohala Hawaiian Civic Club; Honopueo Community Association. PUBLIC COMMENTS 44. Letter from Jonathan Christensen (Planning Department Exhibit 16-December 12, 2022) 45. Letter from Toni Withington (Planning Department Exhibit 17 —December 27, 2022) 46. Email from S.R. McIntyre and Cam McIntyre (Planning Department Exhibit 18 — January 2, 2023) -10- 47. Email from Beth Thoma Robinson (Planning Department Exhibit 19 —January 4, 2023) 48. Letter from Karl Toubman and Katherine Pomeroy (Planning Department Exhibit 20—January 6, 2023) 49. Letter from Peter Evanovich (Planning Department Exhibit 21 —January 16, 2023) 50. Letter from Mark Castaing and Helen Behrmann (Planning Department Exhibit 22 —January 19, 2023) 51. Letter from Cindy Freitas (Planning Department Exhibit 23 —January 19, 2023) 52. Letter from Emily Sundman (Planning Department Exhibit 24 —January 19, 2023) 53. Email from Mark Castaing (Planning Department Exhibit 25—March 15, 2023) 54. Email from Dwayne Cravalho (Planning Department Exhibit 26— September 19, 2023) 55. Letter from Kohala Community Access Group (Planning Department Exhibit 27 - March 6, 2024, Letter) 56. Email from Mark Van Pernis (Planning Department Exhibit 28 -April 3, 2024) PETITIONS FOR CONTESTED CASE HEARINGS 57. Petition from Charles A. Anderson (Planning Department Exhibit 29—January 11, 2023) 58. Petition from EWM Enterprises, LP (Planning Department Exhibit 30—January 11, 2023) 59. Petition from Kohala Makani Makai, LLC (Planning Department Exhibit 31 — January 11, 2023) 60. Petitions from William Melton and Dale and Don Franzen (Planning Department Exhibit 32—Petitions) 61. Amendment and Restatement of Agreement with Charles A. Anderson, EWM Enterprises, LP, and Kohala Makani Makai,LLC, from Mediation Process (Planning Department Exhibit 33 —Agreement dated February 26, 2024) 62. Email Request to Withdraw Petitions (Planning Department Exhibit 34 —July 12, 2023, Email) -11- 63. Agreement with William Melton and Dale and Don Franzen (Planning Department Exhibit 35—Agreement dated March 4, 2024) 64. Email Requests to Withdraw Petitions (Planning Department Exhibit 36 —March 5, 2024, Emails) APPLICANT'S RESPONSE TO AGENCY & PUBLIC COMMENTS 65. Letter from Sidney Fuke (Planning Department Exhibit 37-December 26, 2022) 66. Letter from Sidney Fuke (Planning Department Exhibit 38-December 29, 2022) 67. Letter from Sidney Fuke (Planning Department Exhibit 39-December 29, 2022) 68. Email from Jean Sunderland(Planning Department Exhibit 40-December 30, 2022) 69. Email from Jean Sunderland(Planning Department Exhibit 41-January 11, 2023) 70. Letter from Jean Sunderland(Planning Department Exhibit 42-January 11, 2023) 71. Letter from Sidney Fuke (Planning Department Exhibit 43 -April 8 and April 9, 2024, Letters) -12- AMENDMENT to SPECIAL MANAGEMENT AREA (SMA) PERMIT No.417 and SPECIAL PERMIT (SPP) No. 1117 APPLICANT: AHU POHAKU HO'OMALUHIA LLC HAWAII ISLAND RETREAT LLC at NORTH KOHALA, HAWAII Hanaula, North Kohala, Hawai'i, TMK 5-4-009: 014(Por) I. INTRODUCTION Jean Sunderland and Robert Watkins are the managing members of AHU POHAKU HO'OMALUHIA LLC. ("Applicant"). The Applicant operates a 16-room permaculture and wellness retreat called Hawai'i Island Retreat ("Retreat"). The Retreat, which is situated on a 5+ acre portion of a 14.5 acre parcel identified by TMK: 5-4-009:014, was issued a Special Management Area Use Permit (SMA 00-003) No. 415 and Special Permit (SPP 01-006) No. 117 on August 2, 2001, by then County Planning Commission (now Leeward Planning Commission). (Exhibit A). The Applicant wishes to increase the number of guest rooms from 16 to 36. With the additional 20 rooms, the Applicant would be able to better accommodate its guests' preference for single versus double occupancy rooms. With limited accommodations, many have had to reside in double occupancy rooms. II. PROJECT LOCATION The project site is situated approximately one (1) mile makai of Akoni Pule Highway (Highway 270) and one (1) mile west of Kamehameha Park accessed by way of Maluhia onto Lokahi road. (Figures 1 and 2) The Retreat is situated on 5+ acre of a 14.5-acre parcel, an area that was formerly used for sugar cane. The remaining 9.5-acre area is gulch and hillside and used for orchards and cattle grazing. III. PROJECT DESCRIPTION A. Prosect Components The previously approved 16-room Retreat has been fully built. It consists of: 1. A main building consisting of eight (8) guest rooms, and rooms designated for seminars, exercise/yoga room, a library, dining room, commercial kitchen and related activities. The main building has a floor area of approximately 15,000 square feet and a height of less than 30 feet; 2. Five (5) yurts and three (3) single story guest hale. Each guest hale consists of about 400 square feet or less in floor area and about 15 feet high. There is no kitchen within the hale; Planning Dep . 1 Exhibit 1 -- A B HONOt lAKAT C KAPA AU D E OG 1 MILE r - 1 1 / Project Site o � 5 HiONOMAKA'U Jc Gre 1Caloa�� — �� y+• Aloha �� -- / Xw.e/.anrrAr 0+., P► Qy .•tinnitea— _ 3 •C'"' / n.,r�7 �,Iliwa St o~/ rltese IC c ' Xrrwesky RJ 'H rUwkw � sl � Hiwahiwa 1 ~'�- g �+•P!'• Pi AI _ ILC ill d �6 a e ti" /awl c �9 C 74sy ��y► 'qa' y S Yfa.nff P.D Cs ! i ,` ^ r P KAPA'A'U A ' S s Project Site o}- .w as \ r ' / va ' I IXahel / PROJECT LOCATION ' r / 1 1 I NOT TO SCALE •\ I / 1 6 , ' G 1 > fY,M1�• 1 Figure 1 aR3�� d 1 S I I n I � G I of I N SUBJECT SITE N Np N M =ia=s Qf i I 1 ti h 0 1 C i on l a fill \ Ssrr \ N > I I J+ ,� 131 ,t` •� �' 1 � K I c \ or sI�i s a S I i 13 col d L7 111Y O Oy s 1 1@ a Qc �� - r moi''! lil �• ti_` 2 ai —p ..:JE% s o c !r sow I f ti k x S( a i ! a , r za 05 x cc, o JJ � slo !l i n IAr O lY)d IMVj o — c L -_.tlnnS ---T 18 MOL a'Hoa re 31Ya '°x W Hi i�aa ! Figure 2 3. A 1-story 1,400 sq ft support building houses the maintenance operations, off- grid electrical system (solar panels, wind turbine, inverters, back-up generator, electrical batteries) storage, and related activities; 4. Salt purified swimming pool; 5. Three (3) 720 square foot, single story spa buildings, which include a locker building with showers, an exercise /pool building, and a resting / reception room for massage and other Spa services; 6. A 20+ stall parking area consisting of crushed gravel surface to maintain the ambiance of a natural environment; 7. Public access pathways to the ocean; 8. Related improvements such as graveled pathways, flower gardens, organic vegetable gardens and orchards, over three (3) acres of which are devoted to various agricultural activities. 9. The current project is fully built out with all units and auxiliary buildings completed. There are currently over 30 building permits for all structures. (Exhibit B) B. Prosect Concepfi Hawai'i Island Retreat has successfully operated as a healing retreat lodge for 13 years, for groups and individual. Groups come to learn from the land and their teachers how to live a healthy life. Sustainability and connection to the land is taught with food, gardens, meditation, and other physical and spiritual wellness experience-based programs. An advanced training in sustainability is taught with participation in growing fruits and vegetables and becoming aware of the production of electricity with wind and photo voltaic panels, as well as the importance of living in harmony with the earth (aina). All water is heated with solar panels and all electricity is generated on site. There is a focus on growing much of the food we provide for guests Condition 5 of the Special Permit required the inclusion of an agricultural component. In that regard, at least three (3) of the 5-acre area is being used for the cultivation of fruits, vegetables, Ti, plumeria groves, medicinal plants, herbs and flowers. Beyond the 5+ acre area and within the 14.5-acre parcel, there are also other agricultural activities in the form of pasturage for cattle, and orchards of banana, citrus, breadfruit, and mango trees. The additional 400+/- square foot hale (Figure 3) will be situated incorporated within the existing gardens and orchards. (Figure 4) This area is currently planted with orchards of mango, bananas, oranges, grapefruit, lemons, lilikoi, ti and other 2 A Mam Area 396 � 61 ST STORY 3+96 D4 �q?# C2# A16 Building 14 https:!lgpc,bl�c schne;dercorp.comlAr-n►ication.aspx?Applp,1048&layerlD=?36iggPageTypelD=4&PageID=9878 &Q1 882!955&KeyValoe-54Ct09 Fi_gure 3 9 12 a; tom; \'�, 26 m3 4 \ A 41 Ir- Eul CIO LD \ t m as c�• ��� � fl q�aZ � 2W a \ \TIE� ti fi I r \ \y wla 56 if I Q � b' �, � if -• -�^.,i'o � i aha 5 y! ♦ ♦ \ pp 9 JJ A f, � (z) ill hu t91�$�'r�` fY`x � r� ♦\ // i �--_ ,� 6�.5���"�` �fo � $heft\\\♦ I I r � t � � 1 I o d \\ mm I 4a ° b'� Iwe 1 0 ' I Aoi . I m o 1 w a y I rn 'r I 4 \ r/ Ai-c e4 r -' , organic vegetable gardens for the benefit of guests of the Retreat. The hale will be situated in a manner that does not disrupt or impact the garden and orchards. On the adjacent property owned by Sunderland/Watkins Family Trust (TMK:5-4- 009:20), there is a thriving farm growing cacao, avocado, papaya, pineapple, coconut, banana, and managed grazing for cattle, sheep, and goats. Although some of the Special Use Permit designated area is on TMK:5-4-009:20, that area is not part of the operations of the Retreat. C. Project Timetable and Cost The Applicant intends to prepare construction plans for the additional units upon approval of the requested amendment. Construction of 10 of the 20 units will commence no later than 18 months after approval, and the remaining 10 units will be added approximately five (5) to six (6) years after approval. The projected cost of the additional 20 hale is $1,800,000. IV. ENVIRONMENTAL CONSIDERATIONS Sustainability has been a core value of the Retreat at Ahu Pohaku Ho'omaluhia. An advanced training in sustainability is taught with participation in growing fruits and vegetables and becoming aware of the production of electricity with wind and photo voltaic panels. All water is heated with solar panels and all electricity is generated on site. We do not provide air-conditioning due to pleasant Kohala winds. The Retreat was awarded the highest ranking in sustainability in the State of Hawai'i A. General Description of Parcel As noted earlier, the site of the Retreat is approximately one (1) mile makai of the Akoni Pule Highway (Highway 270), at the makai end of Lokahi Road. It was formerly used for sugar cane production and cattle grazing prior to the establishment of the Retreat. At approximately the 150-foot elevation level, the site is located about 100 feet from the ocean. The average annual rainfall ranges between 30 to 40 inches. The wetter months tend to occur between October through April. The average annual temperature ranges between 72 to 84 degrees Fahrenheit, with occasional higher and lower ranges during certain periods such as summer or winter months. The typical rain pattern is sunny during the day and raining at night. The prevailing wind patterns in the area are often light and variable, dominated by trade winds (easterly) during the day and westerly or mountain winds during the evenings. The permitted five (5) acres for the Retreat is somewhat rectangular in shape. The area is relatively flat with modest slope from mauka to makai. The remaining 9.5 acres of the parcel is stepper terrain with ironwood trees, pasturage and fruit orchards. 3 B. Soils U.S.D.A. Soil Type: Soil within the project site is classified as Kohala silty clay 0-3 % slopes (KhA). These soils consist of well-drained silty clays that formed in material from basic igneous rock influenced by volcanic ash. Prior to establishing Hawaii Island Retreat, the land had been used for sugar production followed by cattle grazing with no pasture management. Upon initiating this project, land was covered with weeds and severely depleted. Lands within Hanaula Gulch are classified as Rough Broken land (RB), a miscellaneous land type used for pasture and wildlife, currently covered with ironwood trees. Land Study Bureau Soil Rating: Soil within the project site is classified as "C" or "Fair" and "E" or "Poor" for agricultural productivity. Soil within the 5 acres designated for the project has been improved with extensive mulching, soil augmentation and other organic methods. Class "E" soils are situated along and within Hanaula Gulch coinciding with the USDA Rough Broken Land soil type, Currently the sides of the gulch are covered with ironwood trees. ALISH: Prime Agricultural Lands and Other Important Agricultural Lands. The Prime Agricultural Lands mainly coincide with "C" soils. Hanaula Gulch is not classified by the ALISH maps. C. FIRM: The subject size is designated Zone "X", areas determined to be outside the 500-year flood plain on the Flood Insurance Rate Map. D. Coastal Ecosystem The Retreat is currently served by four (4) septic systems as directed by the State Department of Health. The additional hale will require additional septic systems and will be installed in accordance with the State Department of Health requirements. No wastewater will be discharged into the ocean. E. Flora and Fauna 1. Flora: A botanical survey of the project site was conducted by James Bos, Ph.D. on February 12, 2001. The study, which confirmed the findings of a 1992 survey for the proposed Kohala Coastal Train by Winona Char, noted that endemic or indigenous species of plants found within the general area were situated within the Conservation District and not within the project site. The study concluded that the proposed project will not impact those endemic and indigenous plants. Upon beginning the project, the site consisted of pasture, and weeds formerly used for sugar cane, with groves of ironwood along the Hanaula Gulch. Owners have since planted and grow organic gardens for food production; Orchards of Mango, banana, avocados, coconut, citrus; plantings of Hawaiian medicinal plants such 4 as Olena, Awa, noni, ti leaf, ginger, Lauaki. Hawaiian medicine is woven into the guest experience. 2. Fauna: A fauna study of the project was not done. However, over 100 years of sugar cane cultivation had degraded the project area and destroyed native habitat. During the past 20 years, there has been noted a return of the Hawaiian Hawk or i'o and native owl or Pueo. F. Archaeological Resources An Archaeological assessment of the project site was done by Haun and Associates on February 16, 2001. The assessment concluded that no historic or prehistoric artifacts or structures were observed within the proposed building sites. Dr. Haun was on site for all excavation of building sites, and no artifacts were found. G. Valued Cultural Resources 1. Traditional and Customary Native Hawaiian Rights: Owners of the Retreat have lived in the community for nearly 50 years. During the past 15 years, a number of traditional Hawaiian ceremonies and customary protocols have been held on this land. There are a number of local divers, fishermen, and pickers of opihi that traverse the property to access the ocean. 2. Coastal Public Access: The subject property is a shoreline parcel. The project area is approximately 100 feet from the cliff. The required lateral and mauka/makai shoreline public access plan is in compliance with condition 5 of SMA Use Permit No. 417 as submitted. The public access trail was created and maintained on a regular basis. Public parking was created for those wishing to access the trails. These are reflected as easements and identified on the final subdivision map. (Figure 4) 3. Lincoln Burial: There is an existing burial(s) on adjacent TMK:5-4-009:20 within the State Land Use Conservation District consisting of .779 acres. There is an access easement on TMK:5-4-009:14 to the burial site. H. Volcanic, Earthquake, and Coastal Hazards The United States Geological Survey (USGS) designates the area Lava Flow Hazard Zone 9, on a scale of ascending risk 9 to 1. This is the lowest risk, as compared, for example, to the City of Hilo's Zone 3. The Building Code identifies the entire island of Hawaii in Earthquake Zone 4 and contains certain structural requirements to address the relative seismic hazards. All required structures and improvements will be designed to reflect this standard. 5 _F ' G tf 6:03 W J � �.) a •`��B �� cif�/ ( � !! �_�3��� § � 3 ; J o All YV VON e(I� 03 T 0 40 y2U C3 lt� 13 O S C C Jf °' PUBLIC ACCESS EASEMENTS ,e L' 3. 30•Lta�La ft6alte.�F2§€J0$ L Figure 4 Being at nearly the 150-foot elevation level and nearly 200 ft. from the shoreline, the site falls outside of the Civil Defense Tsunami Evacuation Zone. At the 150-foot elevation, normal winter storm waters are not an issue for this project. I. Water and Coastal Resources Condition Nos. 2 and 4 of the SMA Permit and Special Permit, respectively, stated that "the construction of the retreat and the operation of all of its related facilities and activities shall be conducted in a manner that is substantially representative of plans and details as contained with the Applications for Special Management Area Use Permit and Special Use Permit, Proposed Hawaiian Permaculture and Wellness Retreat Dated March 2001." The Applicant represented in the original applications that it would construct an aerobic septic system with a leach field. However, an amendment to the subject permits was approved by the Planning Commission on January 30, 2004, to allow the use of septic tanks and soil absorption systems field in lieu of an aerobic septic system with leach field for the 16-room Retreat. (Exhibit C) As part of the construction of Hawai'i Island Retreat, four (4) septic systems were installed to meet the requirements of State Department of Health, Sanitation branch. J. Pasture management Upon initiating this project, land was covered with weeds and was severely depleted. Lands within Hanaula Gulch, classified as Rough Broken Land (RB), used for pasture, and wildlife, was covered with ironwood trees. USDA granted pasture management by allowing repair and replacement of fencing for pasture rotation. K. Noise, Air Quality and Dust During the construction of these additional units, there will be construction noise. Contractors will be required to comply and observe the State Department of Health's noise standards. The air quality in this area should not be materially affected by this project. The project itself should generate little air emission. L. Scenic and Visual Consideration In the Natural Beauty element of the General Plan, there are sites or areas listed as scenic resources. Although the subject site is not one of them, the Plan highlights the coastline view plane from the Akoni Pule Highway. The site is more than a mile from the Highway and thus is not visible from Akoni Pule Highway. V. REGULATORY CONSIDERATIONS A. State Land Use The State Land Use designation of the subject property is Agriculture. As such, a Special Permit is required to authorize the requested and proposed expanded use. 6 As the requested area of the proposed use is less than 15 acres, a decision by the Leeward Planning Commission would be required. It should be noted that the coastal portion of the subject property is situated within the Conservation district. Over time, the Applicant has received permits from the State DLNR for repair and replacement of cattle fences. B. County General Plan The County General Plan Land Use Pattern Allocation Guide ("LUPAG") map designates most of the site Important Agricultural Land. This designation refers to land that have "better potential for sustained high agricultural yields because of soil type, climate, topography, or other factors." Because the proposed amendment will not result in the reduction of any currently cultivated land, the requested Amendment would not be inconsistent with the General Plan LUPAG designation. The request is consistent with the following goals, policies, and standards of the General Plan: Economic Element • Economic development and improvement shall be in balance with the physical and social environments • The County shall provide an economic environment which allows new, expanded, or improved economic opportunities that are compatible with the County's natural and social environment • The County shall strive for diversification of its economy by strengthening existing industries and attracting new endeavors Land Use Element • Designate and allocate land use in appropriate proportions and mix and in keeping with the social, cultural, and physical environments of the County • Protect and encourage the intensive utilization of the County's important agricultural lands • The County shall encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment Natural Resources Element (Goals and Policies) • Protect and preserve forest, water, natural, and scientific resources and open areas. • Ensure that alterations to existing landforms and vegetation, except crops, and construction of structures cause minimum adverse effect to water resources, and scenic and recreational amenities and minimum danger of floods, landslides, erosion, siltation, or failure in the event of earthquake. • The County of Hawaii should require users of natural resources to conduct their activities in a manner that avoids or minimizes adverse effects on the environment. C. North Kohala Community Development Plan ("CDP") Relative to the North Kohala CDP, Section 15.1 of the County General Plan called for the development and eventual County Council adoption of Community Development Plans. The General Plan states that the CDP "will translate the broad General Plan statements to specific actions as they apply to specific geographical areas." The General Plan also notes that should the CDP require a General Plan amendment, it could be considered concurrent with the adoption of the CDP. However, "If there is a direct conflict between the Community Development Plan and the General Plan, the General Plan shall be controlling." Pursuant to the above, the North Kohala CDP was developed and adopted by the County Council on November 5, 2008 (Ordinance No. 2008-151). This is the only significant regulatory change since the approval of the subject permits. The CDP identified four core or overarching goals — 1) Growth Management; 2) Access; 3) Affordable Housing; and 4) Infrastructure and Community Facilities. These goals were then expressed further in the form of more specific goals/objectives and strategies for their implementation. Of these, the Affordable Housing and Infrastructure goals do not apply, while the Growth Management and Access have relevance and as such are discussed herein. Growth Management Goal Under this goal, nine (9) strategies for its implementation were identified. The strategies of establishing the CDP Action Committee (Strategy 1.1); acquisition of coastal lands as open space (Strategy 1.2); downzoning State-owned lands (Strategy 1.3) do not apply Relative to Strategy 1.4 relating to the promotion and support of a community of diversified agriculture, this project fulfills that strategy. The Retreat incorporates classes and experiences with both our guests and interns to learn diversified agriculture, including flowers, fruit orchards, organic vegetable gardens, Hawaiian medicinal plants (La'au Lapa'au), and animal husbandry of cattle, goats and sheep. In so doing there is a fostering of agricultural education strategy. With the placement of the additional 20 hale within the orchards and gardens, guests will have a more comprehensive understanding of the day-to-day maintenance required of agriculture. 8 Strategies 1.5 and 1.6 talk of the importance of agricultural education program and community cultural program, respectively. As well as guests of the retreat and interns, the added accommodations will make it more feasible to support and promote sustainability and agricultural programs. Strategy 1.7 Addresses cultural and historical preservation in the community. The land of Ahu Pohaku Ho'omaluhia (Honaula Gulch) is abundant with historical sites that have been cared for, history shared, and preserved since 2001. There are old pillars still standing that supported the sugar train. There are stone structures believed to be from the time of Kamehameha E Kahi. Strategy 1.8 Importance of Agricultural lands is addressed with the on-going rebuilding of the soil that was depleted with sugar cane agriculture that used extensive herbicides and pesticides. Green waste, paper and cardboard are composted and used for mulch; animal fertilizer is added to compost; companion planting is incorporated and inoculation with beneficial bacteria was added. Strategy 1.9 talks of the need for view plane protection along the Akoni Pule Highway corridor. Hawaii Island Retreat is more than a a mile from the Highway and not seen from the Highway Coastal Access Goal A public access program was developed and implemented. (See Figure 4) The plan includes parking stalls and designation of trails, all of which were incorporated prior to issuance of the Certificate of Occupancy Permit in 2009. The trails are maintained with mowing by the Applicant. Many local fishermen and opi'hi pickers use these trails to reach the cove and ocean. Others use the trails for recreation, primarily hiking. D. Zoning The County zoning designation of the site is Agricultural (A-20a). The minimum lot size for this zoning district is twenty (20) acres. The subject property is considered non-conforming relative to area. Within the A-20a zone, the Applicant's existing uses such as the agricultural activities are permitted uses. A Special Permit was already issued for the 16-room Retreat. Its expansion would require an amendment to the Permit. It should be noted that within the County Agriculture zone, a "lodge" is considered a permitted use. The Zoning Code defines "lodge" as a "building orgroup of buildings, under single management, containing transient lodging accommodations without individual kitchen facilities, and no more than forty guest rooms or suites, and generally located in agricultural, rural, or other less populated area. 9 The Applicant's request would meet this definition of a lodge, not only in terms of its amenities but size (less than 40 guest rooms). Should the request be approved, subsequent "ministerial" or administrative type of permits such as Plan Approval, if needed, will be complied with. E. Special Management Area As the subject site falls within the Special Management Area, a SMA permit is required. A discussion of the project's relationship to the Coastal Zone Management policies is discussed below in Chapter VII. VI. INFRASTRUCTURE & OTHER LAND USE CONSIDERATIONS A. Access Access to the Retreat is from Akoni Pule Highway by way of Maluhia Road. This road was improved from an old cane road to a 20-foot wide gravel and asphalt road with approval from Department of Public Works, Engineering Division and the State Department of Transportation. The 20-foot wide asphalt road continues along old Pratt Road and onto graveled Lokahi Road to the Retreat. B. Government Services There shall not be any public service type of impacts. This area is already serviced by police and fire facilities, located within two (2) miles of the subject area. The project's location should thus not result in an extension of any of these public services. C. Socio-Economic Impacts During the past 13 years, the Retreat has hosted smaller community fundraiser events. It has a full-time staff of seven (7) and three (3) part-time staff. There are also organic agriculture interns working on property. These additional units will generate at least an additional four (4) or five (5) housekeeping staff. D. Agricultural Impact As previously mentioned under "Project Concept"the Special Use permit requires Inclusion of Agriculture. There is now 3+ acres of the designated retreat area for growing fruits, vegetables, Ti, plumeria groves, medicine plants, herbs and flowers. Within the 14.5 acres of TMK:5-4-09:14 there is also agriculture use of pasturage for cattle, orchards of banana, citrus, breadfruit, and mango, As indicated on the site plan (Figure 3), the additional hale will be sited adjacent to and incorporated into the current gardens and orchards. The orchards consists of mango, bananas, oranges, grapefruit, lemons, lilikoi, Ti and organic vegetable gardens. The additional units will be sited in a manner that would not impact the orchards and gardens. 10 E. Water County water is provided to the Retreat through water lines installed by the Applicant from a meter located at Akoni Pule Highway. F. Solid Waste Pursuant to Condition 9 of the SPP, the Retreat received approval of its solid waste management plan from the Department of Environmental Management. This plan includes composting of all green waste, paper, cardboard, and food waste. It will continue to be implemented. G. Other Essential Utilities and Services The Retreat produces its own electricity with 60 photovoltaic panels, large storage batteries, converter panels, and a back-up generator. The Retreat is not connected to the electrical grid. Water is heated with numerous solar panels. Telephone lines were laid concurrently with the water lines. H. Compliance Report Condition 2 of the Special Permit required the Applicant to provide a report of its activities prior to issuance of the occupancy permit. In a letter, dated November 11, 2007, such a report was provided to the Planning Department. (Exhibit D) The letter outlines how the Applicant has addressed conditions relating to public access, advisory board, access, and any complaints. VII. JUSTIFICATIONS FOR AMENDMENT TO SPECIAL MANAGEMENT AREA PERMIT No. 415 AND SPECIAL PERMIT No. 117 Based on the foregoing, it is concluded that the proposed improvements are consistent with the objectives, policies and guidelines of the Special Management Area Rules and Regulations. Specifically: SPECIAL MANAGEMENT AREA The subject site is situated within the County Special Management Area (SMA). As such, this section covers the project's relationship to the goals and policies of the SMA. A. Recreational Resources The proposed improvements should not have any adverse impact to the recreational resources of the area. Although a coastal property, the area is outside of the Conservation District. Notwithstanding the location of the Retreat, it has already provided coastal access with parking for the public in accordance with a County 11 approved plan. None of the proposed improvements will impede this access or its activities. Further, the nature of the project is of such a nature that water quality to the nearshore waters should not be compromised given the appropriate wastewater system will be installed. B. Historical and Cultural Resources While the site does not have any archaeological resources, there are cultural implications. As noted earlier, 1. Traditional and Customary Native Hawaiian Rights: The owners of the Retreat have lived in the community for nearly 50 years. During the past 15 years, traditional Hawaiian ceremonies and customary protocols have been held on this land. Further, local divers, fishermen, and pickers of opihi have frequently parked and then traversed the property to access the ocean. 2. Coastal Public Access: The subject property is a shoreline parcel. The project area is approximately 100 feet from the cliff. The required lateral and mauka/makai shoreline public access plan, as identified in Figure 4, is in compliance with Condition 5 of SMA Use Permit No. 417. The public access trail was created and maintained on a regular basis. Public parking was created for those wishing to access the trails. 3. Lincoln Burial: There is an existing burial(s) on adjacent TMK:5-4-009:20 within the State Land Use Conservation District consisting of.779 acres. Figure 4 also depicts an access easement on TMK:5-4-009:14 to the burial site. In sum, the Applicant has been very sensitive of the cultural aspects of the property and accommodated these aspects into its program. It can thus be reasonably concluded that this project would have no significant adverse impact relating to native Hawaiian cultural and historical resources and/or practices that cannot be otherwise mitigated. C. Scenic and Open Space Resources The only reasonable open space in this area would be the shoreline. The project is not adjacent to the shoreline, as there is a band of Conservation District. The coastal use would not be significantly visually or otherwise impacted by this project. Further, the height and size of the proposed hale would be within the existing agricultural fields and thus somewhat not overly visible within the Retreat, let alone from the shoreline or the Highway. 12 D. Coastal Ecosystem The proposed hale should not generate any adverse impacts to the area's coastal ecosystem. None of the improvements should generate significant site-generated water. They could — like a typical residence —easily be dissipated within the ground. If needed, a site drainage plan can be prepared and, if needed, required mitigative improvements implemented. Thus, the project's impacts to the groundwater and nearshore waters should be negligible, if at all. Finally, the project's wastewater will be addressed through a system of septic system approved by the State Department of Health. E. Economic Uses The project itself should have some significant direct and indirect. economic impacts, due to the short-term and long-term jobs this project could potentially generate. The short-term jobs would be principally in the construction industry. The long-term direct employment impact would come in the form of possibly up to five (5) new full and/or part-time employees for the overall Retreat. Additionally, there would be indirect employment created through the project's multiplier effect. At the same time, by providing a convenient area for employment, it would minimize drive time for many area workers who would otherwise have to travel outside of the district to their place of employment. These people could more productively utilize the time lost on the road. F. Coastal Hazards The site is designated "X" on the Flood Insurance Rate map. However, it is located within the Civil Defense Tsunami Evacuation Zone. The Applicant will continue to take measures to institute appropriate educational and training protocols for their employees and other tenants in times of a tsunami. As the site is not located adjacent to the shoreline, normal winter storm waters should not be an issue for this project. Based on the foregoing, it is concluded that the proposed improvements are consistent with the objectives, policies and guidelines of the Special Management Area Rules and Regulations. Specifically: A. The proposed project will not have any substantial, adverse environmental or ecological effect. Any effect that may result will be minimized to the extent practicable and is clearly outweighed by public health, safety and welfare, and other compelling public interest. 13 Further, it will not generate any adverse effects by themselves or in conjunction with other individual developments, the potential cumulative impacts of which would result in a substantial adverse environmental or ecological effect and the elimination of planning options. Appropriate mitigative measures will be taken to address any potential adverse impacts of this project. B. The proposed activities - as discussed earlier - are consistent with the objectives, policies, and guidelines of the SMA Rules and Regulations,- and egulations;and C. The proposed activities are consistent with the County General Plan and County Zoning Code, as noted in this Chapter of this document. SPECIAL PERMIT GUIDELINES In determining whether the requested use is an "unusual and reasonable use" and thus should be permitted within the Agricultural District, certain guidelines are used. These guidelines and their relationship to the requested use follow. A. Relationship to Land Use Law and Obiectives The subject request will not be contrary to the Land Use Commission Rules (HAR, Title 15, Chapter 15), Planning Commission Rules (Rule 6), or Chapter 205, Hawaii Revised Statutes, which purposes are to 1) preserve, protect, and encourage the development of lands in the State for their best uses in the interest of the public welfare, and 2) protect, conserve, and rationally develop the State's urban, agricultural, and conservation lands using a coordinated and balanced approach. In this situation, the subject site's soil resource is Class B or "Good" and C or "Fair". The soil resource based on that classification is thus deemed important. It should be noted that the project will result in no land currently used for agriculture More importantly, however, the project will result in the more intensive agricultural use. The project should result in a more intensive agricultural use of the subject site, while fostering hands-on learning of agricultural practices. B. Relationship to General Plan and Other Planning Requirements The project's relationship to the County General Plan and North Kohala Community Development Plan is discussed in Chapter V-B and C. Relative to the County General Plan, it should be noted that while the General Plan was amended in 2005 (subsequent to approval of the SPP), there were no significant changes to the policies and LUPAG map affecting to the subject area. Thus, the reasons justifying the original request as outlined in the Commission's approval of the SPP (Exhibit A), still apply. 14 In sum, Chapter V-B notes the project's consistency with the goals and policies of the Agricultural, Land Use, and Economic elements. The project will enhance the agricultural activities of the site, while potentially fostering other areas to engage in agricultural pursuits as well. There will be added direct employment opportunities. Further, the project will address all essential infrastructure requirements without burdening the community and County. The project also fulfills the objectives of the North Kohala CDP, as outlined in Chapter V-C. Specifically, it implements the access and growth management goals. All structures will be built to comply with the Zoning Code standards, such as parking, setback, height, loading area, and possible additional landscaping. Further, with the additional 20 units, the Retreat will still fall within the 40-room density threshold of a "lodge" which is identified as being a permitted use within the County Agriculture zone. C. Impacts to Surrounding Properties The additional hale are located on the property so they will not impact any adjacent properties. Two of the three adjacent properties are used for cattle grazing. The third property {TMK:5-4-009-020 is owned by Sunderland /Watkins Trust and is used for farming. The existing background ambient noise level in this area is wind, foliage, birds, and the like. The significant manmade noise is influenced by the traffic associated along the Akoni Pule Highway. The Highway, however, is nearly a mile from the subject site. With the additional Hale, there will be a minor increase in traffic along Lokahi road and Maluhia Road. Given the above, the traffic impact should not be significant at the Akoni Pule Highway. There could potentially be short-term noise impacts during the construction phase. To mitigate this impact, the development of this project— particularly the site work - will be limited to daylight hours and on weekdays. Contractors will also be required to comply with established State Department of Health guidelines and standards relating to noise and emission controls. However, as noted earlier, given the absence of residences immediately adjacent to the site, noise and construction related impacts should not be significant. The proposed development should not generate any direct air impacts. As the project itself is not expected to have uses that generate adverse air pollutants, the only discernible air quality impact would be associated with the few vehicular traffic to and from the site. While the added traffic will have an impact to the ambient air quality, the impact should not be significant. This is due in part to the higher EPA standards for vehicular air emissions and the prevailing Tradewinds 15 D. Suitability of the Site The site is suitable for the requested uses. Hawai'i Island Retreat is already established and providing services to guests for 13 years. These additional hale will provide an expanded choice of occupancy. The site for the additional hale is already used for lawns, orchards and gardens so there will be no additional environmental, archaeological, or cultural constraints that would render the site unfeasible for the requested use. All the basic infrastructure is already in place. Additional septic systems will need to be installed for the additional hale. The site is situated between Hawi and Kapa'au. This will provide another potential employment base for residents of North Kohala, some of whom travel outside of the district for employment. E. Altering Character of Land Any development of this site will minimally transform the character of the land. However, this transformation will not involve the creation of a new landform such as a quarry. The basic agricultural ambiance will still be retained. The structures will be kept to a residential scale and tucked into orchards and gardens. F. Unusual Conditions or Trends In 1999, the Hawaii Tourism Authority prepared a Tourism Strategic Plan prepared, wherein the Plan recommended that the State look into tourism market niche opportunities. Two of these — although somewhat overlapping — are Agri-Tourism and Edu-Tourism. Agri-Tourism is travel for education with an agricultural bent. Edu- Tourism is along that line with an emphasis on education and training in Hawaii's unique natural and multi-cultural environment. The Retreat has embraced both of these niche opportunities plus Eco-Tourism by creating a sustainable destination creating electricity with wind and solar, growing much of the fruits and vegetables used on property, and teaching agriculture and sustainability practices, and Hawaii's unique natural and multi-cultural environment Based upon the foregoing, it is concluded that the project is an "unusual and reasonable" use of the subject site and would promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes. 16 /J�tv of y9� Harry Kirn o°• J ',\ Afayor County of Hawaii PLANNING COMNUSSION 25 Aupuni Street, Room 109 • Hilo,Hawaii 96720-4252 (808)961-8288 Fax(808)961-8742 CERTIFIED MALI, 7000 0600 0024 2903 7189 T' 4 200 Mr. Sidney Fuke 100 Pauahi Street, Shite 212 Hilo, EII 96720 Dear Fuke: Special Management Area Use Permit Application (SMA 00-003) Special Permit Application(SPP 01-006) Applicant: Robert Watkins and Jean Sunderland Request: Establishment of a 16--Room Hawaiian Permaculture and Wellness Retreat Tax Map Key: 5-4-9:Portion of 1 The Planning Commission at its duly held public hearing on August 2, 2001, voted to approve the above=referenced applications. Special Management Area(SMA) Use Permit No. 417 and Special Permit No. 1117 are hereby issued to establish a 16-room Hawaiian Permaculture and Wellness Retreat on approximately 5± acres of land situated in the State Land Use Agricultural District. The property is located approximately one mile makai from Akoni Pule Highway and Kamehameha Park, Hanaula and Honopueo,North Kohala, Hawaii. Approval of this requests are based on the following: Special Management Area Use Permit (SMA 00-003) The purpose of Chapter 205-A, Hawaii Revised Statutes and Rule 9, Special Management Area Rules and Regulations of the County of Hawaii, is to preserve,protect, and, where possible, to restore the natural resources of the coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options, and to insurethat adequate public access is provided to public-awned or used beaches, recreation areas, and natural reserves by dedication or other means. Planning Dept. EXHIBIT A Exhibit Mr. Sidney Fuke Page 2 The proposed Hawaiian Permaculture and Wellness Retreat (hereinafter referred to as "retreat") will not have any significant adverse environmental or ecological effect. The project site, consisting of approximately 5 acres, is situated or, lands formally cultivated in sugar cane, with the exception of that portion within Hanaula Gulch. With the exception of the gulch, sugar cane production essentially eliminated any habitats that could have supported endangered species of plants or animals. The applicants have conducted a botanical survey that is consistent with previous findings from an earlier survey that concluded that indigenous and endemic plants are not situated within the project site, but are located within Conservation lands situated immediately makai of the project site. The applicants have also referenced a faunal survey conducted for a similar project located approximately 1.5 miles to the east that concluded that the project site does not provide habitat for any endangered species of animals. According to the applicants, proposed structures and its related improvements will only occupy about 1 acre of land within the 5-acre project site. Another 3 acres will be cultivated for vegetables, .fruits and herbs. The limited nature of proposed improvements and activities are not anticipated to impart any significant adverse impacts to the physical environment within the immediate area. Wastewater generated by the proposed retreat will be disposed of within an aerobic septic system that will comply with applicable Department of Health requirements. During construction, the applicants will abide by current construction practices to minimize any dust and runoff that may be generated. The proposed project is consistent with the objectives, policies and guidelines of the Special Management Area. These objectives and policies were established to provide guidance for the preservation, protection and development of coastal resources of the State and County. They identify several areas of management concerns including historic, recreational, scenic resources, coastal ecosystems, economic use and coastal hazards. 11 .i The proposed retreat will not interfere with any recreational resources,natural shoreline processes or impact view planes to the coastal area. Coastal recreational resources will not be adversely impacted by the proposed retreat due to the location of the project site approximately 200 feet inland from the shoreline. Coastal recreational opportunities within this area are limited since cliffs dominate the shoreline. Visual impacts from the Akoni Pule Highway are expected to be minimal due to vegetation that exists makai of the highway that does not afford a viewplane to the coastline. The project site is situated close to a mile mak-al of the Akoni Pule Highway. This distance, combined with proposed structures that will not exceed 30 feet in height, will minimize adverse visual impact to adjoining properties and from the Akoni Pule Highway_ r Compliance with existing governmental regulations to control.runoff, drainage and erosion, especially during the project's construction phase, would mitigate any adverse impact to the area's environment or the ecology of the area's coastal waters. a Q Mr. Sidney Fuke Page 3 Wastewater generated by the proposed retreat will be disposed of within an aerobic septic system designed and constructed in accordance with the requirements of the State Department of Health. The distance of the project site from the shoreline, about 200 feet, should provide a reasonable physical buffer between the project site and the shoreline environment to further minimize any adverse interaction that may be generated by the proposed retreat. The project site is situated outside of the I00-year flood plain(Zone X) and well outside of the coastal portions of the subject property that are subject to coastal flooding hazards, such as coastal storm waves. The construction of all structures and facilities within the project site will be required to comply with applicable requirements of the Building Code as well as with the County's Flood Control Code. In order to ensure the proper disposal of solid waste generated by the proposed retreat and to encourage its recycling, this approval recommendation will require the applicants to develop a solid waste management plan meeting with the approval of the Planning Director. The applicants have noted within its applications that the proposed retreat "relies considerably on the concept of recycling." - An archaeological assessment of the project site was done by Haun and Associates on February 16, 2001. The assessment concluded that no historic or prehistoric artifacts or structures were observed within the proposed building sites. The applicants noted the following within their applications: "To address potential cultural and archaeological matters, it is noted that there was no identifiable mauka/makai coastal access found on the site. Further, there appeared to be evidence of the site serving as a gathering of native plants. Notwithstanding that, the applicants are prepared, through its program of instituting Native Hawaiian plants, to collaborate with native Hawaiians with valid claims to this are in opening up access." While the archaeological assessment concludes that the proposed retreat will not adversely impact archaeological and historic features, the applicants did disclose that there does appear to be evidence of gathering of native plants from within the project site. The applicants submitted a supplementary letter dated May 28, 2001 concerning traditional Hawaiian uses of the area. They indicate that there is no gathering of plants but that they have seen an individual going to the shoreline to pick `opihi. Although the coast fronting most of the subject property consists of a high sea cliff, it is possible to walk to the shoreline through Hanaula Gulch. This gulch is one of a handful of places where people can actually reach the shoreline on the North Kohala coast between the communities of Hawi and Niulii, a distance of about six miles. It Mr. Sidney Fuke Page 4 potentially provides access to shoreline natural resources for traditional Hawaiian gathering and fishing. There is also a"Lincoln Family Grave Lot"located within the subject property. This is, apparently, the location of family graves of the Lincoln Family. The access to the proposed site is presently blocked at some distance away. The applicants have committed to collaborate with native Hawaiians with"valid claims to this area"in providing access. At this time, it is not clear exactly what evidence exists that leads the applicants to arrive at these findings nor is it clear what resource within the project site are being gathered. Nevertheless, the applicants have demonstrated its commitment to preserve native Hawaiian gathering rights within the project site should they be substantiated. A condition of this approval recommendation will provide a mechanism by which the preservation of traditional and customary native Hawaiian practices within the project site are identified and protected. On the matter of coastal access, there are no known mauka-makai public shoreline access that will be adversely affected by the establishment of the proposed retreat. However, Chalon International of Hawaii,Inc.,the current owner of the project site and surrounding lands, did propose the construction of the Kohala Coastal Trail on lands situated immediately makai of the project site within the State Land Use Conservation District. While this coastal trail was never completed or established, the Planning Department does recognize the importance and desire of preserving its alignment along the North Kohala coastline. Therefore,it is recommended that a condition of approval be included to require the applicants to work with the Planning Department to identify and establish a lateral shoreline public access on lands situated immediately makai of the project site. The establishment of the proposed retreat within the Special Management Area is consistent with the General Plan and Zoning Code. The property is zoned A-20a by the Zoning Code, and the General Plan's Land Use Pattern Allocation Guide (LUPAG) Map designates the area as Intensive Agriculture. The proposed retreat would complement the following goals and policies of the General Plan: Land Use • Designate and allocate land uses in appropriate proportions and in keeping with the social, cultural and physical environments of the County. z • The County shall encourage the development and maintenance of communities t meeting the needs of its residents in balance with the physical and social i environment. d� Mr. Sidney Fuke Page 5 Economic Provide residents with opportunities to improve their quality of life. • The County shall provide an economic environment which allows new, expanded, or improved economic opportunities that are compatible with the County's natural and social environment. The County of Hawaii shall strive for an economic climate which provides its residents an opportunity for choice of occupation. Natural Beauty Protect scenic vistas and view planes from becoming obstructed. The proposed retreat,will integrate proposed agricultural activities within the project site and within its operations and programs. More specifically, the applicants will establish fruit, vegetable and herbal gardens within the project site. The overall concept of the proposed retreat is to enable guests to learn and experience the cultivation of agricultural practices and the benefits of traditional Hawaiian food and medicinal herbs, as well as spiritual wellness through a series of"hands-on"programs. The agricultural products grown on-site will be served to guests while the Hawaiian medicinal herbs would be used as part of the retreat's educational and wellness programs. Staff employed by the retreat will assist guests in the cultivation and maintenance of the gardens. Through its proposed.programs,the applicants have demonstrated its commitment to conduct agricultural activities in a manner consistent with the objectives of the General Plan by blending together two distinct uses that will mutually benefit each other, yet preserve the agricultural character of the project site and the surrounding community. The North Kohala Community Development Plan, adopted in 1984 by Planning Commission Resolution No. 2-84, "Encourage the development of conference and retreat facilities which capitalize on North Kohala's agricultural and historical resources. " As previously mentioned, the proposed project will incorporate various agricultural activities within the project site and in its operations. This "blending" of a retreat facility and agricultural activities is consistent with this specific recommendation of the North Kohala Community Development Plan. The vision for retreat facilities that capitalize on North Kohala's agricultural resources has been in place for at least 15 years and is slowly being realized as North Kohala further establishes itself as a"wellness community." The proposed retreat will not, by itself, contribute significantly to the economy of North Kohala. The applicants intend to hire 3 to 4 people to assist them in the operation lufr. Sidney Fuke Page 6 and maintenance of the proposed retreat. Instead, approval of the proposed retreat will be reflected as a commitment by the County to seek new directions in the type of industries, econonuc opportunities, and use of its resources. The County has recognized that extensive,plantation-style agriculture is slowly becoming less of an economic factor on this island. Smaller acreages of land are being cultivated by smaller entities. Many large landowners may no longer have the resources necessary to conduct intensive agricultural activities over vast expanses of land. The County must consider various non-agricultural options that could have a secondary, beneficial effect upon a landowner's ability to cultivate their land. The project site provides an excellent case-in-point. The project site and its surrounding lands are owned by a large landowner that has allowed the proj ect site and its surrounding area to lie in.fallow; which does not assist in the County's effort to maximize the use of its important agricultural lands. The applicants, on the other hand, will establish vegetable, fruit and herb gardens within the project site that will be incorporated into the healing and wellness experiences being offered by the proposed retreat. In the final analysis, approval of the proposed retreat will promote the use of important agricultural lands within the project site rather than preserving the current fallow condition of these vital lands. Based on the above, the proposed retreat will not have any substantial adverse impacts to the project site or its surrounding area; and therefore will not be contrary to the purpose and intent of Chapter 205-A, HRS, relating to Coastal Zone Management,Rule 9 of the Planning Commission relating to the Special Management Area, the General Plan and Zoning Code of the County of Hawaii. Approval of this request is subject to the following conditions. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate procedures to revoke the permit. I. The applicants, successors or assigns shall be responsible for complying with all of the stated conditions of approval. 2. The construction of the retreat and the operation of all of its related facilities and activities shall be conducted in a manner that is substantially representative of plans and details as contained with the Applications for Special Management Area Use Permit and Special Use Permit, Proposed Idawaiian Permaculture and Wellness Retreat dated March 2001. i 3. The proposed retreat shall be established within five (5) years from the effective date of this permit. Prior to establishing this use, the applicants shall secure Final Plan Approval from the Planning Director in accordance with the Zoning Code, , Sections 25-2-71(f), 25-2-72, 25-2-76 and 25-2-77. Plans shall identify all proposed structures, parking area(s), access driveway(s) and landscaping Q Mr. Sidney Fuke Page 7 4. associated with the proposed use. The applicants shall notify the Planning Department, in writing, of the completion of required improvements prior to commencing operation of the proposed retreat. S. The applicants shall develop a public access plan for the subject property that provides, at a minimum, a continuous traversable lateral public access along the coastal portion of the subject property, and access through Hanaula Gulch to the shoreline. "Subject property"means the approximately 40-acre area proposed to be subdivided from the larger 689-acre parcel. The applicants shall also allow vehicular access across the subject property and parking for a minimum of two vehicles for members of the public to use the shoreline access. This public access plan shall be submitted to the Planning Director for approval not more than one year after the granting of this permit. 6. In conjunction with the public access plan, the applicants shall submit an updated certified Conservation District Boundary Interpretation Map, showing the location of the proposed buildings and access path through Hanaula Gulch in relation to the Conservation District Boundary. 7. The applicants shall submit photographs.of the site from cliff-top locations east and west of the subject property. After review of the photographs, the Planning Director may require that the main buildings be located up to 100 feet mauka of the pali and the hales up to 50 feet from the pali, in order to preserve the vista of open undeveloped coastline that presently exists in the general area. The existing grove of ironwood trees near the proposed main building shall be retained as a landscaping buffer. 8. The applicants shall permit native Hawaiians to exercise any gathering rights within the subject property and to cross the subject property to reach the shoreline through Hanaula Gulch. The applicants shall also permit Lincoln family members to visit the family graves. 9. A Solid Waste Management Plan shall be submitted for review and approval by the Department of Public Works prior to the issuance of a certificate of occupancy for any portion of the proposed retreat. 10. 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 Department of Land and Natural Resources-State Historic Preservation Division (DLNR-SHPD) shall -bbe immediately notified--Subsequent-work-shall-proceed upon-an-archaeological-- clearance from the DLNR-SHPD when it finds that sufficient mitigative measures o i Mr. Sidney Fuke Page 8 have been taken. 11. Comply with all applicable laws, rules, regulations and requirements of the affected agencies including those of the Department of Public Works,Department of Health, and the Fire Department, including a water tank with adequate capacity for fire-fighting purposes. 12. A final status report shall be submitted in writing to the Planning Director upon compliance with all conditions of approval. i 13. An initial extension of time for the performance of conditions within the permit may be granted by the Planning Director upon the following circumstances: l A. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors or assigns, and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General PIan F or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for granting of the permit. D. 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). fi Special Use Permit(SPP 01-006) I In considering a Special Permit for any proposed use,Rule 6 of the Planning Commission relating to Special Permits require that such action conform to the following guidelines: a. Such use shall not be contrary to the objectives sought to be accomplished by the k Land Use Law and Regulations; 4 b. The desired use shall not adversely affect surrounding properties; C. Such use shall not unreasonably burden public agencies to provide roads and streets, sewers,water, drainage, school improvements, and police and fire protection; 4 d Mr. Sidney Fuke Page 9 d. Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established; C, 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 documents such as Design Plans. In addition to the guidelines detailed above, the Planning Commission must also find that the proposed 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. While a proposed use must meet all of these criteria for approval by the Planning Commission, a denial may be made upon a fording of conflict with any of those criteria. It is felt that the granting of this particular request at this particular location would be consistent with the objectives sought to be accomplished by the Land Use Law and Regulations, the County General Plan and Community Development Plans. The granting of this request will promote the effectiveness and objectives of Chapter 205, Hawaii Revised Statutes, as amended. The State Land Use Law and Regulations are intended to preserve, protect and encourage the development of lands in the State for those uses to which they are best suited in the interest of the public health and welfare of the people of the State of Hawaii. In the case of the Agricultural District,the intent is to preserve or keep lands of high agricultural potential in agricultural use. In recognizing that lands within the Agricultural Districts may not be best suited for agricultural activities and yet classified as such, and in recognition that certain types of uses may not be strictly agricultural in nature, yet reasonable in such districts, the legislature has provided for the Special Permit process to allow certain unusual and reasonable uses within the Agricultural District. Goals specified within the General Plan states that the County shall "Designate and allocate land uses in appropriate proportions and mix and in keeping with the social, cultural, and physical environments" and"Identify,protect and maintain important agriculture lands on the island of Hawaii." Based on the site plan provided within the applicants' submittal and the Planning Department's assessment of soil a Mr. Sidney Fuke Page 10 classification data, the majority of the project site is situated on lands that maintain an overall master productivity rating of"C"or"Fair" according to the Land Study Bureau's Detailed Land Classification-Island of Hawaii (1965). The Agricultural Lands of Importance to the State of Hawaii (ALISH)Maps also identify the majority of lands within the project site as "Prime"agricultural lands with the remaining balance of the project site within the Hanaula Gulch,Unclassified. The location of"Prime" agricultural lands correlates with the location of Class "C"lands. The proposed Hawaiian permaculture and wellness retreat(hereinafter referred to as "retreat"), if approved,will integrate proposed agricultural activities within the project site and within its operations and programs. More specifically, the applicants will establish fait, vegetable and herbal gardens within the project site. The overall concept of the proposed retreat is to enable guests to learn and experience the cultivation of agricultural practices and the benefits of traditional Hawaiian food and medicinal herbs, as well as spiritual wellness through a series of"hands-on"programs. The agricultural products grown on-site will be served to guests while the Hawaiian medicinal herbs would be used as part of the retreat's educational and wellness programs. Staff employed by the retreat will assist guest in the cultivation and maintenance of the gardens. Through its proposed programs, the applicants have demonstrated its commitment to conduct agricultural activities in a manner consistent with the objectives of the State Land Use Law and General Plan by blending together two distinct uses that will mutually benefit each other. The project site is currently vacant of any agricultural uses, although it has been historically used for sugar cane cultivation. While approval of this Special Permit will introduce non-agricultural uses into the area, the integration of agricultural activities as part of its operations and programs will, in the end,place these important agricultural lands into active agricultural use versus its current fallow condition. The landowners, Chalon International of Hawaii, Inc.,has a pending subdivision application that would create a 40-acre parcel where this proposed development would be located. Most of this 40-acre parcel is actually within Hanaula Gulch and is not suitable for agriculture. { To ensure that the level of agricultural activity occurring within the project site is consistent with the objectives to be accomplished by the State Land Use Law and the General Plan, the applicants will be required to prepare an agricultural plan that 1 incorporates, at a minimum, the cultivation of at least one-half of the less steep lands on the project site as represented by the applicants. The North Kohala Community Development Plan, adopted in 1984 by Planning Commission Resolution No. 2-84, "Encourage the development of conference and retreat facilities which capitalize on North Kohala's agricultural and historical resources. " As a previously mentioned, the proposed project will incorporate various agricultural activities within the project site and in its operations. This "blending" of a retreat facility and agricultural activities is consistent with this specific recommendation of the North Kohala 0 4S Mr. Sidney Fuke Page 11 Community Development Plan. Finally, approval of the subject request will be consistent with the following goals and policies of the Land Use and Economic Elements of the General Plan: Land Use Element • Designate and allocate land uses in appropriate proportions and mix and in keeping with the social, cultural and physical environments of the County. • Protect and encourage the intensive utilization of the County's important agricultural Iands. Economic Element • The County shall assist the expansion of the agricultural industry, especially diversified agriculture, through the protection of important agricultural lands, capital improvements and other programs, and continued cooperation with appropriate State and Federal agencies. • The County shall strive for diversity and stability in its economic system. • The County of Hawaii shall strive for diversification of its economy by strengthening existing industries and attracting new endeavors. The desired use will not adversely affect the surrounding properties. The project site, consisting of 5 acres, is situated within a larger parcel consisting of approximately 689 acres. Structures that will house the various activities associated with the proposed retreat will be situated about three-quarters of a mile from the nearest residence. We feel that this distance is adequate to ininimize any adverse noise impacts that may be generated by the proposed use. Short-term construction activities during the development phase of the proposed project may result in noise, dust and other construction-related impacts, but these are expected to be short-lived and minimized with the application of standard construction practices. Visual impacts from the Akoni Pule Highway are also expected to be minimal due to the heavy vegetation that exists makai of the highway that does not afford a viewplane to the coastline. The project site is situated close to a mile makai of the Akoni Pule Highway. This distance, combined with proposed structures that will not exceed 30 feet in height, will minimize adverse visual impact to adjoining properties and the Akoni Pule Highway_ Mr. Sidney Fuke Page 12 This approval recommendation also includes a condition of approval that will allow the Planning Director to suspend activities permitted by the Special Permit should the applicants fail to comply with conditions of this approval or is unable to resolve any complaint relating to interference or nuisance upon the surrounding community. Should the applicants fail to comply with the conditions of approval or has caused any unreasonable interference or nuisance on the surrounding community, the permit may be revoked by the Planning Commission. The desired use will not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage,police and fire protection. According to the application, access to the project site from the Akoni Pule Highway will be accommodated by Union Mill Road (for a distance of 2,500±feet),Pratt Road(for a distance of 2,000±feet) and a former cane haul road (for a distance of 3,800±feet), all of which are privately owned and maintained. Union Mill Road has a pavement width of 18 to 20 feet. Pratt Road has a gravel surface approximately 14 to 16 feet wide. Finally, the former cane haul road has a gravel surface approximately 12 to 14 feet wide. In response to concerns expressed by some residents along Union Mill Road, the applicants have agreed to a condition of this approval that would prohibit access to the project site via Union Mill Road. As represented by the applicants to the Planning Commission during its August 2, 2001 meeting, alternative access could be provided by either one of two existing access easements to the Akoni Pule Highway. These access easements, one through the Kamehameha Park and the other near Union Market, could each provide the proposed use with satisfactory access to the Akoni Pule Highway, provided that they are unproved with a minimum 20-foot wide compacted gravel surface and that its intersection with the highway meet the requirements of the State Department of Transportation. The proposed retreat will accommodate guests with an anticipated length of stay ranging from 5 to 14 days. Shuttles provided by the applicants will transport guests to and from the site as_necessaa._Finally,most activities associated_with the retreat will be conducted on-site. These operational characteristics lead the applicants to conclude that the proposed retreat will not have a significant adverse impact to traffic within the affected area. The Police Department did express some concerns regarding the potential impact upon traffic and roadways within the area. With recommended improvements to portions of Pratt Road and the former cane haul road and the limited amount of traffic anticipated to be generated by the proposed retreat, we feel that the roadway concerns of the Police Department have been adequately addressed by the applicants. The Police Department did note drainage concerns within the area of Union Mill Road and Pratt Road. However, these drainage concerns are not limited to the 1 applicants or the proposed retreat. The drainage concerns in this area of North Kohala are l part of a larger, community-wide concern that must be addressed through the t collaboration of affected landowners and County and State governments. 0 s Mr. Sidney Fuke Page 13 The County's water system does not extend to the project site. Potable water will be provided by the applicants through the construction of on-site storage tanks as well as by bottled water. Water catchment systems or a well will provide for non-potable water to service the project's irrigation and wastewater systems and needs. The applicants anticipate that the proposed project would use approximately 3,200 gallons of potable and non-potable water per day. The applicants have indicated that they will comply with the requirements of the Department of Health and the Fire Department. Compliance with the requirements of these agencies will be made a condition of this approval recommendation to ensure that the safety of potable water for its guests and the availability of adequate fire protection. The Department of Water Supply had no comments regarding the proposed development. The applicants will utilize an aerobic septic systems and leach fields to accommodate wastewater generated by the proposed retreat in accordance with Department of Health requirements. All other essential public utilities and facilities are or will be made available to support the proposed retreat. Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established. The State and the County, through its land use laws, have the fiduciary responsibility of protecting its important agricultural lands located in limited quantities throughout the state. However, the protection of these lands cannot be accomplished without consideration of non-agricultural uses that,-when combined, creates a mutually beneficial relationship that enhances the ability of an entity to utilize these important agricultural lands in a feasible manner. Extensive,plantation-style agriculture is slowly becoming less of an economic factor on this island. Smaller acreages of land are being cultivated by smaller entities. Many large landowners may no longer have the resources necessary to conduct intensive agricultural activities over vast expanses of land. The County must consider various non-agricultural options that could have a secondary, beneficial effect upon a landowner's ability to cultivate their land. The project site provides an excellent case-in-point. The project site and its surrounding lands are owned by a large landowner that has allowed the project site and its surrounding area to lie in fallow; which does not assist in the County's effort to maximize the use of its important agricultural lands. The applicants, on the other hand,will establish vegetable, fruit and herb gardens within the project site that will be incorporated into the healing and wellness experiences being offered by the proposed retreat. In the final analysis, approval of the proposed retreat will promote the use of important agricultural lands within the project site rather than preserving the current fallow condition of these vital lands. The land on which the proposed use is sought is unsuited for the uses permitted within the district. While this particular criteria for approval of a Special Permit seeks to utilize "unsuitable" agricultural lands for non-agricultural types of uses, the Planning Department feels that certain non-agricultural uses may be appropriate on lands suitable 0 If Mr. Sidney Fuke Page 14 for agriculture. As discussed in the previous paragraph, the department is seeking a balance of co-existing agricultural and non-agricultural uses that are mutually beneficial to each other. The current economic climate within the agriculture industry emphasizes the importance of seeking innovative means to sustain itself The applicants' proposal is one such innovative approach to enhancing the cultivation and productivity of the lands upon which it will be established. The use will not substantially alter or change the essential character of the land and the present use. With the integration of agricultural activities within its operations, the proposed retreat will not significantly change the fundamental agricultural character of the project site or the surrounding area. The maximum height of structures proposed within the retreat is 30 feet, less than the maximum allowable 45 feet height permitted within the Agricultural-zoned district. The various structures will be distributed throughout the 5-acre project site in a manner that will promote to "open space ambiance" being sought by the applicants. To ensure the preservation of the agricultural character of the project site and surrounding area, it is recommended that the proposed retreat be constructed and operated in a manner that is substantially representative of plans and details contained within the Special Permit application. In response to the concerns of some area residents regarding the manner in which this proposed project will be developed and implemented within the North Kohala community, the applicants have agreed to a condition of this approval that will require the applicants to consult with area kupuna,prior to the issuance of a certificate of occupancy for the proposed use. This consultation process will foster dialogue between the community and the applicants to shape a Hawaiian Permaculture and Wellness Retreat that will become an asset to the community of North Kohala. Based on the above considerations, it is determined that the establishment of the Hawaiian Pemiaculture and Wellness Retreat within the project site would promote the effectiveness and objectives of the State Land Use Law. Approval of this request is subject to the following conditions. Should any of these conditions not be met or substantially complied with in a timely fashion, the Director may initiate procedures to revoke this Special Permit. 1. The applicants, successor or assigns shall be responsible for complying with all stated conditions of approval. v s 2. The proposed retreat shall be established within five(5) years from the effective date of this permit. Prior to establishing this use, the applicants shall secure Final Plan Approval from the Planning Director in accordance with the Zoning Code, t Sections 25-2-71(f), 25-2-72, 25-2-76 and 25-2-77. Plans shall identify all , o Mr. Sidney Fuke Page 15 proposed structures, parking area(s), access driveway(s) and landscaping associated with the proposed use. The applicants shall notify the Planning Department, in writing, of the completion of required improvements prior to commencing operation of the proposed retreat. 3. As represented by the applicants, the applicants shall consult with area kupuna and a cross-section of the community in the development and implementation of their project. This consultation process may be in the form of an advisory board. The advisory process shall include, but not be limited to, the Kohala Hawaiian Civic Club, Na Kupuna o`Kohala, Kaha`i Kupuna, and the Kohala Historic Preservation Counsel. Further, a written report of this consultation process shall be submitted to the Planning Department prior to the issuance of occupancy permit for the project and one year thereafter. 4. The construction of the retreat and the operation of all of its related facilities and activities shall be conducted in a manner that is substantially representative of plans and details as contained with the AP21icationS for Special Management Area Use Permit and Special Use Permit Proposed Hawaiian Permaculture and Wellness Retreat dated March 2001. T 5. The applicants shall prepare an agricultural plan for the project site,meeting with the approval of the Planning Director,prior to the issuance of a certificate of occupancy for any portion of the proposed retreat. The agricultural plan shall include, at a minimum, the cultivation of a minimum of three (3) acres of land within the 5-acre project site. 6. Access for the project from the Akoni Pule Highway shall be other than Union Mill Road. Access shall be via an access easement through either the Kamehameha Park or near Union Market. Said drive access shall be improved, meeting with the approval of the State Department of Transportation. The applicants shall improve those portions of Pratt Road and the former cane haul road that provide access to the project site from the Akoni Pule Highway with a minimum 20-foot wide compacted gravel surface,prior to the establishment of the proposed retreat. 7. The applicants, in consultation with the Fire Department, shall provide for the fire-flow needs of the proposed retreat. S. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials,rock or coral_ alignments,paving or walls be encountered, work in the immediate area shall cease and the Department of C a ivlz. Sidney Fuke Page 16 and Natural Resources-State Historic Preservation Division (DLNR-SBPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-SHPD when it finds that sufficient mitigative measures have been taken. 9. Comply with all other applicable laws, rules,regulations and requirements of the affected goverment agencies for the proposed use, including those of the Department of Health and the Fire Department. 10. If the applicants fail to comply with the conditions of approval or cause complaints relating to any interference or nuisance and is unable to resolve them with the surrounding community, the Planning Director shall investigate and, if necessary, suspend the permit. The Planning Director shall then refer the matter to the Planning Commission to revoke the permit. Upon appropriate findings by the Planning Commission, if the applicants fail to comply with the conditions of approval or has caused any unreasonable interference or nuisance on the surrounding community,the permit may be revoked. 11. 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. Non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors, or assigns and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General Plan y or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of the permit. D. 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). This approval does not, however, sanction the specific plans submitted with the application as r they may be subject to change given specific code and regulatory requirements of the affected agencies. 4 e Mr. Sidney Fuke Page 17 Should you have any questions, please contact Esther Imamura or Susan Gagorik of the Planning Department at 961-8288. Sincerely, F Geraldine M. Giffin, Chairman Planning Commission SunderlandWatkins cc: Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of Planning, CZM Program (w/Background) Brian Minaai,Director/DOT-Highways, Honolulu Mr. Jeffrey Darrow Room TvDe Area A Maim Area 396 B 1ST STORY FRAME 398 C 1S'STORY FRAME 389 irz 5 16 i6 13 3 a g� 24 C 24 A 24 f3 11 1 i 'F9 16 16 18 Building 14 Other Building and Yard Improvements Description Quantity Year Built Area Gross Building Value GUMTEPOOL 1 2009 976 SSy tnrj WOOD STORAGE ENCLOSED 1 2010 201 54,370 WOOD STORAGE ENCLOSED 1 2010 201 54,373 WOOD STORAGE ENCLOSED 1 2010 201 $4.370 WOOD STORAGE ENCLOSED 1 2010 201 S-1,370 WOOD STORAGE ENCLOSED 1 2010 201 3.1.111 WOOD STORAGE ENCLOSED 1 2010 201 $3.362 WOOD STORAGE ENCLOSED 1 2010 201 S3.362 FP.AML UTILITY SHED 1 2005 1.400 $5.3,450 Permit Information Date Permit Number Reason Permit Amount 9/30/2015 BK2015.02338 Alteration 31.120 9/30/2015 BK2015-02336 AI l cral ion 1.126 9/30/2D15 8K2015-02335 Alteration $$1.126 10/19/2012 BK2012-01053 Photovoltaic $15.00f1 6129/2012 B2012.0548K New Dwelling 6!29/2012 62012-0547K New Dwelling s-10,000545.000 6/2.9/2012 B2012-0546K New Dwelling S r0 000 11/30/2011 82011-1017K Alteration 31t 000 6/21/2010 82010-0527K Alteration $501.•00 1/8/2010 82030.0031K All Miscellaneous Things S4.0,,j 1/8/2010 82010-0030K All Miscellanrous Things $4.OQ1 12/16/2009 112009-1020K NI Miscellaneous Things 13,51111 12/16/2000 82009-1019K Ali Miscellaneous Things 43.500 12/16/2009 B2009.1018K All MisccllancousThmg;, Saw". 12/16/2009 82009-1017K All Miscellaneous Thing, 12/16/2009 82009-1016K $10.0;') 12/16!2009 82009-1015K All Miscellaneous Things s3,1,UJ 9/16/2009 82009-0698K Watcrlank 44 0.10 12/512008 82008-1620K New Dwelling 1 .'S;2008 B2008-1619K Off ce 8uild i nblCon�ersion 5175.01103 .17.R'(1 ,/22/2OO8 B2OU8-07-16K All Miscellaneous Things 510.()4:, 5/22/2008 82008-0745K All Mi;cellaneousThmgs $10011,1 5/22/2008 B2008.0744K WI Miscellaneous Things $10.0(1 I 5/22/2008 B2008-0743K All Miscellaneous things $10.00.1 '512212008 82008.0142K All Misc0aneous Things 3109( 1 All M isccllaneous Things 5/22/2008 82008-0741K Ail n,1sccllanAnus T rnn>; 5/22/2008 82008.0740k $10,00 9/27/2007 82007-1288K Swhnnling/Ldp Pool 318.0()4, i/4/2DO7 82007-0019K $25,Oik1 NII Mlscellanenus Things 1/4/2007 82007.0018K All Miscellaneous Things $37.5t1U 1/4/2007 82007-00171( All Mrs,ellaneous Things $37.500 9/20/2006 82006-1611K $80.f la0 1/14/2005 82005-0076K $20.(k7U 6/4/2003 035809 Shed 81.500,.100 $60000 EXHIBIT B County of Hawes PLANNING COMMISSION iii zhi Street, Suite 3 * Hilo,Hawaii 96720-3043 (908)961-8288 a Fax(808)961-8742 February 18, 2004 N1r. Sidney Pule rQf Faaahi Strcct, Suite 212 Hilo, H1 96720 Dear Mr. Fijke: 1117 Applicants: Robert Watkins and Jean Sunduland 'Fax Man Key: 5-4-9-.Portioa of I The Phimning Commission at its duly held public heanng on January 30, 2004, voted to approve the above-referenced request:, fut an amendmicnt to Special ATea t1se, Permit No. 417 and Special Permit No. 1117 to allow the use of sepilic tanks and soil absorption systems field in lieu of an aerobic septic system]with leach field for a 16-mom Hawallar,-PerrildCU'Ruil; andV,1c11n=!Detrcat for ipproxinnately 5 acres of land. The property is located approximately one mile makai of Akoni Pule Highway and Kamebanicha Park-, Hanaula and HODOpueo, North Kohala,Hawwi. Approval *Xfthese requests are based 011 111Z I'VIEUVVille-: The applicants are re-questing to amend Special Management Area(SMA) Use Pemlit No. 417 and Special I-Icnijit No. 1117 to allow the use ofseplictanks and soil absorption systems field in lieu of an aerobic septic syst=with leach held for a 16-room Hawaiian Permaculture and Wellness Retreat within the State Land Use Ag Wakafal District. Condillon.No. 2 of SMA Use Peimu_t No. 41 Y and Condition No. 4 f Special lUse Permit Ne. 1117 state"the congMiction of the retreat and the operation of all of its related facilities and activities shall be conducted in a manner that is substantially representative of pians aad details as containedmvidi. flic Spiccia'a Manac—:cm.ent Arca Use Permit and Special Use Permit, Proposed Hawaiian Permaculture and Wellness Retreat EXHIBIT C Mr. Sidney Fuke Page 22 dated March 2001. According to the intbraiation,provided ley the applicants and cviitatiie�l 4vi{hirt the applications on page 7 under the heading V. INFRASTR[JCT€.MAL CONSIDERATIONS: and subheading B. Wastewater, it stated "there is no County wastewater collection and treatment system i"zi this are=_ As such, the conventional means has been cesspools_ In this instance, the applicants do not intend to use cesspools. Instead, they would construct an aerobic septic system with a leach field. This system ,would be desIlgied iii accordance",I;th State Department of Health's standards for wastewater in areas proximate to the ocean" The applicant is requesting an amendment to allow septic tanks mid soil absorption systems field In lieu of the initial representation of an--rob;d septic, systein with leach field. The applicants have sol mined several letters in support of their request. One from Edward Britton of A'ala Waste Engineers and one from the State Department of Health. Edward Britton of A'ala Waste Engineers subrniiied atici^regarding the diffeTcnec between an aerobic;tank versus a septic tank. In his opinion, the proposed engineered designed septic tank system for the subject property is very adequate for treating the wastewater generaicul by the proposed p r^1ect. He stated that it was his opinion that an aerobic tank system is overkill, and creates an unnecessary financial burden. The Department of Health (DOH) sent a letter stating fila€ it has no objection to use septic tanks and,oil absorption systems field as a means of treating domestic wastewater generated from the subject property provided all applicable provision of Hawaii Administrative Rules,Chapter 11-62 are met. The initial criteria for the granting of file original request has not change u' sixic.; the approval of Special 1141anagement Area Use Permit No. 417 and Special Permit No. 1117_ Based on the above, the amendment request to allow the use of septic tanks and soil absorption systems field in lieu of an aerobic septic system with leach field for a lU- rooin Hawaiian Permacultu e acrd Well ness Retreat within the Special Management Area will not have any substantial adverse impacts to the project site or its surrounding area; and themfore will not be contrary to the purpose and intent of Chapter 205-A, 19JRS, relating to Coastal Zone Mar_ageynent, Rule 9 of the Planning Commission relating to the Special Management Area,the General Plain and Zoning Code of the County of Hawaii and would promote the effectiveness and objectives of the State Land;Use Law_ This approval does not,however, sanction the specific plans submitted with the:application as they may be subject to chaiige given specific code and regulatory requirements of the affected agencies. Mr. Sidney Fuke P age 3 Should you have any questions, please,contact? OMIan Hayashi of the Planning Department at 961-9288. 6r jrpd G wIdones, Chairman Platilri-ag coninlission LsunderlxndPC cc: Department of Public Works Department of Water Supply Coajrty P.ejj7, 1'roperty Tax Division Planning Department -Kona office of Planning,CZN1 1 Prograil:(w,'13ackground) Rodney Haraga, Director/DOT-Highways,Honolulu Pian Approval Section Long Range Plarimfig Division* Robert Watkins/Jean-Sunderland AHU POHAKU HO'OMACUHIA Jean Sunderland&Robert Watkins P. O.Box 63 Hawi,Hawaii 96719 808-889-6336 CERTIFIED MAIL:70050390000289004922 November 11,2007 CHRISTOPHER YUEN, Planning Director County of Hawaii Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720-8742 Dear Mr. Yuen: Special Management Area Use Permit No. 417 Special Permit No. 1117 Subject: Detailed Compliance Report Tax Map Key: 5-4-009:14(formerly 5-4-009:portion of 1) Find included The COMPLIANCE REPORT for Special Use Permit 117 and SMA Use Permit No. 417. All conditions of the permits have been addressed as well as the conditions of the FINAL PLAN APPROVAL dated January 17,2003. We are virtually finished with the construction of the lodge and will be calling for our final inspection in a few weeks. I am including pictures of the lodge for your review. When final inspection is granted, this letter with inclusions will be submitted to the Planning Department Kona office to facilitate their review. Condition No.3: Listed below are the Building Permits for the lodge,swimming pool, spa,and yurts,and their status. Application#/Building Permit Description ofproject Status AB2004-1571K/B2005-0076K Main Lodge Final Inspection in 2—3 weeks AB2006-3120K/B2006-1611K Porte Cochere for lodge Complete AB2006-4005K/132007-0017 Catchment Tank Complete AB2006-0413K/B2007-0018K Pool Changing room Construction, January 2008 AB2006-0414K/B2007-0019K Spa Building Construction, January 2008 132007-0326, 0327, 0328, 0329, 0330 Residental Yurts Construction upon receiving permits Applications were submitted in April, 2007 Although it may now be the Planning Departments practice to write as a condition that no advertisement may be made prior to obtaining a certificate of occupancy, Such a stipulation is not stated in our Permits. We have not nor will we book guests until we do receive the certificate of occupancy.Never the less,prior to receiving your letter,I already arranged with our web person to remove any pricing for the yurts from the website. Early in 2007, Mr.Usagawa come to our site and confirmed we were not using any yurts for residence or guests. Condition No.5: We are now requesting an inspection of the public access. It is ready at this time. I am including a copy of our approved PUBLIC ACCESS PLAN. In that plan we state that we will open the access at the time we are granted a certificate of occupancy. We have removed all gates except for the one on our property. Even at this time that gate is open every work day from dawn to dusk(as is stated in the plan). I did not receive the letter of March 17,2004, however we do have the meets and bounds of the public access. I will have our attorney submit these documents immediately. We have Public Access signs ready to put up as soon as we receive our certificate of occupancy. EXHIBIT D Special Permit No. 1117 Condition No.3: Please find included the list of Advisory Board Members,minutes of meetings and follow-up letters to the Board. Condition No.6: The road adjacent to Union Mill,named Maluhia has been resurfaced with gravel to a width of 20 ft. Following my letter of April 7,2006,we hired Pattison Surveyor,License# 10743,to survey the Road Easement from Hawi-Niulii Road(otherwise known as Akoni Pule Highway)and the old Pratt road. A copy of the survey is included. Per his survey,the entire road exceeding 20 ft is within the easement. All that was required to return this road to it's previous condition was to grub growth from the sides of the road and resurface the road. Ki Elmer informed us that per Mr. Galen Kuba, no permit may be granted when none is required. Our grubbing consisted of less than 1 acre so no grubbing permit was required and no permit is required for resurfacing an existing road. Letter is included for your files. Mr.James(Kimo)Vassemerillos has inspected the road to make sure it is 20 foot wide and approved the resurfacing. At the same time we resurfaced Maluhia road we also resurfaced Lokahi road (from Pratt to ourro e P P rh')• It is my understanding that you are getting reports that construction materials are being transported along Union Mill road. It appears that those reporting assume these materials are being delivered to our site. They are not. Please find included with this report a detail of the building constructed on adjacent properties. A number of these buildings are being constructed without building permits. We formally request that these building projects be investigated so that we no longer are held responsible for actions of others. All these other properties use Union Mill road as their primary access. On TMKs: 5-4-9:20, 5,and 1,we have 55 acres of active fanning adjacent to and outside the 5 acres designated for the retreat. Although Union Mill road is not an access for the retreat, it seems inappropriate for us to be excluded from using this access for our farm. We have been using Maluhia road(adjacent to Union Market)as our access for the retreat since June of 2006. Prior to June 2006,we received permission from Surety Kohala to use School road to access Pratt road and Pratt road to Lokahi road. I am happy to send you references that will confirm that we use Maluhia road for all deliveries. Condition No 10: Again we request that you investigate the building projects on adjacent properties. I am including pictures that show these buildings, some permitted and some not. During the past three years,we have had a number of investigations and each time those investigations found us to be in compliance with all conditions. Since we have not been informed as to who is submitting these complaints,we are at a loss as to how to resolve this misunderstanding. I am including a copy of a letter distributed to all residents of Union Mill road. Please respond within 30 days if there is any additional information that you may need to authorize our Certificate of Occupancy for the lodge. We anticipate applying for this Certificate in January 2008. 1 will call you after Thanksgiving to make sure all is in order,and to request an inspection of our Public Access. Please note that included is the ARCHAEOLOGICAL MONITORING REPORT from Haun$Associates. Sincerely, Jean Sunderland&Robert Watkins Enclosures COMPLIANCE REPORT for Special Use Permit No. 1117 SMA Use Permit No. 417 On August 14, 2001, The Planning Commission granted these permits with a number of conditions. This is the required report on the compliance of all conditions for our certificate of occupancy. Parking, loading zone, accessible parking space, and public access parking is required with signs. The following signs have been obtained: Public Access; Handicap Parking with notation of maximum fine, No Parking Access Isle. Parking lot is approved for gravel. Handicap parking space with stripped access strip is concrete. All landscaping irrigation systems have been installed Public Access Plan has been submitted to the Planning Department and approved (Copy included) Archeological monitoring by Alan Hann&Associates was done. Report was sent to Planning Department and copy included with this report. Conservation District Boundary interpretation map was submitted with the Public Access plan. CONDITIONS OF THE SMA AND SPP USE PERMITS to be complied with: SMA USE PERMIT#417 1. We are personally taking responsibility for compliance with all conditions of approval. 2. We proceed with all development as substantially represented in our application 3. We understand the requirement to be established within 5 years of the effective date of permit. An extension of 5 years was applied for and granted, 4. Upon completion of each structure,we shall notify the Planning Department in writing prior to commencement of operations. We are now completing the main lodge and will be calling for a final inspection and certificate of occupancy within the next 6 weeks. 5. Our public access plan has been submitted to the Planning Department and has been approved. 6. A certified Conservation District Boundary Interpretation map was submitted to the Planning Department with the public access plan. 7. The existing grove of ironwood trees is being preserved. The main lodge is at least 100 ft from the Pali and future Hales will be at least 50 ft back from the Pali. All will be located outside the conservation area. 8. Our Public Access plan provides for members of the public, including Lincoln family members, to access the shoreline and family graves. 9. A Solid Waste Management Plan has been written, submitted to the DEPARTMENT OF ENVIRONMENTAL MANAGEMENT. Their letter of approval is included. As well as recycling most of our own waste, we are also recycling waste (coffee grounds from Hawi Coffee Mill, cardboard, newspaper)from businesses in Hawi. 10. During excavation for our Lodge, and energy building, we hired Hann&Associates archeologists to monitor our work. As reported by Mr. Alan Hann, no artifacts of any kind were found. A copy of Mr. Hann's report is included in this packet. 11. We have and continue to comply with all laws,rules and regulations 12. This report constitutes our final status report. Special Use Permit 1117 I. Same as above 2. Same as (3) above (#417) 3. We have established an advisory board including representative of all organizations mentioned in this condition plus others interested. We have had three meetings to date, Minutes of these meetings are included 4. Same as (2) above (#417) 5. Our initial agricultural plan with greater than 3 acres of cultivation was submitted and approved by the Planning Department concurrently with the Public Access Plan. Our planting is substantially as planned and presented in the agricultural plan. We have substituted Ti leaves for the Ilima on the burms that surround the energy building. Our vegetable gardens are planted to cover crops during this time of draught. As soon as the rains return, we will plant to vegetables. Ditch water is scarce right now and is planned to be reestablished early 2008. We will be able to plant gardens to vegetables as soon as the ditch water is again available or the rains have returned. We have also added grazing animals to our farm. We now have approximately 15 acres in grazing of sheep, cattle, and goats. 6. Our access, Maluhia road, adjacent to Union Market is now resurfaced to 20 ft width. . We have created a 20 ft wide graveled road from Pratt road to our retreat, and just re- graded that road adding gravel as needed. 7. We have provided a stand pipe for fire close to the Lodge. We also have constructed a catchment tank for water from the lodge roof. This water is available as a back up for fire prevention. 8. Same as (10) above (#417) 9. Same as (11) above ( #417) va ygC ril .---'---- Ad ---------- 21:11 mi ------- --- --- yj to 1-0 C14 21 it ------------- ---------- 26 --------------- 41 pi it ie€ e rxl("a^1-C haft bm of 164r apt_3 ='x 12 GL --f conrm)C on to Post as reclLm . ... - Shaded Garden = - o 8•x1�G' 128sf _ cO t f . stub out 4 future outside shower SOW 4"x14"df header or 3'/s"x 12"GL 1 ; see S1 -SW.c I C14 LO Q0 — - zzN I x 2,_6, a- f o N UEST ROOM I &Bthrm.380 sq.ft. „ SV/ 3 4 6., ODn3. .. .................. 1 ,• i.. --- 3'-0": 18x18 j shelves I SW.2zz C� :W/C 2'-0" j SW 3 BTHRM. Lav co zz 48"x48" ENTRY LANAI - v 4'-0" 18 s.f. o shower ..m.. ZZ 1 :i SW.2 Vater Located W 2 sw.3 d distribute to ae El) 101-81, 5_µ 16 _...................................... ._..-_....-.... CONSERVATION �w 0 0 m \� P A C0 P F � C m t 0 C FOLLOWS THE MAUKA SIC OF DIRT ROAD / TRAIL AS --�� EXISTED fte-1969 _ 1,1 ....... AGRI RAL X00 r 250 I T K:5— —0 :01 Q) se .101 SUBJECT SITE 1 /�l336,p � 3pC FILE COPY The boundary as located.named and FILE COPY delineated is hereby certified as the actual Land Use District Boundary adopted by the State Land Use Commission.Honolulu.Hawaii. Boundary J�r z 1 ,2by -��,,,��„� Interpretation No . 92 43 Date Executive Officer 1r 'u+u SCALE r+oarH U wui SCALE(MEn 9100 50 0 100 200 400 wR wR NnaTll Ifo 27 ISI I ---------------- e 4µa 1p -16 ev -M Tu eight (S C) ............. ;y .......... -------------- ilY AGO _ e E�� eoE ovv,�� - q op uj olon9 >^ 6. N Sou, tl� Ito- 159.77 �•18'ti\ 269'p8'52' 25 ! O = k i LU O w � L:ul a N ` Cll LN w LE LLJ i ! X0, ..Y u 0Li��' i i/z e\ Ifl v /� ' a i ! Y w O o f Lu �Z cc x z yr i IO W 9;y6:' ii c `o rs Q x QLc) CV Lu all .y p 4 Awa i h I � � i I k_25p-p_ y�$ Op / $ I l Jo` 1 \ g ``�•S �til0 h \ \\ .or ins m v v _ 5 8 v g 8 t LAND COURT REGULAR SYSTEM Return By Mail F-] Pick-Up FX To: CARLSMITH BALL LLP STEVEN S.C. LIM 121 Waianuenue Avenue Hilo, Hawaii 96720 TITLE OF DOCUMENT: AFFIDAVIT OF STEVEN S.C. LIM RE ERRATA FLY SHEET TAX MAP KEY(S): 54-009:005 and 014 4826-4422-9123/03-02-09 (This document consists of 3 pages.) AFFIDAVIT OF STEVEN S.C. LIM y 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. Planning Dep'.. Exhibit 2 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. STEVEN LI -2. r.F THE ORIGINAL OF THIS DOCUMENT RLC09DED AS FOLLOWS& -STA TE OF HAWAII "URa;U OF CONVEYANCES r DCC 2009.029833 I FEB 27,200910:00 AM LAND COURT REGULAR SYSTEM Return By Mail ❑ Pick-Up ❑ To: STEVEN S.C. LIM CARLSMITH BALL LLP 121 Waianuenue Avenue Hilo,HI 96720 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 4834-0692-505911!809 0 r� lam•/ STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this MARc.N 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. N NNALISSA � ' Notary Public, State of Hawaii '�'�i, �.•�, My commission expires: to- 14-i a NOTARY CERTIFICATION STATEMENT Document Identification or Description: Affidavit of Steven S.C. Lim re Errata Fly Sheet Document Date: kAAMc .t 3 52009 No. of Pages(including this page): Three(3) Jurisdiction(in which notarial act is performed): Third Circuit 2909 Signat of Notary Dt of tarization and ferti ion Statement LEOANNALISSA YUNG Printed Name of Notary 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 I lawaii 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(ExWibit 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- 0 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 9-13 (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-I 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 .5- f : 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 amendments'fo 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 terns hereof, this Declaration shall remain in effect perpetually until cancelled or terminated by the Declarant. E. Severabilitv 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 -6- 0 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. I. Applicable Law. This Declaration shall be governed by the laws of the State of Hawaii both as to interpretation and performance. J. _Counterparts/Facsimile Si atures. 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 shaTI not be necessary to produce or account for more than one such counterpart. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK -7- 1 r' PORTION OF EASEMENT J-1 For Access and Utility Purposes (20 ft.wide) Beginning at the west comer 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 O NALE"being 16,550.10 feet north and 14,978.92 feet east and running by azimuths measured clockwise from true south: 1. 1720 00' 71.98 feet along Easement J(Lot 8 (Portion of Grant 2732 to Kamaka)); 2. 2620 00' 20.00 feet along the remainder of Easement J-1; 3. 3520 00' 32.48 feet along Easement J-2; 4. 180 51' 32" 44.27 feet to the point of beginning and containing an area of 0.024 Acre. LICENSEDK::n PROFESSIONAL !• LAND RO NEY NA KAWAMURA + SURVEYOR • Licensed Professional Land Surveyor No. 2671 Certificate No. 2671 �9,I U 9 Expiration Date of License: 4/30/10 July 8,2008 4.4 HILO ENGINEERING,INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: P Div. 5-4-09:Portion 14 1 of 1 EXHIBIT 2 • _ l 1 1 1 1 1 tz Omrng lj x x O O > W o a d Z O� FP t-' i cA�ti rob 'moi � '=J ►r� � ' OD Cp �8 � I �� ♦ �� rn CD In 01 Ow coo tri logof v -1� v 4 jCCO2A Ry O 4� W � \ \ � ►rte � 0 0 y * ROd� J� �� Co m y N •.:�.% VA Vl s J:1DWO10210219 Chadle Andersm\POR.ESMT-J-1.dwg CQ z W t4 Cc, tti 17 12 Jol oL 1P L) CD -/E- 0 or C6 0 oc Eco u., (IV OD 0 Raga ; V1`' CIO Z Cb e, Ji CR k S! tat N v ch F� NJ Pi r,-50.5 if re ........... E — g1 f 14 ro 2°A= 1 1 • les / ps 11 .,E I i A 1 t Rll �' �2 _'� 1 nth'' -.y`,. ♦Vn 1 —° .ciri o' y ■ aR /// ail 1 a �^ a o s y On o s 6�5 H r txj cn Nth �-1 '.•;:= -i E.e° 17 Aaw OV t Ions En ca It 1 1� �• � ROD: ' ` . � `t �''•• a�I\` rµy, • ..� c is � ..�`' o '� � moi\ •`�;\� i �� EXHIBIT I STATE OF HAWAII ) COUNTY OF HAWAII ) ss. The attached document: Declaration of Public Access Easements, dated DEC 2 9 2008 which consists of V t pages(including this page), was executed by LISA L.ANDERSON on this 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. ' \\���u11111111g11H�j�ij�i ����� Fav M 4 O�..:... ��? otary Signature] 'ri � *` 90164 o y MONIQUE M. EDWARDS =' A�,e0 .;'* -�: Printed NOTARY PUBLIC,STATE OF HAWAII COMMISSION EXPIRES: 11/4/2010 ' p'FIIHIP � Name: My commission expires: 0 Q STATE OF HAWAII ) COUNTY OF HAWAII ) ss. The attached document: Declaration of Public Access Easements, dated DEC 2 g 2008 which consists of _ it tm- pages(including this page),was executed by CHARLES A.ANDERSON on this_2^ay of Uccn , 2008 in the Third i 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. \\\\N111111111/1//j���� (,te `.�O�a\I A�' 1 [Notary Signature] N 4t& 90 o640 5" + MONIQUE M. EDWARDS •. NOTARY PUBLIC,STATE OF HAWAII ,y'9j, •. �� Printed COMMISSION EXPIRES: 11/4/2010 yi F OF.....K Name: 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 emk-. CHA ES A. ANDERSON LISA L. DE O -8- IN WITNESS WHEREOF,the Declarant has hereunto caused this Declaration to be executed as of the date hereinabove set forth. ZBERT R. WAT UNDE D CHARLES A. ANDERSON LISA L. ANDERSON w -8- STATE OF HAWAII ) COUNTY OF HAWAII ) ss. The attached document: Declaration of Public Access Easements, dated o J4--f- r ' 7—e-e e_ which consists of_Tf����f >>m ( ems)pages(including this page),was -r--s ? -Ie-,.W s-- n p executed by ROBERT R. WATKINS on this /e— day of afc. , 200&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. PUBLIC (Notary Signa ] - itr COmmissionNo. k 94-4as.:' y OF : P5 Printed Mar; Lou C. Igjado My commission expires: f- ( a g ( ae) i NOTARY CE TI I �34 n D Doc.Date:_/g 19 -a o 0 9 q Pepes: Name:NQ 14 ci jhlyd Clr.ud Doc.Desr ipdon: ff mss►o.+ c� _ L1 �I sign ,,••OV 1GN Date � t ARY :O = PUBLIC lson No. is COMM � 94-489: E oF,`,, STATE OF HAWAII ) COUNTY OF HAWAII ss. ) The attached document: Declaration of Public Access Easements, dated =•v 4=T` 7 9 n i n-C—) ' which consists of - ( a? )pages(including this page), was 9 4e, executed by JEAN M. SUN ERLAND on this /4-" day of 6 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. •, NQT >itr can„„isston No. [Notary Sign u eJ ., 94gg Printed Ps'� :s L C & Name: My commission expires: <5/ NOTARY CERTIFICATION Doc.Date: / 'I- • 2�' 2-k#,Pages: } y Name: MA ryrLt- (, s. cS Tt ilrt Circuit B St N—YSI1 T7 ons P /�1,,.•�� �•• Doc.Desaipdbn: /G •. t a9-rc • ' Sig _l Dat; U9L C+ 94-489 ..C.NP ,'''•i,,fee Of 4191011%1, C 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 O NALE"being 16,645.71 feet north and 15,442.65 feet east and running by azimuths measured clockwise from true south: 1. 170 00' 97.00 feet; 2. 3500 00' 40.00 feet; 3. 3230 00' 35.18 feet; 4. 3450 00' 52.74 feet to Easement H and containing an area of 0.021 Acre. oO LICENSED G 4; PROFESSIONAL LAND Rr6� Y, • SLI OR • RO NEY . KAWAMURA No. 2671 �. Licensed Professional Land Surveyor 9 fl U ,5' Certificate No.2671 Expiration Date of License: 4/30/10 May 7, 2008 HILO ENGINEERING,INC. 484 Kalanikoa Street y Hilo, Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09:Portion 14 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 Government Survey Triangulation Station "PW O NALE"being 16,337.86 feet north and 15,564.71 feet east and running by azimuths measured clockwise from true south: 1. 390 23' 35.00 feet along Lot 16(Portion of Grant 2754 to Kalama 1); 2. 1290 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. 3500 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 and distance being: 5. 1840 46' 03" 245.97 feet; 6. 3240 53' 145.00 feet to the point of beginning and containing an area of 0.269 Acre. uCENSEo QQ PROFESSIONAL P LANO , a SURVEYOR "iNE M.KAWAMURA �9 No. 2s71 Licensed Professional Land Surveyor �9t j 5 Certificate No.2671 Expiration Date of License: 4/30/10 May 7,2008 HILO ENGINEERING,INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: Yd Div. 5-4-09:Portion 14 I of I 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 comer 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 "TUU O NALE"being 16,337.86 feet north and 15,564.71 feet east and running by azimuths measured clockwise from true south: 1. 390 23' 35.00 feet along Lot 16(Portion of Grant 2754 to Kalama 1); 2. 1290 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. 3140 51' 46" 266.09 feet; 4. 2430 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. 2570 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. 2390 16' 07;.' 87.77 feet; ++ 7. 2060 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. 2330 00' 90.80 feet; 9. 2600 00' 104.49 feet; 10. 290 00' 25.74 feet along Lot 15 (Portion of Grant 2754 to Kalama 1); 11. 800 00' 88.30 feet; 1 of 2 EXHIBIT 10 0 0 Thence along a curve to the left with a radius of 80.00 feet,the chord azimuth and distance being: 12. 530 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. 590 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. 770 46' 07" 117.26 feet; 16. 630 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. 1490 00' 319.22 feet; 18. 3240 53' 145.00 feet along Lincoln Burial Plot to the point of beginning and containing an area of 0.671 Acre. �q UCENSED G l� PROFESSIONAL �y LAND + * SURVEYOR . WRODNEY .KAW No. 2671 �. Licensed Professional Land Surveyor Certificate No. 2671 Expiration Date of License: 4/30/04 Revised: November 5,2002 October 24,2002 HILO ENGINEERING,INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09:Portion 01 2 of 2 �'"`{S • •"•' 4^ per. ..r•. ._•�!'e.�C•!£t1P'.i:•�5.�'-�'•� s''"4`�-•��"��� i �a 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 existing Easement"VL-611 and along West side of Easement "C", being a portion of Grant 2754 to Kalama County and State of Hawaii, containing an area of 5,315 square feet, 1, situate at Haropuso, more or leas, and thus bounded and described as per survey as follows: Beginning at a point for the Northeast comer of this heroin described ease line of said Lot 16, being the West line of Lot 22 of this subdivision, said Point beim 19511 feet, 8°11' from the common North comer of said Lot 16 and Lot 22, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU O HALE" being 17,439.76 feet North and 16,946.32 feet East and running by azimuths measured clockwise from True South: Thence along the remainder of Grant 2754 with the following twenty-two(22)courses: 1. 801100" 4.11 feet along Lot 22 to a point at Easement 'VL-S; Thence along the Easement"VL-5", with the following seven (7)courses: 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. 56030100" 59.64 feet to a point; 5. 15000,00" 79.62 feet to a point; S. 35000100" 155.00 feet to a point; 7. 27000,00" 202.00 feet to a point; 8. 19000,00" 165.00 feet to a point; Thence along the Easement'C', with the following three (3)courses: Thence along a curve to the left with a radius of 385.00 feet, the chord azimuth and distance being: 9. 34030'04" 73.80 feet to a point; 10. 291100100" 78.20 feet to a point, 11. 23000100" 239.17 feet to a point; 1 EXHIBIT 11 Continued Easement A-1, 12. 80000'00" 4.77 feet along Easement"H' to a point; Thence upon and across said Lot 16,with the following ten (10)courses: 13. 203000'00" 241.98 feet to a point; 14. 20900000" 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. 214026'47" 73.83 feet to a point; 16. 199000'00" 164.54 feet to a point; 17. 207000000" 202.56 feet to a point; 18. 215000100" 154.57 feet to a point; 19. 195000'00" 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. 236030101" 64.94 feet to a point; 21. 27800000" 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. a+ r Description prepared by: PATTISON LAND SURVEYING INC. PS G.P,gTTi`r0 LICENSED Z PROFESSIONAL October 14th,2008 * LAND SURVEYOR Thomas G. Pattison No 10743 (�p� Licensed Professional Land Surveyor y Certificate No. 10743,expires 4/30/10 qH.q!I g 2 • t CENTERLINE EASEMENT PA-3 For Public Access Purposes (4 R. 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 O NALE"being 17,112.96 feet north and 15,270.67 feet east and running by azimuths measured clockwise from true south: 1. 3120 30' 180.00 feet; 2. 2690 25' 110.00 feet; 3. 2340 21' 70.00 feet; 4. 3100 04' 12.03 feet; 5. 350 44' 91.00 feet; 6. 200 07' 52.00 feet; 7. 370 14' 96.00 feet; 8. 210 51' 55.00 feet; 9. 3570 26' 50.00 feet; 10. 3500 00' 60.00 feet; 11. 3590 40' -20.60 feet; ,• 12. 2350 00' 31.97 feet; Thence along a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 13. 2080 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. 1990 00' 87.71 feet; 1 of 3 EXHIBIT 0 r Thence along a curve to the right with a radius of 20.00 feet,the chord azimuth and distance being: 15. 2530 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. 2760 30' 40.06 feet; 17. 2620 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. 2350 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. 2290 13' 30" 115.85 feet; 20. 2500 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. 2580 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. 2120 00' 168.99 feet; 23. 1580 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. 1340 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. 1530 08' 93.92 feet; 2 of 3 26. 1950 16' 18.22 feet to the ocean and containing an area of 0.176 Acre. M K,q fy�G LICENSED PROFESSIONAL �y LAND • SURVEYOR + RO NEiPr KAWAMURA ' y9 No. 2e» Licensedfessional Land Surveyor 9I1 V S' Certificate No. 2671 Expiration Date of License: 4/30/10 May 7,2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09:Portion 14 M a 3 of 3 r 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"TUU O NALE"being 16,645.71 feet north and 15,442.65 feet east and running by azimuths measured clockwise from true south: 1. 3250 00' 57.64 feet to Lincoln Burial Plot Easement and containing an area of 0.005 Acre. oO LICENSED Q~ PROFESSIONAL LAND RO9Pr KAWAMURA • SURVEYOR s Licensfessional Land Surveyor No. 2671 �. Certificate No. 2671 9.11 U.S. Expiration Date of License: 4/30/10 May 7,2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo, Hawaii 96720 Tax Map Key: 3d Div. 5-4-09:Portion 14 � N 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. 3120 30' 61.66 feet; 2. 2230 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. M- K4 y, O4� LICENSEDG PROFESSIONAL 1 LAND �r • SURVEYOR * ROONEY . KAWAMURA No. 2671 Licensed Professional Land Surveyor Certificate No. 2671 Expiration Date of License: 4/30/10 May 7,2008 HILO ENGINEERING,INC. 484 Kalanikoa Street Hilo, Hawaii 96720 y Tax Map Key: P Div. 5-4-09:Portion 14 1 of 1 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 O 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 9B (Portion of Grant 2732 to Kamaka)and containing an area of 0.128 Acre. MKA#,q' LICENSED 1 9: PROFESSIONAL 1 LAND RO NEY KAWAMURA + - 9 — suRvEroR • Licensed P fessional Land Surveyor No. 2671 �. Certificate No. 2671 �9 fl U$' Expiration Date of License: 4/30/10 May 7, 2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: P Div. 5-4-09:Portion 14 1 of 1 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 O NALE"being 16,592.00 feet north and 14,993.23 feet east and running by azimuths measured clockwise from true south: L. 1720 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. 2200 00' 69.46 feet; Thence along a curve to the left with a radius of 125.00 feet,the chord azimuth and distance being: 4. 1950 00' 143.40 feet; 5. 1600 00' 148.20 feet; 6. 2220 30' 81.28 feet; 7. 3120 30' 80.00 feet; 8. 2220 30' 88.94 feet; 9. 1320 30' 22.00 feet; 10. 2220 30' 20.00 feet; 11. 3120 30' 42.00 feet; 12. 420 30' 128.94 feet; 13. 1320 30' 80.00 feet; 14. 420 30' 49.14 feet; 15. 3400 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. 150 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. 400 00' 62.51 feet; 18. 300 00' 125.60 feet to the point of beginning and containing an area of 0.355 Acre. oO� LICENSED �lG 14 PROFESSIONAL �a LAND • SURVEYOR + RO NEY M. KAWAMURA No. 2671 I. Licensed Professional Land Surveyor Certificate No. 2671 Expiration Date of License: 4/30/10 May 7,2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09:Portion 14 2 of 2 William P. Kenoi � BJ Leithead Todd Mayor did, Director Margaret K. Masunaga •y., .r:�•. Depth, 7fE Gf•M�'•11 County of Hawaii PLANNING DEPARTMENT Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720 Phone(808)961-8288 • Fax(808)961-8742 April 27, 2009 Ms. Jean Sunderland and Mr. Robert Watkins P.O. Box 63 Hawi, HI 96755 Dear Ms. Sunderland and Mr. Watkins: SUBJECT: Shoreline Public Access Compliance Special Management Area (SMA) Use Permit No. 417 Hanaula and Honopueo, North Kohala,Hawaii Tax Map Key: 5-4-009:14 (formerly 5-4-009:Portion of 001) This letter serves as final verification of compliance of the approved Shoreline Public Access Plan for SMA 417 Condition No. 5. On October 29,2008,we approved wording of the Public Access Ledger and Guidelines,and you confirmed that you would make final changes to the design of the Public Access sign based on our recommendations. On December 12,2008,your attorney received approval for wording of the Declaration of Public Access to be recorded with the Bureau of Conveyances. You forwarded a copy of the recorded easement on March 4,2009. On March 16,2009,we approved an additional sign and wording warning the public of hazardous conditions. On March 30, 2009, you sent photos of the approved signs installed at agreed upon locations. Based on the above,we have determined that the approved Shoreline Public Access Plan has been completed and Condition No. 5 of SMA 417 has been complied with in full. As a reminder, you are responsible for maintenance of the trails in accordance with the approved Public Access Plan, and only Planning Director approved signs may be erected along or near the public access trails. Any diversion from the approved public access plan may result in a Notice of Violation. Planning Dept. Exhibit 3 Hawat'i County is an Equal Opportunity Provider and Employer ,Z�� 1 Ms. Jean Sunderland Mr. Robert Watkins Page 2 April 24, 2009 Should you have questions regarding this compliance assessment,please call Dana Okano or Larry Brown of my staff at 961-8288, ext. 255 or 254, respectively. Thank you for your cooperation in this matter. Sincerely, BJ LETTHEAD TODD Planning Director DO:cs P.Iwpwin601CZM\Public Access\Sunderland-Watkins\Public Access Compliance.doc cc: Long Range Planning Division Planning Division Planning Department, Kona Office William P. Kenoi Nt.r,os apt,`,. � BJ Leithead Todd Mayor Director Margaret K. Mastmaga •+�., �,�.��. Deputy County of Hawaii PLANNING DEPARTMENT Aupuni Center • 101 Pauahi Street.Suite 3 • Hilo,Hawaii 96720 Phone(808)961-8288 • Fax(808)961-8742 October 10, 2011 Mr. Marc Melton, President Honopueo Community Association Board of Directors 62-2163 Ouli Street Kamuela, HI 96743 Dear Mr. Melton: Special Management Area Use Permit No. 417 Special Permit No. 1117 Applicants: Robert Watkins and Jean Sunderland Subject: Acknowledge Receipt of Letter Received August 9, 2011 Tax Man Key: 5-4-009: 14 (formerly 5-4-9•portion of 1) This is to acknowledge your letter received on August 9,2011,requesting additional information regarding public access on Maluhia, Pratt and Lokahi Roads to the above referenced property in regards to the above referenced permits. We apologize for the late response to your letter. Special Management Area Use Permit No. 417 and Special Permit No. 1117 were approved by the Planning Commission on August 2, 2001 to allow the establishment of a 16-room Hawaiian Permaculture and Wellness Retreat on approximately 5 acres on a portion of TMK: 5-4-9: 1. At the time of these permit approvals, the Honopueo Community Association was not established. The applicants had received approval from the owner of the easements (Chalon International of Hawaii, Inc.) to allow public access from Akoni Pule Highway to the subject property for the proposed retreat (see enclosed authorization letter dated September 3, 2001). Additionally,the Declaration of Covenants, Conditions, and Restrictions of Honopueo was recorded with the Bureau of Conveyances on Nlay 14, 2003. Within the recorded CC&Rs,there are certain references to public access and additional fees regarding the retreat center on Lot 16. Planning Dept. Exhibit 4 Hairar'i Count,is an Equal Opportunity Provider and Employer OAT 13 2011 Mr. Marc Melton, President Honopueo Community Association Board of Directors Page 2 October 10, 2011 The references in the CC&R's include the following sections: "Section 3.11 Special Hold Harmless and Indemnity Agreement Lot 16, because of its proposed commercial use as a retreat center,has been required to make part of the Association's roadways available to the public, and will generate larger amounts of traffic because of such use. Accordingly, Lot 16 hereby agrees to hold the Association and the Owners of the other Lots harmless, and indemnify them and each of them, including a reasonable attorney fee, from and for all costs, liabilities or impositions caused by, arising out of or causally connected with traffic to or from Lot 16. Upon being granted authority to occupy the premises, Lot 16 shall initiate and maintain at its own expense a comprehensive general liability policy with the limits set forth in Section 3.05 (ii)hereof name the Association and other Owners as additional insureds with respect to the undertakings made by Lot 16 in this Section 3.11. A copy of such policy shall be kept on file with the Association at all times. Section 4.02 Infrastructure Assessments. ........ Lot 16 is intended for commercial use as a retreat center. This has entailed certain governmental requirements for roadway construction over and above what would have been required of the remaining Lots for residential use alone. Such additional costs for infrastructure construction purposes have been allocated to Lot 16 in the assessment allocations in this Section 4.02. Should additional road or water requirements may be imposed upon Lot 16 by governmental authorities, the entire cost of fulfilling such requirements shall be borne by the Owner of Lot 16." Lastly, Section 4.02 was amended by the Association and recorded on November 29, 2005. This section continued to identify the use of Lot 16 as a commercial retreat center and placed additional conditions on the owners of Lot 16 regarding liability and infrastructure improvements. This document also identifies certain easements for"public use" in relation to Lot 16. To summarize, as mentioned in the previous email to Kathie Pomeroy on July 20,2011, public access to Lot 16 was identified in the deed for Lot 16,which included the Declaration of Covenants, Conditions, and Restrictions of Honopueo. The CC&R's specifically identify specifically the commercial use of Lot 16 and that portions of the Association's roadways would be available to the public for access to Lot 16. Additionally,the owner of the easements (Chalon International of Hawaii, Inc.) authorized to allow public access from Akoni Pule Highway to the Lot 16 for the proposed retreat at the time of the approval of these permits, which was prior to the establishment of the Honopueo Community Association. Lastly, as part of the approval of SMA Use Permit No. 417, the Planning Commission required the applicants to develop a public access plan for the subject property, which has been complied with. Mr. Marc Melton, President Honopueo Community Association Board of Directors Page 3 October 10, 2011 If you have any questions,please feel free to contact Jeff Darrow at 961-8158. Sincerely, AO BJ LEITHEAD TODD Planning Director Enclosure: Letter Dated September 3, 2001 from Chalon International of Hawaii,Inc. JWD:smn P:\wpwin60Veff\Letters\PC\LMelton-SMA417-SPP 117-Response.doc cc w/copy of letter: Kona Planning Department Larry Brown, Planner CHALON]NTERNATIONAL of Hawaii, Inc. P.O.BOX 249 HAWI,HAWAII 96719 . TELEPFIONE;(808)889-6257 - FAX:(808)889-5252 TO WHOM IT MAY CONCERN: September 3, 2001 To the extent covered by our authority over any roads or easements identified by Tax Map Key: (3)5-4=9:01, including the old cane road easement from Akorii Pule Highway onto the above mentioned TMK;please be informed that we grant Public Access easement and access to the Hawaiian Permaculture and Wellness Retreat proposed by Jean Sunderland and Dr. Robert Watkins on property identified by Tax Map Key(3) 5-4-9,Portion 1 Representative, CHAT, RNET AT10NAL of Hawaii, Inc. DEPARTMENT OF PUBLIC WORKS COUNTY OF HAWAII HILO, HAWAII DATE: December 22, 2022 ftoxft"444W TO: Zendo Kern, Planning Director FROM: Department of Public Works, Engineering Division ' SUBJECT: SPECIAL PERMIT APPLICATION AND NO. 1117 (PL-SPP-2022-000018; DOCKET NO. SPP-01-000006) Applicant: Ahu Pohaku Ho`omaluhia, LLC Request: To Increase the Number of Guest Rooms from Sixteen (16) to Thirty-Six (36) by Constructing Twenty (20) Additional Rooms at Hawaii Island Retreat, a Hawaiian Permaculture and Wellness Retreat TMK: (3) 5-4-009:014 We have reviewed the subject application forwarded by your memo dated November 23, 2022, and provide the following comments: 1 . All earthwork activity, including grading, grubbing, and stockpiling, shall conform to Chapter 10, Erosion and Sedimentary Control, of the Hawaii County Code. 2. All development-generated runoff shall be disposed of on site and not directed toward any adjacent properties. A drainage plan may be required by the Plan Approval process in accordance with Section 25-2-72(3) of the Hawaii County Code. 3. The subject work is in an area designated as Flood Zone X on the Flood Insurance Rate Map (FIRM) by the Federal Emergency Management Agency (FEMA). Zone X is an area determined to be outside the 500-year floodplain. Questions may be referred to Bryce Harada at 961-8042. Planning Dep . Exhibit 5 County of Hawaii is an Equal Opportunity Provider and Employer OFµAT CR 8 U o�� ire 1s" DEPARTMENT OF WATER SUPPLY • COUNTY OF HAWAII �3�,*•�......- spa 345 KEKUANAZ5'A STREET, SUITE 20 • HIL0, HAWAII 96720 TELEPHONE(808)961-8050 • FAX(808)961-8657 December 14, 2022 CDH PLANNING DEPT DEC 15 2422 pm3'17 TO: Mr. Zendo Kern, Director Planning DepartmentE }I} HAND DELY1r1E13 FROM: Keith K. Okamoto, Manager-Chief Engineer SUBJECT: Special Permit Amendment Application (PL-SPP-2022-440018) Special Permit No. 1117(Docket No. SPP-01-400006) Applicant: Ahu Pohaku t1o`omaluhia, LLC Tax Map Key (3) 5-4-009:014 We have reviewed the subject application and have the following comments. Please be informed that the subject parcel is served by a 518-inch meter, which is limited to one(1) unit of water with an average daily usage of 400 gallons. The existing meter is located at the intersection of Akom Pule Highway and Maluhia Road. The Department will note that the average daily water usage over the past two(2)years, is approximately 4,100 gallons per day,which is equivalent to approximately eleven (11) units of water and exceeding the capacity of the existing meter. The current water availability conditions in the area can only provide one (1) unit of water per existing lot of record. Therefore, the Department's existing water system facilities cannot support the proposed project at this time. Extensive improvements and additions, which may include, but not limited to source, storage, booster pumps, transmission, and distribution facilities,would be required. Currently, sufficient funding is not available from the Department for such improvements and no time schedule is set. Please note that the Department of Water Supply acknowledges that potable water is Hawaii Island's most precious resource and encourages our communities to promote water conservation and reserve the highest quality of water for the most valuable end use, which is the sustenance of life. The Department requests that the applicant implement water conservation measures to reduce water consumption. Planning Dept Exhibit 6 . . . Water, Our%ost T'recious&source. . . Kg Wai,4 Xdne. . . The Department of Water Supply is an Equal Opportunity provider and employer. w Mr. Zendo Kern, Director Page 2 December 14, 2022 Should there be any questions, please contact Mr. Ryan Quitoriano of our Water Resources and Planning Branch at {808} 961-8070, extension 256. Sincerely yours, 66w,/+ Keith K. Okamoto, P.E. Manager-Chief Engineer RQ:dfg copy—Ahu Pohaku Ho`omaluhia, LLC HAWAII FIRE DEPARTMENT . COUNTY OF HAWAII . HILO, HAWAII 96720 DATE December 6, 2022 Memorandum TO JESSICA ANDREWS, COUNTY OF HAWAII, PLANNING DEPT. FROM CAPTAIN CLINTON BAYBAYAN, FIRE PREVENTION BRANCH SUBJECT: SPECIAL PERMIT AMENDMENT APPLICATION, AHU POHAKU HO'OMALUHIA, LLC In regards to the above mentioned project, Fire Department Access and Water Supply shall comply with Chapter 18 of the 2018 Hawaii State Fire Code and Chapter 26 of the Hawaii County Code. For any questions please email Clinton.Baybqyankhawaiicoun ov or call 808- 323-4761. Respectfully Submitted, 9(5�- Clinton Baybayan Fire Prevention Captain Fire Prevention Branch Hawaii Fire Department Planning Dept. Exhibit 7 tp 1.959 9 3 -P DAVID Y.IGE 3j 9 ELIZABETH A.CHAR,M.D. GOVERNOR OFHAWAII ell DIRECTOR OF HEALTH 4®ceE1�P�' STATE OF HAWAII DEPARTMENT OF HEALTH SAFE DRINKING WATER BRANCH ULUAKUPU BLDG.4 n reply,please referto: File: SDWB 2385 WAIMANO HOME ROAD,SUITE 110 SDVVBStdCnnts2020.docx PEARL CITY,HI 96782 November 27, 2020 MEMORANDUM TO: AGENCIES AND PROJECT OWNERS FROM: JOANNA L. SETO, P.E., CHIEF Safe Drinking Water Branch SUBJECT: SAFE DRINKING WATER BRANCH STANDARD PROJECT COMMENTS This memo is provided for your information and sharing. You are encouraged to share this memo with your project partners, team members, and appropriate personnel. The Department of Health (DOH), Safe Drinking Water Branch (SDWB) will no longer be responding directly to requests for comments on the following documents (Pre-consultation, Early Consultation, Preparation Notice, Draft, Final, Addendums, and/or Supplements): • Environmental Impact Statements (EIS) • Environmental Assessments (EA) Conservation District Use Applications (CDUA) • Drinking Water Operator Certification • Source Water Assessment and Protection • Underground Injection Control (UIC) Wells For agencies or project owners requiring DOH-SDWB comments for one or more of these documents, please utilize the DOH-SDWB Standard Comments below regarding your project's responsibilities to maintain drinking water quality and any necessary permitting. DOH-SDWB Standard Comments are also available on the DOH-SDWB website located at: https:Hhealth.hawaii.gov/sdwb/. Planning Dept. Exhibit___A__ AGENCIES AND PROJECT OWNERS November 27, 2020 Page 2 DOH-SDWB Standard Comments The following information is for agencies and/or project owners who are seeking comments regarding environmental compliance for their projects in the areas of: 1) Public Water Systems; 2) Underground Injection Control; 3) Groundwater Protection, and 4) Drinking Water State Revolving Fund with the Hawaii Administrative Rules (HAR), Chapters 11-19, 11-20, 11-21, 11-23, 11-23A, 11-25, and 11-65. You may be responsible for fulfilling additional requirements related to our program. 1. Public Water System Supervision a. Federal and state regulations define a public water system as a system that regularly serves an average of 25 or more individuals at least 60 days per year or has at least 15 service connections providing water for human consumption. All public water system owners and operators are required to comply with Hawaii Administrative Rules (HAR), Title 11, Chapter 20, "Rules Relating to Public Water Systems." b. All new public water systems are required to demonstrate and meet minimum capacity requirements prior to their establishment. This requirement involves demonstration that the system will have satisfactory technical, managerial, and financial capacity to enable the system to comply with safe drinking water standards and requirements. c. Projects that propose development of new sources of drinking water serving or proposed to serve a public water system must comply with the terms of HAR 11-20-29, entitled "Use of new sources of raw water for public water systems." This section requires that all new public water system sources be approved by the Director of Health (Director) prior to its use. Such approval is based primarily upon the submission of a satisfactory engineering report, which addresses the requirements set in HAR Section 11-20-29. d. The engineering report must identify all potential sources of contamination and evaluate alternative control measures, which could be implemented to reduce or eliminate the potential for contamination, including treatment of the water source. In addition, water quality analyses for all regulated contaminants, performed by a laboratory certified by the DOH State Laboratories Division (https:Hhealth.hawaii.gov/sdwb/approvedIablist/), must be submitted as part of the report to demonstrate compliance with all drinking water standards. Additional parameters may be required by the Director for this submittal or additional tests required upon his or her review of the information submitted. e. All sources of public water systems must undergo a source water assessment, which will delineate a source water protection area. This process is preliminary to the creation of a source water protection plan for that source and activities which will take place to protect the drinking water source. f. Projects proposing to develop new public water systems or proposing substantial modifications to existing public water systems must receive approval by the Director prior to construction of the proposed system or modification. These projects include treatment, storage, and distribution systems of public water systems. The approval authority for projects owned and operated by a County Board or Department of Water or Water Supply has been delegated to them. AGENCIES AND PROJECT OWNERS November 27, 2020 Page 3 g. All public water systems must be operated by certified distribution system and water treatment plant operators as defined by HAR Chapter 11-25, entitled "Rules Relating to Certification of Public Water System Operators." h. All projects which propose the use of dual water systems or the use of a non- potable water system in proximity to an existing drinking water system to meet irrigation or other needs must be carefully designed and operated these systems to prevent the cross- connection of these systems and prevent the possibility of backflow of water from the non-potable system to the drinking water system. The two (2) systems must be clearly labeled and physically separated by air gaps or reduced pressure principle backflow prevention devices to avoid contaminating the drinking water supply. In addition, backflow devices must be tested annually to assure their proper operation. Further, all non-potable spigots and irrigated areas should be clearly labeled with warning signs to prevent the inadvertent consumption on non-potable water. Compliance with HAR Chapter 11-21, entitled "Cross-Connection and Backflow Control" is also required. i. All projects which propose the establishment of a potentially contaminating activity (as identified in the Hawaii Source Water Assessment Plan) within the source water protection area of an existing source of water for a public water supply should address this potential and activities that will be implemented to prevent or reduce the potential for contamination of the drinking water source. For further information concerning the application of capacity, new source approval, operator certification, source water assessment, backflow/cross-connection prevention or other regulated public water system programs, please contact the Safe Drinking Water Branch Engineering Section at (808) 586-4258 or email sdwb(a-)_doh.hawaii.gov. 2. Underground Injection Control (UIC) Program a. Injection wells used for the subsurface disposal of wastewater, sewage effluent, or surface runoff are subject to environmental regulation and permitting under HAR Chapter 11-23 entitled "Underground Infection Control." The DOH's approval must be first obtained before any injection well construction commences. A UIC permit must be issued before any injection well operation occurs. b. Authorization to use an injection well is granted when a UIC permit is issued to the injection well facility. The UIC permit contains discharge and operation limitations, monitoring and reporting requirements, and other facility management and operational conditions. A complete UIC permit application form found at https:Heha- cloud.doh.hawaii.gov/epermit/Home/9034789e-2918-4f30-82a2-9a5940e467f2 is needed to apply for a UIC permit. c. A UIC permit can have a valid duration of up to five (5) years. Permit renewal is needed to keep an expiring permit valid for another term. d. The UIC line delineates the extent of our underground sources of drinking water and is used to define areas where certain types of injection wells are prohibited. The UIC line is plotted on official UIC maps available for review at SDWB or by contacting the UIC program. Online interpretations of the UIC line maps exists and should be used with AGENCIES AND PROJECT OWNERS November 27, 2020 Page 4 caution as they are not the official maps. One website hosting an interpretation of the UIC line map is at the following: https:Hgeoportal.hawaii.gov/datasets/4597dde2703a4e539f5l 588531 e48101 20 e. If your project involves the construction of an injection well, you must first obtain the DOH's written approval to construct the injection well before any construction commences. The primary purpose of HAR, Chapter 11-23 is to protect underground sources of drinking water from injection well contamination. Written approval is obtained by filing an application for a UIC permit. You may submit your permit application via electronic filing (preferred method) through the DOH website at http://eha cloud.hawaii.gov/epermit or submit a hard copy permit application to: Safe Drinking Water Branch Uluakupu Bldg. 4 2385 Waimano Home Road, Suite 110 Pearl City, Hawaii 96782-1400 f. Areas mauka of the UIC line are considered to overlie underground sources of drinking water. Therefore, no new subclass A injection wells, such as sewage injection wells that receive greater than 1,000 gallons per day, will be allowed to be constructed. g. New sewage injection wells have been further prohibited effective July 5, 2018. Hawaii Revised Statutes 340E-2(e) states "The director shall promulgate regulations establishing an underground injection control program. Such program shall prohibit any underground injection which is not authorized by a permit issued by the director; provided that the director shall not issue permits for the construction of sewage wastewater injection wells unless alternative wastewater disposal options are not available, feasible, or practical," h. New storm water drainage injection well construction must be sited beyond one-quarter mile of a drinking water well. If you intend to construct a drinking water well, be careful to site all drainage injection wells at least one-quarter mile away from the drinking water source well. For further information about the UIC permit and the UIC Program, please contact UIC staff at (808) 586-4258 or email at sdwb(a)doh.hawaii.gov. 3. Drinking Water State Revolving Fund Program The Drinking Water State Revolving Fund (DWSRF) is a federally-capitalized loan program that provides low interest loans to regulated community water systems in the State of Hawaii for their drinking water infrastructure projects. If you would like more information regarding DWSRF eligibility, financing options, etc., you may visit the DWSRF website at https:Hhealth.hawaii.gov/sdwb/drinking-water-state-revolving-fund/ or contact Ms. Joan Corrigan at moan.corrigan(a)doh.hawaii.gov. AGENCIES AND PROJECT OWNERS November 27, 2020 Page 5 4. Private Water Wells a. WARNING! As the owner of a privately-owned well, you should NOT assume that water from your well is safe for consumption. It is your responsibility to make sure that your well water is safe to drink. The only way to do this is to have your well regularly tested for bacteriological and chemical contaminants. b. There are no regulations controlling water quality in private wells serving individual residences as there are for public water systems (public or privately-owned utilities supplying water to 25 or more people or 15 service connections). In other words, there are no enforceable limits for contaminants and no requirements for regular testing. Private wells are often found in rural areas, where many activities such as onsite wastewater disposal can contaminate the ground water. c. U.S. Environmental Protection Agency (EPA) Recommendations: The EPA recommends that private well owners test their well water each year for such contaminants as Total Coliform bacteria, Nitrates, as well as any other contaminants that may be of concern in your area. More frequent testing may be appropriate if you suspect a problem. EPA also suggests that you consider testing for pesticides, organic chemicals, and heavy metals before using it for the first time. Please refer to the EPA website on Private Drinking Water Wells at http://www.ei)a.gov/i)rivatewells. d. Other Contaminants: Water testing can be very expensive. It is important that you spend time to identify what other potential contaminants may be of concern. Please refer to the EPA website on Private Drinking Water Wells for more information. Be aware of what and how you use and dispose of household and garden chemicals. Also determine the location of nearby septic tanks or cesspools, and agricultural or industrial activities in the area. General information on known chemical contamination of ground water in Hawaii can be found at the DOH website http://health.hawaii.gov/sdwb/qroundwater-contamination-viewer. e. Laboratories: Whenever possible, utilize a laboratory that is certified or approved for the specific drinking water tests and carefully follow their instructions for collecting, storing, and transporting the samples. Be sure to ask the lab to use EPA approved methods for drinking water analysis. A list of Drinking Water Laboratories Certified or Approved by the Hawaii Department of Health, State Laboratories Division can be found at httos:Hhealth.hawaii.gov/sdwb/approvedIablist/. As lab certification status changes constantly, confirm their status when you contact the lab. Please note that the list is limited to currently regulated contaminants in public water systems. f. Results: Once the lab provides you with the test results, you will be in a better position to determine if your well water is safe to drink or what contaminant you need to treat for. Generally, you should compare the results with Federal (https://www.epa.gov/ground- water-and-drinking-water/national-primary-drinking-water-regulations) and State (http://health.hawaii.gov/sdwb/files/2014/07/MCL-Fct-2014-07-10.pdf) Maximum Contaminant Level (MCL) drinking water standards. Where your test results are greater than the Federal or State maximum contaminant levels, your well water should be considered as unsafe for consumption. DAVID Y.IGE o F„ ELIZABETH A.CHAR,M.D. GOVERNOR OF HAWAII p �g es 9 y DIRECTOR OF HEALTH STATE OF HAWAII DEPARTMENT OF HEALTH P.O.BOX 916 HILO, HAWAII 96721-0916 MEMORANDUM DATE: November 23, 2022 TO: Mr. Zendo Kern Planning Director, County of Hawaii FROM: Eric Honda District Environmental Health Program Chief SUBJECT: Special Permit Amendment Application (PL-SPP-2022-000018) Special Permit No. 1117 (Docket No. SPP-01-000006) Applicant: Alm Pohaku Ho'omaluhia, LLC Request: To Increase the Number of Guest Rooms from Sixteen to Thirty- Six by Constructing Twenty Addition Rooms at Hawaii Island Retreat, a Hawaiian Permaculture and Wellness Retreat. TMK: 5-4-009:014, N. Kohala, Hawaii In most cases, the District Health Office will no longer provide individual comments to agencies or project owners to expedite the land use review and process. Agencies, project owners, and their agents should apply Department of Health "Standard Comments"regarding land use to their standard project comments in their submittal. Standard comments can be found on the Land Use Planning Review section of the Department of Health website: Mips://health.hawaii.gov/epo/landuse/. Contact information for each Branch/Office is available on that website. Note: Agencies and proiect owners are responsible for adhering to all applicable standard comments and obtaining proper and necessary permits before the commencement of any work. General summary comments have been included for your convenience. However, these comments are not all-inclusive and do not substitute for review of and compliance with all applicable standard comments for the various DOH individual programs. Clean Air Branch 1. All project activities shall comply with the Hawaii Administrative Rules (HAR), Planning Dept. Chapters 11-59 and 11-60.1. Exhibit___A__ Zendo Kern November 28, 2022 Page 2 of 4 2. Control of Fugitive Dust: You must reasonably control the generation of all airborne, visible fugitive dust and comply with the fugitive dust provisions of HAR §11-60.1-33. Note that activities that occur near existing residences, businesses, public areas, and major thoroughfares exacerbate potential dust concerns. It is recommended that a dust control management plan be developed which identifies and mitigates all activities that may generate airborne and visible fugitive dust and that buffer zones be established wherever possible. 3. Standard comments for the Clean Air Branch are at: haps://health.hawaii..gov/e/epo/landuse/ Clean Water Branch 1. All project activities shall comply with the HAR, Chapters 11-53, 11-54, and 11-55. 1. The following Clean Water Branch website contains information for agencies and/or project owners who are seeking comments regarding environmental compliance for their projects with HAR, Chapters 11-53, 11-54, and 11-55: haps://health.hawaii.gov/cwb/clean-water-branch-home- pa e/g cwb- standard-comments/. Hazard Evaluation & Emergency Response Office 1. A Phase I Environmental Site Assessment(ESA) and Phase II Site Investigation should be conducted for projects wherever current or former activities on site may have resulted in releases of hazardous substances, including oil or chemicals. Areas of concern include current and former industrial areas, harbors, airports, and formerly and currently zoned agricultural lands used for growing sugar, pineapple or other agricultural products. 2. Standard comments for the Hazard Evaluation& Emergency Response Office are at: https:Hhealth.hawaii.gov/Mo/landuse/. Indoor and Radiological Health Branch 1. Project activities shall comply with HAR Chapters 11-39, 11-45, 11-46, 11-501, 11- 502, 11-503, and 11-504. 2. Construction/Demolition Involving Asbestos: If the proposed project includes renovation/demolition activities that may involve asbestos, the applicant should contact the Asbestos and Lead Section of the Branch at hitps:/ihealth.hawaii.gov/irhb/asbestos/. Safe Drinking Water Branch 1. Agencies and/or project owners are responsible for ensuring environmental compliance for their projects in the areas of 1) Public Water Systems; 2) Underground Injection Control; and 3) Groundwater and Source Water Protection in accordance with HAR Chapters 11-19, 11-20, 11-21, 11-23, 11-23A, and 11- Zendo Kern November 28, 2022 Page 3 of 4 25. They may be responsible for fulfilling additional requirements related to the Safe Drinking Water program: https://health.hawaii.gov/sdwb/. 2. Standard comments for the Safe Drinking Water Branch can be found at: https://health.hawaii.gov/epo/landuse/. Solid & Hazardous Waste Branch 1. Hazardous Waste Program - The state regulations for hazardous waste and used oil are in HAR Chapters 11-260.1 to 11-279.1. These rules apply to the identification, handling, transportation, storage, and disposal of regulated hazardous waste and used oil. 2. Solid Waste Programs - The laws and regulations are contained in HRS Chapters 339D, 342G, 342H, and 342I, and HAR Chapters 11-58.1 and 11-282. Generators and handlers of solid waste shall ensure proper recycling or disposal at DOH-permitted solid waste management facilities. If possible, waste prevention, reuse, and recycling are preferred options over disposal. The Office of Solid Waste Management also oversees the electronic device recycling and recovery law, the glass advanced disposal fee program, and the deposit beverage container program. 3. Underground Storage Tank Program—The state regulations for underground storage tanks are in HAR Chapter 11-280.1. These rules apply to the design, operation, closure, and release response requirements for underground storage tank systems, including unknown underground tanks identified during construction. 4. Standard comments for the Solid& Hazardous Waste Branch can be found at: https://health.hawaii.gov/epo/landuse/. Wastewater Branch For comments,please email the Wastewater Branch at doh.wwb@doh.hawaii.gov. Sanitation /Local DOH Comments: 1. Noise may be generated during demolition and/or construction. The applicable maximum permissible sound levels, as stated in Title 11, HAR, Chapter 11-46, "Community Noise Control," shall not be exceeded unless a noise permit is obtained from the Department of Health. 2. According to HAR §11-26-35, No person, firm, or corporation shall demolish or clear any structure, place, or vacant lot without first ascertaining the presence or absence of rodents that may endanger public health by dispersal from such premises. Should any such inspection reveal the presence of rodents, the rodents shall be eradicated before demolishing or clearing the structure, site, or vacant lot. A demolition or land clearing permit is required prior to demolition or clearing. Zendo Kern November 28, 2022 Page 4 of 4 Other 1. CDC - Healthy Places - Healthy Community Design Checklist Toolkit recommends that state and county planning departments, developers, planners, engineers, and other interested parties apply these principles when planning or reviewing new developments or redevelopment projects. 2. If new information is found or changes are made to your submittal, DOH reserves the right to implement appropriate environmental health restrictions as required. Should there be any questions on this matter,please contact the Department of Health, Hawaii District Health Office, at(808) 933-0917. DeVera, Ashley From: Pruder, Sina L <sina.pruder@doh.hawaii.gov> Sent: Friday, November 25, 2022 10:04 AM To: Planning Internet Mail Subject: FW: Request for Comments on App. No. PL-SMA-2022-018 on TMK: (3) 5-4-009:014 Attachments: 2022-11-23 MEMO TO AGENCIES (PL-SMA-2022-018_AmendSMA-01-003 _SMA-417).pdf Importance: High Aloha, Here are the comments from the Department of Health, Wastewater Branch for this SMA Use Permit: Due to the close proximity to ocean and soil type of the property, the additional wastewater that will be generated from the proposed twenty additional rooms may negatively impact the ocean via the proposed additional individual wastewater systems. Mahalo, Sina Pruder DOH, Wastewater Branch From:Araujo,Jaclyn <Jaclyn.Araujo@hawaiicounty.gov> Sent: Wednesday, November 23, 2022 1:31 PM To: DPW Eng<dpweng@hawaiicounty.gov>; dwsengineeringreview@hawaiidws.org; cohdem <cohdem@hawaiicounty.gov>; HCPDONE <HCPDONE@hawaiicounty.gov>; Fire Admin <fire@hawaiicounty.gov>; Kurashige, Palani <Palani.Kurashige@hawaiicounty.gov>; Kawasaki, Edward <Edward.Kawasaki@ hawaiicounty.gov>; Baybayan, Clinton <Clinton.Baybayan@hawaiicounty.gov>; Henderson, Royd <Royd.Henderson@ hawaiicounty.gov>; April Suprenant<April.Surprenant@hawaiicounty.gov>; Bethany Morrison <bethany.morrison@hawaiicounty.gov>; Kato, Norren <Norren.Kato@hawaiicounty.gov>; Santiago, Hans<Hans.Santiago@hawaiicounty.gov>; Honda, Eric T. <Eric.Honda @doh.hawaii.gov>; Une, Michael Y. <michael.une@doh.hawaii.gov>; Pruder, Sina L <sina.pruder@doh.hawaii.gov>; DBEDT State Planning<dbedt.stateplanning@hawaii.gov>; DLNR.LD.Land <dlnr.land@hawaii.gov>; DLNR.CO.PublicDLNR<dlnr@hawaii.gov>; napuaa@earthlink.net Cc:Andrews,Jessica <Jessica.Andrews@hawaiicounty.gov>; Sauer, Noriko<Noriko.Sauer@hawaiicounty.gov>; Dacayanan, Melissa <Melissa.Dacayanan@hawaiicounty.gov> Subject: [EXTERNAL] Request for Comments on App. No. PL-SMA-2022-018 on TMK: (3) 5-4-009:014 Importance: High Aloha Kakou, Please see attached Memo requesting your review 8t comments on the subject application. Link to review the application in the County's web-based EPIC system can be found below: • Ahu Pohaku Ho`omaluhia, LLC's Special Management Area Use Permit Amendment Application We kindly ask that you submit your comments to plannine@hawaiicounty.gov no later than December 23, 2022. Planning Dept. 1 Exhibit 8 Should you have any questions, please feel free to contact Planner, Jessica Andrews (cc'd herein) at (808) 961-8155. Have a wonderful Thanksgiving with your `Ghana Et take care! 0 Mahalo nui loa, Jacf)m Araujo Planning Commission Support Technician County of Hawaii - Planning Department 101 Pauahi Street, Suite 3 Hilo, HI 96720 Phone: (808) 961-8288 .� County of Hawaii — 07, Zoning& Subdivision Code Update A, Project Website: COHcodeupdate.com Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s)and may contain confidential and/or privileged information. Any review, use,disclosure,or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. 2 F 9 5 g °�q STATE OF HAWAII 9' JOSH GREEN,M.D. OFFICE OF PLANNING GOVERNOR & SUSTAINABLE DEVELOPMENT SCOTT J.GLENN DIRECTOR a`s o N 235 South Beretania Street,6th Floor,Honolulu,Hawai'i 96813 Telephone: (808)587-2846 c Mailing Address: P.O. Box 2359,Honolulu, Hawai'i 96804 Fax: (808)587-2824 Web: https://planning.hawaii.gov/ Coastal Zone Management DTS 20221123162ONA Program Environmental Review December 22, 2022 Program Land Use Commission Mr. Zendo Kern, Director Land Use Division Department of Planning County of Hawaii Special Plans Branch East Hawaii Office 101 Pauahi Street, Suite 3 State Transit-Oriented Hilo, Hawaii 96720 Development Statewide Geographic Attn: Ms. Jessica Andrews Information System Dear Mr. Kern: Statewide Sustainability Branch Subject: Special Permit Amendment Application (PL-SPP-2022-000018), Special Permit No. 1117 (Docket No. SPP-01-000006) Special Management Area Use Permit Application (PL-SMA-2022- 000018), Special Management Area Use Permit No. 417 (Docket No. SMA-01-000003) Request to Increase the Number of Guest Rooms from 16 to 36 by Constructing 20 Additional Rooms at Hawaii Island Retreat, a Hawaiian Permaculture and Wellness Retreat, North Kohala, Hawaii; Tax Map Key: (3) 5-4-009: 014 Thank you for the opportunity to provide comments on Special Permit Amendment Application (PL-SPP-2022-0000018), and Special Management Area (SMA)Use Permit Application (PL-SMA-2022-000018) for amendments to Special Permit No. 1117 and SMA Use Permit No.417, transmitted via memorandum dated November 23, 2022. According to the subject Special Permit and SMA Use Permit Amendment Application, Alm Pohaku Hoomaluhia LLC proposes to increase the number of guest rooms from 16 to 36 by constructing 20 additional rooms at Hawaii Island Retreat. The Retreat is situated on five acres of a 14.5-acre parcel. The previously approved 16-room Retreat has been fully built, which consists of a main building with eight guest rooms, five yurts and three single-story guest hales. Each guest hale consists of approximately 400 square feet or less in floor area and 15 feet in height. The main building, which was designated for seminars, exercise/yoga room, library, dining room, commercial kitchen and related Planning Dept. Exhibit 9 Mr. Zendo Kern December 22, 2022 Page 2 activities, has a floor area of approximately 15,000 square feet and a height of less than 30 feet. As required by Condition No. 5 of the Special Permit No. 1117, at least three of the five-acre area is being used for the cultivation of fruits, vegetables, Ti,plumeria groves, medicinal plants, herbs and flowers. The additional 20 hales, with approximately 400 square feet in floor area each, will be situated within the existing gardens and orchards. The estimated cost of the additional 20 hales is $1,800,000. The subject site is designated Zone X, areas determined to be outside the 500-year flood plain on the Flood Insurance Rate Map. The Office of Planning and Sustainable Development(OPSD)has reviewed the subject application for amendments to Special Permit No. 1117 and SMA Use Permit No. 417, and has the following comments to offer: 1. The OPSD finds that the Special Permit Amendment increases the intensity and scope of commercial activity on State Agricultural District land at the expense of lands currently devoted to active agricultural use. The OPSD is concerned that this amendment will undermine one of the key reasons that the Special Permit(Special Permit No. 1117; Docket No. SPP-01-000006)was approved in 2001, and result in more, higher-value non-farm uses in the Agricultural District, which is contrary to the objective of Hawaii Revised Statutes (HRS) Chapter 205, with the following analysis: The Applicant's parcel encompasses 25.44 acres with a portion along the coastline within the State Conservation District. The portion of the parcel within the State Agricultural District appears to encompass 14.5 acres, hence the need to obtain a Special Permit for non-permitted uses. The County of Hawaii Planning Commission approved a Special Permit in 2001 for five acres to allow the establishment of the wellness retreat. The Applicant seeks to amend the Special Permit to allow the addition of 20 new dwelling units to the currently permitted 16 structures and locate these units on the three acres of land previously designated for agricultural use. Furthermore, Figure 4 of the Application shows the existing retreat structures and the proposed new structures spread out over the entire 14.5-acre lot. The Applicant should clarify the size and boundaries of the Special Permit Amendment area and state whether the Amendment would also increase the area of the Special Permit area from five acres to 14.5 acres. Pursuant to HRS § 205-6, county planning commissions may permit certain "unusual and reasonable uses"within the Agricultural and Rural Districts other than those for which the district is classified. The guidelines for determining "unusual and reasonable"uses are established in Hawaii Administrative Rules, § 15-15-95, and one of the guidelines is that the use shall not be contrary to the objectives of HRS, Chapters 205 and 205A, and the rules of the State Land Use Commission. Mr. Zendo Kern December 22, 2022 Page 3 In its August 14, 2001, letter approving the Special Permit, the County of Hawaii Planning Commission was acutely aware that the primary purpose of the Agricultural District under Chapter 206 is to promote long-term agricultural use of Hawaii's agricultural lands and concerned that the proposed retreat includes agricultural uses. There are numerous references in the permit enabling the cultivation of fruits, vegetables, and medicinal herbs. "In the final analysis, approval of the proposed retreat will promote the use of important agricultural lands within the project site rather than preserving the current fallow conditions of these vital lands." (Special Permit Amendment Application Exhibit A,pg. 13). The Commission's concern in 2001 is also evidenced by the imposition of a condition that required an agricultural plan for the project that includes the cultivation of a minimum of three acres of land within the 5-acre project site. (Exhibit A,pg. 15.) The Applicant is aware of the "unusual and reasonable"use requirement and refers to it directly in their proposed Special Permit Amendment. The application includes the following statement: "More importantly, however, the project will result in the more intensive agricultural use. The project should result in a more intensive agricultural use of the subject site, while fostering hands-on learning of agricultural practices." (Application, pg. 14.) The Applicant seeks to significantly increase the commercial use of the site and plans to locate the additional 20 dwelling units on the lands that the Hawaii County Planning Commission previously required be set aside for agricultural use. (Application, Figure 4.) This appears to violate Condition 5 of the Special Permit. It is also questionable whether the agricultural use will be "intensified"when the addition of these 20 structures actually reduces the amount of land available for agriculture. Generally, besides increasing the quantity of agricultural lands, another indicator of"intensified" agricultural use would be an increase in the number of jobs needed to farm the land. However, while the Applicant states that three acres are devoted to fruit, vegetable, and herb cultivation and that the remainder of the 14.5 acres in the Agricultural District are used for cattle pasture and orchards, the number of additional workers devoted entirely to agricultural activities is unclear. 2. According to the subject request, page 9, the county zoning designation of the site is Agricultural (A-20a), and the subject property is considered non-conforming relative to the area. Please note that the SMA permit regulates permissible land uses that are already allowed by land use policies including zoning designations, county general plans, and community development plans. No development shall be approved with a SMA permit unless the authority has first found that the development is consistent with the county general plan, community plan, and zoning,pursuant to HRS § 205A-26 SMA guidelines. 3. Construction of 10 of new additional 20 units will commence no later than 18 months after approval, and the remaining 10 units will be added approximately five to six years after Mr. Zendo Kern December 22, 2022 Page 4 approval. The application for amendments to SMA Use Permit(SMA 01-000003)No.417 should address whether SMA Use Permit No.417, which was granted on August 14,2001, is expired or has any time restrictions. In addition, the proposed amendments exceed the scope of the original plan and may result in significant modifications to SMA Use Permit No. 417, including cumulative impacts in density and intensity of use of land, which will require a new SMA Use Permit or new conditions,pursuant to the county SMA rules as amended. 4. The proposed development is located within a shoreline parcel. The applicant shall consult with the County of Hawaii Planning Department for the requirement and determination of shoreline setbacks for all new structures and activities. 5. The application shall provide site-specific mitigation measures and/or updates to the public access plan originally submitted to the County of Hawaii Planning Department to ensure that the existing public access to and along the shoreline, including parking, will be protected and maintained from the new additional development. 6. In enacting Act 224, Session Laws of Hawaii 2005, the legislature found that light pollution in Hawaii's coastal areas and artificial lighting illuminating the shoreline and ocean waters can be disruptive to avian and marine life. The exterior lighting and lamp posts associated with the existing and proposed development shall be cut-off luminaries to provide the necessary shielding to mitigate potential light pollution in the coastal areas, and lessen possible seabird strikes. No artificial light, except as provided in HRS §§ 205A- 30.5(b) and 205A-71(b), shall be directed to travel across the property boundaries toward the shoreline and ocean. If you have any questions regarding this comment letter,please contact Shichao Li of our office at(808) 587-2841 or by email at shichao.li@hawaii.gov, or Aaron Setogawa at(808) 383- 3111 or email at aaron.h.setogawa@hawaii.gov. Sincerely, �)t� j-ZL..,-- Scott J. Glenn Director JOSH GREEN,M.D. i�or p _ EDWIN H.SNIFFEN GOVERNOR DIRECTOR Deputy Directors s DREANALEE K.KALILI TAMMY L.LEE ROBIN K.SHISHIDO ROSS M.HIGASHI STATE OF HAWAII IN REPLY REFER TO: DEPARTMENT OF TRANSPORTATION 869 PUNCHBOWL STREET DIR 1129 HONOLULU, HAWAII 96813-5097 STP 8.3513 December 13, 2022 VIA EMAIL: planning(ahawaiicounty.gov Mr. Zendo Kern Director Planning Department County of Hawaii 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Dear Mr. Kern: Subject: Special Permit Amendment Application (PL-SPP-2022-000018) Ahu Pohaku Hoomaluhia, LLC - Hawaii Island Retreat North Kohala, Hawaii Island, Hawaii Tax Map Key: (3) 5-4-009: 014 Thank you for your letter dated November 23, 2022,requesting the Hawaii Department of Transportation's (HDOT)review and comment on the Special Permit Amendment application for the Hawaii Island Retreat. HDOT understands that Ahu Pohaku Hoomaluhia, LLC is proposing to construct 20 additional guest rooms at the approximately 5-acre Retreat. HDOT has the following comments: Airports Division (HDOT-A) 1. The proposed retreat is approximately 3.72 miles from the property boundary of Upolu Airport(UPP). All projects within 5 miles from Hawaii State airports are advised to read the Technical Assistance Memorandum (TAM) for guidance with development and activities that may require further review and permits. The TAM can be viewed at this link: http://files.hawaii.gov/dbedt/op/docs/TAM-FAA-DOT-Airports_08-01-2016.pdf. 2. The project site is approximately 19,959 feet from the end of Runway 25 at UPP. Federal Aviation Administration (FAA)regulation requires the submittal of FAA Form 7460-1 Notice of Proposed Construction or Alteration pursuant to the Code of Federal Regulations, Title 14,Part 77.9, if the construction or alteration is within 20,000 feet of a public use or military airport which exceeds a 100:1 surface from any point on the runway of each airport with its longest runway more than 3,200 feet. Construction equipment and staging area Planning Dept. Exhibit 10 Mr. Zendo Kern STP 8.3513 December 13, 2022 Page 2 heights, including heights of temporary construction cranes, shall be included in the submittal. The form and criteria for submittal can be found at the following website: https://oeaaa.faa.gov/oeaaa/extemal/portal-JSP- 3. Due to the project's proximity to UPP,the applicant and future users should be aware of potential single event noise from aircraft operations. There is also a potential for fumes, smoke,vibrations, odors, etc.,resulting from occasional aircraft flight operations over or near the project. These incidences may increase or decrease overtime and are dependent on airport operations. 4. If a solar energy photovoltaic (PV) system is going to be installed,be aware that PV systems located in or near the approach path of aircrafts can create a hazardous condition for pilots due to possible glint and glare reflected from the PV panel array. If glint or glare from the PV array creates a hazardous condition for pilots,the owner of the PV system shall be prepared to immediately mitigate the hazard upon notification by the HDOT-A and/or FAA. The FAA requires a glint and glare analysis for all solar energy PV systems near airports. The www.sandia.gov/glare website has information and guidance with the preparation of a glint and glare analysis. A separate FAA Form 7460-1 will be necessary for the solar energy PV system. After the FAA determination of the Form 7460-1 glint and glare analysis, a copy shall be provided to the HDOT-A by the owner of the solar energy PV system. Solar energy PV systems have also been known to emit radio frequency interference (RFI)to aviation-dedicated radio signals,thereby disrupting the reliability of air-to-ground communications. Again,the owner of the solar energy PV system shall be prepared to immediately mitigate the RFI hazard upon notification by the HDOT-A and/or FAA. Highways Division (HDOT-HWY) The HDOT-HWY has reviewed the Special Permit Amendment application and has determined that based on the information provided,the proposed project does not appear to significantly impact the State highway system. Therefore, HDOT-HWY has no comments. If there are any questions,please contact Mr. Blayne Nikaido of the HDOT Statewide Transportation Planning Office at(808) 831-7979, or via email at blayne.h.nikaido(a�,hawaii.gov. Sincerely, EDWIN H. SNIFFEN Director of Transportation JOSH GREEN,M.D. SUZANNE D.CASE GOVERNOR I KE KIA'AINA ,��' �95g q` CHAIRPERSON u' BOARD OF LAND AND NATURAL RESOURCES SYLVIA LUKE y z COMMISSION ON WATER RESOURCE LIEUTENANT GOVERNOR KA HOPE KIA'AINA 'o ,'� - "y? MANAGEMENT &�4^ M.KALEO MANUEL �a^d and N , DEPUTY DIRECTOR-WATER of at t a. AQUATIC RESOURCES BOATING AND OCEAN RECREATION 7•r. BUREAU OF CONVEYANCES o COMMISSION ON WATER RESOURCE STATE OF HAWAII KA MOKU`AINA`O HAWAII MANAGEMENT CONSERVATION AND COASTAL LANDS AND DEPARTMENT OF LAND AND NATURAL RESOURCES CONSERVATION E FORCEM NTSOURCES 'S�d[e ofHa` ENGINEERING Division of Forestry and Wildlife FORESTRYAND WILDLIFE HISTORIC PRESERVATION 1151 Punchbowl Street, Room 325 KAHOOLAWE ISLAND RESERVE COMMISSION LAND Honolulu, Hawaii 96813 STATE PARKS December 20,2022 MEMORANDUM Log no. 3912 TO: RUSSELL Y. TSUJI, Land Administrator Land Division FROM: LAINIE BERRY,Wildlife Program Manager Division of Forestry and Wildlife SUBJECT: Division of Forestry and Wildlife Comments for the Special Management Area Use Permit (SMA) Application to Amend Special Permit No. 1117 Requesting an Increase in the Number of Guest Rooms at Hawaii Island Retreat The Department of Land and Natural Resources,Division of Forestry and Wildlife(DOFAW)has received your request for comments for the SMA Application(PL-SMA-2022-000018)to amend the Special Permit No. 1117 (Docket No. SPP-01-000006) from the County of Hawaii on behalf of Ahu Pohaku Ho`omaluhia LLC for the subject parcel located in Hanaula,North Kohala,on the island of Hawaii;TMK: (3)5-4-009:014.The proposed project consists of expanding a 16-room permaculture and wellness retreat situated on a 5+ acre portion of a 14.5-acre parcel to 36,400-square feet, guest rooms or hale. The State listed Hawaiian Hoary Bat or`Ope`ape`a(Lasiurus cinereus semotus)could potentially occur at or in the vicinity of the project and may roost in nearby trees. Any required site clearing should be timed to avoid disturbance to bats during their birthing and pup rearing season (June 1 through September 15). During this period woody plants greater than 15 feet(4.6 meters)tall should not be disturbed,removed,or trimmed. Barbed wire should also be avoided for any construction because bats can become ensnared and killed by such fencing material during flight. Artificial lighting can adversely impact seabirds that may pass through the area at night by causing them to become disoriented. This disorientation can result in their collision with manmade structures or the grounding of birds. For nighttime work that might be required,DOFAW recommends that all lights used be fully shielded to minimize the attraction of seabirds. Nighttime work that requires outdoor lighting should be avoided during the seabird fledging season,from September 15 through December 15,when young seabirds make their maiden voyage to sea. Permanent lighting also poses a risk of seabird attraction, and as such should be minimized or eliminated to protect seabird flyways and preserve the night sky. For illustrations and guidance related to seabird-friendly light styles that also protect seabirds and the dark starry skies of Hawaii please visit https://dlnr.hawaii.gov/wildlife/files/2016/03/DOC439.pdf. State-listed waterbirds such as the Hawaiian stilt (Himantopus mexicanus knudseni), Hawaiian coot (Fulica alai), Hawaiian Duck(Anas wyvilliana), and Hawaiian Goose (Branta sandvicensis) could potentially occur at or in the vicinity of the proposed project site. It is against State law to harm or harass these species. If any of Planning Dept. Exhibit 11 these species are present during construction, all activities within 100 feet(30 meters)should cease and the bird or birds should not be approached. Work may continue after the bird or birds leave the area of their own accord. If a nest is discovered at any point,please contact the Hawaii Island Branch DOFAW Office at(808)974-4221. The State listed Hawaiian Hawk or `Io (Buten solitarius) may occur in the project vicinity. DOFAW recommends that surveys of the area be conducted by a qualified biologist to ensure no Hawaiian Hawk nests are present if trees are to be cut. `Io nests may be present during the breeding season from March to September. The project area is within the range of the State listed Blackburn's Sphinx Moth(Manduca blackburni)or BSM. Larvae of BSM feed on many nonnative hostplants, which includes tree tobacco (Nicotiana glauca),that grow in disturbed soil. We recommend contacting the Hawaii Island Branch DOFAW office at(808) 974-4221 for further information about where BSM may be present and whether a vegetation survey should be conducted to determine the presence of plants preferred by BSM. DOFAW recommends removing plants less than one meter in height or during the dry season to avoid harm to BSM. If you intend to either remove tree tobacco over one meter in height or to disturb the ground around or within several meters of these plants,they must be thoroughly inspected by a qualified entomologist for the presence of BSM eggs and larvae. DOFAW recommends using native plant species for landscaping that are appropriate for the area;i.e.,plants for which climate conditions are suitable for them to thrive, plants that historically occurred there, etc. Please do not plant invasive species. DOFAW also recommends referring to www.planipono.org for guidance on the selection and evaluation of landscaping plants and to determine the potential invasiveness of plants proposed for use in the project. DOFAW recommends minimizing the movement of plant or soil material between worksites. Soil and plant material may contain detrimental fungal pathogens (e.g., Rapid `Ohi`a Death),vertebrate and invertebrate pests (e.g., Little Fire Ants, Coqui Frogs, etc.), or invasive plant parts (e.g., African Tulip, Octopus Tree, Trumpet Tree,etc.)that could harm our native species and ecosystems. We recommend consulting the Big Island Invasive Species Committee (BIISC)at(808)933-3340 to help plan,design,and construct the project,learn of any high- risk invasive species in the area, and ways to mitigate their spread. All equipment, materials, and personnel should be cleaned of excess soil and debris to minimize the risk of spreading invasive species. We appreciate your efforts to work with our office for the conservation of our native species. These comments are general guidelines and should not be considered comprehensive for this site or project. It is the responsibility of the applicant to do their own due diligence to avoid any negative environmental impacts. Should the scope of the project change significantly, or should it become apparent that threatened or endangered species may be impacted,please contact our staff as soon as possible. If you have any questions,please contact Myrna N.Girald P6rez, Protected Species Habitat Conservation Planning Associate at (808) 265-3276 or myna. ig rald- perezkhawaii.gov. Sincerely, LAINIE BERRY Wildlife Program Manager SUZANNE D.CASE DAVID Y.IGE OF CHAIRPERSON GOVERNOR OF K •+ qyy' BOARD OF LAND AND NATLR4L RESOD ROES HAWAII „R� y9�59 g .� COMMISSIONONWAMRRESOURCEMANAGEMENT 1 p ROBERI K.MASUDA R FIRST DEPUTY p�ynd arida ' Ni KALEO MANUEL DEPUTY DIRECTOR WATER AQUATICRESOURCES BOATWGANDOCEANRECREATION BUREAU OF CONVEYANCES IG3 COMMISSION ON WATER RESOURCEMANAGEMENT _ CONSERVATION AND COASTAL LANDS CONSERVATION AND RESOURCES ENFORCEMENT STATE OF HAWAIIENGINEERING F O R ESTRYANWILDLIFE tate of Nab"" DEPARTMENT OF LAND AND NATURAL RESOURCES RAHOOL HISTO C ESSER E N E ISSION LAND STATE HISTORIC PRESERVATION DIVISION STATEPARRS KAKUHIHEWA BUILDING 601 KAMOKILA BLVD.,STE 555 KAPOLEI,11196707 October 5,2022 IN REPLY REFER TO: Zendo Kern,Planning Director Project No.2022PRO1123 County of Hawaii Doc.No.2210G03 101 Pauahi Street,Suite 3 Archaeology Hilo,HI 96720 planning&hawaiicount oovv Dear Mr.Kern: SUBJECT: Chapter 6E-42 Historic Preservation Review— Amendment to Proposed Rezone for the Ahu Pohaku Ho`omaluhia LLC.Property Ohanaula Ahupua`a,North Kohala District,Island of Hawaii TNIK:(3)5-4-009:014 por. This letter provides the State Historic Preservation Division's (SHPD) review of the subject Amendment to a proposed Special Management Area (SMA) Permit Application. The SHPD received the current subject submittal on September 8, 2022. It included a document titled, "AMENDMENT to SPECIAL MANAGEMENT AREA (SMA)PERMIT No.417 and SPECIAL PERMIT(SPP)No. 1117."The applicants are seeking an amendment of the Special Management Area Use Permit(SMA 00-003)No. 415 and a Special Permit(SPP 01-006)No. 117 that are associated with the project parcel; SHPD does not have a record of reviewing these permits. SHPD requested additional information via HICRIS on September 15, 2022 and received the information on September 29, 2022. The amendment would facilitate the expansion of an existing wellness retreat from a 16-room retreat to a 36-room retreat.The project area consists of a 5.00-acre portion of the 25.44 parcel. The amendment document submitted in support of the current project indicates that portions of the current project parcel were impacted by previous ground-disturbing activities associated with sugarcane cultivation, pasture use, and the development of the existing wellness retreat.The document also indicates that Haun&Associates conducted an archaeological inventory survey (AIS) that included the current project area. No historic properties were identified within the then-project area and the negative findings were presented in an archaeological assessment (AA) report (Haan 2001). On September 15, 2022, SHPD requested and received a copy of the AA report on September 29, 2022. The AA indicates that the then-project area includes the current project area and that portions of the current project area were previously impacted by sugarcane activities. A review of SHPD records indicates that the subject project parcel was included in a previous project review (Log No. 2006.2204, Doc. No. 0607JT10) that resulted in a determination of "no historic properties affected." Additionally,historic aerial imagery (1965) indicates that portions of the subject project area have been previously impacted by land clearing activities and sugarcane cultivation. Additionally, contemporary aerial imagery indicates that the proposed project area has been impacted by the development of the existing wellness retreat. Thus, it is unlikely that any unidentified historic properties remain intact within the current project area. SHPD has no objections to the approval of the permit amendment. Pursuant to HAR §13-284-7(e),when the SHPD agrees that the action will not affect any significant historic properties, this is the SHPD's written concurrence and historic preservation review ends. The historic preservation review process is ended. The permit issuance process ma proceed. Planning De:pi. Exhibit 12 Mr.Kern 10/05/2022 Page 2 Attach to permit: In the unlikely event that historic properties such as lava tube openings,concentrations of artifacts, structural remains or human skeletal remains are found during construction activities please cease work in the immediate vicinity of the find, protect the find from additional disturbance, and contact the State Historic Preservation Division at(808)933-7651. Please contact Joshua Gastilo at (808) 933-7653 or at Joshua.gastilo(&hawaii.gov for any questions regarding this letter. Aloha, Alan Downer Alan S.Downer,PhD Administrator,State Historic Preservation Division Deputy State Historic Preservation Officer cc: Jessica Andrews,Jessica.andrewsAhawaiicount.gov DEPARTMENT OF LAND AND NATURAL RESOURCES ENGINEERING DIVISION LD/Russell Y. Tsuji Ref: Special Permit Amendment Application (PL-SPP-2022-000018) Special Permit No. 1117 (Docket No. SPP-01-000006) Request to Increase the Number of Guest Rooms from Sixteen (16) to Thirty- Six (36) by Constructing Twenty (20)Additional Rooms at Hawaii Island Retreat, a Hawaiian Permaculture and Wellness Retreat Location: Hanaula, North Kohala, Island of Hawaii TMK(s): (3) 5-4-009:014 Applicant: County of Hawaii on behalf of Abu Pohaku Ho`omaluhia, LLC COMMENTS The rules and regulations of the National Flood Insurance Program (NFIP), Title 44 of the Code of Federal Regulations (44CFR), are in effect when development falls within a Special Flood Hazard Area (high-risk areas). Be advised that 44CFR, Chapter 1, Subchapter B, Part 60 reflects the minimum standards as set forth by the NFIP. Local community flood ordinances may stipulate higher standards that can be more restrictive and would take precedence over the minimum NFIP standards. The owner of the project property and/or their representative is responsible to research the Flood Hazard Zone designation for the project. Flood zones subject to NFIP requirements are identified on FEMA's Flood Insurance Rate Maps (FIRM). The official FIRMS can be accessed through FEMA's Map Service Center(msc.fema.gov). Our Flood Hazard Assessment Tool (FHAT) (http://gis.hawaiinfip.org/FHAT) could also be used to research flood hazard information. If there are questions regarding the local flood ordinances, please contact the applicable County NFIP coordinating agency below: o Oahu: City and County of Honolulu, Department of Planning and Permitting (808) 768-8098. o Hawaii Island: County of Hawaii, Department of Public Works (808) 961-8327. o Maui/Molokai/Lanai County of Maui, Department of Planning (808) 270-7139. o Kauai: County of Kauai, Department of Public Works (808) 241-4849. Signed: �*� ARTY S. CHANG, CHIEF ENGINEER Date: Dec 13,2022 Planning Dept. Exhibit 13 ,<oF COH PLANNING DEPT DEC 20 2022 Am 11:45 BUILDING DIVISION - DPW �j •� Rt7C,L, i4AMD DR WE COUNTY OF HAWAII— 101 Pauahi Street Suite 7— Hilo Hawai'i 96720 Hilo Office (808) 961-8331 . Fax (808) 961-8410 Kona Office (808) 323-4720 Fax (808) 327-3509 December 21 , 2022 TO: Jessica Andrews County of Hawaii — Planning Dept. Au Puni Center 101 Pauahi St. Hilo HI. 96720 SUBJECT: Special Permit No. PL-SPP-2022-018 Ahu Pohaku Ho'omaluhia LLC TMK: (3) 5-4-009:414 This is to inform you that our records on file, relative to the status of the subject discloses that: ❑ No Building permit was issued for work done on the premise. ❑ No building permit was issued for the change of occupancy. ❑ At the time of completion, the subject complied with all Building Code regulations that were in effect. ❑ Variance from any building regulation (Building, Electrical, Plumbing, or Sign) was/was not granted. ❑ The following violations(s) still outstanding: ❑ Building ❑ Electrical ❑ Plumbing ❑ Sign ® Others: All new construction shall comply with current codes at the time of construction. This status report reflects Building Division records only and does not include information from other agencies. Should you have any questions regarding maters contained herein, please feel free to contact Chris Domino at phone no. (808) 323-4720 Planning Dep . Exhibit 14 Hawaii County is an Equal opportunity Provider and Employer BO-1a SNT OF TyF Flsn a U.S. W �2 United States Department of the Interior SERVICE FISH AND WILDLIFE SERVICE �4RCH 3 $a9 Pacific Islands Fish and Wildlife Office 300 Ala Moana Boulevard,Room 3-122 Honolulu,Hawaii 96850 Subject: IPaC generated official species list for the Pacific Islands Fish and Wildlife Office Dear Action Agency or Applicant: The Pacific Islands Fish and Wildlife Office (PIFWO)is transitioning to the Information for Planning and Consultation (IPaC) online portal, https:Hipac.ecosphere.fws.gov/for federal action agencies and non-federal agencies or individuals to obtain official species lists, including threatened and endangered species, designated critical habitat, and avoidance and minimization measures to consider in your general project design. IPaC has been used by continental USFWS offices to provide official species lists and avoidance and minimization guidance since 2017. Using IPaC expedites the process for species list distribution. Obtaining a species list in IPaC is relatively straightforward and takes minimal time to complete. Step by step instructions are included below. Please note that under 50 CFR 402.12(e) of the regulations implementing section 7 of the Act, the accuracy of your species list should be verified after 90 days. New information based on updated surveys, changes in the abundance and distribution of species, changed habitat conditions, or other factors could change the species list. Verification can be completed by visiting the IPaC website at regular intervals during project planning and implementation. An updated list may be requested through the IPaC system by completing the same process used to obtain the initial species list. We hope this process provides efficiencies to our partners in obtaining a species list. For federal action agencies, it also opens additional IPaC functionality that the PIFWO office is still working on, such as the use of Determination Keys for informal section 7 programmatic consultations. We will let our agency partners know when that functionality becomes available. If you have questions about a species list obtained through the IPaC system or need assistance in completing an IPaC species list request,please contact the Service at 808-792-9400 or via email at pifwo admin(a,fws.gov. We appreciate your efforts to conserve listed species across the Pacific Islands. Planning Dept. Exhibit 15 INTERIOR REGION 9 INTERIOR REGION 12 COLUMBIA—PACIFIC NORTHWEST PACIFIC ISLANDS IDAHO, MONTANA*, OREGON*, WASHINGTON AMERICAN SAMOA, GUAM, HAWAII, NORTHERN 'PARTIAL MARIANA ISLANDS Jonathan Christensen 54-258 Lokahi Rd. Kapaau Hawaii, 96755 808-638-1935 To whom it may 9N PLANNING DEPT Y concern DEC 12 2022>}I22:19 Planning Department RECD BY MAIL 101 Pauahi Street Hilo HI 96720 RE: Special Permit SPP 01-000006 TM 5-4-009: 014— Hawaii Island Retreat LLC. I am writing regarding planning consultant Sidney Fuke's letter to me on November 25 regarding the filed amendment to SMA 01-000003 and SPP 01-00006. My interest in this matter is clearly distinguishable from the general public_ I am impacted detrimentally by the existing operations of Hawaii Island Retreat and will be further impacted by the proposed expansion. The applicant's property is accessed via a dirt road that runs across my property (via an easement) for more than 100 yards. The road is on the northeast side of my property, windward of our home. The Hawaii Island Retreat guests do not consistently observe reasonable speeds while driving on the road. The noise of speeding cars and work trucks on the bumpy road is constant. Additionally, there are many curves and hills blocking the view along the roadway. Despite deliberate, slow, careful driving on our part there have been several close catis with speeding drivers. In two cases we were forced off the road by careless drivers near the crest of the hill just above our driveway -these were both drivers using the road to access the retreat. Additionally, the road is often dry and dusty. The constant traffic to and from the retreat grinds the road surface into a fine powder. Huge plumes of fugitive dust blow across our entire property from the road and into our home, kitchen, bedrooms.. etc. Recently we built a 6' stone wall along the road in an attempt to mitigate the dust. It was a very costly and time-consuming project. It helps, but it is by no means a cure. More than doubling the capacity at the retreat will make this situation much worst. The only reasonable answer is to have the road paved to eliminate the dust and to install speed bumps to keep the visitor's speed reasonable. Please acknowledge receipt of this communication. I can also be reached at jc a@simplertc.com. Jonathan hristensen Planning Dep,. Exhibit 16 December 27, 2022 To: Michael Vitousek, Chair Leeward Planning Commission From: Growth Management Group North Kohala Community Development Plan Subject: Ahu Pohaku Ho'omaluhia LLC Amendments to PL-SMA 2022-000018 and SPL-SPP 2022-000018 for TMK 5-4-009:014, North Kohala Aloha Chair Vitousek and Commissioners, The Growth Management Group of the North Kohala Community Development Plan Advisory Group discussed the above items 1 and 2 on your agenda at its monthly meeting December 14, 2022. Ms Jean Sunderland and her representative attended the meeting to explain the intent to expand the number of units available at the Hawaii Island Retreat. She explained that all existing structures are covered by county permits. The new hale units will be within the 5-acre allocation for the existing SPP and SMA. They will be scattered among two existing clusters of trees and therefore not obtrusive. The retreat currently employs 12 full-time employees and three paid agricultural interns. The Public Access Grant of Easement for vehicle and pedestrian use was recorded in 2009 and includes an adjoining coastal property. The finding of the group is that the amended SMA and SPP will benefit the community in creating additional jobs, reflect the district's agricultural nature, and provide a distinctly Kohala experience for visitors and retreat attenders. Because the Public Access Agreement is one of the first approved in Kohala, the wording may not be as binding to the county as the current wording proscribed by the Planning Department. The group decided to request that the Kohala Community Access Group, also a part of the NKCDP, review the plan to suggest any changes, if needed. Otherwise, we support your passage of the amendments to the SPP and SMA permits. Toni Withington, Acting Chair Planning Dep;. Exhibit 17 DeVera, Ashley From: srmcintyre@comcast.net Sent: Monday,January 2, 2023 7:13 PM To: LPCtestimony Subject: Public Testimony application by AHU POHAKU HOOMALUHIA for amendments to SPA#417 and SUP #1117 Attachments: IMG_6119J peg; IMG_6140 jpeg; IMG_6132J peg; IMG_5989 jpeg TO: Leeward Planning Commissioners Kona Planning Office West Hawaii Civic Center 74-5044 Ane Keohokaiole Highway Building E, 2nd Floor Kailua-Kona, HI 96740 FROM: S. R. McIntyre PhD and Cam McIntyre MD 54-278 Honopueo Road Kapa'au, HI RE: Public Testimony for AHU POHAKU HOOMALUHIA LLC Application for amendments fo Special Management Area #417 and Amendment to Special Use Permit#1117 Date: 1/2/2023 This email is to give public testimony to the Leeward Planning Commisioners - asking them to strongly REFUSE the application for amendments to SPA #417 and SUP #1117 due to the enormous burden their retreat expansion from 15 to 36 hotel rooms will have on increased road use on the current, unsafe, 112 mile private Maluhia Road connecting Akoni Pule Highway to Pratt Rd and Lokahi Road. The construction and maintenance of Maluhia Road by Ahu Pohaku Hoomaluhia LLC created years of litigation and has been problematic for seventeen TMKs surrounding lots due to non- compliance of the LLC's Hawaiian Retreat Center not adhering to their special use permit. (see attached pictures of blind curves and culvert at the bottom on Maluhia) In their Special Use permit #1117 it states the Maluhia road should be 20 ft wide. The pavement is only 15 feet wide...and the remaining 5 ft was to be maintained by the commercial retreat- AHU POHAKU HOOMALUHIA. This has not happened. The road is unsafe, steep, with poor signage and lots of water lines on the easements. Special Use permit#1117 requires an insurance policy for liability for Maluhia and public access to shoreline. Only recently a public access sign has gone up due to the proposed sale of AHU POHAKU HOOMALUHIA - retreat center for an approximately 15 million dollar price tag which is still in negotiation with Hawaii Life Reality. Given a proposed sale the owners need hotel room expansion on the 5 acres they are carving out for sale at this price. The Hawaiian Retreat Center as a commercial venture and has only Maluhia Road to access their hotel from the highway...they need to bear the cost of maintaining this road for commercial use. Maluhia Road would be much safer if the county would provide oversite on their special use permit#1117 which requires AHU POHAKU HOOMALUHIA to maintain/mow the sides of the Maluhia Road. Planning Depi. 1 Exhibit 18 Again I request you vote no for these amendments and review the special use requirements and help enforce them to keep our private Maluhia Road safe for the many community members that use this road. 2 1 t V1 WAW- - - , _ .., / r ^a L� - j•!• tel' r �� ��...� = ?p }I '` \ _ - �L. - RrY}/�. tom` +'� A.>✓ _ i I,��J��. r �! .'- ; i,�• 'r.•l.'� ri \,'. u i � L r i `ekf f V fir} l's itv-- dl r 1 •+ r r �, i ..��,`w�`•' .-.s�.{.,�z `` ', � A r , �,: _ ,ori �_ _ S' - ti f � _ '•: .!.s �-`� .. `� fir.' `� 'K, wr AE ��Y� y r / r IL 44 I•r3�.'� 't���'*L y�li�r �! 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As a disclosure, I am a Broker-in-Charge and Director, Conservation and Legacy Lands with Hawaii Life Real Estate, and in this capacity the members of Ahu Pohaku Ho`omaluhia LLC are my clients. I am writing, however, as a member of the Kohala Community who is and has been an active volunteer with multiple community groups beginning with my participation in the creation of the 2008 North Kohala Community Development Plan - as a member of the logistics team doing community interviews in 2006, and as a focus group member working with the consultant and Steering Committee in 2007. 1 am currently part of a working group for the "Kohala Community Plan", an effort to recreate the community input process used for our 2008 CDP, and work with existing CDP subcommittees to update goals from the 2008 plan. From our initial "talk story" sessions and meetings with the subcommittees, we are currently hearing a very different community opinion around facilities such as Hawaii Island Retreat than the sentiment reflected in the 2008 NKCDP. Page 20 of the 2008 NKCDP addressed community concern over the number of special permits issued in the 2000s, of which 10 were for overnight accommodations: One of the issues that has raised the most concern with Kohala residents is that of Special Permits, especially those that allow overnight accommodations, such as "retreats. " While it is true that 10 of the 17 Special Permits issued in the 2000s do allow overnight accommodations, 8 of those 10 are parcels owned by one owner (the New Moon Foundation). Therefore, the bigger problem may be those land owners who are allowing overnight visitors without the appropriate permits. Still, community sentiment is generally that Special Permits that allow large-scale overnight accommodations should not be approved, due to the negative impacts that such developments have on the area's limited infrastructure and small-town feel. The concern at the time was that the approved special permits would collectively equal a small hotel in excess of 300 rooms. Here are key points of what has changed since this was written in 2007: Planning Dc-pt. 1 Exhibit 19 • Only two of the four landowners with special permits for overnight accommodations have completed the anticipated construction. One is the applicant with 16 rooms. The other is the "New Moon Foundation" property, now `tole under the ownership of Hawaii Community Foundation, consisting of 10 new bungalows and a 40-bed dorm (the renovated Girls School). Both of these entities serve primarily educational and non-profit groups rather than individual travelers. • Two of the four special permits have lapsed. One was for a camp housing 75 persons, on a parcel just mauka of Hawaii Island Retreat on Lokahi Road. The other was the Vipassana Hawaii planned retreat center of 100 rooms in Halawa. I was the listing agent for both of these properties when they sold to new owners who allowed the permits to lapse. • The Kohala Club Hotel, located at the turn-off to Hawaii Island Retreat from Akoni Pule Highway, is being converted into a medical facility, a loss of 9 rooms primarily booked by local families. • Licensed accomodations in Hawi town include the Kohala Village Inn with18 rooms, the Plantation House B&B with five rooms and Puakea Ranch with four guest cottages. • The majority of the overnight visitors to Kohala are being housed in hosted short term vacation rentals (transient accommodations rentals). Hosted rentals were required to obtain licenses in 2018. Proposed regulation of unhosted rentals will mean most of those in operation in Kohala will not qualify and will no longer be able to operate for a variety of reasons: ag zoning, unpermitted construction, failure to have paid GET and TAT. In summary, the large-scale building of tourist accommodations feared by the community did not occur. The facilities offering overnight accommodations, including Hawaii Island Retreat, have proven to be good community partners. In the case of Hawaii Island Retreat, the `aina is in better shape and producing food as was intended as a condition of their permit; they host community fundraising events; and they maintain shoreline public access and steward cultural sites. Current Community sentiment as expressed in our Kohala Community Plan talk story sessions strongly favors concentrating visitor accommodations at the existing inns and retreats, as opposed to the proliferation of TARS. The business model of Hawaii Island Retreat is also in keeping with the broader emphasis on regenerative tourism across Hawaii. As a final observation, the Applicant has been proactive in presenting the proposed amendments in advance of this Commission hearing. Applicant met with the CDP Growth Management Subcommittee on December 14, 2022 to present the applications and answer questions. At that meeting Applicant agreed to also work with the CDP Community Access Group to review the terms of their grant of public access, which was one of the first in Kohala, to answer any concerns that group might have given that subsequent grants might have additional or different provisions preferred by the Community. Our Kohala Community Plan working group has as one of its goals the engagement of all stakeholders, so that future planning decisions for our community will be vetted through a more collaborative process than has been the case historically. We hope that encouraging landowners to engage more proactively as this Applicant has done will aid you as Commissioners in having the information you need to make informed decisions. 2 Thank you for your consideration. Beth Thoma Robinson, R(B) Director,Conservation and Legacy Lands HAWAI ' I LIFE beth@hawaiilife.com 808-443-4588(Direct) 69-201 Waikoloa Beach Dr, Suite 2F14, Waikoloa, HI 96738 HAWAI'IISLAND I O'AHU I MAUI I KAUA'I I HAWAIILIFE.COM FOUNDING MEMBER OF FORBES GLOBAL PROPERTIES 3 DeVera, Ashley From: Katherine <k2pome@gmail.com> Sent: Friday, January 6, 2023 1:50 PM To: LPCtestimony Cc: Karl Taubman; Katherine Subject: TESTIMONY REGARDING Applicant:AHLI POHAKLI HOOMALLIHIA 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 1 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. 11 17 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 Planning Dept. i Exhibit 2U 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 S 15-19,000,000. It appears that they want to add value to their real estate at the expense of the community. On 1212$122, 1 spoke with Jessica Andrews, the planner in charge of this application. She was riot aware of this fact. Why was this 110t 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-muted. 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 cast 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 5P 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. Sec 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 518"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 doe 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 3 January 6, 2023 To: Leeward Planning Commission 1 Kona Planning Office West Hawaii Civic Center 74-5044 Ane Keoholkalole Hwy,Building E, Kailua-Kona, HI 96740 From: Karl Toubman and Katherine Pomeroy PD Box 1556.Kapa'au,HI 96755 Cell: 808.895.1911 RE: Applicant: AHU POHAKU HQDMALUHIA LLC(Formerly Robert Watkins and Jean Sunderland). ( PI-SMA-2022-000018). Special Permit(SPF 01-000006 and PL-SPP 20222022-000018,Tax Map Key: 5-4-009:014 AND Application for an amendment to Special Permit No. 1 117 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: I. Malu hia 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,x,�ith 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 S15-19,000,000. It appears that they want to add value to their real estate at the expense of the community. On 12128122,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 T]NK 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 com munity 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 518"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. 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 1f 7' - �i •i'�,�P,-._ 2°�''_ .- _-+fes• P A.�� � ' -' - yam! � � f j � i_e�V� � w�`✓C OF Ml s,�fed` .�' 'L.� r . nr>>.d� ` �•'� ',,' /� � �f.�� yeOlAl _..` I tip e.8t / u .� '�/yMr®� ..•�• .�� .F '� �1°!�`�1Fp'��; :�.il�y; ���5 yi�,Y��jy �� �l- "�R 'AW Yl a, qv-,w~iL�V►� _ \ \'�v`+ f1�.�! �lh '�' L•,"..4•:t'. t T. , � - �..irr-• /r•,.I(jr. +. .,•,,L- I r�r ty f.• c top 41 Al, loo V-4y Apw; el MA PA Me— !4► ,\ i�rY b;£. � ! , .,iI•'>>i`\Z� +.f1Iwo �irilCG AI'�ti�'\.�� � .+.'�< n � ' f "W» fs �� � _j. 1�..�� �G�`��"�•A" ar+ �" �,'� '� �:(�\ /ts�. '�ry� 4�4 ,1 ..a.�;�'I��,�:Jt• �,j�; 41 ��'����� �..1.i�.�i �.•i � � � t,,'gyp•' 1 'y�{y°"ri .91 of V, 11 IF I el-11 �p l+ f s �r� I rab ���t ed'� �.►+t 1 �� �� f• �.�►a1r�.• t � Ili � / J x° 1 ■R % Ik h I�` a 1'/ / � � .;moi• �.. � � ,'� y _ Notice Pursuant to County Subdivision Code SectioofiHa wailn 23,.58.. , �,+ Request: Consolidation o f two existinglots and resubdivision into twoNumber of Lots : 2 dots Size of Property: 53 .433 Act-es Tax -Ma Key: 5-4.009: 0 �p 4 & 020 contact e ;t the offices of the Cr-o►;►uon, tHaowf aH; awai;P,a a"'tional infrmadon nint �01PLah► street, sate 3,96720 epartment a $28gphone: 808_961' � ar .:. -638152 P ass -so m LAND COURT REGULAR SYSTEM Return By Mail 0 Pick-Up L^J To: CARLSMIT 4 BALL LLP STEVEN S.C. LIM 121 Waianuenue Avenue Hilo,Hawaii 46720 TITLE OF DOCUMENT: AFFIDAVIT OF STEVEN S.C, LIM RE ERRATA FLY SHEET TAX MAP KEY(S): 5-4-009.005 and 0 14 4926-4422-9123103-02-09 (This document consists of 3 pages.) AFFIDAVIT OF STEVEN S.C. LIM RE ERRATA FLY SHEET STATE OF HAWAII } )SS. COUNTY OF HAWAII } STEVEN S.C. LIM,being first duly sworn on oath,deposes and says that: 1. He is a partner in the law firm of Carlsrnith Ball LLP,attorney for Declarant Robert R. Watkins and Jean M. Sunderland,husband and wife, fee owners Robert R. Watkins and Jean M. Sunderland, husband and wife,are the owners in fee simple of the following: (a)Lincoln Burial Plot, being further identified as Tax Map Key No. (3)5-4-009:005, (b)Lot 16,being further identified as Tax Map Key No. (3)5-4-009:020, and(c)as to an undivided 50%interest in and to Lot 9, being a portion of Grant 2732 to Kamaka, being further identified as Tax Map Key No.:(3)54-409:014,and Charles A. Anderson and Lisa L. Anderson, husband and wife,are the owners in fee simple,as to an undivided 50%interest in and to Lot 9, being a portion of Grant 2732 to Karnaka,being further identified as Tax Map Key No. (3)5-4-009:014. 2. The fly sheet attached to the Declaration of Public Access Easements recorded in the Bureau of Conveyances of the State of Hawaii on February 27, 2009 as Document No, 2009-029853, erroneously referenced the instrument as a Declaration of Access and Utility Easements, and should have referenced the instrument as a Declaration of Public Access Easement. FURTHER YOUR AFFIANT SAYETH NAUGHT. STEVEN LI - 2 - 7"E OAIGINN.OF Ting RECO;DED AS F��MENT STATE OF}{AW.V1 8!?r1�u OF CONVEYANCES c Doe 2009.0 y FES 27 200" 0.00AM LAND COURT REGULAR SYSTEM Return By Mail u Pick-Up ❑ To: STEVEN S.C. LIM CARLSMITH BALL LLP 121 W$ianuenue Avenue Hilo,H1 %720 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-M:005 and 014 4834-0642-545911/$109 STATE OF HAWAII } ) SS: COUNTY OF HAWAII } On this MARC*4 , 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. �,'����111111 I►y�R�. N NA ISA y.. .. . trate► Notary Public, State of Hawaii ,��f'•r � �:*`► My commission expires: 6- 14-00 ►1111�1H NOTARY CERTIFICATION STATEMENT Document Identification or Description: Affidavit of Steven S.C. Lim re Errata Fly Sheet Document Date: I1Aw"4•+ _3 , 2009 No. of Pages(including this page): Three(3) s Jurisdiction(in which notarial act is performed): Third Circuit MAjW'w L3 9 Signa of Notary D t ❑f tarixation and erd ion Statement LEOANNALISSA YUNG Printed Name of Notary DECLARATION OF PUBLIC ACCESS EASEMENTS This Declaration of Public Access Easements("Declaration")is madDtUA� e this da of 'r' , 2008, by ROBERT R WATKINS and JEAN M.SUNDE y 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 46776(hereinafter collectively referred to as "Declarant"). RE.C11A1,S: WHEREAS, ROBERT R. WATKINS and JEAN M. SUNDER-LAND, 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) 54-069:005, (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 Karnaka, 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_ SLTNDERLAND 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 KohaM County and State of Hawaii, under Subdivision Application No. 05-000(}42 (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 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 x following perpetual non-exclusive easements for vehicular and pedestrian public access over, f 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 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, -I- 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. H 17, 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(S)perpetual non-exclusive easements for pedestrian purposes over, upon,across and through the Subject Property owned by Declarant, as more particularly depicted on Exhibit 2,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(ExfGbit 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); 1 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 PA4 for pedestrian access purposes being 4-ft. wide,containing an area of 4.005 acre,affecting Lot 9B (Exhibit 7); 5. Easement PA-5 for pedestrian access purposes being 4-R. wide, containing f an area of 0.021 acre,affecting Lot 9B (Exhibit 8); I 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) 5-4-009:02()(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 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 ofDeclarant'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 necesWry record amendmentslo 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. Severabilgy and the Rule A inst Pe tuitim 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 -6- 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. Ansi mnent 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. I. Applicable Law. This Declaration shall be governed by the laws of the State of Hawaii both as to interpretation and performance. J. Counte arts/Facsimile Si tures. 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 shaTI not be necessary to produce or account for more than one such counterpart. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK -7- r G 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 O NALE"being 16,554.10 feet north and 14,978.92 feet east and running by azimuths measured clockwise from true south: I. 1720 00' 71.98 feet along Easement J(Lot 8 (Portion of Grant 2732 to Kamaka)); 2. 262° 00' 20.00 feet along the remainder of Easement j-1; 3. 3520 00' 32.48 feet along Easement J-2; 4. 1$° 51' 32" 44.27 feet to the point of beginning and containing an area of 0.024 Acre. .-[ K1$ LLWA ucENSEn1r: PROFESSIOML u+N❑ RD NEY KA • SURVEYOR * Licensed Professional Land Surveyor No. 2871 Certificate No.2671 Expiration Date of License: 4/30/10 July 8,2008 HILO ENGWEERING,1NC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3nd Div. 5-4-09:Portion 14 loft FXHIBIT z t - r y I N� t )> w co > torx8 0 mc W Pi CD CIA Cb M m coo f f ti, t I a M 1 o Ls b- w r^s r _ r • Ro 0 ' � z G J:OW002 021e Charlie AndersonVOR.ESMT4.1.dwg j ii A' > t6 LO Alt V3 a. CQ 4r ILQ 3C W1 Hip, qc dz .146 PI; Alf f f Po a f S v a �� d PO ❑ se H tit zrp e C r ■m .. * : i to i , 4 •_��Far A R :1-Alp �,� *F +: •• rot �. � ' �:_ n _• ova , r i �s� r �,T INL rr ', ._ w- + +vim• /. �"/JJ till_ jr( 0 Ck yy ^ � �'-s..,.� .:�.f r E• P �4 •.� � p¢fid EXHIBIT I ST_ATE OF HAWAII COUNTY OF HAWAIIss. } The attached document: Declaration of Public Access Easements, dated DEC 2 9 which consists of � r Hca ,pages{including this page}, was executed by LISA L. ANDERSON on this 2�t 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. ' �� AIL 0 ,�u�ttlllllrrryi�� �ouE tary Signature] Qrti:......'F 90 mak-;o 1 M4NQUE M. EDWARDS NOTARY PUBLIC,STATE of HAWAII 'rrt... e�+c:;'�` Printed 151ON EXPIRES: 11/412010 J 4` p~ Name: ly�'*r�III 11 N My commission expires: STATE OF HAWAII } } ss. COUNTY OF HAWAII ) The attached document: Declaration of Public Access Easements, dated DEC Z 9 $ which consists of r[Q _ { �pages(including this page), was executed by CHARLES A.ANDERSON on this :fie day of 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. `�X�%%1111111101111►"/Z 640 [Notary Signature] go- MaNIQUE M. EDWARDS HOTARY KJOUC,STATE OF NAWAN Printed CommISSIQN EMiZES: 11/4/2010 VqF., P y ►►►spIIIIII►►►►►►� Name: My commission expires: i 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 Cl-IA ES A.ANDERSON LISA L. DE O ' Y -H- IN WITNESS WHEREOF,the Declarant has hereunto caused this Declaration to be executed as of the date hereinabove set forth. BERT R. WA M. UNDE 1 � CHARLES A.ANDERSON LISA L. ANDERSON STATE OF HAWAII COUNTY OF HAWAII The attached document: Declaration of Public Access Easements, dated a o which consists of T C-SAYL)pages(including this page), was executed by ROBERT R. WAMNs on this /4 da of Dec. 5: � . P Y , 200&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, p[Notary Nignattatj +Cro 94-48$ Printed Mary Lou C. 18. My commission expires: Nd AFtY CER i fC 51 /1 �7 Doc Date: - r70 9 #Pages: Name: t � .7►crjhird Cir-uUt D=DeScripd(w e? � ..„ ....,,,, Sir 0%j Date A. '• v. A�T ;o pUSLIC * • . 94-Qgg-�� OF i STATE OF HAWAII } } COUNTY OF HAWAII } S5. i The attached document: Declaration of Public Access Easements, dated ��J L r c— I � 7 ri r nTJ which consists of — C-2L2_}pages (including this page), was executed by,LEAN M. SUN ERLA.ND on this r� da of , 2041 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 armed,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, C. 41. a. l' 0 . Ply 1C [Notary Sign e] . 94.489.-- OF 9,'of Printed 14:T,3 i OU C rgoo"&clo Name: 1 My commission expires. �� I NOTARY CERTIFICATION Doc.Date: k it Pages- r y Name' "A►^CT 4 t. i n!es Th id Cirrult Toa.Dascxipsw: ..a 15;Z &22Z r r O&, P si� �� +TA R� o BL C . g4-489.•' .cpj;• ,. OF ,,, ' r . f CENTERLINE EASEMENT PA-5 For Public Access Purposes (4 R. 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 G HALE" being 16,645.71 feet north and 15,442.55 feet east and running by azimuths measured clockwise from true south: 2. 170 00' 97.00 feet, 2. 350° 00' 40.00 feet; 3. 323° 00' 35.18 feet; 4. 34511 00' 52.74 feet to Easement H and containing an area of 0.021 Acre. OCENSED PROFES51oNA� LAND V, • surroR RG NEY . KAWAMURA Na. 2671 Licensed Professional Land Surveyor II U 9 Certificate No. 2672 Expiration Date of License: 4130114 May 7}2008 HILO ENGINEERING, INC. 484 Kalanikoa Street .. Hilo,Hawaii 96720 Tax Map Key: 34 Div. 5-4-09:Portion I4 1 of I EXHIBIT 8 i Portion of Easement H For Public Access Purposes Beginning at the east corner of this parcel of land,also'being the south comer of Lincoln Burial Plot Easement on the westerly boundary of Lot 16(Portion.of Grant 2754 to Kalarna 1), the coordinates of said point of beginning referred to Governrhent Survey Triangulation Station "PW 0 HALE"being 16,337.86 feet north and 15,564.71 feat east and running by azimuths measured clockwise from true south: 1. 39° 23' 35.00 feet along Lot 16 (Portion of Grant 2754 to K lama 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 tot r6(Portion of Grant 2754 to Kala na I y; Thence along a carve to the right with a radius of 160.00 feel,the chord azimuth and distance being: 5. 184° 46' 03" 245.97 feet; 6. 32411 53' 145.00 feet to the point of beginning and containing an area of 0.269 Acre. A. �V ucErsEn q4 PRaFEssioL tANo * SURVEYOR RG NE M. KAWAMURA Ho. 2671 4,• Licensed Professional Land Surveyor ti 'U 5 Certificate No.2671 Expiration Date of License: 4130110 May 7,2008 HILO ENGINEERING,INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key; 3'd Div. 5-4-09:Portion 14 I of I EXHIBIT 9 EASEMENT H For Access and Utility Purposes (20 ft.wide) Beginning a the east earner 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 Govennrnent Survey Triangulation Station "PUU G NALE"being 16,337.86 feet north and 15,564.71 feet east and running by azimuths measured clockwise frorn true south: 1. 390 23' 35.00 feet aloe L 16 along (Potion of Grant 2754 to Kalarna 1); 2. 1290 23' 122.24 feet; Thence along a curve to the left with a radius of 140.00 feet, being: the chord azimuth and distance 3. 3140 51' 46" 266.09 feet; 4. 2430 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. 2570 46' 07" 127.46 feet; Thence along s curve to the left with a radius of 80.00 feet, the chord azimuth add distance being: 6. 2390 16' 0T' 87.77 feet; �• 7. 2060 00' I23.6I feet; Thence along a curve to the:right with a radius being: of I00.00 feet,t1he chord azimuth and distance S. 2330 00' 90.80 feet; 9. 2600 00' 104.49 feet; 10. 290 00' 25.74 feet along Lot 15 (Portion of Grant 2754 to Kalama 1); 11. 800 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 discmcc being. 12. 53° 00' 72.64 feet; 13. 260 00' 123.61 feet; Thence along a curve to the right with a radius of 100.00 feet,the chord azimuth being: and distance I4, 590 16' 07" 109.71 feet; Thence along a curve to the Ieft with a radius of 230.40 feet,the chard 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. 1490 00' 319.22 feet; 18. 324° 53' 145.00 feet along Lincoln Burial Plot to the point of beginning and containing an area of 4.671 Acre. M K4 l� PROFESSiaNHI �y '60 LAND �. qr SUWVEYoR RODNEY .KA W 'y No. 26" 4, Licensed Professional Land Surveyor R11 U.15 Certificate No. 2671 Expiration Date of License: 4/30104 Revised: November 5,2002 October 24,2002 HILO ENGINEERING,INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: Yd Div. 5-409:Portion 01 2 of 2 LEGAL.pESCRIPTfON OF EASEMENT A-1,A 4.00(FOUR)FOOT WIDE EASEMENT FOR ACCESS PURPOSES AFFECTING LOT 11k an 18.210 ACRE TRACT OF LAND(TMK(3)5--4_009:020) (Page 1 of 2) Being 4-00(four)feat wide along the North and W WOW Side of Ease "C", being a P�1an 01 GO:LdA of existing oKai eMnt"1fi.��and along County and State of Hawaii, containing an area of 5 3 M 2754 to Kalan+s 1, e�rte at Honopu� Bounded and described as per survey as foiklws: square feat; more or leas, and thus Beginning N a point for the Nor mej corner of this line of said Lot 18, beim the West line o!Lai 22 of th�i�described fit,being in the Fast 8°11' from the Gammon North Garner said ! i8 and ' sold Pew being 88.11 fest, beginning referred to GovemInent Suatjon 22, *0 coordlr,ates aif saW omt feet North and 18,918.32 feet East andfrlgby azkntrft Sfabion "PUU O HALti:� being 17,439.78 measured Nackrvise from True South: Thence ak"V the remainder of GrRW 2754 with the fWk,,W q twenty-two(22)cmuirses: 1. 8'11'00" 4.11 fleet along Lot 22 to a point atEasernent"VL-5'. (7)avursea."the Easement'VL-5', with the foflawing seven 2. 85'00'00" 108.34 feet to a point; 3. 98°00'00" 188.41 feet to a point; Thence 3"a curare to the left with a radius of 45.00 feed the chord azimuth and distance being: ¢. SB"30'00" 59.84 feet to a point; 5. Ira~ " 78.62 feet to a point; � 8. 3590000" 155.00 feet to a point 7. 27°00'00" 202.00 fit by a Pont 8. 19°00'00" 185.00 feet to a paint; 3]co�the a ern-C•, with vHowing three feet,Thence chordaaazziim curve anted distance ft with ngi. of 355.00 9. 34030'04" 73.80 feet to a paint; 10. 29"00'00" 78.20 feet to a point; 11. 23000'00" 239.17 feet to a point; 1 EXHIBIT 1 i J Continued Easement A-1, 12. 80000'80" 4.77 feet along Easement-H", to a point; Thence upon and across said Lot 18, with the following ten (10)courses. 13. 283000'08" 241.98 feet to a point* 14. 209°00'80" 78.41 feet to a point; Thence along a curve to the right with a radius of 388.08 feat,the chord azimuth and distance being. � 15. 214°28'47" 73.83 feet bo a point 18. 199000bp" 16454 fest to a point, 17. 207000000" 202.58 feet to a point; 1 ti. 216°80'80" 194.57 kelt to a point; 19. 195°80'00" 78.81 feet to a paint; Them akxV a curve to the right with a radius of 49.00 feet the chord azimuth and distance being. 20. 238°38b1" 84.94 feet to a point; 21. 278°80'00" 167.95 feet to a point; 22. 285°00b0" 108.82 feet the point of beginning and containing an area of s315 square feet more or less. Description Prepared by: PATTISON LAND SURVEYING INC. p,5 G. �- L) ENSED Z October 14th,2008 PAOFE55lGfuAL * LA1V[3 SVRvEYOR Q Thomas G. Pattison NO. 14743 Licensed professional Land Surveyor -y Certificate No. 10743, expires 4130114 -41 11 U,5 2 . f CENTERLINE EASEMENT PA-3 For Public Access Purposes (4 R. wide) Beginning at the west end of this easement on the easterly side of Easement I.2, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU D HALE"being 17,112,96 feet north and 15,270.67 feet east and running by azimuths measured clockwise from we south: 1. 312° 30' I80.00 feet; 2. 269° 25' 110.00 feet; 3. 234° 21' 70.00 feet; 4. 3100 04' 12.03 feet; 5. 350 44' 91.00 feet; 6. 20° 07' 52.00 feet; 7. 37° I4' 95.00 feet; 8, 21° 51' 55.00 feet; 9. 357° 26' 50.00 feet; 10. 3500 00' 60.00 feet; 11. 3590 40' 4020.60 feet; 12. 2350 00' 31-97 feet; Thence along a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 13. 2080 30' 25.77 feet; Thence along a curve to the right with a radius of 150.00 feet, the chord azimuth and distance being: 14. 1990 00' 87.71 Feet; 1 of 3 EX H1 BIT 6 + Thence along a curve to the right with a radius of 20.00 feet,the chord azimuth and distance being. t5- 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' 40.46 feet; 17. 262° 00' 74.40 feet; Thence along a curve to the left with a radius of 100.40 feet, the chord azimuth and distance being: 18. 235° 00' 90.80 feet; Thence along a curve to the right with a radius of 160.04 feet, the chord azimuth and distance being: 19. 2290 13' 30" 115.85 feet; 20. 250° 27' 70.00 feet; Thence along a curve to the right with a radius of 444.00 feet,the chord azimuth and distance being: 21. 258° 01' 105.34 feet; Thence along a curve to the left with a radius of 145.44 feet, the chord azimuth and distance being: 22. 2120 00' 168.99 feet; 23. 1580 25' 50.04 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" 84.42 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 26. 1950 16' 18.22 feet to the-ocean and containing an area of 0.176 Acre. f Q LICENSER I Q� PROFESSIONAL LAND SURVEYOR * R Y KA WAMURA No. 2671 Licensed Py Land Surveyor Certificate No. 2671 Expiration Date of License. 4134110 May 7, 2008 HILO ENGINEERING,INC. 4$4 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3ra Div. 5-4-09.Portion 14 v 3 of 3 CENTERLINE EASEMENT PA-4 For Public Access Purposes (4 ft. wide) Beginning at the north end of this easement on the southerly side of Centerline Easement PA-3,the coordinates of said point of beginning referred to Government Survey Triangulation Station'PUU a NALE"being 16,645.71 feet north and 15,442,55 feet east and running by azimuths measured clockwise from true south: L 3250 00' 57.54 feet to Lincoln Burial Plot Easement and containing an area of 0.005 Acre. UCENSEO a PROFESSIoHAI LAND Ra E Y 4.iCA WAMURA + SURVEYOR + Licensed Pr fessional Land Surveyor 'fy Ne. 2871 Certificate No. 2671 f1 �y S' Expiration Date of License: 4130110 May 7,2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo, Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09.Portion 14 w 1 of I EXHIBIT 7 CENTERLINE EASEMENT PA-2 For Public Access Purposes (4 R. wide) Beginning at the east end of this easement on the westerly side of Easement a-2, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU ❑NALE"being 17,141.33 feet north and 15,239.70 feet east and running by azimuths measured clockwise from true south. 1. 3120 30' 61.66 feet; 2. 223° 45' 374.23 feet; Thence following along the edge of cliff(15' to 20' away from edge of cliff)to top of gulch and containing an area of 0.072 Acre. W K Qq uceHsEv � LMD L sURKYoR RO NE— . KA WAMU No. 2671 Licensed Professional Land Surveyor �$RIr U. Certificate No. 267I Expiration Date of License: 41301I0 May 7,2008 HILL ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96724 40 Tax Map Key: 3rd Div. 5-4-09-Portion 14 1 of 1 EXHIBIT 5 r 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❑HALE" 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 9B (Portion of Grant 2732 to Karmaka)and containing an area of 0.128 Acre. M. XI# UCENSED a PROFESSION& LAND R NNEY KA AMURA * SURVEYOR • Licensed P fessional Land Surveyor No. 21671 �. Certificate No. 2671 Expiration Date of License: 4130110 May 7,2008 HILL ENGINEERING, INC. 484 Kalanikoa Street Hilo, Hawaii 96720 Tax Map Key: 3'd Div. 5-4-09:Portion 14 ,. I of 1 EXHIBIT 4 EASEMENT a-2 For Access and Utility Purposes (20 it. wide) Beginning at the south corner of this parcel of land,also being the east corner of Easement]-1, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU a HALE"being 16,592.04 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 240.00 feet,the chord azimuth and distance being: 3• 2200 00' 69.46 feet; Thence along a curve to the left with a radius of 125.00 feet, the chord azimuth and distance being: 4. 195' 00' 143.40 feet; 5. 1600 00' 149.20 feet; 6. 2220 30' 81.28 feet; 7. 312° 30' 80.00 feet; S. 222° 30' 88.94 feet; 9. 1320 30' 22.04 feet; 10. 222° 30' 20.00 feet; II. 3120 30' 42.00 feet; 12. 420 30' 128.94 feet; 13. 132° 30' 80.00 feet; 14. 42° 30' 49.14 feet; 15. 340° 00' 136.06 feet; I 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. 150 00' 166.34 feet; 1 Thence along a curve to the left with a radius of 180.04 Feet, the chord azimuth and distance being. 17. 400 00' 62.51 feet; 18. 30° 00' 125.60 feet to the point of beginning and containing an area of 0.355 Acre. aq� LICENSED q PROFESSIONAL LAND * SURVEYOR # iRONE Y M. KA WAMi]RA WCA No. 2671 4,• Licensed Professional Land Surveyor R fl U 5' Certificate No. 2671 Expiration Date of License: 4/30/10 May 7,2048 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key. 3rd Div. 5-4-09:Portiun 14 2 of 2 (� age nab f n qj V cc Sa �a • .res ^ {� � 'y � r-F.-- •�.r: _ - a ryC• ? r r � � N .� .�. 1 .t r•y� may.. Ijg= c 1 �U � � ~dpx � � o• � .f i 0 1. _ ^Y � a• ,���9 � c�� ' c � � •gig '� �1 r co ilk vq 550,57 t �w � M ••� r+ �1 � : 7„ � y y 'fy .................... DeVera, Ashley From: Peter Evanovich <peter@evanovich.com> Sent: Monday, January 16, 2023 4:52 PM To: Planning Internet Mail Cc: Andrews, Jessica Subject: Planning Board Hearing/19 January 2023 Attachments: Hawaii RetreatCenter011623.pdf Dear Planning Department, I am attaching the below letter because my understanding is that a hearing is scheduled on 19 January 2023 regarding an application for an amendment to a Special Management Area Use permit No 417 by Ahu Pohaku Hoomaluhia (formerly Robert Watkins and Jean Sunderland). I oppose this application. Thank you and please feel free to contact me with any questions or concerns. Sincerely, Peter Evanovich Planning Dep-,. Exhibit 21 1 Peter Evanovich P.O.Box 6179 Kamuela, HI 96743 15 January 2023 County of Hawaii Planning Department 74-5044 Ane Keohokaiole Highway,Building E Kailua-Kona, HI 96740 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 Dear County of Hawaii Planning Department: I am the owner of approximately 7,500 acres of agricultural and conservation land in Kapa'au, North Kohala, from Honopueo to Niuli'i, the western boundary of which is approximately 1200 feet from the applicant's property and with whom I share common privately maintained access roads. The Applicant's property is zoned AG 20,part of which is within the Special Management Area for coastal lands. It's my feeling that a hotel (even if it's described by applicant as a"retreat center") is not an appropriate use of these lands,violates the spirit and intent of the Zoning Ordinance, makes my community less safe and puts a unsustainable strain on the community's infrastructure. I am strongly opposed to this application. Sincerely, Peter Evanovich Owner,Ainakea Farms Owner, 011ie Group Owner,Ho'okipa Ranch Date: January 19,2023 8:30 AM To: Leeward Planning Commission / Kona Planning Office West Hawaii Civic Center 74-5044 Ane Keoholkalole Hwy, Building E Kailua-Kona, HI 96740 From: Mark Castaing and Helen Behrmann PO Box 1135, Kapa'au, HI 96755 Cell: 808 987 8177 RE: Applicant: AHU POHAKU HOOMALUHIA LLC (Formerly Robert Watkins & 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: Hawaii Island Retreat (HIR) was granted a Special Use Permit (SUP) over 20 years ago and has been at odds with its neighbors ever since. HIR has never lived up to its commitments and required mandates for infrastructure on Maluhia Road. 1- The surrounding agricultural lots that were a part of Honopueo Community Association (HCA) had much different needs and uses for Maluhia Rd. HIR had special commitments and requirements mandated for their SUP to build a hotel which set them apart from the rest of the community. 2- Not only did they not follow "a good neighbor" policy (required as one of the mandates of their SUP). They turned around and sued their neighbors to compel them to pay for their required improvements. Which still left us with a sub-standard road 3- The surrounding community has since paved all of Maluhia Rd. The cost was $140,000. 70/ of this was paid for by the neighbors and 30% by HIR. This worked out well for HIR. HIR guest's, workers and the hotel mandated "public access" put a huge amount of traffic on this road and have no right to more than double the traffic on our community road. Even with the community's efforts this is still a sub- standard road especially with much of its use by visitors that are not use to driving on steep and cury roads. Planning Dep;. Rc'd dt W4by Exhibit 22 Id W4 FM ODff 4- An example of "spin" on their plans is that adding 20 more rooms to the hotel would not increase the number of guests, just allow yoga retreats to have one guest per room. It should be assumed that the hotel will run at full capacity whenever it can. Jean Sunderland told community members 20 years ago that all guest would come and go in vans putting very little traffic on our road, this was not true then nor now. 5- Realtors made inquiries to past board members of Honopueo Community Association about the status of HCA. This inquiry was about the sale of HIR and if HIR was still part of HCA. The members of the Planning Commission are well aware of the huge problem of granting zoning and building applications that are just used to increase land value. Years later new owners request extensions due to no action on the granted permits which only increase the property value to the original owners. The next issue that the commission should focus on is the HIR mandate to provide public access to and along the shoreline. We have often found the gate to travel along the coast to be lock and there are fences that do not have gates which impedes those wanting to walk along the coast. As other ocean front neighbors also have mandated public access along this portion of the coastline. HIR originally purchased a large 54-acre piece which surrounded the small Lincoln burial lot. Years after all permits and mandates for HIR where issued, HIR purchased the Lincoln burial lot and used a PCRS to make two larger lots. Now they want to use another PCRS to take land away from the hotel parcel at the same time they want to double the size of the hotel. We own land that touches one of the lots which HIR proposed a PCRS on, there is no notification on Honopueo road that will be used if this PCRS is allowed to move forward. There is a requirement to post notification which was not done. The hotel property should not be allowed to be compressed onto 5 acres. We strongly urge this commission to deny the request to more than double the size of the hotel and we urge that the commission not allow the request for a PCRS. Mahalo for your attention to the surrounding neighbors' concerns. Mark Castaing d Helen Behrmann ww TMK 3-5-4-009-025-0000-000 January 19, 2023 Cindy Freitas makainangiOp-mail.com County of Hawaii Leeward Planning Commission AGENDA RE: Item 1 and 2,Applicant:Ahu Pohaku Ho'omaluhia LLC. SMA Permit No. 417 amd SPP No. 1117 He Mele komo a he mele aloha no na kupuna o ke au i hala Aloha mai kakou. Aloha, My name is Cindy Freitas and I'm a Native Hawaiian descended of the native inhabitants of Hawai'i prior to 1778 and born and raised in Hawai'i. I am also a practitioner who still practice the cultural traditional customary practices that was instill in me by my grandparents at a young age from mauka(MOUNTAIN TO SEA)to makai in many areas. I OPPOSE Item #1 and 3 for the following reasons: The Fauna study of the project was not done, however the applicant stated that over years cultivation of sugar cane had degraded the project area and destroyed native habitat. But yet in the pass 20 years, there has been noted a return of the Hawaiian Hawk or I'o and native owl or Pueo which is on the endangered list. Which falls under the Endanger Species Act And I want to mahalo the applicant for upholding the Constitutional law Article 12 section 7. Mahalo /s/ Cindy Freitas FdIat l °l mpg byPlanning D@pr. ✓ _ Exhibit 23 0rV- CdpV�y 0►�I January 19, 2023 Cindy Freitas makainangiOgmail.com County of Hawaii Leeward Planning Commission AGENDA RE: Item 3,Applicant Charles &Ann Stevenson and John Fumo (PL—REZ -2022-000035) He Mele komo a he mele aloha no na kupuna o ke au i hala Aloha mai kakou. Aloha, My name is Cindy Freitas and I'm a Native Hawaiian descended of the native inhabitants of Hawai'i prior to 1778 and born and raised in Hawai'i. I am also a practitioner who still practice the cultural traditional customary practices that was instill in me by my grandparents at a young age from mauka(MOUNTAIN TO SEA)to makai in many areas. I OPPOSE Item#3 for the following reasons: 1. The area consist of federally endangered Hawaiian hoary bat, Hawaiian Hawk, akepa and Hawaiian creeper above the 3000 foot elevation contour as "essential habitat". Which falls under the Endanger Species Act 2. There is no Archaeological and cultural study was conducted of the property due to previously impact by ground-disturbing activities associated with residential development. No archaeological inventory survey has been conducted with in the subject parcel and no historic properties have been previously identified. However State Historical Preservation Division request the opportunity to review future permits for the subject property. Hawaii Revised Statue 6E-42 Review of proposed projects (Agricultural 20 acres). (a) Before any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic property, aviation artifact, or a burial site, the agency or office shall advise the department and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places. Mahalo /s/ Cindy Freitas Araujo, Jaclyn From: Emily Sundman <emilysundman@hotmail.com> Sent: Thursday, January 19, 2023 12:54 PM To: LPCtestimony Subject: AHU POHAKU HOOMALUHIA LLC ( Formerly Robert Watkins and Jean Sunderland Good afternoon, I am writing in regards to the proposed rezoning and expansion of the Hawaiian Life Retreat (AHU POHAKU HOOMALUHIA LLC ( Formerly Robert Watkins and Jean Sunderland) from today's meeting. My apologies on missing the deadline, but I am very concerned about the expansion of the resort in this agricultural and family area given the ongoing issues the resort, their guests, and contractors currently cause. I have summarized these concerns below with specific examples. 1. Traffic usage of Maluhia Rd and Pratt Rd. Pratt road (currently unpaved) is a wonderful roadway providing safe travel for families and children to either walk or ride bicycles to avoid Akoni Pule hwy on their way to Kamehameha Park. Pratt rd and Maluhia are frequently used by families to safely access areas reached by Pratt rd while avoiding dangerous traffic. My family uses Pratt rd in order for our children to bicycle to school at Kohala Elementary. Unfortunately, I have personnaly nearly been hit by vehicles traveling at excessive speed on Pratt Rd that were on their way to Hawaii Life Resort on five separate occasions in the past 4 months. One time the vehicle nearly struck my nine-year-old son on his bicycle as he was pulled over on the side of the road. All of these individuals were either guests or contractors/employees of Hawaii Life Resort. I have seen several near accidents of other children who were safely traveling on the shoulder of Pratt Rd as well. 2. Wandering Tourists from the Resort. My family (including two small children) lives near the resort on Honopueo Rd. We have repeatedly had tourist in our yard, near our children playing outside. These tourists believed they should be allowed on my private property because it "seemed beautiful", and numerous tourist had been told by employees of the resort they can access my personal property to take photos or otherwise lounge outside. I cannot stress enough how upsetting this is given that I have small children who would be at risk of kidnapping from these people. Often, my children (playing feet from our home) have told me about the trespassers and I have had to run outside to investigate who these people are. Repeated calls to the resort has not improved the frequency of these trespassers. 3. Poor signage for resort and coastal access. Due to the poor signage provided by the resort to direct tourists both to their resort and for coastal access, particularly at the numerous turns to reach the resort across Maluhia and Pratt roads, many tourists have inadvertently ended up at various locations across Pratt and Honopueo Rd. Myself and many of my neighbors are fully invested in the agricultural needs of Kohala and have cattle and other livestock on these roads. I have frequently had to stop tourists from attempting to open gates to turn their cars around in, or otherwise harassing animals across fences. I hope my neighbors and my concerns regarding the safety of residents of Kohala, particularly our keiki to safely reach school and Kamehameha Park are taken into consideration and this proposal is rejected. Kind regards, Emily Sundman Planning Dept. 1 Exhibit 24 From: Marcuscastaino To: LPCtestimonv Subject: SMA 01-000003&Special Permit SPP 01 000006 Ahu Pohaku Ho DBA Hawaii Island Retreat Date: Wednesday, March 15,2023 2:56:22 PM Attachments: Neiohors"Statement.docx Aloha Please include this letter as testimony in SMA 01-000003 & Special Permit SPP 01 000006 Ahu Pohaku Ho DBA Hawaii Island Retreat Thursday 16 2023 11:00 AM This is from affected neighbors in the immediate surrounding community whose common road is used to access the proposed project aloha Mark Castaing Planning Dep-, Exhibit 25 We, the undersigned neighbors of the Hawaii Island Retreat (HIR), oppose the further expansion of HIR due to the negative impacts it will have on all of our surrounding properties. Those impacts include additional car and foot traffic and increased wear and tear and damage to the roads that serve our properties, including Maluhia, Pratt and Honopueo Roads, and risks of liability to us from the expanded business of HIR. While we oppose granting the expansion, should it be granted in any part, we urge that the following measures to mitigate the negative impacts be required: 1. Safety: Clear signage should be required regarding safe speed limits on Maluhia and indicating the public access is a left turn on Pratt after leaving Maluhia. Many times,for lack of clear signage, people looking for the HIR make a right turn on Pratt and end up in the driveways or homes of our neighboring properties. 2. Maintenance:As Maluhia will be expanded, and therefore putting more pressure and use on Maluhia, maintenance of Maluhia should be borne principally by HIR as it will be relying on it for its enlarged commercial uses. Specifically: HIR should also be required to keep Maluhia open and free of overhanging vegetation and clear debris off the side of the road. HIR should also be required to weed the side of Maluhia but making sure not to hit water pipes. 3. Liability: HIR should be required to indemnify neighboring property owners for any claims arising out of its commercial activities and maintain a liability insurance policy given their "public access mandate"and name neighboring properties additional insureds. 4. Liquor: HIR's insurance on its liquor license should also be extended to protect and cover adjacent neighbors. The expansion of HIR will have significant negative impacts on all of us and we urge action be taken to mitigate them to the maximum extent possible. Mahalo for your attention and consideration. Dated: February 3, 2023 Don and Dale Franzen Cam and Reba McIntyre Karl Toubman and Katherine Pomeroy Bill Melton Marcus Castaing and Helen Behrmann Laszlo Hunyadi & Emily Sundman DeVera, Ashley From: dwayne cravalho <dcravalhoworks@gmail.com> Sent: Tuesday, September 19, 2023 8:47 AM To: Planning Internet Mail Subject: PL-SPP- 2022-000018 Aloha Planning Department, I am writing about PL-SPP-2022-000018. TMK 5-4-009:014. My neighbors Watkins and Sunderland own the Hawaii Island Retreat. I own TMK 5-4-009:010, and I am against the approval of this permit. There is an easement through my property, for the Hawaii Island Retreat, and this permit would double their traffic load on this road. This road was approved for agricultural use only. Please contact me to discuss this further. Dwayne Cravalho (808)443-9092 or dcravalhoworks@gmail.com Mahalo, Dwayne Planning Dept. Exhibit 26 March 6,2024 To: Zendo Kern, director, Hawaii County Planning Department From: North Kohala Community Access Group, North Kohala Growth Management Group of the NKCDP Subject: SMA-2022-000018 and SPP-2022-000018 for AHU POHAKU HO`OMALUHIA LLC in North Kohala. Suggested changes in Public Access Document -- 2009 TIMELINE: In December 2022 the Growth Management Group of the KNCDP wrote a letter of support for the above SMA and Special Use permits to the Leeward Planning Commission. It included a caveat that the public access plan be reviewed by the Kohala Community Access Group, also a part of the NKCDP, in order to suggest any changes, if needed. In an April 2023 report of the Growth Management Group to Kohala Community Access Group, it was recommended that the Grant of Public Access Easement plan (GOPAE) prepared in 2009 as a condition of the consolidation and resubdivision of land was not a sufficient protection of public rights and that it be redrafted by the Planning Department and Corporation Counsel to be included in the amended SMA and SUP, which are before the Leeward Planning Commission now. RECOMMENDATIONS: Together the two groups above prepared a list of changes to the PAP written document and map for the landowner Ahu Pohaku Ho'omaluhia LLC to determine if the 2009 document could be amended for submission with agreement of both parties to the Planning Department. The amendments would bring it up to standards now required by the county for permitted access plans. It was agreed that cooperative redrafting for submittal within the community would be a desired outcome. Unfortunately, the landowner could not agree to the changes. This leaves us with the option of contacting the Planning Department and the Leeward Commission to express our concerns about the old GOPAE and request the GOPAE for the parcels be upgraded before approval of the SMA and SPP. Below are suggestions and alternatives: 1. New owner/applicant -The Declarants on the 2009 document are Robert Watkins, Jean Sunderland, Charles Anderson, and Lisa Anderson. The applicant for amendments to the SMA and SPP permits, and listed owner of the land under the retreat is Ahu Pohaku Ho'omaluhia LLC. Listed owners covered by the GOPAE also include the Watkins/Sunderland Family Trust and Charles and Lisa Anderson. In researching whether to keep the plan covering all three lots or separate them, it is recommended to keep the land area of Planning Dept. Exhibit 27 the GOPAE intact. The latter would probably require more permitting and expense. 2. New land boundaries - The lots associated by the 2009 document were created in 2005 Subdivision 05-000042. They included TMKs 5-4-009: 14, 20, and 5. The land was subject to two additional consolidations and resubdivisions. The listed owners of Lot 5 are Charles Anderson Trust and Lisa Anderson Trust. Lot 20 is now owned by Watkins/Sunderland Family Trust. All three are still subject to the 2009 easement and are still attached to SUB 05- 000042. Current GOPAEs show coordinates for each lot. 3. The location and size of the easements have changed - The 2009 document consists of two vehicular easements 20 feet wide and eight pedestrian easements 4 feet wide. According to the attached maps, the pedestrian access easements along the shoreline are to be located within 15 to 20 feet from the top of the cliff. This should be mentioned in the draft along with variations necessitated by steep terrain. Current county GOPAEs show the trail width of 10 feet. Current GOPAEs requiring vehicle access from a public highway provide a given number of parking stalls, often a minimum of three is noted, dedicated to public parking. The size of the lot in terms of location and how many parking spaces are to be provided should be mentioned. . 4. Maintenance of easement solely by landowners has no checks or enforcement - Section A of the Miscellaneous Provisions says the Declarants retain sole responsibility for "maintaining, controlling, insuring and repairing the vehicular and pedestrian public access easements." No provision is made for when the easements are not kept up to the standards of the Declaration. More recent GOPAEs say maintenance and inspection of the easements are the responsibility of the County of Hawaii. 5. The 2009 document lacks several of the standard provisions of recent GOPAEs - There are no provisions for moving the trails due to erosion. The standard release of liability spelled out in Chapter 520HRS is not included. Users of the pedestrian trail should not have to open and close gates. Where gates occur, pedestrian-only pass-throughs should be required. There are no restricted uses or hours of use listed for the vehicular and pedestrian easements, though these are standard in recent GOPAEs. 6. The landowner has the right to amend or terminate the easement "at its sole discretion" - On page 5 of the 2009 document under Miscellaneous Provisions, Section C gives the owner the right to amend the Declaration (public access easement) "at its sole discretion, without consent or joinder" from any government, or party to the land. It retains the right to record any changes. Section D says the Declaration "shall remain in effect perpetually until cancelled or terminated by the Declarant." None of the recent GOPAEs gives the landowner those rights. 7. These are the recommendations of the Kohala Community Access Group and the Growth Management Group for changes to the GOPAE document. We also recommend creating a new map. Representatives of the groups have inspected the location of the existing trail, whose location is different from that on the 2009 map and approve the location of the existing trail with the replacement of two closed gates with pedestrian-only pass-throughs on fences. The three maps attached to the 2009 map show the location of utility easements in addition to the public access easements. The trails are not clearly located on the 14 acres subject to the SMA and SPP. New maps are needed to delineate the new lot boundaries, the location of the 14 acres, which is part of Lot 14 and includes the 5 acres subject to the SMA and SPP. We hope that these matters can be resolved in a new document and map to be presented to the Leeward Planning Commission for approval. _Ted Matsuda _ Ted Matsuda, chair Kohala Community Access Group _Toni Withington Toni Withington, chair, NKCDP Growth Management Group Attached: Watkins/Sunderland Declaration of Access and Utilities Easements 2009 From: Mark Van Pernis To: LPCtestimonv; Mark Van Pernis Cc: Mark Van Pernis; Debbie H; Inaba.Holeka;Villeaas. Rebecca;Cindy Evans Subject: April 18 LPC Agenda Items 1 And 2,Applicants Ahu Polhaku Ho"maluhia LLC,PL SMA 2022-000018 and PL- SPP202 0018 Date: Wednesday,April 3,2024 9:40:09 AM The original applicants (Watkins and Sunderland) circumvented rezoning and transient accommodation rentals (TAR)requirements, and obtained valuable approval for 6 rental units on 5 acres for agricultural land, i.e approxinatly RS 15 zoning, from the Leeward Planning Commission (LPC)with nothing for the county, no affordable housing assessments, and the LPC foolishly did not include a sunset provision to protect the public. Apparantly the original applicants had no interest or capacity to carry out this proposed development, but instead intended to sell the property and open ended permits for profit. And the current applicant has shown no intent it ability to develop,particularly in the absence of a sunset provision. Bay law and rules the LPC has not supposed to exercise its power merely to facilitate a real estate sale. ISN'T THIS WHAT YOUR BEING IMPROPEFRLY ASKED TO DO IN THIS MATTER./ Question 1. LET'S SEE THE CONTRACT BETWEEN THE PRIOR APPLICANTS AND THE PRESENT APPLICANTS; - IS IT DEPENDANT ON GETTING THE PERMIT MODIFICATIONS WITHOUT A SUNSET CLAUSE; DOES THE COUNTY AND ITS PEOPLE GET ANYTHING AT ALL AT ANY TIME IF THIS HUGE INCREASE IN VALUE IS GIVEN(GIFTED)TO THIS CURRENT APPLICANT? If you are merely being asked to facilitate a real estate sale, you must turn down the application, and the buyer must buy or not"as is", and apply later on its own for any permit modifications, The original granting of an SMA without a sunset provision was probably a mistake, Allowing hotel density and use on agricultural land without going through the rezoning process is not only a disservice to your constituency, without proper and needed investigation and infrastructure as the public may require, it is a gift to private developers at the public's expense and that of the land use regulatory system. The route the curent applicants are trying to take violates zoning and subdivision ordinances, land use regulations, and county plans. Where is the traffic study, environmental impact statement, etc, required for this application for a new SMA at six times the density of the prior SMA? This implies very dangerous precedent. In serving the public, why would you allow this to happen? And why would the developer expose itself to litigation to shut down the project until the proper land use, zoning and County Council approvals are obtained? Question 2. WHY NOT GO THRU THE REZONING PROCESS SO THE PUBLIC CAN BE SERVED? The applicant is a"limited liability compny (LLC). The LLC's members, be they individuals and/or business entities, are not disclosed, and can be freely conveyed to others. Since they are not disclosed and can have no liability for renters these proposed hotel suites they cannot qualify as "owner hosted" TARS. The application, if granted, would create dangerous precedent such that any number of rental units could be had on any land of any zoning by calling them TARS under a SMA, and without County, County Council, or public input, regardless of infrastructure problems. Planning Dept. Exhibit 28 Question 3. WHY ISN'T THE MATTER DEFERRED WHILE A CORPORATION COUNSEL OPINION IS OBTAINED AS TO WHEHER OR NOT TAR STATUS CAN BE CLAIMED AS A WAY OF CIRCUMVENTING ZONING AND THE LAND USE COMMISSION? The application is in essence a request for you to approve circumventing and ignoring many laws and rules so that thru the ruse of a SMA"amendment", a super dense use of the land can occur with no restrictions as to time. Are you willing to be the instrument by which dangerous precedent is accomplished at the expense of the County and the land use regulatory system? Question 4. WHY ISN'T THIS MATTER GOING THRU THE STATE LAND USE COMMISSION? In recent testimony before the Hawaii State legislature, the P. D. made clear he wanted the authority to zone down to 2000 square foot lots, despite the public's sentiment otherwise, and that the County Council is his enemy in that regard. Although you are not formally trained in Iand use and the future,particularly as to public infrastructure needs, (neither is the P.D. , and appointments are political, that this application is not right is obvious, After the above questions are answered, and a discussion on a sunset provision had, the application should be rejected, No amendments can save it. The applicant has many ways to go besides this application. Although they may think they're smarter than you, you have the power and obligation to do the right thing for the County and its peopLOE.. MARK Van Pernis Former Commissioner of the Kailua Village Design Commissio n, Former Leeward Planning Commission Commissioner. I 11 1 (Page 1 of 2) ff NAME-. Charles A.Anderson,'rustee of the 01a vies A.Anderson Trust dated January 19,1995 ADDRESS: y•�pS 367 Paalliln,HI 46776_ I JMONK N4,. Laos) APPLICANT/ ' i t3QCl(C1ET NO,; PL-SMA-202.2.000018&PL•SPP-2022-000018 j A. Is your interest in this(natter clearly distingulahable from dint of the general public? Yes x No E If Ilie answer is"yes",please explain' � P�.iil o s5 5 im j e1 ad acetit3 lin Beano:s 4o ert 'FMK 3 5-4.009-014 and Petitigner's LoRerty shares certain easements for access— ant's ccess I ttd ut t urn�ses with tlt'&pro arty },d& er properties. r �. If tate answer is"tto",please explain how the proposed action will neverthelm cause you actual or ftoatened injury: n. Are you a government agency whose jurisdiction includes the land involved in the subject request? Yes No x If the answer ie"yes",please explain the nature of the agency's jurisdiction: atla C. Do you lawfully reside on or have some property interest in tlae land involved in the subject request? Yes _ No x If the answer is'Eyes",please explain: rola Planning Dept. Exhibit 29 (hp T of x) . . D. Are you a pesaat or persona descended fro,u nature Hawaiians who inhabited the Hawaiian Islands prior to 1778,who practiced those rights Which wand cuatonzarily atld traditionally exercised for subsistence,cultural,orrel iglous purposes? Yea _ ...__ No X If the answer is"Yes', please submit any genealogical evidence And historical evidence showing the exeroise of those rights to support your statement � titloner's Signature STATE OF 1 A`4NAU y � SS, COUNTY 4F HAWAII } On this \\4'\ day of_�a+>3uary_ 2021,before me personally appeared Charles A.Anderson, Twslce of the Chzrlies A,611derso ' r to tate ljwwn to be the person desc(bed iu and who executed the foregoing instrument,end acknowledged that lie executed the sauna as his free act and deed, QL` oxA �°r" Notary PurbLic,State of Hawaii - * �o B-z � U):Ar, ��: _ DESIREE M.IKEDA My commission expires: �rF F,. ; te`�ti 1///1/11111[11ffi01� G F 8423 STATE OF HAWAII �r BUREAU OFCONVEYANCES AUG 16,20`10 01:00 PM Doc No(s)2010-118382 rs1 NICKIRAENGISRARpSON CONVEYANCE TAX:$1.00 24 113 Z9 LAND COURT REGULAR SYSTEM -!t Return By Mail 0 Pick-Up 0 To: CHARLES A.ANDERSON AND LISA L. ANDERSON Post Office Box 367 f Paauilo,Hawaii 96776 TOTAL NUMBER OF PAGES: 18 TITLE OF DOCUMENT: WARRANTY DEED PARTIES TO DOCUMENT: ell- GRANTOR: +GRANTOR: AHU POHAKU HO'OMALUHIA LLC,a Hawaii limited liability company. whose mailing address is Post Office Box 189, Hawi, Hawaii 96719,JEAN M. SUNDERLAND and ROBERT R. WATKINS,and DAEMION A.WATKINS and LIA W.WATKINS,aka LI'A WAILANI WATKINS,as Co-Trustees of the WatkinslSunderland Family Trust,dated January 10, 1991,whose mailing address is Post Office Box 189, Hawi,Hawaii 96719,and CHARLES ALAN ANDERSON and LISA LANDRY ANDERSON, husband and wife,whose mailing address is Post Office Box 367,Paauilo,Hawaii 96776 GRANTEE: CHARLES A. ANDERSON,Trustee of that certain unrecorded Charles A. Anderson Trust dated January 19, 1995, whose mailing address is Post Office Box 367, Paauilo, Hawaii 96776 and LISA L.ANDERSON,Trustee of that certain unrecorded Lisa L. Anderson Trust dated January 19, 1995, whose mailing address is Post Office Box 367,Paauilo,Hawaii 96776 TAX MAP KEY(3)54-009 portion 005 and portion 4828-7708-4932/3-30-10 014;Lot 9-A under Sub.Na, 05-000042 WARRANTY DEET? KNOW ALL MEN BY TI4ESE PRESENTS: That AMU POHAKU HO'OMALUHIA LLC, a Hawaii limited liability company. whose mailing address is Post Office Box 189,Hawi, Hawaii 95719, JEAN M_ SUNDERLAND and ROBERT R. WATKINS,husband and wife, and DAEMION A. WATKINS and LIA W. WATKINS, aka LPA WAILANI WATKINS,as Co-Trustees of the Watkins/Sunderland Family Trust,dated January 10, 1991,with full powers and authority to buy, lease,mortgage and sell the property herein described, and other powers more fully set forth therein, whose mailing address is Post Office Box 189, Hawi, Hawaii 96719,and CHARLES ALAN ANDERSON and LISA LANDRY ANDERSON, husband and wife,whose mailing address is Post Office Box 367, Paauilo,Hawaii 96776,hereinafter called the "Grantor", for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.04)and other good and valuable consideration to the Grantor paid by CHARLES A. ANDERSON,Trustee of that certain unrecorded Charles A. f Anderson Trust dated January 19, 1995, whose mailing address is Post Office Box 357, Paauilo, Hawaii 96776, with full powers to sell,mortgage, lease or otherwise deal with the land,and LISA L. r ANDERSON,Trustee of that certain unrecorded Lisa L. Anderson Trust dated January 19, 1995, whose mailing address is Post Office Box 367, Paauilo,Hawaii 96775,with full powers to sell,mortgage, lease or otherwise deal with the land hereinafter called the"Grantee",the receipt whereof is hereby acknowledged, do hereby grant, bargain,sell and convey unto the Grantee all of that certain real property designated on the tax maps of the Third Taxation Division,State of Hawaii,as Tax Map Key(3) 5-4-049:portion 005 and portion 014,being Lot 9-A(Sub.No. 05-000040,more particularly described in Exhibit A attached hereto and made a part hereof,subject to the encumbrances noted therein. TOGETHER WITH ALL and singular the buildings, improvements,rights, tenements, hereditaments, easements,privileges and appurtenances thereunto belonging or appertaining or held and enjoyed in connection therewith. TO HAVE AND TO HOLD the same unto the Grantee, IN TRUST,and the Grantee's successors in trust and assigns, in fee simple forever. - 2- r , AND THE SAID GRANTOR does hereby covenant with the Grantee that the Grantor is lawfully seised in fee simple of said granted premises and that the said premises are free and cleat of all encumbrances except as aforesaid, and except for assessments for real property taxes. And the said Grantor further covenants and agrees that the Grantor has good right to sell and convey the said premises in the manner aforesaid; that the Grantor will WARRANT AND DEFEND the same unto the Grantee against the lawful claims and demands of all persons,except as aforesaid. The parties hereto agree that this instrument may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement, binding all of the parties hereto,notwithstanding all of the parties are not signatory to the original or the same counterparts. For all purposes,including without limitation, recordation, filing and delivery of this instrument,duplicate unexecuted and unacknowledged pages of the counterparts may be discatdcd and the remaining pages assembled as one document. IT IS MUTUALLY AGREED that the terms "Grantor" and "Grantee", as and when used hereinabove or hereinbelow shall mean and include the masculine or feminine, the singular or plural number, individuals,associations,trustees,corporations or partnerships,and their and each of their respective successors in interest,heirs,executors,personal representatives, administrators and permitted assigns,according to the context thereof,and that if these presents shall be signed by two or more grantors,or by two or more grantees,all covenants of such parties shall be and for all purposes deemed to be their joint and several covenants. [THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLAND] J , Y IN WITNESS WHEREOF,the Grantor has executed these presents on this A day of_ C,h ,2010. AHU POHAKU HO'OMALUHIA LLC, a Hawaii limited liability company By: Its Manager B Its Manager / h�Crtd'*� CH ES ALAN ANDERSON d LISA LAND A i :2 445. N M. S DERLAND o-Trustee of the Watkins/Sunderland Family `Frust,dated January 10, 1991 Q ERT R. WATKINS F Co-Trustee of the Watkins/Sunderland Family Trust, dated January 10, 1991 DAEMION A. WATKINS Ca-Trustee of the Watkins/Sunderland Family Trust,dated J y 10, 1991 L . WATKIN � Co-Trustee of the Watkins/Sunderland Family Trust, dated January 10, 1991 kt�� .L-Ia- {.e�-��art,• GRANTOR -4- STATE OF HAWAII ) } ss. COUNTY OF HAWAII } On this I *-r day of N a rr,h , 2010, before me personally appeared k bee'+ R . Wlt6n s ,to me known(ef1weved to ine an the-basis of sati4aefery exidence) that Me is the Manager of AHU POHAKU HO'OMALUHIA LLC, a Hawaii t Iimited liability company, and that said instrument was signed in behalf of said company by authority of its Manager and said Manager acknowledged said instrument to be the free act and deed of said company. r r ydV :f G,y :, Name: ] r 'JEt C. Yg9r� `. L, Notary Public J, -¢ .• N Y .p. State of Hawaii PUBLIC * comr6mors NO cj;. 94-489. r My commission expires: g-1Q0 a r.> rr'9 ' OF .•' r'r+rrutirs, a NOTARY CERTIFICATION STATEMENT Document Identification or Description: Warranty Deed Document Date: Vn a r min Q o t 7 AN •p . No. of Pages: ti t 4 Jurisdiction (in which notarial act is performed): Third Circuit ",%,r r a rrrrrr Signa of Notary Date of Notarization and ` ` QTARY'.Q PUBLIC Certification Statement * , Commission too. �- � 'A Y ('�otivliik 466e� i Prime Name of otaryut- rrrrrrr r r riii,ysy• STATE OF HAWAII ) ss. COUNTY OF HAWAII ) On this day of . MX r,C,(-, 2010, before me personally appeared Crean _qu n de ri cLncJ , tome known satisfeetery evidence} that -s_k is the Manager of AHU POHAKU HD'OMALUHIA LLC, a Hawvai'i limited liability company, and that said instrument was signed in 'behalf of said f company by authority of its Manager and said Manager acknowledged said instrument to be the free act and deed of said company. qjavs ur,�rrr e � 0\3 G. /��. Name: : r• •f•. 9;-_ Notary is c NCT�RY• = State of Hawaii / PUBLIC * ccFymiMon NO. My Commission expires: g ^� j,-1c L � 94-489.•' lrr 'IF 1- •'kms • � 1 r11.l.,,•k•4 NOTARY CERTIFICATION STATEMENT Document Identification or Description: Warranty Deed Document Date: Vn or cin 1.,t L,0 t o C% ,P- No. of Pages: H` t $ ^� Jurisdiction(in which notarial act is performed): Third Circuit ,00,,,llvearrrr O+u C. Signaturkof Notary Date of Notarization and 4r-.:NOTARY Certification Statement = PU B L I C gmmiss!on No * - ( (1 Printed ame of Not�. =• .• •e�,Q`,: 0F STATE OF HAWAII ) } ss. COUNTY OF HAWAII } On this ` day of 14 id r e-h 2010, before me personally appeared JEAN M. SUNDERLAND, Co-Trustee of the Watkins/Sunderland Family Trust, dated January 10, 1991,to me known ( to be the person described in and who executed the foregoing instrument, and acknowledged to me .� that she executed the same as her free act and deed, as such Co-Trustee to me known (erpreed to be the person described in and who executed the foregoing instrument, and acknowledged to me that she executed the same as her free act and deed. C. ��. �r�'; Name: Notary Public • pl1LfC Q State of Hawaii l commission Na. '•9 -489 'R":71 My commission expires: •OF . NOTARY CERTIFICATION STATEMENT Document Identification or Description: WarnmV Deed Document Date: tyl a V-'-" s S ?_v L 0 t' •IP No. of Pages: nl 118 Jurisdiction (in which notarial act is performed): Third Circuit A. Signa of Notary Date of Notarization and :F: PUBLIC • O - Certification Statement * Commission No- � Marl L+�u . Ignaci� Printed Name of Notary ;•.� .+.. • P '` STATE OF HAWAII } ss. COUNTY OF HAWAII } On this-I day of f-i a.r ter-+ 2010, before me personally appeared ROBERT R. WATKINS, Co-Trustee of the Watkins/Sunderland Family Trust, dated January 10, 1991, to me known ( o be the person described in and who executed the foregoing instrument, and acknowledged to me / that she executed the same as her free act and deed, as such Co-Trustee to me known 4erIntr ed to be the person described in and who executed the foregoing instnunent, and acknowledged to me that he executed the same as his free act and deed. C. ••;�� arrLougn z.•L• y�•i Name, - - :NOT �'� Notary Public - PUBLIC State of Hawaii Commis on lVa. rk tSj;•- 94-489, �.- My commission expires: NOTARY CERTIFICATION STATEMENT Document Identification or Description: Warranty Deed Document Date: t-yl a r r—" L�r r cpm tZ) No. of Pages: X-4.. 19 Jurisdiction(in which notarial act is performed): Third Circuit ov C. /04,. L 4- - t- t7 ,' NOTARY' 0 Signature Notary Date of Notarization and _ PUBLIC Certification Statement ' 'k Commissbn Na.•;_ -�ou C. Ignacia . 94-489,. . Mara Lseyp ';• Printed Name of No OF '� :•' STATE OF HAWAII } } ss. COUNTY OF HAWAII } On this Z '3T day of 1`4 a-r`r 2010, before me personally appeared DAEAUON A. WATKINS, Co-Trustee of the Watkins/Sunderland Family Trust, dated January 10, 1991,to me known }to be the person described in and who executed the foregoing instrument, and acknowledged to me that she executed the same as her free act and deed, as such Co-Trustee to me known ( sue t s o sa to be the person described in and who executed the foregoing instrument, and acknowledged to me that he executed the same as his free act and deed. o\3 C. I •: Name: �- clo ....y...'1rNotary Pula is I: Arty 0= State of Hawaii - puBLIC * p * ' Gomrnissio^Na. My commission expires: .OF ,,.. NOTARY CERTIFICATION STATEMENT Document Identification or Description: Warranty Deed Document Date: VYl cc No. of Pages: t* 1 sr Jurisdiction(in which notarial act is performed): Third Circuit ' ,,,arrtirrrr SignatWe of Notary Date of Notarization and Q7--NOTARY'. C Certification Statement = .S ' PUBLIC Ma>i Lau �. Ignacia Printed Nance of Na CALIFORNIA ALL—PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Californ COUnty of On � � --_ I7ef'Ore me, � _ / r (I If irtec;rl aa--uric mol Erle of the o(Tice I personally appeared Tr � +� -,�Ica-KA , Z .V e who proved to me on le laasis of satisfactory evidence to lie the person Whose nal�le(�51arr-Selhs�t°ilaed to rile Within instrumeM and acknowledged to me that 4aelshe/Ore7lexectlted the same in-+is/her/their authorized capadty(-�}, and that by.11islllerlt4y&signatur*44.on the instrument the person(s), or the ell City upon be11aIf0F which the person(+acted, executed the instrument. I ceitify under PENALTY OF PERJURY under the Iaws of the State of Califoniia that the foregoing paragraph is true and correct. Aldi ONTY NIGR© WITN . my i ' nd official seal. of rx Pubic #Callfc166,S31 _d Notary public •CQlifornta .. Los Angetes.Crwnhd My Comm,EnSigs Ju123.2( s rt�r�atttr`i atary r r,G -- fNAtary seal) ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM r `'r- Any ackttarviedgrnent comyletcia! in Ca7ifortlia must Conlain Verbkkge cruetdr• as l)I3SCI PTION OF Tllfi ATIzze NT alrp[ars above in the notary section or a separadc a rknowledgm._rit f]rrn ul"S'r he properly completed and rittachod to thuidocurneni. 77re catty exception is iJ a docwnend is to Ge recorded arusidr o Cab arnicr. In sucir i"semices.mty oliffniourre �— " arknowledgmeru vrrbrrtbe as tray be printed ori such a doeaanoir so!nate as the fl'itic or dcscripts of ultaehcrt doctrmcnt) verbiage does not require the notary to do scinwhing that is illebtrl for ci irataty in California Cue. cereffying the authorized capacity of dhe signer).Please clack the (Fide or rlewcription or:sttar:hed document conriturcd) doeimnent carefully for proper notarial wording and atiach this fenn if req turn 1, • Stale and Courtly information must,be the SLite as id County where the doctimenl Ntniitacr of Pages ,_ [7ocumt nt Date — T signer(a)personally appeared 6cfore dtc txitary pu61 is for ackttawledgmene. • Date of polarization must be the date that the signcr(s)personally agpewed which must also be the same date the acYutotvIcdgmenl is cnmplued. (Adsliliona;inrarmalion) 0 '[he nnlnry public must print his or har mune as it appears within his or her commission followed by a comma and then your idle(notary public). • Print the narnc(s)of document signer(s) who persunally aplrear at the time of notrui¢alion. CAPACITY CLAIMED BY THE SIGNER ■ Indicate tic correct singular or plural farms by crossing off incorrect Fhrms fir 0 Individual (s) helshe/ilmyr is hwe)or circling the cormcA forms.Failure to correctly indicate this tnfarmation may lead to rejection of document recording. Corjlorme Officer . The notary seal impression must be clear and photographically reproduciblc. lrnpression must not cower text or lutes, if seal impression smudges.re-seal if a (Title) sufficient area permits,alhenvise complete a diff4cm acknowicdgment form. p Pariner(s) • Stgnautre of the notary public must match the signature ort rile with the offict of ilnc county clerk. Q Attorney-in-Fact Additional infonntwon is not reyurrcd but could help to enseire tits e Ci Trustee(s) acknowledgment is not mituscd or attached to a different docurnrni. ® Other� indicate title or type of attached document,number of pages and dale. Indicale the capacity claimed by the signer. If the claimed capacity is a corporate officer,indicate the title f;.e.CECT.cro.Sec retaryy. NN Securely attach th;s doctunent In the signed doctameni 2elf)g Version CAPA v12.10.fl'bf}(1_S73-9SG5 wj%w!.tiotaryClasses.corr, STATE OF HAWAII ) Ss. COUNTY OF HAWAII ) On this day of MAR 2 2 2010 2010, before me personally appeared CHARLES ALAN ANDERSON, to me known (or proved to me on the basis of satisfactory evidence) to be the person described in and who executed the foregoing instrument, and acknowledged to me that he executed the same as his free act and deed. E"- 'VIA ✓� Name; O rs Tq� �0 = Notary Public 90 :. = State of Hawaii NIQUE M. EE)WARDS -64[7 — MD �]TARY PUBUC, STATE of HAWAII P My commission expires: COMMISSION EXPIRES-, 11/4/2010 'err^ 'F..ri p �s$,� .J'JJir,�l i1!IfI1l1U1�1 NOTARY CERTIFICATION STATEMENT Document Identification or Description: Warranty Deed Document Date: ,A§1110�]L No. of Pages: r Jurisdiction(in which notarial act is performed): Third Circuit f *, 9-640 k C-7 iCIO ((` `•-- Signature of No Date of Notarization and j p MON- VIEDWARDS Certification Statement 11j1lIIIIIIt11�� NOTARY PUBUC,STATE OF HAWAII (Notary Stamp or Sea]) 11/4/2010 STATE OF HAWAII ) } ss. CO[.INTY OF HAWAII ) On this day of MAR 2 2 2010 2010, before me personally appeared LISA LANDRY ANDERSON, to me known (or proved to me on the basis of satisfactory evidence) to be the person described in and who executed the foregoing instrument, and acknowledged to me that she executed the same as her free act and deed. t f `���c .......... ... Name: 'A �; �•.�� Notary Public � * 90-6140 *� State of Hawaii MOG�iC�UE M. �DWARDS a cn #, i - . NOTARY PUBLIC, STATE OF HAWAII COMMISSION EXPIRES: 11/4/2010 O IiH '� My commission expires: NOTARY CERTIFICATION STATEMENT Document Identification or Description: Warranty Deed +071 q r•,, Document Date: No.. of Pages: e o Jurisdiction(in which notarial act is performed): Third Circuit �Ni A 90-6,10 Cr 7QZ'� � Sign AWARDS ' Date of Notarization and lrli � r H pP�`• NOTARY PUBUC,STATE OF HAWAII Certification Statement r,rl�tf91 COMMISSION EXPWES: 1114/2010 (Notary Stamp or Seal) Printed Name of Notary EXHIBIT "A" LUT 9A Being a Portion of Grant 2732 to Kamaka Hanaula,North Kohala,Island of Hawaii,Hawaii Beginning at the south corner of this parcel of land, also being the west corner of Lot 9B (Portion of Grant 2732 to Kamaka)on the northerly boundary of Lot 8 (Portion of Grant 2732 to Kamaka),the coordinates of said point of beginning referred to Government Survey Triangulation Station"PUU ®NALLO' being 16,834.57 feet North and 14,857.93 feet East and gunning by azimuths measured clockwise from true South. 1. 133° 00' 435.00 feet along Lot 8(Portion of Grant 2732 to Kamaka); Thence along Lot 8 (Portion of Grant 2732 to Kamaka)on a curve to the right with a radius of 360.00 feet, the chord azimuth and distance being: 2. 1510 00' 222.49 feet; 3. 169° 00' 130.40 feet along Lot 8(Portion of Grant 2732 to Kamaka); Thence along Lot 8(Portion of Grant 2732 to Kamaka)on a curve to the left with a radius of 360.40 feet,the chord azimuth and distance being; 4. 160° 30' 106.42 feet; 5. 152° 00' 225.98 feet along Lot 8(Portion of Grant 2732 to Kamaka); 6. 2130 51' 745.03 feet along Lot 4 (Portion of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu); Thence along the edge of cliff for the next three(3)courses,the direct azimuth and distance being; 7. 303° 50' 490.71 feet; S. 3120 15' 353.46 feet; 9. 344° 06' 15" 410.97 feet; 10. 430 45' 847.00 feet along Lot 9B (Portion of Grant 2732 to Kamaka)to the point of beginning and containing an area of 24.506 acres,more or less. TOGETHER WITH.perpetual and non-exclusive rights and easements for access and utility purposes over and across the following described"Easement Areas": (1) Union Mill Road,being Lot 19 of the"Union Mill Road Tract",as shown on File Plan Number 731,filed in the Bureau of Conveyances of the Mate of Hawaii and containing an area of 119,118 square feet,more or less,and being designed as Tax Map Key No.: (3)5-4-10:62. (2) Easement A(60-ft wide) for access and utility purposes, containing a total area of 8.648 acres,more or less. (3) Easement B(50-ft. wide) for access and utility purposes,containing a total area of 2.710 acres,more or less. (4) Easement 7 (50-ft.wide) for access and utility purposes, containing a total area of 4.030 acres,more or less. (5) Easement K(50-ft.wide)for access and utility purposes, containing a total area of 4.426 acres,more or less. (6) Easement L(50-ft. wide) for access and utility purposes, containing a total area of 0.356 acre,more or less. as granted by and more fully described in that certain Grant of Easements dated April 14, 2003 and recorded as Document No. 2003-070308. Being a portion of the land conveyed by the following: (1) WARRANTY DEED Grantor: SURETY KOHALA CORPORATION, a Hawaii corporation Grantee: JEAN M. SUNDERLAND and ROBERT R. WATKINS, husband and wife,as Tenants by the Entirety,as to an undivided fifty percent(50%)interest, and CHARLES ALAN ANDERSON and LISA LANDRY ANDERSON, husband and wife,as Tenants by the Entirety,as to an undivided fifty percent(50111e)interest, as Tenants in Common Dated: April 10,2003 Document No. 2003-070310 -2- (2) QUITCLAIM DEED Grantor: ROBERT R. WATKINS,a married man Grantee: A14U POHAKU HO'OMALUHIA LLC, a Hawaii Limited Liability Company Dated: December 31,2008 Document No. 2009-043047 (3) QUITCLAIM DEED Grantor: JEAN M. SUNDERLAND,a married woman Grantee: ARU POHAKU HO'OMALUHIA LLC,a Hawaii Limited Liability Company Dated: December 31, 2008 Document No. 2009-043048 (4) QUITCLAIM DEED Grantor: DAENIION A. WATKINS,a unmarried man Grantee: A14U POHAKU HO'OMALUHIA LLC, a Hawaii Limited Liability Company Dated: December 31, 2008 Document No. 2009-043049 SUBJECT,HOWEVER,TO THE FOLLOWING: 1. Reservation in favor of the State of Hawaii of all mineral and metallic mines. 2. Shoreline setbacks: "Shoreline setbacks established pursuant to the laws of the State of Hawaii, or any political subdivision thereof, and any ordinances, rules or regulations adopted or promulgated by any governmental authority pursuant to such laws."' 3. Seaward boundary: "Determination of the seaward boundary of the land described herein pursuant to the laws of the State of Hawaii" . 4. Claims arising out of customary or traditional rights and practices, including without limitation those exercised for subsistence, cultural, religious, access or gathering purposes as provided for in the Hawaii Constitution or the Hawaii Revised Statutes, as amended. -3 - 5. Reservation(s)in favor of the State of Hawaii,as contained in the following: FINAL JUDGMENT Dated: March 22, 1999 Document No. 99-045916 but omitting any covenants or restrictions if any, based upon race, color, religion, sex, handicap, familial status, or national origin unless and only to the extent that said covenant(a) is exempt under Chapter 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons. 6. Dirt road over and across a portion of the property described herein, as show on survey map prepared by Rodney M. Kawamura,Licensed Professional Land Surveyor No. 2671, dated October 24, 2002, revised November 5, 2002, and Consolidation/Resubdivision map dated May 7, 2408. 7. Covenants, conditions, restrictions, reservations, agreements, obligations, exceptions and other provisions as contained in the following: GRANT OF EASEMENTS Dated: April 14, 2003 Document No, 2403-070308 but omitting any covenants or restrictions if any, based upon race, color, religion, sex, handicap, familial status, or national origin unless and only to the extent that said covenant(a)is exempt under Chapter 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons 8. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR HONOPUEO Dated: May 06,2003 Document No. 2003-091323 but omitting any covenants or restrictions if any, based upon race, color, religion, sex, handicap, familial status, or national origin unless and only to the extent that said covenant(a)is exempt under Chapter 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons -4- The foregoing Declaration was amended by the following: Document No. Dated 2003-226446 August 7,2003 2005-242340 November 23,2005 9. AFFIDAVIT OF JEAN M. SUNDERLAND RE NOTICE OF APPROVAL OF CONSERVATION DISTRICT USE PERMIT(CDUP)NO. HA-3378 Declarant: JEAN M. SUNDERLAND Document No. 2008-082244 10. The following matters as show on Consolidation/Resubdivision Map prepared by Rodney M. Kawamura, Licensed Professional Land Surveyor No. 2671, dated May 7,2008: (a) Agriculture and conservation district boundary. (b) Flood boundaries with base flood elevations (approximate area of flood - inundation),and FIRM flood zone A boundaries ll. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF ACCESS AND UTILITY EASEMENTS Dated: January 13, 2009 Document No_ 2009-029852 but omitting any covenants or restrictions if any,based upon race, color,religion, sex,handicap,familial status,or national origin unless and only to the extent that said covenant(a)is exempt under Chapter 42, Section 3607 of the United States Code or(b)relates to handicap but does not discriminate against handicapped persons 12. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF PUBLIC ACCESS EASEMENTS Dated: December 29,2008 Document No. 2009-029853 but omitting any covenants or restrictions if any, rased upon race, color, religion,sex,handicap,familial status,or national origin unless and only to the extent that said covenant(a)is exempt under Chapter 42,Section 3607 of the United States Code or(b)relates to handicap but does not discriminate against handicapped persons - 5 - The foregoing Declaration was amended by the following: AFFIDAVIT OF STEVEN S.C. LIM(RE ERRATA FLY SHEET) Dated: undated Document No. 2009-032605 12. The possible interest of Jean M. Sunderland,Robert R. Watkins, Daemion A. Watkins, and Lia W. Watkins, as Co-Trustees of the Watkins/Sunderland Family Trust dated January 10, 1991,dine to the fact that Lot 9 was consolidated with TMK(3) 5-4-009:005 (the Lincoln Burial Plot),and resubdivided into Lot 9A and Lot 913, as disclosed by Affidavit of Rodney M. Kawamura, Licensed Professional Land Surveyor,Certificate No. 2671, dated May 20, 2009,recorded as Document No. 2009-118040. -6- i (Pada 1 of 2) NAME: EWM Enterprises,LP,by and through Charles A.Anderson,its authorized a end t ADDRESS: P.O. Box 367 Paauilo,HI 96776 PHONE NCI.:,_(808)895-5554 APPLICANT/ )! O T NO.: PL-SMA-2022-000018&PL-SPP-2022-000018 A. Is your hiterest in Us hatter clearly disdnoshable from that of the general public? ; Yes x No t If the answer is"yes",please explain: Petitioner-owns pro erty(TMK(3)5-4-009-n09)along,the ocean and one(1)lot awav from asemgnts for access and udlit isrposes_with A�? NP ant'spropert s certair,..� _� Ap;�ica ot's nrot�erty _ K(3)_.-_4-009-(3j�1and kj��p�ers pranerty share y p property other properties. If the answer is"no", please explain how the proposed action will nevertheless cause you actual or threatened injury: na I B, Are you a government agency whose jurisdiction includes the land involved in the subject request? I Yes No_ X If the answer is"yes',please explain the nature of the agency's jurisdiction: i , C. Do you lawfully reside on or have some property interest in the land involved in the subject request? Yes No x 1 If the answer is"yes",please explain: Atx Planning Dept. Exhibit 30 (Page 2 of z) D. Are you a person or persons descaided from native Hawaiians who inhabited the Hawaiian Islands prior to 1778,who practiced those rights which ware customarily and traditionally exercised for subsistence~cultural,or religious purposes? YesIf the answer is"yes", please submit any genealogical evidence and histodc tl evidence showing the exercise of those rights to support your statement: Pe ' tcxicr's Signature STATE OF HAWAII } } SS. COUNTY OF HAWAII ) On thin day of January ,20 23,,,before me personally appeared Charles A.Anderson. authorized agent for KgJ�ala lakani W i. . .0 , to me luiown to be the person described iu and who executed the foregoing instrument,mid acknowledged that lie executed the same as his free act and deed. E A4 Q.... * �1 s 290 '� - Notary Public StR � E9E TVt*DA �°:'0U8L1c' EXPIRATION: June 24,202 9 'S1Q'� My commission expires: DocuSign Envelope ID:DEEDA7494B6543B6-A803-CE31593C3A38 LIMITED APPOINTMENT OF AGENT EWM ENTERPRISES, LP, a Nevada limited liability company (the "Company"), and the owner of Lot 4 (being a portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu) situate at Laaumama, District of North Kohala, Island and County of Hawaii, State of Hawaii, and designated on the tax maps of the Third Taxation Division of the State of Hawaii as Tag Map Key No. 5-4-009-009 (the "Subject Property"), hereby appoints CHARLES A. ANDERSON (the "Agent") as the Company's agent to act on behalf of the Company and with respect to the Subject Property to take all action necessary to contest that certain application to amend a Special Management Area permit (SMA 901-000003) and a Special Permit (SPP 01-000006) submitted by Ahu Pohaku Ho'omaluhia, LLC dba Hawaii Island Retreat, LLC to the Planning Department of the County of Hawaii, and all matters related therewith (the "Proceedings"), and hereby authorizes the Agent to prepare, execute and submit all necessary and appropriate documentation to governmental agencies and authorities and to act and appear on the Company's behalf and in the Company's place and stead in all hearings and meetings in the Proceedings or in the appeal of the Proceedings. The Company reserves its right to approve and consent to any resolution or settlement of the Proceedings or the appeal of the Proceedings. Effective as of ` �D 52023. EWM ENTERPISES,LLC, a Nevada limited liability company By: EWM MANAGEMENT,LLC, a Nevada limited liability company Its: Manager DocuSigned by: i 1/11/2023 i 313A(�I ..W.Moody Its: Manager i I 6 9V �� R-313 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED DEC 23,2009 08:01 AM 0 Doe No(S)2009-194883 IS/NiCKI ANN THOMPSON REGISTRAR 20 ill Z8 CONVEYANCE TAX:$699.30 LAND COURT REGULAR SYSTEM Return By Mail IXJ Pick-Up [::] To: STEVEN S.C.LIM ORDER No.: 00197490 V11 Carlsraith Ball LLP 121 Waianuenue Avenue TOTAL NUMBER OF PAGE Hilo,Hawaii 96120 TITLE OF DOCUMENT: WARRANTY DEED PARTIES TO DOCUMENT: GRANTOR: EWM Investments LLC,a Nevada limited liability company, whose mailing address is 2116 Redbird Drive,Las Vegas,Nevada 89134 GRANTEE: EWM Enterprises,LP, a Nevada limited partnership, whose mailing address is 175 E.Reno Avenue,Suite C-6,Las Vegas,Nevada 89119 TAX MAP KEY(3)5-4-009-009 4831-6038-6053/ 12-10-09 WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS: That EWM Investments LLC, a Nevada limited liability company, whose mailing address is 2116 Redbird Drive, Las Vegas, Nevada 89134, hereinafter called the ' "Grantor", for and in consideration of the sum of TEN AND N01100 DOLLARS ($10.00) and other good and valuable consideration to the Grantor paid by EWM Enterprises, LP, a Nevada / limited partnership, whose mailing address is 175 E. Reno Avenue, Suite C-6, Las Vegas, Nevada 891.19, hereinafter called the "Grantee", the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell and convey unto the Grantee all of Grantor's undivided fifty percent (50%) interest in and to that certain real property designated on the tax maps of the Third Taxation Division, State of Hawaii, as Tax Map Key 5-4-009-409, more particularly described in Exhibit A attached hereto and made a part hereof, subject to the encumbrances noted therein. TOGETHER WITH ALL and singular the buildings, improvements, rights, tenements, hereditaments, easements, privileges and appurtenances thereunto belonging or appertaining or held and enjoyed in connection therewith. TO HAVE AND TO HOLD the same unto the Grantee, as its sole and separate property,its successors and assigns, in fee simple forever. AND THE SAID GRANTOR does hereby covenant with the Grantee that the Grantor is lawfully seised in fee simple of said granted premises and that the said premises are free and clear of all encumbrances except as aforesaid, and except for assessments for real property taxes. And the said Grantor further covenants and agrees that the Grantor has good right to sell and convey the said premises in the manner aforesaid; that the Grantor will WARRANT AND DEFEND the same unto the Grantee against the lawful claims and demands of all persons,except as aforesaid. The parties hereto agree that this instrument may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement, binding all of the parties hereto, notwithstanding all of the parties are not signatory to the original or the same counterparts. For all purposes, including without limitation, recordation, filing and delivery of this instrument, duplicate unexecuted and 2 unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document. IT IS MUTUALLY AGREED that the terms "Grantor" and "Grantee", as and when used hereinabove or hereinbelow shall mean and include the masculine or feminine, the singular or plural number, individuals, associations, trustees, corporations or partnerships, and their and each of their respective successors in interest, heirs, executors,personal representatives, administrators and permitted assigns, according to the context thereof, and that if these presents shall be signed by two or more grantors, or by two or more grantees, all covenants of such parties shall be and for all purposes deemed to be their joint and several covenants. IN WITNESS WHEREOF, the Grantor has executed these presents on this 1�- day of December, 2009. EWM Investments LLC,a Nevada limited liability co pany By: ERNEST W. MOODY ; Its Managing Member "GRANTOR" APPROVED AS TO FORM CARLSMITH BALL LLP BY Steven S.C. Lim 12-10-09 3 STATE OF NEVADA } } ss. COUNTY OF CLARK } On this _ day of /n , 2009, before me personally appeared ERNEST W. MOODY, to me known (or proved to me on the basis of satisfactory / evidence) that he is the Managing Member of EWM INVESTMENTS LLC, a Nevada limited liability company, and 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. ame: 471 -y A-10 YS DAVIDKMNotary Public NOTARY PUBLIC State of Nevada / SPATE Of NEVADA i 12.11.2012 xW.08 MI My commission expires: z 2 EXHIBIT "A" LOT 4 Being a Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu Laaurnarna, North Kohala, Island of Hawaii,Hawaii Beginning at the South corner of this parcel of land, also being the Northeast corner of Lot 3 (Portion of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu), the North corner of Lot 8 (Portion of Grant 2732 to Kamaka) and the West corner of Lot 9 (Portion of Grant 2732 to Karnaka), the coordinates of said point of beginning referred to Government Survey Triangulation Station "PW O NALE" being 17,753.29 feet North and 14,265.50 feet East and running by azimuths measured clockwise from true South: 1. 1520 00' 314.02 feet along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu); Thence along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu) on a curve to the left with a radius of 575.00 feet,the chord azimuth and distance being: 2. 146° 30' 110.22 feet; 3. 141° 00' 370.00 feet along Lot 3 (Portion of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu); Thence along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu) on a curve to the left with a radius of 320.00 feet, the chord azimuth and distance being: 4. 1090 30' 334.40 feet; 5. 78° 00' 567.71 feet along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu); Thence along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu) on a curve to the right with a radius of 530.00 feet,the chord azimuth and distance being: 6. 1130 00' 607.99 feet; 7. 1960 26' 1,057.19 feet along the remainder of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu; Thence along the top of the cliff,the direct azimuth and distance being: EXHIBIT "A" Page 1 of 5 8. 3020 51' 2,365.46 feet; 9. 330 51' 745.03 feet along Lot 9 (Portion of Grant 2732 to Kamaka) to the point of beginning and containing an area of 42.895 acres, more or less. Together with a perpetual non-exclusive right and easement over, across and through Tax Map Keys(3) 5-4-009-001 & (3) 5-4-010-062 and Union Mill Road for access and utility purposes, as granted by instrument dated----, 2003,recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 2003-069607. Being the land conveyed by the following: (1) WARRANTY DEED Grantor: SURETY KOHALA CORPORATION, a Hawaii corporation Grantee: TIMOTHY THEVENARD and CHRISTINE THEVENARD,husband and wife, as Tenants by the Entirety, as to an undivided 50% interest, and CHARLES ALAN ANDERSON and LISA LANDRY ANDERSON, husband and wife, as Tenants by the Entirety, as to an undivided 50% interest, as Tenants in Common Dated: April 10, 2003 Document No. 2003-069609 (2) WARRANTY DEED Grantor: TIMOTHY THEVENARD and CHRISTINE THEVENARD,husband and wife Grantee: EWM INVESTMENTS LLC, a Nevada limited liability company Dated: April 13, 2004 Document No. 2004-078188 SUBJECT,HOWEVER, to the following: 1. Reservation in favor of the State of Hawaii of all mineral and metallic mines. 2. Shoreline setbacks: "Shoreline setbacks established pursuant to the laws of the State of Hawaii, or any political subdivision thereof, and any ordinances, rules or regulations adopted or promulgated by any governmental authority pursuant to such laws." 3. Seaward boundary: "Determination of the seaward boundary of the land described herein pursuant to the laws of the State of Hawaii" . EXHIBIT "A" Page 2 of 5 4. Claims arising out of customary or traditional rights and practices, including without limitation those exercised for subsistence, cultural, religious, access or gathering purposes as provided for in the Hawaii Constitution or the Hawaii Revised Statutes, as amended. 5. Portion of Easement B (50 ft. wide) for access and utility purposes, affecting Lot 4 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu, being more particularly described as follows: Easement B (50 ft. wide) Beginning at the South corner of this parcel of land, also being the Northeast corner of Lot 3 (Portion of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu),the North corner of Lot 8 (Portion of Grant 2732 to Kamaka) and the West corner of Lot 9(Portion of Grant 2732 to Kamaka),the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU O NALE"being 17,753.29 feet North and 14,265.50 feet East and running by azimuths measured clockwise from true South: 1. 1520 00' 314.02 feet along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu); Thence along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu) on a curve to the left with a radius of 575.00 feet, the chord azimuth and distance being: 2. 1460 30' 110.22 feet; 3. 1410 00' 370.00 feet along Lot 3 (Portion of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu); Thence along Lot 3 (Portion of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu)on a curve to the left with a radius of 320.00 feet, the chord azimuth and distance being: 4. 1090 30' 334.40 feet; 5. 780 00' 567.71 feet along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu); Thence along Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu) on a curve to the right with a radius of 530.00 feet,the chord azimuth and distance being: 6. 1130 00' 607.99 feet; EXHIBIT "A" Page 3 of 5 7. 196° 26' 34.09 feet along the remainder of Grant 2845 (Lot 2)to Rebecca Kaleohaalulu; Thence along a curve to the left with a radius of 505.00 feet, the chord azimuth and distance being: 8. 2940 17' 0111 597.70 feet; 9. 2580 00' 567.71 feet; Thence along a curve to the right with a radius of 345.00 feet, the chord azimuth and distance being: 10. 289" 30' 360.52 feet; 11. 321° 00' 370.00 feet; Thence along a curve to the right with a radius of 600.00 feet, the chord azimuth and distance being: 12. 326° 30' 115.01 feet; 13. 332° 00' 300.65 feet; 14. 330 51' 28.35 feet along Lot 9 (Portion of Grant 2732 to Kamaka) to the point of beginning and containing an area of 1.358 acres, more or less. 6. AFFIDAVIT OF RODNEY M. KAWAMURA Dated: January 14, 2003 Document No. 2003-014100 Re: Affects Tax Map Key No. : (3) 54-009-001 (Lots 1 to 23) 7. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF EASEMENTS Dated: -4-42003 Document No. 2003-069608 EXHIBIT "A" Page 4 of 5 8. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF EASEMENTS Dated: April 14, 2003 Document No. 2003-070309 9. Any unrecorded leases, subleases, and/or tenancy agreements demising a portion of the land herein described, and any encumbrances affecting the same. Tax Map Key(3) 5-4-009-009 EXHIBIT "A" Page 5 of 5 i (Pago t of 2) l a NAh . Kohala Makani Kai,UC,by and through Charles A.Anderson,its authorized agent DRESS: P.U.Box 367 j Paauilo,HI 96776 PHONE No.: (808)895-5554 APPLICANT/ DO i"T NO.: PL-SMA-2022-OOOOl8&PL-SPP-2022-000018 i A. Is your interest in Us matter clearly distinguishable from that of the general public? i Yes X Flo file answer is "yes",please explain: Petitioner owns pro erty(TMK(3)5-4 009-01 t)which is encumbered by certain access and utility easements which benefit Applicant's propert(TMK(3)5-4-009.014)and other properties. W _- If the answer is"no",please explain how tits proposed action will nevertheless cause you actual or threatened injury: na i 13. Are you a government agency whose jurisdiction includes the land involved in the � subject request? Yes No x If the answer is "yes",please explain the nature of Me agency's jurisdiction: I C. Do you lawfully reside on or have some property interest in die lemd involved in the subject request? Yes No x If the answer is"yes",please explain: Ap Lx A Planning Dept. Exhibit 31 tea. IM (tie 2 of 2) D. Are you a person or persona descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence,cultural,or religious purposes? 'Yes No x If the answer is"yes",please submit any genealogical evidence and historical evidence showing the exercise of those rights to support your statement: etitiaier s Signature STATE OF HAWAII ) } SS. COUNTY OF 14AWAR On this day of tanuarZ ,20 23 , before me personally appeared Charles A.Anderson, authorized agent for Kohala Makani Wai.LLC, to me known to be the person described in and who executed the foreg6mg instrument,and acknowledged that he executed the sme as his free act and deed, `,"titttH I if rG NpRj,/ a-29a * = Nolmy Public, State of Hawaii DESIREE M.IKEDA �''9 My commission expires EXPIRATION: June 24, 2026 DocuSign Envelope ID:DEEDA749-4B65-4996-A803-CE31593C3A38 LIMITED APPOINTMENT OF AGENT KOHALA MAKANI WAI, LLC, a Hawaii limited liability company (the "Company"), and the owner of Lot 6 (being a portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu) situate at Hanaula, District of North Kohala, Island and County of Hawaii, State of Hawaii, and designated on the tax maps of the Third Taxation Division of the State of Hawaii as Tag Map Key No. 5-4-009.011 (the "Subject Property"), hereby appoints CHARLES A. ANDERSON (the "Agent") as the Company's agent to act on behalf of the Company and with respect to the Subject Property to take all action necessary to contest that certain application to amend a Special Management Area permit (SMA 901-000003) and a Special Permit (SPP 01- 000006) submitted by Ahu Pohaku Ho'omaluhia, LLC dba Hawaii Island Retreat, LLC to the Planning Department of the County of Hawaii, and all matters related therewith (the "Proceedings"), and hereby authorizes the Agent to prepare, execute and submit all necessary and appropriate documentation to governmental agencies and authorities and to act and appear on the Company's behalf and in the Company's place and stead in all hearings and meetings in the Proceedings or in the appeal of the Proceedings. The Company reserves its right to approve and consent to any resolution or settlement of the Proceedings or the appeal of the Proceedings. Effective as of �� �� ' , 2023. KOHALA MAKANI WAI,LLC, a Hawaii limited liability company By: EWM INVESTMENTS, a Nevada limited liability company Its: Manager docu5igrted dy: 1/11/2023 y•AMALf,J ll9ff2 :YMoody Its: M[emggSSbLLert V STATE OF HAWAII cif or '"�rr BUREAU OF CONVEYANCES RECORDED November 7, 2012 1;00 PM Doc No(s) A-46940749 W NICKI ANN THOMPSON REGISTRAR 1 1 /1 TAW Conveyance Tax: $1911.50 B-32157048 LAND COURT REGULAR SYSTEM Return By Mail F—] Pick-Up F-1 To: STEVEN S.C. LIM Carlsmith Sall LLP 121 Waianuenue Avenue Hilo, Hawaii 96720 TOTAL NUMBER OF PAGES: TITLE OF DOCUMENT: WARRANTY DEED PARTIES TO DOCUMENT: GRANTOR: EWM ENTERPRISES,LP,a Nevada limited partnership, whose mailing address is 175 E.Reno Avenue, Suite C-6,Las Vegas,Nevada 89119 GRANTEE: KOHALA MAKANI WAI,LLC,a Hawaii limited liability company,whose mailing address is 65-1323 Kawaihae Road,Kamuela,Hawaii 96743 TAX MAP KEY(3)5-4-009-011 4848-5692-1614 / 10-16-12 r ORi GiNAL WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS: That EWM ENTERPRISES, LP, a Nevada limited partnership, whose mailing address is 175 E. Reno Avenue, Suite C-6, Las Vegas, Nevada 89119, hereinafter called the "Grantor", for and in consideration of the sum of TEN AND NO1100 DOLLARS ($10.00) and other good and valuable consideration to the Grantor paid by KOHALA MAKANI WAI, LLC, / a Hawaii limited liability company, whose mailing address is 65-1323 Kawaihae Road, Kamuela, Hawaii 96743, hereinafter called the "Grantee", the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell and convey unto the Grantee all of that certain real property designated on the tax maps of the Third Taxation Division, State of Hawaii, as Tax Map Key 5-4-009011, more particularly described in Exhibit A attached hereto and made a part hereof, subject to the encumbrances noted therein. TOGETHER WITH ALL and singular the buildings, improvements, rights, tenements, hereditaments, easements, privileges and appurtenances thereunto belonging or appertaining or held and enjoyed in connection therewith. TO HAVE AND TO HOLD the same unto the Grantee, as its sole and separate property, its successors and assigns, in fee simple forever. AND THE SAID GRANTOR does hereby covenant with the Grantee that the Grantor is lawfully seised in fee simple of said granted premises and that the said premises are free and clear of all encumbrances except as aforesaid, and except for assessments for real property taxes. And the said Grantor further covenants and agrees that the Grantor has good right to sell and convey the said premises in the manner aforesaid; that the Grantor will WARRANT AND DEFEND the same unto the Grantee against the lawful claims and demands of all persons, except as aforesaid. The parties hereto agree that this instrument may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement, binding all of the parties hereto, notwithstanding all of the parties are not signatory to the original or the same counterparts. For all purposes, including without limitation, recordation, filing and delivery of this instrument, duplicate unexecuted and 2 unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document. IT 1S MUTUALLY AGREED that the terms "Grantor" and "Grantee", as and when used hereinabove or hereinbelow shall mean and include the masculine or feminine, the singular or plural number, individuals, associations, trustees, corporations or partnerships, and their and each of their respective successors in interest, heirs, executors, personal representatives, administrators and permitted assigns, according to the context thereof, and that if these presents shall be signed by two or more grantors, or by two or more grantees, all covenants of such parties shall be and for all purposes deemed to be their joint and several covenants. IN WITNESS WHEREOF, the Grantor has executed these presents on this ,eljday of , 2012. EWM ENTERPRISES, LP, a Nevada limited partnership By EWM Management, LLC, a Nevada limited liability company Its Partner By ERNEST . MOODY Its Manager GRANTOR 3 STATE OF NEVADA } ss. COUNTY OF CLARK } On this day of , 2012, before me personally i appeared ERNEST W. MOODY, to me known (or proved to me on the basis of satisfactory evidence) that he is the Manager of EWM Management, LLC, a Nevada limited liability company, Partner of EWM Enterprises, LP, a Nevada limited partnership and 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. . a�vin yrs. t+o'[�nr pt�91LC ITAMOFMAM Name: �ya , ,. rxu,zaEa Notary Public State of Nevada My commission expires: EXHIBIT "A" All of that certain parcel of land(being portion(s) of the land(s) described in and covered by Grant 2781 to Keliilawaia and Grant 2845 (Lot 1)to Rebecca Kaleohaalulu) situate at / Hanaula, North Kohala, Island of Hawaii, State of Hawaii, being LOT 6, described as follows: Beginning at the east corner of this parcel of land, also being the south corner of Lot 7 (Grant 2753 to Kalama 2) on the westerly boundary of Lot 14 (Grant 2750 to Kaohimaumu), the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU O NALE" being 15,240.49 feet north and 14,562.06 feet east and running by azimuths measured clockwise from true South: 1. 44° 47' 14" 772.73 feet along Lot 14 (Grant 2750 to Kaohimaumu); 2. 490 01' 1,210.12 feet along Lot 5 (Portion of Grant 2845 (Lot 1) to Rebecca Kaleohaalulu); 3. 1200 15' 46.81 feet along the remainder of Grant 2781 to Keliilawaia; 4, 105" 10' 113.00 feet along the remainder of Grant 2781 to Keliilawaia; 5. 103" 30' 414.00 feet along the remainder of Grant 2781 to Keliilawaia; 6. 530 30' 587.12 feet along the remainders of Grant 2781 to Keliilawaia and Grant 2845 (Lot 1)to Rebecca Kaleohaalulu; 7. 1970 06' 439.20 feet along Lot 1 (Portion of Grant 2744 to Makuaole and Hoolani); 8. 205" 36' 2,207.70 feet along Lot 2 (Portion of Grant 2780 to Kaanaana) and Lot 3 (Portion of Grant 2845 (Lot 2) to Rebecca Kaleohaalulu); 9. 3010 51' 1.,646.97 feet along Lot 7 (Grant 2753 to Kalama 2)to the point of beginning and containing an area of 59.613 Acres, more or less, as per survey by Rodney M. Kawamura, Licensed Professional Land Surveyor, Certificate No. 2671, dated October 24, 2002. EXHIBIT "A" Page 1 of 5 TOGETHER WITH a perpetual, nonexclusive right and easement for access purposes across the Park Subdivision Easements, Union Mill Road & Higa Easement, being more particularly described in that certain Grant of Easements, dated February 01, 2005, and recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 2005-028233. Being the land conveyed by the following: WARRANTY DEED Grantor: EWM Investments, LLC, a Nevada limited liability company Grantee: EWM Enterprises, LP, a Nevada limited partnership Dated: December 14, 2009 Document No. 2009-194884 SUBJECT, HOWEVER, to the following 1. Reservation in favor of the State of Hawaii of all mineral and metallic mines. 2. Portion of Easement A (60 ft. wide) for access and utility purposes, affecting Lot 6 (Portion of Grant 2781 to Keliilawaia and Grant 2845 (Lot 1) to Rebecca Kaleohaalulu), being more particularly described as follows: Beginning at the south corner of this parcel of land, also being the west corner of Lot 5 (Portion of Grant 2845 (Lot 1) to Rebecca Kaleohaalulu) and the south comer of Lot 6 (Portions of Grant 2781 to Keliilawaia and Grant 2845 (Lot 1) to Rebecca Kaleohaalulu), the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU O NALE" being 13,898.27 feet north and 13,104.03 feet east and running by azimuths measured clockwise from true south: 1. 120" 15' 46.81 feet along the remainder of Grant 2781 to Keliilawaia; 2. 105° 10' 113.00 feet along the remainder of Grant 2781 to Keliilawaia; 3. 103° 30' 656.62 feet along the remainder of Grant 2781 to Keliilawaia; 4. 1200 00' 102.73 feet; 5. 2050 36' 59.89 feet along Lot 2 (Portion of Grant 2780 to Kaanaana); 6. 3000 00' 97.66 feet; EXHIBIT "A" Page 2 of 5 7. 2830 30' 649.80 feet; 8. 285° 10' 121.82 feet; 9. 3000 15' 75.14 feet; 10. 490 01' 63.37 feet along Lot 5 (Portion of Grant 2845 (Lot 1) to Rebecca Kaleohaalulu) to the point of beginning and containing an area of 1.283 Acres, more or less, as per survey by Rodney M. Kawamura, Licensed Professional Land Surveyor, Certificate No. 2671, dated October 24, 2002. - Portion 4, 2002.Portion of Easement J (50 ft. wide) for access and utility purposes, affecting Lot 6 (Portions of Grant 2781 to Keliilawaia and Grant 2845 (Lot 1) to Rebecca Kaleohaalulu), being more particularly described as follows: Beginning at the north corner of this parcel of land on the northerly boundary of Lot 6 (Portion of Grant 2781 to Keliilawaia and Grant 2845 (Lot 1) to Rebecca Kaleohaalulu) and the southerly boundary of Lot 7 (Grant 2753 to Kalama 2), the coordinates of said beginning referred to Government Survey Triangulation Station "PUU O NALE" being 15,451.57 feet north and 14,222.29 feet east and running by azimuths measured clockwise from true south: 1. 301" 51' 50.00 feet along Lot 7 (Grant 2753 to Kalama 2); 2. 31° 52' 1,26191 feet; 3. 670 00' 13891 feet; Thence along a curve to the Ieft with a radius of 300.00 feet, the chord azimuth and distance being: 4. 430 30' 239.25 feet; 5. 200 00' 80.08 feet; 6. 49° 01' 103.08 feet along Lot 5 (Portion of Grant 2845 (Lot 1) to Rebecca Kaleohaalulu); 7. 2000 00' 170.23 feet; Thence along a curve to the right with a radius of 350.00 feet, the chord azimuth and distance being: EXMIT "A" Page 3 of 5 8. 2230 30' 279.12 feet; 9. 2470 00' 123.08 feet; I0. 211° 51' 1,246.07 feet to the point of beginning and containing an area of 2.039 Acres, more or less, as per survey by Rodney M. Kawamura, Licensed Professional Land Surveyor, Certificate No. 2671, dated October 24, 2002. 4. Hanaula Gulch as shown on tax map. 5. Ohanaula Gulch as shown on tax map. 6. Reservation(s) as contained in the following: FINAL JUDGMENT Dated: March 22, 1999 Document No. 99-045916 but omitting any covenants or restrictions if any, based upon race, color, religion, sex, handicap, familial status, or national origin unless and only to the extent that said covenant (a) is exempt under Chapter 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons. 7. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR HONOPUEO Dated: May 06, 2003 Document No. 2003-091323 but omitting any covenants or restrictions if any, based upon race, color, religion, sex, handicap, familial status, or national origin unless and only to the extent that said covenant (a) is exempt under Chapter 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons The foregoing Declaration was amended by the following: Document No. Dated 2003-226446 August 07, 2003 2005-242340 November 23, 2005 EXHIBIT "A" Page 4 of 5 8. AFFIDAVIT OF RODNEY M. KAWAMURA Dated: January 14, 2003 Document No. 2003-014100 Re: Affects Tax Map Key No.: (3) 5-4-009-001 (Lots 1 to 23) 9. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF EASEMENTS Dated: --/--12003 Document No. 2003-069608 10. The terms, provisions, covenants, easements and reservations as contained in the following: DECLARATION OF EASEMENTS Dated: April 14, 2003 Document No. 2003-070309 11. Any unrecorded leases, subleases, and/or tenancy agreements demising a portion of the land herein described, and any encumbrances affecting the same. 12. Claims arising out of customary or traditional rights and practices, including without limitation those exercised for subsistence, cultural, religious, access or gathering purposes as provided for in the Hawaii Constitution or the Hawaii Revised Statutes, as amended. Tax Map Key (3) 5-4-009-011 EXHIBIT "A" Page 5 of 5 DeVera, Ashley From: Don Franzen <dfranzen@lawff.com> Sent: Thursday, April 6, 2023 5:38 PM To: Jackson, Maija Cc: Dale Franzen Subject: Special Management Area Permit (SMA 01-000003) and Special Permit (SPP 01-000006) Attachments: Petiton for Standing HIR Application.pdf Re: Special Management Area Permit (SMA 01-000003) and Special Permit (SPP 01-000006) Applicant: Ahu Pohaku Ho'omaluhia, LLC dba Hawaii Island Retreat, LLC Hanaula, North Kohala, HI, TMK: 5-4-009: 014 Dear Ms. Jackson, Attached please find our letter of objection to the above permit. Also please find our notarized petition for standing in this case. Please direct us to the specific URL at the County of Hawaii Electronic Processing and Information Center (EPIC) where we can pay the $200 fee and file the petition. Despite diligent searching, we've not been able to find the correct location. It is my understanding you are the correct person through which to channel materials for this matter. If I'm incorrect, please advise. Thank you, Dale and Don Franzen 54-3833 Pratt Road Kapaau Hawaii 96755 Planning Dept. Exhibit 32 'E'�t31q IN A CONTESTED CASE E.A1MG (Page I of?) NAMW: Dale Franzen and Don Franzen AIS RM: 54-3833 Pratt Road Kapaa'u HI 96755 sp � Tl peri anagemen ren ermi - n cin PP 01-000006) ]DOCKET No.. Applicant: Abu Pohaku Ho'omaluhia, LLC dba Hawaii Island Retreat, LLC Hanaula, No Ko a,HI, M - -0 : A. Is your interest in this matter clearly distinguishable from that of the general public? Yes— X No If the answer is"yes",please explaii: Please see Addendum attached. If the answer is"no",please explain how the proposed action will nevwheless cause you actual or threatened injury: B. Are you a government agency whose jurisdiction includes the land involved in the subject request? 'des No X If the answer is "yes",please explain the nature of the agency's jurisdiction: C. Do you lady reside on or have some property interest in the land involved in the subject request? Yes X No If the answer is "Yes",please explain: Please see Addendum attached. Appends A PE's'_0N POR STANDING IN A CD v HEARING RQIT+G {Page 2 of 2} D, Are YOU a person Or persons descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778,who practiced those rights which were customarily and traditio11811y exercised for subsistence, Cultural,or religious purposes? Yes No X If the answer is"yes",please submit any genealogical evidence and historical evidence showing the exercise of those rights to support your statement: ale Franzen Pehtxoner's Signature STATE OF HAWAII Don Franzen SS" COUNTY OF HAWAII � On this 3511 day of March 203 before me personally appeared portae nZcj 1a` .fin CtY1Zf,n to me known to be the person described in and who executed the foregoing instrument,,aiid_;4,0Vtedged that be executed the same as his free act and deed, No b tate of HHawaii OCT 1 1 2023 (.•)r, 4µc,.: commission expires. -A NOTARY CERTIFICATION (. Date_ E _ Third Ore it oT�� � �ry1 N®hee Lee Commission No_ ' cornntissic,� T 1 1 2023 15-3,0kerid x A --- — �' tl ` ��Y Addendum We own the property TMK(3)5-4-009-017 Lot 12,commonly know as 54-3833 Pratt Road Kapaau Hawaii 96755. Our property is not within 300 feet of the Island Retreat,so we did not receive notice of the first hearing on the application to expand the Retreat. However,we understand the hearing on the application has been postposed with the approval of the Applicant, and therefore have the right to petition to intervene on the basis of Rule 4-6(a)of Procedural Rules,which provides: "If the applicant files a request with the Commission for the deferral or continuance of the hearing prior to the commencement of the hearing,the next regularly scheduled meeting of the Commission will then be considered the subsequent rescheduled hearing date. If the request for intervention is withdrawn in writing before the commencement of the hearing,the filing fee shall be refunded to the person seeking standing to intervene! We oppose the further expansion of HIR due to the negative impacts it will have on our and surrounding properties. Those impacts include additional car and foot traffic and increased wear and tear and damage to the roads that serve our properties, including Maluhia, Pratt and Honopueo Roads, and risks of liability to us from the expanded business of HIR. While we oppose granting the expansion, should it be granted in any part,we urge that the following measures to mitigate the negative impacts be required: 1. Safety: Clear signage should be required regarding safe speed limits on Maluhia and indicating the public access is a left turn on Pratt after leaving Maluhia. Many times,for lack of clear signage, people looking for the HIR make a right turn on Pratt and end up in the driveways or homes of our neighboring properties. 2. Maintenance:As Maluhia will be expanded,and therefore putting more pressure and use on Maluhia, maintenance of Maluhia should be borne principally by HIR as it will be relying on it for its enlarged commercial uses. Specifically: • HIR should also be required to keep Maluhia open and free of overhanging vegetation and clear debris off the side of the road. • HIR should also be required to weed the side of Maluhia but making sure not to hit water pipes. 3. Liability: HIR should be required to indemnify neighboring property owners for any claims arising out of its commercial activities and maintain a liability insurance policy given their"public access mandate" and name neighboring properties additional insureds. 4. Liquor: HIR's insurance on its liquor license should also be extended to protect and cover adjacent neighbors. The expansion of HIR will have significant negative impacts on all of us and we urge action be taken to mitigate them to the maximum extent possible. Mahalo for your attention and consideration. DeVera, Ashley From: Bill Melton <bmelton@billmelton.com> Sent: Tuesday, April 4, 2023 1:37 PM To: Jackson, Maija Cc: Don Franzen Subject: Special Management Area Permit (SMA 01-000003) and Special Permit (SPP 01-000006) Attachments: Melton Letter of Opposition and Petition for Standing.pdf Re: Special Management Area Permit(SMA 01-000003)and Special Permit(SPP 01-000006)Applicant: Ahu Pohaku Ho'omaluhia, LLC dba Hawai'i Island Retreat,LLC Hanaula,North Kohala,HI, TMK: 5-4-009: 014 Dear Ms. Jackson, Attached please find my letter of objection to the above permit. Also please find my notarized petition for standing in this case. Please direct me to the specific URL at the County of Hawaii Electronic Processing and Information Center (EPIC) where I can pay my $200 and file my petition. I've not been able to find the correct location even after diligent searching. It is my understanding you are the correct person through which to channel materials for this matter. If I'm incorrect, please let me know. Thank you. Bill William Melton 703-926-3142 i April 3,2023 Planning Commission of the County of Hawaii West Hawaii Civic Center,Council Chambers,Building A, 74-5044 Ane Keohokalole Highway,Kailua Kona Re:Special Management Area Permit(SMA 01-040003)and Special Permit(SPP 01-000006)Applicant:Abu Pohaku Ho'omaluhia,LLC dba Hawai'i Island Retreat,LLC Hanaula,North Kohala,HI,TMK:5-4-009:014 Dear County of Hawaii Planning Department, As an immediate abutting neighbor,with shared property line,I oppose this application for further expansion of HIR.My opposition is due to the negative impacts it will have on our surrounding properties for the reasons listed below. However,more specifically I raise the issue of our community's history with this applicant.This applicant's initial variance request,albeit artfully navigated by Sidney Fuke,has not been respected in practice or principal. In addition to making expansions beyond those authorized in their initial variance,they have been vigorously litigious, refusing to take responsibility for either prior agreed or reasonable shared community costs. We must assume future behavior will reflect history.If for no other reason,we must object to further expansion,logically assuming the applicant will not be willing to bear their fair share of the costs of the impacts of this requested expansion. We call out some of those impacts and costs: Additional car and foot traffic and increased wear and tear and damage to the roads that serve our properties, including Maluhia,Pratt and Honopueo Roads,and risks of liability to us from the expanded business of HIR. While we oppose granting the expansion,should it be granted in any part,given our history with this applicant,we respectfully demand the following measures be clearly and contractually specified in any grant,to mitigate the negative impacts,and likely the litigious behaviors: 1. Safety:Clear signage should be required regarding safe speed limits on Maluhia and indicating the public access is a left turn on Pratt after leaving Maluhia. Many times,for lack of clear signage,people looking for the HIR make a right turn on Pratt and end up in the driveways or homes of our neighboring properties. 2. Maintenance:As Maluhia will be expanded,and therefore putting more pressure and use on Maluhia, maintenance of Maluhia should be borne principally by HIR as it will be relying on it for its enlarged commercial uses. Specifically: • HIR should also be required to keep Maluhia open and free of overhanging vegetation and clear debris off the side of the road. • HIR should also be required to weed the side of Maluhia but making sure not to hit water pipes. 3. Liability:HIR should be required to indemnify neighboring property owners for any claims arising out of its commercial activities and maintain a liability insurance policy given their"public access mandate"and name neighboring properties additional insureds. 4. Liquor:HIW s insurance on its liquor license should also be extended to protect and cover adjacent neighbors. The expansion of HIR will have significant negative impacts on all of us and we urge action be taken to mitigate those impacts including likely associated litigation. Mahalo for your attention and consideration. William(Bill)Melton TMK#54-009:019 Lot#14 bill@bilimelton.com PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 1 oft) NAME: William N Melton ADDRESS: 101 Sarah Drive,Mill Valley,Ca.94941 PHONE NO, 7030263142 --------------------------------------- — APPLICANT/ DOCKET NO.: regard AHU POHAKU HOOMALUHIA LLC(FormerlZ Robert Watkins and Jean Sunderland). (Pl-SMA-2022-000818),Special Permit(SPP O1-000006 aad PL-SPP 20222022:000018,Tax Map Key:5-4-009:014 A. Is your interest in this matter clearly distinguishable from that of the general public? Yes X No If the answer is "yes". please explain: I am physically abutting and adjacent lot owner.(UM#54-009:019 Lot#14) If the answer is"no". please explain how the proposed action will nevertheless cause you actual or threatened injury: B. Are you a government agency whose jurisdiction includes the land involved in the subject request? Yes No X If the answer is "yes", please explain the nature of the agency's jurisdiction: C. Do you lawfully reside on or have some property interest in the land involved in the subject request? Yes No— If o—If the answer is "yes", please explain: Appendix A RETMONFOR-STANDIXG IN a CONTESTED CASE REARING (Fagez otzl D. Are you a person or persons descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence, cultural, or religious purposes' Yes No X If the answer is "yes", please submit any genealogical evidence and historical evidence showing the exercise of those rights to supportyour statement: Petition r ature STATE OF California SS. COUNTY OF Marin ,I i tr On this 7 day of d L 20`—5, before me personally appeared. ldjj t 1ST L-M d to me known to be the person described in and who executed the foregoing instilument, and acknowledged that he executed the same as his free act d deed, ERICA Y.JOUBERT NOTARY PUBLIC-CALIFORNIA COMMISSION*2381922 ' MARIN COUNTY Not P Il YSate OfCalifornia My Comm.Exp.Recomher 3,2025 MY commi on expires. �'Z 0'� Jab Appendi.xA WEST HAWAII MEDIATION CENTER Providing high quality conflict resolution senices throughout West Hawaii AMENDMENT AND RESTATEMENT OF AGREEMENT First Party: Charles A.Anderson,Trustee Represented Edmund Haitsuka,Attorney of the Charles A.Anderson By: (not in attendance) Trust, EWM Enterprises L.P. and Kohala Makani Wai, LLC ("Petitioners") Second Party: Jeanne Sunderland of Ahu Represented Michael Matsukawa,Attorney Pohaku Ho'omaluhia LLC, dba By: (not in attendance) Hawaii Island Retreat, LLC ("Applicant") Additional Participant: Planning Department Director Zendo Kern ("Planning Director") Additional Participant: Planning Consultant Sidney Fuke Date: June 22, 2023 WHMC Case#: CoHI 23-02 Permit Applications PL-SMA-2022-000018 and PL-SPP-2022-00001.8 THIS AMENDMENT AND RESTATEMENT OF AGREEMENT is dated February26, 2024 2024, is by and between CHARLES A_ ANDERSON, TRUSTEE OF THE CHARLES A. ANDERSON TRUST, EWM ENTERPRISES,LP and KOHALA MAKANI WAI, LLC(collectively"Petitioners"),AHU POHAKU HO'OMALUHIA LLC dba HAWAII ISLAND RETREAT ("Applicant"), and the PLANNING DIRECTOR OF THE HAWAII COUNTY PLANNING DEPARTMENT ("Planning Director") (hereinafter referred to collectively as the "parties"), and amends, restates and incorporates the terms and conditions contained in that certain Agreement dated June 22, 2023 (the "Agreement"), as supplemented and amended by that certain Addendum to the Agreement executed by the parties on July 17, 2023 and July 18, 2023, as follows: 1. Applicant and Petitioners finalized the wording of the Agreement which was signed by all parties by July 15, 2023, 2. Subject to the approval of the above-referenced permit applications by the Leeward Planning Commission,Applicant shall perform or assume the following obligations,which obligations shall be incorporated as conditions in the approvals of the permit Planning Dept. Exhibit 33 applications, and which obligations shall commence upon the issuance of the building permit(s) for the improvements to the existing retreat contemplated by the permit applications: a. Applicant shall make the following improvements to the following three roads: Lokahi Road (1) Improve the existing twenty(20)foot wide gravel road with a sixteen(16) foot wide asphalt pavement and a two (2) foot compacted gravel shoulder on each side for a total improved width of twenty(20)feet. (2) Install speed humps within the paved section of the road at a minimum of one every 300 feet or at a distance agreed upon by the property owners of TMK Nos. (3) 5-4-009:005, 5-4-009:010, 5-4-009:011, 5-4- 009:012 and 5-4-009:013. (3) Install appropriate and typical traffic-related signage within the road right-of-way such as road markings, speed limit, upcoming speed humps, no passing zone,etc. Maluhia Road (1) Install additional two (2)foot wide compacted gravel shoulders to widen existing seventeen (17) foot wide paved roadway to the extent that this installation will not potentially damage or require relocation of existing water lines. (2) Install appropriate and typical traffic-related signage within the road right-of-way such as road markings, speed limit, upcoming speed humps no passing zones,etc. (3) Install signage which states "Dangerous Drop Off Proceed with Caution" and reflective markers on steel posts which are approximately six(6)feet above ground and installed approximately every fifteen (15) feet along approximately 300 feet of Maluhia Road which borders or is adjacent to the Hanaula Gulch. Old Pratt Road (between Maluhia Road and Lokahi Road) (1) Install a sixteen (16) foot wide paved road plus two (2) foot wide compacted gravel shoulders on each side for a total improved width of twenty(20)feet. (2) Install appropriate and typical traffic-related signage within the road right-of-way such as road markings, speed limit, upcoming speed humps, no passing zone, etc. b. Applicant will assume responsibility for conducting a minimum quarterly maintenance of the three roads,including mowing and tree trimming,as needed, and performing repairs to the pavement and gravel shoulders of the roads.The roads shall be kept free from pine needles and other debris by sweeping/blowing and trimming of ironwood and other trees along roads. C. Applicant will add the property owners whose property the three roads (Maluhia Road, Lokahi Road and Old Pratt Road between Maluhia Road and Lokahi Road) traverse and the property owners of TMK Nos.(3)5-4-009:001, 5-4009:005, 5-4- 009:10, 5-4-009:011, 5-4-009:012, 5-4-009:013, 5-4-009:015, 5-4-009:017, S-4- 009:018, 5-4-009:019,5-4-009:024, 5-4-009:025,5-4-009:026, 5-4-009:028, 5-4- 009:029 -4009:029 (the "Additional Insureds") who have easement rights on Maluhia Road as additional insureds on Applicant's liability insurance. Such insurance shall be comprehensive general liability insurance(including personal injury and property 2 damages from automobile accidents) with an A rated company in minimum amounts of at least $1,000,000 per person and $3,000,000 per occurrence. The Additional Insureds shall be entitled to notice of cancellation or non-renewal under the policy or policies. Applicant shall provide each of the Additional Insureds copies of the initial certificates of insurance and all renewal certificates of insurance within ten (10) days of issuance. d. All new structures directly related to the expansion of the retreat and which adjoin TMK No. 5-4-009:005 will have a minimum 100 foot setback from the property line. e. The new guest units requested in the permit applications will be limited to twenty (20) units. 3. Applicant shall take down the wind turbine installed on Applicant's property by March 15, 2024. 4. Petitioners withdrew their petitions to intervene in the contested case within five(5)days of the signing of the Agreement by sending an email to Maija Jackson, ( ;W) which stated: "I hereby withdraw as a petitioner on case PL-SMA-2022-000018 and PL-SPP-2022-000018." 5. In the event that the permit applications are approved by the Leeward Planning Commission, the Planning Director shall take all action necessary to incorporate the obligations set forth in Paragraph 2 above into the approvals of the permit applications. 6. Should any problems arise in regards to this agreement,all parties agree to return to West Hawai'i Mediation Center for a further mediation. 7. All parties agree that this document may be executed electronically. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK,THE SIGNATURE PAGE FOLLOWS. 3 I CHARLES A. ND RSON,TRUSTEE OF THE CHARLES A ANDERSON?RST 4,0� Date: r--��nJ �/ �`— EWM ENTERPRISES, LP, a Nevada limited partnership Bye tWM Management, LLC,a Nevada limited liability company Its: Partner By: Ernest W. Moody Its: Manager Date: KOHALA MAKANI WAI, LLC, a Hawaii limited liability company By: EWM Investments, LLC, a Nevada limited liability company Its: Manayr/ n By: Ernest W. Moody Its: Managing Member 7 Date: r "PETITIONERS" AHU POHAKU HO'OMA HIA LLC d TREAT JeanY(Sunderland Its: Manager- Date: anage¢Date: "APPLICANT" HAWAII COUNTY PLANNING DEPARTMENT Zeilk Kem Zendo Kern&F h 76.707413 51 HIT) By: Zendo Kern Its: Director Date: Feb 26,2024 "PLANNING DIRECTOR" 4 DeVera, Ashley From: ksims@whmediation.org Sent: Wednesday, July 12, 2023 9:14 PM To: Jackson, Maija Subject: RE: FW: Withdrawal of Petitions re PL-SMA-20220000018 and PL-SPP-2022-000018 Hi Maija, This agreement is not confidential and can be included in the public information about this case. Mahalo for asking. Kate -----Original Message----- From: "Jackson, Maija" <Maija.Jackson @hawaiicounty.gov> Sent: Wednesday, July 12, 2023 12:03pm To: "ksims@whmediation.org" <ksims@whmediation.org> Subject: FW: Withdrawal of Petitions re PL-SMA-20220000018 and PL-SPP-2022-000018 Aloha Kate, Can you please let me know whether this agreement is confidential or public information? Thank you, Maija From: Edmund W.K. Haitsuka <ewh@hdkona.com> Sent: Wednesday, July 12, 2023 11:52 AM To: Jackson, Maija <Maija.Jackson @hawaiicounty.gov> Cc: Charles Anderson <charlie@big isle.com> Subject: Withdrawal of Petitions re PL-SMA-20220000018 and PL-SPP-2022-000018 Dear Ms. Jackson: In accordance with Paragraph 3 of the attached agreement, , this is to provide notice to the Hawaii County Planning Department that my clients, Petitioners Charles A. Anderson, Trustee of the Charles A. Anderson Trust dated January 19, 1995, EWM Enterprises, LP, and Kohala Makani Wai, LLC, hereby withdraw as petitioners in case nos. PL-SMA-20220000018 and PL-SPP- 2022-000018. Please let me know if you have any questions or need anything further from me or my clients. Thanks, Ed Edmund W.K. Haitsuka, Esq. TY AITSUTA IDLEGELE LLP Planning Dep;. Exhibit 34 1 75-1000 Henry Street, Suite 208 Kailua-Kona, HI 96740 Tel. No. (808) 326-7300 Fax No. (808) 326-7725 ewh(c�hdkona.com IMPORTANT/CONFIDENTIAL: This message from the law firm of Haitsuka Degele LLP, a Hawaii limited liability law partnership, contains information which may be confidential, privileged, and/or exempt from disclosure under applicable law. If you are not the addressee (or authorized to receive for the addressee), you are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictly prohibited. If you received this message in error, please immediately notify me(the sender) by replying to this email, then promptly destroy the original message. Thank you. 2 AGREEMENT First Party: Don and Dale Franzen and Represented Themselves Bill Melton ("Petitioners") By: Second Party: Jeanne Sunderland of Ahu Represented Themselves Pohaku Ho'omaluhia LLC, By: dba Hawaii Island Retreat, LLC("Applicant") Date: March 4, 2024 Permit Applications PL-SMA-20220000018 and PL-SPP-2022-00001 We, the undersigned, for valuable consideration, receipt of which is acknowledged, hereby agree to the following: 1. Applicant shall perform or assume the following obligations,which obligations Applicant shall cause to be incorporated as conditions in the approvals of the Permit Applications, and which obligations shall commence upon the issuance of the building permit(s)for the improvements to the existing retreat contemplated by the Permit Applications: a. Applicant shall make the following improvements to Maluhia Road (1) Install additional 1-2 foot wide compacted gravel shoulders to widen existing 17-foot wide paved roadway to the extent that this installation will not potentially damage or require relocation of existing water lines. (2) Install appropriate and typical traffic-related signage within the road right-of-way such as road markings, such as speed limit, upcoming speed humps,no passing zone, and so forth. (3) Applicant will assume responsibility for conducting quarterly maintenance of Maluhia Road, including repaving, mowing and tree trimming, as needed. b. Applicant will add the property owners who have easement rights on Maluhia as additionally insureds on Applicant's liability insurance. The persons to be added to such insurance currently are as follows (the "Additional Insureds"): Lot 12:TMK: 3-5-4-9-11 Dale Franzen divadale@me.com, Don Franzen dfranzen@lawff.com, Lot 13:TMK: 3-5-4-9-18 Cam McIntyre mcintyrerc@comcast.net, Susan Reba McIntyre srm ci ntyre Ca)co m cast.net, Lot 14: TMK: 3-S-4-9-19 William Melton Bill@bilImelton.com, 1 Planning Dep Exhibit__ 35 Lot 20: TMK: 3-5-4-9-24 Katherine k2pome@gmail.com, Karl Toubman karltoub@gmail.com, Lot 21:TMK: 3-5-4-9-25 Helen Behrmann behrmannh aol.com, Marcus Castaing marcuscastaing@aol.com, Lot 15,TMK: 3-5-4-9-1 Hunyadi, Laszlo Ihunyadi@ttu.edu, Emily Sundman emilysundman@hotmaii.com Lot 22. TMK: 3-5-4-9-26, Hunyadi, Laszlo lhunyadi@ttu.edu, Emily Sundman emilysundman@hotmail.com Lot 23c: TMK: 3-5-4-9-28 Peter Evanovich peter@evanovich.com If the property ownership changes, new additional insureds will be added to reflect current ownership. Such insurance shall be for comprehensive general liability (including personal injury and property damages from automotive accidents)with an A rated company in minimum amounts of at least$1,000,000 per person and $3,000,000 per occurrence. Applicant will provide each of the Additional Insureds a copy of a certificate of insurance showing them to be added to the policy and shall be entitled to notice of cancellation or non-renewal. 2. Petitioners will withdraw their petitions to intervene in the contested case within five (5)days of the signing of this agreement by all parties by sending an email to Maija Jackson, (Maiia.Jackson@hawaiicountv.gov)stating : "I hereby withdraw as a petitioner on case PL-SMA-20220000018 and PL-SPP-2022-00001." 3. In the event that the permit applications are approved by the Leeward Planning Commission, Applicant shall take all action necessary to incorporate the obligations set forth in Paragraph 1 above into the approvals of the Permit Applications. All future owners of Applicant's property will be subject to and bound by those obligations. Owners of the TMKs listed in Par. 1.b. shall have the right to enforce all obligations incorporated in any final permit. 4. Should any problems arise in regard to this Agreement, all parties agree to first mediate before the West Hawai'i Mediation Center. If mediation does not resolve the problems,the Parties may resort to any and all remedies allowed in law or equity. 5.All parties agree that this document may be executed electronically and in counterparts. Don Franzen Date: ake Franzen, r Date: 5 —( 2 irlv� Bill Melton Date: March 5 202, AHU POHAKU 'OMALUHIA LLC_dba_HAWAII ISLAND RETREAT y:lean Sunderiand Its: Ma�►�g�r Date: 3 Andrews, Jessica From: donfranzen@mac.com Sent: Tuesday, March 5, 2024 5:25 PM To: 'Bill Melton'; Dacayanan, Melissa; 'Jean Sunderland' Cc: 'William Melton';Jackson, Maija;Andrews,Jessica;Antony,Amber N.;Agustin, Noah Subject: Leeward Planning Commission Notice of 3-21-24 Hearing for Petitioners Don and Dale Franzen Aloha Maija, We, myself and my wife, Dale Franzen, hereby withdraw as a petitioners on cases PL-SMA- 20220000018 and PL-SPP-2022-00001. Thank you for your time and attention to this matter. Mahalo Don Franzen donfranzen(c)mac.com M: 310 980 2976 O: 310 785 1710 Planning Dept. Exhibit 36 Andrews, Jessica From: Bill Melton <bmelton@billmelton.com> Sent: Tuesday, March 5, 2024 5:07 PM To: Dacayanan, Melissa; Don Franzen;Jean Sunderland Cc: William Melton;Jackson, Maija;Andrews,Jessica;Antony,Amber N.;Agustin, Noah Subject: Re: Leeward Planning Commission Notice of 3-21-24 Hearing for Petitioner William N. Melton (PL-CCH-2023-000014) Maria, I hereby withdraw as a petitioner on case PL-SMA- 20220000018 and PL-SPP-2022-00001. Therefore please remove my name and petition from the roster. Thank you for your time and attention to this matter. Bill Melton William N Melton Bi�billmelton.com On Fri, Mar 1, 2024 at 3:29 PM Dacayanan, Melissa <Melissa.Dacayana nahawaiicou nty.gov>wrote: Good afternoon Mr. William Melton, Attached please find the notice of hearing on the subject petition scheduled for Thursday, March 21, 2024, by the Leeward Planning Commission. There will be no hard copy to follow. Should you have any questions, feel free to contact Maija Jackson (cc'd herein) at (808) 961-8159. Thank you. Via bcc: cc recipients list on letter M 9aca�uamair�-rd i wiradwotrd & Leeward Planning Commission. County of Hawodi`i Planning Department 101 Pauaki Street, Suite 3 Hilo, Hawaii 96720 Direct: (808) 961-8156 Maim (808)961-6268 Email: melissa.dacauar otrt@hawaiicoun.tu.aov 2 A.,Oe SidneyFuke, Planning Consultant �� P.O.Box 9345 •Hilo,Hawai'i 96720 Cell:(808)g89_0640 •Planning•Variance•Zoning E-mail:sidneyfuke@gmai[com •Subdivision•Land use Permits •Environmental Reports December 26, 2022 Mr.Zendo Kern,Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo,HI 96720 Dear Mr. Kern: Subject: Amendment to Special Permit(PL-SPP-2022-0000018; SPP 01-000006) Applicant T Abu Pohaku Ho'omaluhia,LLC North Kohala Hawaii TMK: 5-4-009: 014 This is in response to agency and public comments to date regarding the subject matter. State Department of Health DOH DOH noted that the project must address and comply with applicable construction and post-construction regulations. These include control of fugitive dust and noise during and after construction. The applicant will adhere to those. Likewise,while there appears to be no need for an injection well to address on- site drainage,if one is needed,the appropriate Underground Injection Control permit will be secured prior to its installation. As the proposed area will occur in already disturbed area either used for the project or in the past for agricultural uses,the chances to unearth hazardous material appear slim. As such, a Phase I Environmental Study should not be necessary. Further a Solid Waste Management Plan has already been prepared and approved by the County. Water will be provided through the County's system. As such,the project will be serviced by clean potable water. Further,the site is located ma.kai of the potable wells, and thus, impacts to any water source in the area should be negligible. State Department of Health-Wastewater Branch(WBS Currently,the project is serviced by four(4)septic tanks and soil absorption system that was reviewed and approved by the State DOH. The WB noted that due to the project's proximity to the ocean and soil condition,there could be impacts to the ocean. However, it did not indicate what kind of system would be required. Planning Dept. Exhibit 37 Mr.Zendo Kern,Director December 26,2022 Page 2 In either event,the applicant would like to continue use of the septic system approach; however, if that is deemed insufficient by the DOH-WB,the applicant will comply with its requirements. State Historic Preservation Division SHPD SHPD noted that all archaeological work had been conducted on the project. A such, it had no objections to the request, concluding that the "historic preservation review process is ended"and that"permit issuance process may proceed." State Department of Trans ortation DOT The Airports Division of the DOT outlined its construction and related requirements due to the project's proximity(approximately 3.72 miles)to the Upolu Airport. As with the initial construction of the project, the Applicant is mindful of any additional permitting, construction,and operational requirements. In that regard,the appropriate form (FAA Form 7460-1 Notice of Proposed Construction or Alteration)will be submitted to the Airports Division. The guests have and will continue to be kept informed of the potential single event noise and related nuisance impacts from aircraft operations. To date, there have been no complaints from the project's guests. The project's energy requirement is currently being supplemented by a solar system. At this time,the applicant does not intend to construct additional panels. However, if it is determined that additional panels are needed or desired,the applicant will file the FAA Form 7460-I which will include the"glint and glare"analysis. Further, while very unlikely given the magnitude of the solar system,any mitigation required by either the DOT or FAA will be complied with. The Highways Division of the DOT noted that the project"does not appear to significantly impact the State highway system." US Fish and Wildlife Service SFWS USFWS recommended that a species list of this area be developed to determine whether there would be any impacts to these species,and subsequently to see what kind of mitigation measures,if needed,need to be taken. It added that"Of particular concern may be increasing additional nighttime lighting and the effects associated with Hawaiian seabird fallout caused by night lighting." Mr. Zendo Kern,Director December 26, 2022 Page 3 As with other applications that are proximate to the coastline, a condition could be required to protect any seabirds(Hawaiian petrels and Newell' s shearwaters) in the vicinity of the property. These mitigations could be requiring any lighting to be fully shielded so that the bulb can only be seen from below bulb height; having the lights turned off when human activity is not occurring in the lighted area; and having the lights shielded. CoLiM Fire Department FD The FD required compliance with Chapter 18 of the State Fire Code and Chapter 26 of the Hawaii County Code relative to access and water supply. The access is sufficient to provide for emergency vehicles to get to and from the property. Further, there is potable water serving the site. It should be noted that during the Building Permit process,the FD must review and approve all permits. As such,in the event the FD requires additional improvements to address access and fire protection needs, they will be addressed and complied with. Cogaly Police Department PD The PD had no"comments or objections"to the request. Public Comment One of the surrounding property owners(Jonathan Christensen)had raised concerns regarding the condition of the access road. The applicant is in the process of discussing possible mitigation and its implementation schedule with Mr. Christensen and hopefully,an agreement can be reached in the very near future. We will update you on this. We trust that this response adequately addressed the comments to date. If not or should there be more,please feel free to contact me. Thank you very much. �kncerely, SIDNEY M. FUKE Planning Consultant Copy—Ms. Jean Sunderland via email t —� Sidn()^ke, Planning Consultant M� P.O.Box)g8 •Hilo,Hawaii 96720 •Planning•variance-zoning AMOCell:(808)989 0&40 •Subdivision•Land Use Permits E-matl:sidneyfuke@gmaif.com •Environmental Reports December 29,2022 Mr. Zendo Kern,Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo,HI 96720 Dear Mr. Kezar: Subject: Amendment to Special Permit(PL-SPP-2022-0000018; SPP 01-000006) Applicant—Ahu Pohaku Ho`omaluhia,LLC North Kohala Hawaii TMK: 5-4-009. 014 This is in response to your staff s inquiry regarding use of the retreat for weddings and other special events as well as comments offered by the State Office of Planning and Sustainable Development(OP)regarding the subject matter. In the beginning,the applicant had on a few occasions held wedding and a few special events at the retreat. However, those occasions have been too disruptive of the retreat's mission and operations. As such,the retreat no longer makes its facility available for those special events. Relative to OP comments,OP notes that the request will "result in more, higher- value non-farm uses in the Agricultural District. "Perhaps the site plan may not be clear, but the proposed structures and uses will occur within the 5-acre boundary of the existing Special Permit, an area that already had been considered agriculturally relinquished through the initial Special Permit process. If the uses were to penetrate this area,then, OP's comments would be on point. I have attached a copy of the site plan which reflects the 5-acre area within the 14.5-acre parcel. Notwithstanding the above,while the principal agricultural activities occur outside the 5-acre area,there are still some agricultural activities within the 5-acre area. While there will be some diminution of agricultural activities within the 5-acre area as a result of the additional structures,the diminution should not be significant. The existing and proposed units are and will be nestled within existing gardens and orchards. Gardening and farming are integral components of the retreat's values of health, wellbeing and peace. Clearly then,there is a symbiotic relationship between the retreat and on-going agricultural activities. For one,the agricultural component helps sustain the retreat both in its program and, at times, financially_ Conversely,the importance of the agricultural program to the retreat incentivizes the retreat to also do things to support the agricultural activities. Planning Dept. Exhibit_ Mr.Zendo Kern,Director December 29,2022 Page 2 Thus,while there may not necessarily be an increase in the number of farm workers,the project should help sustain the existing(and possibly expand)agricultural activities. As noted in our response to the County Department of Water Supply,water usage has been high not so much because of the retreat but the agricultural activities. As such, to support the water needs of the agricultural activities, the applicant is in the process of constructing a non-potable well, a well which should come online within the next six(6)months. It is questionable whether that step would have been taken had it not been for the importance of the agricultural component to the retreat. Please do note that the additions will be rooms and not dwelling units. The rooms are not really designed to accommodate more people as much as enabling guests to have their privacy in a single versus a shared room. Most guests prefer single room but have had to be housed in a double occupancy room due to space limitation. The applicant is aware that the subject property is "non-conforming"relative to land area. And further,it is within the SMA and thus subject to the SMA requirements. As such,the requested amendments with appropriate supportive justifications relate to both the SMA and Special Permit. While a shoreline parcel,none of the proposed activities will occur within the shoreline setback area. Please note that there is a band of Conservation designated land immediately makai of the area of the existing and proposed improvements. A map of this band was provided earlier as part of the submittal and also attached herein. The public access plan has already been implemented and maintained by the applicant. Photos of the condition of the access will be provided under separate cover directly by the applicant. Finally,in our comments to the US Fish and Wildlife Service,we believe the matter of lighting was addressed. We trust that this response adequately addressed your staff and OP's comments. If not or should there be more,please feel free to contact me. Thank you very much. incerely, WN SIDNEY M. FUKE Planning Consultant Enclosures Copy—Ms. Jean Sunderland via email z - � of j u 6 �•.� L 3, 1 H +r cc Nt ZE FF ZA. 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It _ "N. it;$3¢.S/Ft.tv" l�,837,9,T FL Fast ..J u,w,• pre, COCONUTS � ,YV t ' 1,-•'- 4 PLUtVIER(k --.Edo —' tot 9-A * telly PROPOSE!]!LgLf S Charles A.A -.o &--4 et ui. o GAN.{C..GAR0 a r r 1 6LiIt01 GROvt atrat,,—t 2M QRCfiARDS Bc Gi�RD hJ AlNGO CITRUS O - D ZONE sr.d f PA-4 'F'w A+Afb Acvn rp� � - 11 iii Ax+ImMt!!a 2t70Y 0291153 Ak= /i 7Q Tuit it �e gcm9pryr ll�r f IP NE X rid 1yV, I 6w3rfMQ Fr�vtt PA-1 70NE V CATTLE PASTUM l �` 5.•J= // Sit:z 'tP,, y LOT 16-A-1 ♦� 38.933 ACMES 4` ZONE VE (EL 15) ti, SidneyFuke, Planning Consultant P.O.Box 1345 •Hilo,HawaN 96720 •Planning•Variance•Zoning Cell:(808)989-0640 •Subdivision-Land use Permits E-mail:sidneyfuke@gmail.com -Environmental Reports December 29, 2022 Mr. Zendo Kern.,Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo,HI 96720 Dear Mr. Kern: Subject: Amendment to Special Permit (PL-SPP-2022-0000018; SPP 01-000006) Applicant—Ahu Pohaku Ho'omaluhia,LLC North Kohala Hawaii TMK: 5-4-009: 014 This is in response to the County Department of Water Supply's(DWS) comments regarding this matter. The applicant shares DWS' philosophy that potable water is a most precious resource, and as such, appropriate water conservation measures should be taken. The guiding principle and thus operational focus of the applicant's retreat is consistent with that philosophy. It strives to promote sustainability by living and working with the land. In that regard,agricultural activities and conservation are important elements of the retreat. Admittedly,the water usage over the past few years has been higher than normal. This was due, in part,not so much for the habitable activities as much as the agricultural activities on the property. There were periodic droughts resulting in greater water usage to maintain the on-going agricultural activities on the subject as well as the adjoining property(TMK 5-4-009: 020). With the return of the rain over the past months,however, records should indicate a considerable reduction of the draw from the County water system. At any rate,to help address reduce the use of County water, the applicant installed sprinklers and drip lines. It is also in the process of constructing a non-potable well on its property to service the agricultural activities. Once it comes online within the next six(6) months,the existing irrigation system will draw its water from this non-potable well, resulting in a drastic reduction of water from the County's water system. The applicant believes that the additional 20 hale or rooms for a total of 36 rooms should not significantly add to the potable water demand. While it could,the additional rooms are not really designed to accommodate more people as much as enabling guests to have their privacy in single versus a shared room. Most guests prefer single room but have had to be housed in a double occupancy room due to space limitation. Planning Dept. Exhibit 39 Mr.Zendo Kern, Director December 29, 2022 Page 2 As noted above,the applicant has and will continue to take measures to accommodate DWS' request of having the applicant "implement water conservation measures to reduce water consumption. " Moving forward,the applicant will work with DWS to find other measures to monitor and further reduce its potable water consumption use. We trust that this response adequately addressed DWS' comments. If not or should there be more,please feel free to contact me. Thank you very much. Sincerely SIDNEY M. 1~UKE Planning Consultant Copy—Ms. Jean Sunderland via email Andrews, Jessica From: Hawaii Island Retreat <jeansunderland2@gmail.com> Sent: Friday, December 30, 2022 11:34 AM To: Andrews,Jessica; Sidney Fuke Subject: Fwd: Public access pics Attachments: IMG_6711.jpg; IMG_6709.jpg; IMG_6708.jpg; IMG_6707.jpg Here are some pictures of our maintained Public Access Trails. There will be one more email with more pictures. I will figure out how to upload the pictures in a PDF format so I can attach to the EPIC file. I am sending pictures of 6 of our 9 Public Access signs and of the trails that we keep mowed and free of anything that will impair the walking paths. Me Ke Aloha O Ka Aina, Jeanne Sunderland, Owner/Co-Creator Hawaii Island Retreat 808-889-6336 Harmonious Blend of Elegance and Sustainability ---------- Forwarded message --------- From:Jean Sunderland <ieansunderland2@gmail.com> Date: Fri, Dec 30, 2022 at 11:20 AM Subject: Public access pics To:Jean Sunderland <ieansunderland2@gmail.com> Planning Dep;. Exhibit 40 Sent from my Whone 2 • � 'h s � _ JxzL �I t � y • ` - � } - -ti. �.-- 'V 9 _.. ' � ,( l� � p,a.' - :�,: a..�' 'Aad• s. Or 14 �J�\J\1=�gT17f If F Alf a I - vA MN 4+ r �[�- r� iii �► �-�� �- � _ � i --a c y y A-. r ao ' Planning Exhibit 31 70 1 r 1T.Y7filr3 i � . .f•�- _ � I � I. r. �.'� '.x: 'off'• _ fy r � � - � }} ��„" •,� .ter_ F A 5 t r �;1� �, J : 5���'ix�r• � :. '+ - fie' _ i Public54 �11 Mr.- Ij qk r 3 f J M '[ �'' ✓ 8 �' } j �Fy 4�. y 1' Planning ©epi. Exhibit 31am • WASTWATER REQUIREMENTS • despite numerous attempts, the applicant has not been successful in getting a response from Ms. Sina Pruder who heads the Wastewater Division of the State Department of Health. Accordingly, we cannot unequivocally identify what will be installed. Be that as it may, as noted in our earlier response to this matter, the State Department of Health is one of the reviewing agencies for the building permits. As such, compliance with its requirements is mandatory. Inasmuch as no direction has been provided by the State DOH at this point, the applicant will continue to operate on the premise that the additional septic system will be sufficient. This premise is due to the fact that the subject property is perched on a cliff nearly 150 feet above of the ocean and more than 300 feet from the top of the cliff. In the event the septic system is determined to be insufficient, the applicant believes that, short of a wastewater treatment plan, a reasonable alternative could be the installation of an anaerobic septic system, a system that is commonly used in environmentally sensitive areas. • ROAD IMPROVEMENTS L after due consideration of comments from the neighbors, the applicant is willing to accept the following condition of the Special Permit and SMA Permit: "Prior to the issuance of any construction permits relating to the proposed improvements authorized through this amended Special Permit and Special Management Area permit, the applicant shall improve the vehicular access between the intersection of Pratt Road and Lokahi Road and the at least 10 feet inside the property line of TMK: 5-4-009-014 with a minimum 10 foot wide paved road and speed humps in accordance with the pertinent standards/guidelines of the County Department of Public Works for a private road and installation of speed humps. A barrier extending beyond both edges of the speed humps shall also be installed to avoid use of the unimproved section of the right-of-way as a passageway. The applicant, its assigns or heirs, shall also be responsible for maintenance of the proposed improvements within the private road and speed humps for the life of this Special Permit and Special Management Area Permit." There are several things to note about this proposed condition. Planning Dep,. Exhibit 41 a. As you are aware, normally off-site improvements — if required as a condition — need to be in place prior to issuance of occupancy permit. In this case, however, the applicant is willing to have these done upfront— i.e., prior to issuance of any construction-related permits. b. Further, to avoid only the blacktopping of the road over the existing ground, there is specific definition of the type and level of road improvements of this 10-foot-wide paved road, using DPW's private road standard. In terms of the speed bumps, DPW's guidelines in terms of the distance/height are also being referenced, coupled with the inclusion of some sort of a barrier at both ends of the speed humps to minimize vehicles from driving on the edges to avoid the speed bumps. c. Finally, the applicant will also bear the maintenance responsibility of the proposed improvements for the life of the Special Permit and SMA Permit. RESPONSE TO PMEROY AND MACINTYRE LETTERS Public Access information Public access follows Maluhia Road to the parking lot at Hawaii Island Retreat. One walking pathway goes to the cliffs overlooking the ocean and one goes down the old cane road into the gulch, traveling from TMK:5-4-009-014 onto TMK:5-4-009-020, our farm. On the farm we raise cattle as well as other crops and we practice pasture management with pasture rotation. The public access trail on the farm goes through gates in our cattle fencing. By following the trail, one will come to the gates which may be closed but never locked. We do rotate cattle through these pastures, and inform guests and other visitors to watch the ground for cattle pies. The cattle are friendly and never dangerous. We have 8 signs designated where the public access trails lead. Initially we posted signs on the highway which were removed and replaced by the State Highway Department. Signs on the highway are maintained and regulated by the State Highway Department. Prior to COVID, there were approximately (8) SHORELINE PUBLIC ACCESS designated with signs in North Kohala. During early COVID when parks and beaches were closed,those signs (including ours)were removed. Maluhia Road At the time in 2003,when all the Lots that access Maluhia Road were purchased at a below market rate, it was required that an Association be formed.That Association was to be responsible for infrastructure. Some Lot owners as Ms Pomeroy believed they could use Pratt Road to Union Mill Road instead of Maluhia for access. On their property titles, Pratt Road is not listed as access, and consequently, the owner of the lot that included Pratt Road installed a locked gate to make sure that access was not available. We do not use nor have used Pratt road to Union Mill road nor can anyone use it. In the Association bylaws, Hawaii Island Retreat was to pay 25%of the cost of the road and the remaining Lots collectively pay 75%. Instead,we willingly paid 30%of the coast of establishing a 20 ft wide gravel road, Maluhia Road, and other lots paid 7%each. The Association then decided to add asphalt to Maluhia Road. We again paid 30% of that job,while other paid 7%each. With gravel shoulders, the road continues to be the original width. Each lot owner was responsible for installing their own water line and some chose to lay their water lines on top of the road instead of burying them.These Lot owners need to either bury their water lines or move them over to the edge of the gulch to allow better maintenance of the gravel part of the road. It is true that some drivers prefer to drive down the middle of the road.There are appropriate speed bumps, so only Lot owners and their renters in large SUV's and trucks tend to drive too fast. There are a number of Lot owners with unpermitted additional dwellings that rent to either vacation renters or longer-term renters. It is correct that the Association did not establish any maintenance agreement before dissolving the Association, and thus it seems our maintenance person at Hawaii Island Retreat is the only one that does maintenance. He mows and grates the sides of Maluhia Road every 3 months, as well as grates Lokahi Road which remain gravel. Planning Dept. Exhibit 42 Selling Lodge There has been some individual that have come to us asking if we would sell Hawaii Island Retreat on TMK:5-4-009-014.This may happen at some point; however, that is not now, and we do not have the Retreat listed on MLS, nor do we have any offers. I have involved a dear friend and who is a realtor to assist in communicating with those that are expressing an interest in being the steward of this very sacred place. We will not consider selling the farm on TMK:5-4-009-020 as we intend to continue to spend more time farming. As stated in our Amendment Application,we are requesting the additional 20 units so that we can provide the peace and privacy of single occupancy for those that come for yoga retreats, meditation retreats, and such rather than to increase the number of attendees. There may be a minor increase in attendees occasionally. /z SidneyFuke, Planning Consultant P.O.Box0 Hilo,Hawaii 98720 •Planning•Variance•Zoning Cell:(808))98 989-0640 •subdivision•Land Use Permits Aarw E-mail:sidneyfuke@gmail.com •Environmental Reports April 8, 2024 Mr. Zendo Kern,Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo, HI 96720 Dear Mr. Kern: Subject: Amendment to Special Permit(SPP 01-000006 and PL-SPP- 2022-0000018) and SMA Permit(SMA 01-000003 and PL- SMA-2022-000018) Applicant—Alin Pohaku Ho'omaluhia,LLC North Kohala,Hawai i, TMK: 5-4-009: 014 This letter is intended to address the mediation agreement resulting from the contested case process as well as the overall public access program affecting the subject property. MEDIATION AGREEMENT By way of background,the subject applications resulted in a Contested Case ("CC")proceeding,which included a mediation process prior to commencement of the CC hearing. The mediation process was successful,thus obviating the need for the CC hearing. As outlined in the attached amended and restated agreement, dated February 26, 2024,the terms addressed matters such as improvements and maintenance of portions of Lokahi Road,Maluhia Road, and Old Pratt Road; indemnification provisions; and removal of the wind turbine by March 15, 2024. Inasmuch as the terms were subject to approval of the subject requests by the Leeward Planning Commission, which at the earliest would be April 18,2024,the removal of the wind turbine by March 15, 2024, obviously cannot be met. For your information,the windmill has already been removed. The applicant has no objection to inserting pertinent portions of this mediation incorporated as a part of the condition of approval. However, if the entire document is to be made a condition by reference,the applicant requests that any amendments not related to the substance of either the SMA or SPP not be subject to further action by the Commission,particularly as the Planning Director is a participant to the Agreement. Planning Dept.. Exhibit 43 Mr. Zendo Kern,Director April 8, 2024 Page 2 PUBLIC ACCESS Condition 3 of the referenced SMA Permit required a public access plan that "provides, at a minimum, a continuous traversable lateral public access along the coastal portion of the subject property, and access through Hanaula Gulch to the shoreline...The applicants shall also allow vehicular access across the subject property and parking for a minimum of two vehicles for members of the public to use the shoreline access... . " The attached access plan, identified as Declaration of Access and Utility Easements("DAUE"),was recorded in the State Bureau of Conveyances on February 27, 2008. It is the applicant's understanding that the North Kohala Community Development Plan, adopted as Ord.No. 08-151, assigned the then Public Access Focus Group (which was renamed the Kohala Community Access Group ("KCAG")to undertake the task of finalizing the promised but not delivered legal vehicle and pedestrian access required by Condition 3. Since then,the KCAG has had discussions with the applicant regarding the need to amend certain aspects of the public access program,to which the applicant is amenable. While the KCAG would prefer to have the DAUE amended, this may be a somewhat arduous process, as it would require the consent of another property owner. Further, since the DAUE runs with the land,the applicant believes that a more prudent and expedient course would be to have the additional terms incorporated as a condition of the SMA Permit, which collectively would be the Public Access Plan. In that regard, we would like to propose the following addition to Condition 3: "Further,the Declaration of Access and Utility Easements ("DAUE")recorded on February 27,2009, shall be deemed the approved public access plan covered by this condition, except as modified as follows: a)the width of the eight(8)public access easements noted in the DAUE shall be increased from four(4)to ten(10)feet; b)the public access easements along the coastline shall follow along an old cane haul road on a safe route, located 10 to 35 feet along the top of the pali, except where the trail goes into the gulch; c) any gates on the public access trail shall include a sign noting, `pedestrian pass through gates'; d) three public parking stalls shall be provided and clearly marked with appropriate signage; Mr. Zendo Kern,Director April 8, 2024 Page 3 e)vehicular and public access shall be limited to daylight hours, generally between 6am to 6pm and not gated during these hours. Night fishermen may call Hawaii Island Retreat to be granted after hour access; f) the County of Hawai'i shall be authorized to maintain and inspect all facets of the DAUE and as amended herein; g)upon conferring with appropriate stakeholders and with the approval of the County Planning Director,the public access trail may be relocated to address potential erosion and other concerns to make the trails safer; and h)upon consultation with the Kohala Community Access Group, the location of the vehicular and public access and parking area(s) shall be depicted on a map and provided to County Planning Department." We trust that this adequately addresses the terms of the mediation and public access. If not or should there be questions on this matter,please feel free to contact me. Thank you very much. Sincerely, SIDNEY M. FUKE Planning Consultant Enclosures—Mediation Agreement and Recorded Access and Utility Easements Copy—Ms. Jean Sunderland via email w/enclosures Mr. Charles Anderson via email w/ Ms. Toni Wittington and Mr. Ted Matsuda,KCAG via email w/enclosures —� SidneyFuke, Planning Consultant P.O.Box 1345 •Hilo,Hawai'i 96720 •Planning•Variance•Zoning Cell:(808)989-0640 •Subdivision•Land Use Permits E-mail:sldneyfuke@gmail.com •Environmental Reports April 9, 2024 Mr. Zendo Kern, Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo, HI 96720 Dear Mr. Kern: Subject: Supplemental Public Access Condition Amendment to Special Permit(SPP 01-000006 and PL-SPP- 2022-0000018) and SMA Permit(SMA 01-000003 and PL- SMA-2022-000018) Applicant–Ahu Pohaku Ho'omaluhia,LLC North Kohala,Hawai i,TMK: 5-4-009: 014 This letter is intended to supplement the public access portion of my April 8, 2024, letter. I discussed the initial language with Ms. Toni Withington,who in turn discussed it with other members of the Kohala Community Access Group. Based on that discussion we arrived at and agreed with certain modifications to items"c", "e", and"h". The entire condition with the modifications noted in red would read as follows: "Further,the Declaration of Access and Utility Easements ("DAUE")recorded on February 27,2009, shall be deemed the approved public access plan covered by this condition, except as modified as follows: a)the width of the eight(8)public access easements noted in the DAUE shall be increased from four(4)to ten(10)feet; b)the public access easements along the coastline shall follow along an old cane haul road on a safe route, located 10 to 35 feet along the top of the pah, except where the trail goes into the gulch; (c)In the event a gate is needed to prevent animals like feral pigs or motorized vehicles from accessing the trail, it shall be of a swing gate or similar pedestrian pass through design. The applicant shall consult with the Kohala Community Access Group as to its placement and design prior to its installation; d) three public parking stalls shall be provided and clearly marked with appropriate signage; e)vehicular and public access shall be limited to daylight hours, generally between 6am to 6pm and not gated during these hours. Night fishermen may call Hawaii Island Retreat or its successors or assigns to be granted after hour access; f) the County of Hawai'i shall be authorized to maintain and inspect all facets of the DAUE and as amended herein; Mr. Zendo Kern, Director April 9,2023 Page 2 g)upon conferring with appropriate stakeholders and with the approval of the County Planning Director,the public access trail may be relocated to address potential erosion and other concerns to make the trails safer; and (h) Within 30 days of the official approval of the permits, the applicant shall provide a map to the Kohala Community Access Group for its review and comment. The map shall indicate the location of the vehicle access,pedestrian access, appropriate signage,and parking area. It shall also indicate the current tax map key number and landowner(s) over which the accesses and parking area traverse. Within 30 days of receipt of its comment,the applicant shall finalize and submit the proposed map to the County Planning Department for its review and approval." We look forward to your acceptance of this proposed amendment to the public access condition. If not or should there be questions on this matter,please feel free to contact me. Thank you very much. incerely �� W SIDNEY M. FUKE Planning Consultant Copy—Ms. Jean Sunderland via email Mr. Charles Anderson via email Ms. Toni Withington and Mr. Ted Matsuda,KCAG via email i I R-1061 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED FEB 27,2009 10:00 AM Doc No(s)2009-029853 ISI NICKI ANN THOMPSON REGISTRAR 31 212 Z9 LAND COURT NJ Kz%jUL1-1A 01 a I F-1vi Return By Mail ❑ Pick-Up ❑ To: STEVEN S.C. LIM CARLSMITH BALI..,LLP 121 Walanuenue Avenue Hilo,HI %720 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)54-009:005 and 014 4834-0692-50591118/09 DECLARATION OF PUBLIC ACCESS EASEMENTS This Declaration of Public Access Easements("Declaration")is made this -1,1'�-4 day of ►'� ,2008, by ROBERT R. WATEI NS and JEAN AL 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(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 913, situate at Hanaula, District of North Kohala,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(coilectively 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 Y 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 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 shallbe binding upon all persons having or who acquire any right,title or interest in and to any Lot, -3- 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 (Exhibit 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 S); 6. Portion of Easement H for pedestrian public access purposes, containing an area of 0.269 acre, affecting Lot 9-13 (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 -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 amendments to 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. SeverabilLq and the Rule Against Pelpetuities.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 -6- 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.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. Assiw=ent 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. I. 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 -7- IN WITNESS WHEREOF,the Declarant has hereunto caused this Declaration to be executed as of the date hereinabove set forth. BERT R. WA Nm. UNDE D i CHARLES A. ANDERSON LISA L. ANDERSON -8- 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 4ft4- �- emk--j CHAKLES A. ANDERSON i J - z�-- / LISA L. AgDEkSOY4 -8- STATE OF HAWAII } ss. COUNTY OF HAWAII } The attached document: Declaration of Public Access Easements, dated--_ AZ cz__`t , L.) a which consists of T.>; ( 4-1 )pages(including this page), was '? -V- n . '01 executed by ROBERT R. WATKINS on this /G day of 0.rg_ , 2009,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. ,. yt1t YIIJIf fJ/I ,.�• pU C. IG, ��•• _ PUBLIC [Notary Signa ] * c on 14 j4'89a + OF Printed j�► MaryLou C. l ;ja4i / s+IJr1111111 ' " Nara : �7 My commission expires: r ( a S ( 40 c o f NOTAR7 CERTIFICATIONP Doc.Dstc.4ja' ) :g -!JD 6 7 #Pages: Name:,WA c�r�uit D DewApfon:C. 1/fJfJ"f y V DateBUG • �1a. # •• ,��( s OF ,.•� J,offiJ lfi-ttt \ STATE OF HAWAII ) } SS. COUNTY OF HAWAII ) The attached document: Declaration of Public Access Easements, dated e L X/ e,e--� V �Gt?�.f7Y'y - n inti which consists of ( 7-1 )pages(including this page), was executed by JEAN M. S ERLAND on this 14- day of , 244 in the Third f 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 doily authorized to execute such instrument in such capacity. t77„777...y,I7+. C. ••`• 4 •••� lr�r�t; r� .�s E• T y D ._ Z C ' �r Gammissian No. � [Notary Sign e] •. 94-489 .'= '• OF Rte...,,,...— .w,r«.y ,i<<I1i.1117177+ Printed Mary 171 C•Incl° Name: x� 1 My commission expires: I � NOTARY CERTIFICAMN Doc,Date:!L�- '#'Pages: Name: "k t2g L ' N(d Qr:cWt DSC.l "Olption: ,. rA-r�r r�r o1 tom-' f(�+ '•• A, �. ' TA : Q ” C ,rte. +� _ UBLM * = nNQ• _ OF . gq..489 STATE OF HAWAII } ss. COUNTY OF HAWAII ) The attached document: Declaration of Public Access Easements, dated DEC 2 9 2008 which consists of]hneA -;g J&P- { pages(including this page), was executed by CHARLES A.ANDERSON on this :2�day of 2008 in the Third f 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. , v��u1►Iu lrlrur�i, 40Z 9 r F Nu75ysr [Notary Signature] = 90_64 Q Cn �'.. Mpt4 QUE M. EDWARDS TARY PUBLIC,STATE OF KA AN �'�'' .•„ `' �` Printed COOMMISSION EMRES: 1114124 0 ���Ifl111111IIllllll� Name: My commission expires: STATE OF HAWAII } } ss. COUNTY OF HAWAII } The attached document: Declaration of Public Access Easements, dated DEC 2 9 2008 which consists of4x-9-1y A U4�a :7 pages(including this page), was executed by LISA L. ANDERSON on this day of L)2(2008 in the Third Judicial 1 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. i i, lot QAtiS�� sca4) otary Signature] 044-'- .rr 7- 9 040 MONIQUE M. EDWARDS NOTARY PUBLIC, STATE OF KAWA11 'S�j'. , �� • Printed _COMMISSION EXPIRES: 11/4/2010 �0� �P�P Name: ������ur1III��►+►�� My commission expires: J � i sd 11.1$1 A i 6 _ 'tie'' QAp"r `R ■ � F!3 3i 1�� A `� `! 1 � r 2� i5 • y r I M j N Eon11 S �] r Yom, Y Y y �I 4 P w n ` 112 -C a fig aU1 $w7771111 p W rA f ♦ 3 TP ILI o L J eaxmmw 1 a La UD ZZ b to r•r *�n m az qp c n o r a de CQ 02 un , mac , } gpn 6N fis ��; iti iQ k+aL; "+., •" �i,y�Qr ,y Z¢! o�,�ae�l,, f �' Jnn 1 1 . 11 [ [ 1 tz0 �• [ 1 0 1 C� to ' ~d °° �� M V f o 09 cro.ry UrTMl a tv 0. Q x � � '= � � co O 'er �� cc N r t=p tz t4 tz "'_ $ 1 r' �� `•" gy m �: � �;, � • � o Ott � � � t� � � �r ��,�, � o CD � � m � � CEJ r--� � I • � ``�� CAD 'A �-► ' / oma ' `~ «, � Ng� a [ }[ �W c � µ p r r r , r r r x rrl M V / a' / 1 co 0) y o 03 cn d Itgn 0 J,.TWGW210218 Charlie And9n;cMPORZSMT-J-1.dwg PORTION OF EASEMENT J-1 For Access and Utility Purposes (20 ft.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 O 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' 71.98 feet along Easement J(Lot 8 (Portion of Grant 2732 to Kamaka)); 2. 2620 00' 20.00 feet along the remainder of Easement J-1; 3. 3520 00' 32.48 feet along Easement J-2; 4. 180 51' 32" 44.27 feet to the point of beginning and containing an area of 0.024 Acre. QQ UCENSED G t PROFESSIQNAI LAND RO NEY NA KAWAMURA s SURVEYOR Licensed.Professional Land Surveyor No Wl Certificate No. 2671 Expiration Date of License: 4/30/10 July 8,2008 HILO ENGINEERING,INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: Yd Div. 5-4-09:Portion 14 1 of 1 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 O NALE" being 16,592.00 feet north and 14,993.23 feet east and ;running by azimuths measured clockwise from true south: L. 1720 00' 32.48 feet; 2. 210° 00' 100.04 feet; Thence along a curve to the right with a radius of 200.00 feet, the chord azimuth and distance being: 3. 2200 00' 69.46 feet; Thence along a curve to the left with a radius of 125.00 feet,the chord azimuth and distance being: 4. 1950 00' 143.40 feet; 5. 1600 00' 148.20 feet; 6. 222° 30' 81.28 feet; 7. 3120 30' 80.00 feet;' 8. 2220 30' 88.94 feet; 9. 1320 30' 22.00 feet; 10. 2220 30' 20.00 feet; 11. 312° 30' 42.00 feet; 12. 42° 30' 128.94 feet; 13. 1320 30' 80.00 feet; 14. 420 30' 49.14 feet; 15. 3400 00' 136.06 feet; 1 of 2 - Thence along a curve to the right with a radius of 145.00 feet,the chord azimuth and distance being: 16. 150 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. 300 00' 125.60 feet to the point of beginning and containing an area of 0.355 Acre. LICENSED PROFESSIONAL LAND SURVEYOR * RO NEY M. KAWAMURA No. 2671 Licensed Professional Land Surveyor .q/I A3 .$* Certificate No. 2671 Expiration Date of License: 4/30/10 May 7,2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo, Hawaii 96720 Tax Map Key: 3rd Div. 5-4-09:Portion 14 2 of 2 CENTERLINE EASEMENT PA-I 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 O 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 9B (Portion of Grant 2732 to Kamaka) and containing an area of 0.128 Acre. 14- K4k LICENSED } (A r� PROFESSIONAL y i LAND RO NEY . KAWAMURA * SURVEYOR * Licensed P fessional Land Surveyor No. 2671 �. Certificate No. 2671 .q1l Aj Via' Expiration Date of License: 4/30/10 May 7, 2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09:Portion 14 1 of I _. 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 O 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. LICENSED PROFESSIONAL LAND VVV * SURVEYOR + RODNEY . KAWAMURA No. 2671 Licensed Professional Land Surveyor �,qll Certificate No. 2671 Expiration Date of License: 4130110 May 7,2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3'd Div. 5-4-09:Portion 14 I of 1 _ --- 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 O NALE"being 17,112.96 feet north and 15,270.67 feet east and running by azimuths measured clockwise from true south: 1. 3120 30' 180.00 feet; 2. 2690 25' 110.00 feet; 3. 234" 21' 70.00 feet; 4. 31011 04' 12.03 feet; 5. 350 44' 91.00 feet; 6. 200 07' 52.00 feet; 7. 3711 14' 96.00 feet; 8. 210 51' 55.00 feet; 9. 3570 26' 50.00 feet; 10. 3500 00' 60.00 feet; 11. 3590 40' 20.60 feet; 12. 2350 00' 31.97 feet; Thence along a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 13. 2080 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. 1990 00' 87.71 feet; 1 of 3 Thence along a curve to the right with a radius of 20.00 feet, the chord azimuth and distance being: 15. 2530 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. 2760 30' 40.06 feet; 17. 2620 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. 2350 00' 90.80 feet; Thence along a curve to the right with a radius of 160.00 feet,the chord azimuth and distance being: I9. 2290 13' 30" 115.85 feet; 20. 2500 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. 2580 01' 105.34 feet; Thence along a curve to the left with a radius of 1.05.00 feet, the chord azimuth and distance being: 22. 2120 00' 168.99 feet; 23. 1580 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. 1340 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. 1950 16' 18.22 feet to the ocean and containing an area of 0.176 Acre. LICENSEo PROFESSIon�a� y LAND * suRVEYOR * R4 NEY . KAWAMURA No. 2671 Licensed Pr fessional Land Surveyor .QII Certificate No.2671 Expiration Date of License: 4130110 May 7, 2008 HILA ENGINEERING, INC. 484 Kalanikoa Street Hilo, Hawaii 96720 Tax Map Key: 3rd Div. 5-4-09:Portion 14 3 of 3 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 treasured clockwise from true south: 1. 325' 00' 57.64 feet to Lincoln Burial Plot Easement and containing an area of 0.005 Acre. M K4#, 0'0 LICENSED "IR" V, �� a PROFESSIO 41. LAND RD EY . KAWAMURA # stJRVEYOR + Licensed Pr fessional Land Surveyor No. 2671 Certificate No. 2671 �.q11 u Expiration Date of License: 4130110 May 7, 2008 HILA ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09:Portion 14 1 of 1 ` 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 O NALE" being 16,645.71 feet north and 15,442.65 feet east and running by azimuths measured clockwise from true south: 1. 170 00' 97.00 feet; 2. 3500 00' 44.00 feet; 3. 323° 00' 35.18 feet; 4. 345° 00' 52.74 feet to Easement H and containing an area of 0.021 Acre. �4 LICENSED (: PRO fE55IONAL LAND V1 * suKvEYoR * RO NEY . KAWAMURA No. 2671 • Licensed Professional Land Surveyor .qrr Certificate No. 2671 Expiration Date of License: 4/30/10 May 7,2008 HILO ENGINEERING, INC. 484 Kalanikoa Street Hilo, Hawaii 96720 Tax Map Key: 3`d Div. 5-4-09:Portion 14 I of l - / 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 Chant 2754 to Kalama 1), the coordinates of said point of beginning referred to Governrhent Survey Triangulation Station "PUU G NALE"being 16,337.86 feet north and 15,564.71 Feet east and nmaing by azimuths measured clockwise from true south: 1. 390 23' 35.00 feet along Lot 16 (Portion of Grant 2754 to Kalama 11, 4 2. 1290 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. 390 23' 20.09 feet along Lot 16 (Pa tion of Gram 2754 to Kalama 1); Thence along a curve to the right with a radius of 160.00 feet,the chord azimuth acid distance being: ' 5. 1840 46' 03" 245.97 feet; , 6. 3240 53' 145.00 feet to the point of beginning and containing an area of 0.269 Acre. O UMNSED lY PROFESSIONAL LAND SURVEYOR RODNEYM KAWAMURA No. 2671 Licensed Professional Land Surveyor �.Q f U .S. Certificate No. 2671 Expiration Bate of License: 4130/10 May 7,2008 HILL)ENGINEERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax.Map Key: 34 Div. 5-4-09:Portion 14 1 of I • 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 Plat on the westerly boundary of Lot 16(Portion of Grant 2754 to Kalama 1),the coordinates of said point of beginning refcffed to Government Survey Triangulation Station "PUU D HALE"being 16,337.86 feet north and 15,564.71 feet east and running by azimuths measured clockwise from true south: 1. 390 23' 35.00 feet along Lot 16(Portion of Grant 2754 to K.alama 1); 2. 1290 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. 3140 51' 46" 266.09 feet; 4. 2430 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. 2570 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° lb' 07" 87.77 feet; 7. 2060 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. 2330 00' 90.80 feet; 9. 260° 00' 104.49 feet; 10. 290 00' 25.74 feet along Lot 15 (Portion of Grant 2754 to Kalama 1); 11. 801, 00' 88.30 feet; 1 of2 M /. 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. 2611 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. 770 46' 07" 117.26 feet; 16. 630 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. 3240 53' 145.00 feet along Lincoln Burial Plot to the point of beginning and containing an area of 0.671 Acre. �q UCENSED , A PROFESSIONAL LADED V� SURVEYOR + RODNEY M. A- WAhhJRA No 2671 �. Licensed Professional Land Surveyor Certificate No. 2671 Expiration Date of License: 4/30104 Revised: November 5,2002 October 24,2002 HILO ENGMERING, INC. 484 Kalanikoa Street Hilo,Hawaii 96720 Tax Map Key: P Div.5-4-09:Portion 01 2 of 2 Y Y .t LEGAL DESCRIPTION OF EASEMENT A-i,A 4.00(FOUR)FOOT VWDE 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 existing Easement "VL-5"and along West side of Easement "C", being a portion of Grant 2754 to Kaiama 1, situate at Honopueo, County and State of Hawaii, containing an area of 5,315 square feet, more or less, and thus bounded and described as per survey as follows: Beginning at a point for the Northeast comer of this herein described easement, being In the East line of said Lot 16, being the West line of Lot 22 of thW subdivision, said point being 95.11 feet, W11' from the common North corner of said Lot 16 and Lot 22, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU O NALE" being 17,439.76 feet North and 16,946.32 feet East and running by azimuths measured clockwise from True South: Thence along the remainder of Grant 2754 with the following twenty-two(22)courses: 1. $"11'00" 4.11 feet along Lot 22 to a point at Easement WL-5% Thence along the Easement"VL-5", with the foilowing seven (7)courses: 2. 85000'00" 108.34 feet to a point; 3. 980,00'00" 158A1 feet to a point; Thence along a curve to the left with a radios of 45.00 feet, the chord azimuth and distance being: 4. 56030'00" 59.$4 feet to a point; S. 15000100" 79.62 feet to a Point; 6. 35"00'00" 155.00 feet to a point; 7. 27"00'00" 202.00 feet to a point; 8. 19°00'00" 165.00 feet to a point; Thence along the Easement"C",with the following three (3)courses: Thence along a curve to the teff with a radius of 385.00 feet,the chord azimuth and distance being: 9. 34030'04" 73.00 feet 10 a point; 10. 29000'00" 78.200 feet to a point; 11. 23°00'00" 238.17 feet to a point; 1 tit / Y Continued EasernentArl, 12. 80000100" 4.77 feet along Easement allm,to a point; Thence upon and across said Lot 16,with the following ten (10)courses: 13. 203000'00" 241.98 Beet to a point; 14. 209000'00" 78.41 feet to a point; Thence along a curve to the right with a radius of 389.00 feet,the chord azimuth and distance being: 15. 214026,47" 73.83 feet to a point; 16. 199°00'00" 164.54 feet to a point; 17. 207'00'00" 202.56 Beet to a point; 18. 215400100" 154.57 feet to a point; 19. 195000100" 78.91 feet to a point; Thence along a curve to the right with a radius of 49.00 feet, the chord azimuth and distance being: 20. 236030'01" 64.94 feet to a point; 21. 27800000" 157.95 feet to a point; 22. 265°00'00" 108.82 feet the point of beginning and containing an area of 5315 square feet,more or less. Description prepared by: PATTISON LAND SURVEYING INC. O Pg G. Fq�T/kp LICEN$ECl 'L PROFESSIONAL October 74th, 200$ LAND * SURVEYOR } Thomas G. Pattison No. t0743 Licensed Professional Land Surveyor y Certificate No. 407.43,expires 4/30!70 RWq!I U'V' 2 WEST HAWAII MEDIATION CENTER Providing high quality conflict resolution services throughour Wesr Navmi7 AMENDMENT AND RESTATEMENT OF AGREEMENT First Party: Charles A.Anderson,Trustee Represented Edmund Haitsuka,Attorney of the Charles A.Anderson By: (not in attendance) Trust, EWM Enterprises L.P. and Kohala Makani Wai, LLC ("Petitioners") Second Party: Jeanne Sunderland of Ahu Represented Michael Matsukawa,Attorney Pohaku Ho'omaluhia LLC, dba By: (not in attendance) Hawaii Island Retreat, LLC ("Applicant") Additional Participant: Planning Department Director Zendo Kern ("Planning Director") Additional Participant: Planning Consultant Sidney Fuk:e Date: June 22, 2023 WHMC Case#: CoHI 23-02 Permit Applications PL-SMA-2022-000018 and PL-SPP-2022-00001.8 THIS AMENDMENT AND RESTATEMENT OF AGREEMENT is dated February26, 2024 2823, is by and between CHARLES A_ ANDERSON, TRUSTEE OF THE CHARLES A. ANDERSON TRUST, EWM ENTERPRISES,LP and KOHALA MAKANI WAI, LLC(collectively"Petitioners"),AHU POHAKU HO'OMALUHIA LLC dba HAWAII ISLAND RETREAT ("Applicant"), and the PLANNING DIRECTOR OF THE HAWAII COUNTY PLANNING DEPARTMENT ("Planning Director") (hereinafter referred to collectively as the "parties"), and amends, restates and incorporates the terms and conditions contained in that certain Agreement dated June 22, 2023 (the "Agreement"), as supplemented and amended by that certain Addendum to the Agreement executed by the parties on July 17, 2023 and July 18, 2023, as follows: 1. Applicant and Petitioners finalized the wording of the Agreement which was signed by all parties by July 15, 2023, 2. Subject to the approval of the above-referenced permit applications by the Leeward Planning Commission,Applicant shall perform or assume the following obligations,which obligations shall be incorporated as conditions in the approvals of the permit applications, and which obligations shall commence upon the issuance of the building permit(s) for the improvements to the existing retreat contemplated by the permit applications: a. Applicant shall make the following improvements to the following three roads: Lokahi Road (1) Improve the existing twenty(20)foot wide gravel road with a sixteen(16) foot wide asphalt pavement and a two (2) foot compacted gravel shoulder on each side for a total improved width of twenty(20)feet. (2) Install speed humps within the paved section of the road at a minimum of one every 300 feet or at a distance agreed upon by the property owners of TMK Nos. (3) 5-4-009:005, 5-4-009:010, 5-4-009:011, 5-4- 009:012 and 5-4-009:013. (3) Install appropriate and typical traffic-related signage within the road right-of-way such as road markings, speed limit, upcoming speed humps, no passing zone,etc. Maluhia Road (1) Install additional two (2)foot wide compacted gravel shoulders to widen existing seventeen (17) foot wide paved roadway to the extent that this installation will not potentially damage or require relocation of existing water lines. (2) Install appropriate and typical traffic-related signage within the road right-of-way such as road markings, speed limit, upcoming speed humps no passing zones,etc. (3) Install signage which states "Dangerous Drop Off Proceed with Caution" and reflective markers on steel posts which are approximately six(6)feet above ground and installed approximately every fifteen (15) feet along approximately 300 feet of Maluhia Road which borders or is adjacent to the Hanaula Gulch. Old Pratt Road (between Maluhia Road and Lokahi Road) (1) Install a sixteen (16) foot wide paved road plus two (2) foot wide compacted gravel shoulders on each side for a total improved width of twenty(20)feet. (2) Install appropriate and typical traffic-related signage within the road right-of-way such as road markings, speed limit, upcoming speed humps, no passing zone, etc. b. Applicant will assume responsibility for conducting a minimum quarterly maintenance of the three roads,including mowing and tree trimming,as needed, and performing repairs to the pavement and gravel shoulders of the roads.The roads shall be kept free from pine needles and other debris by sweeping/blowing and trimming of ironwood and other trees along roads. C. Applicant will add the property owners whose property the three roads (Maluhia Road, Lokahi Road and Old Pratt Road between Maluhia Road and Lokahi Road) traverse and the property owners of TMK Nos.(3)5-4-009:001, 5-4009:005, 5-4- 009:10, 5-4-009:011, 5-4-009:012, 5-4-009:013, 5-4-009:015, 5-4-009:017, S-4- 009:018, 5-4-009:019,5-4-009:024, 5-4-009:025,5-4-009:026, 5-4-009:028, 5-4- 009:029 -4009:029 (the "Additional Insureds") who have easement rights on Maluhia Road as additional insureds on Applicant's liability insurance. Such insurance shall be comprehensive general liability insurance(including personal injury and property 2 damages from automobile accidents) with an A rated company in minimum amounts of at least $1,000,000 per person and $3,000,000 per occurrence. The Additional Insureds shall be entitled to notice of cancellation or non-renewal under the policy or policies. Applicant shall provide each of the Additional Insureds copies of the initial certificates of insurance and all renewal certificates of insurance within ten (10) days of issuance. d. All new structures directly related to the expansion of the retreat and which adjoin TMK No. 5-4-009:005 will have a minimum 100 foot setback from the property line. e. The new guest units requested in the permit applications will be limited to twenty (20) units. 3. Applicant shall take down the wind turbine installed on Applicant's property by March 15, 2024. 4. Petitioners withdrew their petitions to intervene in the contested case within five(5)days of the signing of the Agreement by sending an email to Maija Jackson, ( ;W) which stated: "I hereby withdraw as a petitioner on case PL-SMA-2022-000018 and PL-SPP-2022-000018." 5. In the event that the permit applications are approved by the Leeward Planning Commission, the Planning Director shall take all action necessary to incorporate the obligations set forth in Paragraph 2 above into the approvals of the permit applications. 6. Should any problems arise in regards to this agreement,all parties agree to return to West Hawai'i Mediation Center for a further mediation. 7. All parties agree that this document may be executed electronically. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK,THE SIGNATURE PAGE FOLLOWS. 3 I CHARLES A. ND RSON,TRUSTEE OF THE CHARLES A ANDERSON?RST 4,0� Date: r--��nJ �/ �`— EWM ENTERPRISES, LP, a Nevada limited partnership Bye tWM Management, LLC,a Nevada limited liability company Its: Partner By: Ernest W. Moody Its: Manager Date: KOHALA MAKANI WAI, LLC, a Hawaii limited liability company By: EWM Investments, LLC, a Nevada limited liability company Its: Manayr/ n By: Ernest W. Moody Its: Managing Member 7 Date: r "PETITIONERS" AHU POHAKU HO'OMA HIA LLC d TREAT JeanY(Sunderland Its: Manager- Date: anage¢Date: "APPLICANT" HAWAII COUNTY PLANNING DEPARTMENT Zeilk Kem Zendo Kern&F h 76.707413 51 HIT) By: Zendo Kern Its: Director Date: Feb 26,2024 "PLANNING DIRECTOR" 4