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2024-09-18 1250 Oceanside LLC Exhibit List (PL-BOA-2024-000104)
CARLSMITH BALL LLP PATRICK K. WONG 5878 75-5722 Kuakini Highway, Suite 208 Kailua Kona, Hawai`i 96740 Tel. No. (808) 329-6464 Facsimile No. (808) 329-9450 pwong@carlsmith.com DEREK B. SIMON 10612 1001 Bishop Street, Suite 2100 Honolulu, Hawai`i 96813 Tel. No. (808) 523-2500 Facsimile No. (808) 523-0842 dsimon@carlsmith.com IAN R. WESLEY-SMITH 10626 121 Waianuenue Avenue P.O. Box 686 Hilo, Hawai`i 96721-0686 Tel. No. (808) 969-8416 Facsimile No. (808) 935-7975 iwesley-smith@carlsmith.com Attorneys for 1250 OCEANSIDE, LLC BEFORE THE BOARD OF APPEALS PLANNING DEPARTMENT COUNTY OF HAWAII In the Matter of Appeal Case No. PL-BOA-2024-000104 of 1250 OCEANSIDE, LLC'S EXHIBIT LIST; EXHIBITS 12-19; CERTIFICATE OF 1250 OCEANSIDE, LLC SERVICE From the decision of the Planning Director, dated April 29, 2024 (Docket No. 24-0001) 4871-2641-3286.2.051730-00058 1250 OCEANSIDE, LLC'S EXHIBIT LIST Appellant 1250 Oceanside, LLC ("Oceanside"),by and through its attorneys, Carlsmith Ball LLP, hereby identifies the following exhibits that may be presented at the hearing currently scheduled for October 11, 2024, and/or during any further proceedings in this matter. Exhibits 1-11 where filed with Oceanside's General Petition for Appeal of Decision of the Planning Director, dated May 28, 2024. Exhibits 12-19 are filed with this Exhibit List. 1250 Oceanside's Description of Exhibit Exhibit No. 1 Declaratory Order; Exhibits "A"— "C" 2 Petition for Declaratory Ruling; Exhibits "1"— "12" 3 Supplement to Petition for Declaratory Ruling, submitted on February 7, 2024; Exhibits "A"— "C" 4 Hawai`i County Ordinance No. 96-7 5 Hawai`i County Ordinance No. 96-8 6 Development Agreement, dated April 20, 1998 7 Complaint for Declaratory and Injunctive Relief; Appendixes "A" — "B"; Summons 8a Order Re: Defendant 1250 Oceanside LLC's Motion to Dismiss Complaint, Filed March 31, 2023 [Dkt. 1], Filed May 11, 2023 [Dkt. 15] 8b Order Granting in Part County Defendants' Motion to Dismiss the Complaint for Declaratory and Injunctive Relief, File March 31, 2023 [Dkt. 1], Filed May 25, 2023 [Dkt. 21], and Staying Proceedings Pending Referral to County of Hawai`i Planning Department 9 Letter from County of Hawai`i Planning Department dated January 31, 2011, approving Variance No. VAR 10-027 10 Hawai`i County Council Resolution No. 317-12 11 Construction Plans (Coversheets) for Hokuli`a Phase 1, Package 1 & 2 (Sub 98- 124) 4871-2641-3286.2.051730-00058 2. 1250 Oceanside's Description of Exhibit Exhibit No. 12 Mayor Rule 1 (Development Agreements) 13 Shoreline Park Management and Public Access Plan,November 1998 14 Grant of Easement and Covenants, dated September 16, 1999 (Shoreline Park) 15 Hawai`i County Council Resolution No. 316-12 16 Hawai`i County Council Resolution No. 20-12 17 Dedication Deed (Kona Scenic Park), dated December 12, 2016 18 County. of Hawaii v. C&J Coupe Fain. Ltd. P'ship, 124 Haw. 281, 299, 242 P.3d 1136, 1154 (2010) 19 Photographs, taken June 26, 2023 Oceanside reserves the right to supplement this Exhibit List and identify additional exhibits not expressly noted herein in response to any pleadings, memorandum, arguments, exhibits, or witnesses identified or filed by any party. DATED: Honolulu, Hawai`i, September 18, 2024. ls/Derek B. Simon PATRICK K. WONG DEREK B. SIMON IAN R. WESLEY-SMITH Attorneys for 1250 OCEANSIDE, LLC 4871-2641-3286.2.051730-00058 3. EXHIBIT 12 COUNTY OF HAWAII OFFICE OF THE MAYOR RULE 1 DEVELOPMENT AGREEMENTS 1--1 Authority This rule implements the procedures for the application, preparation and administration of Development Agreements in the County of Hawaii as provided by Chapter , Hawaii County Code (Ordinance No. 93-37) . which authorizes the Office of the Mayor to negotiate, prepare and administer Development Agreements and to make such rule pursuant to Chapter 91, Hawaii Revised Statutes . 1-2 Scope and Purpose The purpose of this rule is to ensure that a person who enters into a Development Agreement with the County of Hawaii may proceed to develop the project in accordance with the provisions of Ordinance No. 93-37. Further the County of Hawaii may enter into such agreements to ensure the commitment for on-site and off--site development requirements necessary to preserve the public health, safety and welfare. ] Definitions As used in this rule, words and phrases shall have the same definition as provided for in Ordinance No. 93-37, except as follows or as otherwise recognized by context : EXHIBIT 12 ( 1) "Designated Agency" means the Planning Department of the County of Hawaii as authorized by the Mayor . ( 2) "Director" means the Director of the Planning Department of the County of Hawaii . 1-4 Applicant Qualifications A principal or its authorized agent may file an application to enter into a Development Agreement . 1-5 Application and Content Original and fifteen ( 15) copies of : ( a) An application form which shall at a minimum contain: ( i) The name and business address of the principal; ( ii ) A description of the nature of the interest in the property held by the principal, including the length of the lease, if held by leasehold; ( iii) A description of the subject property, including Tax Map Key and land area, along with maps, site plans and other documents and materials as may be appropriate, identifying the subject area . ( iv) Written approval of the fee owner, if applicant is leasee . (b) Written narrative of the proposed uses of the property, which shall at a minimum contain: ( i) Summary description of the proposed development and a statement of the objectives and reasons for the request , including the proposed project timetable, phasing, commencement and termination dates ; (ii) Written description of proposed on and off-site infrastructure, services or public benefits ; (iii ) Any other information that the Department may reasonably determine to be necessary for the proper review and evaluation of the subject application and the preparation of any Development Agreement . (c) Information concerning the location of any trails , easement or other ways on the subject property, public or private; the rights , if any of adjoining or other landowners in an to the subject property, burial sites and historic property subject to the provisions of Chapter 6E of the Hawaii Revised Statutes ; and an assessment of the impact of the proposed project on the subject real property, surrounding community and public resources ; (d) Draft Development Agreement . (e) Recitation of applicable ordinances , permits , and conditions of approval specific to the subject parcel or proposed development . 1-6 Procedure for Processing Application ( a) Applications shall be submitted to the Department for review as to completeness as to form and content . (b) Upon finding to completeness the Department shall notify the applicant in writing of the acceptance of the application. (c) Within thirty (30) working days of receipt of the application, the Director shall submit a summary description of the project, comments and recommendations and draft Development Agreement to the Office of the Mayor . (d) The Mayor or his designated negotiator shall then negotiate the terms of the Development Agreement with the applicant and shall prepare the final draft agreement to the County Council for its public hearing and action pursuant to Ordinance No . 93-37 . (e) Upon receipt of a Resolution approving a Development Agreement , the Mayor may then execute the Agreement on behalf of the County. ( f) The Department shall provide the applicant with the executed Development Agreement and shall file a copy with the Bureau of Conveyance or with the Land Court System within twenty (20) days of its execution. 1-7 Contents of Development Agreement ( a) The contents and provisions of a Development Agreement shall be as prescribed by Ordinance No . 93-37 or subsequent amendments . 1-8 Other Parties to the Development Agreement In addition to the County and principal , any federal , state, or local government agency or body may be included as a party to the Development Agreement . The Department shall be responsible for the overall administration of the Agreement . 1-9 Compliance with County General Plan and Development Plans No development agreement shall be entered into unless the County Council finds that the provisions of the proposed Development Agreement are consistent with the General Plan and any applicable development plans , effective as of the effective date of the Development Agreement . 1-10 Periodic Review The Department shall conduct an annual review of the principal ' s performance pursuant to the Development Agreement and report the results of the review to the Principal, Mayor and County Council , and other parties to the Development Agreement . ( a) Finding of Compliance If the Department during the annual review finds compliance by the principal with the terms of the Development Agreement , it shall issue a certificate of compliance, which shall be in recordable form and may be recorded by the principal in the Bureau of Conveyances . (b) Release of Restrictions Terms and restrictions of the Development Agreement which are satisfied during the review period, may be released . Releases shall be filed with the Bureau of Conveyances or the Land Court System within twenty (20) days of execution . (c) Finding of Material Breach If the Department finds the principal has committed a material breach of the terms or conditions of the Development Agreement , it shall serve notice in writing to the principal and shall initiate procedures according to provisions as specified by Ordinance No. 93-37 or its subsequent amendments . 1--11 Amendments A Development Agreement may be amended, in whole or in part, by mutual consent of the parties to the Agreement , or their successors in interest ; provided that : ( a) If the Department determines that the proposed amendment would substantially alter the original Development Agreement , or is being filed upon a finding of material breach, an application for an amendment shall be filed and procedures as contained in Section 1-6 of this rule shall be followed . (b) If the Department determines that the proposed amendment (s) are of a non-substantive or technical nature, the Department shall so notify the principal, the County Council and other parties to the Agreement and shall forward the proposed amendments to the Mayor for his approval . 1-1 ? Satisfaction,_Cancellation, Termination ( a) A Development Agreement may be cancelled or terminated in accordance with provisions of Section 9 of Ordinance No . 93-37 or in accordance with provisions of the Development Agreement . (b) Upon satisfaction of the requirements and terms of the Development Agreement and upon request of the Office of the Mayor , and the County Council by resolution shall declare the satisfaction of the Development Agreement . 1-13 Severability In the event any portion of this rule is declared invalid, such invalidity shall not affect other parts of this rule. PLANNING DEPARTMENT COUNTY OF HAWAII • PLAPIN)ING DI TOR NOTICF OF PUBLIC HEARINGS : HAWAII TRIBUNE HERALD - FEBRUARY 6, 1995 WEST HAWAII TODAY - FEBRUARY 6, 1995 APPROVED AS TO FORM AND LEGALITY: 44 ,/( _.) _s-- r - �t f , A.� C RPORATION COUNSEL / DATE APPROVED : A7C • , a S PHEN K . 'Y SHIRO, MAYOR DATE I hereby certify that the foregoing rule was received and filed in the Office of the County Clerk this 18th day of May , 1995. COUNTY CLERK EXHIBIT 13 Shoreline sur IW an „:ement and Public Access Plan ... .... ...... The Villages at HHk kanno Prepared for: Oceanside 1250 Prepared by: PBR HAWAII NOVEMBER 1998 EXHIBIT 13 TABLE #F CONTENTS ragc LO Introduction 1 1.1 Background 1 1.2 Purpose 2 1.3 Overview of the Park Plan 5 2.0 Existing Conditions 8 2.1 Property Ownership and Access 8 2.2 Geology/Soils 8 2.3 Biological Resources 9 2.4 Archaeological and Cultural Resources 9, 2.5 Hazards 10 3.0 Park Improvements 12 3.1 Access Improvements 12 3.2 Park Improvements 13 3.3 Potential Impacts 16 3.4 Safety Considerations 16 ) 4.0 Implementation Measures 17 4.1 Phasing Plan 17 4.2 Phase Schedule 21 4.3 Operation and Management 21 4.4 Management Strategies 22 4.4.1 Management of Marine Resources 22 ,1 i 4.4.2 Protection of Historical and Cultural Resources 23 1 I 4.4.3 Access Restrictions 24 4.5 Uses and Procedures 25 1 1 4.5.1 Hours of Use 25 4.5.2 Restricted or Prohibited Activities 25 4.6 Monitoring Procedures 25 4.7 Reporting Procedures 26 -ii- - , SM Justification 27 5.1 Consistency with Conditions of Approval 27 5.1.1 Ordinance 96-7 and Ordinance 96-8 27 5.2 Consistency with DLNR Regulations 28 5.3 Consistency with Chapter 205A 29 -iii- LIST IF FIGURES Figure Follows Number Figure Description Page 1 Location Map 5 2 Project Site Map 5 3 Shoreline Park Concept 5 4 Public Access Plan 12 5 Shoreline Access Area 12 6 Public Access Signage 17 7 Phasing Plan 17 LIST OF APPENDICES Appendix A: Park Rules and Regulations • Appendix 13: Draft Outline of Conditions, Covenants and Restrictions Appendix C: Water Quality and Marine Life Monitoring and Mitigation Plan, The Villages at Holcukano, Richard E. Brock, Ph.D., 1992. -iv- At the onset, we would like to acknowledge those members of the Community Advisory Group and representatives of State and County agencies, whose input and insights were instrumental to the formulation of this Plan. Those individuals who have been a part of this process include: Community Advisory Group Slip and Rita Cowell Maile David, Ka Lahui Zachary and Shirley Kanuha, Ka Lahui Gordon Leslie Larry Mitchell, TORCH Sara Peck, Sea Grant Jerry Rothstein, PASH John Spencer Michael Tomich, Na Ala Hele Charlie Young, Ka Lahui State Department of Land and Natural Resources Ross Cordy, Ph. D., Director, State Historic Preservation Division Curt Cottrell, Na Ala Hele Program Ralston H. Nagata,Administrator, State Parks Division Robert Nishimoto, Aquatic Resources Division Sherrie Samuels, Planner, State Parks Division Bill Walsh, Ph. D., Biologist, Aquatic Resources Division Martha Yent, Interpretive Program Manager, State Parks Division Dean Y. Uchida, Administrator, Land Division County of Hawai`i Virginia Goldstein, Director, Planning Department(Hilo) Alice Kawaha, Planning Program Manager, Planning Department (Hilo) Rodney Nakano, Planning Program Manager, Planning Department (Hilo) Royden Yamasato, Planning Program Manager, Planning Department (Kona) Consultants Doug Borthwick, Cultural Surveys Hawai'i (Archaeologist) Richard Brock, Ph.D. (Marine Biologist) Hallett Harriman, Cultural Surveys Hawai'i (Archaeologist) James Leonard, AICP, PBR Hawai (Planner) Oceanside ]250 R.T. "Dick" Frye, Project Manager Robert Stuit, Director of Planning Linda L. Sutherland,Administrative Assistant -v- Shoreline Park Management and PublicArrrss Plan a 100 INTRODUCTION 101 Background The Villages at Hokukano is a Master Planned Development of approximately 730 private homesites, a private golf course and an 80-unit members' lodge on the 1,550-acre Hokukano property in North and South Kona, Hawaii. The approximately 140-acre coastal portion of the development has been planned as a public oceanfront park with the intent of encouraging public use and enjoyment of the recreational and cultural attributes of this rural stretch of the shoreline. The shoreline park is envisioned as a passive park, encouraging uses such as hiking, picnicking, swimming, recreational fishing (non-commercial), snorkeling, and to some extent, camping, within appropriate use areas. Although proposed as a public park, the cost of the park improvements, maintenance, and management would be assumed by the Villages at Hokukano property owners. Since its initial conception, the establishment of a coastal park and the preparation of a management plan for the park has also been included as "conditions of approval" for the various permits and approvals for the Villages at Hokukano project. These include: Ordinance 96-7, Conditions (K) and (L) Ordinance 96-8, Conditions (H) and (I) SMA Use Permit No. 345, Conditions 8 and 10 For reference, a summary of the regulatory requirements pertaining to the establishment of a coastal park and the Shoreline Park Management and Public Access Plan is included within Section 5. 1 of this report. Additionally, in that the park area is situated within both the State Conservation District and County Special Management Area, a Conservation District Use Pei mut and a SMA Use Pei mut related to the park use will be required from the State and County, respectively. This plan is also intended to supplement the submittal requirements for those applications. The Villages at Hokukano Page 1 3 Shoreline Park Management and Public Access Plan a lag Purpose This Shoreline Park Management and Public Access Plan (hereafter referred to as the "Plan"), for the planned 140-acre shoreline park at the Villages at Hokukano was prepared by Oceanside 1250, in consultation with representatives of the Department of Land and Natural Resources (DLNR), the County of Hawaii Planning Department, and an advisory group consisting of concerned individuals and representatives of various community groups and resource organizations. In addition to meeting the regulatory requirements of various State and County approvals related to the Villages at Hokukano development, the Plan serves as a guide for the implementation of park improvements and the management of the shoreline park area (hereafter referred to as the "Park"). Early in the planning process, Oceanside 1250 and members of its advisory group met on several' occasions to identify areas of concern and prepare a set of goals and objectives that would serve as a basis for formulating the Plan. Theseoals and objectives g � ctives are as follows: foals To preserve and enhance the natural, historical and cultural resources of the park area. To preserve and protect the park's scenic resources, including important view points, landscapes and topographic features. To increase public awareness of the park area's natural, cultural and historic resources. • To provide, improve and protect public shoreline access opportunities in the park area. To provide for the proper and safe use of the Park area. Objectives Comply with applicable laws, rules and regulations. Designate and maintain appropriate public access routes and parking. Establish dedicated easements providing for continued public access to and over the coastline park area. t The Villages at Hokukano Paget Shoreline Park Management and Public Access Plan • Implement management controls to help protect the safety and enjoyment of those using the park area. Implement management procedures to help prevent inappropriate access into culturally or environmentally sensitive areas and near shore resources. Implement monitoring and management controls to help protect potentially sensitive cultural and historic resources. Implement monitoring and management procedures to help protect shoreline area from over use. Upgrade and enhance previously unattended or neglected areas. Implement cooperative programs aimed at public education for the protection of the Park's natural and cultural resources. o Implement improvements that enhance the overall appearance of the area that is in keeping with the natural character of the area. This Plan includes a description of the planned improvements at the Park, including the phasing and timing of these improvements. The Plan also provides structure for the management of the Park area, including monitoring and reporting procedures to the appropriate State and County agencies. Additionally, a set of Park Rules and Provisions is also included as part of this report (Appendix A). _ These regulations, which are based in part on the rules and regulations for State parks, have been formulated to address the special needs of this privately operated park and to reinforce the Plan's overall goals and objectives. As noted above, permit approvals for the proposed Park use will be required from both the State and County prior to implementation of the planned Park improvements. As such, some modification to the Plan may be necessary as part of the regulatory approval process. The Villages at Hokukano Page 3 - I • Shoreline Park Management and Public Access Plan L3 Overview of the Plan The 140-acre shoreline Park area is a portion of the Villages at Hokukano (hereafter referred to as the"Project"), an approximately 1,550-acre master planned community in North and South Kona (Figures 1 and 2). The Park property is owned in fee by Oceanside 1250. However, included within the Park area (subject to State approval) is a portion of State-owned land known as the "Hokukano Village" parcel. There are also several kuleana parcels located just south of Pu'u Ohau, in the area ofNawawa Bay, which are adjacent to but excluded from the Park area as they are not owned by Oceanside 1250. Existing Conditions The Park area, shown in Figure 3, is topographically divided into two distinctive areas: the area south of Pu'u Ohau, where the shoreline consists of cliffs that range from 25 to 80 feet in height and are undercut in several areas by erosion; and the area extending north of Pu'u Ohau, which has a more gentle terrain, allowing greater access to the shoreline and open areas for passive recreational uses. Throughout the Park area are concentrations of important archaeological sites, including house sites, heiau, agricultural features, salt bowls, game boards, and petroglyphs. While trail access would be provided to the southern portion of the Park, the major focus of the management program is aimed at the northern area between Pu'u Ohau and the northern Park boundary, where a greater concentration of activity is expected. The terrain in this area provides significant opportunities to access important archaeological sites, the shoreline, and small, open, sandy areas, and areas for picnicking and limited camping. Additionally, along the shoreline are several coastal features of interest, including blow-holes, geologic features, tide pools and coastal views. Located near the northern portion of the Park,just north of Keikiwaha Point, are the remains of a prehistoric fishing village known as Hokukano Village(hereafter referred to as the"Village"). A large portion of the Village site, comprising of approximately 11.7-acres, is owned by the State of Hawai`i, with portions of the Village extending into the adjacent Oceanside 1250roP e P rty• Oceanside 1250 is working with the State to include the Village as part of the Park management program, through a"management lease" or similar agreement with the State, although ownership of the parcel would likely remain with the State. The Villages at Hokukano ' Page 4 Shoreline Park-Management and Public Access Plan Located in the area south of Pu`u Ohau and overlooking Nawawa Bay, are 14 privately-owned "kuleana" parcels, none of which are owned by Oceanside 1250. Access to these parcels is currently provided by way of the existing ranch roads leading from the top of the Oceanside 1250 property, at the current terminus of Haleki`i Street, to the area of the Park. Public Access A public road would provide direct access from the mauka property boundary at IHaleki`i Street or from the planned Mamalahoa Bypass Road to a parking area at the Park. The parking area is planned in the central portion near Keikiwaha Point where there is•the greatest potential for recreational use and shoreline access. There are also portions of foot trails and ranch jeep roads on adjacent properties near the Park area that can provide lateral shoreline access from these properties to the north and south of the Park. Mauka of the Park area is the State-owned Ala Loa Trail, also referred to as the Old Government Road, or Ala Aupuni Trail. As shown in Figure 3, the Plan provides for potential links to this trail, as well as another mauka-makai trail linking the shoreline area to a planned historic park at the 275 foot elevation and to the abandoned railroad bed in the upper elevations of the property. Shorter connector trails would provide access between the shoreline area and historic sites within the Park. In all, several miles of trails and trail loops of varying difficulty are planned for public use. Along the shoreline, some sandy tide pools are found which are suitable for wading during certain times of the day, however, because of the rocky shoreline conditions, opportunities for safe access to the ocean are limited to just a few locations. Park liner v-m -nf and ana ,, .m .n• , Park visitors would be asked to comply with the regulations established under this management program and detailed within the Park's rules and regulations. Any restrictions on uses are guided by the goals and objectives for the Park area, which are aimed at protecting the land and marine resources and the general welfare, safety and enjoyment of park visitors. Although the hours of operation would generally be between dawn and dusk, extended hours for activities, such as overnight camping and night fishing, are provided under the management program. The Villages at Hokukano Page 5 K Koholuv Boy, ' ahal -'5'Ve11A� .. (a Kalaau o Ka/akan,/ V Kauai a 185 _,----'Alt �� 1 Oahu ISLAM® cD Keouhou Bo ;-� -� LOCA IO1� AP HAWAII 44-,.gle..ri K�ausYalaelae Pr KEAUHOU r�' NOT TO SCALE 1 �\ Puu Coy `� A SITE u ! n 'e =�+ ae uiPi 1 1 Moihi Boy } \ ` 1Honalo Kuamoo Pr i" t O z� s' AB® 2 s U H 6 `{ Ll P00000 Boy ► "rf" 1 Y� j PACIFIC OCEAN ! s 1 1111., P. 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LL 1 %.1C.c141•-„tti)Vcke . _ $ • ATINttlit ., t:pilltir.09: g J'ef-r-at76,444filtt,a4A-i'.. k.' . ! 0 A:41 i-.- • ' 1 — • ,.7., s', ?,.z.,:v!,. ,:'•P. .1.1...4:ony.1,-ri!': . . .,,,v4Ar,..--*,,ip.....!.....iv,.,,,110 i • . 1 I 1 ,... 2 s''l'r''IV Vt.1-1''°-;/,'!7,f)..;',A,Vi',•Vi'f, Y i; -s--..,47.,,. ,t,k:SvT.;-1,,'r.711.;••4 '''11^ ; 4,•;',',•61i,,t'S' ,- is ...1.0.1/ s'.41.Vg.iVh•ilf' -*•t.N.',.%71,. ..'4q,,- A,"r.4(4",,r,;`.,.1:,;•3%.,,,,, . i - 1 i i Shoreline Park Management and Public Access Plan Oceanside 1250 would implement the Park improvements in phases, with the first increment of improvement concentrated near the primary access and use area, between Keikiwaha Point and Pu`u Ohau. Included with these initial improvements would be a parking area, portable restroom facilities, showers, rest areas, tables and benches, signage, and debris clean-up and landscape remediation. Trails from the parking area to the shoreline would be improved and some historic sites in the area would be cleaned and identified with appropriate signage as part of an overall interpretive program. The overall cost of improvements and the maintenance and management of the Park would be assumed by a management entity eventually funded by the Villages at Hokukano property owners. No fees would be charged to the public for use of the Park. The management entity for the Park would be comprised of representatives of the developer and property owners. fi The Villages at Hokukano Page 6 _ i Shoreline Park Management and Public Access Plan 20® EXISTING CONDITIONS 2A Property Ownership and Access The Park area encompasses approximately 140 acres and is comprised of the Tax Map Keys (TMK) 7-9-12:03 and a makai portion of 8-1-4:03. TMK 7-9-12:03 is an approximately 9.42 acre parcel referred to as Hokukano Village owned by the State of Hawai`i, and TMK 8-1-04:03 is owned by Oceanside 1250. In the area of Nawawa Bay,just south of Pu`u Ohau, are fourteen kuleana parcels of various ownership, none of which are owned by Oceanside 1250. Immediately north of the park and outside the Project area is the Kainaliu Beach area with its associated beach lots and homes, which are owned by others and are not included in the Park. Access to the Conservation District is currently provided from an old private ranch road extending through the Villages at Hokukano property, from Haleki`i Street next to Kona Scenic Park to the shoreline just south of Nenue Point. This approximately 9-foot wide road, which is accessed through a locked ranch gate at the Haleki`i end, was recently paved by Oceanside 1250. Currently, Oceanside 1250 allows access to the shoreline for fishing, camping or other recreational uses with written liability waivers. The current procedures for access are intended to inform guests of the property conditions, promote protection of resources and to address concerns of owner liability. The provisions for continued public shoreline access as part of the Project development is further delineated within this plan. Private access to the kuleana parcels is also provided through existing ranch roads. With development of the Project, access to the kuleana parcels will be maintained over internal project roadways. • 2.2 Geology/Soils The topography and geology of the coastal area is divided into two distinct areas, north and south of Pu`u Ohau. Pu`u Ohau, a prominent cinder cone rising to a height of 225 feet above sea level, is centrally located primarily within the Park area. Inland of the Pu'u, the soil is a shallow stony, silty clay loam covering, to some extent, a pahoehoe subsurface. South of the Pu'u, the ground is covered by a thin layer of extremely stony silt loam, with the shoreline consisting of cliffs that range from 25 to 80 feet in height. Erosion from wave action undercutting portions of the cliff area is evident in several areas along this souther portion. In the area north of Pu`u Ohau, the coastal area consists of a more gentle rolling terrain consisting of pahoehoe lava flows with occasional pockets of sand. The sandy pockets along this area are all contained by lava flows and, as such, no sandy beach areas are directly exposed to the ocean. The Villages at Hokukano Page 7 Shoreline Park Management and Public Access Plan a 2.3 Biological Resources A botanical survey for the overall Villages at Hokukano property was conducted in November 1991. The survey described the vegetation within the coastal area as consisting predominately of Kiawe trees (Prosopis pallida) with a mixed grass understory and the occasional noni (Morinda citrifolia) and physic nut tree (Jatropha curcas). No threatened or endangered plant species were found to be identified on the property. A faunal survey of the Hokukano project site, including the proposed shoreline Park area, was conducted in October 1991. The survey reported that neither endemic birds nor unique wildlife habitats were found on the property. Common winter migratory shorebirds such as plover, Ruddy Turnstone, and Tattler, were found in coastal areas. A Quantitative Assessment of Marine Communities and Water Quality was completed in April 1992. The survey found that marine communities fronting the Conservation District are diverse and the fish communities do not show the declines in abundance that have been encountered in other Hawaiian coastal settings. No unusual marine species or communities were noted, nor were green turtles seen, although it is expected that turtles likely pass through waters fronting the proposed Park area. To quantitatively assess water quality characteristics fronting the Park area, 24 sites were established, including a nearshore brackish water well. Water quality sampling indicated that conditions fronting the project site were typical of well-flushed, undeveloped West Hawai`i coastal settings. • 2.4 Archaeological and Cultural Resources An Archaeological Inventory Survey of the full 1,550-acre Villages at Hokukano project site was performed by Cultural Surveys Hawai`i from August 20, 1991 to January 17, 1992. The survey was designed to meet the requirements of DLNR's SHPD and to identify the cultural resources within the total Villages at Hokukano property, including the Park area. The property inventory survey report covering the full property was approved by SHPD in October 1996. The Park area contains 94 sites that have a wide array of functions related to traditional Hawaiian and historic-era settlement patterns and land use, habitations, burials and religious sites. This area was a loci for traditional Hawaiian and historic period habitation up until the mid to late 1800s when The Villages at Hokukano Page 8 Shoreline Park Management and Public Access Plan most settlement had become focused along the mauka roadway corridor. The sites in the Park area exhibit characteristics that are shared with other documented sites along the Kona coast, however these sites are also different in some aspects. That is, the habitation settlements in the Park area are distinct because they did not develop into a royal center nor were they influenced as heavily by post-contact Euro-American trade and commerce as were other nearby settlements. There are also examples of adaption to historic-era influences on habitation such as walled house lots, mortared tombs or crypts, as well as those influences from the newer market-based economies of commerce and ranching exemplified in part by cattle walls, corrals and even a retail store. In general, the density of sites is high in the northerly portion of the park area between Keikiwaha Point and Nenue Point and decreases greatly to the south of Pu'u Ohau except for a concentration of sites around Nawawa Bay. Thus, the focus of the interpretative program will be on those sites in the northerly portion of the Park area. Located on the lava bench along the coastline between Keikiwaha Point and Nenue Point are sites 16747, 16755, 16756 and 16758 which are good examples of prehistoric permanent habitation sites F that are in good condition within what is thought to have been the locus of activity in the village cluster. Located near these habitation sites are two coastal heiau, sites 16757 and 16762, (probably ko a) that are in good condition and may have functioned in conjunction with each other to locate offshore fishing spots or to denote the distribution and/or procurement of marine resources. To the south of Pu'u Ohau and above Nawawa Bay, is a small cluster of sites including two prehistoric permanent habitation sites, a heiau, and the foundation site of the old C'rreenwell Store at Wool's Landing on the south side of the bay. This cluster includes Sites 16432 and 16434 which are the habitation sites, Site 16703 which is the Pali 0 Nice heiau overlooking Nawawa Bay, and Site 16702, which is the foundation remnant of the old Crreenwell Store. 2,5 Hazards The majority of the Park area is outside the 500-year flood plain. Due to exposure to high wave action, especially during storm periods, the Federal Emergency Management Agency's Flood Insurance Rate Map for Hawaii County classifies the land adjacent the shoreline as Zones AE and VE, indicating coastal flood areas with potential wave hazards. Although the coastal flood zones generally occur along the entire coastline, these extend further inland near Nenue Point and Keikiwaha Point. The Villages at Hokukano Page 9 _ F Shoreline Park Management and Public Access Plan The shoreline Park area lies within lava flow Hazard Zone 3, with Zone 1 being the area of highest risk and Zone 9 being the area of lowest risk. Zone 3 is characterized by lava coverage of about 5 percent in the past 200 years, and 15 - 75 percent within the past 750 years. The general area of the Park is situated on lava flows that occurred between 1,500 and 10,000 years ago. In terms of seismic risk, the entire Island offlawai`i is designated within Earthquake Zone 3, which is the zone of highest seismic occurrence and danger. In 1951, a 6.9 magnitude earthquake occurred about one mile offshore of the project area, and in 1983, a magnitude 6.6 earthquake occurred at a depth of seven miles midway between Kilauea and Mauna Loa, causing a landslide at Kealakekua Bay (2 miles south of the Park) shortly there after. 1 The Villages at flokukano Page 10 Shoreline Park Management and PublicArrrrs Plan 3:0 PA a! IMPROVEMENTS Sad Access Improvements Vehicular Access and Parking Vehicular access to the shoreline, as shown in the Public Access Plan (Figure 4), would be provided • through a proposed public road extending from Haleki`i Street at the eastern (mauka) property boundary, and/or from the planned Mamalahoa Bypass Road which will pass through the Project to the inland boundary of the shoreline Park. The public access parking area is located near Keiluwaha Point and the southern boundary of Hokukano Village. As planned, the road would extend from Haleki`i Street in a mauka-makai direction toward the central portion of the property where it would join with another proposed public road that would lead to the public parking area at the shoreline Park. Initially, the parking area would provide twenty-five(25) public parking stalls, with additional parking for Park employees. The parking lot would be paved and furnished with trash receptacles and appropriate signage indicating pedestrian access routes to the shoreline. A separate parking area will be provided for Villages at Hokukano residents to avoid use of the public parking area. Improvements to the primary shoreline access area, including provisions for parking, are shown in Figure 5. Pedestrian Access/Trails A trail network to facilitate pedestrian access through the Park to designated picnic and camping area, to sites of historical and cultural interest and the shore, is planned as part of the Park improvements. These include improvements to existing trails, trail connections and extensions. The trail improvements will consist of four to six feet wide foot-paths with a variety of surfaces, including concrete or grass pavers, paving stones, crushed rock or coral, and a variety of grasses. All materials will be chosen to compliment the passive nature of the Park area. Sections of these trails will be designed to meet appropriate American Disability Act (ADA) specifications to allow barrier free access to portions of the Park. The Villages at.Hokukano Page 11 Shoreline Park Management and Public Access Plan Trail improvements will be implemented primarily by hand and will include such activities as hand clearing of vegetative cover, removal of small trees (less then six inches in diameter), removal of dead or diseased trees or limbs, removal or overhanging limbs, hand clearing of trail corridors, placement of wood or rock steps, and definition of trail edges with rocks, coral, logs or landscaping. Introduced landscaping will generally consist of native species which are particularly adapted to the climatic conditions of the area. The intent in the creation of the trails, pathways, and trail connections are to help meet the objectives of the plan as to recreational access, enjoyment, safety, maintenance and management while preserving an unobtrusive and natural feel to the Park area. 3.2 Park Improvements In keeping with the goal of a more natural character for the Park area, planned improvements would be limited to providing restrooms, signage and park furniture (benches, tables, waste receptacles and fire pits) clearing of trails, protection and stabilization of archaeological sites, and providing areas for picnicking and camping. All clearing work would be carefully implemented, mostly with hand equipment and would generally involve the removal of weeds, dead or diseased trees and limbs, small trees (less than six inches in diameter) and overhanging limbs. Thinning of trees of all sizes will be done to promote the movement of ocean breezes, thereby, making the Park climate more comfortable. The specific improvements planned within the park area include: Structural Improvements and Park Facilities Vehicular access and parking improvements for a minimum of 25 public parking _ stalls and separate project employee and resident parking Information kiosk Restroom facilities with showers and drinking water Rest areas with wood or stone tables and benches Civil Defense warning system Camp sites with tables, benches, barbeque pits and coal disposal bins The Villages at Hokukano Page 12 Ca 1401 41.4 C Q 2 CD0 Cr) n CO Q Q S CD U N < C v c d 8 .n o . •- %''' S z o Ui o_ V w \.1 o w LL® I I o �' J � s II 1 i v 1 l \\\ # 1'4A., *: 1, ' -3-4 \ - e- 0...(0,401.-Wi A '''C'' = \t\- 11.\li i,1),A tc *1 4i4 = .,___... ,\\‘‘cit,IL 1 1\) \).-1 -\)t\ ',1‘,1 ' ;_. I ki 4,-Ii. ,,,;p. ‘A g ,... ') ) 40,11t r."44 4) C! i de g'4,611,011* 1 4 4 , 0 r i Y it‘\). ;) 4 I(. I\Ili:i:44)1"11 4( i -- \ \\ , 7 0 10,1161 .di, 44,,-;40. ....--- \,. 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'. ...••••.11'' . . ..' or''' • 4 ..1111 . ...' STROOMS ) ---------- "trz-,-Ti-,* :1.--:-. - . •.-,, ,•;-..--7,_. le ''•------.,..a_____7 ;,*-.. .i._ -,,,..-' .-,... -• • -•..:764.10... ,..,.., .„-t , --,--4 ,_,,,,:v.t,--,, • -,..:‘,-.,ip - ‘ _--fro 0 . --------- „ -;,-itre --e.--" 1 0 ----' --r .s. ---.;•.._,--. , •• _,., • -KEIKIWAHA ;7,`---ro.-F---•.',- CO., -...,,, .......411 • , ..-•,-w 4;, . , i.... St1•11111r., 4,01. ,_ . c.) .4 . ••.. . . TO PU'U ,I BEACH AS HAU O ......,•- %,yil: 0 W.« -th •e ••t '' : e 0...' .1,1,A ; ,...:;" •Alwo,,, -i ••- , - -21/„.. J1;7-,„..e..• • .. .. ....;...-...„. -v:.--,....014 -.1-....0"-Z-.4410• . '''''t •. . di SPi,P.', 1-..:.ri-...: ,,. ,.. ..- ‘, \ ii _ . . 4 ‘ 7:".•=5 ,- [ L - - - pA,0-..... HISTORIC SITE - -- \oil \....qe HISTORIC SHE KEIKIWAHA POINT 1 '.i Figure 5: Shoreline Access Arca (Petalled) Shoreline Park Plan Via4gCS cit Hbrkitkana -' *Amo 50 100 200 vir rtn—r1 11/98 EfrAh Shoreline Park Management and Public Access Plan Portable restroom facilities Trash receptacles at parking, picnic, and camping areas Emergency telephone system • Landscape Improvements and Landscape Possibly grassing in picnic and camping areas Buffers for restrooms and other structures Shade trees, as appropriate Accent planting of plants which are adaptive to the site conditions Flowering species to add color and variety. Landscape Clean-up Remediation Primarily'hand-clearing of vegetative cover from trails, archaeological sites, and use areas Removal of weeds, diseased & dead trees and limbs, trees and over hanging limbs Thinning of trees Trail Improvements - Improvements or extensions to existing trails - Trail connections Public shoreline access trails - Interpretive trails to selected archaeological sites with interpretive signage The Villages at Hokukano Page 13 Shoreline Park Management and Public Access Plan Signage (Meeting DLNR signage rules) Directional - Instructional - Interpretive Initially, the parking area and restroom facilities would be located near the Park boundary. Eventually, as Project related improvements extend utilities to the vicinity of the Park, a permanent restroom facility is planned. The locations of these Park improvements are indicated on the Shoreline Access Area Plan, Figure 5, following Page 12. All park improvements would be constructed and maintained by a management entity established by Oceanside 1250 and eventually funded by the Villages at Hokukano property owners. Funding prior to that time will be provided by Oceanside 1250 or its assigns. The management entity would also be responsible for all maintenance and operation of the Park. Signage Public Shoreline Access Route. Signage would be posted along the public access route at strategic locations and at parking area entrances. Public shoreline access signage would generally be consistent in form and content to the public access signage used by the County of Hawai`i, as shown in Figure 6, however, modifications may be sought with regards to materials and lettering style in order to achieve a consistency with other Project signage.o Directional and Informational Signage. Other directional and informational signs would be proposed at the parking area and various points along pathways, trails and use areas. All signs within the Park area (Conservation District) would also comply with the signage requirements under Section 13-5-22, P-8 of the DLNR Administrative Rules. These guidelines specify that no sign shall exceed twelve square feet in area, and that signs shall be self-supporting and erected no higher than eight feet above finished grade. The Villages at Hoakano Page 14 Shoreline Park Management and Public Acrfss Plan • Additionally, interpretive signage would be placed in association with selected archaeological sites, which would be implemented as a component of an approved archaeological mitigation and interpretation plan. The form and content of the interpretive signage would comply with the DLNR signage guidelines. 13 Potential Impacts While the Plan provides for improved access to and use of the shoreline area, among the primary goals is to provide appropriate monitoring and management controls to ensure that the level of use within the Park does not adversely impact the important resources of the area. Some of these resources include the concentration of archaeological resources near the coast, the ocean and nearshore marine resources, biological resources (flora and fauna), and scenic resources. Although' the Park area includes no identified rare, endangered or threatened species, management controls are needed to protect the existing natural character of the area. There is a concentration of archaeological sites within the Park area, including heiaus, burials, suspected burial sites, house sites and shelters, agricultural features, petroglyphs and more. Access to sites would need to be monitored to ensure that they are not impacted as a result of improved access. In addition to the cultural and biological resources, the visual resources (view sheds and viewing points) require protection to preserve the natural character of the area and to enhance the enjoyment and appreciation of these resources. A part of the goal for resource management is to prevent any areas within the Park from having a "worn" look. Properly managed, increased access to the Park will not negatively impact the existing and future uses in and around the area. These uses include shoreline access, the existing and future residential uses within the kuleana lots at Nawawa Bay at the "beach lots," north of the Park at Kainaliu, and the house lots within the proposed Villages at Hokukano. Activities within the Park area will be monitored and managed to ensure that park users are neither negatively impacted by, nor have a negative impact on, adjoining uses. I The Villages at Hokukano Page 15 Shoreline Park Management and Public Access Plan 3,4 Safety Considerations To maintain the continued safe use of the Park area, access to the area will be temporarily suspended in the event of a state of emergency(declared by the appropriate State or County agency) or during periods of adverse weather generating high wave conditions, or to portions of the Park where topographic conditions present particular safety concerns (e.g., loose or unstable ground conditions along the shoreline cliffs). The Villages at Hokukano Page 16 - Shoreline Park Management and PublicArra.ss Plan 4.0 IMPLEMENTATION MEASURES 4J Phasing Plan Oceanside 1250 will finance and implement the planned improvements to the Park area in a phased manner, in accordance with phased development of the Hokukano project. The segments of the Park area that correspond with the phased improvements are indicated in the phasing plan shown in Figure 6. The phased improvements would be accomplished as follows: Phase One Phase One improvements would generally occur in the area near Keikiwaha Point and the Park's northern boundary as shown on the Phasing Plan(Figure 7). This plan would include improvements on the Hokukano Village parcel under joint sponsorship with the State of Hawaii. To ameliorate degraded conditions which currently exist along the shoreline area, this and other selected areas will undergo a general clean-up and landscape remediation consisting of the limbing of trees, removal of diseased, dead and noxious plant materials, and removal of rubbish. The coastline area vegetation consists of primarily introduced prosopis (kiawe) with an understory of introduced pasture grasses and various herbaceous plants. Scrub trees, especially prosopis and leuceana leucocephala (koa haole) that have roots which are damaging historic sites will be trimmed or removed in order to stabilize these sites. There are also large numbers ofjatropha arras(physic nut) which should be removed since they have seeds that are very toxic. No native plant taxa were found in the proposed Park area. In some locations, plant materials, including climatically appropriate grasses and shade trees, will be introduced to maintain an adequate vegetational cover, help provide erosion control measures and maintain the pleasant landscape setting of the area. Phase One improvements will include an unpaved dust-controlled public vehicular access from a nearby public roadway and creation of 25 public parking spaces separate from resident and employee parking. The access road will be paved and the number of parking spaces may be increased commensurately with development of subsequent Park phases, and in keeping with protecting the Park from overuse. The Villages at Hokukano Page 17 _::::::--........::::......:.::.::.._.__:......__E:E:- ...--::::::_.._� 0L _ -.=rte _-i' _ # '3 gg g _ i z _ r s a iEe5ieEEe-'.eeei3e eeeee-e iEeeee°eee_eE-eeeeeeeeeeie" 1 1 irf 1.?/ .0._t':.,. _ � 1 3 2 f Y {<s y zja .410 f.0 SHORELINE i ESS . ,„..„..,..,:....„ ,„,:,:,0: ,,i.,i...:„.1m:-..1.4.:,„4„:41::„..,;.f.,,,,.4.4.5i._:,;.-„,:i..s„,,,,...,$,:„.... .,:„„,:.,...„.. . ..r ,i ,..,. .....i ,,_., .___.„,...,..„7„7:,„:„..m.„„:„.„1„.„:„,,.4„,... 1._:,-i_:::00.1:1,111-,0 C1 1.1-1--7 .mr1-0,X1Z----1L-1 -7'1 L , T _ I • F ,-:-•=1,,,,,,„:.,.:,7-4,- -1---_-77::,Ei as :11 y� k Z I o Figure 6: Public Access Signage Shoreline Park Plan IjiCC� e�s 4t Okktn0 i Pin i 11/98 =,f 1 . .. ... - - .. . . , •ZP N'' Vi•i)ri ....14 v3 Low ,, _)c__ 0•*<'4\l'v . , Z • ') ) ;:r co ,_ :;,, i\-,-- A• Alnt,,..,, c,_ kt g3 2 F " ,16114S -,i5 , • 1 — t .8 $ "4 , \ -• '1 '?i tl! e,_ .,, i . ., , i, 1 Ci. .`(.(-• V` \N''. ... ,•-\-.\\: A N''''''''t •--`' -= 0 )........., -,=•„„.„1,',.,\ y‘, • ,\").\: V\i ,v,;!-;a CL-C \\\ ..-,,,,, ) ) i • t, t ,.4.41F .. _ . v--:\ • 1,4 : ; -;liv. ,k z-. 1('Ci,, 1)) . .4'441 lb A t"ifil 2 )2 EL 'i' B •••'/ Atilt%-0 t / ' Witm*terlir, A,,. 1 g i yll Ara 1`..11) 11,g„ fit ivespolaw ,a, z-.5 'f -. •°'NI , . \\ A e '' A leAtcWit0kW`Ili ,.., 6- ) Jt‘•\0.k.2._ 1'i , 141(A/4 ' I' (r---faik* ItilsiliPTIONft.,4,k (S'' ': '''''*\i'l_ .'t ,4) lc.0) V frl tAtT;braitel-A*1.114,4kW Ap i‘ A?/ - 1 ) C.Vil:ti-•-•111-,,74.---r" % 4 VP',.,. -A ''' ',r) '\\ • .0 . .. , fr,z1i/V IV. i.-} ( .:1 ill, i,t,,,Ilig•-ltir ti . .',Y• 'Ottt. ' c•• / • Olt ' 1.411 :4-.;'‘'..iiit _ .4 (' 1 "re D •i •inn '4W"Blie-co rp.41.," 4111 41.11,,N. Arc" h. C) t t. rk, • .1;414 4 s‘ , ;see RI+ ..,.4. pink f itite, .‘......„_ ... J,2.L... mi.11.-4w4 4-14ighdp.--i% irc it 1 '.1:W.---v4,11:1.V.Vw i" 11 •'-: 11.,,P,.-,„ :.:,./AC' a) - ' ,r.,/i\ ,;,,,A"..•••' 414gter• ' . i,, ,.-. 2 1 '',Y,'',\\ ) I •\V\Vogt ., "4,4,., •, .)j‘;'‘\'` \ °` ‘) \ k•*,,, if4 i 6= i .4.,,) • \-- \\_,,, ),,,,, ‘'',,:\\,,z.\\,.\''''\\. on... gi n(( , ,•.1 ' \ • \ "---1 ,..--------'' J f , - . '''\,\\"•,-;),\\.,s\\.\\ \•,,, . . , 1 .. • •, . _ 1 Shoreline Park. Management and Public Access Plan At the public access trail head makai of the public parking area, an orientation area will be established for visitors providing drinking water, portable restroom facilities and showers, directional, educational and resources information, along with a resting area to include wood or stone tables and picnic benches. Phase One improvements will also include development of pedestrian uses and access along a self- guided interpretative trail in the area between the orientation area and Keildwaha Point. A connector trail between the public shoreline access area and the State-owned "old government-road" will be included near the project roadway that provides public access to the shoreline area. Some vegetation will be removed or trimmed to locate these trails in the optimal locations. Kiawe trees that have hazardous thorns will be removed or trimmed to improve walking conditions along the trail. Campsite with benches and tables would be located within the Village area. Other improvements will include a continuation of the lateral shoreline foot trail into the Village from the public access shoreline area near Keildwaha Point. On the north side of the Village, a connector trail will link the lateral shoreline trail with the"old government road" at a point south of Kainaliu Beach. The Park improvements will be integrated into the site to protect view sheds, marine resources and sensitive archaeological sites. All archaeological mitigation measures will follow the recommendations and guidelines of the approved archaeological mitigation, and preservation plans and are expected to be directed toward the stabilization of selected historic sites, limited restoration of selected sites, non-intrusive archaeological study and appropriate interpretive measures. To provide for notification and preparation for emergencies and hazardous conditions, a civil defense warning system and emergency phone system will be installed within the Park area. In concert with the regulatory requirements, Phase One improvements, which encompass 25 percent • of the total Park area, will be completed incrementally over a five year period. The first increment of improvements (Phase 1A - as shown in Figure 7), which will be focused at the primary use area near Keikiwaha Point, will be completed and open to the public within 30 days of the golf course opening. The remaining Phase 1 increments (1B through 1E) will be completed sequentially over the remaining four to five years. As noted, those improvements within the State owned parcel will be contingent upon entering into an agreement with the State for the use and management of this portion of the Park area. The Villages at Hok-ukano Page 18 Shoreline Park Management and Public Access Plan Phase Tw_o Phase Two improvements would occur generally in the area between Nenue Point and Pu`u Ohau. It is proposed that improvements in this parcel will be similar in nature to those implemented in Phase 1. To ameliorate degraded conditions which currently exist along the shoreline area, this area will undergo, a general clean-up and landscape remediation consisting of the limbing of trees, removal of diseased, dead and noxious plant materials, thinning of trees, and removal of rubbish. These improvements include landscape maintenance and planting of appropriate species such as grasses and shade trees that compliment the passive uses of the shoreline area. In addition, directional and interpretive signage will provide general interpretative information and indicate where access is located within this area. Phase Three Phase Three improvements would occur in the area between Pu`u Ohau and Nawawa Bay. Additional landscape maintenance activities, which were initiated as part of Phase One, will resume in order to conclude the general landscape remediation in this area. The public access road to the shoreline access parking area at Keikiwaha Point will be paved. Also, the pedestrian access trail will be extended from Keikiwaha Point south to Pu`u Ohau, where the trail will follow an alignment along the State Land Use Conservation Boundary that runs mauka of Pu'u Ohau. In the interest of safety and the protection of sensitive archaeologic sites, trail access onto the makai side of Pu`u Ohau will be carefully restricted. Additional directional and interpretive signage will provide general interpretative information and indicate where access is located within this area. In order to provide a degree of privacy for the Kuleana parcels located around Nawawa Bay, public access in this are will be limited to a extension of the footpath mauka of Pu'u Ohau to the south along the mauka edge of the kuleana parcels within the Conservation District. A connector trail will be provided to link the mauka side of Pu`u Ohau with the"old government road" and the historic park which is centered around the heiau on the hillside, about 70 feet mauka of the Park. The Villages at Hokukano Page 19 1 Shoreline Park Management and Public Access Plan Phase Three improvements will also include additional restroom facilities in the area south of Nenue Point, as well as improvements for passive recreational uses, such as small grassed areas for picnicking and seating. In conjunction with these improvements, additional protective and interpretative measures, such as interpretative signage, site stabilization and/or partial site • restoration, will be implemented in accordance with the approved archaeological mitigation plan. 1 Phase Four Phase Four improvements would occur in the area between Navia-w5 Bay and Kalukalu Bluffs. Pu'u Ohau represents the transition point between the northern portion and southern portion of the shoreline park. This transition is evident in the steep cliff-like and overhang conditions of the ' southem shoreline, in contrast to the much lower lava delta and shelf that is predominant along the northern shoreline. Access at or near to the shoreline in these steep areas will be setback from the 0 cliff edge, and the trail through this area will be a continuation of the footpath from the north at 1 Pu'u Ohau. There will also be a short scenic footpath down to a grassy overlook and seating area within an area near Wool's Landing. Associated landscape maintenance and additional signage will be undertaken in conjunction with trail improvements and stablization of historical sites in this phase of the Park improvements. To ameliorate degraded conditions which currently exist along the shoreline area, this area will undergo a general clean-up and landscape remediation consisting of the limbing of trees, removal of diseased, z dead and noxious plant materials, thinning of trees, and removal of rubbish. Two or three small rest areas will be maintained for bench seating along the trail. t t Phase Five _ 1 i Phase Five improvements would occur in the area between Kalukalu Bluffs and Keawekaheka Bay, at the property's south boundary. Landscape maintenance activities initiated as part of Phase Four will resume to remove dead, diseased and noxious plant materials, thinning of trees and removal of 5 trash and to conclude general landscape remediation. There are limited portions of this area within which trail access along the cliff is neither safe nor suitable. Thus, the extension of the lateral footpath in this area will be setback from the cliff edge. The trail will be a footpath that will continue to the property boundary mauka of Keawekaheka Bay. An additional three to four small rest areas will be provided in this portion of the Park with bench seating for trail users. Also, a small restroom facility with toilets, washbasins and drinking water will be located at the junction of the trail and the"Old Kalukalu Road." i The Villages at Hok-ukano Page 20 tiI Shoreline Park Management and PublicAcerrs Plan 4.2 Phasing Schedule As outlined in Section 4.1, the Park improvements will be phased in conjunction with the phasing of the Hokukano Project development. Each phase is planned to be coordinated with the overall project development such that improvements can be made in an orderly, economic and efficient manner. In general, phasing of the park improvements is aimed at first implementing the initial improvements proximate to the central portion of shoreline, and then implementing the remaining improvements in the northern and southern sections of the shoreline in latter phases coordinated with lot development activities. The sequence and timing of the Park phases are as follows: Timing of Improvements Phase General Location of Improvements Timing Phase 1 - Park improvements Keikiwaha to Pu'u Ohau 5 years Phase 2 - Park improvements Keikiwaha to Kainaliu 3 years Phase 3 - Park improvements Keikiwaha to Pu'u Ohau 3 years Phase 4 - Park improvements Pu'u Ohau to Wool's Landing 2 years Phase 5 - Park improvements Wool's Landing to Keawekaheka 2 years The first components of the Phase One Park improvements will be completed and available for public use within 30 days of the official opening of the Project golf course. The unimproved north/south shoreline trail through the Park, with its connection to the Old Government Road will be accessible from the opening of the Park following the initial (Phase 1A) improvements. The State owned "old government road" is a portion of Keauhou - Napo`opo`o Trail which provides alternate lateral access through the Project. Subsequent park improvement phases would be developed and opened to the public within 18 months of the date that future final subdivision approvals are granted by the County for the related lot development. All Park improvements are subject to government approvals including, a Special Management Area Permit, Conservation District Use Permit and approval by the State for improvements within and management of the State's Hokukano Village parcel. The Villages at Hokukano Page 21 Shoreline Park Management and Public Access Plan 4e3 Oper tion and Management Once improvements are implemented, these areas will be managed and maintained by a management association established by Oceanside 1250 and funded by the Property Owners of the Villages at Hokukano in concurrence with applicable regulatory permits and approvals. This managing body would be responsible for all maintenance and operations of the Park. Income for the ongoing management, operation and maintenance would be provided from association dues paid by property owners within the project. The obligation of the property owners to continue to finance the management and maintenance of the Park area would be included within the conditions, covenants and restrictions (CC&Rs) for the Project, such that all property owners would be informed of the obligation of the property owners' association to fund the management operation and maintenance of the park area in perpetuity. A copy of the applicable portions of the draft CC&Rs are included as Appendix B. 4A Management Strategies 4.4.1 Management of Marine Resources With increased public access to the shoreline area there may be greater pressures on the local marine resources. To provide for the ongoing management of the coastal area and the shoreline marine resources, the Management Association would establish a Shoreline Resource Advisory Committee (SRAC). The purpose of this committee would be to develop and oversee a program aimed to protect the nearshore environment from damage resulting from increased shoreline access through proper management and educational activities. Among the responsibilities of the committee would be to review monitoring reports and presentations by the Park management staff and consulting biologist, to establish policies and guidelines for protection of the marine resources, to review the effectiveness of these policies and guidelines, to coordinate with DLNR's Aquatic Division to ensure compliance with the Department's rules and regulations, and to participate in the development of marine-oriented educational programs. The Villages at Hokukano Page 22 Shoreline Park Managcrnent and Public Access Plan a The committee would consist of representatives of community resource groups, such as fishing, hiking, trails, ocean recreation, ocean resource management and Hawaiian organizations, as well as concerned individuals and the park owner and park management representatives. Although the committee would initially meet on a quarterly basis, it is expected that the group would establish its own schedule, as needed. All meetings would be open to the public and publicized in at least one major West Hawaii newspaper. Rather than establishing a comprehensive resource management program as part of this Plan, it is recommended that the SRAC determine the extent of its involvement and develop appropriate management policies to meet its program objectives and to respond to marine-related issues as these arise. Based on discussions with the community advisory group during the preparation of this Plan, it is suggested that the marine resource management program be developed and implemented in the' spirit of the traditional Hawaiian (Konohiki) resource management system. It is also recommended that the committee explore the possibility of creating a Fishery Management Area (FMA) or Marine Life Conservation District (MLCD) for those portions of the shoreline park area, where needed. It is worth noting that, through the enactment of Act 306 in 1998, the entire west coast of Hawaii Island was designated as a Fishery Management Area(FMA). Subsequently, the DLNR established the West Hawaii Fishery Management Council which serves as a coordinating group for the shoreline resource management activities taking place in West Hawaii. An important component of the SRAC's role will be to participate in the development of marine- related educational programs. These programs would be aimed at encouraging a greater awareness and appreciation of the ocean resources and the objectives of the marine resource management program. One measure that is planned to foster a greater public awareness and conservation ethic is the placement of an information kiosk near the entrance(s) of the shoreline park. The kiosk would _ include information on signage displays, existing fishing regulations and conservation practices, and public safety. The committee would explore other educational forums, such as walking tours, preparation of informational brochures, and presentations by the management staff, local resource persons and other specialists. The SRAC will also coordinate its activities with the WHFMA Council, through meetings and information sharing, to ensure that they have the full benefit of experience from similar programs in West Hawaii and to avoid the possible duplication of efforts. The Villages at Hokukano Page 23 Shoreline Park Management and Public Access Plan 4.4.2 Protection of Historical and Cultural Resources As noted, the largest concentration of archaeological sites is found near the shore within the park area and includes a wide array of functional types including habitation sites, burials, petroglyphs, and religious sites. Protection of these and the other, widely-varied sites in the Park area will enhance passive and interpretative preservation, and will provide thematic overviews of the two developmental trendsthat are generally represented by these sites - traditional and historic settlement patterns. Preservation would take the form of simple physical preservation in place, or in some cases, preservation would take the form of appropriate interpretive and restorative activity. To accomplish meaningful preservation and interpretation, the best examples of a wide range of site types and functional varieties will be included. The goals of the Park preservation and interpretation program will be: Preservation of sensitive sites of traditional Hawaiian cultural significance, Interpretation of significant site types, functions and thematic correlation, o Other long-term research and protection criteria, and Appropriate treatments for all cultural and historical resources. Since traditional and historic settlement patterns are demonstrated by the sites in the Park, we r, believe much can be learned about the chronology of traditional and historic settlement and land use especially as they relate to habitation, resource management and perhaps agriculture within the area's ahupua'a. Other interpretative data, educational information and research study could provide detail on the relation between temporary and permanent habitation sites, the socio-political rank of area habitations, or development of other shoreline-related land uses. As many sites have several levels of cultural significance and have multiple physical features with mixed uses including burials and other sensitive remains, specific preservation plans will be formulated after additional research and planning. Specific recommendations will be part of a comprehensive archaeological and interpretive program for the Park area that will be reviewed and approved by the State and County. This plan will be implemented by Oceanside 1250 and its consulting archaeologist, in consultation with DLNR's SHPD, knowledgeable area residents, Hawaiian organizations and consulting professionals. The preservation program would be implemented according to an overall Archaeological Site Preservation and Interpretive Plan approved by DLNR's SHPD and the County of Hawaii Planning Director. The interpretive plan would include descriptions of buffer zones, preservation measures, site-specific plans and interpretive signage. The Villages at Hok-ukano Page 24 Shoreline Park Management and Public Arress Plan The potential impact of public access to these sites would be evaluated by the Park management, in consultation with its consulting archaeologist, to determine if further mitigation measures are warranted, such as increasing buffer zones, restricting access, or other modifications to protect sites from further disturbance. Should impacts to the archaeological sites within the Hokukano Village parcel be noted, the SHPD and County of Hawai`i Planning Department would be notified and appropriate mitigative measures, as approved by DLNR and the Planning Director, would be taken. 4,4,3 Access Restrictions The Park management reserves the right to control or prevent access to areas that, in the management's judgement, pose a danger to the public or that requires protection to preserve the area from over use. Access to the public parking area may also be restricted during periods when the public parking area is full. The management would also have the right to control or prevent access to the Park area in the event of a County or State declared emergency. Additionally the management would also have the right to control or prevent access to persons who, in the management's judgement, present a danger to the safety, character or interest of the property or to the uses of the Park area. However, the management would immediately notify the appropriate public authorities upon occurrences of such actions. 4,5 Uses and Procedures 4.5.1 Hours of Use Generally, the Park hours of use would be from dawn to dusk, with special provisions for night time fishing, overnight camping,_and group functions. Procedures for use of the Park areas at night or group functions, which would include sign in/out requirements and/or issuance of a special permit, camping or night time fishing permit, are described within Section 5 of the Park's Rules and Regulations. The Villages at Hokukano Page 25 Shoreline Park Management and Public Access Plan 4,5.2 Restricted or Prohibited Activities Restricted and prohibited activities will be imposed to protect the character of the Park and surrounding area, as well as the safety and enjoyment of the park users. Restricted and prohibited activities are delineated within Sections 2 and 3 of the draft Park Rules and Regulations. These regulations were compiled based on the rules and regulations for State parks (Chapters 13-146, HAR), although modified to reflect the management requirements of a privately-operated park and to reinforce the goals and objectives of the Plan. As noted above, certain activities, such as night fishing, camping, and group activities, are to be regulated through permitting procedures. Prohibited activities include littering, vandalism, soliciting, possession of firearms, alcohol, illegal j drugs, loud noise or music and destroying natural, historical or archaeological features. Signage providing a summary of the park regulations would be provided at appropriate locations in the Park. 4e6 Monitoring 16`rocedures - Monitoring of the Park area would be conducted by the Park Management, its employees, consultants and agents. Monitoring would be focussed on detecting negative impacts in four areas: vegetation and natural character, archaeological sites, and marine resources (hereafter referred to j as"Resources"). The Park management would be directly responsible for monitoring the Park area for evidence of damage to the Resources within the Park and violation other Park rules and 1 regulations. Such occurrences would be reported on a daily basis to the Park management for appropriate corrective action. J The nearshore and marine environment would be monitored on a regular basis by a marine consultant according to the procedures established within the water quality and marine life monitoring and mitigation plan prepared by Richard E. Brock, Ph.D. A copy of the monitoring and 1 mitigation plan is enclosed within Appendix C. Initially, a baseline analysis of the nearshore marine environment was conducted of April l 992 (A Quantitative Assessment of the Marine Communities and Water Quality, Villages at Hokukano, Final EIS, Section II-3). This study described the baseline conditions for the marine communities and water chemistry characteristics along the coastline fronting the property. The study would be updated prior to the first construction or land alteration within the Project, following which, monitoring of the marine environment would be undertaken on a regular basis, as required by the Department of Health's Water Management Division. The Water Quality and Marine Life Monitoring and Mitigation Plan (Appendix C) recommends that monitoring t takes place on a quarterly basis throughout the Project construction period. Monitoring would take t i place annually thereafter, unless statistically significant changes are noted and increased or The Villages at Hokukano Page 26 49 1 - 1 Shardlinc Park ManaScmcnt and Public Access Plan decreased monitoring is warranted. The marine monitoring program would adhere to the monitoring protocol guidelines established by the West Hawai`i Coastal Monitoring Program. This program established a set of uniform standards for marine biologists to ensure that a comparable methodology is used for marine monitoring in West Hawaii. The procedures for reporting monitoring results to the appropriate State and County agencies are described within the monitoring plan. Generally, the Plan recommends a program of quarterly reporting during the period of construction, and annual reporting thereafter. The period of construction for the Project is expected to occur over a fifteen to twenty year period, similar to the phased improvements within the Park area. As described in Section 4A, the water quality and marine life monitoring reports would also be reviewed with the park advisory group, as part of an ongoing program to manage and protect the Park's nearshore marine resources. 4e7 Reporting Procedures Oceanside 1250 will submit an annual report to the Board of Land and Natural Resources and the County of I Iawai`i Planning Director for the period up to completion of final phase of improvements proposed under the Plan. Currently, the proposed improvements are planned to be implemented over a fifteen to twenty year period. An annual report will be submitted to the State and County within thirty days of the anniversary date of the issuance of the Conservation District Use Permit and SMA Use Permit for the Park Improvements, respectively. The annual report will include a general statement of progress toward implementing the Park improvements and compliance of any conditions imposed by the State or County in meeting the conditions of the Park related permit approvals. The annual report will also contain any proposed changes to the Plan implemented to further meet its objectives. The Villages at Hakukana Page 27 Shoreline Park Management and Public Access Plan 5.0 JUSTIFICATION 5.1 Consistency with Conditions of Aproval 5.1.1 •rdinalce 964 ad Ordinance 96-8 Ordinance 96-7 established the conditional zoning for a portion of the Project lands. Condition "K" and "H" of Ordinance 96-7 and 96-8, respectively requires that: "A final comprehensive public access plan, to be developed in consultation with community groups, shall be submitted to and approved by the Planning Director prior to final subdivision approval, or any land alteration activity, whichever come first. The final comprehensive public access plan shall be developed in consultation with the Planning. Director and the Department of Land and Natural Resources and shall include mauka-makai and lateral shoreline accesses, parking area(s), signage, emergency response considerations, restrictions on use (if any), provision of recreational and restroom facilities at appropriate locations, and related improvements; provided, that the construction of the coastline park and access ways shall be subject to the obtaining of all necessary discretionary permits (e.g., Conservation District Use Approval, Special Management Area Use Permit, etc.); provided, further that the applicant shall be responsible to comply with the following terms and conditions: 1. An area comprising twenty-five percent (25%) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within thirty(30) days following the opening of the golf course; The Villages at Hokukano Page 28 Shoreline Park Management and Public Access Plan 2. Upon opening the first phase of the park area, a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the applicant's adjacent lands at the principal shoreline access parking area(s), signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restriction which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan: and 3. The public shoreline access plan shall also integrate where appropriate, any public access way(s) to interpretive trail system(s) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district." Additionally, the condition to develop a final comprehensive public access plan is reiterated within Condition 8 of SMA Use Permit No. 345 which states: "A final comprehensive public access plan, to be developed in consultation with community groups, shall be submitted to the Planning Director in conjunction with golf course plans submitted for plan approval review. The final comprehensive public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and shall include mauka-makai and lateral shoreline accesses; parking area(s), signage, emergency response considerations, restrictions on use (if any), provision - of recreational and restroom facilities at appropriate locations, and related improvements. Within one(1) year from the date of approval of the final comprehensive public access plan by the Planning Director, the Applicant shall apply for a Conservation District Use Permit, Special Management Area Use Permit and other applicable permits/approvals to allow for the implementation of the recommendations of the approved Plan." This plan being prepared, in part, to meet the requirements of Conditions "K" and "H" of Ordinances 96-7 and 96-8 and Condition 8 of SMA Use Permit No. 345. 5,2 Consistency with DLNR Regulations { The Villages at Hokukano Page 29 Shoreline Park Management and Public Access Plan The proposed land use is consistent with the identified land uses within the Limited (L) subzone of the State Conservation District, Section 13-5-23, HAR, which includes the following: o (L-2), Botanical gardens and private parks o (L-4), Landscaping and removal of noxious plants (L-7), Accessory structures This Plan is to be submitted to DLNR, with a Board permit application in meeting the management plan requirements for the proposed use within the Conservation District, Limited (L) subzone. 5.3 Consistency with Chapter 205A, MIS The proposed land use is also consistent with the objectives of the County's SMA, as delineated- within Section 9-6 of the County of Hawaii Planning Commission Rules of Practice and Procedures. The pertinent objectives are as follows: 1) Provide coastal recreational opportunities accessible to the public. 2) Protect, preserve, and where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture. 3) Protect, preserve, and where desirable, restore or improve the quality of the coastal scenic and open space resources. 4) Protect valuable coastal ecosystems from disruption and minimize adverse impacts on all _ coastal ecosystems.' In addition to meeting the conditions of regulatory approval listed within Section 5, this Plan is being submitted with an application for an SMA Use Permit to allow for the proposed Park uses within the County SMA The proposed use is supportive of the County's objectives for the coastal area by implementing a management program that provides for the safe enjoyment of the shoreline area in a manner that is protective of the natural and manmade historic and prehistoric resources that are present within the Park area. The Villages at Hokukano Page 30 - I Rules and Provisions Shoreline Park Management and Public Access Plan 1 .0 INTRODUCTION 1. 1 Purpose The purpose of these rules and provisions are to govern the use and protection of all lands and historical and natural resources within the Villages at Hokukano shoreline park (Park) area. 1.2 Definitions "Abandoned property" means any and all property, including personal property, items, materials, equipment, fixtures, motor vehicles, or vessels, that have been left unattended for a continuous period of more than twenty-four hours without the written permission of the park management (Management) or its authorized representative. "Animals" mean all animals, wild and domestic. Authorized representative" means any person authorized by the Management to act for the Management in the administration of these rules and regulations. "Camper" means any person engaged in a camping activity. "Camping" means remaining within a designated camping area during park closing hours or sleeping during nighttime hours on the premises or the use or occupation of the premises by one or more persons who remain or intend to remain on the premises between the hours of twelve midnight and one half hour before sunrise, except persons with special permits or other types or permits or authorization from the management or its authorized representative to remain on the premises for other purposes. The Villages at Hokukano Appendix A -Page A-I Rules and Provisions Shoreline Park Management and Public Access Plan "Motor whit]," means a motor vehicle of any type, inc_luding, but not limited to, automobiles, trucks, go-carts, motorcycles, motor scooters, mopeds, dune buggies, or ATVs, whether the vehicle is licensed or unlicensed. "Nude" means uncovered post-pubertal human genitals, pubic areas, or the nipple or areola of post-pubertal human female breasts. -Park area" or "Villages at Hokukano shoreline park" means property owned in fee by 1250 Oceanside Partners at North and South Kona, Hawail (portion of TMK 8-1-4: 03), which is designated within the State Conservation District and required by the County of Hawaii. under Conditions 8 and 10 of SMA Use Permit No. 345 and Condition H of Ordinance 96-8 and Condition K of Ordinance 96-7, to be established as a privately operated park; and that property owned in fee by the State of Hawai`i, TMK 7-9- 12:03. "Park management" or "management" means the management entity established by Oceanside 1250 or its legal designee, whic_h is responsible for the management, maintenance, security, and operation of the shoreline park area. "Premises" means any lands within the shoreline park area. "Picnic" means an outing with food provided by members of the group and eaten in the open. "Reasonable conduct" means behavior or activity that is fair, proper, just, moderate and suitable under the circumstances. Such behavior or activity may fairly, justly and reasonably be required of an individual or group of individuals while in the Park The Villages at Hokukano Appendix A-Page A-2 Rules and Provisions Shoreline Park Management and Public Access Plan "Recreational trailermeans a vehicle propelled by its own power or by some independent power and used as a dwelling. "Vehicle" means every device in, upon, or by which any person or property is or may be transported or drawn upon a roadway or highway, including mopeds, and other devices moved by human power. L3 Hours of Use The park may be used by the public only between the hours of 7:00 a.m. and 15 minutes after sunset daily; provided, however, that Management may issue night fishing, special use, or camping permits pursuant to Section 5 as specified herein. L4 Access 1.4. 1 Oceanside 1250 shall have the right to control or prevent access to the park by all persons whose presence in Management's judgement shall be adverse to the safety, character, or interests of the park or of users of the park 1.4.2 In case of invasion, mob riot, public excitement, or other commotion, Management reserves the right to prevent access to the park during the continuance of the same for the safety of park users and the protection of the property in the park 1.4.3 Persons violating the park rules and regulations may be denied subsequent use of the park by Management in its sole discretion, and may be subject to expulsion and penalties, as set forth in Section 4 herein described. The Villages at Hokukano Appendix A-Page A-3 Rules and Provisions Shoreline Park Management and Public Access Plan 1.5 Noise All activities conducted at the park shall not exceed a reasonable and prudent noise level, and in no event shall such activities exceed 60 DBA sound pressure level. L6 Hazardous Activities No activities shall be conducted in the park that are or may be unsafe or ha_.2rdous to any person or property. Management reserves the right to stop any activity within the park that it determines in its sole judgement, has become unsafe or a hazard. L7 Obstruction of Passageways No trails or passages in the park shall be obstructed or used for any purpose other than foot trail within the park, or ingress or egress from the park 1.8 Lost Articles Any person finding lost articles shall deposit them at the Management's • office, leaving their name and address. • 1.9 Intoxication Management reserves the fight to exclude from the park any person who, in Management's judgement, is intoxicated or under the influence of liquor or drugs so as to create a risk to persons or property and said person shall be subject to expulsion and penalties set forth in Section 4 herein. The Pillages at Hokukano Appendix A -PageA-4 Rules and Provisions Shoreline Park Management and Public Access Plan 1. 10 Standard of Reasonable Conduct Without limiting the generality of any of the park rules and regulations, any activities not covered hereby shall be subject to a standard of reasonable conduct. 1. 11 No Liability Neither management nor owner shall be liable for any damage or injury to anyone or anything that may occur as a result of enforcement or failure to enforce these park rules and regulations. 1. 12 Nonwaiver Failure to enforce these park rules and regulations on any occasion shall not be construed as a waiver and shall in no way affect Management's right to subsequently enforce these park rules and regulations. 1.13 Lifeguards Neither owner nor Management will be responsible for providing lifeguard services. 1 The Villages at Hokukano Appendix A -Page A-.5- Rules and Provisions Shoreline Park Management and Public Access Plan 2.0 REGULATED ACTIVITIES The following activities are allowed only in designated areas indicated by appropriate signage: 2. 1 Picnicking Picnicking or any outing with food provided by members of the group; provided, however, that a permit is obtained when required pursuant to Section 5 herein. 2.2 Fires All fires (I) shall be confined in barbeque pits designated and provided by Management; (ii) shall not be allowed to burn in a manner that may threaten surrounding shrubs, grass, trees, or other combustible matter, or endanger structures that could be burned, scorched or damaged; (iii) when no longer needed, shall be completely extinguished and coals shall be deposited in designated ash disposal pits provided by Management; (iv) shall not be left unattended. • 2.3 Parking All parking of motor or other vehicles shall only be in designate Park parking areas provided, however, that Management may direct persons utilizing the park through the issuance of a permit as set forth in Section 5 hereof, to park in areas other than those specifically designated for public parking. In the event of an infraction of this rule, violators shall be subject to expulsion and penalties set forth in Section 4 herein below, and Management shall be entitled to have the offending vehicle towed to the holding area of a towing service and to charge the owner or driver of the vehicle the full amount of the towing cost. The Villages at Hokukano AppendixA PageA-6 Rules and Provisions Shoreline Park Management and Public Access Plan 2.4 Access All vehicular and pedestrian ingress to and egress from the park shall be confined to access ways that have been designated for such purposes; provided, however, that Management may direct persons utilizing portions of the park through the issuance of a permit as set forth in Section 5 hereof, to utilize access ways other than those specific-ally designated for public use. The Pillages at Hokukano Appendirx. A-Page.4-7 Rules and Provisions Shoreline Park Management and Public Access Plan 3.0 PROHIBITED ACTIVITIES The following activities are prohibited in the park 3. 1 Alcoholic Beverages Possessing or drinking any alcoholic beverage, except in connection with public gatherings or special events for which permits have been issued in accordance with Section 5, hereinbelow. 3.2 Illegal Drugs Possessing or using narcotics, controlled substances, or any illegal drug. 3.3 Disorderly Conduct Disorderly conduct, including but not limited to, fighting, violent or tumultuous behavior, making unreasonable noise or offensive or abusive or threatening utterances or gestures. 3.4 Audio Devices Operating or using any electrical or battery powered audio device, including but not limited to, radios, tape recorders, television sets, amplified musical instruments, compact disc players, and noise producing devices such as electrical generating plants, or other equipment driven by motors or engines in a manner and at times that create excessive noise or annoyance to park users or others outside the park (see Section 1.5, Noise, hereof). The Villages at fiokukano Appendix A -Page A-8 Rules and Provisions Shoreline Park Management and Public Access Plan 3.5 Public Address Systems Operating or using public address systems, whether fixed or portable, or vehicle mounted, on land, water or roadways, except when the use or operation is in connection with public gatherings or special events for which permits have been issued by Management in accordance with Section 5 hereinbelow, or when the use is in conjunction with emergency or rescue operations. 3.6 Communication Equipment Installing or operating aerials, antennas, transmitting or radio, telephone, television or other communication equipment (except hand held portable devices, cellular phones or equipment within vehicles). 3.7 Camping Camping, unless specifically allowed by Management through the issuance of a permit, as set forth in Section 5 hereof. Camping Permits will provide for a maximum of three (3) nights and successive permits for a particular site must be separated by a minimum of one night. 3.8 Recreational Trailers Using recreational trailers or other camper units. 3.9 Closing Hours Remaining in the park between the closing hours of 15 minutes after sunset through 7:00 a.m. unless specifically permitted by Management through the issuance of a permit, as set forth in Section 5 hereof. The Villages at Hokukano Appendix A -Page A-9 . _ Rules and Provisions Shoreline Park Management and Public Access Plan 3. 10 Animals Bringing animals into the park, except properly leashed seeing-eye dogs accompanied by their masters shall be permitted. Running at large, herding, driving across, raising or grazing animals. 3. 11 Natural Resources 3. 1 1. 1 Molesting, disturbing, injuring, trapping, taking, catching, possessing, poisoning, introducing or killing any wild bird or animal or disturbing the habitat of any such bird or animal. 3.11.2 Gathering or collecting any natural product, including, but not limited to, sea shells, fruits, berries, flowers, seeds, pine cones, driftwood and pebbles for commercial uses or purposes. 3. 11.3 Destroying, digging, removing, or possessing any tree, shrub, or plant of any kind. 3.11.4 Destroying, disturbing, or mutilating any geological feature or digging or removing sand, earth, gravel, mineral, rock fossil, coral or any other substance. 3. 12 Bicycles,- Skateboards, Roller Skates, Roller Blades Riding bicycles, skateboards, or roller skates/blades. 3. 13 Horseback Riding Riding horses or any other animal. The Villages at Hokukano Appendix A -Page A-10 Rules and Provisions Shoreline Park Management and Public Access Plan 3A4 Motorized Vehicles 3.14.1 Except on park access roads and designated parking ams, driving or riding vehicles or motorized bikes, including, but not limited to, automobiles, trucks, vans, motorcycles, motor bikes, mopeds, scooters, ATVs, motorized go-carts or trail bikes, and in no event unlicensed vehicles other than those vehicles operated by the park management and used for park operation, management or maintenance. 3. 14.2 Leaving motor vehicles or other property unattended so as td interfere with the safe and orderly management and use of the park 3. 14.3 Abandoning motor vehicles (as defined in §290-1 of the Hawaii Revised Statutes, as amended) or other property (as defined in §171-1 of the Hawaii Revised statutes, as amended). 3J4.4 Operation of motorized hobby crafts such as aircraft, automobiles, and similar motorized vehicles. 3. 15 Gambling Gambling, betting, or wagering money on the outcome of a game or contest or other event. 3. 16 Aircraft 3. 16.1 Landing or launching of aircraft, including, but not limited to, airplanes, airships, balloons, gliders, hang gliders, helicopters, parachutes, dirigibles, and other similar means of conveyance. 3.16.2 Kite flying The Villages at liokukano Appenclix A -Page.4-I - 4 Rules and ProPisions Shoreline Park Management and Public Access Plan 3. 17 Men' Detectors Possessing or using a mineral or metal detector, magnetometer or other metal detecting device. 3. 18 Agricultural Activities Cultivating soil, planting or producing crops, farming, or any other agricultural activity; provided, however, that Management may conduct landscaping or other ongoing maintenance, cultural, demonstration or educational activities. 3.19 Nudity Nudity, which shall be defined as the uncovered post-pubertal human genitals, pubic areas, or the nipples or areola of post-pubertal human female breasts. 3.20 Golf Golfing, hitting or driving golf balls. 3.21 Firearms Possessing or using firearms, including, but not limited to, bow and arrows, crossbows, firearms, pellet or BB guns, power heads, bang sticks, slingshots, or other implements designed to discharge missiles. The Villages at Tiokukano Appendix A -Page A-12 Rules and Provisions Shoreline Park Management and Public Access Plan 3.22 Soliciting Soliciting, canvassing, begging or peddling of any kind, including, but not limited to, displaying merchandise, demanding or requesting gifts, money or services, or dispensing infounation. 3.23 Rubbish 3.23.1 Bringing, carrying or transporting garbage, trash, rubbish, refuse or waste from outside the park for deposit or dumping in the park 3.23.2 Burning of trash. 3.23.3 Draining or dumping garbage, trash, rubbish, refuse or waste other than in receptacles provided for these purposes. 3.23.4 Littering or scattering rubbish or other materials in places other than trash receptacles provided in the park 3.24 Electrical Equipment Using portable motor driven electrical generating plants, pumps, compressors, or other portable motor driven machines, except through the issuance of a permit by Management. 3.25 Explosives Possessing or using explosives, including, but not limited to, fireworks and firecrackers. The Villages at Hokukano Appendix A -Page A-13 Rules and Provisions Shoreline Park Management and Public Access Plan 3.26 Lodging Establishing a temporary or permanent lodging or residence other than that which may be established by Management and permitted by the State and County for the purpose of providing a caretakers' residence. 3.27 Boats 3.27. 1 Transporting, bringing or carrying boats (including sailboats, powerboats, canoes, kayaks, jet skis, and/or motorized rafts), or any other aquatic vehicles onto, into or through the park 3.27.2 Moving, tying, storing, repairing or cleaning any boat, canoe, raft or other vessel, except through the issuance of a permit by Management. 3.28 Water Pollution/Contarnination Polluting or contaminating any water used for drinking purposes, natural body of water, pools, ponds or the ocean. • 3.29 Toilet Facilities Urinating or defecating other than in the designated toilet facilities provided at the park The Villages at Hokukano Appendi3c A -Page 4-I4 Rules and Provisions Shoreline Park Management and Public Access Plan 3.30 Archaeological/Historical Resources 3.30. 1 Appropriating, damaging, removing, excavating, disfiguring, defacing or destroying objects of antiquity, prehistoric ruins and monuments; provided, however, that Management may permit, with the concurrence of the State Department of Land and Natural Resources, qualified persons or institutions to examine ruins, reestablish archaeologic-al sites, excavate archaeological sites or gather objects of antiquity for safe keeping. 3.30.2 Destroying, defacing, or removal of any natural or historic-al feature or natural or historical resource. 3.31 Monuments Installing any monument, memorial, tablet, or other commemorative installation. 3.32 Vandalism Intentionally or wantonly destroying, injuring, defacing, removing, disturbing • or possessing in any manner any geologic feature, objects of antiquity, prehistoric ruins, monuments or feature, public or private building, sign, equipment, monument, marker or other structure. The Villages at Hokukano Appendix A-Page A-15 Rules and Provisions Shoreline Park Management and Public Access Plan 4.0 PENALTIES 4. 1 Violation of Rules Any user or potential user of the park shall be subject to immediate exclusion and/or expulsion from the park if, in Management's sole deteunination: 4. 1. 1 A violation of the rules and regulations set forth herein has occurred. 4. 1.2 Such action is necessary to enforce any provision in the rules and regulations set forth in this document. 4. 1.3 Said user or potential user has failed to obey orders of park management personnel and/or orders of Federal, State or County law enforcement officers. 4.2 Pe. alties Any violation of these park rules and regulations shall subject the violator to: 4.2. 1 Civil and/or criminal liability for damages to public or private property and/or confiscation by appropriate governmental authorities of any prohibited materials, machines, tools, vehicles or equipment. 4.2.2 Permanent prohibition from future entry into and use of the park facilities. The Villages at Hokukano Appendix A -Page A-16 - 4 Rules and Provisions Shoreline Park Management and Public Access Plan PERMITS 5. 1 Classification of Permits Permits shall be required for the following uses and activities in the manner specified herein below: 5. 1.1 Group Use Permit: Any group larger than twenty-five members that desires to picnic in the park shall be required to obtain a Group Use Penait from Management. 5.1.2 Special Use Permit: Special uses shall be permitted only with a Special Use Permit issued by Management. Special uses are group functions, other than group picnics, considered compatible with the functions and purposes of each individual area, facility or unit of the park, including, but not limited to, assemblies, celebrations, festivals, gatherings, meetings, pageants, parades, public expressions of views, rallies, shows, weddings, filming or photog-raphy sessions and other community events or activities. 5. 1,2. 1 Before any motion picture film, video recording, television production, or sound track is made that involves the use of professional casts, models, settings, or crews, by any person other than bona fide newsreel or news television personnel, a Special Use Permit must be obtained from Management that shall be subject to teens and conditions set by Management. The Villages at Hokukano Appendix A -Page A-17 'Rules and Provisions Shoreline Park Maluzgernent and Public Access Plan 5. 1.2.2 Before any still photograph may be taken by a commercial photographer for commercial purposes, a special use permit must be obtained from Management that shall be subject to terms and conditions set by Management. 5. 1.3 Camping Permit: All persons, groups, organizations, or associations desiring to camp within the park area shall obtain a Camping Permit from the Management authorizing the use of specific camping areas. However, the following provisions shall apply to camping: 5.1.3. 1 Use of recreational trailers is prohibited within the park area. 5.1.3.2 The Management shall establish the location and term of the camping activity. 5.1.3.3 Installation or construction of permanent camping facilities is prohibited except by the Management with authorization from the Board of Land and Natural Resources. Digging or leveling of the ground at any campsite is prohibited. 5. I.3.5 Camping equipment shall be completely removed and the campsite cleaned before departure from the site. The Villages at Hokukano Appendix A -Page A-18 Rales and Provisions Shoreline Park Management and Public Access Plan 5. 1.4 Night Fishing Permit: Access to the park after dosing hours (after 15 minutes post sunset) for purposes of night fishing and/or spearing shall be permitted only with a Night Fishing Pei,itit issued by Management. 5.2 Authority to Use Permits Management shall have the exclusive authority to issue Group Use, Special Use, Camping, and Night Fishing Permits ("Permits"). Management shall be entitled to impose conditions upon the issuance of Pei,itits and/or may impose ari• administrative fee for requested Peiiitits. The following conditions shall apply to all Peimits: 5.2. 1 Permits shall be issued on a first come, first serve basis. 5.2.2 All responsible persons twenty-one years of age or older shall be eligible to secure Permits. 5.2.3 Permits shall be obtained by submitting an application in person or by mail to Management. 5.2.4 Requests for Group Use Permits and Special Use Permits shall be submitted to Management a maximum of thirty (30) days before the date of the use being requested and shall include the date, time, duration, nature and place of the proposed event, an estimate of the number of persons expected to attend, and a statement of equipment and facilities to be used in connection therewith. If the event is for the purpose of raising funds, a statement of how the profits will be used is required. Requests for Night Fishing Permits shall include the same information, but shall be submitted to Management a minimum of five (5) working days and a maximum of thirty (30) days before the date of the use being requested. The Villages at Hokukano Appendix A -Page A-19 i I Rules and Provisions Shoreline Park Managrinent and Public Access Plan Requests for Camping Permits shall include the same information, and shall be submitted to Management a minimum of five (5) working days and a maximum of thirty (30) days prior to the date of the use being requested. 5.2.5 Management shall have fifteen (15) days from receipt of an application for a Group Use Permit or Special Use Permit, five (5) f, days from receipt of an application for a Camping Permit, and three (3) days from receipt of an application for a Night Fishing Permit, to either grant or deny the application. 0 5.2.6 Permits shall not be transferrable. I 5.2.7 Persons or organizations to whom permits are issued (the permittee") are bound by the Permit conditions stipulated on or -,, attached to the permit, and any applicable Federal, State and County laws, ordinances and rules and regulations. ; 5.2.8 All permittees shall, upon request, show the Permit to any law enforcement officer, security personnel, or employee of Management. ,,- 5.2.9 Other procedures, terms and conditions deemed necessary by g Management may be adopted by Management in order to cnrry I out the provisions of this section, or any applicable Federal, State 1 and County laws, ordinances and rules and regulations. [,- k 5.2. 10 As a condition of granting a Permit by Management, the perraittee shall agree to hold the owner and Management harmless and _ indemnify Oceanside 1250 from any liability or damages resulting from the use of the park by the permittee or by any of the permittee's guests. Each Permit shall specifically provide the ',. following: The Pillages at Hokukano AppendixA -Page A-20 - 5 Rules and Provisions Shoreline Park Management and Public Access Plan "The permittee shall indemnify, defend and hold harmless owner and Management, its officers, directors, stockholders, attorneys, agents, servants, representatives, employees, corporate affiliates, predecessors and successors interest (collectively, the "indemnitees") from and against any and all past, present and future claims, actions, causes of action, suits at law or inequity, liabilities, demands, losses, decrees, judgements, awards, liens, costs, fees, damages, expenses (including attorneys' fees) and compensation of whatsoever kind or nature, resulting from, arising out of, connected with, or traceable either directly or indirectly to any and all matters relating to the use of the park by the permittee or by an of the permittee's guests. The permittee shall reimburse indemnitees or pay over to indemnitees immediately when due all judgements and claims for damages that indemnitees shall pay or become liable to pay by reason of such use of the park by the permittee or by any of the permittee's guests, and will make such payment to indemnitees as soon as indemnitees become liable therefore, whether or not indemnitees shall have paid out such or any part thereof." 5.2. 1 1 Permits shall set forth the day and time the permittee shall be allowed to remain in the park 5.2. 12 Management may require the permittee at the pennittee's own cost, to provide licensed security services, in the interest of public safety and welfare and for the protection of property. 5.2. 13 Requests for Permits shall each be considered on their own merits, including their effect on the park, facilities, and the public's use and enjoyment thereof. The Villages at llokukano Appendix A -Page A-2I Rules and Provisions Shoreline Park Management and Public Access Plan 5.2.14 The Permit may contain conditions relating to protection and use of the park area for the purposes for which it is maintained, and reasonable limitations on the size of the group, time and area within which the event is being permitted. 5.2, 15 The Permit may contain conditions relating to parking and access for the use being permitted. 5.3 Denial of Permit Applications An application for a Permit may be denied when: 5.3.1 The Park or Park facilities are dosed or will be dosed because of damages, or because of scheduled or ongoing construction, repairs or maintenance activities, dangerous weather conditions; County or State declared emergency or because of other reasons. 5.3.2 ,Natural or civil disturbances occur or threaten to occur, including, but not limited to, tsunamis, floods, earthquakes, storms, riots, and demonstrations. 5.3.3 There are inadequate facilities or space to accommodate the needs of the the applicant for the permit. 5.3.4 The applicant has a prior record of noncompliance with permit conditions or violations of park rules and regulations. 5.3.5 The event will present a clear and present danger to public health and safety. 5.3.6 A prior permit for the same time and place has been or will be granted. The Villages at Hokukano Appendix A -Page/1-22 Rules and Provisions Shoreline Park Management and Public Access Plan 5.3.7 The event will significantly interfere or conflict with the public's general use and enjoyment of the park. 5.3.8 The event will threaten, endanger, or disturb natural and historical resources of the park_ 5.3.9 Applications or requests for permits are not received by Management within the time periods specified in Section 5.2.4 • herein. 5.3. 10 • The proposed event includes activities that may be a violation Of any Federal, State or County law or ordinance. 5.4 Cancellation of Permit A Permit may be canceled or terminated at any time without advance notice when: 5.4. 1 A state of emergency is declared by Management or governmental authorities. 5.4.2 Natural or civil disturbances occur or threaten to occur, including, but not limited to, tsunamis, floods, earthquakes, stoims, riots, demonstrations and employee strikes. 5.4.3 A permittee creates a dear and present danger to public health and safety. 5.4.4 A pennittee violates permit conditions, provisions of these park rules and regulations, or any Federal, State or County law or ordinances. The Villages at Hokukano Appendix A -Page A-23 Etraft Covenants, Conditions and Restrictions 1. Introduction to the Park 1. Recitals 2. Creation of the Park 1. Intent 2. Duration 3. Governing Documents 3. Concepts and Definitions 4. Association 1. Purpose 2. Membership 3. Voting 4. Board of Directors • 5. Duties 6. Approval 'of Members 7. Non-Liability of Officers • 5. Easements 1. Blanket Easement 2. Easements of Encroachment 3. Easements for Utilities 4. Easements to Serve Additional Property 5. Right of Entry 6. Easements for Maintenance and Enforcement 7. Rights to Stormwater Runoff, Effluent and Water Reclamation 8. Easements for Floodwater 9. Easements for Use of Private Streets 10. Easements for Tax Exempt Organizations The Villages at Hokukano Appendix B-Page B--.1 Draft Covenants, Conditions and Restrictions 6. Assessments I. Budgets and Allocations 2. Reserves 3. Authority to Assess Owners 4. Time of Payment 5. Certificate of Payment 6. Declarant's Option to Fund Deficits 7. Regular Assessments 8. Uniform Assessments 9. Special Assessments 10. Revegetation & Restoration Easements 11. Historic Sites Easements 12. Failure to Assess 13. Exempt Property 14. Capitalization of Property 15. Personal Obligation 16. Lien for Assessments 17. Date of Commencement of Assessment Obligations 7. Insurance I. Authority to Purchase. 2. Association Responsibility 3. Non-Liability of Association, Board and Officers 4. Premiums 5. Claims 6. Benefit 8. Maintenance and Repair 1. Level of Maintenance Required 2. Association Responsibility 3. Responsibility for Repair and Replacement 4. Right of Access 5. Revegetation and Restoration The Villages at Hokukano Appendix B-Page 13-2 Draft Covenants, Conditions and Restrictions 9. Landscape 1. General Requirements for Prior Approval 2. Review 3. Design Guidelines and Procedures 4. No Waiver of Future Approvals 5. Variances 6. Limitation of Liability 7"sea Enforcementnd 10. ConductU 1. Framework for Regulation 2. Rule Making Authority 3. Owners Acknowledgment 4. Delegation of Use 5. Waiver of Use 6. Enforcement 7. Modification 11. Expansion/Annexation of the Park 1. Expansion by Declarant 2. Expansion by the Association 3. Additional Covenants and Easements 4. Effect of Filing Supplemental Declaration 12. Remedies 1. General Remedies 2. Agreement to Avoid Litigation 3. Claims 4. Mandatory Procedures 5. Enforcement of Resolution 6. Legal Action 7. Limitation on Owner's Liability The Villages at Hokukano Appendix B-Page B-3 Draft Covenants, Conditions and Restriclions 13. Amendment 1. Amendment of Declaration 2. Effect of Amendment 3. Required Approvals 4. Owner's Right to Amend 5. Validity and Effective Date of Amendments 14. Rights Reserved to Declarant 1. Construction of Improvements 2. Right to Use Common Area 3. Other Covenants Prohibited 4. Right to Approve Changes in Park Standards 5. Use of the Phrase "The Villages at Hokukano" 6. Right to Transfer or Assign Declarant Rights 15. Protection of Mortgagees 1. Notices of Action 2. No Priority 3. Notice to Association 4. No Personal Liability 16. Relationships with Other Entities 1. Relationship With Tax-Exempt Organizations 2. Cost Sharing with Non-Residential Properties 3. Conflicts 17. General Provisions 1. Notices 2. Captions and Exhibits 3. Severability The Villages at Hokukano Appendix B-Page B-1 Draft Covenants, Conditions and Restrictions 18. Changes in Common Area 1. Condemnation 2. No Partition 3. Dedication of Common Area 19. General Provisions 1. Power of Attorney 2. Gender 3. Public Dedication 4, Assignment 5. Force Majeure 6. Counterparts 20. Owner's Disclaimer of Representations The Villages at llokukano Appendix B-Page B-S s 1 WATER QUALITY AND MARINE LIFE MONITORING AND I MITIGATION PLAN - HOKCJKANO PROJECT SITE 1 J R. E . Brock 1 . 1 Introduction With any coastal development there exists the potential for negative impacts to occur to resident aquatic biota . These may be direct impacts , such as those that occur during coastal con- struction or they may be more indirect resulting from gradual , long-term disturbances , as may occur with non-point source dis- charges causing gradual but chronic impacts to the aquatic com- munity. Short-term impacts and potential mitigation measures are often addressed in detail through the EIS process , however , the long-term impacts can be overlooked . The County of Hawaii , recognizing the potential for long- term negative impacts to the nearshore marine environment result- ing from coastal development , has required developers to prepare and initiate monitoring and mitigation programs aimed at advert- ing these potentially chronic impacts . Recently, permit agenc- ies , developers and concerned citizens have come together and are in the process of outlining a protocol to be used in monitoring 1 water quality and marine biota of the West Hawaii coast to insure $ ( 1 ) standardization of methods thus allowing comparison of re- sults across projects and ( 2 ) use of the best and most cost effective available technology and techniques to insure the best protection possible for the resources . This resource management and protection plan has been developed utilizing the information and methodologies in the above draft protocol; these methods are generally accepted in the scientific community at the time this document was written. As techniques and methods improve and become accepted, they will be 2 incorporated into the monitoring and management strategy herein. The implementation of this plan cannot guarantee total resource protection and parties involved in the preparation of this plan shall not be held liable for any problem arising in the future with respect to plan implementation, the resource or to any in- dividual , corporation or other entity . It is expected that the developer , his assigns or owner/operator(s ) will employ only competent , professionally trained personnel to carry out the duties of the monitoring program. J A 1 . 2 Objectives The objectives of the water quality and marine life monitor- ing and mitigation plan are to meet conditions as may be stipul- ated in the County of Hawaii SMA permits that would be issued if this project proceeds . Specifically, this plan develops a water quality and marine life monitoring program that should insure the continued viability of the nearshore marine resources and water quality conditions as they presently exist on the Hokukano coast- line . The intent of the program is to avoid and prevent any activity that would result in negative impact to ground and mar- ine water quality as well as to nearshore marine biota . Because the marine waters fronting the Hokukano project site are Class AA waters as defined by the State Department of Health, they are to remain " . . . in their natural pristine state with an absolute mini- mum of pollution or alteration of water quality from any human- caused source or action" ( Hawaii Administrative Rules , Chapter 11-54-01 ) . Thus the objective of the monitoring program is to insure that these waters are not impacted by the proposed con- struction and subsequent maintenance of the improvements that the project proposes to develop. The maintenance of existing marine communities and water quality is a major goal of the program. To meet this goal and the above objectives , three activities must be completed . These activities are (a ) acquisition of comprehensive baseline inform- ation, (b) carrying out a monitoring eriod 1 of construction and for a period offive gyears ram hfollowing rough the ccomplet- ion of construction and ( c) having an approved mitigation plan in place to be used if problems arise . Quantitative baseline studies have been completed for both the water quality characteristics and the marine biota (see com- panion document ) . Monitoring will focus on selected chemical and biological parameters as stipulated by the Board of Health and the draft West Hawaii Wateri Quality and Marine Life Monitoring Protocol document . Water quality parameters to be routinely measured include nitrate nitrogen, ammonia nitrogen, total nitro- ` gen, orthophosphate, total phorphosus , silica, salinity, temper- ature , pH, oxygen, turbidity as well as the biological character- istics of chlorophyll-a and bacteria ( total coliform, fecal coli- form, streptococcus) . Marine community monitoring will include for fish determinations of the numbers of individuals of each species and estimates of biomass by species , coverage of all exposed macrobenthos ( corals , sponges , tunicates , sessile poly- chaetes , algae , etc . ) as well as counts of all diurnally exposed macroinvertebrates ._ All sampling will be conducted at permanent- , ly marked stations as stipulated in the State of Hawaii Depart- 2 s ment of Health Chapter 54 of Title 11 Administrative Rules . Insecticide and herbicides are monitored on an annual basis j in sediments and possibly in the tissues of specific species (as yet to be determined) . Sampling will focus on those specific compounds that have been previously used on the project site . Since the project site is undeveloped, baseline information on pesticides in sediments fronting the project site will be developed by use of organochlorine and organophosphorus screens I ( useful for determining the presence of more than 30 - different pesticides ) . In general , monitoring of water quality parameters will be carried out on a quarterly basis and the marine life studies will be done twice a year . Monitoring schedules may change depending on the activities occurring (see below) . Schedules as provided here should provide timely information regarding any change that may adversely impact the nearshore waters and communities resid- ent to them. Early detection of change afforded by the monitor- ing program will allow for timely implementation of appropriate mitigation measures to correct the problem( s ) . 1 . 3 Monitoring Plan Following completion of baseline studies , the monitoring f program will focus on delineating any change that may occur in measured water quality or marine community parameters . If stat- istically significant changes are noted , the mitigation plan is implemented . The monitoring program will use the same methods as employed in the baseline thus all data can be comparatively analyzed . Following the acquisition of baseline information, the monitoring program during construction will monitor water quality parameters on a quarterly basis at a minimum; this schedule may be increased as determined by permit agencies working with the monitoring program personnel . Unless a significant problem is encountered requiring prompt attention , reporting will be annually with a report developed to meet permit agency requirements . If a degradative problem is discovered through routine moni- toring , permit agencies ( County of Hawaii , Department of Land and Natural Resources , Department of Health, US Corps of Engineers , National Marine Fisheries Service and the US Fish and Wildlife Service) will be notified_ and corrective actions implemented . Degradative problems that will trigger notification of permit agencies and prompt corrective action include , ( 1 ) the finding of any herbicide or insecticide used on the premises in nearshore £. marine waters , ( 2 ) a statistically significant increase (over 3 P baseline data) of inorganic nutrient concentrations in nearshore marine waters , ( 3 ) a statistically significant decline in the quantitative measures of dominant marine species (such as coral coverage) that cannot be uniequivocally related to natural events such as storms , or ( 4 ) any other change in the nearshore marine communities fronting the Hokukano project site that in the prof- essional opinion of the monitoring program personnel warrants such notification. Notification will be made within 48 hours from the time of first detection. Notification of a problem to the developer and/or subsequent owner/operator( s ) as well as permit agencies will trigger approp- riate corrective measures . The cost of any corrective action( s ) will be borne by the developer , his assigns and/or the owner/operator ( s ) . As stated previously, only scientifically accepted methods for sampling and reporting will be used as now given in the draft West Hawaii Water Quality and Marine Life Monitoring Protocol; these may be subject to change as required by the County of Hawaii and other permit agencies . The environmental monitor will have the authority to modify techniques and protocols to meet changing resource protection needs . Any change to the present program and protocol must be approved by the Planning Director, County of Hawaii prior to implementation. 2 . 3 .a Phases in the Monitoring Program The water quality and marine life monitoring and mitigation plan will be undertaken in three phases that are related to the construction activities of the development . These are detailed below: Preconstruction Phase During the preconstruction phase which is in effect until commencement of construction, baseline information is assembled . The demarcation of a quantitative baseline allows one to identify impacts or measure change that may subsequently occur with development . The first step in devloping the baseline informat- ion has been accomplished ( see companion document) . During Construction Phase The developer will employ management practices as to avoid impacts to the quality of the groundwater or biota. Temporary settlement basins will be used where needed to reduce the possiblity of runoff occurring as durng a storm event . Permanent drainage systems will be developed to maximize percolation and 4 minimize stormwater runoff to the ocean. During construction, water quality monitoring will continue at a minimum quarterly schedule and the marine life monitoring will be semiannual ; this schedule may be increased if deemed necessary. It is probable that water quality monitoring could be increased to a monthly monitoring ( for specific criteria) and the monitoring of marine communities may remain at on a semiannual schedule . It is expected that pesticide sampling will remain on an annual schedule . The rationale for this approach is related to the findings to date on coastal development and impacts to ' aquatic communities on the West Hawaii coast . As noted in the companion baseline document , data from the large-scale , long-term development at Waikoloa suggests that the first detectable changes to occur are with changes in the chemistry of the ground- water . These changes are apparent well in advance of any change in the biota; thus an appropriate strategy in monitoring during construction is to focus first on statistically significant change in chemical parameters . If changes in water chemistry are noted, a search for quantitative change in the aquatic biota is made . The methods used in the monitoring will be identical to those used in the baseline studies . If discernible impacts are 1 evident , the mitigation plan is put into effect (see Section 1 . 4 ) . Post Construction i Following the termination of construction, the level of monitoring will be reduced to a quarterly sampling effort for water quality parameters and semiannually for marine communities . Pesticide sampling will continue on an annual cycle . All sampl- ing should continue for a period of five years following the termination of all construction in the area within lkm of the _ § shoreline . At the end of five years , the program will be review- ed by the permit agencies and a determination made as to the scale and frequency at which the program should continue . The goal of the post construction monitoring is to insure that no long-term change(s ) in water quality and marine communities occur that are attributable to the development . Reporting All monitoring activities will be presented in an annual 11 report to be submitted to interested permit agencies ( Hawaii 1 County Planning Department , Department of Health, Department of Land and Natural Resources , US Corps of Engineers, National Mar- ine Fisheries Service and the US . Fish and Wildlife Service) . 1 The frequency of reporting will be modified only if a change in a 5 1 1 water quality or biota is noted as described in Section 1 . 3 and corrective measures are implemented . Under those circumstances , reporting may be variable , occurring on an "as need" basis (prob- ably no greater than monthly) . Reports will be written with as much statistical and/or quantitative interpretation as is poss- ible with the extant data . Reports will be made available to any interest group, county, state or federal agency wishing to develop a regional or comprehensive database . i 1 1 . 4 Mitigation Plan If significant change occurs in water quality parameters a and/or marine biota offshore of the project site , the mitigation 1 plan would be implemented . The objective of this plan is to reverse detrimental impacts to aquatic communities ; as discussed 1 above, negative impacts to marine communities will probably be mediated through changes in water quality. Thus the mitigation o I plan focuses first on reversing detrimental water quality char- No acteristics if problems have arisen . The monitoring program will identify the problem (using comparative analysis of baseline information) ; the mitigation plan will attempt to reverse the problem and subsequently, the monitoring program will determine if the mitigation plan has been successful . If not , the process is reiterated . Monitoring schedules during the process of mitig- ation are expected to be increased until the problem(s ) is solved . This approach has been successfully used in the Waikoloa Anchialine Pond Preserve Program. During the construction phase , the water quality monitoring will be on a quarterly schedule at a minimum ; this level of effort will continue over into the post construction phase . Biological resource monitoring will be on a semiannual basis . If a problem is encountered which triggers a mitigative action, t monitoring will be increased to reflect a level consistent with understanding the changes occurring . The costs of these increas- ed efforts will be borne by the developer , his assigns or the owner/operator(s) . The steps to be followed in this plan include the identification of the problem, locating the source of the problem , and lastly, halting or modifying the activity at the source to alleviate the problem. The monitoring program will t determine if the effort has been successful . I A key to success in the mitigation plan lies with the coop- A eration of all parties concerned; personnel in the monitoring and management program must cooperate with the construction and later the grounds and maintenance personnel . This is particularly true for problems mediated by change in inorganic nutrient levels in the ground=water . A close working relationship between the monit- I oring program and construction and/or maintenance personnel pro- F ( 6 1 1 f I 1 vides the ingredients for a rapid response to environmental I problems as they arise . Rapid response serves to protect the environmental integrity of the site and nearshore waters fronting the project . Responsibility for the success of the mitigation program must ultimately lie with the developer and this respon- sibility should be included in the convenants if ownership changes . Similarly, costs incurred in any mitigative action must I be borne by the developer . Some change to marine communities is anticipated with the - development of the Hokukano parcel . Today access is limited and the structure ( i . e . , species richness , biomass , etc . ) of the nearshore fish communities reflect that . Fishing pressure in the 1 area is presently light but will increase with easy public access . The cause and effect relationship between exploitation and condition of the resource is difficult to quantitatively determine but is assumed to occur . Qualitatively these changes have been encountered at numerous areas of the West Hawaii coast ( Brock, personal observations ) ; they have not been linked with changes in the groundwater chemistry but rather with the ease of 1 access and thus increased resource exploitation. Because the monitoring program is quantitatively assessing both groundwater characteristics as well as fish community structure, the impact of exploitation may be quantitatively divisible in the dataset . 1 . 5 Funding • The cost of water quality and marine life monitoring program will be carried by the developer, his assigns or owner/oper- ator ( s ) . These costs shall include but not limited to those associated with routine monitoring and reporting as well as pro- viding funds for mitigative action on an "as need" basis . All tc F monies shall be provided to the monitorin k g program on a timely - F basis such that the sampling schedule of the program is not jeopardized . k I 1 { I i 7 I 1 f EXHIBIT 14 R-1091 STATE Or HAWAII BUREAU OF CONVEYANCES RECORDED DEC 29, 1999 03 :00 PM Doc No(s) 99-20626R !s/CART, T. WATANABE ACTING REGISTRAP OF CONVEYANCES LAND COURT SYSTEM I REGULAR SYSTEM Return by Pickup R To: Mail CARLSMITH BALL 1001 Bishop Street, Suite 2200 Honolulu, Hawaii 96813 Attention: Eric A. James Telephone: 523-2500 TITLE OF DOCUMENT: GRANT OF EASEMENT AND COVENANTS PARTIES TO DOCUMENT: GRANTOR: 1250 OCEANSIDE PARTNERS GRANTEE: COUNTY OF HAWAII 25 Aupuni Street Hilo, Hawaii 96720 TAX MAP KEY(S): (3)8-1-004:portion of 3 (This document consists of 36 pages.) EXHIBIT 14 GRANT OF EASEMENT AND COVENANTS of THIS INDENTURE, made this day of ci6Pi►' , 1999, by and between the 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, whose principal place of business and post office address is 78-6831 Alii Drive, Suite K-15, KaiIua- Kona, Hawaii 96740, hereinafter called "Grantor", and the COUNTY OF HAWAII, a political subdivision of the State of Hawaii, whose principal place of business and post office address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called "Grantee". WITNESSETH: WHEREAS, Grantor owns the fee simple title to the parcels of land described in Exhibits "A" and "B" attached hereto and made a part hereof; and WHEREAS, in connection with Grantee's approval of Ordinances 96-7 and 9- 68 of the County of Hawaii, and Special Management Area Use Permit No. 345, Grantor is required to satisfy certain public access conditions to Kainaliu Bay and its adjacent shoreline; and WHEREAS, in accordance to the above referenced Ordinances and Use Permit, Grantor has prepared, and Grantee has approved that certain Shoreline Park Manai4ement and Public Access Plan dated November, 1998 (the "Plan") relating to the development of the shoreline park area described therein (the "Park"); and WHEREAS, Grantor desires to satisfy the aforesaid public access conditions for the Park by granting to Grantee the easement rights herein granted, and undertaking the covenants set forth herein, upon and subject to the following terms and conditions. NOW, THEREFORE, this Indenture witnesseth that: 1. Grant of Easement. Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it paid, receipt whereof is hereby acknowledged, does hereby grant and convey unto the Grantee a perpetual nonexclusive easement for use by the general public for the purposes described in Sections 2 and 3 below, on the terms and conditions herein set forth, over, across and through the easement areas more particularly described in said Exhibit "A" ("Easement Area A") and in said Exhibit "B" ("Easement Area B"), both of which are attached hereto and incorporated herein by reference. TO HAVE AND TO HOLD the same unto the Grantee, its successors and assigns, forever. 2. Use of Easement Area A. Effective upon Grantor's completion of the Park Improvements (described in Section 4. below) (or portions thereof), Grantee and the general public shall have the right to use the portions of Easement Area A where such Park Improvements have been completed, subject to the limitations set forth herein, solely for the purpose of(i) ingress, egress to the portion of Easement Arca B where the Park Improvements have been completed, and (ii) parking of motor vehicles used for such purposes in the parking stalls provided for public use, as more fully shown on Exhibit "A-1". 3. Use of Easement Area B. Effective upon Grantor's completion of the Park Improvements (or portions thereof), Grantee and the general public shall have the right to use the portions of Easement Area B where such Park Improvements have been completed. subject to the limitations set forth herein, solely for recreational purposes in accordance with the Plan. Without limiting the foregoing, no portion of Easement Area B shall be used, pursuant to this Grant of Easement and Covenants, in any manner for vehicular purposes including without limitation, use by bicycles, mopeds, scooters, motorcycles or other wheeled vehicles. 4. Construction of Improvements. The Grantor shall construct on Easement Areas A and B the parking and other park improvements required by the teirirs and conditions of Paragraph K of County of Hawaii Ordinance No. 96-7 and Paragraph H of County of Hawaii Ordinance No. 96-8, as same may be amended from time to time (collectively the "Park Improvements"), within the time periods required by such Ordinances. Grantor will provide the Grantee with written notice as portions of the Park Improvements are completed, and upon such notification, such portions of the Park Improvements shall then be made available for use by Grantee and the general public as set forth in Sections 2 and 3 above. Prior to such notice, Grantee and the general public shall not have any right to use or otherwise go over, across or through the portions of Easement Areas A and B that have not been improved by Grantor as provided herein. 5. Maintenance of Easement Areas. The Grantor shall maintain Easement Areas A and B, including without limitation, the maintenance and repair of the Park Improvements. The Grantor shall have the right, from time to time, to delegate this maintenance responsibility to third parties including, without limitation, Hokuli'a Community Association, Inc., a Hawaii nonprofit corporation. 6. Grantor's Reservation of Rights. Grantor, its successors and assigns, shall retain and reserve the right to use Easement Areas A and B. before and after construction 4. of the Park Improvements, for purposes of installing or maintaining utilities or other improvements that may be located on, under or adjacent to said Easement Areas and to utilize said Easement Areas for purposes connected with the development and operation of the Hokuli'a planned community and the adjoining lands, as may be necessary or appropriate. 7. Control and Regulation of Easement Areas. The use of Easement Areas A and B by Grantee and the general public shall at all times be strictly in accordance with the Rules and Provisions attached hereto as Exhibit "C", as amended from time to time, and incorporated herein by reference ("Rules"). In the interest of preserving the safety, security, health and well being of all persons using Easement Areas A and B, and the adjacent lands and uses, the Grantor, or such entity as the Grantor may designate and appoint ("Management"), shall have the full right and authority to enforce the Rules in Easement Areas A and B, and to take all actions permitted in the Rules in the event of any violation of the Rules, or the terms of this Grant of Easement and Covenants, by any person or entity using Easement Areas A or B. The Grantor reserves the right to amend the Rules at any time, subject to the prior written approval of the Director of the County of Hawaii Planning Department, which approval may not be unreasonably withheld. 8. Restrictions on Access. Management shall have the right to control or prevent or limit access to portions of Easement Area B that, in Management's judgement, pose a danger to the public or that require protection from the public to preserve the area from overuse. Management shall also have the right to restrict access to Easement Area B during the periods that the public parking area shown on Exhibit "A-1" is full. Management shall 5. also have the right to control or prevent access to Easement Areas A or B in the event of a County or State declared emergency. 9. Statutory Authority. The Grantor and Grantee agree that this Grant of Easement and Covenants is intended to comply with Chapter 205A, as amended, of the Hawaii Revised Statutes. The Grantor and Grantee further agree that the general public's use of Easement Areas A and B for the purposes permitted hereunder constitutes use for "recreational purposes" within the meaning of the Hawaii Recreational Use Statute, Hawaii Revised Statutes Chapter 520. 10. Satisfaction of Conditions. The Grantee hereby acknowledges and agrees that the execution and delivery of this Grant of Easement and Covenants by the Grantor, and the Grantor's performance of its obligations hereunder, shall satisfy the public access conditions for the Park that are contained in County of Hawaii Ordinance Nos. 96-7 and 96-8, and Special Management Area Use Permit No. 345 issued to Grantor. This Grant of Easement and Covenants shall terminate automatically (a) if County of Hawaii Ordinance No. 96-7 or No. 96-8 is repealed, or ifthe lands described therein are otherwise rezoned, or (b) if Special Management Arca Use Permit No. 345 is revoked or rescinded. 11 . Abandonment. The Grantee may voluntarily abandon all or any portion of the Easement Areas, which abandonment may be accomplished by resolution of the Council of the County of Hawaii, and upon such abandonment the easement granted herein and the obligations imposed hereunder with respect to the Easement Areas or the portion thereof so abandoned and which has been described in said resolution shall thereupon term i nate. 6. 12. Clearing of Grantor's Title. In the event of abandonment or termination of this Grant, the Grantee will execute and acknowledge an appropriate instrument evidencing the same, in proper recordable form provided by Grantor. 13. Condemnation. In the event the Easement Areas shall be taken or condemned in whole or in part by any authority having the power of eminent domain, including the Grantee, the use of the Easement Areas allowed by this Grant of Easement and Covenants shall not be considered to be evidentiary of the value of the Easement Areas, and the Easement Areas shall have the same value as the land adjoining them, and all compensation and damages awarded on account of the condemnation or taking shall be payable to Grantor, without any apportionment to the Grantee. 14. Encumbrances. The Grantee will not commit or suffer any act or neglect whereby the Easement Areas shall at any time become subject to any attachment, judgment, lien, charge or encumbrance whatsoever, and will indemnify, defend and hold Grantor harmless from and against all loss, costs and expenses, including reasonable attorneys' fees with respect thereto. The Grantee shall promptly discharge or cause to be discharged every attachment,judgment, lien, charge or encumbrance of any nature that may be filed against the Easement Areas or on account of the Grantee's use of the Easement Areas. Should any claim or lien be filed against the Easement Areas, or any action or proceeding be instituted affecting the title to the Easement Areas, or imposing an obligation on Grantor to the knowledge of the Grantee, the Grantee shall give Grantor written notice thereof as soon as the Grantee obtains knowledge thereof. Notwithstanding the above, the restrictions against encumbrances contained herein shall not apply to any civil fines, liens or other assessments 7. made by Grantee against the Easement Areas based upon the failure of Grantor to comply with applicable permits, laws or regulations with respect to the Park. 15. Construction. The terms "Grantor" and "Grantee" as used herein shall mean and include the Grantor and Grantee above named, respectively, and their respective successors in trust, successors and assigns. The headings of the paragraphs herein are inserted only for convenience and reference and shall in no way define, describe or limit the scope or intent of any provision of this agreement. No party shall be deemed the drafter of this instrument. If this instrument is ever construed by a court of law, such court shall not construe this instrument or any provision hereof against any party as drafter. 16. Assignment. The Grantee's rights under this Grant of Easement and Covenants may not be assigned.. 17. Governing Law. This Grant of Easement and Covenants shall be governed by the laws of the State of Hawaii. 18. Modification. This Grant of Easement and Covenants shall not be modified except by an instrument in writing signed by Grantor and Grantee. 1 9. Entire Agreement. It is expressly understood and agreed that nothing in this Grant of Easement and Covenants or the use granted herein shall be construed to convey any rights to any person or persons, including the Grantee, by implication or otherwise, except to the extent expressly granted herein. S. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. 1250 OCEANSIDE PARTNERS By RED HILL 1250, INC. Its Genera 'artn-r _ 4 App By. RICHARD l . HUM•HREYS Its VICE—PRESIDENT "Grantor" APPROVED AS TO FORM: COUNTY OF HAWAII 74-42( Byqty Corporatio ouns- I Mayor �1 ssT. "Grantee" STATE OF HAWAII ) �._r�, ) ss. t CITY AND COUNTY OF i ,i • • ) On this ft_ � t day of__`,0 ;r.DOr , 1999, before me personally appeared P c('v( 3 t 4,..i-A-,,,,,,,,S , to me personally known/proved to me on the basis of satisfactory evidence, who, being by me duly sworn or affirmed, did say that such person executed the foregoing instrument as the free act and deed of such person, and if applicable in the capacity shown, having been duly authorized to execute such instrument in such capacity. (S.Cq r - -, I (--4 1 •0,00. PlipeYtt,(1) -TAati".A *� ��"t� \ Name: `? 0M, c; C�k'; i •�� 1�.0C.�t r Notary Public, State of Hawaii ia �P � ���NIpIH11�AN My commission expires: r\ior, 1 ) E, cc-') STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this l$��day of nb , 19x9 before me3-«NE...S• "��l a duly commissioned and sworn Notary Public in and for the State of Hawaii, personally appeared STEPHEN K. YAMASHIRO, to me personally known, who, being by me duly sworn, did say that he is the Mayor of the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of said COUNTY OF HAWAII; that the foregoing instrument was signed and sealed on behalf of the COUNTY OF HAWAII by authority given to said Mayor of the County of Hawaii by Section 5-1.3(g) of the County Charter, County of Hawaii (1991), as amended; and said STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed of said COUNTY OF HAWAII. In witness whereof I have hereunto set my hand and affixed my official seal on the day and year last above written. [Seal] (�5 t • '1 &p.irrui) Ntary "ublic, State of Hawaii . • mission expires: Uut\I . 11, ��C> 6Lczcif . kecfm, I DESCRIPTION Hokuli'a Shoreline Park Easement A Being a portion of Grant 1651 to Charles Hall Situated at Hokukano 1st and 2n°, North Kona, Island of Hawaii, Hawaii Beginning at the Northeast corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,863.08 feet North and 1,932.01 feet West, thence running by azimuths measured clockwise from True South: 1. 63° 00' 146.46 feet along the remainder of Grant 1651 to Charles Hall; 2. 26° 00' 214.09 feet along the remainder of Grant 1651 to Charles Hall; 3. 343° 30' 45.00 feet along the remainder of Grant 1651 to Charles Hall; 4. 77° 00' 310.00 feet along the remainder of Grant 1651 to Charles Hall; Thence along Shoreline (Vegetation Line) as of February 10, 1984, the direct azimuth and distance between points being: 5. 188° 25' 50" 397.97 feet; 6. 272° 45' 455.80 feet along Hokukano Village to the point of beginning and containing an Area of 2.59 Acres, more or less. Note: Description compiled from available data. CUAlk <ei 680 Ala Moana Boulevard 0 LICENSED BELT COLLINS HAWAII LTD. First Floor PROFESSIONAL g• Honolulu, Hawaii 96813 LAND SURVEYOR December 3, 1999 * N . 4188 '11/4 Licensed Professional Land Sury-yor All 0.3:/ Certificate Number 4188 Exhibit A Page 1 of 2 Together with non-exclusive easements for access purposes over and across Roadway Lots 14, 15, 16, and 17, inclusive, and Easement Area 14, as shown on File Plan No. , filed in the Bureau of Conveyances of the State of Hawaii, Exhibit A Page 2 of 2 1344944.1.051730-3 ,„i4,.. "it, 1111,111j AR /1111 r 1 1 Mill —""'"""---'4w*w -- Wil ANNAN. Map 1111 ila i01:441110,all."-ritifflitlinenni bar( vitiw#, ff.-0_001sitat in vt aw `####.4‘41.4**4*111/81 mg, #0,1-40/411L-4/1 plAwkvirratif ----iii _ iiiiiim-grcr4....01, Mil 7 EASEMENT B �/:' - NW EXCLUSION(Old Trail) :477,PART 1 t`"'"'""''..fig''"'" 'T'''' State of Hawaii(owner) Patricia K.Wall ::•:•••••••••••••:•:-:.•:::..7:.:-:::::-.•:•:•.•.,::,, ' ;: ;;'.E�;::::;::;•:`;"•a (Owner) ` ......................... State of Hawaii ......................... (Owner) : � :: ... EASEMENT A $ E A EASEMENT B,PART 2 HOKULI'A SHORELINE PARK EASEMENTS DECEMBER 6, 1999 LEGEND `\A� EASEMENT A u 1600 800 0 1600 EASEMENT B EXHIBIT A-1o NO`TH GRAPHIC SCALE:1 In.21600 8 DESCRIPTION Hokuli'a Shoreline Park Easement B, Part 1 Being a portion of Grant 1651 to Charles Hall Situated at Hokukano 1" and Honuaino 4`", North Kona, Island of Hawaii, Hawaii Beginning at the South corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 3,386.18 feet North and 1,381.18 feet West, thence running by azimuths measured clockwise from True South: 1. 193° 00' 384.67 feet along "Hokukano Village"; 2. 275° 46' 30" 146.99 feet along the remainder of Grant 1651 to Charles Hall; 3. 180° 50' 207.12 feet along the remainder of Grant 1651 to Charles Hall; 4. 92° 50' 30" 103.81 feet along the remainder of Grant 1651 to Charles Hall; 5. 193° 00' 80.00 feet along "Hokukano Village" to Shoreline (Vegetation Line) as of February 10, 1984; Thence along Shoreline (Vegetation Line) as of February 10, 1984, the direct azimuth and distance between points being: 6. 200° 50' 37" 719.11 feet; 7. 266° 10' 60.01 feet along the remainder of Grant 1651 to Charles Hall; 8. 176° 10' 101.90 feet along the remainder of Grant 1651 to Charles Hall; 9. 266° 10' 207.41 feet along the remainder of Grant 1651 to Charles Hall; 10. 1 ° 00' 307.60 feet along the remainder of Grant 1651 to Charles Hall; 11. 18° 00' 497.68 feet along the remainder of Grant 1651 to Charles Hall; 12. 30° 19' 324.00 feet along the remainder of Grant 1651 to Charles Hall; Exhibit B Page 1 of 7 13. 42° 00' 513.00 feet along the remainder of Grant 1651 to Charles Hall to the point of beginning and containing an Area of 7.67 acres, more or less. Note: Description compiled from available data. � CUNtii 680 Ala Moana Boulevard e- 1,,,y BELT COLLINS HAWAII LTD. First Floor p� LICENSED Honolulu, Hawaii 96813 ct PROFESSIONAL �� LAND December 3, 1999 * SURVEYOR * %/ Z-/2. _ No. 4188 Licensed Professional La 'd •urveyor y-111/4Il, USP Certificate Number 4188 Exhibit B Page 2 of 7 DESCRIPTION Hokuli'a Shoreline Park Easement B, Part 2 Being all of Grant 13,000 to Maud A. Greenwell and portions of Grant 1651 to Charles Hall, Grant 1745 to John Cavanagh, Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions And Royal Patents 4386 and 7146, Land Commission Award 8452, Apana 11 to A. Keahokalole Situated at Hokukano 1" and 2"d, Kanaueue 1st and 2', Halekii, Keekee 1st and 2', Ilikahi, Kanakau Viand 2' Kalukalu 1st 2"d and 3rd and Onouli 1st North Kona and South Kona, Island of Hawaii, Hawaii Beginning at the Northeast corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,561 .02 feet North and 2,143.58 feet West, thence running by azimuths measured clockwise from True South: 1. 343° 30' 411.00 feet along the remainder of Grant 1651 to Charles Hall; 2. 348° 20' 1,123.00 feet along the remainder of Grant 1651 to Charles Hall; 3. 317° 00' 256.00 feet along the remainder of Grant 1651 to Charles Hall; 4. 300° 00' 641.00 feet along the remainder of Grant 1651 to Charles Hall; 5. 316° 00' 441.00 feet along the remainder of Grant 1651 to Charles Hall; 6. 282° 00' 259.00 feet along the remainder of Grant 1651 to Charles Hall; 7. 260° 00' 573.00 feet along the remainder of Grant 1651 to Charles Hall; 8. 247° 00' 304.00 feet along the remainder of Grant 1651 to Charles Hall; 9. 232° 00' 205.00 feet along the remainder of Grant 1651 to Charles Hall; 10. 329° 00' 221.00 feet along the remainder of Grant 1651 to Charles Hall; Exhibit B Page 3 of 7 11. 359° 00' 543.00 feet along the remainders of Grant 1651 to Charles Hall and R.P. 1670 to John D. Parish on a portion of L.C. Aw. 387, Part 4, Section 2 to A.B.C.F.M.; 12. 1 ° 00' 353.00 feet along the remainder of Grant 1745 to John Cavanagh; 13. 335° 00' 489.00 feet along the remainder of Grant 1745 to John Cavanagh; 14. 2° 42' 30" 1,190.00 feet along the remainder of Grant 1745 to John Cavanagh; 15. 355° 16' 440.00 feet along the remainder of Grant 1745 to John Cavanagh; 16. 341 ° 20' 606.00 feet along the remainder of Grant 1745 to John Cavanagh; 17. 351 ° 27' 400.00 feet along the remainder of Grant 1745 to John Cavanagh; 18. 2° 19' 313.00 feet along the remainders of Grant 1745 to John Cavanagh and R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 19. 332° 30' 327.00 feet along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 20. 340° 51' 628.00 feet along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 21. 329° 00' 452.00 feet along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole; 22. 340° 00' 180.00 feet, more or less, along the remainder of R.P. 4386 and 7146, L.C. Aw. 8452, Apana 11 to A. Keohokalole to a stonewall; Thence along stonewall, along Grant 2862 to Awahua to Highwater Mark at Seashore, the direct azimuth and distance between points being: 23. 50° 19' 161.21 feet; Thence along Highwater Mark at Seashore for the next two (2) courses, the direct azimuths and distances between points being: 24. 148° 45' 15" 1,704.39 feet; Exhibit B Page 4 of 7 25. 169° 44' 25" 1,429.95 feet; Thence along top of bluff for the next nine (9) courses, the direct azimuths and distances between points being: 26. 161 ° 12' 287.21 feet to a spike in concrete; 27. 91 ° 49' 84.67 feet; 28. 35° 01' 110.10 feet; 29. 80° 35' 70.00 feet; 30. 161 ° 50' 115.00 feet; 31. 197° 15' 70.00 feet; 32. 164° 50' 65.00 feet; 33. 239° 50' 110.00 feet; 34. 320° 35' 50.00 feet; 35. 247° 25' 60.00 feet to top of bluff; Thence along top of bluff for the next six (6) courses, the direct azimuths and distances between points being: 36. 199° 50' 85.00 feet; 37. 225° 20' 210.00 feet; 38. 181 ° 15' 135.00 feet; 39. 190° 10' 145.00 feet; 40. 201 ° 45' 115.00 feet; 41. 177° 26' 129.60 feet; 42. 87° 00' 10.00 feet to Highwater Mark at Seashore; Thence along Highwater Mark at Seashore for the next two (2) courses, the direct azimuths and distance between points being: 43. 159° 45' 125.00 feet; 44. 136° 55' 165.00 feet; 45. 67° 25' 50.00 feet to a point at Highwater Mark at Seashore; Thence along Highwater Mark at Seashore, the direct azimuth and distance between points being: 46. 147° 58' 78.30 feet; 47. 175° 30' 15.00 feet along Government Reserve; 48. 74° 40' 108.60 feet along Government Reserve; Exhibit B Page 5 of 7 49. 352° 40' 20.00 feet along Government Reserve to Highwater Mark at Seashore; Thence along Highwater Mark at Seashore, the direct azimuth and distance between points being: 50. 105° 05' 275.00 feet; 51. 252° 30' 45.00 feet to top of bluff; Thence along top of bluff for the next three (3) courses, the direct azimuths and distances between points being: 52. 146° 35' 89.90 feet; 53. 157° 10' 120.00 feet; 54. 101 ° 30' 166.40 feet; 55. 253° 38' 2.90 feet to Shoreline (Vegetation Line) as of February 10, 1984; Thence along Shoreline (Vegetation Line) as of February 10, 1984, for the next six (6) courses, the direct azimuths and distances between points being: 56. 184° 46' 30" 245.93 feet; 57. 146° 26' 06" 704.73 feet; 58. 133° 48' 40" 1,078.20 feet; 59. 123° 45' 55" 1,152.88 feet; 60. 175° 19' 20" 805.52 feet; 61. 166° 46' 43" 762.75 feet; 62. 257° 00' 310.00 feet along the remainder of Grant 1651 to Charles Hall to the point of beginning and containing a Gross Area of 108.09 Acres, more or less, and a Net Area of 104.71 Acres, more or less, after excluding and deducting the following: L.C. Aw. 7035, Apana 2 to Kaiwaiwa (TMK 8-1-04:6) 0.14 Acre L.C. Aw. 7197, Apana 2 to Kamahele (TMK 8-1-04:7) 0.18 Acre L.C. Aw. 7210, Apana 2 to Kini (TMK 8-1-04:8) 0.08 Acre L.C. Aw. 7212, Apana 2 to Kaiaino (TMK 8-1-04:18) 0.17 Acre L.C. Aw. 8157-C, Apana 2 to Kamakahiona (TMK 8-1-04:16) 0.22 Acre L.C. Aw. 8157-BB to Kalamala (TMK 8-1-04:9) 0.17 Acre L.C. Aw. 8157-E, Apana 2 to Kamaheaiku (TMK 8-1-04:17) 0.10 Acre Exhibit B Page 6 of 7 L.C. Aw. 8455-C, Apana 2 to Kuluiki (TMK 8-1-04:11) 0.25 Acre L.C. Aw. 8455-E, Apana 2 to Pauole (TMK 8-1-04:12) 0.70 Acre L.C. Aw. 8455-F, Apana 2 to lalua (TMK 8-1-04:13) 0.50 Acre L.C. Aw. 8455-G, Apana 1 to Makauwaa (TMK 8-1-04:14) 0.07 Acre L.C. Aw. 8455-H, Apana 2 to Makole (TMK 8-1-04:19) 0.35 Acre L.C. Aw. 8455-I to Nawai (TMK 8-1-04:15) 0.22 Acre L.C. Aw. 9753-B, Apana 2 to Paiwa (TMK 8-1-04:20) 0.23 Acre TOTAL = 3.38 Acres Note: Description compiled from available data. P:-2U ' NSED 680 Ala Moana Boulevard Qj' BELT COLLINS HAWAII LTD. First Floor CSSIONHonolulu, Hawaii 96813 AND 418g December 3, 1999 4188icensed Professional Land Sur, U 5 P Certificate Number 4188 Exhibit B Page 7 of 7 EXHIBIT C Park Rules and Procedures I. INTRODUCTION A. Purpose The purpose of these rules and provisions are to govern the use and protection of all lands and historical and natural resources within the Hokuli'a shoreline park (Park) area. B. Definitions "Abandoned property" means any and all property, including personal property, items, materials, equipment, fixtures, motor vehicles, or vessels, that have been left unattended for a continuous period of more than twenty-four hours without the written permission of the park management (Management) or its authorized representative. "Animals" mean all animals, wild and domestic. "Authorized representative" means any person authorized by the Management to act for the Management in the administration of these rules and regulations. "Camper" means any person engaged in a camping activity. "Camping" means remaining within a designated camping area during park closing hours or sleeping during nighttime hours on the premises or the use or occupation of the premises by one or more persons who remain or intend to remain on the premises between the hours of twelve midnight and one half hour before sunrise, except persons with special permits or other types or permits or authorization from the management or its authorized representative to remain on the premises for other purposes. "Motor vehicle" means a motor vehicle of any type, including, but not limited to, automobiles, trucks, go-carts, motorcycles, motor scooters, mopeds, dune buggies, or ATVs, whether the vehicle is licensed or unlicensed. "Park area" or "Hokuli'a shoreline park" means property owned in fee by 1250 Oceanside Partners that is described in Exhibits A and B of the Grant of Easement and Covenants to which these rules are attached. "Park management" or "management" means the management entity established by 1250 Oceanside or its legal designee, which is responsible for the management, maintenance, security, and operation of the shoreline park area. 2. "Premises" means any lands within the shoreline park area. "Picnic" means an outing with food provided by members of the group and eaten in the open. "Reasonable conduct" means behavior or activity that is fair, proper,just, moderate and suitable under the circumstances. Such behavior or activity may fairly,justly and reasonably be required of an individual or group of individuals while in the Park. "Recreational trailer" means a vehicle propelled by its own power or by some independent power and used as a dwelling. "Vehicle" means every device in, upon, or by which any person or property is or may be transported or drawn upon a roadway or highway, including mopeds, and other devices moved by human power. "1250 Oceanside" or "Owner" shall mean 1250 Oceanside Partners, the Fee Owner of the Park area, and its successors and assigns. C. Hours of Use The park may be used by the public only between the hours of 7:00 a.m. and 15 minutes after sunset daily; provided, however, that Management may issue night fishing, special use, or camping permits pursuant to Section 5 as specified herein. D. Access 1. 1250 Oceanside shall have the right to control or prevent access to the park by all persons whose presence in Management's judgement shall be adverse to the safety, character, or interests of the park or of users of the park. 2. In case of invasion, mob riot, public excitement, or other commotion, Management reserves the right to prevent access to the park during the continuance of the same for the safety of park users and the protection of the property in the park 3. Persons violating the park rules and regulations may be denied subsequent use of the park by Management in its sole discretion, and may be subject to expulsion and penalties, as set forth in Section 4 herein described. E. Noise 3. All activities conducted at the park shall not exceed a reasonable and prudent noise level, and in no event shall such activities exceed 60 DBA sound pressure level. F. Hazardous Activities No activities shall be conducted in the park that are or may be unsafe or hazardous to any person or property. Management reserves the right to stop any activity within the park that it determines in its sole judgement, has become unsafe or a hazard. G. Obstruction of Passageways No trails or passages in the park shall be obstructed or used for any purpose other than foot trail within the park, or ingress or egress from the park. H. Lost Articles Any person finding lost articles shall deposit them at the Management's office, leaving their name and address. I. Intoxication Management reserves the right to exclude from the park any person who, in Management's judgement, is intoxicated or under the influence of liquor or drugs so as to create a risk to persons or property and said person shall be subject to expulsion and penalties set forth in Section IV herein. J. Standard of Reasonable Conduct Without limiting the generality of any of the park rules and regulations, any activities not covered hereby shall be subject to a standard of reasonable conduct. K. No Liability Neither management nor owner shall be liable for any damage or injury to anyone or anything that may occur as a result of enforcement or failure to enforce these park rules and regulations. L. Nonwaiver Failure to enforce these park rules and regulations on any occasion shall not be construed as a waiver and shall in no way affect Management's right to subsequently enforce these park rules and regulations. 4. M. Lifeguards Neither owner nor Management will be responsible for providing lifeguard services. IL REGULATED ACTIVITIES The following activities are allowed only in designated areas indicated by appropriate signage: A. Picnicking Picnicking or any outing with food provided by members of the group; provided, however, that a permit is obtained when required pursuant to Section V herein. B. Fires All fires (i) shall be confined in barbeque pits designated and provided by Management; (ii) shall not be allowed to burn in a manner that may threaten surrounding shrubs, grass, trees, or other combustible matter, or endanger structures that could be burned, scorched or damaged; (iii) when no longer needed, shall be completely extinguished and coals shall be deposited in designated ash disposal pits provided by Management; (iv) shall not be left unattended. C. Parking All parking of motor or other vehicles shall only be in designate Park parking areas provided, however, that Management may direct persons utilizing the park through the issuance of a permit as set forth in Section V hereof, to park in areas other than those specifically designated for public parking. In the event of an infraction of this rule, violators shall be subject to expulsion and penalties set forth in Section IV herein below, and Management shall be entitled to have the offending vehicle towed to the holding area of a towing service and to charge the owner or driver of the vehicle the full amount of the towing cost. D. Access All vehicular and pedestrian ingress to and egress from the park shall be confined to access ways that have been designated for such purposes; provided, however, that Management may direct persons utilizing portions of the park through the issuance of a permit as set forth in Section V hereof, to utilize access ways other than those specifically designated for public use. III. PROHIBITED ACTIVITIES 5. The following activities are prohibited in the park: A. Alcoholic Beverages Possessing or drinking any alcoholic beverage, except in connection with public gatherings or special events for which permits have been issued in accordance with Section V, hereinbelow. B. Illegal Drugs Possessing or using narcotics, controlled substances, or any illegal drug. C. Disorderly Conduct Disorderly conduct, including but not limited to, fighting, violent or tumultuous behavior, making unreasonable noise or offensive or abusive or threatening utterances or gestures. D. Audio Devices Operating or using any electrical or battery powered audio device, including but not limited to, radios, tape recorders, television sets, amplified musical instruments, compact disc players, and noise producing devices used as electrical generating plants, or other equipment driven by motors or engines in a manner and at times that create excessive noise or annoyance to park users or others outside the park (see Section I.E, Noise, above). E. Public Address Systems Operating or using public address systems, whether fixed or portable, or vehicle mounted, on land, water or roadways, except when the use or operation is in connection with public gatherings or special events for which permits have been issued by Management in accordance with Section V hereinbelow, or when the use is in conjunction with emergency or rescue operations. F. Communication Equipment Installing or operating aerials, antennas, transmitting or radio, telephone, television or other communication equipment(except hand held portable devices, cellular phones or equipment within vehicles). G. Camping 6. Camping, unless specifically allowed by Management through the issuance of a permit, as set forth in Section V hereof. Camping Permits will provide for a maximum of three (3) nights and successive permits for a particular site must be separated by a minimum of one night. H. Recreational Trailers Using recreational trailers or other camper units. I. Closing Hours Remaining in the park between the closing hours of 15 minutes after sunset through 7:00 a.m. unless specifically permitted by Management through the issuance of a permit, as set forth in Section V hereof. J. Animals Bringing animals into the park, except properly leashed seeing-eye dogs accompanied by their masters shall be permitted. Running at large, herding, driving across, raising or grazing animals. K. Natural Resources 1. Molesting, disturbing, injuring, trapping, taking, catching, possessing, poisoning, introducing or killing any wild bird or animal or disturbing the habitat of any such bird or animal. 2. Gathering or collecting any natural product, including, but not limited to, sea shells, fruits, berries, flowers, seeds, pine cones, driftwood and pebbles for commercial uses or purposes. 3. Destroying, digging, removing, or possessing any tree, shrub, or plant of any kind. 4. Destroying, disturbing, or mutilating any geological feature or digging or removing sand, earth, gravel, mineral, rock fossil, coral or any other substance. L. Bicycles, Skateboards, Roller Skates, Roller Blades Riding bicycles, skateboards, or roller skates/blades. M. Horseback Riding 7. Riding horses or any other animal. N. Motorized Vehicles 1. Except on park access roads and designated parking areas, driving or riding vehicles or motorized bikes, including, but not limited to, automobiles, trucks, vans, motorcycles, motor bikes, mopeds, scooters, ATVs, motorized go-carts or trail bikes, and in no event unlicensed vehicles other than those vehicles operated by the park management and used for park operation, management or maintenance. 2. Leaving motor vehicles or other property unattended so as to interfere with the safe and orderly management and use of the park. 3. Abandoning motor vehicles (as defined in '290-1 of the Hawai'i Revised Statutes, as amended) or other property (as defined in '171-1 of the Hawai'i Revised statutes, as amended). 4. Operation of motorized hobby crafts such as aircraft, automobiles, and similar motorized vehicles. O. Gambling Gambling, betting, or wagering money on the outcome of a game or contest or other event. P. Aircraft 1. Landing or launching of aircraft, including, but not limited to, airplanes, airships, balloons, gliders, hang gliders, helicopters, parachutes, dirigibles, and other similar means of conveyance. 2. Kite flying Q. Metal Detectors Possessing or using a mineral or metal detector, magnetometer or other metal detecting device. R. Agricultural Activities Cultivating soil, planting or producing crops, farming, or any other agricultural activity; provided, however, that Management may conduct landscaping or other ongoing maintenance, cultural, demonstration or educational activities. 8. S. Nudity Nudity, which shall be defined as the uncovered post-pubertal human genitals, pubic areas, or the nipples or areola of post-pubertal human female breasts. T. Golf Golfing, hitting or driving golf balls. U. Firearms Possessing or using firearms, including, but not limited to, bow and arrows, crossbows, firearms, pellet or BB guns, power heads, bang sticks, slingshots, or other implements designed to discharge missiles. V. Soliciting Soliciting, canvassing, begging or peddling of any kind, including, but not limited to, displaying merchandise, demanding or requesting gifts, money or services, or dispensing information. W. Rubbish 1. Bringing, carrying or transporting garbage, trash, rubbish, refuse or waste from outside the park for deposit or dumping in the park. 2. Burning of trash. 3. Draining or dumping garbage, trash, rubbish, refuse or waste other than in receptacles provided for these purposes. 4. Littering or scattering rubbish or other materials in places other than trash receptacles provided in the park. X. Electrical Equipment Using portable motor driven electrical generating plants, pumps, compressors, or other portable motor driven machines, except through the issuance of a permit by Management. Y. Explosives Possessing or using explosives, including, but not limited to, fireworks and firecrackers. 9. Z. Lodging Establishing a temporary or permanent lodging or residence other than that which may be established by Management and permitted by the State and County for the purpose of providing a caretakers' residence. AA. Boats 1. Transporting, bringing or carrying boats (including sailboats, powerboats, canoes, kayaks,jet skis, and/or motorized rafts), or any other aquatic vehicles onto, into or through the park. 2. Moving, tying, storing, repairing or cleaning any boat, canoe, raft or other vessel, except through the issuance of a permit by Management. BB. Water Pollution/Contamination Polluting or contaminating any water used for drinking purposes, natural body of water, pools, ponds or the ocean. CC. Toilet Facilities Urinating or defecating other than in the designated toilet facilities provided at the park. DD. Archaeological/Historical Resources 1. Appropriating, damaging, removing, excavating, disfiguring, defacing or destroying objects of antiquity, prehistoric ruins and monuments; provided, however, that Management may permit, with the concurrence of the State Department of Land and Natural Resources, qualified persons or institutions to examine ruins, reestablish archaeological sites, excavate archaeological sites or gather objects of antiquity for safe keeping. 2. Destroying, defacing, or removal of any natural or historical feature or natural or historical resource. EE. Monuments Installing any monument, memorial, tablet, or other commemorative installation. FF. Vandalism 10. Intentionally or wantonly destroying, injuring, defacing, removing, disturbing or possessing in any manner any geologic feature, objects of antiquity,prehistoric ruins, monuments or feature, public or private building, sign, equipment, monument, marker or other structure. IV. PENALTIES A. Violation of Rules Any user or potential user of the park shall be subject to immediate exclusion and/or expulsion from the park if, in Management's sole determination: 1. A violation of the rules and regulations set forth herein has occurred. 2. Such action is necessary to enforce any provision in the rules and regulations set forth in this document. 3. Said user or potential user has failed to obey orders of park management personnel and/or orders of Federal, State or County law enforcement officers. B. Penalties Any violation of these park rules and regulations shall subject the violator to: 1. Civil and for criminal liability for damages to public or private property and/or confiscation by appropriate governmental authorities of any prohibited materials, machines, tools, vehicles or equipment. 2. Permanent prohibition from future entry into and use of the park facilities. V. PERMITS A. Classification of Permits Permits shall be required for the following uses and activities in the manner specified herein below: 1. Group Use Permit: Any group larger than twenty-five members that desires to picnic in the park shall be required to obtain a Group Use Permit from Management. 2. Special Use Permit: 11. a. Special uses shall be permitted only with a Special Use Permit issued by Management. Special uses are group functions, other than group picnics, considered compatible with the functions and purposes of each individual area, facility or unit of the park, including, but not limited to, assemblies, celebrations, festivals, gatherings, meetings, pageants, parades, public expressions of views,rallies, shows, weddings, filming or photography sessions and other community events or activities. b. Before any motion picture film, video recording, television production, or sound track is made that involves the use of professional casts, models, settings, or crews, by any person other than bona fide newsreel or news television personnel, a Special Use Permit must be obtained from Management that shall be subject to terms and conditions set by Management. c. Before any still photograph may be taken by a commercial photographer for commercial purposes, a Special Use Permit must be obtained from Management that shall be subject to terms and conditions set by Management. B. Camping Permit: All persons, groups, organizations, or associations desiring to camp within the park area shall obtain a Camping Permit from the Management authorizing the use of specific camping areas. However, the following provisions shall apply to camping: 1. Use of recreational trailers is prohibited within the park area. 2. The Management shall establish the location and term of the camping activity. 3. Installation or construction of permanent camping facilities is prohibited except by the Management with authorization from the Board of Land and Natural Resources. 4. Digging or leveling of the ground at any campsite is prohibited. 5. Camping equipment shall be completely removed and the campsite cleaned before departure from the site. 6. Night Fishing Permit: Access to the park after closing hours (after 15 minutes post sunset) for purposes of night fishing and for spearing shall be permitted only with a Night Fishing Permit issued by Management. 12. C. Authority to Use Permits Management shall have the exclusive authority to issue Group Use, Special Use, Camping, and Night Fishing Permits ("Permits"). Management shall be entitled to impose conditions upon the issuance of Permits and for may impose an administrative fee for requested Permits. The following conditions shall apply to all Permits: 1. Permits shall be issued on a first come, first serve basis. 2. All responsible persons twenty-one years of age or older shall be eligible to secure Permits. 3. Permits shall be obtained by submitting an application in person or by mail to Management. 4. Requests for Group Use Permits and Special Use Permits shall be submitted to Management a maximum of thirty (30) days before the date of the use being requested and shall include the date, time, duration, nature and place of the proposed event, an estimate of the number of persons expected to attend, and a statement of equipment and facilities to be used in connection therewith. If the event is for the purpose of raising funds, a statement of how the profits will be used is required. Requests for Night Fishing Permits shall include the same information, but shall be submitted to Management a minimum of five (5) working days and a maximum of thirty (30) days before the date of the use being requested. Requests for Camping Permits shall include the same information, and shall be submitted to Management a minimum of five (5) working days and a maximum of thirty (30) days prior to the date of the use being requested. 5. Management shall have fifteen (15) days from receipt of an application for a Group Use Permit or Special Use Permit, five (5) days from receipt of an application for a Camping Permit, and three (3) days from receipt of an application for a Night Fishing Permit, to either grant or deny the application. 6 Permits shall not be transferrable. 7 Persons or organizations to whom permits are issued (the Apermittee@) are bound by the Permit conditions stipulated on or attached to the permit, and any applicable Federal, State and County laws, ordinances and rules and regulations. 8 All permittees shall, upon request, show the Permit to any law enforcement officer, security personnel, or employee of Management. 13. 9 Other procedures, terms and conditions deemed necessary by Management may be adopted by Management in order to carry out the provisions of this section, or any applicable Federal, State and County laws, ordinances and rules and regulations. 10 As a condition of granting a Permit by Management, the permittee shall agree to hold the Owner and Management harmless and indemnify Owner and Management from any liability or damages resulting from the use of the park by the permittee or by any of the permittee=s guests. Each Permit shall specifically provide the following: "The permittee shall indemnify, defend and hold harmless Owner and Management, its officers, directors, stockholders, attorneys, agents, servants, representatives, employees, corporate affiliates, predecessors and successors interest (collectively, the "indemnitees") from and against any and all past, present and future claims, actions, causes of action, suits at law or inequity, liabilities, demands, losses, decrees,judgements, awards, liens, costs, fees, damages, expenses (including attorneys' fees) and compensation of whatsoever kind or nature, resulting from, arising out of, connected with, or traceable either directly or indirectly to any and all matters relating to the use of the park by the permittee or by an of the permittee's guests. The permittee shall reimburse indemnitees or pay over to indemnitees immediately when due all judgements and claims for damages that indemnitees shall pay or become liable to pay by reason of such use of the park by the permittee or by any of the permittee's guests, and will make such payment to indemnitees as soon as indemnitees become liable therefore, whether or not indemnitees shall have paid out such or any part thereof." 11 Permits shall set forth the day and time the permittee shall be allowed to remain in the park. 12 Management may require the permittee at the permittee's own cost, to provide licensed security services, in the interest of public safety and welfare and for the protection of property. 13 Requests for Permits shall each be considered on their own merits, including their effect on the park, facilities, and the public's use and enjoyment thereof. 14 The Permit may contain conditions relating to protection and use of the park area for the purposes for which it is maintained, and reasonable limitations on the size of the group, time and area within which the event is being permitted. 15 The Permit may contain conditions relating to parking and access for the use being permitted. DO Denial of Permit Applications 14. An application for a Permit may be denied when: 1 The Park or Park facilities are closed or will be closed because of damages, or because of scheduled or ongoing construction, repairs or maintenance activities, dangerous weather conditions; County or State declared emergency or because of other reasons. 2 Natural or civil disturbances occur or threaten to occur, including, but not limited to, tsunamis, floods, earthquakes, storms, riots, and demonstrations. 3 There are inadequate facilities or space to accommodate the needs of the applicant for the permit. 4 The applicant has a prior record of noncompliance with permit conditions or violations of park rules and regulations. 5 The event will present a clear and present danger to public health and safety. 6 A prior permit for the same time and place has been or will be granted. 7 The event will significantly interfere or conflict with the public's general use and enjoyment of the park 8 The event will threaten, endanger, or disturb natural and historical resources of the park. 9 Applications or requests for permits are not received by Management within the time periods specified in Section V.B.4 herein. 10 The proposed event includes activities that may be a violation of any Federal, State or County law or ordinance. EO Cancellation of Permit A Permit may be canceled or terminated at any time without advance notice when: 1 A state of emergency is declared by Management or governmental authorities. 2 Natural or civil disturbances occur or threaten to occur, including, but not limited to, tsunamis, floods, earthquakes, storms, riots, demonstrations and employee strikes. 15. 3 A permittee creates a clear and present danger to public health and safety. 4 A permittee violates permit conditions, provisions of these park pules and regulations, or any Federal, State or County law or ordinances. l 6. EXHIBIT 15 .4oJNtY . OF, .. COUNTY OF HAWAII :• �?" !/ • STATE OF HAWAII t RESOLUTION NO. 316 12 RESOLUTION ACCEPTING THE DEDICATION OF A PORTION OF RIGHTS-OF-WAY LOTS 15-A-2, 16, 17, 19, 20 AND 21,BEING TAX MAP KEYS: (3) 8-1-036:003 (LOT 15A-2),(3) 8-1- 004:070(POR.)(LOTS 16 AND 17)AND (3) 8-1-007:061 (LOTS 19,20 AND 21), SITUATED AT HALEKI`I,KEEKEE 1 AND 2, ILIKAHI, KANAKAU 1 AND 2, KALUKALU 1 —3, ONOULI 1 AND 2, AND KEOPUKA, DISTRICT OF SOUTH KONA, ISLAND, COUNTY AND STATE OF HAWAII, FROM 1250 OCEANSIDE PARTNERS,A HAWAII LIMITED PARTNERSHIP. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII: WHEREAS, 1250 Oceanside Partners,a Hawaii limited partnership, is the owner of the Rights-of-Way Lots 15-A-2, 16, 17, 19,20 and 21,portions of which contains an area of 4.186 acres, 7.963 acres, 5.506 acres, 0.220 acre, 5.541 acres and 0.199 acre, more or less,respectively, identified as Tax Map Keys: (3) 8-1-036:003 (Lot 15A-2), (3) 8-1-004:070 (por.) (Lots 16 and 17)and(3) 8-1- 007:061 (Lots 19,20 and 21), situated at Haleki`i, Keekee 1 and 2, Ilikahi, Kanakau 1 and 2, Kalukalu 1 —3, Onouli 1 and 2, and Keopuka,district of South Kona, Island, County and State of Hawaii,as delineated on Exhibit"A"attached; and WHEREAS, subdivision approval for Rights-of-Way Lots 15-A-2, 16, 17, 19,20 and 21 was granted on August 10,2012,with the understanding that these lots will be transferred to the County of Hawaii for the purpose of completing the design and construction of the South Segment of the Mamalahoa Bypass; and WHEREAS, 1250 Oceanside Partners, a Hawaii limited partnership is desirous of dedicating the above-referenced Rights-of-Way Lots for road and drainage purposes, and the Rights-of-Way Lots EXHIBIT 15 have been approved by the County of Hawai`i Department of Public Works, and received dedication approval from the Department of Water Supply, Planning Department and Department of Environmental Management; and WHEREAS, the Rights-of Way Lots are in acceptable condition for dedication, and in full compliance with Section 2-161 of the Hawai`i County Code, for the gift of the fee simple interests of the above-referenced real properties; and WHEREAS, Article XIII, Section 13-12 of the Hawai`i County Charter, provides that the council may accept gifts, which include the dedication of land, on behalf of the County of Hawaii. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that it finds the subject Rights-of-Way Lots thereon are in full compliance with the provisions of Section 2-161 of the Hawai`i County Code as certified and approved by all applicable agencies, and that it is in the public interest to accept such dedication. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, in accordance with Article XIII, Section 13-12 of the Hawai`i County Charter, and Section 2-161 of the Hawai`i County Code,that the County of Hawai`i accepts the dedication of Rights-of-Way Lots 15-A- 2, 16, 17, 19, 20 and 21, portions of which contains an area of 4.186 acres, 7.963 acres, 5.506 acres, 0.220 acre, 5.541 acres and 0.199 acre, more or less, respectively, identified as Tax Map Keys: (3) 8-1-036:003 (Lot 15A-2), (3) 8-1-004:070 (por.) (Lots 16 and 17) and (3) 8-1-007:061 (Lots 19, 20 and 21), delineated on Exhibit"A" attached hereto for public road and drainage purposes. 2 BE IT FINALLY RESOLVED that a copy of this resolution be forwarded to: (1) the Honorable William P. Kenoi, Mayor of the County of Hawaii; (2) the Department of Public Works; (3) Senior Deputy Corporation Counsel Joseph K. Kamelamela; and (4) 1250 Oceanside Partners, a Hawaii limited partnership, Post Office Box 2059, Kealakekua, Hawaii 96750. Dated at Hilo , Hawai`i, this 9th day of November , 2012. INTRODUCED BY: ,A01// COUNCIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawai`i AYES NOES ABS EX Hilo, Hawai`i BLAS X FORD X I hereby certify that the foregoing RESOLUTION was by HOFFMANN X the vote indicated to the right hereof adopted by the COUNCIL of the IKEDA County of Hawai`i on November 9, 2012 X ONISHI X PILAGO X ATTEST: SMART X YAGONG X YOSHIMOTO X NAACO 1 0 to ' V Reference: C-895/Waived PWIRC 3OUNTY CLERK CHAIRPERSON& PRESID G ICER RESOLUTION NO. 3 .6 12 3 / / 1 Yonalahoo B)pass Rood-Pho3r nw Ms s, C-I-A-.3.2 to 13-A-t,ifIdlahe --- F !I Ira: .` ' and DtQh7n Ar .ctof Laawnents C-7 and o-7 j A?/ecting Lets I-A and I-8 r t1 `'a'•• -•y,;.:. \ and Cancellation of o Porlioo of foawnrnt 'C' .. 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I ' ' w+J•• lt. --•-• �� M0. ti - �tl `,\' "�0. t � i ±t COVERED AREA - J \ t ..•.......r. fir . i ''-^J. i.Ove. , ,_ + °c+ ' . , . a t. _ / % � < ✓' %'.- .. \iPP eZt.<0 ,+" J" ''''./. \•'•.,....,:"°'" pb..- 1\\\1\\ ..''''' ".....'... ":j.wVi.:4 \\' • •' iilf dam �?� tom;• r, , CO P-A /' r:-.4:.=.:. - .. � -p IKLMLI $1.I , __ _-..--_.-- y �..w EXHIBIT 16 VJ7 COUNTY OF HAWAII •� STATE OF HAWAII RESOLUTION NO. 20 12 RESOLUTION ACCEPTING THE DEDICATION OF ROAD LOTS PARCEL 1, LOT C-1-A-3, PARCELS 2 TO 14, INCLUSIVE AND LOT 15-A-1, BEING TAX MAP KEYS: (3) 7-8-010: 098 (POR.) (PARCEL 1 AND LOT C-1-A-3), 7-9-005: 081 (POR.) (PARCELS 2 THROUGH 6), 7-9-006: 038 (POR.) (PARCELS 7 THROUGH 9), 7-9-012: 034 (POR.) (PARCELS 10 THROUGH 14), AND 8-1-035:004 (POR.) (LOT 15-A-1), SITUATED AT KEAUHOU 2ND, HONALO, MAIHI 1ST AND 2ND,KUAMOO 1ST 2ND AND 3RD, KAWANUI 1ST AND 2ND, LEHUULA 1ST AND 2ND, HONUAINO 1ST 2ND, 3RD AND 4TH, HOKUKANO 1ST AND 2ND, AND KANAUEUE 1ST AND 2ND, DISTRICT OF NORTH KONA, AND HALEKI`I,DISTRICT OF SOUTH KONA, ISLAND, COUNTY AND STATE OF HAWAII, FROM 1250 OCEANSIDE PARTNERS, A HAWAII LIMITED PARTNERSHIP. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII: WHEREAS, 1250 Oceanside Partners,a Hawaii limited partnership, is the owner of the Road Lots Parcel 1, Lot C-1-A-3, Parcels 2 through 14, inclusive, and Lot 15-A-1,portions of which contain an area of 13.702 acres, 3,380 square feet(.08 acre), 5.393 acres, 1.023 acres, 4.964 acres, 1.499 acres, 2.435 acres, 8.412 acres, .495 acre, 3.991 acres, 8.726 acres,4.039 acres, .190 acre, .360 acre, 1.343 acres, and 6.437 acres, more or less, respectively, identified as Tax Map Keys: (3) 7-8-010:098 (por.) (Parcel 1 and Lot C-1-A-3), (3) 7-9-005:081 (por.) (Parcels 2 through 6), (3) 7-9-006:038 (por.) (Parcels 7 through 9), (3) 7-9-012:034 (por.) (Parcels 10 through 14), and(3) 8-1-035:004 (por.) (Lot 15-A-1), situated at Keauhou 2"d Honalo,Maihi 1st and 2" , Kuamoo 1st 2"d and 3`d, Kawanui l s`and 2"d, Lehuula 1st and 2nd Honuaino 2"d 3rd and 4th, Hokukano 1st and 2"d, and Kanaueue 1st and 2"d, district of North Kona, and Haleki`i, district of South Kona, Island, County and State of Hawai`i, as delineated on Exhibit"A"attached; and EXHIBIT 16 WHEREAS, subdivision approval for Road Lots Parcel 1, Lot C-1-A-3, Parcels 2 through 14 and Lot 15-A-1 was granted on August 10. 2012, with the understanding that these lots will be transferred to the County of Hawaii as the North Segment of the regional Mamalahoa Highway Bypass; and WHEREAS, 1250 Oceanside Partners, a Hawaii limited partnership is desirous of dedicating the above-referenced roadway lots to the County of Hawai`i for road and drainage purposes, and the roadway lots have been inspected and approved by the County of Hawai`i Department of Public Works, and received dedication approval from the Department of Water Supply, Planning Department and Department of Environmental Management; and WHEREAS, the subject road and drainage improvements have been completed according to County of Hawaii standards, and are in acceptable condition for dedication, and in full compliance with the provisions of Chapter 23 of the Hawai`i County Code; and WHEREAS, Section 23-10 of the Hawai`i County Code prohibits the Council from receiving by dedication any streets in any subdivision platted after December 2, 1966 except upon full compliance with the provisions of Chapter 23; and WHEREAS, Section 23-41 of the Hawaii County Code prohibits the Council from receiving by dedication any streets that are less than the minimum right-of-way and pavement widths; and WHEREAS, Article XIII, Section 13-12 of the Hawai`i County Charter, provides that the council may accept gifts, which include the dedication of land, on behalf of the County of Hawai`i. 2 BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that it finds the subject roadway lots are in full compliance with the provisions of Chapter 23 of the Hawai`i County Code as certified and approved by all applicable agencies, and that it is in the public interest to accept such dedication. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, in accordance with Article XIII, Section 13-12 of the Hawai`i County Charter, and Sections 23-10 and 23-41 of the Hawai`i County Code, that the County of Hawai`i accepts the dedication of Road Lots Parcel 1, Lot C-1-A-3, Parcels 2 through 14, inclusive, and Lot 15-A-1, portions of which contain an area of 13.702 acres, 3,380 square feet (.08 acre), 5.393 acres, 1.023 acres, 4.964 acres, 1.499 acres, 2.435 acres, 8.412 acres, .495 acre, 3.991 acres, 8.726 acres, 4.039 acres, .190 acre, .360 acre, 1.343 acres, and 6.437 acres,more or less, respectively, identified as Tax Map Keys: (3) 7-8-010:098 (por.) (Parcel 1 and Lot C-1-A-3), (3) 7-9-005:081 (por.) (Parcels 2 through 6), (3) 7-9-006:038 (por.) (Parcels 7 through 9), (3) 7-9-012:034 (por.) (Parcels 10 through 14), and (3) 8-1-035:004 (por.) (Lot 15-A-1), situated at Keauhou 2nd, Honalo, Maihi 1St and 2❑d , Kuamoo 1st, 2nd and -rd, Kawanui 1st and 2nd, Lehuula 1st and 2nd, Honuaino 1St 2nd 3`d and 4th, Hokukano ls`and 2nd, and Kanaueue 1st and 2nd, district of North Kona, and Haleki`i, district of South Kona, Island, County and State of Hawai`i, as delineated on Exhibit"A" attached hereto for public road and drainage purposes. 3 BE IT FINALLY RESOLVED that a copy of this resolution be forwarded to: (1) the Honorable William P. Kenoi, Mayor of the County of Hawai`i; (2) the Department of Public Works; (3) Senior Deputy Corporation Counsel Joseph K. Kamelamela; and (4) 1250 Oceanside Partners, a Hawai`i limited partnership, Post Office Box 2059, Kealakekua, Hawai`i 96750. Dated at Kona, Hawai`i, this 19th day of DPcembPr- , 2012. INTRODUCED BY: -1* COUNCIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawai`i EOFF X FORD X I hereby certify that the foregoing RESOLUTION was by ILAGAN X the vote indicated to the right hereof adopted by the COUNCIL of the KANUHA County of Hawaii on December 19, 2012 X KERN X ONISHI ATTEST: POINDEXTER X WILLE X YOSHIMOTO X I 9 0 0 0 Reference: C-26/Waived PWPR COI_ N"IY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 20 12 4 w �� / / /S.y MitaOm Mgt 1 1M I.C— 01�Mood—-1 Marta w» _ PorcAl I.C-1-A-o 2 o t5-A-1, 0 , aao Mort*.N RP.MK LAMA 7715 4 II*I-7a.A..A4 Omt IA!b AK amtt LCAa 7179 M t M1 Maar .''. Mal MN to AA*Mem Moll Is lo=on mum Mat IA7 to Iola / LCAa I07a-R 1410 b C 10tati LCA.IlS-I M1 M MO.Lomax pa!Iia b PEW.Yore L.A.USIA y 7 I taw Waal r RR MI LCAt M b C MR Marl 7@a b MANIAC Mat 1471 M Jeb OP.1/e Dart N07 b Rea ORR Irl b 414 IitM.r.•ak . / R.P. LC-Aa f. P.MO.La $ *Arm O. b an rIMSW i \`k 1 ' • o ` trial MIS ~JAR 10LGAm 317, 4.2.mt RP.122 0 II.M..1.aJO* d.1my AP.. of 1 At RAaMY Hot IMAq art W it Mot IgaMw M Rad t L1! , r nm..A la A A/lobate Y R 2•14 Mute.L4 MA,So i/l Ilalauw*t o. \:,,\,'t .`� 4` ~l \ ti 11►.bo' (47-161Ma IAV-- s FW'-o-ae Ja MMO-.a x (A/-1-ot a a s \ \ i.. rM a w1 1 / ,". ter+ \1 \ g it=:;7.7= . % ti_,1 \ _.., COVERED ,� AREA _ - ., (continued on • next page) . y •r 1 I. I. ..^ 4 • I ;?,L.• . • Vii!•"- '.✓ r i " • 4 ; I _ \ TMJ tea. • • 11 s1 . . # r, ---.--�w`t T . Ar _- EXHIBIT "A" • ..,-;:s.,,,t's' ..4.:.;., I _. _, ...........?„, ........... i' d .. ... ..........._ ,.,".:,...'e-.. -s.` .r. .——•— COVERED AREA f,.. s _ (continued from ,; previous page) • • ••� •. . . `1J .s. • s ! i••Jt4.. . ,fl�••� ... . . �J1; 4 • • • ,Y •f� •. 'i ��•.0 r • • i ' ..: t. 0. --. !7 Vit.'`•` • 0>w .... `-- • i { 1, `, . ::„..... EXHIBIT 17 ilc(17 STATE OF HAWAII fi''<Kq BUREAU OF CONVEYANCES 4+9`ps",9g °�"- RECORDED aLi '_pct,: 9 JuIy,1-9;2019 3:29 PM ' } ': `-, �z, Doc No(s) A- 71390875 \ !s!LESLIE T. KOBATA REGISTRAR 1 1/1 ICL Conveyance Tax: $0.00 8—33359992 ( LAND COURT h REGULAR SYSTEM Return By Mail X Pick-Up To: Office of the Corporation Counsel Hilo Lagoon Centre 9 101 Aupuni Street, Unit 325 TOTAL NUMBER OF PAGES: Hilo, Hawai'i 96720 TITLE OF DOCUMENT: DEDICATION DEED (KONA SCENIC PARK) PARTIES TO DOCUMENT: GRANTOR: 1250 OCEANSIDE,LLC,a Delaware limited liability company, whose mailing address is 5665 North Scottsdale Road, Suite 135, Scottsdale,Arizona 85250 GRANTEE: COUNTY OF HAWAII,a municipal corporation duly existing under, pursuant to and by virtue of the laws of the State of Hawaii, whose principal place of business and mailing address is 25 Aupuni Street, Hilo, Hawaii 96720 AFFECTS TAX (3)8-1-036:002 MAP KEY(S): 4842-1980-9341.1 EXHIBIT 17 DEDICATION DEED (Kona Scenic Park) KNOW ALL MEN BY THESE PRESENTS: That, 1250 OCEANSIDE, LLC, a Delaware limited liability company, whose mailing address is 5665 North Scottsdale Road, Suite 135, Scottsdale, Arizona 85250, hereinafter called the "Grantor", for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other valuable consideration to them paid by the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, whose principal place of business and mailing address is 25 Aupuni Street, Hilo, Hawai'i 96720, hereinafter called the "Grantee", the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto the Grantee, its successors and assigns, for park purposes, in fee simple, forever, the following real property: Lot 2, Hokuli`a Phase 3 East, Part B Large Lot Subdivision, situated along the Southerly side of Haleki'i Street at Haleki'i and Keekee 1st, South Kona, Island and County of Hawaii, State of Hawai'i, more particularly described in "Exhibit A" attached hereto and as shown on the map attached hereto as "Exhibit B". TO HAVE AND TO HOLD the same, together with all rights, improvements, easements, privileges and appurtenances thereunto belonging or in anywise appertaining, or held and enjoyed therewith, unto the Grantee, its successors and assigns, in fee simple, forever. AND the Grantor, and itself, its successors and assigns, does hereby covenant with the Grantee, its successors and assigns, that it is seised in fee simple of the above-described premises; that the same is free and clear of and from all encumbrances, except as aforesaid; that it has good right to,sell and convey the same as aforesaid; and that it will, and its successors and assigns will, WARRANT AND DEFEND the same unto the Grantee, its successors and assigns, forever, against the lawful claims and demands of all persons whomsoever. 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 each of their respective successors in interest, agents, employees, persons claiming rights thereby, 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 2 4842-1980-9341.1 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. IT IS FURTHER MUTUALLY AGREED that this Dedication Deed may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. The submission of a signature page transmitted by facsimile (or similar transmission facility) shall be considered to be an "original" signature page for purposes of this Dedication Deed so long as the original signature page is subsequently transmitted by mail or by other delivery service and the original signature page is substituted for the facsimile signature page in the original and duplicate originals of this Dedication Deed. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS. 3 4842-1980-9341.1 IN WITNESS WHEREOF the said Grantor has caused these presents to be executed this I 2+-hday of P-e..Gi yY1&,,,r— , 2011A 1250 OCEANSIDE, LLC, a Delaware limited liability company By: SUN KONA FINANCE I, LLC a Delaware limited liability company Its: Sole member By: DUANE GRIMSMAN Its: Senior Vice President "Grantor" APPROVED AS TO FORM AND LEGALITY: Deputy Corporation Counsel County of Hawai'i 4 4842-1980-9341.1 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of \`OLC-&Y On I ZA Z/Ea( (o , before me, al/tair& L afjeyrso,,_ , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the persons}whose names is subscribed to the within instrument and acknowledged to me that he ey- executed the same in his authorized capacity(ies), and that blyG)hefAiteir signature e) on the instrument the person s-}, or the entity upon behalf of which the persons) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragrae is true and orrect. WITNESS my an•/.nd off @ial seal. Signature / (Seal) AUDRA L.ANDERSON COMM. #2156723 z t!" �.. Notary Public-California z Placer County Comm.Ex'ires June 16,2020 795745.1 } 's r� d5 I-L—i .,`,. r€S KSI'.: : v 4a � ; Y X Lot 2-The Subject Property }, n m ti c { 2 Jz 2 \ ... f ... r €'cIeft qz ...."- E CF v Y .� 31 � O v2ees • Qn�.... ly F- Aen-'.. t, , ero z n�v " a4 ° Sc` mam XX Et z o 5, ,E 2- ti v1 r j5 R ; R 4aw^ OOCs ?: .1 0 p"x , Sk x ee f b� `., `4,4 'a r rok // tI � // p' C�e a / Id _ -4'' 1 { €7j #€.,•i , 333' a" 11 $Efi P """4-p' ,.-�,, € lags afy s €; lc— ,.>-mo i i ,u • ss MI 7� C t{ "EXHIBIT A" 4842-1980-9341.1 #18400.32 LOT 2 LOT 2 HOKULI'A PHASE 3 EAST. PART B LARGE LOT SUBDIVISION Land situated along the Southerly side of Haleki'i Street at Haleki'i and Keekee 1st,South Kona, Island and County of Hawaii,State of Hawaii. Being portions of: Lot 2-A of Hokuli'a Phase 3 East, Part B Large Lot Subdivision; Royal Patent 1670 to John D.Parish on a portion of Land Commission Award 387, Part 4,Section 2 to the American Board of Commissioners for Foreign Missions;and Grant 977 to Panaunau. Beginning at the Northwesterly corner of this parcel of land, being also the Northeasterly corner of Lot 1 of this subdivision and being a point on the Southerly side of Haleki'i Street, the coordinates of said point of beginning referred to Government Survey Triangulation Station"PUU OHAU" being 1,912.61 feet North and 8,234.61 feet East and running by azimuths measured clockwise from True South: Thence,from a tangent azimuth of 310° 14' following along the Southerly side of Haleki'i Street on a curve to the left with a radius of 540.00 feet, the chord azimuth and distance being: 1. 284° 22' 471.18 feet to a point; Thence, for the next three(3)courses following along Lot 3(County of Hawaii): 2. 78° 30' 467.61 feet to a point; #18400.32 Page 1 of 2 WES THOMAS ASSOCIATES —Land Surveyors— 75-5749 Katawa Street, Kailua-Kona,Hawaii 96740-1817 11 "Exhibit B" 4842-1980-9341.1 #18400.32 LOT 2 3. 348° 30' 438.70 feet to a point; 4. 266° 28' '187.31 feet to a point; 5. 4° 24° 35.63 feet along middle of stonewall, Lot 22 of Keekee Estates(File Plan 2087)and along the remainder of Grant 977 to Panaunau to a point; 6. 5° 11' 25.00 feet along middle of stonewall, Lot 22 of Keekee Estates(File Plan 2087)and Grant 977 to Panaunau to a point; 7. 86° 28' 256.04 feet along Lot 1 of this subdivision and along the remainders of Lot 2-A and Grant 977 to Panaunau to a point; 8. 168° 30' 591.49 feet along Lot 1 of this subdivision and along the remainders of Grant 977 to Panaunau and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387,Part 4, Section 2 to the American Board of Commissioners for Foreign Missions to a point; 9. 220° 14' 163.84 feet along Lot 1 of this subdivision and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to the American Board of Commissioners for Foreign Missions to the point of beginning and containing an area of 2.273 Acres. ccPL T. y`412f� WES THOMAS ASSOCIATES LICENSED y O PROFESSIONAL LAND / -* SURVEYOR * �F No.4331 Chrystal Thomas Yamasaki NH,SSP Licensed Professional Land Surveyor State of Hawaii Certificate No.LS-4331 75-5749 Ka(awa Street Kaitua-Kona,Hawaii 96740-1817 TMK: 8-1-036:portion 002 (3rd Division) July 11,2014 #18400.32 Page 2 of 2 WES THOMAS ASSOCIATES —Land Surveyors— 75-5749 Kalawa Street, Kailua-Kona,Hawaii 96740-1817 12 4842-1980-9341.1 BEING a portion of the land conveyed by the following: Instrument: Limited Warranty Deed Grantor: Lyle Anderson Grantee: 1250 Oceanside Partners, a Hawaii limited partnership Dated: April 26, 1990 Recordation info: April 27, 1990, Document No. 90-059985 SUBJECT HOWEVER, to the following: 1. Title to all mineral and metallic mines reserved to the State of Hawaii. 2. Possible archaeological sites and/or burial sites. 3. All customary and traditional rights of native Hawaiians as provided for by law, for subsistence, cultural and religious purposes, which rights may involve access to the subject property. 4842-1980-9341.1 EXHIBIT 18 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawai`i 281 (2010) 242 P.3d 1136 124 Hawai`i 281 Supreme Court of Hawai`i. COUNTY OF HAWAII,a municipal corporation,Plaintiff/Counterclaim Defendant—Appellee v. C&J COUPE FAMILY LIMITED PARTNERSHIP,Defendant/Counterclaimant—Appellant and Robert Nigel Richards,Trustee under the Marilyn Sue Wilson Trust;and Miles Hugh Wilson,Defendants. C&J Coupe Family Limited Partnership,Third—Party Plaintiff—Appellant v. 1250 Oceanside Partners aka Hokuli'a,Third—Party Defendant—Appellee. County of Hawai`i,a municipal corporation,Plaintiff/Counterclaim Defendant—Appellee. v. C&J Coupe Family Limited Partnership,Defendant/Counterclaimant/Cross Claimant—Appellant and 1250 Oceanside Partners aka Hokuli'a,Defendant/Cross Claim Defendant—Appellee and Robert Nigel Richards,trustee under The Marilyn Sue Wilson Trust;and Miles Hugh Wilson,Defendants. No.29887 Nov. 10,2010. Synopsis Background:County brought two successive condemnation actions against property owner in connection with proposed bypass to be built by developer.Developer was added as third-party defendant in first action and was joined as indispensable party in second action.Consolidating actions,the Third Circuit Court,Ronald Ibarra,J.,dismissed first action,but granted condemnation in second action,and owner's motion for fees and costs in first action was deemed denied by operation of law.Owner appealed. Granting county's motion for transfer, the Supreme Court, Acoba, J., 119 Hawai`i 352, 198 P.3d 615, affirmed in part, and vacated and remanded in part.On remand,the Circuit Court issued supplemental findings of fact,conclusions of law,and order as to second action and awarded owner additional costs and attorney fees, and entered supplemental final judgment totaling approximately$1.63 million.Owner appealed. Holdings: Granting owner's motion to transfer,the Supreme Court,Acoba,J.,held that: county's asserted public purpose for second condemnation was not a pretext for a primarily private benefit; owner's challenge to the value of just compensation set for the property in second condemnation was untimely; county was liable in second condemnation proceeding for landowner's expenses,including attorney fees from first proceeding; and court did not abuse its discretion in denying owner's request for prejudgment interest. Affirmed. WEETL A.W ..n,. . 71�mc�r1 Ric iffier Nc ±' to orfg nal U.S. Government Works. EXHIBIT 18 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 Procedural Posture(s): On Appeal. Attorneys and Law Firms **1139 Kenneth R. Kupchak,Robert H. Thomas,Mark M. Murakami,and Matthew T. Evans(Damon Key Leong Kupchak Hastert),on the briefs,for defendant-appellant C&J Coupe Family Limited Partnership. Lincoln S.T.Ashida,Corporation Counsel;Katherine A.Garson,Assistant Corporation Counsel;Joseph K.Kamelamela,Gerald Takase,and Michael J.Udovic,Deputies Corporation Counsel,County of Hawaii,on the briefs,for plaintiff-appellee County of Hawai`i. William Meheula and Kurt Kagawa(Meheula&Devens,LLP),on the briefs,for third-party defendant-appellee 1250 Oceanside Partners aka Hokuli`a. RECKTENWALD,C.J.,NAKAYAMA,ACOBA,and DUFFY,JJ.,and Circuit Judge PERKINS,assigned due to a vacancy. Opinion Opinion of the Court by ACOBA,J. *284 This case is the post-remand sequel to County of Hawai`i v. C&J Coupe Family Ltd. P'ship, 119 Hawai`i 352, 198 P.3d 615 (2008) [hereinafter, Coupe I]. In that case, this court reviewed two condemnation actions (Condemnation 1 and Condemnation 2) *285 **1140 brought by Plaintiff/Counterclaim Defendant—Appellee County of Hawaii (the County) to condemn property belonging to Defendant/Counterclaimant—Appellant C & J Coupe Family Limited Partnership in Civ. No. 00-1-0181K and Defendant/Counterclaimant/Cross Claimant—Appellant in Civ.No.05-1-015K(Coupe).In the instant appeal, we hold that (1) the County's asserted public purpose for Condemnation 2 was not a pretext for a primarily private benefit, (2) Coupe's challenge to the value of just compensation set for the property in Condemnation 2 could not be considered on remand,(3)the circuit court of the third circuit(the court)1 erred in denying Coupe's request for attorneys'fees associated with the preparation of billing records and/or preparation of Coupe's fee petitions for the failed Condemnation 1, and(4)the court did not abuse its discretion in denying Coupe's request for prejudgment interest on attorneys'fees and other expenses incurred in Condemnation 1. Therefore,we affirm the court's conclusion that Condemnation 2 was not pretextual,its valuation of just compensation set for the property in Condemnation 2, and its denial of Coupe's request for prejudgment interest. We remand to the court to decide Coupe's request for attorneys' fees associated with the preparation of billing records and/or preparation of Coupe's fee petitions in Condemnation I. I.BACKGROUND A.Condemnation 1 and Condemnation 2 While the facts giving rise to Condemnations 1 and 2 are discussed in Coupe I, a recitation of the facts is necessary to an understanding of the instant appeal.2 Third—Party Defendant—Appellee 1250 Oceanside Partners in Civ.No. 00-1-0181K and Defendant/Cross Claim Defendant—Appellee in Civ.No. 05-1-015K(Oceanside)is the developer of the Hokuli`a subdivision (Hokuli`a)which extends from the ocean almost to the Mamalahoa Highway and crosses the border between North and South Kona. Id. at 357, 198 P.3d at 620. In exchange for a change in zoning for Hokuli`a, Oceanside agreed to construct a bypass highway(Bypass)between Keauhou and Captain Cook to"alleviate unacceptable and unsafe traffic conditions."Id. (brackets omitted).A Development Agreement dated April 20, 1998 between the County and Oceanside provided that the County would use its power of eminent domain to acquire any property along the Bypass route that was refused for private sale to Oceanside. Id. at 358, 198 P.3d at 621. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 2 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 In an effort to construct the Bypass,Oceanside purchased all of the private property needed, except for the property owned by Coupe,who refused to sell.Id. at 359, 198 P.3d at 622. As agreed upon in the Development Agreement, the County Council issued Resolution No.266-00,which authorized the condemnation of Coupe's property and made reference to the Development Agreement.Id. On the basis of Resolution No. 266-00, the County then filed Condemnation 1, Civ.No. 00-1-0181K, in the court against Coupe 3 to condemn 2.9 acres of Coupe's property.The issue of whether *286 **1141 Condemnation 1 was for a public use was initially resolved in favor of the County by partial summary judgment on November 27, 2001.Id. However, the court reversed its ruling and set the matter for trial because"there was a genuine issue of material fact as to the purpose." Id. at 360, 198 P.3d at 623. During the pendency of the Condemnation 1 trial,on February 5,2003,the County passed Resolution No.31-03,4 authorizing the County to initiate a second condemnation of 3.348 acres of Coupe's property for the Bypass. Resolution 31-03 "did not reference the Development Agreement" and instead stated that"the Bypass would provide 'a regional benefit for the public purpose and use which will benefit the[County].' "Id. On the basis of Resolution No. 31-03,on January 28,2005,the County filed Condemnation 2,Civ.No. 05-1-015K,in the court against Coupe.5 Id. In Condemnation 2,Coupe moved to dismiss the condemnation on the ground of abatement,or in the alternative,to consolidate the cases. The court denied the motion to dismiss,but consolidated Condemnation 1 and Condemnation 2 and tried the cases in a non-jury trial.Id. As to Condemnation 1,the court ruled that the condemnation was invalid because the County unlawfully delegated its sovereign power of condemnation to Oceanside through the Development Agreement.Id. As to Condemnation 2, the court held that(1)the case was not abated by Condemnation 1,and(2)Condemnation 2 was supported by a public purpose. Id. at 361,198 P.3d at 624.The court issued its Findings of Fact(FOF),Conclusions of Law(COL),and Order on September 25, 2007,and issued a First Amended Findings of Fact, Conclusions of Law, and Order(First Amended FOFCOL)on September 27,2007. The court entered its First Amended Final Judgment against the County with respect to Condemnation 1,in favor of the County with respect to Condemnation 2,and determined just compensation for the condemned property to be$162,204.83. On October 11, 2007, Coupe filed a motion for statutory damages pursuant to HRS § 101-27 (1993)6 [hereinafter, October 11, *287 **1142 2007 Motion]. In this motion, Coupe requested from the County, attorneys' fees and costs,plus tax and prejudgment interest for the County's failure to take Coupe's property for public use in Condemnation 1.7 On November 5,2007, in its Reply Memorandum in Support of its October 11, 2007 Motion,Coupe included an Errata which amended Coupe's damages to$1,535,375.00 in attorneys'fees,$134,940.17 in costs and expenses,$61,612.03 in general excise taxes,and$276,722.41 in prejudgment interest.At the court's request,Coupe filed a supplemental memorandum in support on December 6, 2007, the County and Oceanside filed their supplemental pleadings on December 14, 2007, and Coupe filed its supplemental Reply on December 19,2007. The court did not rule on or enter any order on Coupe's October 11,2007 Motion. Thus,on January 15,2008, the October 11,2007 Motion was deemed denied by operation of HRAP Rule 4(2007).8 B. Coupe I-Coupe's First Appeal to This Court On July 9,2008,this court accepted transfer of Coupe's first appeal from the ICA to this court.Coupe I, 119 Hawai`i at 361, 198 P.3d at 624. This court held that(1)the court did not err in concluding that"Condemnation 2 was not abated by Condemnation 1,"id. at 372,198 P.3d at 635,(2)"where there is evidence that the asserted[public]purpose is pretextual,courts should consider a landowner's defense of pretext[,]" id. at 357, 198 P.3d at 620, and (3) Coupe was entitled to seek statutory damages under HRS § 101-27"insofar as the property in question was not taken in Condemnation 1 [,]"id. at 366, 198 P.3d at 629.As to the second holding,this court determined that"it[was]unclear from the entirety of the court's findings and conclusions regarding Condemnation 2 whether the court did in fact consider and reject[Coupe's]pretext argument."Id. at 382, 198 P.3d at 645. The judgment in Condemnation 2 was vacated, and the case was remanded for"an express determination by the court of whether the asserted public purpose was pretextual."Id. at 390, 198 P.3d at 653. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 3 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 As to the third holding,this court held that(1)Coupe was"entitled to costs and attorneys'fees,as well as any expenses that may have been incurred by reason of[the County] taking possession of the property[,]" and(2) "[i]t is for the court to determine whether the fees claimed by [Coupe] are related to Condemnation 1 and are reasonable under relevant standards."Id. at 368, 198 P.3d at 631. Thus,this court also"remanded[the case] to the court for a calculation of the damages to which[Coupe was] entitled in defending against Condemnation 1."Id. C. Coupe II—Coupe's Request for Statutory Damages Associated With its First Appeal On January 20, 2009, Coupe filed with this court its Request for Statutory Damages incurred by Coupe during its appeal in Coupe I[hereinafter Coupe II Request]. **1143 *288 County of Hawai`i v. C&J Coupe Family Ltd.P'ship, 120 Hawai`i 400, 403, 208 P.3d 713, 716 (2009) [hereinafter, Coupe II On January 30, 2009, the County filed its memorandum in opposition to the Coupe II Request.PIId. Oceanside joined the County's memorandum in opposition and also filed a separate memorandum in opposition to the Coupe II request. Id. Pursuant to this court's order, on February 19, 2009, Coupe filed a Response to the County's and Oceanside's objections (Coupe II Response), and on March 2, 2009,the County filed its Reply, in which Oceanside joined.FaId. As to statutory damages,Coupe"asked for$45,383.50 in attorneys'fees plus$2,098.07 in general excise tax[es] on those fees, $5,775.59 in costs, and prejudgment interest on those fees and costs in the amount of$1,900.35, all of which it claim[ed] to have incurred pursuant to its appeal in Condemnation 1 [,]" and "[i]n addition to those fees and costs, [Coupe] request[ed] that it recover for the fees and costs incurred in preparing the I[Coupe II] Request and the court-ordered [Coupe II] aha Response." Id. On March 5, 2009, Coupe filed an "Errata to Responses to Objections re: Request for Statutory Damages imp (Errata)purportedly to correct certain errors in the [Coupe II] Request and in the IIII[Coupe Il ] Response." Id. The Errata revised the amount of the attorneys'fees requested to $44,696.88,which"include[d the] amount incurred in preparing [Coupe's Coupe II Request.]" Id. The Errata also included an additional request for$6,424.50 in attorneys'fees and$259.69 in excise tax on the attorneys'fees for preparation of the IIII[Coupe II]Response itself.l'aId. at 415,208 P.3d at 728. In Coupe II, this court held that (1) "HRS § 101-27 provide[d] a proper basis for fees and costs incurred on appeal in Condemnation 1,"PId. at 405, 208 P.3d at 718, (2)"this court [was] the appropriate venue in which to request fees and cost incurred on appeal,"Mid. at 406, 208 P.3d at 719, (3)the rates claimed in the Coupe H Request appeared reasonable,Pict, (4) Coupe was entitled to $25,676.21 in fees, $1,105.67 in excise tax,9 and$1,206.35 in costs,10 at 415, 208 P.3d at 728, (5)Coupe was not entitled to certain attorneys'fees in the amount of$12,220.06 because"it was not clear that[the fees] were related in their entirety to [Coupe]'s successful appeal of Condemnation 1[,]" id. at 415 n. 12, 208 P.3d at 728 n. 12, (6) Coupe was not entitled to any prejudgment interest, at 411, 208 P.3d at 724, (7) Coupe was not entitled to "costs associated with legal research[, ] messenger fees/courier fees[,] and [] one-half of the claimed photocopying costs[,]" at 415,208 P.3d at 728, and(8) Coupe was not entitled to its attorneys' fees, excise taxes, and costs associated with preparing the Coupe II Request and Coupe II Response,Faid. D.Remand Following Coupe I 1.The Court's May 14,2009 Supplemental Findings of Fact and Conclusions of Law and Order as to Condemnation 2 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 On remand, the court, on May 14, 2009, issued a Supplemental Findings of Fact, Conclusions of Law and Order to First Amended Findings of Fact, Conclusions of Law and Order filed September 27, 2007 as to Condemnation 2 (Supplemental FOFCOL as to Condemnation 2). The court's findings listed numerous traffic studies and plans conducted by the County and the State of Hawai`i,which recognized"the public need for a roadway to bypass the Mamalahoa Highway and that an arterial highway in the area of the [Bypass]would relieve unacceptable traffic congestion of the Mamalahoa Highway."Furthermore, the court's findings,in part, stated as follows: 19. The Coupes contend that Condemnation 2,like Condemnation 1, was driven by the County's desire to comply with its obligations under the Development Agreement.No evidence supporting this contention was presented at trial,and the[c]ourt finds passage of Resolution No. 31-03 (Condemnation 2) evidences the *289 **1144 County's desire to get the Bypass built,for public purposes. 20. The Coupes contend that construction of the Bypass Highway was necessary to provide access to Hokuli`a. Oceanside already had public access to Mamalahoa Highway through Haleki`i Street. The Bypass Highway, which bisects Hokuli`a and connects with other public roads at both ends beyond the Hokuli`a property, does provide improved access to Hokuli`a for development of a luxury subdivision, but that does not negate the County Council's predominant purpose by enacting Resolution No.31-03 to obtain the Bypass Highway for broader public purposes,consisting of an additional traffic corridor for those traveling through the region(as opposed to those traveling to and from Hokuli`a). 21.A highway to bypass the Mamalahoa Highway is a piece of regional infrastructure for the benefit of those residing in the Kona area and has thus been determined to serve the public interest. 22. Notwithstanding the [c]ourt finding that Condemnation 1 was invalid because the County delegated its condemnation power to Oceanside, the County's predominant purpose in entering into the Development Agreement with Oceanside as referred in Condemnation 1 is the construction of the Bypass for public use. (Emphases added.)The court concluded in part that the Bypass"was not of a predominantly private character[,]"the County's "public purpose[was]not`irrational'with'only incidental or pretextual'public purpose benefits[,]"the"adoption of Resolution No. 31-03 was rationally related to the need for the Bypass[,]"and therefore the resolution"was not pretextual": 13.The [court] concludes that the use(Bypass)was not of a predominately private character The Bypass is a much needed road for the public benefit. A number of studies and plans prepared by the County and State of Hawai`i determined a public need long before the County and Oceanside entered into the Development Agreement. 14.The[court]concludes that the government's statedpublicpurpose is not"irrational"with "only incidental or pretextual" public purpose benefits. The totality of the factual circumstances beyond the face of Resolution No. 31-03 does not support [Coupe's] claim of pretext. 15.Despite any ostensible private benefit to Oceanside the actual purpose of Condemnation 2 was for a valid public use. 16. The County Council's adoption of Resolution No. 31-03 was rationally related to the need for the Bypass Highway and the County Council's asserted public purpose and supported by the circumstances beyond the face of the resolution was[sic] not pretextual. (Emphases added.) 2.Coupe's March 20,2009 Motion for Additional Statutory Damages Not Previously Claimed in the October 11,2007 Motion for Statutory Damages for Condemnation 1 On March 20, 2009, Coupe filed a motion for statutory damages not previously claimed pursuant to HRS § 101-27 for Condemnation 1 [hereinafter March 20, 2009 Motion] with the court. This March 20, 2009 Motion requested additional WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 attorneys' fees and costs as HRS § 101-27 damages incurred by Coupe from"September 1, 2007 through January 14, 2008" that were not previously included in Coupe's October 11,2007 Motion,and from"February 20,2009 through March 20,2009," that were not previously included in Coupe's Coupe II Request to this court.On March 30,2009,the County filed its objections to Coupe's March 20,2009 Motion and Oceanside joined.On April 6,2009,Coupe filed a Reply Memorandum in support of its March 20, 2009 Motion. The Reply Memorandum included an Errata,which amended the requested amounts to $117,069.00 in attorneys'fees,$5,093.81 in costs,$4,949.76 in general excise tax,and$8,564.49 in prejudgment interest. On May 14,2009,the court issued an order granting Coupe's March 20,2009 Motion in the amounts of$41,685.00 in attorneys' fees, $3,703.33 in costs, and$1,557.48 in general excise tax. Of the$117,069.00 in attorneys' *290 **1145 fees requested in the March 20,2009 Motion,the court excluded$75,384.00 in attorneys'fees sought for the preparation of the billing records and the preparation of Coupe's fee petition. Of the $4,949.76 in general excise tax requested in the March 20, 2009 Motion, the court excluded $3,392.28 in excise taxes that were associated with the $75,384.00 in attorneys' fees. Of the $5,093.81 in costs requested in March 20,2009 Motion,the court excluded$1,390.48 in costs that were associated with electronic research, messenger/courier services, and travel and hotel costs. The court denied all of Coupe's request for$8,564.49 in prejudgment interest. In rejecting the$75,384.00 of attorneys'fees associated with preparing the billing records and Coupe's fee petition,the court ruled as follows: WHEREFORE,there shall be no recovery for fees and expenses incurred in litigating the propriety of the fees to be awarded pursuant to IIIHawai`i Ventures, LLC v. Otaka, Inc., 116 Hawai`i 465, 173 P.3d 1122 (Haw.2007) (holding receivers are not entitled to recover fees and expenses associated with litigation involving the propriety of the fees to be awarded to them because the law imposes on a party the duty to pay her won [sic] fees and expenses in vindicating her personal interests). See also 11111111111111111111 Coupe II, 120 Hawai`i at 414-15,208 P.3d at 727-28] (denying [Coupe's]recovery for the costs it incurred in preparing the Request for fees and the Response). WHEREFORE, $75,384.00 sought for the preparation of billing records for[Coupe's]fee petition and/or preparation of the [Coupe's] fee petitions shall be excluded pursuant to Otaka as objected to by[the] County. 3.The Court's May 14,2009 Supplemental Findings of Fact and Conclusions of Law and Order on Coupe's original October 11,2007 Motion for Statutory Damages,HRS§101-27,in Condemnation 1 Also on May 14, 2009, with regard to the damages requested in Coupe's original October 11, 2007 Motion, the court issued a Supplemental Findings of Fact and Conclusions of Law and Order to First Amended Findings of Fact, Conclusions of Law, and Order filed September 27, 2007 Regarding Motion of Defendant C &J Coupe Family Limited Partnership For Statutory Damages Pursuant to [HRS] § 101-27, filed October 11, 2007 (Supplemental FOFCOL for Statutory Damages). Therein, the court awarded Coupe $1,535,375.07 in attorneys' fees, $111,112.28 in costs, and $61,612.03 in excise taxes, but denied Coupe's request for$276,762.41 in prejudgment interest and$23,827.89 in costs associated with electronic research charges and miscellaneous fees including messenger fees,costs to obtain real estate documentation and delivery services. 4. Supplemental Final Judgment The court filed its Supplemental Final Judgment on May 14, 2009. With respect to Condemnation 2, the Supplemental Final Judgment stated that "Condemnation 2 is valid" and ordered judgment to be entered in favor of the County and Oceanside and against Coupe because (1) "there was a valid public purpose in Condemnation 2 and no pretext was found[,]" (2) "[t]he Development Agreement did not invalidate Condemnation 2[,]" (3) "[t]here [wa]s no trespass [,]" and (4) "[t]here [wa]s no WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 6 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 inverse condemnation."Just compensation for the property in Condemnation 2 was set at$162,204.83 and blight of summons damages 11 at 10%per annum. **1146 *291 With respect to Coupe's October 11,2007 Motion for statutory damages for Condemnation 1,the Supplemental Final Judgment ordered that judgment be entered against the County in the amount of$1,586,871.52.12 With respect to Coupe's March 20,2009 Motion for additional damages not previously claimed in its October 11,2007 Motion, the Supplemental Final Judgment ordered that judgement be entered against the County in the amount of$46,945.81. 5.Coupe's Motion to Alter Judgment On May 22,2009,Coupe filed a Motion to Alter Judgment in Condemnation 2,requesting that the court amend its Supplemental Final Judgment to"correct the just compensation and blight amounts in[Condemnation 2] ...based on an apparently inadvertent miscalculation in the 2005 valuation of the property sought to be taken."On June 19, 2009, the court denied Coupe's Motion to Alter Judgment because"this issue was not raised on appeal and there was no mathematical error by the [c]ourt." II. COUPE'S CURRENT APPEAL(SECOND APPEAL) On June 10, 2009, Coupe filed its notice of appeal on Condemnation 1 to the ICA, appealing the court's May 14, 2009 Supplemental FOFCOL for Statutory Damages,the court's May 14,2009 Order granting Coupe's March 20,2009 Motion for statutory damages,and the court's May 14,2009 Supplemental Final Judgment.On July 1,2009,Coupe filed its notice of appeal on Condemnation 2,appealing the court's Supplemental FOFCOL as to Condemnation 2,the court's June 19,2009 order denying Coupe's Motion to Alter Judgment in Civ.No. 05-1-015K,and the court's May 14,2009 Supplemental Final Judgment.13 This court accepted Coupe's motion to transfer the Second Appeal from the ICA to this court on December 21,2009. Coupe's opening brief contains two parts.First,related to the court's judgment on Condemnation 2,Coupe argues that(1)"Condemnation 2 was per se pretextual under the Fifth and Fourteenth Amendments of the U.S. Constitution, and article I, section 20 of the Hawai`i Constitution[,]" (2) "the undisputed evidence reveals that County's stated purpose in Resolution 31-03 was patently and obviously pretextual,"because the actual purposes for Condemnation 2 were"to insulate County from liability to Oceanside [under the Development Agreement] and to [Coupe under HRS § 101-27],and to provide an overwhelming private benefit to Oceanside[,]"and(3)"if this court sustains Condemnation 2,the court's award of just compensation was erroneous because it did not take into account the appreciation in land values between 2000 and 2005." Second,related to Condemnation 1, Coupe argues that under HRS § 101-27,Coupe was entitled to(1)attorneys'fees and costs for preparing and litigating the propriety of fees,which were denied in the court's May 14,2009 Order on Coupe's March 20,2009 Motion,and(2)prejudgment interest to "compensat[e]for the loss of use of funds[,]"which the court denied in its May 14,2009 Supplemental FOFCOL for Statutory Damages. III. PRETEXT ISSUE AND VALUATION OF CONDEMNATION 2 IN COUPE'S SECOND APPEAL A.Coupe's Per Se Pretext Argument Coupe's first argument urges this court to create a per se rule that"[c]ondemnations *292 **1147 instituted pursuant to a contract which delegates the power of eminent domain are invalid as a matter of law, without inquiry into any benefits which may result from the taking[,]"and therefore,any condemnation"instituted before [the contract]was repudiated or invalidated" is also "tainted[.]"Coupe maintains that a per se rule is merited to avoid the appearance of government impropriety and bias and to protect the public against "serial takings ... [that] would render judicial review futile" inasmuch as "proof of pretext would be impossible...as a practical matter,because [t]he government will rarely acknowledge that it is acting for a forbidden WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 7 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 reason[.]' "(Quoting Coupe I, 119 Hawai`i at 379, 198 P.3d at 642)(quoting Franco v. Nat'l Capital Revitalization Corp., 930 A.2d 160, 169(D.C.2007)). It appears that the County does not address Coupe's per se argument.However,Oceanside argues that"a per se rule for takings under the public use clause [(a)]has not been adopted by the Hawai`i courts or in any other jurisdiction, [(b)]would infringe on the legislature's discretion to make public use determinations[,] and [(c)] would clash with case precedent."14 In its reply brief to Oceanside, Coupe contends, in part, that a"bright line rule ... does not eliminate judicial inquiry,but rather focuses it where it will be most productive"and that"any inquiry into legislators'motives would in all likelihood be pointless""because the government understands what it must not say to avoid revealing the private influence[.]" Article I, section 20 of the Hawai`i Constitution states that "[p]rivate property shall not be taken or damaged for public use without just compensation."Whether a particular use is a public use"is a judicial question of law to be decided on the facts and circumstances of each particular case."Ajimine, 39 Haw. at 550.This court has interpreted the"public use"clause to authorize takings for a"public purpose[.]" Haw.Hous.Auth. v.Lyman, 68 Haw.55,68,704 P.2d 888,896(1985)("Where the exercise of the eminent domain power is rationally related to a conceivable public purpose,a compensated taking is not proscribed by the public use clause."(Citing United States v. Gettysburg Elec. Rv. Co., 160 U.S. 668,680, 16 S.Ct.427,40 L.Ed. 576 (1896).)). A challenge to "the validity of the asserted public purpose underlying [a] condemnation presents a question of constitutional law, which this court reviews de novo under the right/wrong standard." Coupe I, 119 Hawai`i at 374, 198 P.3d at 637 (citing III1State v. Cuntapay, 104 Hawaii 109, 113, 85 P.3d 634,638(2004)). As discussed above, in Coupe I, this court instructed that the court may"look behind the government's stated public purpose" where the purported public purpose maybe pretextual.Id. at 375, 198 P.3d at 638. Coupe I relied on Ajimine, which held that " `where ... the [1]egislature declares a particular use to be a public use[,] the presumption is in favor of this declaration ... unless such use is clearly and palpably of a private character [.]' "Id. at 381, 198 P.3d at 644 (quoting Ajimine, 39 Haw. at 549)(emphasis,ellipsis,and brackets in original). Coupe I indicated that"legislative bodies vested with the power of eminent domain have broad discretion in determining what uses will benefit the public and what land is necessary to facilitate those uses[,]"and quoted Ajimine for the general rule which states as follows: [W]hen the public nature of a use for which a taking has been authorized by law is disputed,the question as it presents itself to the courts is whether the legislature might reasonably have considered the use public,not whether the use is public.This rule rests on the presumption that a use is public if the legislature has declared it to be such. Id. at 393, 198 P.3d at 656 (quoting Ajimine, 39 Haw. at 549 (internal quotation marks and citations omitted)) (emphasis in original) (boldfaced emphasis omitted). Additionally, Coupe I stated that"legislative findings and declarations of public use" are accorded **1148 *293 "great weight"and are entitled to"prima facie acceptance of[the determination's] correctness." Id. at 374-75, 198 P.3d at 637-38. Thus,to overcome this prima facie acceptance, a defendant must show that such a finding of public use" 'is manifestly wrong.' "Id. at 375, 198 P.3d at 638 (quoting Ajimine, 39 Haw. at 550). A contract that delegates a county's eminent domain powers, raises well founded concerns that a private purpose is afoot. However,a per se rule of pretext would threaten the established rule of deference given to the findings and declarations of the government in these cases. Furthermore, a bright line rule would deprive courts of the judicial function recognized in Coupe I. Relying •on this court's prior decisions and the majority opinion in• Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), Coupe I posited that the decision of the legislature is not" `conclusive,for the issue of public use is a judicial question and one of law to be decided on the facts and circumstances of each particular case.' "Coupe I, 119 WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 8 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 Hawai`i at 384, 198 P.3d at 647 (quoting Ajimine, 39 Haw. at 550) (emphasis in original). Consequently,this court concluded that a court may"look behind an eminent domain plaintiffs asserted public purpose"to determine whether a purported public purpose is pretextual.Id. Coupe I indicated that whether the Development Agreement was in effect at the time of Condemnation 2 would be a factor in determining pretext. This court explained that"the court's conclusion that Condemnation 2's public purpose was valid,"based solely on Resolution 31-03, "may have elevated form over substance[,]"and thus ruled that [d]espite the lack of reference to the Development Agreement in Resolution No.31-03,it is not apparent from the record whether any or all of the same provisions in the [Development] Agreement that led the court to invalidate Condemnation 1 were still in effect and underlay Condemnation 2, or whether other conditions existed such that the private character predominated. Those issues may be factors relevant to the pretext issue. Id. at 383, 198 P.3d at 646 (emphasis added) (footnote omitted). Hence, "whether any or all of the [ ] provisions in the [Development] Agreement ... were still in effect" at the time Condemnation 2 was executed or "whether other conditions [surrounding Condemnation 2] existed"that could cause the private character to predominate over the public purpose, were "factors relevant to [,]" but not per se dispositive of, the pretext issue. Accordingly, the adoption of a bright-line per se rule would conflict with Coupe I. As observed, Coupe argues that the adoption of a per se pretext rule is necessary because the government "will rarely acknowledge that it is acting for a forbidden reason."But,this consideration was identified as an obvious problem in Coupe I. See id. at 379, 198 P.3d at 642 (stating that" [t]he government will rarely acknowledge that it is acting for a forbidden reason, so a property owner must in some circumstances be allowed to allege and to demonstrate that the stated public purpose for the condemnation is pretextual' " (quoting III1Franco, 930 A.2d at 169 (emphasis omitted))). This court addressed that issue by allowing the court to look beyond government findings and declarations in deciding whether the stated public purpose was pretextual.Id. There may be evidence outside of the government's declarations and findings that would prove that the asserted public use was" `clearly and palpably of a private character' "and that the government's findings were"`manifestly wrong[,]' "and thus,would enable a defendant to rebut the prima facie acceptance of a public purpose.Id. at 375,198 P.3d at 638(quoting Ajimine, 39 Haw. at 550). However, the burden rests on the defendant, who must show that the public purpose asserted in the findings or declarations was " 'mere pretext [,]' " and the " `actual purpose was to bestow a private benefit.' "Id. at 379, 198 P.3d at 642 (quoting III1Kelo, 545 U.S. at 477-78, 125 S.Ct. 2655) (emphasis omitted). Indeed,this court cautioned that such a showing" 'may be difficult to make[,]' " but a defendant was not foreclosed from making such a showing.Id. (quoting III1Franco, 930 A.2d at 169).Given that this court has decided this issue by allowing a *294 **1149 defendant to present evidence of pretext beyond the government's findings and declarations,the fact that a legislative body may not admit that the purpose is for a private benefit does not alleviate the defendant's burden or necessitate a per se rule of pretext. B.Coupe's Pretext Contentions 1.The Parties'Arguments Coupe's second argument contends that the court failed to recognize that the actual purposes of Condemnation 2 was first,"to avoid liability for breach of the Development Agreement," inasmuch as "[a]t the time County was considering and adopting WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 9 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 Resolution 31-03,the Development Agreement... appeared to be in full force and effect[,]"and"[the] County believed it had obligated itself to comply with the Development Agreement[.]"(Emphasis in original.) Second,Coupe asserts that the County instituted Condemnation 2 so that,if Condemnation 1 failed,the County could"[take]the position that Condemnation 2 would insulate it from[HRS§] 101-27 damages should Condemnation 1 ultimately fail."Third,Coupe contends that"only Oceanside benefitted from [Condemnation 2]" because (a) "Oceanside was obligated" to build the Bypass as a condition of rezoning Hokulia,(b)the"County would have no means to condemn the right-of-way from Oceanside"should Oceanside"go bankrupt or the Development Agreement be in fact void ab initio," and(c) "[t]he [r]ecord contains no evidence that Resolution 31-03 was part of a carefully considered and integrated plan to alleviate traffic apart from the Development Agreement." In response,the County maintains that"there is no evidence that the County passed Resolution 31-03 either to avoid liability to Oceanside or to[Coupe.]"15 Oceanside contends that Condemnation 2 was not predominantly for Oceanside's benefit because "the facts and circumstances surrounding Condemnation 2 evidences the County's independent desire to get the Bypass built for public purposes."16 In response to the County's and Oceanside's arguments, Coupe initially contends that "[t]he only conclusions which can be drawn from the[court's]finding that the *295 **1150 record contains'no evidence'of pretext is that the[court]either did not look at the undisputed evidence ...or...it simply did not understand what this [c]ourt tasked it to do on remand."According to Coupe,the County's and Oceanside's"admission that Condemnation 2 was filed because Condemnation 1 was failing destroys Oceanside's and the County's claim that Condemnation 2 was independent of Condemnation 1"because"an unrevealed side benefit[of saving County from breach of the Development Agreement]is sufficient to show that the County's professed reason for Condemnation 2 was not the actual reason,since the side benefit was never advanced as a reason for Condemnation 2." Additionally,Coupe argues that the court relied on erroneous evidence of public benefit because the review by the Department of Public Works was a technical review that does not diminish delegation to Oceanside,Oceanside had no access for the Hokulia project and could not obtain its rezoning to build Hokulia without building the Bypass,and there was no new consideration for the Development agreement because"Oceanside was already obligated to acquire and build the Bypass before the Development Agreement[.]" Furthermore, Coupe maintains that "a claim of`need' is not the comprehensive plan envisioned by the majority opinion in [Kelo]"and that the general plan"shows two roadways which roughly parallel the shoreline"whereas the proposed Bypass "results in a deletion of one roadway and alters the route of the other, resulting in a single bypass (which strikes diagonally across the two general plan corridors) [and]instead of paralleling the shoreline,cuts from nearly sea level to nearly 2,000 feet." 2.Whether the Actual Reason Behind Condemnation 2 was to Avoid Liability Under the Development Agreement As to Coupe's first assertion that "[a]t the time County was considering and adopting Resolution 31-03, the Development Agreement...appeared to be in full force and effect[,]"neither the County nor Oceanside argues to the contrary.However,the fact that the Development Agreement existed at the time that Condemnation 2 was instituted, as discussed supra, does not in and of itself require a finding of pretext.While Coupe asserts that the County's true purpose in proceeding with Condemnation 2 was to comply with its obligations under the Development Agreement,the court's Supplemental FOF 19 of its Supplemental FOFCOL as to Condemnation 2 found that"[n]o evidence supporting this contention was presented at trial."Coupe challenges this finding,arguing that it"does not reflect the undisputed evidence in the record of overwhelmingly private benefit, and lack of public benefit from Condemnation 2."However, other than Coupe's assertion, there is no support in the record on remand that complying with the Development Agreement predominated over the public purpose of building a traffic corridor for the public at large traveling through the Kona area.Instead,the record suggests that at least some of the council members believed that the County was not in breach of the Development Agreement and that Condemnation 2 was necessary to build the Bypass for the general public. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 10 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 For example,the minutes of the January 7,2003 public hearing on Resolution 31-03,reflect that one council member stated: I'm going to vote against[Resolution 31-03] [], although the need for the road is enormous,the people in Kona do need it. What I see is that we're being having[sic] to pay multiple times for this road. We've carried out our portion of the development agreement. I think that we don't need to carry out any further parts of this. The ball should be in Hokulia or [Oceanside's] court, and they should be taking care of these costs. Thank you. (Emphasis added.)Another council member asserted: I'll be supporting the resolution. We need to get this road moving; and if it requires that the County condemn and pay for some of the property in order to get this road done in the interest of the general public so that we have an alternative highway, because of the terrible traffic conditions in Kona;I think that we need to do *296 **1151 this;and that we need to show our resolve in getting this road built. (Emphasis added.)Further,another council member declared: I,too,will be supporting[Resolution 31-03]. When I ran for election,part of my promise was that I'd do everything that I could to improve the road situation in Kona;and believe me, when I was going door to door, that was the biggest concern of the people.And to not do everything we can do would be derelict, in my opinion; and particularly for me,since this is in the heart of my district. (Emphasis added.) As noted before, Coupe argues that "even if saving County from breach of the Development Agreement was only a `side' benefit[,]" "an unrevealed side benefit is sufficient to show that the County's professed reason for Condemnation 2 was not the actual reason[.]" However, Coupe cites no authority for this proposition. "[G]reat weight is accorded to legislative findings and declarations of public use"and a heavy burden is on the defendant to demonstrate that the use was "clearly and palpably of a private character." Coupe I, 119 Hawaii at 374-75, 198 P.3d at 637-38 (internal quotation marks and citations omitted). Consequently,the argument that a"side benefit[,]"even if"not advanced[,]"should automatically establish that the government's professed reason for condemnation is not the actual reason,is not persuasive. 3.Whether the Actual Reason Behind Condemnation 2 was to Avoid Liability Under HRS§ 101-27 Next,as stated previously,Coupe argues that Condemnation 2 was instituted so that if Condemnation 1 failed,the County could assert that it was not liable for damages under HRS § 101-27 because the land would eventually be taken in Condemnation 2. In response to this argument, Oceanside asserts that"Coupe[] did not make this argument to the court below [.]" Coupe, on the other hand, contends that it raised this issue below when Coupe "urged the court to view Condemnation 2 in light of Condemnation 1 and the Development Agreement"in its proposed COL 21. 17 Coupe's proposed COL 21 stated: WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 11 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 21. Thus, in the present case, the [c]ourt must look to the context of Condemnation 2 and the factual situation surrounding it,which includes the historical context of the taking,the specific series of events leading to Resolution 2 and Condemnation 2, and the legislative history including statements made by County officials—not just the text of Resolution 2—to determine whether Condemnation 2 is for a u�l�« public use,or whether it was pretextual as the Hawai`i Supreme Court instructed on remand. 4 Church of Lukumi Bablu [Babalu ] Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472(1993); [Coupe I], 119 Hawaii 352, 198 P.3d 615 (2008). Although proposed COL 21 contends in general terms that the court must look at the facts surrounding Condemnation 2, proposed COL 21 did not make any reference to avoiding liability under HRS§ 101-27.Thus,Coupe did not raise the County's avoidance of a liability claim under HRS § 101-27 as a reason for Condemnation 2. Consequently,this court need not address this issue on appeal.See State v.Moses, 102 Hawaii 449,456,77 P.3d 940,947(2003)("[I]f a party does not raise an argument at trial,that argument will be deemed to have been waived on appeal;this rule applies in both criminal and civil cases.");State v.Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990) ("[T]he failure to properly raise an issue at the trial level precludes a party from raising that issue on appeal.")(Citation omitted.). Even if Coupe did raise this argument below,there is no evidence in the record to reflect that the County's actual purpose for Condemnation 2 was to avoid liability for attorneys' fees and costs under *297 **1152 HRS § 101-27. Tt is true that in defending against Coupe's October 11,2007 Motion,the County asserted,inter alio, that it was not liable because the property was eventually taken in Condemnation 2. However, there is no evidence that this was the prevailing reason for the County Council's approval of Condemnation 2. Thus, while Condemnation 2 provided an incidental benefit to the County, as Coupe maintains,it is insufficient to rebut the strong presumption in favor of the court's finding of public purpose in Condemnation 2. 4.Whether the Actual Reason was to"Provide an Overwhelming Benefit to Oceanside" a.Coupe's argument that Oceanside could not open Hokulia without acquiring,completing,and conveying the Bypass to the County Coupe argues,as said before,that the only entity that stood to benefit from Condemnation 2 was Oceanside because Oceanside could not open the Hokulia project without completing and conveying the Bypass to the County. To support this argument, Coupe asserts that Oceanside had invested in excess of$90 million in Hokulia, and Ordinance 94-73 required Oceanside to build the Bypass as a condition of its zoning change. The Supreme Court has recognized that "the government's pursuit of a public purpose will often benefit individual private parties."PKelo, 545 U.S. at 485, 125 S.Ct. 2655. Where the asserted public purpose is a road,this court has noted that"the character of the proposed public use, i.e., a public road, is itself strong evidence mitigating in favor of the presumption of validity" and"[i]ndisputably,public roads have long been recognized as a public purpose for which private property may be condemned." Coupe I, 119 Hawaii at 380 n. 32, 198 P.3d at 643 n. 32(citations omitted). "But, 'the single fact that a project is a road does not per se make it a public road.' "Id. (quoting City of Novi v. Robert Adell Children's Funded Trust, 473 Mich. 242,701 N.W.2d 144, 150 (2005) (emphasis in original)). "[W]hen considering a condemnation action for the purpose of constructing a public road,there is no mechanical formula for determining public use";instead,"[t]his issue must be decided on a case-by-case basis."Id. (internal quotation marks,brackets,and citations omitted). WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 12 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 There are many factors that courts have considered when determining whether a road is a public use.Courts have recognized that roads often benefit the owners of adjacent or nearby property and are often constructed at the request of individuals;however, such a benefit to adjoining property owners does not render the taking invalid. See e.g., Sturgill v. Commonwealth, Dept. of Highways, 384 S.W.2d 89,91 (Ky.1964)("Any public way naturally confers a special benefit on those persons whose property adjoins it.");PRodgers Deu Co. v. Town of Tilton, 147 N.H. 57, 781 A.2d 1029, 1034 (2001) (holding that"although [the developer] will be particularly benefitted by the dedication of the roads to public use, the taking of the landowners' property for that use is constitutional"); cf.PTerritory by Sylva v.Mendonca, 46 Haw. 83, 95, 375 P.2d 6, 13 (1962)(recognizing that landowners in a condemnation proceeding may receive special and direct benefit"arising from its own position upon the way itself'in addition to general benefit.)Where the road is to be open for public travel,courts have weighed such a factor in favor of a public use even if the road is more convenient only to a few individuals.See, e.g., PRoad Dist. No. 4 v. Frailey, 313 Ill. 568, 145 N.E. 195, 197 (1924) (stating that"the great weight of authority in this country sustains the right of the Legislature to authorize the taking of private property against the owner's consent where the taking is for a public use,notwithstanding a much greater benefit will accrue to private parties especially interested than to the public generally");Sturgill, 384 S.W.2d at 91 ("The accepted test is whether the roadway is under the control of public authorities and is open to public use, without regard to private interest or advantage."); City of Novi, 701 N.W.2d at 151 (upholding a public use where(a)the city"initiated the project in response to the growing traffic problems in the area[,]"(b) "[o]wnership, control, and maintenance w[ould]remain with that public body[,]" and(c) "although [a private entity]"may be the primary user of the spur, "[i]t is the right of *298 **1153 travel by all the world,and not the exercise of the right,which constitutes a way a public highway"(internal quotation marks and citation omitted));PState Highway Comm'n v. Thornton, 271 N.C.227, 156 S.E.2d 248,260(1967)(holding that "[a]road does not cease to be a public road merely by reason of the fact that one individual or corporation derives more benefits from it than does anyone else"). On the other hand,courts have held that a road which is not a public highway or which is not open to the public is not a public use. See PTolksdoyf v Griffith, 464 Mich. 1, 626 N.W.2d 163, 169 (2001) (holding unconstitutional a state law that allowed landlocked private landowners to build private roads on property of others,finding that"[a]ny benefit to the public at large was purely incidental and far too attenuated to support a constitutional taking of private property"(citation omitted));PThornton, 156 S.E.2d at 260 (stating that, "if, in reality, [the road] is by its very nature and location to be used only by one family or corporation, save for occasional incidental use by visitors, it is not a public road and the property of another person cannot be taken for its construction under the power of eminent domain");. Contrary to Coupe's assertions, the record reflects that Oceanside was not the only entity that stood to benefit from the construction of the Bypass.As indicated in the court's findings in the Supplemental FOFCOL as to Condemnation 2,the record reflects that"a number of studies and plans"were undertaken by the County,prior to the development agreement,that recognized the public's need for a Bypass. In particular, on remand, the following Supplemental FOFs in Supplemental FOFCOL as to Condemnation 2 state in relevant part: 3. A 1979 State Department of Transportation study stated that a highway to bypass the Mamalahoa Highway would be beneficial because the Mamalahoa Highway did not conform to the desired level of service criteria due to the inadequate physical elements of the existing highway, high accident rates, anticipated higher traffic volume and congestion, and the need for a route continuously around the island. 4. The Department of Planning Kona Regional Plan(1982)stated that "traffic counts[on Mamalahoa Highway]show the traffic to be equal to or exceeding the roadway design capacity which is an undesirable traffic condition ... [resulting in] WEST LAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 13 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 heavy burden on the roadway network, increasing both travel time and inconvenience."A community survey conducted in connection with the report indicated that the deteriorating traffic condition was viewed as a major problem by a third of the sample group. 5. The 1989 Hawai`i County Council General Plan (Ordinance 89-142) adopted the 1979 State Bypass highway and Ali`i Highway. The General Plan's South Kona transportation course of action identified as desirable the construction ofa roadway from Keauhou to Ndpo'opo`o. 6. A November 1995 traffic study stated that the Bypass Highway "will result in a beneficial reduction of traffic volumes on Mamalahoa Highway." 7.A June 1997 traffic study concluded that: "The fundamental public enhancement provided by the proposed project[Bypass] will be its contribution to helping relieve the congested regional transportation system."The traffic study again confirmed that there was a limited ability to improve the Mamalahoa Highway between the areas of Honalo and Captain Cook because of the limits to the existing highway right of way,the existing business and structures that presently exist on the right away and the number of other topographical constraints. 8.A 1998 study prepared for the Department of Transportation recognized the need, based on traffic safety considerations, for the Bypass Highway. 15.Community and public meetings,including those held before the Planning Commission,the Planning Committee and the County Council,have shown support for the Bypass Highway. **1154 *299 16.A highway to bypass the Mamalahoa Highway has thus been determined to serve the public interest and no credible evidence was presented that indicate that the County Council intended that Oceanside,as opposed to the public, would predominantly benefit from Resolution No. 31-03. (Brackets in original.)Coupe did not challenge any of the above findings on appeal, and therefore,these findings are binding on this court.See PBremer v. Weeks, 104 Hawai`i 43,63, 85 P.3d 150, 170(2004)("This court has held that findings of fact... that are not challenged on appeal are binding on the appellate court.")(Internal quotation marks and citation omitted.). Hence, these studies and plans support a conclusion that the Bypass satisfied a broad public use of alleviating traffic congestion in the area,rather than to simply confer a wholly private benefit to Oceanside. Furthermore, the instant case does not present the situation where "[the Bypass] is by its very nature and location to be used only by [Oceanside], save for occasional incidental use by visitors[.]" Thornton, 156 S.E.2d at 260. While the condemned property is to be initially transferred to Oceanside,the Development Agreement required that Oceanside dedicate the Bypass to the County upon its completion and that the County would"assume all responsibility and costs for operation,maintenance, repair, or reconstruction of the [Bypass]." In the instant case, the County would ultimately be given ownership, control and maintenance of the Bypass,and Oceanside would have no ability to control the use of,or access to,the Bypass. Coupe admits that "over 1,250 acres of Oceanside's project did touch a public road" and the existing road system was "at 80%capacity,and traffic improvements along Mamalahoa Highway would significantly increase traffic flow through the area." Moreover,the court's Supplemental FOF 20 in the court's FOFCOL as to Condemnation 2, stated that"Oceanside already had public access to the Mamalahoa Highway through Haleki`i Street"and"[t]he Bypass...,which bisects Hokulia and connects with other public roads at both ends beyond the Hokulia property[.] "(Emphasis added.) Supplemental FOF 20 acknowledged that the Bypass"does provide improved access to Hokulia for development of a luxury subdivision[.]"It stated further,however,that "that does not negate the County Council's predominant purpose by enacting Resolution 31-03 to obtain the Bypass Highway for [a] broader public purpose, consisting of an additional traffic corridor for those traveling through the region (as opposed to those traveling to and from Hokulia)."(Emphasis in original.) WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 14 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 Coupe challenges the court's Supplemental FOF 20,arguing that Oceanside's"requested rezoning could not be accommodated by the existing road system,"and,thus,"Oceanside's needs predominated over public needs,because it was Oceanside's need for a rezoning that would add hundreds of residential units to the system that required the construction of the[B]ypass so Oceanside would have sufficient access without burdening the existing traffic net." Nevertheless, that the Bypass allows Oceanside to develop its property does not detract or destroy the public character of the Bypass or render the condemnation invalid. ii. Next, according to Coupe, the change in the northern terminus of the Bypass from Kuakini Highway to Ali`i Highway was to benefit Oceanside.The court clearly rejected this argument,stating in FOF 18 of its Supplemental FOFCOL as to Condemnation 2,that"the alignment of the [Bypass], with a northern terminus at Alii Highway rather than at Kuakini Highway, was [ (1) ] preferred and selected by the [C]ounty,and[(2)] is consistent with the General Plans that have been adopted by the County." Coupe challenges FOF 17 and 18,that the Bypass was in conformity with the General Plan, arguing that the finding is "plain error"and"reflects that the[]court made no effort to look below the surface of Oceanside's and[the]County's representations." However,contrary to Coupe's assertions,there is substantial evidence in the record to support the court's findings.For example, in the testimony of Donna Kiyosaki,director *300 **1155 and chief engineer of the County of Hawai`°i Department of Public Works from 1993 to 1998, Kiyosaki explained the County's reasons for moving the northern terminus from the intersection of Kuakini and Mamalahoa highway to the Alii Highway were as follows: As we started reviewing available information for this bypass road and looking at options that were available, alternatives that were available, we soon realized that there were a lot of issues with the Kuakini intersection, including some difficult engineering design, that would have to be accomplished in order to make that intersection work as well as the need to go through an area that would require the taking of private properties in terms of actual smaller lots in residential areas and would exact people in the area. At the same time we were pushing to get Alii Highway Bypass Road designed and completed. When we looked at all the concerns combined,we felt continuation of the Ali'i Highway... would provide that type of regional bypass road that would make sense for the Kona area. (Emphases added.)Kiyosaki elaborated on the safety and engineering design difficulties with the Kuakini intersection, stating that: Kuakini being an existing road was already seeing a host of issues regarding safety,because it had a lot of direct access from properties onto the road. So it was not what you would call a limited access type of road. There were a lot of stops along the road, a lot of direct driveways on the road. And especially near that intersection point, the grade was very steep, and it was not a place that it would have been easy to make a connection to. Any connection you made to that would cause,I believe,congestion and problems along Kuakini in the condition that it was currently in.And making improvements to Kuakini would have been very difficult (Emphases added.)She also testified that a letter from the County of Hawaii Department of Public Works was sent to the project manager of Oceanside on January 4, 1995,which related that the alternative location of the Bypass,with the northern terminus at Ali`i Highway, "provide[d] the best overall circulation system for this region of Kona in accordance with the General Plan Facilities Map." William Moore was"retained by Oceanside to assist in the completion of the [Bypass Highway]"and"did the initial contacts with all the landowners"along the Bypass.He testified that(1)his work on the Bypass process resulted from"the approval of the alignment by the Department of Public Works in [a] January 1995 letter[,]" (2)"[it was] the Department of Public Works WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 15 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 that ma[de the] determination on the alignment," and(3) "it was [his] understanding that the determination was made in that January'95 letter[.]" In light of Kiyosaki's testimony, the January 4, 1995 letter, and Moore's testimony, there is substantial evidence in the record to support the court's supplemental FOF 20 in the court's Supplemental FOFCOL as to Condemnation 2. Fain re Water Use Permit Applications, 94 Hawaii 97, 119, 9 P.3d 409,431 (2000) (recognizing that substantial evidence is "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" (quoting Leslie v. Estate of Tavares, 91 Hawaii 394, 399, 984 P.2d 1220, 1225 (1999))). Thus, Supplemental FOF 20 is not clearly erroneous.See id. (A finding of fact"is clearly erroneous when(1)the record lacks substantial evidence to support the finding or determination,or(2)despite substantial evidence to support the finding or determination,the appellate court is left with the definite and firm conviction that a mistake has been made."). b. Coupe's argument that the County had no assurance that Oceanside or its lenders would be viable at the time of performance Coupe contends that the County receives no benefit from Condemnation 2 because should "Oceanside go bankrupt or the Development Agreement be in fact void ab initio, County would have no means to condemn the right-of-way from Oceanside." Coupe asserts that in the hypothetical situation in which Oceanside or its lenders declare bankruptcy *301 **1156 while the Bypass was being constructed,"[t]he Development Agreement being an executive contract,could be voided...,leaving County with an unsecured damage claim"and the bankrupt estate could then sell the"partially built right-of-way"to the highest bidder. Coupe also argues that if the Development Agreement was illegal,then Oceanside would have no obligation to build the Bypass. As discussed above, there is a presumption that the declared public purpose in Resolution 31-03 is valid, and Coupe bears the heavy burden of proving that the finding of public purpose is manifestly wrong. See Coupe 1, 119 Hawaii at 375, 198 P.3d at 638. The fact that Coupe can posit a hypothetical situation in which the Bypass may not be built, does not establish that Condemnation 2 was clearly and palpably of a private nature and provided no benefit to the public. Whether there are contingencies in the future that might prevent Oceanside from building the Bypass is not dispositive in the inquiry of whether the actual reason for the taking was for a public purpose. Thus,Coupe's argument that Condemnation 2 was a"sham"because the County had no assurance that Oceanside or its lenders would be viable at the time of performance,is unavailing. c.Coupe's argument that there is no evidence that Resolution 32-03 was part of a carefully considered and integrated plan to alleviate traffic As discussed supra, the court's findings in the Supplemental FOFCOL as to Condemnation 2 reflects that"a number of studies and plans"were undertaken by the County prior to the Development Agreement. For example, in 1979,the State of Hawaii Department of Transportation(DOT)conducted a preliminary engineering report"to perform the preliminary planning activities necessary to define a highway corridor through North and South Kona...,thereby enabling the State to design a safe and efficient highway through that area." According to the 1979 Report, the planning for another highway through the area was needed because of(1)"[t]he inadequate physical elements of the existing [Mamalahoa H]ighway[,]"(2)"[h]igh accident rates"on the Mamalahoa Highway,(3)"[a]nticipated higher traffic volume and congestion[,]"(4)the"improvement of a route continuously around the island[,]"and(5)the"County land use policy[.]" The 1982 Kona Regional Plan also indicated the need for improvements to the existing roadway infrastructure. In particular, the 1982 Kona Regional Plan stated,in part,that: County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 The traffic counts at all recording stations show large growth in recent years.Available data indicates that this growth has nearly doubled the traffic volume from Captain Cook to Keauhou.... The rapid growth has placed heavy burdens on the roadway network, increasing both travel time and inconvenience. The community survey indicates that the deteriorating traffic situation is viewed as a major problem by 33% of the persons polled. (Emphasis added.) A DOT Hawai`i Long Range Land Transportation Plan, dated May 1998, also included a new two-lane highway including intersection improvements from"Alii Highway terminus to[the]Mamalahoa[Highway]/Napoopoo Road intersection,"18 and then"widen[ing] [the] (proposed)two-lane highway to four lanes[.]" In sum,these traffic studies and general plans presented at trial recognized(1)that there would be a projected increase in the volume of traffic between Keauhou and Captain Cook,(2)that the projected volume of traffic would exceed the capacity of the existing Mamalahoa Highway,and(3)that a Bypass highway would result in a reduction of the traffic congestion on Mamalahoa Highway.None of these FOFs were challenged on appeal.Thus,the Kona Regional Plan,the Hawai`i Council General Plan,and other traffic studies conducted by the County and the State indicate that a proposed Bypass *302 **1157 was contemplated even prior to the Development Agreement. (a) Instead,on appeal, Coupe challenges FOF 15 in the court's First Amended FOFCOL and Supplemental FOF 17 in the court's Supplemental FOFCOL as to Condemnation 2.FOF 15 states: 15. County Ordinance Number 96-8 amended 94-73 to include a shift in the alignment of the bypass highway from Kuakini Highway to the"appropriate vicinity of Keauhou." (Citation omitted.) Ordinance 96-8 declared that it is "an ordinance amending section 25-87(North Kona Zone Map)and Section 25-88 (South Kona Zone Map),Article 3,Chapter 25(Zoning Code)of the Hawai`i County Code,and Ordinance No.94-73,which classified certain lands from agricultural(A-5a) and unplanned(U)to Agricultural (A—la)[.]" (Formatting altered.) (Emphasis added.) As indicated in Ordinance 96-8, prior to its adoption, Section 3 of Ordinance 25-87 provided that the district classification was conditioned upon numerous conditions, one of which was construction of the Bypass. Among other amendments made, Ordinance 96-8 amended Ordinance 25-87 Section 3(L)(2) and Section(L)(3),by removing all references to an Exhibit"C" which established the bypass location and amending the text to allow for the alignment of the Bypass"between the approximate vicinity of Keauhou and Captain Cook[.]" Ordinance 96-8 also deleted section (L)(4) which specifically designated that the north end of the Bypass would intersect with Kuakini Highway. Accordingly, Ordinance 96-8 amended Ordinance 25-87 to read in part as follows(with deletions in brackets and the new,amended language underscored): VVESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 17 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 (L) Roadway improvements and access(es)to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property,the applicant shall: (2)determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit"C",] [sic]between the approximate vicinity of Keauhou and Captain Cook,including its intersection areas and its acquired ownership or control.... (3)construct[Phase One of]the Mamalahoa Highway Bypass [as shown in Exhibit"C",] [sic] in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes,provided further that the section of the Mamalahoa Highway Bypass between Keauhou and Halekii Street shall be completed and available for public use prior to the occupancy of any dwelling unit within the entire project area; [ (4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass;] In light of the foregoing amendments,the court's FOF 15 that"Ordinance Number 96-8 amended 94-73 to include a shift in the alignment of the bypass highway from Kuakini Highway to the `appropriate vicinity of Keauhou' "was not clearly erroneous. (b) Supplemental FOF 17 states: 17.The[c]ourt finds that the alignment of the Bypass Highway from Keauhou to Captain Cook that was identified in Ordinances 96-7 and 96-8 ... is consistent with the 1989 General Plan. Both Ordinances 96-719 and 96-8 required as a condition of the change in district classification *303 **1158 that the applicant determine the final right of away alignment of and construct the Bypass"between the approximate vicinity of Keauhou and Captain Cook[.]"A review of the 1998 General Plan Facilities Map indicates that the 1998 General Plan anticipated the proposed arterial highway from Keauhou to Captain Cook.A bypass"between the approximate vicinity of Keauhou and Captain Cook," as described in Ordinances 96-7 and 96-8, is consistent with the anticipated bypass designated in the 1998 General Plan Facilities Map. Accordingly,there is substantial evidence to support the court's finding, and,thus, Supplemental FOF 17 is not clearly erroneous.PIn re Water Use Permit Applications, 94 Hawai`i at 119,9 P.3d at 431. ii. In sum, the court's findings support the conclusion that (1) numerous plans and studies conducted prior to the Development Agreement recognized the need and anticipated the construction of a Bypass between Keauhou and Captain Cook and (2) Ordinances 96-7 and 96-8 were consistent with the County of Hawai`i's 1998 General Plan. Hence, Coupe's assertion that Condemnation 2 was not part of a general integrated plan is incorrect.20 C.Coupe's Challenge to the Valuation of the Property in Condemnation 2 WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 18 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 As to Coupe's third argument, Coupe posits that the valuation of the property taken in Condemnation 2 did not account for the increase in appreciation during the time between Condemnation 1 and Condemnation 2.According to Coupe,the court erred in concluding that the County's appraiser"determined that the value of the land did not appreciate between Condemnation 1 and Condemnation 2"when in fact"the appraiser testified that the land appreciated by 239%in that time."Thus,Coupe maintains that the property should be valued at$387,669.54 rather than$162,204.83. In response,the County asserts, first,that"Coupe's contention is untimely because it reargued the issue of just compensation after the trial on this issue was completed and it was not one of the issues remanded back to the [court.]" Second, the County argues that the just compensation amount for the property was"appropriate"because"[t]here is nothing improper of[sic]this [c]ourt finally deciding on a value of$140,500 (which is between the ranges testified to by [experts] Medusky and Bloom [at trial] )." In reply to the County,Coupe argues that valuation of the property was"sufficiently preserved...by raising as error the pretextual nature of the taking in Condemnation 2"because Coupe"prevailed on the pretext issue in Coupe I, and jurisdiction was once again vested in the trial court for further consideration";even if the valuation issue was not raised in the prior appeal,this court "vacated the trial court's entire previous judgment in Condemnation 2"and"[a]s a result, ... the parties were returned to their respective prejudgment positions";"all that was required of[Coupe] was that[it]preserve the issue by objecting below,which [it] did";and this court may "sua sponte notice and consider points of plain error where substantial rights may be affected,even if not properly raised on appeal or preserved below." 1.Whether the Valuation Issue was Untimely The record is clear that the court determined just compensation for the property in Condemnation 2 prior to the first appeal to this court in Coupe I. The court's *304 **1159 First Amended FOFCOL and Order included the following relevant findings: 121. The [c]ourt finds that the fair market value of the Property in [Condemnation 1] is $140,500. 122.For[Condemnation 1],based on the fair market value of the land sought to be taken,the blight damage percentage is set at 10%per annum, and damages computed from October 9, 2000 to January 28,2005. The [c]ourt finds that four years, three months,and nineteen days have elapsed between the two dates.With the percentage set at 10%per annum,and with the fair market value of the Property in [Condemnation 1] at$140,500,blight damages are$60,443.87. 123. The[e]ourt finds that the fair market value of the Property in[Condemnation 2]is$162,204.83. 124. For [Condemnation 2], based on the fair market value of the land sought to be taken,the blight damage percentage is set at 10%per annum,and computed from January 28,2005 until date paid. 126.Just compensation for[Condemnation 2]shall he as follows:$162,204.83(fair market value)plus 10%(blight damages) per annum until paid. (Emphases added.) On September 27, 2007, the court entered its First Amended Final Judgment, stating in part, "Just compensation for the condemnation of the[p]roperty in[Condemnation 2]is$162,204.83.Additionally, [b]light of[s]ummons damage from January 28, 2005 to the time of payment shall be 10% per annum." On February 8, 2008, Coupe filed its first notice of appeal, and on July 9, 2008, this court accepted transfer from the ICA in Coupe I. Coupe had the opportunity to challenge the evidentiary valuation of the property in its first appeal to this court, but did not do so. Therefore, Coupe's just compensation challenge is untimely. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 19 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 2.Whether Coupe Preserved the Valuation Issue by Challenging the Pretextual Nature of Condemnation 2 Coupe argues that it preserved the valuation issue when it raised the pretext defense in Coupe I. However, a pretext defense is distinct from a just compensation challenge. A challenge to just compensation assumes a valid taking but challenges the valuation amount for the property.21 On the other hand,the pretext defense asserts that a private person's constitutional right was violated because his or her property was not taken for a public purpose,but as pretext for a primarily private benefit. Coupe I, 119 Hawai`i at 384,198 P.3d at 647(recognizing that a"[c]ity would no doubt be forbidden...to take property under the mere pretext of a public purpose,when its actual purpose was to bestow a private benefit"(citing III1Kelo, 545 U.S. at 477-78, 125 S.Ct.2655))(citations omitted).A taking for a private benefit violates the"public use"requirement under the Fifth Amendment to the U.S. Constitution and article 1, section 20 of the Hawai`i Constitution, irrespective of whether just compensation was paid for the property. See FaKelo, 545 U.S. at 477, 125 S.Ct. 2655 ("[I]t has long been accepted that the sovereign may not take the property of A for the sole *305 **1160 purpose of transferring it to another private party B, even though A is paid just compensation."). Hence, a determination that an alleged public purpose was a pretext will constitute an unlawful taking, even though the landowner is justly compensated for the property. Inasmuch as the issue of just compensation is not relevant to the determination of a pretext defense, Coupe's pretext defense did not"preserve[]" Coupe's just compensation challenge of the property in Condemnation 2. 3.Whether this Court's Remand in Coupe I Allows Coupe to Challenge the Valuation of the Property Taken in Condemnation 2 Additionally, Coupe argues that it could challenge the just compensation amount because Coupe 1 returned the parties to their "respective prejudgment positions." This argument is also unavailing. In Coupe I, this court remanded both condemnation proceedings for the court to make two determinations:(1)"a decision on[Coupe's]motion for statutory damages,"Coupe I, 119 Hawai`i at 389, 198 P.3d at 652, and(2) a decision on"whether the asserted public purpose was pretextual[,]"id. at 390, 198 P.3d at 653.As discussed above, a pretextual defense does not implicate a just condemnation challenge. Similarly, the motion for statutory damages under HRS § 101-27 in this case does not implicate the valuation of the property. Thus, this court did not remand on any issue concerning just compensation. The just compensation value of the property taken in Condemnation 2, then,was not open to litigation on remand. See Standard Mgmt. Inc. v. Kekona, 99 Hawai`i 125, 137, 53 P.3d 264, 276 (App.2001) ("[R]emand for a specific act does not reopen the entire case; the lower tribunal only has the authority to carry out the appellate court's mandate.")(Citation omitted.) 4.Whether this Court Can Notice Plain Error Finally, Coupe contends that this court should sua sponte address the just compensation issue based on plain error. The three factors necessary for this court to take plain error review in a civil case are "[ (1) ] whether the consideration of the issue requires additional facts, [(2)]whether the resolution of the question will affect the integrity of the findings of fact of the trial court[,] and [(3)] whether the question is of great public import."141Fujioka v. Kam, 55 Haw.7,9, 514 P.2d 568, 570 (1973) (citations omitted).22 in the instant case, Coupe's challenge to just compensation does not meet the third factor. Whether the court correctly valued the property in Condemnation 2 is not of general public importance. The just compensation value of the property applies exclusively to the specific parcel of Coupe's property being taken in Condemnation 2 and, thus, is solely a matter of private interest. Inasmuch as the third factor is not present here,plain error cannot be noticed. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 20 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 IV.ATTORNEYS' FEES AND COSTS AND PREJUDGMENT INTEREST ISSUES ASSOCIATED WITH CONDEMNATION 1 IN COUPE'S SECOND APPEAL With respect to Coupe's attorneys'fees and cost arguments,Coupe argues that the court erred when it concluded,as a matter of law,that(1) "the Coupes were not entitled to recover damages under [HRS § ] 101-27 for their efforts to obtain ... attorneys' fees for preparing the damages motions and litigating the same[,]"and(2)the Coupes were not entitled to prejudgment interest, that is, "the damages [Coupe] incurred in not having the free use of[its] money for the nine years in which the defense of Condemnation 1 tied up [its] funds." A.The Denial of Attorneys' Fees Associated With the Preparation of Billing Records and/or Preparation of Coupe's Fee Petitions As discussed supra, Coupe's March 20,2009 Motion requested additional damages that were not included in its initial October *306 **1161 11, 2007 Motion. On May 14,2009, the court issued an Order granting Coupe's March 20, 2009 Motion but excluded$75,384.00 in attorneys'fees,which were associated with"the preparation of billing records for[Coupe's]fee petition and/or preparation of[Coupe's]fee petitions[.]"Coupe challenges the court's denial of these attorneys'fees.According to Coupe, the court's determination is contrary to the holding in Coupe 1 which awarded Coupe damages "including attorneys [sic] fees and costs which were incurred in applying for the damage award[.]" Also, Coupe challenges the court's reliance on Hawai`i Ventures, arguing that it"[wa]s not an eminent domain case,and did not involve[HRS § ] 101-27,and thus has nothing to say about whether[it] ...is entitled to recover all the attorneys [sic] fees and costs it incurred[.]" In its answering brief, the County maintains that"[g]enerally, there shall be no recovery for fees and expenses incurred in litigating the propriety of the fees to be awarded pursuant to [Hawai i Ventures]."In its reply brief,Coupe essentially reiterates the arguments made in its opening brief 1.Coupe's Argument that This Court has Awarded Such Fees and Costs under HRS§101-27 "The trial court's grant or denial of attorneys'fees and costs is reviewed under the abuse of discretion standard."III1Kamaka v. Goodsill Anderson Quinn &Stifel, 117 Hawai`i 92, 105, 176 P.3d 91, 104(2008)(quoting III1Kahala Royal Corp. v. Goodsill Anderson Quinn &Stifel, 113 Hawai`i 251, 266, 151 P.3d 732, 747 (2007) (citation omitted)) (brackets omitted). Generally, under the"American Rule,""each party is responsible for paying his or her own litigation expenses[,]"however,"attorney's fees are chargeable against the opposing party when so authorized by statute,rule of court, agreement, stipulation, or precedent." IIIISierra Club v.Dep't of Transp. of State of Hawai`i, 120 Hawai`i 181,218,202 P.3d 1226, 1263 (2009)(quoting 111IFought & Co. v. Steel Eng'g & Erection, Inc., 87 Hawai`i 37, 50-51, 951 P.2d 487, 500-01 (1998)) (internal quotation marks and brackets omitted). In Coupe IL this court was presented with the threshold question of"whether'all such damage'under HRS§ 101-27 provide[d] onnop adequate authority for [Coupe's] request for attorneys'fees and costs on appeal and,if so, to what extent." 120 Hawaii at 404, 208 P.3d at 717. This court stated that, "[b]y its plain language, HRS § 101-27 appears to provide a sufficient basis for the award of damages in the form of costs and attorney's fees sustained as a result of[Coupe's] appeal of the automatic denial of fees in Condemnation 1." at 404-05,208 P.3d at 717-18.Further,it was concluded that HRS § 101-27 encompassed damages sustained"in seeking fees and costs owed": The statutory language"all such damage...sustained...by reason of the bringing of the proceedings,"on its face would appear to encompass what [Coupe] seeks herein.... Had the County not brought the unsuccessful proceedings in Condemnation 1, [Coupe] would never have had cause to move for fees and to subsequently appeal. Therefore, the "damage"sustained by WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 21 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 [Coupe] in seeking the fees and costs owed and in appealing the denial of such fees and costs, was part of the damage resulting from the County having brought the unsuccessful proceedings in Condemnation 1. Consequently,under HRS§ 101- 27,the County should be held liable for"such damage." PIId. at 405,208 P.3d at 718(emphasis added)(brackets and footnote omitted)(some ellipsis in original and some added). Similar to the reasoning in Coupe II,had the County not brought the unsuccessful proceeding in Condemnation 1,Coupe would not have had cause to move for fees or to litigate the amount of fees on remand.Thus,the expenses Coupe sustained in seeking those fees and costs resulted from the County having brought the unsuccessful proceeding in Condemnation 1. Consequently, the County is liable for these damages under HRS § 101-27. **1162 *307 This court's discussion of whether Coupe was entitled to attorneys'fees and costs for its Coupe II Request and Coupe II Response further supports this position.23 As discussed in Coupe II, Coupe did not request"the damages it incurred in filing or preparing the [Coupe 11] Request and[the Coupe 11] Response"in its Coupe 11 Request but waited until its Coupe II Response to do so.FaCoupe II, 120 Hawai`i at 414, 208 P.3d at 727 (brackets omitted). While Coupe's request was ultimately denied,it was not because this court concluded that there was no recovery for fees and expenses incurred in litigating the propriety of the attorneys'fees and costs claimed.Rather,this court stated that Coupe"did not expressly request attorneys' sop fees for preparing the [Coupe II]Request in its original Request,nor did it provide supporting documentation";"upon filing the [Coupe II] Response and requesting fees for preparing that Response, [Coupe] again did not provide any supporting documentation as required by HRAP Rule 39(d)(1)";24 and although Coupe later "filed the requisite itemized account of attorneys'fees in its Errata,[Coupe]d[id]not provide this court with any rationale as to why it should be permitted to essentially raise new substantive arguments for the first time in an Errata." Id. at 414,208 P.3d at 727(citing Taomae v. Lingle, 110 Hawai`i 327,333, 132 P.3d 1238, 1244(2006)).As apparent from this court's discussion in Coupe II,that decision left open the possibility that damages sustained in preparing and litigating the propriety of fees could be recovered under HRS § 101-27. 2.Coupe's Argument that Hawai`i Ventures is Inapposite The court,in its May 14,2009 order granting in part Coupe's March 20,2009 Motion,and the County in its answering brief,rely on Hawai`i Ventures for the proposition that"fees and expenses incurred in litigating the propriety of the fees to be awarded" nom cannot be recovered. In Hawaii Ventures, a receiver was appointed to manage a hotel pending a foreclosure sale. 116 Hawaii at 468, 173 P.3d 1125. The circuit court appointed a special master to review the receiver's final report,and entered a sop deficiency judgment.Id.All parties appealed the circuit court's decision and challenged the actions taken by the receiver. Id. On appeal,this court affirmed the circuit court's final judgment in part but"vacated'the awards of fees to the[r]eceiver and her professionals reflected in certain of the circuit court orders' and remanded the fee orders to the circuit court 'for clarification sop and, if necessary, a redetermination of the amount[.]' " Id. at 469, 173 P.3d at 1126 (brackets omitted). The receiver then filed a request for reimbursement of fees and costs she incurred on appeal. This court stated, inter alia, that"the [r]eceiver and her professionals are not entitled to compensation for work performed in relation to the defense of fees issue."sop sop at 476, 173 P.3d at 1133.To support this position,this court quoted sop United States v.Larchwood Gardens,Inc.,420 F.2d 531,534(3d Cir.1970),which stated that,"the law imposes on a party the duty to pay[her] own fees and expenses in vindicating[her]personal interests....It is our understanding *308 **1163 that services necessarily involved in preparing [fee] application [sic] to the district court and defending them are not compensable."Id. (brackets and ellipsis in original). WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 22 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 While, as indicated in Hawai`i Ventures, receivers in foreclosure proceedings are "not entitled to recover fees and expenses associated with litigation involving the propriety of the fees to be awarded to them," 114 Hawai`i at 497-98, 164 P.3d at 755- 56,the specific question here is whether Coupe is entitled to fees and costs for litigating the propriety of fees under HRS§ 101- 27.Hawai`i Ventures was not an eminent domain case,and it did not decide whether HRS § 101-27 may entitle a landowner to attorneys'fees expended because of the government's unsuccessful attempt to condemn property.As discussed supra, Coupe II did not bar Coupe's ability to seek damages "sustained by [Coupe] in seeking the fees and costs [it is] owed [.]" 120 Hawai`i at 404-05,208 P.3d at 717-18.Our holding herein is limited to the specific circumstances of HRS § 101-27 involved in litigating disputes as to fees and costs recoverable because of a failed condemnation. Because the court incorrectly determined that"there shall be no recovery for fees and expenses incurred in litigating the propriety of fees"under HRS § 101-27,the court based its ruling on an"erroneous view of the law"and,therefore,abused its discretion in failing to consider whether Coupe was entitled to these attorneys' fees. Because the court did not reach the question of the reasonableness of these fees,the case must be remanded to the court to determine the extent to which the$75,384 of attorneys' fees associated with preparing the billing records and Coupe's fee petitions were reasonable and should be awarded. B.Coupe's Request for Prejudgment Interest on Its Attorneys'Fees and Costs for Condemnation 1 As to argument(2),Coupe asserts that the County"never argued that[prejudgment]interest[wa]s not properly awardable under [HRS§] 101-27,""never contested[Coupe's]calculation of an approximate award nor the applicable rate,"and,therefore,has "waived any arguments not made[.]" Coupe thus contends that"[t]he court should not have interposed its own objection [to awarding prejudgment interest],when[the]County made none."(Citing PIWong v Takeuchi, 88 Hawai`i 46,53,961 P.2d 611, 618 (1998).). Coupe also maintains that COL 33 25 of the court's Supplemental FOFCOL on Statutory Damages is erroneous because HRS § 101-27"must include the cost of funds encumbered by a failed condemnation attempt"; "[t]he loss of the use of[Coupe's] money over nine years of Condemnation 1 must be a recoverable element of[HRS § ] 101-27 damages"or else it"prevents [Coupe] from being made truly whole" (citing III1Lucas v. Liggett&Myers Tobacco Co., 51 Haw. 346, 348,461 P.2d 140, 143 (1969)); the governing statute for prejudgment interest in this case is HRS § 101-27 and not the prejudgment interest statute, HRS § 636-16 (1993);26 even if HRS § 636-16 does apply,the court"wrongly rejected[ ] Coupe's damage claim,because nine years is by any reasonable measure a substantial delay in the proceedings and issuance of judgment"(citing IIIIDitto v. McCurdy, 86 Hawai`i 93, 114,947 P.2d 961, 982 (App.1997)); and that"[the court] wrongly placed the burden on [Coupe] to allege `undue delay by Plaintiff County' "27 (quoting COL 33 of the court's Supplemental FOFCOL on Statutory Damages *309 **1164 in reply to the County,Coupe contends that the court's Supplemental FOFCOL on Statutory Damages demonstrate that the County has waived any objection on the issue of encumbered funds 28 and an award will not result in a windfall because"[t]he loss of use of funds is per se damage under [HRS § ] 101-27, and the Coupes are entitled to be made whole." 1.Whether the County has Waived its Objections to Coupe's Request for Prejudgment Interest Coupe first argues that the denial of prejudgment interest damages "cannot be reconciled with" FOF 37 29 and 38 30 and COL 7 31 in the court's Supplemental FOFCOL on Statutory Damages,which, according to Coupe, "reveal [that the] County waived [the] objection"to Coupe's request for prejudgment interest. Coupe urges this court to conclude that the first sentence in Supplemental FOF 38, which states that the"County has [ ] never argued in this [c]ourt that such interest is not properly awardable as damages under[HRS § ] 101-27[,]"shows that the County has waived its objection. However, Supplemental FOF 38, when read in its entirety, indicates that while the County did not argue that"[prejudgment] interest [was] not properly awardable as damages under [HRS § ] 101-27[,]"the County did instead argue that" any award WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 23 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 under HRS § 101-27 should be limited to amounts paid for the improper delegation of condemnation power defense in the first case.' " (Emphasis added.) (Citation omitted.) Thus, the County challenged Coupe's prejudgment interest claim inasmuch as the prejudgment interest was not an"amount[ ] paid for the improper delegation of condemnation power defense in the first case."Consequently,the County's argument that it did object to Coupe's prejudgment interest claim is correct. 2.Whether Prejudgment Interest is Mandatory under HRS§101-27 Coupe interprets HRS § 101-27 as mandating the recovery of prejudgment interest *310 **1165 via the phrase "all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings."However,the plain language of HRS§ 101-27 indicates that the"recovery of damages under HRS§ 101-27"is not mandatory,as Coupe asserts,but"subject to a reasonableness requirement." Coupe II, 120 Hawai`i at 411,208 P.3d at 724. As explained in Coupe II, the words in HRS § 101-27, includ[ing] "the defendant's costs of court,a reasonable amount to cover attorney's fees paid by the defendant in connection therewith,and other reasonable expenses[]"...is essentially a list of items that are to be included in the damage award.Thus, the phrase"and other reasonable expenses,"assumes that the previous items listed are also types of reasonable expenses[,] ... [because interpreting HRS§ 101-27 as commanding the grant of]all costs"actually incurred,"regardless of reasonableness, renders the term"other"superfluous. Id (citing Carlisle v. One 1 Boat, 119 Hawai`i 245,255, 195 P.3d 1177, 1187(2008))(emphases omitted).Hence,a request for prejudgment interest under HRS § 101-27 may be granted if it is an"other reasonable expense[]." See HRS § 101-27; Coupe II, 120 Hawai`i at 411,208 P.3d at 724. However,the plain language of the provision does not clarify whether prejudgment interest is an"other reasonable expense[]." Nor does the statute define the term.Therefore,this court may look to the legislative history in construing the statute.See Hawaii Providers Network,Inc. v.AIG Hawaii Ins. Co., 105 Hawaii 362,369,98 P.3d 233,240(2004)(recognizing that"[w]hen there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of expression used in a statute[,] an ambiguity [exists,]" and, thus, "courts may take legislative history into consideration in construing a statute") (internal quotation marks,brackets, and citations omitted). The legislative history recognized that, "at times [when] condemnation proceedings are instituted but are not prosecuted to final judgment,the owners of the property involved thereby suffer[]loss for which there is no means now provided[by]which they maybe compensated."H.Stand.Comm.Rep.No.622,in 1929 House Journal,at 1400.To remedy this situation,the legislature amended the eminent domain statutes for the purpose of"giv[ing]to persons whose property is sought to be condemned, a right of action to recover damages if the condemnation proceedings are dropped before final judgment is reached."Id. Generally, this court has recognized that prejudgment interest at common law is "[i]nterest on claims awarded for delay in payment"which is"measured from the accrual of the claim for relief to the time of rendition of the judgment[.]"IRodrigues v. State, 52 Haw. 156, 168, 472 P.2d 509, 518 (1970) (emphasis added). This court has defined prejudgment interest as " 'an element of complete compensation[,]' "IKalawaia v.AIG Hawai i Ins. Co., 90 Hawai`i 167, 172,977 P.2d 175, 180(1999) (quoting PI W. Virginia v. United States, 479 U.S. 305, 310, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987) (citation omitted)), that "serves to compensate for the loss of use of money due as damages ..., thereby achieving full compensation for the injury those damages are intended to redress[,]" id. (quoting I W. Virginia, 479 U.S. at 310 n. 2, 107 S.Ct. 702 (citing Comment, Prejudgment Interest: Survey&Suggestion,77 Nw.U.L.Rev. 192(1982)))(emphasis added).Thus,it follows that prejudgment interest can be recovered as an"other reasonable expense"under HRS § 101-27. Our holding as to such prejudgment interest is limited to the specific circumstances of a failed condemnation contemplated by HRS § 101-27. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 24 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 3.Whether Coupe's Request for Prejudgment Interest Under HRS§ 101-27 was Properly Denied This court must next address whether the court erred in denying Coupe's request for prejudgment interest under the non circumstances of the case. Prejudgment interest is "awarded at the discretion of the court." Rodrigues, 52 Haw. at 169, 472 P.2d at 518; see Metcalf v. Voluntary Employees'Benefit Ass'n of Hawai`i, 99 Hawai`i 53, 61, 52 P.3d 823, 831 (2002) (recognizing that"it is clearly within the discretion of the circuit *311 **1166 court to deny prejudgment interest where appropriate").Accordingly,an award of prejudgment interest under HRS § 101-27 should be reviewed for abuse of discretion. Cf. Tri—S Corp. v W. Worlds Ins. Co., 110 Hawai`i 473, 489, 135 P.3d 82, 98 (2006) (recognizing that in the context of HRS § 636-16, "[a]n award of prejudgment interest is reviewed for an abuse of discretion") (citing 141Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 136,839 P.2d 10,36(1992))." [T]o constitute an abuse [of discretion,]it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.' "Id. (quoting State v. Sacoco, 45 Haw.288,292, 367 P.2d 11, 13 (1961))(brackets in original). Similar to the situation here, Coupe in Coupe II contended that"it [was] entitled to [prejudgment] interest from the date of each invoice for attorneys'fees and costs as a form of damage,pursuant to HRS § 101-27"because"the purpose of a damage award is to put a party in the position they [sic] would have been in had not harm occurred"and that Coupe suffered damage "each time it had to pay its lawyers." 120 Hawai i at 410,208 P.3d at 723(brackets and internal quotation marks omitted).In Coupe II Coupe argued that" `[i]nterest from the date of harm is an element of damage and this [c]ourt is authorized to award pre-judgment interest in all civil actions'under HRS§636-16."non Id. (footnote omitted)(emphasis added). aue After considering Coupe's arguments, this court denied Coupe's request for prejudgment interest. Id. at 411, 208 P.3d at 724.It was recognized that"[p]re-judgment interest may be awarded under HRS § 636-16 in the court's discretion 'when the nip issuance of judgment is greatly delayed for any reason.' " Id. (quoting Tri—S Corp., 110 Hawaii at 498, 135 P.3d at 107) (emphasis in original). However, this court denied Coupe's request for prejudgment interest on its attorneys' fees, costs, and excise tax related to Condemnation 1 claimed on appeal under both HRS §§ 101-27 and 636-16 because"[Coupe] ha[d] not asserted... any lengthy delay in the issuance of the judgment of attorneys'fees or costs[.]"FaId. Similarly, in the instant appeal, it appears that Coupe did not assert any lengthy delay in the issuance of the judgment of the attorneys' fees or costs at the trial level. Coupe, in its October 11, 2007 Motion, moved for statutory damages pursuant to HRS § 101-27, "in the amount of$1,547,748.80 and costs in the amount of$200,226.58,plus tax and prejudgment interest, incurred in[Condemnation 1]."Coupe's only assertion with regard to prejudgment interest in its supporting memorandum stated, "Prejudgment interest(10%per annum from date of each bill)on those fees,and the associated costs is[sic]proper because those fees are `damages'under[HRS]§101-27." (Emphasis added.) No claim was made in Coupe's October 11, 2007 Motion for statutory damages or in Coupe's supporting memorandum that there had been any undue delay in the proceedings.Accordingly, the court in the instant case properly cited to Coupe II in COL 33 of its Supplemental FOFCOL on Statutory Damages as support for its conclusion that"there [wa]s no legal or factual basis for the $276,762.41 in prejudgment interest sought as damages under HRS § 101-27 [.]"32 As in Coupe 11, Coupe again"has not asserted...any lengthy delay in the issuance of judgment[,]" 120 Hawai`i at 411,208 P.3d at 724,and therefore,Coupe's request for prejudgment interest was properly denied. This denial of prejudgment interest under HRS§ 101-27 is also consistent with this court's interpretation of HRS§636-16.HRS §636-16,which applies in all civil cases,vests a court with discretion to award prejudgment interest.HRS §636-16(stating in part that"[i]n awarding interest in civil cases,the judge is authorized to designate *312 **1167 the commencement date to conform with the circumstances of each case");III1Coupe II, 120 Hawai`i at 410,208 P.3d at 723 ("Pre-judgment interest may WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 25 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 be awarded under HRS § 63-16 in the court's discretion[.]"). Consistent with the general definitions of prejudgment interest stated supra, the purpose of prejudgment interest,in the context of HRS § 636-16, is to " `correct injustice when a judgment is delayed for a long period of time for any reason,including litigation delays[,]' " illi«4 Coupe II, 120 Hawai`i at 411, 208 P.3d at 724(quoting Tri—S Corp., 110 Hawai`i at 498, 135 P.3d at 107 (internal quotation marks and citation omitted)), and"to permit more equitable results and to more speedily resolve cases[,]" W egand v. Colbert, 68 Haw.472,477, 718 P.2d 1080, 1084(1986). According to Tri—S Corp., a finding of fault by one of the parties is not necessary, and a review of an award of interest rests on three factors: (1) if fault is found on the part of the party seeking interest, denial of interest will not be considered an abuse of discretion;(2)if fault is found on the part of the party opposing interest,an award of interest will not be considered an abuse of discretion;and(3)where no fault is found on either side, the trial court may still award or deny prejudgment interest in its discretion, depending on the circumstances of the case. 110 Hawai`i at 498, 135 P.3d at 107(emphasis added).Moreover,"`[a]trial court's denial of prejudgment interest is usually affirmed'if the requesting party caused the delay or the opposing party did not cause the delay."Id. (quoting Page v.Domino's Pizza, Inc., 80 Hawaii 204, 209, 908 P.2d 552, 557 (App.1995) (citations omitted)) (brackets in original). However, " 'a trial court can award prejudgment interest for any substantial delay in the proceedings, and [] no purposeful delay on the part of the non-moving party is required.' "Id. (quoting IIIIDitto, 86 Hawaii at 114,947 P.2d at 982)(emphases in original). In any event,because there is no fault found on the part of either Coupe or the County,the court had discretion to deny Coupe's prejudgment interest claim under the circumstances of the case. See id. As discussed above, the record reflects there was no argument to the court below or to this court,that there has been a delay attributable to the County's fault. Moreover,the County did not argue that there has been any delay caused by Coupe.Hence,neither party argued to the court that there was a purposeful delay on the part of any party,nor did the court find such purposeful delay.33 Furthermore, Coupe did not assert specifically where in the span of nine years the substantial delay occurred. Given the circumstances, it cannot be said that the court"clearly exceeded the bounds of reason or disregarded the rules or principles of law or practice to the substantial detriment of[Coupe.]" onoId. (quoting Sacoco, 45 Haw. at 292, 367 P.2d at 13). The court's denial of Coupe's request for prejudgment interest was not an abuse of discretion,and thus,the court did not err in denying Coupe's request for prejudgment interest under HRS § 101-27. V. CONCLUSION Based on the foregoing,(1)the court's conclusion that Condemnation 2 was notpretextual,(2)the valuation of just compensation set for the property in Condemnation 2,and(3)the denial of Coupe's request for prejudgment interest,are affirmed.However, the case must be remanded for a determination of Coupe's request for attorneys'fees associated with the preparation of billing records and/or preparation of Coupe's fee petitions in Condemnation 1. All Citations 124 Hawaii 281,242 P.3d 1136 WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 26 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 Footnotes 1 The Honorable Ronald Ibarra presided. 2 This case is before us by virtue of this court's acceptance of Coupe's request for transfer from the Intermediate Court of Appeals (the ICA), pursuant to Hawai`i Rules of Appellate Procedure (HRAP) Rule 40.2 (2009) and ����«4 Hawai`i pp pp Revised Statutes(HRS) § 602-58(Supp.2009). HRS § 602-58 states in part as follows: (a) The supreme court, in the manner and within the time provided by the rules of court, shall grant an application to transfer any case within the jurisdiction of the intermediate appellate court to the supreme court upon the grounds that the case involves: (1)A question of imperative or fundamental public importance; (b)The supreme court, in a manner and within the time provided by the rules of court, may grant an application to transfer any case within the jurisdiction of the intermediate appellate court to the supreme court upon the grounds that the case involves: (1)A question of first impression or a novel legal question; or (2)Issues upon which there is an inconsistency in the decisions of the intermediate appellate court or of the supreme court. 3 According to Coupe I, [t]he complaint[ ] w[as] initially filed against Robert Nigel Richards, Trustee Under the Marilyn Sue Wilson Trust; Robert Nigel Richards, Trustee Under the Joan Elizabeth Coupe Trust; Charles William Coup; Joan Elizabeth Coupe; Miles Hugh Wilson;Joan Coupe,Trustee under Revocable Trust of Joan Coupe Dated March 30, 1989,and unidentified defendants.All named defendants except Robert Nigel Richards,Trustee Under the Marilyn Sue Wilson Trust, and Miles Hugh Wilson answered the complaint[]. On May 23,2007, the parties stipulated to substitute C& J Coupe Family Limited Partnership for the foregoing named defendants who appeared in the [] case[]. 119 Hawai`i at 356 n. 1, 198 P.3d at 619 n. 1. 4 Resolution 31-03 "authoriz[ed] the acquisition of [Coupe's] private property by eminent domain ... for the development and construction of a bypass highway between the vicinity of Keauhou and Captain Cook, Kona, Hawai`i."(Capitalization omitted.) 5 Again,the parties in Condemnation 2"stipulated to substitute C&J Coupe Family Limited Partnership for the...named defendants who appeared in the [] case[]."Coupe I, 119 Hawai`i at 356 n. 1, 198 P.3d at 619 n. 1. 6 HRS § 101-27 states in its entirety: Whenever any proceedings instituted under this part are abandoned or discontinued before reaching a final judgment, or if,for any cause, the property concerned is not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff all such damage as may have been sustained by the defendant by reason of the bringing of the WEST LAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 27 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses; and the possession of the property concerned shall be restored to the defendant entitled thereto. Issues of fact arising in connection with any claim for such damage shall be tried by the court without a jury unless a trial by jury is demanded by either party,pursuant to the rules of court,within ten days from the date of the entry of an order or judgment allowing the discontinuance of the proceedings,or dismissing the proceedings or denying the right of the plaintiff to take the property concerned for public use. In the event judgment is entered in favor of the defendant and against the plaintiff, any moneys which have been paid, and any additional security which has been furnished,by the plaintiff to the clerk of the court under sections 101-28 and 101-29, shall be applied or enforced toward the satisfaction of the judgment. Tri the case of the State or a county, if the moneys so paid to the clerk of the court are insufficient, then the balance of such judgment shall be paid from any moneys available or appropriated for the acquisition of the property concerned,or if that is insufficient then the same shall be paid from the general fund of the State or county, as the case may be. (Emphases added.) 7 On October 31, 2007, the County countered, arguing that(1) "HRS § 101-27 d[id] not apply because ... the property was finally taken for public use[,]" and because Coupe was "not the prevailing party on the main issue of ultimately preventing condemnation of the property [,]" (2) "[Coupe] filed [its October 11, 2007 Motion] outside of the 10—day period permitted under HRS § 101-27H" and (3) "[a]ssuming arguendo that [Coupe was] entitled to an award of damages ... any award[was] limited to reasonable attorneys'and[sic] costs paid by[Coupe] to establish the defense of improper delegation of condemnation power claim in the first case[.]" 8 HRAP Rule 4(a)(3)requires that any motion not disposed of by order within ninety days is deemed denied.It states: (3) TIME TO APPEAL AFFECTED BY POST—JUDGMENT MOTIONS. If any party files a timely motion for judgment as a matter of law, to amend findings or make additional findings, for a new trial, to reconsider, alter or amend the judgment or order,or for attorney's fees or costs,the time for filing the notice of appeal is extended until 30 days after entry of an order disposing of the motion;provided,that the failure to dispose of any motion by order entered upon the record within 90 days after the date the motion was filed shall constitute a denial of the motion. 9 Coupe was awarded excise tax on its $24,570.54 award of attorneys' fees at a rate of 4.5%. Coupe II, 120 Hawai`i at 415,208 P.3d at 728. 10 Coupe was awarded costs for postage, long distance, fax,transcripts,color copies,filing fees,and parking.Id. 11 The term"blight of summons damages"appears to be "unique to Hawai`i and apparently stems from this court's past observation that: What is commonly called interest is in fact an additional award of damages for injury caused to the owner by the "blight ofthe summons"...so that the owner may have that"just compensation"granted to him by the fifth amendment to the Federal Constitution. Hous. Fin. &Deu Corp. v Ferguson, 91 Hawai`i 81, 86 n. 2, 979 P.2d 1107, 1112 n. 2 (1999) (quoting Territory v. Honolulu Plantation Co., 34 Haw. 859, 872(Haw.Terr.1939))(emphasis added). This court has also recognized that [o]ther states have referred to [this type of] compensation for delay in payment in condemnation proceedings by various other terms,including"interest,"see, e.g., State ex rel. Dep't of Transp. v. Barsy, 113 Nev. 712,941 P.2d 971 (1997), "pre-judgment and post judgment interest,"see e.g., I Carter v. Citt'of Oklahoma City, 862 P.2d 77 WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 28 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 (Ok1.1993), "detention damages,"see Walker v. Acting Director, Dep't of Forests and Parks, 284 Md. 357, 396 A.2d 262(1979),and"delay compensation,"see Pa. Cons.Stat.Ann. § 1-611 (West 1997). Id. 12 The court applied a deduction for a"courtesy discount and/or write-downs of$58,054.41 provided on the invoices plus the court-ordered discovery sanction amount of$63,173.45." 13 Coupe's Notice of Appeal filed ex officio in this court on June 10,2009 in Civ.No.00-1-0181K,and its Notice of Appeal filed ex officio in this court on June 12,2009 in Civ.No. 05-1-015K,were both filed under Appeal No.29887 on June 16,2009 and June 17,2009,respectively.On July 1,2009,Coupe filed another Notice of Appeal ex officio in this court in Civ.No. 05-1-015K,which was filed under Appeal No.29887 on July 9,2009,as an Amended Notice of Appeal. 14 Oceanside contends that"courts will not lightly disturb such a finding [of public use] and will not overrule it unless it is manifestly wrong,"and,thus,a per se rule would"take[] away any judicial inquiry into the facts and circumstances of each particular case[.]"(Citing Haw Hous.Auth. v.Ajimine, 39 Haw. 543, 550 (Haw.Terr.1952).) 15 The County contends that Condemnation 2 was not for Oceanside's private benefit, inasmuch as (a) "[t]here [wa]s overwhelming evidence[,]"including"several government studies that recognized the long-standing public need for the Bypass based on traffic capacity and safety considerations[,]" (b)the"alignment of the [Bypass] ... was preferred and selected by the County of Hawaii's Department of Public Works,and [was] consistent with the General plans that ha[d] been adopted by the County"(internal quotation marks and citation omitted),(c)the Hokulia subdivision"already ha[d] two access points into the subdivision[,]"(d)other portions of the Development Agreement,"such as[]the requirement for Oceanside to secure a performance bond to complete the Bypass and eventual dedication of the Bypass to the County, [are]still valid"if Oceanside or its lenders were not viable at the time of performance,(e)"the Development Agreement (and the relevant Ordinances)clearly indicate[d]the need for the regional roadway[,]"(f)the court"did not strike down the entire Development Agreement... [but]determined that the condemnation and share fair provisions were invalid[,]" and(g)"Resolution 31-03 specifically found a public purpose,separate from the infirmed portions of the Development Agreement." 16 Oceanside contends that(a)after"[t]here were concerns about the validity of Condemnation 1[,] ...the County Council concluded at that time that a second condemnation was necessary to 'get this [Bypass]road moving' [,]"and that"they would move forward with the Bypass even if it required that'the County condemn and pay for some of the property... in the interest of the general public so that[the public]have an alternative highway[,]'"(b)Coupe has failed to"provide any evidence showing either that Oceanside would sue the County if Condemnation 1 failed and the County elected not to initiate another condemnation action,or that the County Council believed that[the County]was liable under the Development Agreement to initiate another condemnation suit if Condemnation 1 failed [,]"(c)it"[was] obligated to build and dedicate the Bypass under Ordinances 96-7 and 96-8 as a condition of rezoning the project[,]" and these ordinances were in effect"before the Development Agreement was executed[,]" (d) Resolution 31-03 was part of an integrated plan,stating that"there was a long-standing need for the Bypass and there already existed a number of studies and plans prepared by the County and State of Hawai`i for a bypass highway long before...the Development Agreement [,]"and(e)"the public hearings on Resolution 31-03 were duly noticed,that Mr. Coupe attended... and was given the opportunity to fully present his position...,and that the County Council addressed and rejected Mr. Coupe's arguments of no public purpose." 17 On March 20, 2009, Coupe submitted to the court its proposed findings of fact and conclusions of law in Civil No. 05-1-015K. 18 The intersection of Mamalahoa Highway and Napoopo'o Road is located in Captain Cook,Hawai`i. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 29 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 19 Ordinance 96-7 Section 3 amended, among others, Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawai`i County Code to reflect the change in district classification of the target property. Similar to Ordinance 96-8, discussed in relevant part above,Ordinance 96-7 also contained,among other conditions,a requirement for"[r]oadway improvements and access(es)to the subject property"identical to Ordinance 96-8 Section 3(L),including the identical "between the approximate vicinity of Keauhou and Captain Cook"language. 20 Because the Bypass is consistent with the 1998 General Plan,Coupe's argument that there is"no evidence that Resolution 31-03 was part of a carefully considered and integrated plan"is incorrect. Thus, this court need not address Coupe's arguments that the Development Agreement could not serve as a comprehensive plan because (1) it was a "private development agreement" which was "merely a contract between a developer and the local government in which the government agrees to not apply future land use regulations against the property for a period of time," and (2) the Development Agreement was illegal and void. 21 See Hawaii Hous. Auth. v. Midkiff, 69 Haw. 247, 249, 739 P.2d 248, 249 (1987) (stating that, under "equitable principles[,]""a proper measure by which to ascertain the additional amount necessary to put the defendant in as good [a]position pecuniarily as he would have been had his property not been taken"would"require[] the payment of just compensation contemporaneously with the taking, and interest at a reasonable rate on...the value of the property from that date until paid"(citing Honolulu v.Lord, 36 Haw. 348,354(Haw.Terr.1943)))(emphases added);I City&County of Honolulu v.Market Place, Ltd., 55 Haw. 226,247, 517 P.2d 7,22(1973)("A major goal of the valuation process in eminent domain proceedings is to determine market conditions for the taken property as though no condemnation had ever been contemplated." (Citing State v. Heirs of Kapahi, 48 Haw. 101, 113, 395 P.2d 932, 939 (1964); Territory v. Am. Sec. Bank, 43 Haw. 167 (1959).)) (Emphasis added.). In a just compensation challenge, a landowner argues that his or her constitutional right was violated because the compensation he or she received was not fair or adequate. See State by Atty. Gen. v. Midkiff; 55 Haw. 190, 195, 516 P.2d 1250, 1254 (1973) (recognizing that"the test of fairness ... is fundamental to a determination of just compensation"). 22 This court has also recently confirmed this test in Alvarez Family Trust v. Ass'n of Apartment Owners of Kaanapali Alii, 121 Hawai`i 474,490,221 P.3d 452,468 (2009);see also id. at 502,221 P.3d at 480(Acoba J.,dissenting,joined by Duffy,J.). 23 As stated in Coupe II, Coupe filed its Coupe II Request for Statutory Damages on January 20,2009,and the County filed a memorandum in opposition to this request on January 30,2009.P1120 Hawaii at 403,208 P.3d at 716. Pursuant to this court's order,on February 19,2009,Coupe filed its Coupe II Response to the County's memorandum,and thereafter, on March 2,2009,the County filed its reply. On March 5,2009, Coupe filed an Errata"to correct certain errors in the [Coupe II] [R]equest and [Coupe II] [R]esponse[.]" u��th14Id 24 HRAP Rule 39(d)(1)states: (d)Request for Fees and Costs; Objections. (1)A party who desires an award of attorney's fees and costs shall request them by submitting an itemized and verified bill offees and costs, together with a statement of authority for each category of items and, where appropriate, copies of invoices, bills, vouchers, and receipts. Requests for indigent fees and necessary expenses shall be submitted in a form that substantially complies with Form 7 in the Appendix of Forms and shall be accompanied by a copy of the order appointing counsel. Requests for non-indigent attorney's fees and costs allowed by statute or contract shall be submitted in a form that substantially complies with Form 8 in the Appendix of Forms.A failure to provide authority for the award of attorney's fees and costs or necessary expenses will result in denial of that request. (Emphasis added.) WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 30 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 25 COL 33 of the court's Supplemental FOFCOL on Statutory Damages states: 33.This[c]ourt finds there is no legal nor factual basis for the$276,762.41 in prejudgment interest sought as damages under [HRS] § 101-27 as there is no allegations of undue delay by Plaintiff County. See also [Coupe II, 120 Hawai`i at 410-11, 208 P.3d at 723-24] (denying[Coupe's]request for prejudgment interest). 26 HRS § 636-16 provides that [i]n awarding interest [on a judgment]in civil cases,the judge is authorized to designate the commencement date to conform with the circumstances of each case,provided that the earliest commencement date in cases arising in tort, may be the date when the injury first occurred and in cases arising by breach of contract, it may be the date when the breach first occurred. 27 The County counters, arguing that "[t]he County always opposed any damages except those that may be reasonable under HRS § 101-27"; that"[Coupe] do[es] not cite any case or statutory authority that the cost of encumbered funds relating to attorneys' fees and costs is allowed ... under either HRS § 101-27 or HRS § 636-16"; that Coupe has not "explained a rational basis to allow such an award based on the final attorneys' fee award where the billing for the attorneys' work was done over a nine year period"; and that Coupe's prejudgment interest claim was properly denied "[b]ecause[Coupe has]not alleged undue delay by the County as to the payment of attorneys'fees,either in its pleadings or initial filing of its Motion for Statutory Damages, or proved it[.]" 28 Throughout its opening brief,Coupe asserts that it is entitled to damages"in the form of the cost of encumbered funds." Subsequently,Coupe also used the term"encumbered funds"in its reply brief to the County.Coupe does not specifically define the term "encumbered funds [,]" but states that the "encumbered funds represented damage suffered with each invoice related to Condemnation 1 since October 2000 ... until [Coupe] received payment for [its] injuries in August 2009" and "include those [damages] resulting from the loss of free use of funds which were tied up by the defense of Condemnation 1." Black's Law Dictionary defines the term encumbrance as "[a] claim or liability that is attached to property or some right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest."Black's Law Dictionary 607(9th ed.2004). Coupe acknowledges that "[t]he [c]ourt characterized this [loss of use of funds] claim as prejudgment interest[.]" According to Coupe's memorandum in support of it October 11,2007 request,Coupe requested"[p]rejudgment interest (10%per annum from date of each bill)on those fees,and the associated costs is proper because those fees are`damages' under[HRS] § 101-27[.]"Coupe does not state when Coupe paid these invoices,if at all. 29 FOF 37 of the court's Supplemental FOFCOL on Statutory Damages states that the "County contests neither the calculation of interest nor the applicable rate." 30 In FOF 38 of the Supplemental FOFCOL on Statutory Damages,the courtt found as follows: 38. County has also never argued in this [c]ourt that such interest is not properly awardable as damages under[HRS § ] 101-27.Instead,County has argued only that"any award under HRS§ 101-27 should be limited to amounts paid for the improper delegation of condemnation power defense in the first case." (Citation omitted.) 31 COL 7 of the court's Supplemental FOFCOL on Statutory Damages states that the "County has waived any and all arguments and any new evidence that it did not previously raise in its prior oppositions to [Coupe's] Motion. The last allowable pleading submitted was December 19,2007."(Citation omitted.) 32 While Coupe now asserts in this appeal that the nine-year period of litigation"is by any reasonable measure a substantial delay in the proceedings in the issuance of judgment[,]"Coupe does not cite where in the record it made this argument to WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 31 County of Hawaii v.C&J Coupe Family Ltd. Partnership, 124 Hawaii 281 (2010) 242 P.3d 1136 the court.Accordingly,the County asserts that"[Coupe]ha[s]not alleged undue delay by the County as to the payment of attorneys'fees,either in its pleadings or initial filing of its [October 11,2007 Motion] or proved it[.]" 33 See supra note 25. End of Document ©2024 Thomson Reuters.No claim to original U.S.Government Works. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 32 EXHIBIT 19 ..._.-,! ,....- . ..re,'„i"....if?)t...1 ,-,4,,,i.P.*4`$":'-'• • sty.,.,-,•• ••• ,,,..,„4:•ify• •,,Ift,' .4.•.,teci't,'; •••' '' ''' ...: • • .4,,, 11,,,,'Af•'4, ,,o,g'i4" *A . C:\ r--•*--:. "--t ''''.- :,' •.-17,',; -,Air'0":1.?" ,," Il El 11 0"4:''Lilair .•- , ,i,.... . ' . 0:1._,,- . ,.., .:- ,:•..„.,. , ' t - 11 : -0.',?4•.‘.., . * -!...,"'',r..-,' "", -,- •.i•• il."ilf.'.-,- ,,, : '•;,'.,t',' -.- ' .. •-•.:'-`••••''':G".‘'', "it'tk'i•ty.i.1-0 W,t,-„„.4',.--„,,'.,... •„: . ',,,,-,.' - ':-.'',4-4•-:—4•0-,4;14Af"-4-4-1!°K4Vi.'• ° ''. I- , ',,' ..,:“V"'-4; 1 '.../' „iiI,A-..i.;,',,,4.-41•.4;"4:$1.' ''''T?ife' '•:,,,,, -;:;-,1..:".7,-,','?'..... 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BEFORE THE BOARD OF APPEALS PLANNING DEPARTMENT COUNTY OF HAWAI`I In the Matter of Appeal Case No. PL-BOA-2024-000104 of CERTIFICATE OF SERVICE 1250 OCEANSIDE, LLC From the decision of the Planning Director, dated April 29, 2024 (Docket No. 24-0001) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon the following parties by electronic mail (E-Mail) on September 18, 2024: ELIZABETH A. STRANCE, ESQ. JEAN K. CAMPBELL, ESQ. ELIZABETH B. BAILEY, ESQ. Corporation Counsel, County of Hawaii Hilo Lagoon Center 101 Aupuni Street, Suite 325 Hilo Hawaii 96720 Attorneys for Defendant COUNTY OF HAWAII KENNETH R. KUPCHAK MARK M. MURAKAMI TOREN K. YAMAMOTO 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 Attorneys for Intervenor C & J COUPE FAMILY LIMITED PARTNERSHIP 4871-2641-3286.2.051730-00058 DATED: Honolulu, Hawai`i, September 18, 2024. /s/Derek B. Simon PATRICK K. WONG DEREK B. SIMON IAN R. WESLEY-SMITH Attorneys for 1250 OCEANSIDE, LLC 4871-2641-3286.2.051730-00058 2.