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HomeMy WebLinkAbout2024-05-28 PL-BOA-2024-000105 1250 Order Exhibits COMBINED_v1 EXHIBIT 1 BEFORE THE PLANNING DIRECTOR PLANNING DEPARTMENT COUNTY OF HAWAII STATE OF HAWAII In the Matter of DOCKET NO. 24-0002 DECLARATORY ORDER; EXHIBITS «A»_«C,, 1250 OCEANSIDE, LLC, Petitioner ZENDO KERN, PLANNING DIRECTOR, COUNTY OF HAWAI`I'S DECLARATORY ORDER I. BACKGROUND Hokuli`a is a master-planned community located in Kealakekua, Hawaii ("Project") originally developed by 1250 Oceanside Partners (the "Original Developer"). On January 15, 1996, the Original Developer obtained two ordinances to rezone the property comprising the Project: County of Hawai`i ("County") Ordinance No. 96-7 and 96-8 (collectively "Ordinances"), among other approvals. Together, the Ordinances rezoned the Project property to Agricultural 1-acre, subject to various conditions. Following the Ordinances' enactment, the Original Developer entered into a Development Agreement with the County, dated April 20, 1998, which set forth, inter alia, requirements relating to the acquisition of land for and the construction of a bypass road, the development of a shoreline park, and the donation of a right- of-way to the park ("Development Agreement"). In consideration, the Original Developer was granted the right to develop the Project in accordance with the Ordinances and other approvals in force as of the date of the Development Agreement. In other words, the Ordinances and other 1 EXHIBIT 1 land use regulations applicable to the Project were "locked in" as of the date of the Development Agreement for a period of thirty years. As permitted by Hawai`i County Code ("HCC") § 23-81 (1983), and in lieu of actual construction of infrastructure and roadway improvements,the Ordinances allowed, the Original Developer to enter into an agreement with the County assuring the County the improvements would be constructed, provided the Original Developer post an appropriate bond, surety or other security deemed acceptable to the County. Upon the execution of such agreement and the deposit of the security with the County, final subdivision approval would be granted prior to the actual construction of improvements pursuant to HCC § 23-81. Further, the Development Agreement required the Original Developer to post a bond in favor of the County to assure that the improvements relating to various roadway requirements would be constructed prior to the issuance of the first final small-lot subdivision approval for any portion of the Project. Development Agreement § 13(b). The Original Developer entered into a series of agreements and posted bonds for various portions of the required improvements. These included, inter alia, agreements for regional traffic improvements, subdivision improvements, and road maintenance. Based on these agreements and the bonds, the County issued final subdivision approval for Phase I of the Project on September 18, 1999, and Phase II on December 1, 2000. Portions of the covered improvements were constructed by the Original Developer but many were uncompleted within the deadlines set in the agreements. On April 29, 2010, Corporation Counsel Lincoln Ashida wrote to the Original Developer detailing the material breach of the Development Agreement and subdivision agreements due to the failure to timely construct the required improvements and the invalidity of 2 the bonds provided to the County. See Mr. Ashida's letter to John De Fries, dated April 29, 2010, attached hereto as Exhibit"A". In 2012, 1250 Oceanside, LLC ("Petitioner") acquired the Original Developer's outstanding loans and took over the Project. Over the years,the Mamalahoa Bypass Road ("Bypass"), the Haleki`i Street extension and portions of the subdivision improvements were constructed. The property underlying the Bypass was conveyed to the County and the extension of Haleki`i Street to the mauka side of the Bypass ("Mauka Haleki`i Extension") was accepted by the Hawai`i County Council ("Council")through dedication. County Resolution No. 317-12, adopted November 9, 2012 ("Resolution 317-12"). After multiple inquiries with the County about the status of the dedication of the internal Project roadways, i.e., a continuation of Halekii Street makai of the Bypass ("Makai Haleki`i Extension") and a north-south connector stub road from the Makai Haleki`i Extension to the boundaries of the Project's adjoining properties ("Connector Road"), and other matters, on March 31. 2023, C & J Coupe Family Limited Partnership ("Coupe"), an adjacent landowner, filed an action in the Circuit Court of the Third Circuit, State of Hawai`i alleging that Petitioner has failed to comply with, and the County has failed to enforce, the Ordinances, among other claims. See C&J Couple Family Limited P'Ship v. County of Hawai`i et al., Civil No. 3CCV- 23-0000123 ("Lawsuit"). On September 15, 2023, the Circuit Court ruled Coupe "shall avail itself of the declaratory ruling procedure provided under Hawaii Revised Statutes ("Haw. Rev. Stat.") ch. 91 and Planning's Rules of Practice and Procedure to seek a declaratory ruling from the Planning Director regarding the issues raised in the Complaint, including Petitioner's compliance with the Ordinances and Development Agreement."' Order Granting in Part 1 "Planning" or"Department" as used herein means the County's Planning Department. 3 County Defendants'Motion to Dismiss the Complaint for Declaratory and Injunctive Relief Filed March 31, 2023 [Dkt.1], Filed March 25, 2023 [Dkt. 21], and Staying Proceedings Pending Referral to County of Hawai`i Planning Department,filed in the Lawsuit on January 19, 2024, at 7, Dkt 151; see also Order Re:Defendant 1250 Oceanside LLC's Motion to Dismiss Complaint, Filed March 31, 2023 [Dkt. 1], Filed May 11, 2023 [Dkt. 15], filed in Lawsuit on January 12, 2024, at 6, Dkt. 149. Coupe filed its Petition for Declaratory Ruling on February 7, 2024, and Supplement to Petition for Declaratory Ruling, submitted on February 7, 2024 on March 27, 2024 (collectively, "Coupe Petition"). Petitioner filed its Petition for Declaratory Ruling on February 27, 2024 ("Petition"). IL APPLICABLE RULES; DIRECTOR AUTHORITY Pursuant to Haw. Rev. Stat. § 91-8 (2012): [a]ny interested person may petition an agency for a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency. Each agency shall adopt rules prescribing the form of the petitions and the procedure for their submission, consideration, and prompt disposition. Orders disposing of petitions in such cases shall have the same status as other agency orders. Planning's Rules of Practice and Procedure ("Planning Rules") govern the declaratory ruling process. Rule 3.1(a)thereof gives Planning's Director("Director")the discretion to "issue a declaratory order as to the applicability of any statutory provision, ordinance, or any rule or order of the Director or the Department." Planning Rule 3-1(b) requires that the filing of a petition for a declaratory ruling must contain: (1) A non-refundable filing and processing fee of one hundred dollars; (2) Name, address, telephone number,if available, and signature of each petitioner; 4 (3) A designation of the specific provision, rule, or order in question, together with a statement of the controversy or uncertainty involved; and (4) A statement of the petitioner's position or contention; and (5) A memorandum of authorities, containing a full discussion of reasons and legal authorities in support of such position or contention. The declaratory ruling procedure is one "whereby an interested party could seek agency advice as to how a statute, agency rule, or order would apply to particular circumstances not yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of the City and County of Honolulu ("CARD"), 114 Hawai`i 184, 197, 159 P.3d 143, 156 (2007). "Use of the declaratory ruling procedural device only makes sense where the applicability of relevant law is unknown, either because the agency has not yet acted upon particular factual circumstances, or for some other reason the applicability of some provisions of law have not been brought into consideration." Id. "[T]he declaratory ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely appealed." Id., 114 Hawaii at 196, 159 P.3d at 155. III. ANALYSIS; RULING A. Petitioner's Request The Petition requests the Director to issue a declaratory ruling as to the following questions: Dedication Requirements: 1. Whether the express terms of Ordinance No. 96-7 require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road. 2. Whether the express terms of Ordinance No. 96-8 require the dedication of the Mauka Haleki'i Extension, Makai Haleki`i Extension, or Connector Road by a date certain or any milestone in the development of Hokuli`a. 5 3. Whether the express terms of the Development Agreement impose any dedication obligations for the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road separate and apart from Ordinance No. 96-8. Construction Standards: 1. Whether the express terms of the Ordinances set specific construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road must be built to. 2. Whether the express terms of the Ordinances require compliance with Sections 23-86 and 23-89 of the Hawai`i County Code for the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road. 3. Whether the express terms of the Development Agreements set specific construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road must be built to. 4. Whether the express terms of the Development Agreement require compliance with Sections 23-86 and 23-89 of the Hawai`i County Code for the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road. 5. Whether the express terms of the Ordinances prohibit variances under Chapter 23 for the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road. 6. Whether the express terms of the Development Agreement prohibit variances under Chapter 23 for the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road. Variances Under Chapter 23: 1. As of January 31, 2011, did Chapter 23 have provisions for granting variances? 2. As of January 31, 2011, did the provisions for granting variances under Chapter 23 allow for variances from Sections 23-86 and 23-95 of the Hawai`i County Code? 3. Can a roadway subject to a properly granted variance from Sections 23-86 and 23-95 of the Hawai`i County Code be in full compliance with Chapter 23? 4. If a roadway subject to a variance is otherwise in full compliance with Chapter 23, can the County accept dedication of the roadway under Section 23-10 of the Hawai`i County Code? 5. Can a roadway subject to a variance from Sections 23-86 and 23-95 of the Hawai`i County Code be dedicated under Section 23-10 of the Hawai`i County Code? 6 Variance Applications: 1. As of January 31, 2011, did Section 23-17(a) of the Hawaii County Code allow for notice of a variance application to be served by mail on owners of interests in properties within 300 feet of the perimeter boundary of the applicant's property? 2. As of January 31, 2011, did Section 23-17(a) of the Hawaii County Code allow for proof of an applicant's service or good faith efforts to serve notice of a variance application on neighboring property owners to be provided in the form of an affidavit? 3. As of January 31, 2011, did Chapter 23 or any other statute, ordinance, rule or order within the Planning Director's jurisdiction require notice of a variance application to be served on neighboring property owners other than as provided in Section 23-17(a) of the Hawaii County Code? 4. As of January 31, 2011, did Chapter 23 allow for any person aggrieved by the decision of the Planning Director in the administration of Chapter 23 to file an appeal with the Hawai`i County Board of Appeals within thirty days of the Planning Director's written decision? 5. As of January 31, 2011, did Chapter 23 or any other statute, ordinance, rule or order within the Planning Director's jurisdiction authorize an appeal of the Planning Director's decision on a variance application other than by filing an appeal with the Board of Appeals within thirty days of the Planning Director's written decision on the variance application? 6. Did the Variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending County rezoning ordinances? 7. Did the Variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending County development agreements? Dedication of Haleki`i Extension: 1. As of November 9, 2012, did any statute, ordinance, rule, or order within the Planning Director's jurisdiction require notice of the Resolution to be served on neighboring property owners? 2. Did adoption of the Resolution violate any statute, ordinance,rule, or order within the Planning Director's jurisdiction related to amending rezoning ordinances? 3. Did adoption of the Resolution violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements? B. Department's Response 7 1. Questions Outside the Scope of the Director's Authority: Non-Compliance With Planning Rule 3-1(b), Questions posed which do not comply with the requirements of Planning Rule 3-1(b) will not be addressed in this Order. The following questions do not designate a specific provision, rule or order of the Director or the Department as Planning Rule 3-1(b)(3)requires: Dedication Requirements, Question 3, does not designate any specific provision, rule or order of the Director or the Department. It seeks an interpretation of the Development Agreement but the Development Agreement is not a Department order. Construction Standards, Questions 3, 4 and 6, seek an interpretation of the Development Agreement which is not a Department order. 2. Questions Outside the Scope of the Director's Authority: Requesting Review of Prior Reviewable Actions The following questions are focused on concrete agency decisions or past actions, whether by the Department or another agency of the County, for which other means of review are or were available. These requests are inconsistent with the purpose of Haw. Rev. Stat. ch. 91 and Planning Rule 3, see CARD, 114 Hawai`i at 197, 159 P.3d at 156, and, therefore,they will not be addressed in this Order: Variances Under Chapter 23, Questions 1 and 2, and Variance Applications, Questions 1, 2, 3, 4, and 5, seek a determination of how the Department's Subdivision Code, i.e., HCC ch. 23, applied to the relevant factual situation on January 31, 2011. These questions improperly seek review or affirmance of a past Department action, i.e., the issuance of Planning Variance 10-027, dated January 31, 2011 ("Variance 10-027"), which is no longer appealable. See CARD, 8 114 Hawai`i at 196, 159 P.3d at 155 (explaining declaratory ruling procedure not for review of past agency decisions which are no longer appealable). Variance Applications, Questions 6 and 7, seek a determination of whether any provision, rule or order of the Director or the Department relating to the amendment of County re-zoning ordinances or development agreements precluded issuance of Variance 10-027. The questions improperly seek review or affirmance of Variance 10-027's issuance, which is no longer appealable. See CARD, 114 Hawai`i at 196, 159 P.3d at 155. Dedication of the Haleki`i Extension, Question 1, seeks a determination of whether any provision, rule or order of the Director or the Department set forth notice requirements for the Resolution. The question improperly seeks review or affirmance of a Hawaii County Council ("Council") action over which the Director has no authority. Dedication of the Haleki'i Extension, Questions 2 and 3 improperly seek review or affirmance of a Council action over which the Director has no authority. To avoid an unauthorized exercise of discretion, the Director will not address the Petition's above-referenced questions. 3. Questions Within the Scope of the Director's Authority Determining the following questions are within the Director's authority and are addressed below: Dedication Requirements, Questions 1 and 2 cite a specific ordinance and request application to the facts of the case. Construction Standards, Questions 1, 2 and 5 cite a specific ordinance and request application to the facts of the case. 9 Variances Under Chapter 23, Questions 3, 4 and 5 cite a specific ordinance and request application to a specific set of facts. a. The Ordinances' Relevant Requirements Ordinance 96-7, Conditions M(4) and M(5), require that"[p]rior to the issuance of Final Subdivision Approval for any portion of subject property", the applicant shall "construct" the Mauka Haleki`i Extension and Makai Haleki`i Extension and "provide"the Connector Road, and the phasing of the same shall be approved by the County's Department of Public Works ("DPW"). See Ordinance 96-7, at 15-16, attached hereto as Exhibit"B". Ordinance 96-7, Condition K, requires that, "prior to final subdivision approval, or any land alteration activity," a"final comprehensive public access plan shall be developed" and include, inter alia, public "mauka-makai and lateral shoreline accesses". Ordinance 96-7, at 12- 13 (Exhibit"B"). Ordinance 96-7, Condition L, requires the "right to public access and recreational use of[the Project's] privately owned coastline park and trails"be conveyed to the County "by way of a perpetual easement". Id., at 14. Condition L specifically requires the applicant to retain fee simple ownership of the shoreline park and, to the extent any roadway, trail or other rights-of-way become deemed a public highway or trail under Haw. Rev. Stat. ch. 264, Condition L shall no longer be applicable. See id. Ordinance 96-8, Conditions L(4) and L(5), also require the construction of certain roadway improvements prior to the issuance of final subdivision approval for any portion of the Project, including construction of the Mauka Haleki`i Extension, Makai Haleki`i Extension and the Connector Road. See Ordinance 96-8, at 24, attached hereto as Exhibit"C". Ordinance 96- 10 8, Condition M, requires all roadway improvements stated in Ordinance 96-8, Condition L, be dedicated to the County. See id., at 26. b. Compliance and Non-compliance Taken in their entirety, the Ordinances' roadway and public access requirements expressly require the Mauka Haleki`i Extension, Makai Haleki`i Extension and Connector Road be dedicated to the County. Council accepted the dedication of the Mauka Haleki`i Extension on November 9, 2012. See Resolution 317-12. Council's acceptance of the Mauka Haleki`i Extension under Resolution 317-12 was a legislative act which received input from DPW. The Director neither had nor has authority over Resolution 317-12. To the extent the Mauka Haleki`i Extension was effectively dedicated, such dedication adequately satisfied those portions of Ordinance 96-7, Condition M(4), and Ordinance 96-8, Condition L(4), applicable to the Mauka Haleki`i Extension. As noted above, the Ordinances' roadway improvement conditions were initially satisfied by the Original Developer's agreements and bonds pursuant to HCC §§ 23-81, 23-82, and 23-83, which allowed the issuance of final subdivision approval based on the construction assurances provided in the agreements and secured by the bonds. The agreements have not been satisfied and the bonds are no longer valid or enforceable. Thus, Oceanside has not fully satisfied the Ordinances'roadway improvement and dedication requirements because the Makai Haleki`i Extension and Connector Road have not been dedicated to the County. In order to comply with the Ordinances, Oceanside must construct the Makai Haleki`i Extension and Connector Road to a condition approved by DPW and dedicate the Makai Haleki`i Extension and Connector Road to the County. c. Applicability of a Variance 11 Neither Ordinance addresses any variance process. In accordance with HCC § 23- 14, the Director may approve a variance from the Subdivision Code's requirements. Because such a variance only excuses performance under Chapter 23, Variance 10-027 cannot and does not effect an amendment of an existing ordinance. See Leone v. Cty. of Maui, 128 Hawai`i 183, 193-96, 284 P.3d 956, 966-969 (Haw. Ct. App. 2012) (explaining a variance cannot amend a community plan); see also Earley v. Bd. of Adjustment of Cerro Gordo Cty., 955 N.W.2d 812, 817 (Iowa 2021) ("The board cannot amend or set aside the zoning ordinance under the guise of a variance.");Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz. App. 530, 535 (Ariz. Ct. App. 1974) ("The Board cannot amend or repeal any zoning ordinance [through a variance] for this power belongs to the City Council."). Furthermore, a Chapter 23-variance cannot and does not: (a) extinguish the authority of the DPW to set standards for or make determinations regarding street construction standards; or(b) usurp Council's authority to accept or reject the dedication of public infrastructure subject to the DPW Director's approval. While the Director has the authority to issue variances from Chapter 23's requirements, those variances provide relief only from Chapter 23's requirements: they do not relieve Petitioner from the Ordinance's conditions. The DPW's Director has the authority to set standards for and make determinations regarding street construction, See HCC § 2-40, and the Council has authority over dedication of public infrastructure, including streets. See HCC § 2-162.1(b). To the extent that the Ordinances require the dedication of the Makai Haleki`i Extension and the Connector Road to the County, subject to the DPW Director's approval, and said roadways remain privately held, such obligations remain unsatisfied and the Petitioner has not met its obligations under the Ordinances. 12 Pursuant to Planning Rule 3-6, this Order shall not be applicable to different factual situations or where additional facts not considered in this Order exist. So Ordered, April 29, 2024 Zeii (o /Cell Zendo Kern(Apr 29,2024 15:26 HST) ZENDO KERN, PLANNING DIRECTOR 13 BEFORE THE PLANNING DIRECTOR PLANNING DEPARTMENT COUNTY OF HAWAII STATE OF HAWAI`I In the Matter of DOCKET NO. 24-0002 CERTIFICATE OF SERVICE 1250 OCEANSIDE, LLC, Petitioner CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the parties below by email on the date below: Delivered via electronic mail: Patrick K. Wong Derek B. Simon Ian R. Wesley-Smith Attorneys for Petitioner Kenneth R. Kupchak Mark M. Murakami Toren K. Yamamoto Jonathan N. Marchuk Attorneys for C&J Coupe Family Limited Partnership Dated: Hilo, Hawaii April 29, 2024. ZENDO KERN, PLANNING DIRECTOR, COUNTY OF HAWAII By: /s/ Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel Planning Director's Attorney 14 Exhibit "A" ,• ° •.!%•, Lincoln S.T.Ashida William P. Kenoi -`�- Corporation Counsel • Mayor '� � Katherine A. Gerson 4- = r•;. � ,,;« ,� Assistant Corporation 44. Assistant _••• Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Nib,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 E-mail: corpcounsell co.hawaii.hi.us April 29, 2010 Sent via email; hard coal,will follow Mr. John De Fries 1250 Oceanside Partners 78-6831 Ali`i Dr., Ste. 429 Kailua-Kona, HI 96740 Dear Mr. De Fries: RE: Material breach by 1250 Oceanside of the Development • Agreement between the County of Hawaii and 1250 Oceanside This office represents the County of Hawaii and has been authorized by the Office of the Mayor to provide you this communication. Pursuant to Paragraphs 3 and 25 of the Development Agreement between the County of Hawaii and 1250 Oceanside Partners (hereinafter "Oceanside"), notice is hereby given of Oceanside's material breach of the aforementioned development agreement. I. Background 1. Oceanside, as developer of the subdivision called Hokuli'a, successfully sought passage of Hawaii County Council Ordinances 96-7 and 96-8 (January 15, 1996). These ordinances in pertinent part rezoned 1550 acres of the project to allow for the development of the planned subdivision, subject to certain conditions. 2. A condition of rezoning Ordinance 96-7 provided for Oceanside agreeing to construct a bypass highway in the vicinity of Keauhou and Captain Cook that would connect the subdivision to the Mamalaoha Highway, construct the channelization and signalization of the Mamalahoa Highway-Haleki`i Street Intersection, construct the extension of Haleki`i Street, construct a park, grant a perpetual • easement for public access, gain water rights, construct wastewater disposal systems, place most electrical and communication utilities Hawaii County is an Equal Opportunity Employer and Provider Mr. John De Fries • April 29, 2010 Page 2 underground, provide a fair share contribution for park, and recreation improvements, police facilities, fire facilities, solid waste facilities, and to support road and traffic improvements. 3. As a condition of the rezoning under Ordinance 96-8, requirements similar to that in Ordinance 96-7 were imposed. 4. According to Ordinance 96-7, in lieu of actual construction of infrastructural improvements (the wastewater disposal system, the park, and the roadway improvements [i.e. Haleki'i Street and the Bypass]) Oceanside could enter into an agreement with the Planning Director, the Department of Public Works and the Department of Water Supply, if applicable "to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable ... Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements." 5. Ordinance 96-8 had a similar provision as that provided in Ordinance 96-7. 6. Based on these promises made by Oceanside, on April 1, 1998 through Resolution 244-98, the Hawai'i County Council authorized the County of Hawaii to enter into the subject Development Agreement with Oceanside pursuant to Section 46-123, Hawaii Revised Statutes, as amended, and Ordinance No. 93-37 (Hawai'i County Code Chapter 30). 7. On April 20, 1998, the County of Hawai'i through former Mayor Stephen K. Yamashiro entered into the subject Development Agreement with "1250 Oceanside Partners, a Hawaii limited partnership, dba OCEANSIDE 1250 OCEANSIDE." 8. The Development Agreement was meant to clarify the "Land Use Regulations and Approvals" as.of the date of the Development Agreement. 9. The Development Agreement contained provisions relating to Oceanside's obligation to acquire, dedicate and construct the Bypass Highway. 10.The Development Agreement also contained provisions relating to Oceanside's obligation to make subdivision improvements. 11.Paragraph 20 of the Development Agreement states: "Oceanside shall have the right to develop the Project; the Bypass Highway and the Coastline Park in accordance with the terms and conditions of this Agreement and the Approvals, and the parties shall have the right to enforce the provisions of this Agreement. The parties hereto acknowledge that this Agreement is intended to implement the intent of the parties and that Oceanside shall have the right to develop the OP Project, the Bypass Highway and the Coastline Park pursuant to the • Mr. John De Fries April 29, 2010 • . Page 3 Land Use Regulations and Approvals, subject to its adherence to and performance of all terms and conditions of this Agreement. In the event that a question arises regarding Oceanside's and the County's responsibilities or their intent, the parties shall look toward this Agreement to clarify such issues." 12.The Development Agreement provided in paragraph 13(b) that prior to the issuance of the first final small-lot Subdivision approval far any • portion of the property, Oceanside shall post a bond in favor of the County to assure that the infrastructure improvements for the Bypass Highway and for the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection will be constructed • and provide a bond for relevant extension of Haleki'i Street, amongst . other things. 13.The Development Agreement also provided in paragraph 13(d) that "[lin any event from the time construction commences, the entire Bypass Highway shall be completed within five (5) years provided that those certain circumstances as articulated in Paragraph (39) do not exist." 14.Paragraph 39 states: "Force Majeure. In the event that either party shall be delayed or hindered in or prevented from the performance of . any duties, obligations or conditions provided for and required under this Agreement by reason of strikes or other disturbances, lockouts, labor troubles, riots, insurrection, war or civil disturbance, fire or earthquake, tidal wave, acts of God, the elements, government legislation, regulation or controls, or economic controls, making it impossible to complete any duties, obligations, or conditions provided for and required under this Agreement, then performance of such duty, obligation, or condition shall be excused for the period of the delay and the period for the performance of any such duty, obligation, or condition shall be extended for a period equivalent to the period of such delay. Under no circumstances shall this provision operate or be construed to excuse either party from the payment of any sum required to be paid to the other party." 15.The Development Agreement also provided that on or before January 14tn of each and every year following the execution of the Development Agreement, Oceanside shall submit an annual report of its compliance with the terms and conditions of the Development Agreement. 16.On September 16, 1999, Oceanside and the County entered into an Agreement for Regional Traffic Improvements. Said agreement specified that Oceanside was required to construct a bypass highway and other regional traffic improvements pursuant to the conditions of Ordinance 96-7, 96-8 and 97-3, by January 2005. 17.The Agreement for Regional Traffic Improvements was secured by • bonds as follows: Mr. John De Fries April 29, 2010 • Page 4 Mamalahoa Highway Bypass Phase I (Keauhou to Haleki'i Street) - $15,500,000 Mamalahoa Highway Bypass Phase II (Haleki'i Street to Napoopoo - $9,260,000 Mamalahoa Highway/Halekri Street Intersection Improvements - $290,000 18.On September 16, 1999, Oceanside and the County entered into an Agreement (Subdivision Improvements) stating that Oceanside was to complete the construction of utilities improvements (such as roads, drainage structures, sewer system, and potable water systems) in accordance with construction plans and specifications approved by the Planning Department of the County of Hawaii on September 15, 1999, File No. SUB 98-124 by December 31, 2001. Said agreement was secured with a bond in the amount of $34,170,000. 19.On September 16, 1999, Oceanside and the County entered into a Road Maintenance Agreement, whereby Oceanside was to construct an extension to Haleki'i Street and a new road and maintain the landscaping and other facilities for a period of five (5) years after dedication. Said Agreement was secured by a bond in the amount of $1,635,000. • 20.Based on the agreements and bonds as provided above, on September 18, 1999, Oceanside received Final Subdivision Approval No. 7168 for "Hokuli'a, Phase I". 21.On November 27, 2000, Oceanside and the County entered into an Agreement (Subdivision improvements)where Oceanside agreed to complete construction of utilities and improvements (such as roads, drainage structure, sewer systems, and potable water systems) for Hokulia Phase II by November 27, 2001. Said Agreement was secured by a bond in the amount of$7,190,000. 22.Based on the agreement and bonds as provided in paragraph 21 above, Oceanside received Final Subdivision Approval for Hokulia -- Phase II on December 1, 2000. 23.Ali bonds mentioned herein were issued by "American Motorists Insurance Company", one of the Kemper Insurance Companies. 24.The construction of the bypass has always been and continues to be a priority for the County of Hawaii. When questions arose concerning Oceanside's financial solvency and their ability to fulfill their obligations under the various agreements (including the Development Agreement), as well as the payment of the various bond premiums, representatives of Oceanside and their lender met with the County administration in April 2009, and assured the County of Oceanside's commitment in fulfilling its obligations. Oceanside promised to produce a financial plan to the Mayor of the County of Hawaii, detailing their proposed course for fulfilling these obligations. Mr. John De Fries April 29, 2010 Page 5 25.To date, despite further verbal representations and assurances from Oceanside representatives, no financial plan has been submitted to the County of Hawaii. 26.In February 2010, at a meeting between Oceanside, its lender, and County administration officials, the County again expressed its concern for the need for Oceanside to fulfill its obligation to complete the bypass, given the acute needs of the community. A proposal was made for the collateralization of real property belonging to Oceanside in favor of the County for the purpose of allowing the County to complete construction of the bypass. After completion of the bypass, Oceanside would be allowed to repay the County; upon fulfilling this financial obligation to the County, the County would release any secured interest in the real property. Oceanside representatives admitted they did not have the financial resources to complete construction of the bypass. 27.Oceanside representatives and their lender agreed to explore this • collateralization arrangement and went so far as to begin scheduling a site visit and obtaining an updated appraisal of the subject real estate. 28.Within a few weeks after the discussion with Oceanside concerning the collateralization of their land in favor of the County for the purpose of allowing the County to construct the improvements • promised by Oceanside, the County learned Oceanside had arranged a "private auction" of some of its lands. 29.Despite repeated attempts by the County to obtain further information about this "private auction," Oceanside representatives have been deliberately vague and have not provided the County with any material information concerning what this auction is all about, who will be invited to participate in the auction, and what lands are being auctioned. 30.The construction of the bypass began in February 2002. Despite Oceanside's claims they were not obligated to complete the bypass within the five year time as required by the Development Agreement due to periods being "tolled" by litigation, a judicial order putting the County in possession of the land pending appeal was filed by the Third Circuit Court on July 28, 2009. Oceanside has failed to resume construction and the fulfillment of their obligation for the completion of the bypass. • Mr. John De Fries April 29, 2010 411 Page 6 H. Material breach by Oceanside The County of Hawaii alleges as follows: 1. Oceanside has failed to perform its duties under the Development Agreement in good faith. Despite numerous promises by Oceanside of their commitment to fulfill its obligation to our community, the fact remains Oceanside has not fulfilled the majority of and the most substantial requirement of the Development Agreement. When provided the opportunity by the County to collateralize their real property so the County could complete construction of the bypass for our citizens, Oceanside representatives expressed a willingness to enter into such an agreement and went as far as scheduling a site visit and an updated appraisal. Unbeknownst to the County, Oceanside contemporaneously planned a "private auction" of unidentified lands to unidentified buyers. When pressed for information concerning this "private auction" and whether the lands that were to be sold were the very same ones the County sought to collateralize, Oceanside was deliberately vague and ambiguous. As of this writing, despite numerous requests for information, Oceanside has not been forthcoming with any material information. Oceanside's actions constitute a . material breach of Paragraph 40 of the Development Agreement in their failure to perform its duties in good faith. 2. Oceanside has failed to complete construction of the bypass as required by the Development Agreement. On July 28, 2009, the Circuit Court of the Third Circuit entered an Order placing the County in possession of earlier disputed lands for the purpose of resuming construction of the bypass. There is no legal impediment preventing Oceanside from fulfilling its obligation to compete construction of the bypass. Oceanside's failure to resume construction of the bypass constitutes a material breach of Paragraph 13(d) of the Development Agreement. 3. Oceanside has failed to complete the subdivision improvements for Phase I as required by the Development Agreement. On September 16, 1999, Oceanside and the County entered into an agreement stating that Oceanside was to complete the construction of utilities improvements (such as roads, drainage structures, sewer system, and potable water systems) in accordance with construction plans and specifications approved by the Planning Department of the County of Hawaii on September. 15, 1999, File No. SUB 98-124 by December 31, 2001. This agreement was secured with a bond in the amount of$34,170,000. Mr. John De Fries April 29, 2010 • Page 7 The subdivision improvements are not yet complete, despite the December 31, 2001 deadline for completion. Further, the County is of the information and belief there is no current schedule or plan for the completion of the Phase I subdivision improvements. In meetings with County of Hawaii officials, Oceanside representatives have admitted Oceanside does not have the financial capacity to complete construction of the bypass as earlier promised. The veracity of this representation is buttressed by the representation made in the Complaint filed in The Club at l-lokull'a, et. al. v. American Motorists Insurance Company, et. al., Civil No. 10-1-116K (Third Circuit Court, State of Hawaii), wherein Oceanside allegedly admitted in writing on March 3, 2010, that it was unable to complete work as promised with respect to various club and subdivision improvements. Pursuant to Paragraph 24 of the Development Agreement, an annual report must be submitted by Oceanside detailing its "compliance with the terms and conditions of(the Development)Agreement to the Planning Department." Upon information and belief, no report has been received for 2010. The County of Hawaii requests acknowledgment from Oceanside that it is in material breach of the Development Agreement. Please communicate your response to this office as soon as practicable. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel 40 EXHIBIT "B" • COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft S) ORDINANCE NO. 96 7 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 HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A-la) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, HALEKII , KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII , COVERED BY TAX MAP KEY 7-9-12 :4 , 11 AND PORTION OF 3 AND 8-1-4 :PORTION OF 3 . BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section ?5-87, Article 3 , Chapter 25 (Zoning Code) • of the Hawaii County Code, is amended to change the district 411 classification of property described hereinafter as follows : The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A- la) : PARCEL 1 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098 , Land Commission Award 614 to Charles Hall , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 5, 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South : 1 . 345° 15 ' 189 . 91 feet along Grant 2029 to S. W. Makahiki to a point : Thence , following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the right with a radius of 470 . 00 feet, the chord azimuth and distance being : EXHIBIT C • 2 . 316° 23 ' 15" 424 . 98 feet to a point; 3 . 343° 16 ' 839 . 35 feet along the remainders of Grant 2029 to S. W. Makahiki, Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030. 00 feet, the chord azimuth and distance being: 4 . 329° 59 ' 30" 473 . 03 feet to a point; 5. 316° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270 . 00 feet, the chord azimuth and 111 distance being: 6 . 345° 33 ' 1224 . 95 feet to a point; 7 . 14° 23 ' 350 .20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030. 00 feet, the chord azimuth and distance being: 8 . 354 ° 32 ' 30" 699 . 21 feet to a point ; 9 . 334 ° 42 ' 918 . 92 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, for the next three (3) courses following along 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 : • -2 III 10 . 66° 00' 770 . 00 feet to a point; 11 . 74° 30 ' 930. 00 feet to a point; 12 . 67° 00 ' 285. 65 feet to a point; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall : 13 . 179° 00 ' 416 . 28 feet to a point; 14 . 149° 00 ' 221 . 00 feet to a point ; 15 . 52° 00 ' 205 . 00 feet to a point; 16 . 67° 00 ' 304 . 00 feet to a point; 17 . 80° 00 ' 573 . 00 feet to a point; 18 . 102° 00 ' 259 . 00 feet to a point; 19 . 136° 00 ' 441 .00 feet to a point; 20. 120° 00 ' 641 . 00 feet to a point; • 21 . 137° 00 ' 256 .00 feet to a point; 22 . 168° 20 ' 1123 . 00 feet to a point; 23 . 163° 30 ' 456 .00 feet to a point; 24 . 206° 00' 214 . 09 feet to a point ; 25 . 243° 00' 693 .46 feet to a point ; 26 . 193° 00 ' 282 . 00 feet to a point; 27 . 222° 00' 513 . 00 feet to a point; 28 . 210° 19 ' 324 . 00 feet to a point; 29 . 198° 00' 497 . 68 feet to a point; 30 . 181° 00 ' 307 . 60 feet to a point ; 31 . 258° 00 ' 140 . 74 feet to a point; 32 . 188° 49 ' 30" 106 . 80 feet to a point ; 33 . 170° 53 ' 443 . 95 feet to a point; • -3- • 34 . 268° 39 ' 20. 00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin: 35 . 272° 51 ' 57. 35 feet to a point; 36 . 267° 36 ' , 189 . 05 feet to a point; 37 . 269° 43 ' 203 . 15 feet to a point; 38 . 275° 15 ' 223 .35 feet to a point; Thence, for the next three (3) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall : 39 . 268° 14 ' 434 .20 feet to a point ; 40 . 275° 04 ' 236 . 30 feet to a point; • 41 . 262° 13 ' 206 .40 feet to the point of beginning and containing an area of 383 . 952 Acres, more or less. (Refer to Parcel 1 as shown on Exhibit "A" ) . SECTION 2 . Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi , Kanakau 1st and 2nd, Kalukalu 1st, 2nd and 3rd and Onouli 1st , South Kona, Hawaii , shall be Agricultural (A-la) : • -4 • PARCEL 2 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1567 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUJ CHAU" , being 601 .01 feet North and 2, 479. 11 feet East and running by azimuths measured clockwise from True South: 1 . 334 ° 42 ' 342 . 98 feet 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 a point : Thence, following along the remainders 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 and Grant 1176 to Kini on a curve to the left • with a radius of 705 . 00 feet, the chord azimuth and distance being: 2 . 298° 39 ' 831 .43 feet to a point; 3 . 262° 26 ' 397 .26 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645 .00 • feet, the chord azimuth and distance being : 4 . 277° 14 ' 329 . 53 feet to a point ; 5 . 292° 02 ' 85 . 32 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of • 5- 30.00 feet, the chord azimuth and distance being : 6 . 337° 02 ' 42 .43 feet to a point ; 7. 22° 02 ' 35 .26 feet along the remainder of Grant 1176 to Kini to a point; Thence, following along the remainders of Grant 1176 to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being: 8 . 6° 12 ' 384 .70 feet to a point; 9 . 350° 22 ' 60 .05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645 .00 feet, the chord azimuth and 411 distance being: 10 . 6° 42 ' 30" 362 . 96 feet to a point; 11 . 23° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to Ialua along a curve to the left with a radius or 705 . 00 feet, the chord azimuth and distance being : 12 . 6° 06 ' 411 . 07 feet to a point ; 13 . 349° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645. 00 feet, the chord azimuth and distance being: 411 -6- 411 14 . 3° 07 ' 311 . 35 feet to a point; 15 . 17° 05 ' 307. 17 feet along s of Grant 1464 toeIalualand rGrant 1576 to Lohi to a point; Thence, following along the remainders of Grant 1576 to Lohi, Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole on a curve to the left with a radius of 1130 . 00 feet, the chord azimuth and distance being: 16 . 349° 47 ' 1036 . 55 feet to a point; 17 . 322° 29 ' 272 . 49 feet along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole to a point; Thence, following along the remainder of Royal Patents 4386 and 7146, Land Commission 411 Award 8452 to A. Keohokalole on a curve to the right with a radius of 870 . 00 feet, the chord azimuth and distance being: 18 . 352° 50 ' 30" 879 .41 feet to a point; 19 . 23° 12 ' 488 . 09 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being: 20 . 78° 08 ' 30" 958 . 38 feet to a point; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being : 21 . 57° 14 ' 50" 1532 . 00 feet to a point; • 411 -7- IIIThence, for the next four (4) courses following al the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole: 22 . 160° 00 ' 200. 00 feet to a point; 23 . 149° 00 ' 452.00 feet to a point; 24 . 160° 51 ' 628 . 00 feet to a point; 25 . 152° 30 ' 327. 00 feet to a point; 26 . 182° 19 ' 313 . 00 feet along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah: 27 . 171° 27 ' 400. 00 feet to a point; 28 . 161° 20 ' 606 . 00 feet to a point; • 29 . 175° 16 ' 440 . 00 feet to a point; 30 . 182° 42 ' 30" 1190 .00 feet to a point; 31 . 155° 00 ' 489. 00 feet to a point ; 32 . 181° 00 ' 353 . 00 feet along the remainders of Grant 1745 to John Cavanah 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; 33 . 153° 00 ' 492 . 00 feet 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 a point ; 34 . 179° 00 ' 126 . 72 feet along the remainder of Royal Patent 1670 to John D. -8 • 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; 35 . 247° 00 ' 285 . 65 feet along Grant 1651 to Charles Hall to a point; 36 . 254° 30 ' 930. 00 feet along Grant 1651 to Charles Hall to a point; 37 . 246° 00 ' 770 . 00 feet along Grant 1587 to John Peters to the point •of beginning and containing an area of 372.010 Acres, more or less . All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof herein after referred to as "subject property") . 111 SECTION 3 . These changes in district classification are conditioned upon the following: A. The applicant , successors or assigns shall be responsible for complying with all of the stated conditions of approval . B . The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205, Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District . C. The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of Water 411 -9- • Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" . Prior to approval of the SOOth lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply' s "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development. D. Subdivision plans for any portion of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance . E. A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public • Works, whichever is applicable. F. All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. G. A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property. • - 10- • H. An archaeological mitigation and interpretation1 p an shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans : 1 . an archaeological data recovery plan for the sites to undergo data recovery, 2 . a detailed interim protection/preservation plan for the sites to undergo preservation, and 3 . an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. i . Should any unidentified sites or remains such as artifacts, shell , bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J . A solid waste management plan shall be prepared meeting with the approval of the Department of • - 11- Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development . Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works . K. 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 comes 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 411 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 • -12 - • the date Final Subdivision Approval PP 1 is obtained on the subject property. The first phase shall be completed and open to the public within thirty (34) days following the opening of the golf course; 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 restrictions 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 accessway (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 . • - 13- L. Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions . This 411 condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264 , Hawaii Revised Statutes; M. 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 : 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki ' i Street intersection; • - 14 - 410 2 . determine the final right-of-way g y alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass, the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the 411 applicant's reimbursement to the county for the acquisition of the lands condemned; 3 . construct the Mamalahoa Highway Bypass 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 Haleki ' i 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 extension of Haleki' i Street through the subject property as generally reflected in Exhibit 'B', which phasing of improvements shall be approved by the 410 -15- Department 111 of Public Works. If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki' i Street improvements. The purpose of this condition is to prevent the use of Haleki' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and • 5 . provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings, as required by the chief engineer, to reduce the impacts of noise and light on the residents therein - 16- • and to generally beautifythe highway ghway appQarance in such locations; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant, less the pro rata portion attributed to the subject property; • N. In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements. • -17- • O. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads . The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment . The fair share contribution for each . lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of building sites as determined by the zoning of such lot . The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of $7, 239 .16 per lot. Based upon the applicant' s representation of intent to subdivide and develop up to 400 lots, the indicated total fair share contribution is $2, 895, 664 . 00, however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition O. • -18- • The fair share contribution shall be allocated as follows : 1 . $3, 490. 85 per lot , for an indicated total of $1, 396,340 . 00 to the County to support park and recreational improvements and facilities; 2 . $168 .40 per lot, for an indicated total of $67, 360 .00 to the County to support police facilities ; 3 . $332 . 61 per lot , for an indicated total of $133 , 044 . 00 to the County to support fire facilities; 4 . $145 . 62 per lot, for an indicated total of $58, 248 . 00 to the County to support solid waste • facilities; 5 . $3, 101 . 68 per lot, for an indicated total of $1, 240, 672 . 00 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HOPI) . In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development , subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall • -19- 111 be credited against the sum specified in Condition 0(4 ) for solid waste facilities, Condition 0(1) for parks and recreation, and in Condition 0(5) for road and traffic improvements . For purposes of administering Condition O, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies . P. Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Q. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. R• An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone . The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. -20- 111 S . An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances. 1 . the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant , successors or assigns, and that are not the result of their fault or negligence; 2 . granting of the time extension would not be contrary to the General Plan or Zoning Code; 3 . granting of the time extension would not be contrary to the original reasons for the 411 granting of the change of zone; 4 . the time extension granted shall be for a period not to exceed the period originally granted for performance (i .e. , a condition to be performed within one year may be extended for up to one additional year) ; and 5 . should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action . Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. 410 -21- • SECTION 4 . In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance . SECTION 5 . This ordinance shall take effect upon its approval . INTRODUCED BY: COUNCIL MEMBER, UNTY OF HAW I Hilo, Hawaii Date of Introduction: December 15, 1995 Date of 1st Reading: December 15, 1995 Date of 2nd Reading: January 3 , 1996 Effective Date : January 15, 1996 • 'Q ED cs to 1,' : ,d LEGALITY Y LI tac Iume • •22- • d ' : . 1 : : .. . I' t_i E • II ii 'ti !i1: ? ! iI!! - Ili • It t#i s-� i Q i , i ' i . - i ' + f •a a a 1 1 it t �: � Yf t ; �. 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II-•(-,-- •11-- _ ,. c,i • ( 's . • %••:- • •-•- . ."---- I '•-:''t -)"• .t,../ 4 i•-3% ; II . 1•If• .c ... . : :J.4_...r, ..,,,:.-. . v. .... is,... c4,4 t. ti. . c . f •• /..._... ..,- , . .>nt r;-) ‘ ‘ \ x _-.„, _scts1.1-,/.- . •eg.., * .;ref,4..7 ni• ,. ,•1 t-----..f. -dr? - . a1/2;..?,zbi.,.,.„ „7:-/-, ' ,' jh ..c.* A„,i•gsr•:. s, : . -----t--.---____:. r.---.:6 • •- „Or -••• .. ,, r,t,...... ...... ,.... _. i. • $ . ., 1 ; /e•,tity..-wt.ccr...-tW4I'A '' firi;4041:12 -. ,N --* '' ,..•j,,, ‘1 .?•.' ,• . : • ,e- ....r it . .0.% GUI,-42:N!lc.4.1tt ;k•:,..011.773 •- 5.......-4 0 OFFICE OF THE COUNTY CLERK County of Hawaii • Hilo , Hawaii R E C ► ' - (DRAFT 41 '96 AN 16 Fill 7 57 bWiccALLV0TE i1F Takashi Domingo /+4'E tt T rNCf �:..-N ALBS E iuced By: Arakaki X .ntroduced: December 15, 1995 Zeading: December 15, 1995 -Abraauon X :hed: N/A X De Linn X 1RK5: Domingo X Osorio X Rath X Ray X Smith X 7 2 _ 0 ( DRAFT 5 ) ROLL CALL VOTE i Reading: January 3, 1996 yor: January 4 , 1996 AYES NOES Abs E. ted: January 16, 1996 �a` i X ye: January 15 , 1996 Bonk-Abramson X • hed January 24 , 1996 Childs X De Lima X RKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 • YEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as ted above. / -c2;) COUNCI L CHAIRMAN COUNTY CLERK ,ed/& pprvrrd this day V1 , I9 • :. COUNTY • : 11'AII Bill No.: 158 (Draft 5, Reference: C-734/FC-98 96 7 Ord No.: EXHIBIT "C" • COUNTY OF HAWAII STATE OF HAWAII BILL NO. 181 ---------- (Draft 6) ORDINANCE NO. 96 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 HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a) AND UNPLANNED (U)TO AGRICULTURAL(A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO I ST AND 2ND. KANAUEUE 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA. HAWAII,COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-1-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87,Article 3, Chapter 25 (Zoning Code) of the Hawaii County • Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd. North Kona. Hawaii, shall be Agricultural (A-1a): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions,being also a point on the division between North and South Kona,the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 71• 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152' 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; 11111 EXHIBIT B • Thence, for the next seven (7)courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251• 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255° 17' 131.07 feet to a point; 6. 240° 43' 26.91 feet to a point; 7. 257° 50' 172.57 feet to a point; 8. 243° 13' 30" 21.91 feet to a point; 9. 256° 57' 98.95 feet to a point; Thence. for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 338° 17' 30" 158.36 feet to a point; 11. 257° 24' 102.95 feet to a point; 12. 255° 40' 30" 171.35 feet to a point; 13. 261* 29' 101.46 feet to a point; 14. 346' 30' 30" 54.40 feet to a point; 15. 343° 21' 30" 152.40 feet to a point; 16. 346° 20' 165.46 feet to a point; 17. 343* 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345° 53' 30" 154.41 feet to a point; 20. 333° 53' 114.71 feet to a point; 21. 345• 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres. more or less. (Refer to Parcel 1 as shown on Exhibit "A"). • _2. • The district classification of the following area situated at Honuaino 3rd and attt. Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona. Hawaii. shall be Agricultural (A-1a): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall. the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67)courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 1. 172° 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251° 15' 39.58 feet to a point; • 3. 259° 25' 18.68 feet to aP oint- 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271° 10' 30" 50.61 feettoapoint; 12. 261' 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262* 38' 30.23 feet to a point; 15. 258° 17' 37.28 feet to a point; 16. 254° 45' 21.32 feet to a point; 411 -3- • 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 21.89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° 07' 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; 23. 250° 03' 30" 91.17 feet to a point; 24. 257° 28' 88.18 feet to a point; 25. 253° 37' 30" 14.36 feet to a point; 26. 271` 49' 7.86 feet to a point; 27. 243° 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; • 30. 265° 31' 13.70 feet to a point; 31. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259' 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 266° 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 2722° 05' 60.95 feet to a point; 40. 269' 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; • -4- • 43. 171° 11'1 30" 28.45 feet to a point: 44. 277° 12' 46A7 feet to a point: 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; 50. 261' 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' _ 166.66 feet to a point; 55. 261° 47' 108.98 feet to a point; • 56. 243° 34' 33.10 feet to a point; 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262' 59' 118.99 feet to a point; 60. 256' 19' 39.78 feet to a point; 61. 262* 44' 82.08 feet to a point; 62. 267° 50' 34.11 feet to a point; 63. 265• 25' 63.09 feet to a point; 64. 273* 36' 30" 112.92 feet to a point; 65. 268° 50' 151.03 feet to a point; 66. 274' 59' 30" 35.27 feet to a point; 67. 268' 30' 30" 48.40 feet to a point; • -5- Thence, for the next three(3)courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makah.i.ki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; 73_ 333° 41' 55.11 feet to a point; 74. 341* 52' 42.41 feet to a point; 75. 350° 21' 65.77 feet to a point; 76. 357° 11' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10)courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81. 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83. 356° 37' 108.84 feet to a point; 84. 358• 09' 1 10.66 feet to a point; 85. 6° 27' 30" 75.31 feet to a point; • 6 • 86. 357° 30' 30" 143.26 feet to apoint; 87. 8° 45' 30" 30.57 feet to a point: 88. 359° 52' 108.27 feet to a point; 89. 265* 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence. for the next eight (8)courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357° 33' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point: 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; 96. 329° 39' 30" 32.22 feet to a point; • 97. 326° 06' 51.01 feet to a point; 98. 324* 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72° 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; • -7 • 104. 79° 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105. 82° 05' 30" 5164 feet to a point; 106. 83' 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91* 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; 1 1 1. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 268° 21' 280.72 feet to a point; 114. 259° 47' 379.67 feet to a point; 411 115. 260' 53' 149.26 feet to a point; 116. 259° 07' 153.59 feet to a point; 117. 266° 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 246' 4l' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; 1'3. 245° 12 34" 66.16 feet to a point; 12-1. 257° 45' 30.. 3433 feet to a point: 125. 239° 59' 72.54 feet to a point; 126. 250° 39' 30" 70.76 feet to a point; • -8- 411/ 127• 246° 08' 111.93 feet to aPo int; , 128. 332' 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four(4)courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4,Section 2 to American Board of Commissioners for Foreign Missions: 129. 64* 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.78 feet to a point; 133. 154° 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: • 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 1630 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; O • Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165' 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A".) SECTION 2. Section 25-88, Article 3, Chapter 25(Zoning Code)of the Hawaii County Code. is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona. Hawaii, shall be Agricultural (A-1a): PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591)and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 11110 2272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit I1 (File Plan 1591) 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 American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; 4. 266 28' 187.31 feet along Lot 3 (Government Land - Counry of Hawaii) to a point: -10- • Thence, for the next eleven(11)courses following along middle of stonewall.. 5. 4* 59' 157.50 feet along Lots 22 and 21 of Keekee Estates(File Plan 2087)and along the remainder of Grant 977 to Panaunau to a point; 6. 17 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087)and along the remainder of Grant 977 to Panaunau to a point; 7. 7° 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087)and along the remainder of Grant 977 to Panaunau to a point; 8. 91• 17' 30" 56.46 feet along Lot 18 of Keekee Estates(File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9. 355" 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; • Thence, for the next four(4)courses following along Grant 866 to Kapule: 10. 86' 02' 30" 309.93 feet along Lot 2 to a point; 11. 80' 19' 207.35 feet along Lot 1 to a point; 12. 75° 14' 183.86 feet along Lot I to a point; 13. 79° 02' 674.13 feet along Lot Ito a point; 14. 177" 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 75• 14' 1,338.05 feet along Grant 977 to Panaunau to a point; 16. 150' 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251• 45' 902.30 feet along Grant 865 to John Nakookoo to a point; • -11- • Thence, for the next thirty-six (36)courses following along middle of stonewall and along Grant 865 to John Nakookoo: 18. 250' 02' 30" 41.72 feet to a point; 19. 238' 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253' 29' 121.82 feet to a point; 22. 257' 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 110.46 feet to a point; 28. 258° 29' 24.30 feet to a point; 29. 274' 56' 30" 31.91 feet to a point; • 30. 260° 18' 30" 148.31 feet to a point: 31. 253° 43' 47.09 feet to a point: 32. 243' 21' 30" 89.60 feet to a point; 33. 263° 53' 30" 70.49 feet to a point: 34. 254* 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241• 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point: 40. 216° 24' 30" 55.73 feet to a point: 4 I. 238° 55' 30" 27.24 feet to a point: -11- • • 42. 255° 23' 30" 29.74 feet to a point; 43. 271* 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271' 04' 85.71 feet to a point; 47. 277' 42' 30" 71.32 feet to a point; 48. 269° 46' 2I.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pace! 3 as shown on Exhibit "A".) • The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1 162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' S4" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78' 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1 162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: • -13- 3• 203' 12' 488.09 feet to a point; Thence,following on a curve to the left with a radius 01870.00 feet, the chord azimuth and distance being: 4. 172° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to lalua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius 01645.00 feet, the chord azimuth and distance being: • 8. 183° 07' 311.35 feet to a point; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to lalua to a point; Thence, following along the remainders of Grant 1464 to lalua and Grant 1 175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 411.07 feet to a point; 11. 203' 03' 162.63 feet along the remainder of Grant 1 175 to Nakauwaa to a point: Thence, following along the remainder of Grant 1 175 to Nakauwaa and Grant 1 177 to Kamakahiona on a curve to the left with a radius 01645.00 feet. the chord azimuth and distance beine: 12. 186° 42' 30" 362.96 feet to a point: -14- • • 13. 170° 22' 60.05 feet alongthe remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kama.t.ahiona and Grant 1 176 to pini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five(5) courses following along the remainder of Grant 1176 to Kini: 15. 202' 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112' 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 97° 14' 329.53 feet to a point; • 19. 82° 26' 397.26 feet to aint; Po , Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118' 34' 831.43 feet to a point; 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; • -15- • Thence, for the next three (3)courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244- 12' 628.00 feet to a point; 26. 330° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Pan 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' 1,338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona • to a point; 30. 76° 40' 30" 44.81 feet along Grant 1 177 to Karnakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old railroad: 31. 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341 ° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1 177 to Kamakahiona and Grant 1 175 to Nakauwaa to a point; Thence. for the next six (6) courses following along the remainder of Grant 1 175 to Nakauwaa: 36 350' 55' 30" 47.80 feet to a point; III -16- • 37. 260° 45' 8.34 feet to a point; Thence, for the next four(4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. I• 03' 30" 50.75 feet to a point; 40. 4* 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four(4)courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six(26)courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340' 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342' 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332° 23' 82.87 feet to a point; 53. 324* 00' 11.13 feet to a point; 54. 332° 36' 30" 113.50 feet to a point; -17- • 55. 347° 43' 24.68 feet to a point; Thence, for the next four(4)courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 344° 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6)courses following along middle of stonewall: 61. 341 ° 48' 30" 54.25 feet to a point; 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 111.89 feet to a point; 65. 325° 21' 106.90 feet to a point; • 66. 62° 18' 30" 29.22 feet to a point; Thence, for the next three (3)courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337' 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point: Thence. for the next seven(7)courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146. Land Commission Award 8452 to A. Keohokalole: 71 338° 26' 168.87 feet to a point: 72. 337° 34' 153.12 feet to a point: • 18 • 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit "A".) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part ereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: • (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty(180) days from the effective date of this ordinance; provided that a maximum ninety(90)day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180)days from the effective date of this ordinance: (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four(4) years from the effective date of this rezoning as determined in Condition 13; Final Subdivision Approval shall be secured within five (5)years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, • -19- • Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; • (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation.and (3) an interpretation plan which shall include buffer zones. signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) : 1• • I19r "V . • " . al • . • v • • • "1 • .• 1 ..•. 1 • 111i 1 V • p I• . • 11 • • . 1 9 . .• •V • •V 1 • 1 1.1 / • I • S/ -DO- • • I. u.. v. .• • a.. ova • •a . • . r. ' • • 'VI,' 1- • v • aa 1a �. • n • - • ' • "v • • ' . • ..• • .. •. • v • • • ", • i at". • %%. a Planning Director and the Department of Land and Natural Resources and shall • • . 1a • • 111/ 1 •• •• r ••• ti •s as • • • •v • s • ••• : •• ••u • • • t•• ••e. • • • s . s• . • •• . .v- •• a [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 19931; 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) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final • Subdivision Approval,or any land alteration activity, whichever comes first;) W[(2)] 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; [(3) No more than a total land area of twelve(12)acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] (2)[(4)] [A] Upon opening the first phase of the Dark 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 • -21- • 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 restrictions 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 parkin • 1. • •/ • a • II IS I C• ' • I I tee •V. • ..• /• • : phases_jn accordance with the public access plan; and a)[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(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. (I) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of[the) its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised • Statutes,) will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the) coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway. • • •. I -. -W. . w Chapter 264J-lawaii Revised Statutes; (J) Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits. human burials. rock or coral alignments. pavings or walls be encountered. work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken: . -21- • (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (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: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of • Keauhou arid Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion) of the Mamalahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit "C",] inits_entircircrdiltic_aaprgaimaitmicinituaisauhcaLand Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, Novidcdhrrther that the section of the Mamalahna Highway • •< , , • • 1• • • I. 1 • 11 1 . • I• .v. .. 1110 -23- • I • • •f • • 1 • •i1 . • •1V' .1 • project area; [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass;] [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B', which phasing of improvements shall be approved by the Department of Public Works. [A] If before the comm tion •1• • •. 1 1 • I I . I U • 11. •1.• ..• 1 .V VV.. • 1.11II• I .•• bypass.js completed and fid_. • said=don provides a connectionjo Haleki'i Street. a barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Halekri Street improvements [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare • between the existing Mamalahoa Highway and p portion [the Phase 1 section Jof the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain has been completed and opened for general public use; and L5)1(6)] provide roadway stub-outs,generally shown in Exhibit "B", to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;) and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] standards tet forth by the Deraanme�t �t uj ij Wor}.t fc,r Alii .•• 1.V.v w' 1 1 11 ••' . •. 1 • II . • • 11 I 1 - • •v 1 11 .- in 1 • Public Works, The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings • as required by the chief engineer, to • -?4- IIIreduce the impacts of noise and li ht on the reside g nts therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bvpass•s connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition,design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, • less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit `C•, meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road,meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;) • -25- • (Ml[fN)] All roadway improvements stated in Condition L [and Mj of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law) County of Hawaii; (N1[O)] To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q)[(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond,surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of • such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions-thereof shall be granted prior to the actual construction of required infrastructural improvements; f(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and MJ; Pi((R)1 It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition. "agriculture" shall be defined as the cultivation of crops. including but not limited to flowers, vegetable. foliage. and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: • ?6 4111/ (I) if such activity is implementing a conservationro ram for P g the affected property(ies),as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; 1Q1[(S)) Restrictive covenants ih the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude • the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; fRl[(T)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts arc adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index(HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities,or • -27- • any combination thereof shall have a maximum combined value of S 4,701,205.74. lieu of paying the fair share contribution, the applicant may construct such In improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ) r1 • •• .1 I . 11. .- • • 1. • 1 i• •.1 • 1/ 'II 'a . i •• • ••. t • t • . .. . • • W - ! •• • • . 1• 11.4 • • •II . 114 a 1 1 1 et W/ 1 . 1 la to 11 •• •1• l 1 u • • S • • . t. Subdivided by the amounts allocated hereinbelow for each such lot. and shall become so- aid .. a. .i• • 1. S ..•v' • { • • •V. • e• ..t- , . , p•- 1 v. • 11. increments. the amount of the fair share contribution due and payable prior to final '• • • •• I . • • 1 '1 •1 - 1 1• • • 1n , .a 411 siccording to the number of additional proposed lots in each such increment. The/fair share contribution for each lot. except for lots larger than ten acres in size_or which arc •t/n t . *V . • . • ate •a . • t • 11 •.-11 t1 a •Wa. - . - 1 . . • . t . • 'S S . • The fair share contribution its focal of cash. land. facilities. or any combination 1 •1 . •• 1 • 1 1 . 1 te• • • t 1 #.VC • it.: .l 1• •I1 ••1 • V. •• 7 ' t It . . . •.1 1 • . . a1 • . • , '•• • .1 ' 1 • ,.' a . •. . -V • t • . ' 11 • Share,contt-iblttion is 52.895.664.00. however. the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the • • • •• •• 'II • t eV. •t • t 1 / 1• ••. •.1 • /1 . 1 contribution shall be allocated as follow; 14'1 ; • • . 1 •/.- .t • • • • 1' 41.111 1 11 V S II nark and r c'rralinnal Immo rmCpLs anrt farilirinc • -?8- • (2) . . 41 • • • • 1 '1.' . • • . • . 01 11 police facilities: ( . . • • . i '••• . • • • • 3 1 .411 , • •fire facilities: ' • '• ' . 4 • • • • . • "••" . . • . • : . • : 11 • tell a solid waste facilities: ( 1 •. .. • • . • "••. • • • • 4117 .1 • • at its' 10 support road and traffic improvements, Thefir_share contributions_described above shall he a jiusted annually beginning • - - - . . ( - • . i - "v • • / • • 1!1 e • • • • • • 1 the Honolulu Consumer Price Index fHCPIl. In lieu of Rayinp the fair share contribution_ the applicant may construct improvements/facilities related to parks and recreation. fire. police.solid waste disposal facilities and roads within the region • impacted by the proposed development. subject to the approval of the planning director. The cost of constructing the improvements required in Conditions H.K and J. shall be credited against the sum specified in Condition R(1) for parks and • •• • 1• • 1 : • • '• • "1 • . 11 . i -111 •v 11 • • 4•a 1. • .• 11'1" i• •1•' "•• • 1 V. • land contributed or the cost of any improvements required or made in lien_of the fair •. • • 11.1 "•1 •• •4 , . 11 • , • . s .rovedjy the Planning Directorupon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; ) S.)[(T)) In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; • -29- • (JJ[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (UA[(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; 3_,)[(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, (W)[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: III (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and 110 -30- • (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid,such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: je.....4............4...... . COUNCIL MEMBER, COUNTY OF H All II iawaii f Introduction: December 15, 1995 -f 1st Reading: December 15, 1995 -f2nd Reading: January 3 , 1996 iveDate: January 15 , 1996 APPROVED as to Fr-?,::: cnd GAI.S7Y CCRPO^&Ti^_N COUNSEL COUNTY Ci HAWAII Dote .1/ S1(4 III -31- • • 1,( a 1 . 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IT:'; ') 't l'- 3.*---( ** ,�� �� /�1 • I •- T • - , m Q It .% fr .Ki. v- 4e.z 0 E• • • OFFICE OF THE COUNTY CLERK County of Hawaii Hilo R E r��-� r- • Hawai `- - (D ,JfIV)16 HI 7 57 .,FFlCE '_ :ROLL C4Itiiyet E CQtltUT t 0,4WS:+a1NOES ABS E iuced By: Takashi DXminvo Arakaki — Introduced: December 15, 1995 X Bonk-Abramson X Reading: December 15, 1995 X shed: N/A De Luna X ARKS: Domingo x Osorio X Rath X Ray X Smith X 7 2 0 ( DRAFT 6 ) ROLL CALL VOTE id Reading: January 3 , 1996 AYES NOES ABS I ayor. January 4 , 1996 -ned: January 16, 1996 A` " X • rive: January 15, 1996 Bonk-Abramson X shed January 24 , 1996 Childs X De Lima X ARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 ) HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as _aced above. 411161rAlitild&r ...' / ' COUNCIL CHAIRMAN // COUNTY CLERK 'oucd B Itrp'prvvrd this day / ,I9 9e- )-61,(___, ,e • OR,COUNTY • All Bitt No_ 181 (Draft 6 1 Reference C-821/PC-91 Ord No.: 96 8 EXHIBIT 2 CARLSMITH BALL LLP PATRICK K. WONG 5878 75-5722 Kauakini 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 Petitioner 1250 OCEANSIDE, LLC COUNTY OF HAWAII PLANNING DEPARTMENT In the Matter of DOCKET NO. 1250 OCEANSIDE, LLC PETITION FOR DECLARATORY RULING; EXHIBITS "A" - "H" PETITION FOR DECLARATORY RULING Pursuant to Haw. Rev. Stat. ("HRS") § 91-8 and Rule 3-1 of the County of Hawai`i ("County") Planning Department Rules of Practice and Procedure ("PD Rules"), Petitioner 1250 Oceanside, LLC ("Petitioner"), by and through its attorneys, Carlsmith Ball LLP, hereby submits this Petition for Declaratory Ruling to the Planning Director. 4862-5574-8005.3.051730-00058 EXHIBIT 2 I. INTRODUCTION. Petitioner is the current developer of the master-planned residential community known as Hokuli`a("Hokuli`a") located on the Kona Coast in Kealakekua, Hawai`i. Hokuli`a is being developed pursuant to a number entitlements issued by the County, including rezoning Ordinance No. 96-7 ("Ordinance No. 96-7") and rezoning Ordinance No. 96-8 ("Ordinance No. 96-8"; together, the "Ordinances"). Exhibit A; Exhibit B. The Ordinances, as well as other entitlements, were later incorporated into a Development Agreement, dated April 20, 1998 (the "Development Agreement"), between the County and Petitioner's predecessor-in-interest. Exhibit C. The Development Agreement effectively"froze"the entitlements for Hokuli`a for a period of thirty years, until April 1, 2028. In connection with the development of Hokuli`a, Petitioner (and its predecessor) has responsibly partnered with the County to contribute acres of land and tens of millions of dollars to the development of a major highway, roadways, and infrastructure, and to restore, conserve, and provide public access to culturally important shoreline areas. In doing so, Petitioner has at every step proceeded in good faith and secured the necessary governmental approvals. Relevant here, the Ordinances required the construction of the following roadways: • An extension of the Mamalahoa By-Pass/Ali`i Drive ("Bypass Extension"), increasing connectivity between Kailua-Kona and Captain Cook; • An extension of Haleki`i Street to the mauka side of the Bypass Extension ("Mauka Haleki`i Extension"); • A continuation of Haleki`i Street makai of the Bypass Extension ("Makai Haleki`i Extension"); and • A"stub"road running north-south laterally from the Makai Haleki`i Extension to the boundaries with the adjoining properties ("Connector Road"). Petitioner contributed approximately$20 million dollars towards the completion of the Bypass Extension, which was dedicated to the County in 2012 and subsequently opened to the public in -2 4862-5574-8005.3.051730-00058 2016. Petitioner constructed the Makai Haleki`i Extension and Connector Road in 1999, and the Mauka Haleki`i Extension in 2012, pursuant to construction plans approved by the County. Petitioner dedicated the Mauka Haleki`i Extension to the County over a decade ago and it has remained open to the public ever since. By any measure, Petitioner has complied, robustly, with the conditions of approval imposed on Hokuli`a and provided significant benefits to the public. Unfortunately, not everyone has been willing to recognize these significant public benefits. On March 31, 2023, C & J Family Limited Partnership ("Coupe") filed a Complaint in the Circuit Court of the Third Circuit, State of Hawai`i, against the County and Petitioner. Exhibit D.1 Coupe has a long and litigious history with the County and Hokuli`a, having fought bitterly— and unsuccessfully—to block the construction of the Bypass Extension, but not before delaying completion of the critical thoroughfare for more than a decade and costing the County and its taxpayers significant tax dollars and resources. Coupe's Complaint alleges that Oceanside has failed to comply with, and the County has failed to enforce, the Ordinances and Development Agreement, and seeks declaratory and injunctive relief. At bottom, Coupe's lawsuit is fundamentally premised on attacking actions taken and approvals granted more than a decade ago, by County officials serving under prior administrations. On September 15, 2023, the Circuit Court ruled that Coupe prematurely filed its Complaint without first seeking a formal determination from the County on Petitioner's compliance with the Ordinances and,by extension, the Development Agreement. Exhibit E (Order granting Petitioner's Motion to Dismiss); Exhibit F (Order granting the County's Motion 1 Exhibit D is Coupe's initial Complaint for Declaratory and Injunctive Relief, filed on March 31, 2023. Coupe filed its First Amended Complaint for Declaratory and Injunctive Relief on June 27, 2023, by stipulation of the parties to allow the removal of the Planning Department and Planning Director as separately-named defendants. -3 4862-5574-8005.3.051730-00058 to Dismiss). As a result, the Circuit Court stayed Coupe's lawsuit and ordered Coupe to complete the County's declaratory ruling process prior to returning to court. Coupe filed its own Petition for Declaratory Ruling on February 7, 2024. Petitioner has filed this Petition to fill obvious gaps in the issues referred by the Circuit Court that were left by Coupe's Petition, avoid piecemeal challenges by Coupe in the future, and ensure Petitioner has certainty as it continues to develop Hokuli`a. IL PETITIONER'S NAME,ADDRESS, TELEPHONE NUMBER. Name: 1250 Oceanside, LLC Address: P.O. Box 2059 Kealakekua, Hawai`i 96750 c/o Carlsmith Ball LLP Attention: Derek B. Simon 1001 Bishop Street, Suite 2100 Honolulu, Hawai`i 96813 Telephone numbers: c/o Carlsmith Ball LLP Derek B. Simon: 808-523-2589 III. STATEMENT OF PETITIONER'S INTEREST Petitioner is the developer of Hokuli`a. Hokuli`a is being developed pursuant to the Ordinances and Development Agreement, which are the subject of this Petition. IV. BACKGROUND. A. Early Development of Hokuli`a by Petitioner's Predecessor-in-Interest. Petitioner's predecessor-in-interest, 1250 Oceanside Partners, L.P. ("1250 Partners"), first conceived Hokuli`a in the early 1990s, as a higher-density, master-planned residential community consisting of approximately 1,540 lots, a 27-hole golf course, and a 100-unit members' lodge. However, 1250 Partners subsequently faced legal challenges to the merits of its proposed master plan. Following several years of litigation, 1250 Partners revised its master -4 4862-5574-8005.3.051730-00058 plan to address concerns expressed by the community, ultimately proposing a lower-density, agriculturally-focused development that eliminated the members' lodge. As part of its revised master plan, 1250 Partners committed to providing significant public improvements and community benefits. These community benefits included, inter alia, the development of an approximately 140-acre shoreline park (the "Shoreline Park"), the expansion of the County's Kona Scenic Park, and the construction and dedication of an approximately five-mile segment of the Bypass Extension. 1250 Partners submitted the necessary entitlement applications to the County to implement the revised master plan consisting of 730 agricultural lots, which culminated with the adoption of the Ordinances — Ordinance No. 96-7 covers Hokulia's western/makai lands, and Ordinance No. 96-8 covers Hokulia's eastern/mauka lands. Following adoption of the Ordinances, 1250 Partners secured numerous other entitlement for Hokuli`a and entered into the Development Agreement. The development of Hokuli`a is divided into three general phases— Phase I, Phase II, and Phase III, with Phase III further divided into three sub-phases —Phase III North, Phase III South, and Phase III East. Shortly after the Ordinances were adopted, 1250 Partners submitted construction plans to the County for subdivision infrastructure improvements for Phase I, including the Makai Haleki`i Extension and Connector Roadway. The Makai Haleki`i Extension and Connector Roadway were constructed in 1999,pursuant to construction plans approved by the Department of Public Works. -5 4862-5574-8005.3.051730-00058 B. Petitioner Takes Over Development of Hokuli`a. In late 2007, 1250 Partners defaulted on its loan and control over Hokuli`a reverted to 1250 Partners' lender. During this time, development activities were halted and could only proceed with lender authorization and funding. In January 2011, 1250 Partners obtained Variance No. VAR 10-027 (the "Variance"), which covers the Makai Haleki`i Extension, Mauka Haleki`i Extension, and Connector Road. Exhibit G. 1250 Partners sought the Variance to allow for the retention of existing and construction of new twenty-foot wide paved roadways within fifty- and sixty-foot wide rights-of- way, without having to pave the shoulders of the roadways. The purpose of the Variance was to minimize excessive grading in order to mitigate potential environmental hazards, and to address concerns that the grading of the steeply sloping lands within Hokuli`a, coupled with a full pavement of the right-of-way, would increase the potential for storm water runoff. The potential for storm water runoff was demonstrated when Hokuli`a was put on hold in late 2000, to allow for remediation of sediment runoff into the nearshore waters fronting Hokuli`a caused by severe storm events. Petitioner acquired 1250 Partners' loans in late 2012, but before development of Hokuli`a could be fully resumed, 1250 Partners needed to proceed with a petition under Chapter 11 of the U.S. Bankruptcy Code to restructure its debt. During this time, however, the Mauka Haleki`i Extension was completed, which, like the Mauka Haleki`i Extension and Connector Road, was constructed pursuant to plans approved by the Department of Public Works. The Mauka Haleki'i Extension was dedicated to the County in 2012 and has been open to the public ever since. Exhibit H (Resolution No. 317-12). -6 4862-5574-8005.3.051730-00058 Petitioner emerged from bankruptcy on July 1, 2014, in control of Hokuli`a. Since then, Petitioner has made significant strides towards revitalizing the once dormant Hokuli`a. Among other things, Petitioner contributed$20 million dollars towards the completion of the Bypass Extension and completed necessary project elements and infrastructure, including the Phase 1 Wastewater Treatment Plant, additional infrastructure improvements in subdivision Phases 1 and 2, various golf course related amenities, and all archaeological mitigation. The archaeological and cultural sites within Hokuli`a are actively monitored and maintained by the Hokuli`a Parks and Cultural Sites Association, which is funded out of Hokulia's club membership dues. The Shoreline Park(which is being developed in five phases) has been opened to the public since 2002 and is also maintained by the Hokuli`a Parks and Cultural Sites Association. Petitioner has completed the improvements required for the Shoreline Park by the Comprehensive Public Access Plan for Phases 1 through 4, and improvements for Phase 5 are currently underway. The completed park improvements include planting naturally occurring native trees, shrubs, and ground covering vines; improving the shoreline trail system with wood chips generated from the debris from clearing of non-native invasive vegetation; creating public rest areas along the trail system complete with picnic tables and waste receptacles; and installing appropriate directional, hazard, and cultural protocol signage. Petitioner has also obtained permitting for a new public restroom facility with twenty-eight parking stalls. On December 12, 2016, Petitioner dedicated a 2.273-acre parcel abutting the north side of the Kona Scenic Park to the County. That land is now being used to provide much needed off- street parking for the public. As of August 23, 2012, the Planning Department confirmed that the total balance of fair share credits for Hokuli`a was $8,641,127.12. Petitioner is currently in the process of obtaining an updated total balance of fair share credits from the County. -7 4862-5574-8005.3.051730-00058 C. Coupe's Lawsuit. On March 31, 2023, Coupe filed its Complaint. Exhibit D. In its Complaint, Coupe alleges that Petitioner has failed to comply with, and the County has failed to enforce, the Ordinances and Development Agreement. Specifically, Coupe alleges, inter alia, that: (a) the Makai Haleki`i Extension, Mauka Haleki`i Extension, and Connector Road were not built to standards required by the Ordinances and Development Agreement; (b) Oceanside has failed to comply with its dedication obligations for these roadways; (c)the County improperly granted the Variance because Coupe was not provided notice, the standard for granting a variance was not met, and the Variance functioned as an improper amendment of the Ordinances and Development Agreement; and (d) the County improperly accepted the dedication of the Mauka Haleki`i Extension. Based on these allegations, Coupe seeks declaratory and injunctive relief. On September 15, 2023, the Circuit Court ruled that Coupe was required to first seek a formal determination from the County on Petitioner's compliance with the Ordinances and, by extension, the Development Agreement. Exhibit E; Exhibit F. As a result, the Circuit Court stayed Coupe's lawsuit and ordered Coupe to complete the County's declaratory ruling process prior to returning to court. Coupe filed its own Petition for Declaratory Ruling February 7, 2024. V. Designation of the Specific Provision, Rule, or Order in Question. A. The Ordinances. Ordinance No. 96-7, enacted on January 15, 1996, rezoned the western/makai lands of Hokuli`a. Exhibit A. At issue here are the following conditions of approval under Ordinance No. 96-7: M. 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 application shall: -8- 4862-5574-8005.3.051730-00058 4. construct the extension of Haleki`i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. . . . 5. provide roadway stub-outs, generally shown in Exhibit"B", to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. Id. at 15-16. Ordinance No. 96-8, also enacted on January 15, 1996, rezoned the eastern/mauka lands of Hokuli`a. Exhibit B. At issue here are the following conditions of approval under Ordinance No. 96-8: 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 issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: 4. construct the extension of Haleki`i Street through the subject property as general reflected in Exhibit"B", which phasing of improvements shall be approved by the Department of Public Works. . . . 5. provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property, and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works." M. All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii. Id. at 23-26. B. The Development Agreement. At issue here is the interpretation of the Development Agreement. Exhibit C. Pursuant to Rule 1 of the County of Hawai`i Office of the Mayor, the Planning Department is "responsible for the overall administration of the [Development] Agreement." -9- 4862-5574-8005.3.051730-00058 C. Chapter 23 of the Hawai`i County Code. At issue here are the following provisions of Chapter 23 ("Chapter 23") of the Hawai`i County Code ("HCC"): HCC § 23-10 (Acceptance of highways; compliance with chapter): "The council shall not take over, receive by dedication, do any repair or construction work upon streets or pavements, water lines, street lighting systems, sewer lines, or in any way accept as public highways any street in any subdivision opened or platted in the County after December 21, 1966, except upon full compliance with the provisions of this chapter." HCC § 23-14 (Variances): "Variances from the provisions of this chapter may be granted; provided, that a variance shall not allow the introduction of a use not otherwise permitted within the district; and provided further that a variance shall not primarily effectuate relief from applicable density limitations." HCC § 23-17 (Procedures for variances): "(a)Notice to Owners of Property Interests. Upon receipt and acceptance of a properly filed and completed application, the department shall fix a date for the director's consideration of the application. Within three working days after receiving notice of such date, the applicant shall serve notice of the application on owners of interests in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought. Such notice shall state: (1) The name of the applicant; (2) The precise location of the property involved; (3) The nature of the use sought and the proposed accompanying structures, if any; (4) The date on which the director will consider the application; and (5) That such date is the deadline for the director's actual receipt of written comments on the application. Prior to the deadline for written comment, the applicant shall submit to the director -10- 4862-5574-8005.3.051730-00058 proof of service or of good faith efforts to serve notice of the application on the designated property owners. Such proof may consist of certified mail, receipts, affidavits, or the like." HCC § 23-86 (Requirements for dedicable streets): "(a) The subdivider shall grade, drain, and surface all streets constructed after December 21, 1966 as shown on his plat, except reserved dedication for future street purposes, so as to provide access for vehicular traffic to each lot of the subdivision. (b)A street shall be constructed in accordance with the specifications in this section and those on file with the department of public works. A street shall be installed under the supervision of the director of public works and to permanent grades approved by him. (c) A street shall have sufficient thickness of pavement, and compacted base course and sub-base material to support axle and wheel loads permitted under section 291-35, Hawai`i Revised Statutes. In no case shall the streets be less substantial than the following minimum dedicable standards of the County: (1) A street serving areas zoned for lots seventy-five hundred square feet to and including one acre, shall have a six-inch minimum select borrow sub-base course, a base course of four inches of compacted crusher run base with filler, and a pavement of two inches of asphaltic concrete or two and one-half inches of asphaltic macadam, applied in three separate applications. Pavement width shall conform to the urban standard as set forth under section 23-41. (2) A street serving areas zoned for lots of over one acre and up to and including three acres, shall have a six-inch minimum select borrow sub-base course, a base course of four inches of compacted crusher run base and a pavement of two inches of asphaltic concrete or two and one-half inches of asphaltic macadam, applied in three separate applications. Pavement width shall conform to the rural standard as set forth under section 23-41. (d)A street meeting the minimum requirements of this section shall be dedicable." -11- 4862-5574-8005.3.051730-00058 HCC § 23-95 (Right-of-way improvements): "The subdivider shall be required to improve the entire street right-of-way. The improvements shall conform to the standard specifications on file with the department of public works." D. Variance No. VAR 10-027. At issue here is Variance No. VAR 10-027, approved by the Planning Director by letter dated January 31, 2011. Exhibit G. The Variance granted relief from HCC § 23-86 (requirements for dedicable streets) and HCC § 23-95 (right-of-way improvement) for the Makai Haleki`i Extension, Mauka Haleki`i Extension, and Connector Road. Specifically, the Variance allowed for the "retention of existing and construction of new private 20-foot wide roadways with 50 and 60-foot wide rights-of-way within a multi-phased residential subdivision (Hokulia). The requested road section would be to omit the requirement for grading and paving of the road shoulders and replace with grassed shoulders." Exhibit G at 1. VI. STATEMENT OF THE CONTROVERSY OR UNCERTAINTY INVOLVED. At the heart of Coupe's lawsuit is whether Oceanside is in compliance with the Ordinances and, by extension, the Development Agreement. To resolve that broad question, and to ensure Oceanside has certainty as it continues to develop Hokuli`a, Petitioner requests declaratory rulings on the questions below, broken down by subject matter. To the extent the Planning Director determines that any question below, or any portion thereof, falls outside of his authority and jurisdiction under HRS § 91-8 and PD Rule 3, Petitioner requests that the Planning Director issue declaratory rulings on all remaining questions and all portions thereof that are within his authority and jurisdiction. Dedication Requirements. Coupe has asserted various allegations related to the nature and extent of the roadway dedication obligations under the Ordinances and Development -12 4862-5574-8005.3.051730-00058 Agreement. Accordingly, Petitioner requests declaratory rulings from the Planning Director on the following: 1. Whether the express terms of Ordinance No. 96-7 require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road? 2. Whether the express terms of Ordinance No. 96-8 require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road by a date certain or any milestone in the development of Hokuli`a? 3. Whether the express terms of the Development Agreement impose any dedication obligations for the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road separate and apart from Ordinance No. 96-8? Construction Standards. Coupe has asserted various allegations related to the construction standards required under the Ordinances and Development Agreement for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. Accordingly, Petitioner requests declaratory rulings from the Planning Director on the following: 1. Whether the express terms of the Ordinances set specific construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road must be built to? 2. Whether the express terms of the Ordinances require compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the Haleki`i Extension, Makai Haleki`i Extension, and Connector Road? 3. Whether the express terms of the Development Agreement set specific construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road must be built to? 4. Whether the express terms of the Development Agreement require compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the Haleki`i Extension, Makai Haleki`i Extension, and Connector Road? 5. Whether the express terms of the Ordinances prohibit variances under Chapter 23 for the Haleki`i Extension, Makai Haleki`i Extension, and Connector Road? 6. Whether the express terms of the Development Agreement prohibit variances under Chapter 23 for the Haleki`i Extension, Makai Haleki i Extension, and Connector Road? -13- 4862-5574-8005.3.051730-00058 Variances Under Chapter 23. Coupe has asserted various allegations regarding the scope and effect of the Variance. Accordingly, Petitioner requests declaratory rulings from the Planning Director on the following: 1. As of January 31, 2011, did Chapter 23 have provisions for granting variances? 2. As of January 31, 2011, did the provisions for granting variances under Chapter 23 allow for variances from Sections 23-86 and 23-95 of the Hawai`i County Code? 3. Can a roadway subject to a properly granted variance from Sections 23-86 and 23-95 of the Hawai`i County Code be in full compliance with Chapter 23? 4. If a roadway subject to a variance is otherwise in full compliance with Chapter 23, can the County accept dedication of the roadway under Section 23-10 of the Hawai`i County Code? 5. Can a roadway subject to a variance from Sections 23-86 and 23-95 of the Hawai`i County Code be dedicated under Section 23-10 of the Hawai`i County Code? Variance Applications. Coupe has asserted various allegations regarding notice and other requirements for variance applications. Accordingly, Petitioner requests declaratory rulings from the Planning Director on the following: 1. As of January 31, 2011, did Section 23-17(a) of the Hawai`i County Code allow for notice of a variance application to be served by mail on owners of interests in properties within 300 feet of the perimeter boundary of the applicant's property? 2. As of January 31, 2011, did Section 23-17(a) of the Hawai`i County Code allow for proof of an applicant's service or good faith efforts to serve notice of a variance application on neighboring property owners to be provided in the form of an affidavit? 3. As of January 31, 2011, did Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction require notice of a variance application to be served on neighboring property owners other than as provided in Section 23-17(a) of the Hawai`i County Code? 4. As of January 31, 2011, did Chapter 23 allow for any person aggrieved by the decision of the Planning Director in the administration of Chapter 23 to file an appeal with the Hawai`i County Board of Appeals within thirty days of the Planning Director's written decision? 5. As of Januag 31, 2011, did Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction authorize an appeal of the Planning -14- 4862-5574-8005.3.051730-00058 Director's decision on a variance application other than by filing an appeal with the Board of Appeals within thirty days of the Planning Director's written decision on the variance application? 6. Did the Variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending County rezoning ordinances? 7. Did the Variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements? Dedication of the Haleki`i Extension. Coupe has asserted various allegations regarding the dedication of the Mauka Haleki`i Extension, including the effect of the Resolution No. 317- 12, authorizing the County to accept the dedication (the "Resolution"). Exhibit H. Accordingly, Petitioner requests declaratory rulings from the Planning Director on the following: 1. As of November 9, 2012, did any statute, ordinance, rule, or order within the Planning Director's jurisdiction require notice of the Resolution to be served on neighboring property owners? 2. Did adoption of the Resolution violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending rezoning ordinances? 3. Did adoption of the Resolution violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements? VII. JURISDICTION AND LEGAL STANDARD. HRS § 91-8 provides that"[a]ny interested person may petition an agency for a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency." Consistent with this, PD Rule 3-1(a) authorizes the Planning Director"to issue a declaratory order as to the applicability of any statutory provision, ordinance, or of any rule or order of the Director or the [Planning] Department." HRS § 91-8 and PD Rule 3-1 are "designed to provide a means for securing from an agency its interpretation of relevant statutes, rules and orders." See In re United Pub. Workers, AFSCME, Local 646, AFL-CIO, Union, 131 Hawai'i 142, 152, 315 P.3d 768, 778 (Ct. App. 2013), as corrected(Feb. 21, 2014). -15- 4862-5574-8005.3.051730-00058 This Petition centers on the interpretation of County ordinances. The well-worn rules of statutory interpretation apply with equal force to the interpretation of municipal ordinances. See Robert D. Ferris Trust v. Planning Comm'n of Cnty. of Kauai, 138 Hawai`i 307, 310, 378 P.3d 1023, 1026 (Ct. App. 2016) ("When interpreting county charters, municipal ordinances, and administrative rules, the general principles of statutory construction apply."); Foster Vill. Cmty. Ass'n v. Hess, 4 Haw.App. 463, 469, 667 P.2d 850, 854 (1983) ("Courts apply the same rules of construction to municipal ordinances as they do to statutes[.]"). "The fundamental starting point of statutory interpretation is the language of the statute itself," and "where the statutory language is unambiguous, [the] duty is to give effect to its plain and obvious meaning." To effectuate a statute's plain language, its words "must 'be taken in their ordinary and familiar signification, and regard is to be had to their general and popular use.'" Wells Fargo Bank, N.A. v. Omiya, 142 Hawai`i 439, 449, 420 P.3d 370, 380 (2018) (internal citations omitted). Thus, "[i]f possible, legislative intent should be obtained primarily from the language of the statute, and the language must be read in the context of the entire statute and construed in a manner consistent with the purposes of the statutes." Foster Vill. Cmty. Ass'n, 4 Haw.App. at 469, 667 P.2d at 854 (citation omitted). VIII. STATEMENT OF POSITION,AND POINTS AND AUTHORITIES. A. Dedication Requirements for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. 1. Whether the express terms of Ordinance No. 96-7 require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road? No. The word "dedicate" (or any variation thereof) appears nowhere in Ordinance No. 96-7. See Wells Fargo Bank, 142 Hawai`i at 449, 420 P.3d at 380 ("The fundamental starting point of statutory interpretation is the language of the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning."). Nor -16- 4862-5574-8005.3.051730-00058 does Ordinance No. 96-7 incorporate by reference any of the requirements of Ordinance 96-8. See Exhibit A,passim. Simply put, there is no requirement under the express terms of Ordinance No. 96-7 that the roadways required under Conditions M(4) and M(5)be dedicated to the County. 2. Whether the express terms of Ordinance No. 96-8 require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road by a date certain or any milestone in the development of Hokuli`a? No. Ordinance No. 96-8 does not contain any deadline or development milestone for the dedication of the Makai Haleki`i Extension, Mauka Haleki`i Extension, or Connector Road. See Wells Fargo Bank, N.A., 142 Hawaii at 449, 420 P.3d at 380 ("The fundamental starting point of statutory interpretation is the language of the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning.'). Ordinance No. 96-8 provides only that the "roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." Exhibit B at 26.2 3. Whether the express terms of the Development Agreement impose any dedication obligations for the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road separate and apart from Ordinance No. 96- 8? No. The Development Agreement lacks any express dedication requirement for the Makai Haleki`i Extension, Mauka Haleki`i Extension, or Connector Road. See Wong v. Cayetano, 111 Hawai`i 462, 481, 143 P.3d 1, 20 (2006) ("[W]hen the terms of a contract are definite and unambiguous there is no room for interpretation.") (citation omitted). The 2 In its Complaint and Petition, Coupe conflates the timing for the construction of these roadways with their dedication in an attempt to manufacture an artificial dedication deadline, and completely ignores that Ordinance No. 96-8 provides that a subdivision agreement and bond or other appropriate security could be used"[i]n lieu of actual construction" for the purpose of obtaining final subdivision approval. Exhibit B at 26. -17- 4862-5574-8005.3.051730-00058 Development Agreement simply incorporated by reference the dedication requirements for these roadways set forth only in Ordinance No. 96-8. See Exhibit C at 4-5, ¶¶2(d)(1)-(2).3 B. Construction Standards for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. 1. Whether the express terms of the Ordinances set specific construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road must be built to? No. Neither Ordinance No. 96-7 nor Ordinance No. 96-8 set forth specific construction standards for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. See Wells Fargo Bank, N.A., 142 Hawaii at 449, 420 P.3d at 380 ("`The fundamental starting point of statutory interpretation is the language of the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning."). Nor do they reference any provision in Chapter 23.4 Instead, the Ordinances provide only that: 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. Exhibit A at 14 (emphasis added); see also Exhibit B at 23 (same).5 The Hawai`i Supreme Court has rejected past attempts to interpret conditions of approval as "carry[ing] a `special interpretation' other than [their] common sense meaning." Lana`fans for Sensible Growth v. Land Use Comm'n, 146 Hawai`i 496, 503, 463 P.3d 1153, 1160 (2020). This is in stark contrast to the Bypass Extension, for which the Development Agreement contains specific dedication requirements. See Exhibit C at 13, ¶14. 4 Ordinance No. 96-8 amended and superseded Ordinance No. 94-73. See Exhibit B at 1. While Ordinance No. 94-73 contained a single reference to Chapter 23 in connection with the Bypass Extension, that reference was deleted with the adoption of Ordinance No. 96-8. See id. at 25 (deleted language shown in brackets). 5 Both Ordinances required the "phasing of improvements" for the Mauka Halekii Extension and Makai Halekii Extension to "be approved by the Department of Public Works." See Exhibit A at 15; Exhibit B at 24. -18- 4862-5574-8005.3.051730-00058 The Ordinances mean exactly what they say—both left it to the discretion of the County to determine the standards to which the roadways were to be built, requiring, by their express terms, only that they"meet with the approval of the Department of Public Works." 2. Whether the express terms of the Ordinances require compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the Haleki'1 Extension, Makai Haleki`i Extension, and Connector Road? No. Neither Ordinance No. 96-7 nor Ordinance No. 96-8 contain any reference to HCC § 23-86 and HCC § 23-86, or even a single reference to Chapter 23. See Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("`The fundamental starting point of statutory interpretation is the language of the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning."). 3. Whether the express terms of the Development Agreement set specific construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road must be built to? No. The Development Agreement does not contain any terms setting forth required construction standards for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road.6 See Wong, 111 Hawai`i at 481, 143 P.3d at 20 ("[W]hen the terms of a contract are definite and unambiguous there is no room for interpretation.") (citation omitted). 4. Whether the express terms of the Development Agreement require compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the Haleki'1 Extension, Makai Haleki`i Extension, and Connector Road? No. The express terns of the Development Agreement do not include any reference to, or otherwise require compliance with, HCC §§ 23-86 and 23-95 for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. See Wong, 111 Hawai`i at 481, 143 6 By contrast, Exhibit M to the Development Agreement set forth specific construction standards for the Bypass Extension. See Exhibit C, Ex. M. -19- 4862-5574-8005.3.051730-00058 P.3d at 20 ("[W]hen the terms of a contract are definite and unambiguous there is no room for interpretation.") (citation omitted). 5. Whether the express terms of the Ordinances prohibit variances under Chapter 23 for the Haleki`i Extension, Makai Haleki`i Extension, and Connector Road? No. The express terms of Ordinance No. 96-7 and Ordinance 96-8 do not prohibit variances under Chapter 23 for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. See Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("`The fundamental starting point of statutory interpretation is the language of the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning.'"). 6. Whether the express terms of the Development Agreement prohibit variances under Chapter 23 for the Haleki`i Extension, Makai Haleki`i Extension, and Connector Road? No. The express terms of the Development Agreement do not prohibit variances under Chapter 23 for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. See Wong, 111 Hawaii at 481, 143 P.3d at 20 ("[W]hen the terms of a contract are definite and unambiguous there is no room for interpretation.") (citation omitted). C. Dedication of Roadways Subject to Variances. 1. As of January 31, 2011, did Chapter 23 have provisions for granting variances? Yes. HCC § 23-14 provided then, as it does now, that: Variances from the provisions of this chapter may be granted; provided, that a variance shall not allow the introduction of a use not otherwise permitted within the district; and provided further that a variance shall not primarily effectuate relief from applicable density limitations. See Exhibit G at 3 (quoting HCC § 23-14) (emphasis added). -20 4862-5574-8005.3.051730-00058 2. As of January 31, 2011, did the provisions for granting variances under Chapter 23 allow for variances from Sections 23-86 and 23-95 of the Hawai`i County Code? Yes. HCC § 23-14 prescribes the scope of permissible variances from the requirements of Chapter 23, providing that: "Variances from the provisions of this chapter may be granted[.]" The reference to "the provisions of this chapter" in HCC § 23-14 broadly refers to all of Chapter 23; it does not contain exceptions or exclusions for any provision of Chapter 23, including HCC § 23-86 and HCC § 23-95. See Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 (—The fundamental starting point of statutory interpretation is the language of the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning."). HCC § 23-14 contains only two limitations or exceptions; it prohibits variances that "allow the introduction of a use not otherwise permitted within the district" or"primarily effectuate relief from applicable density limitations." HCC § 23-14. Under the"principle of expressio unius est exclusio alterius . . . the express inclusion of certain items in a statutory list implies the exclusion of others and of alternatives." Adams v. CDM Media USA, Inc., 135 Hawai`i 1, 18, 346 P.3d 70, 87 (2015). Thus, "when the legislature has created certain exceptions, 'it does not follow that courts have authority to create others.' The `proper inference' from a list of exceptions to a statute is that the legislature `considered the issue of exceptions and, in the end, limited the statute to the ones set forth."' Id. at 18-19, 346 P.3d at 87- 88. When the County Council enacted HCC 23-14, it necessarily considered what limitations or exceptions were to be placed on the Planning Director's authority to grant variances under Chapter 23, and it elected to not create any limitations or exceptions for specific provisions, including HCC § 23-86 and HCC § 23-95. 4862 5574 80053.051730-00058 -21 3. Can a roadway subject to a properly granted variance from Sections 23- 86 and 23-95 of the Hawai`i County Code be in full compliance with Chapter 23? Yes. A roadway that has been properly granted a variance under HCC § 23-14, including a variance from HCC §§ 23-86 and 23-95, can still be in full compliance with Chapter 23, because variances themselves are granted pursuant to Chapter 23. See Sections VII(C)(1)-(2), supra. 4. If a roadway subject to a variance is otherwise in full compliance with Chapter 23, can the County accept dedication of the roadway under Section 23-10 of the Hawai`i County Code? Yes. HCC § 23-10 provides that the County Council "shall not . . . receive by dedication . any street in any subdivision opened or platted in the County after December 21, 1966, except upon full compliance with the provisions of this chapter." HCC § 23-10 (emphasis added). HCC § 23-10 cannot be read in isolation and without regard to the remainder of Chapter 23, including HCC § 23-14 vesting the Planning Director with authority to grant variances. See State v. O'Brien, 5 Haw.App. 491, 496, 704 P.2d 905, 909 (1985) ("The statutory language of a subsection should not be read in isolation."). For the reasons discussed supra, a roadway that has been granted a variance can still be in"full compliance with the provisions" of Chapter 23 under HCC § 23-10,because variances themselves are granted pursuant to Chapter 23. See Section VII(c)(3), supra. HCC § 23-10 does not qualify or limit how "full compliance with the provisions" of Chapter 23 must be achieved, and it does not provide that a roadway subject to a variance cannot be dedicated or is otherwise not in full compliance with Chapter 23. -22 4862-5574-8005.3.051730-00058 5. Can a roadway subject to a variance from Sections 23-86 and 23-95 of the Hawai`i County Code be dedicated under Section 23-10 of the Hawai`i County Code? Yes. So long as a roadway is otherwise in compliance with Chapter 23, it can be dedicated to the County under HCC § 23-10, notwithstanding that it has been granted a variance from HCC § 23-86 and HCC § 23-95. See Sections VII(c)(1)-(4), supra. D. Notice and Other Requirements for Variance Applications. 1. As of January 31, 2011, did Section 23-17(a) of the Hawai`i County Code allow for notice of a variance application to be served by mail on owners of interests in properties within 300 feet of the perimeter boundary of the applicant's property? Yes. HCC § 23-17(a)provides that an applicant for a variance must"serve notice of the application on owners of interests in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought." HCC § 23-17(a) does not require a specific method for service and does not require "personal service" as that term is commonly understood. See, e.g., Haw. R. Civ. P. 4(d) (describing"personal service" as "delivering a copy . . . to the individual personally"); HRS § 634-38 (describing"personal service" as "personal delivery"). It is Petitioner's understanding that the Planning Department has allowed, and continues to allow, notice of land use applications, including variance applications, to be served on neighboring property owners by mail. 2. As of January 31, 2011, did Section 23-17(a) of the Hawai`i County Code allow for proof of an applicant's service or good faith efforts to serve notice of a variance application on neighboring property owners to be provided in the form of an affidavit? Yes. HCC § 23-17(a)provides that an"applicant shall submit to the director proof of service or of good faith efforts to serve notice of the application on the designated property -23 4862-5574-8005.3.051730-00058 owners. Such proof may consist of certified mail, receipts, affidavits, or the like." By its express terms, HCC § 23-17(a) allows for a variance applicant to substantiate their service or good-faith efforts to serve notice of a variance application in the form of an affidavit. See Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("The fundamental starting point of statutory interpretation is the language of the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning."). Allowing service by mail and proof of service or good faith efforts to serve in the form of an affidavit makes sense in the context of providing notice of land use applications, where often the notice is required to be served on hundreds of property owners. It is Petitioner's understanding that the Planning Department has allowed, and continues to allow, applicants to establish their service or good faith efforts to serve notice of land use applications, including variance applications, in the form of an affidavit attesting to the neighboring property owners that were mailed notice of the application. 3. As of January 31, 2011, did Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction require notice of a variance application to be served on neighboring property owners other than as provided in Section 23-17(a) of the Hawai`i County Code? No. Petitioner is unaware of any provision of Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction requiring notice of a variance application to be served on neighboring property owners other than as provided in HCC § 23- 17(a). -24 4862-5574-8005.3.051730-00058 4. As of January 31, 2011, did Chapter 23 allow for any person aggrieved by the decision of the Planning Director in the administration of Chapter 23 to file an appeal with the Hawai`i County Board of Appeals within thirty days of the Planning Director's written decision? Yes. HCC § 23-5 provides that"[a]ny person aggrieved by the decision of the director in the administration or application of this chapter, may, within thirty days after the director's decision, appeal the decision to the board of appeals." 5. As of January 31, 2011, did Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction authorize an appeal of the Planning Director's decision on a variance application other than by filing an appeal with the Board of Appeals within thirty days of the Planning Director's written decision on the variance application? No. Petitioner is unaware of any provision of Chapter 23 or any other statute, ordinance, rule, or order within the Planning Director's jurisdiction that authorizes an appeal from a decision of the Planning Director on a variance application under Chapter 23 other than HCC § 23-5. 6. Did the Variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending County rezoning ordinances? No. Petitioner is unaware of any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending rezoning ordinances that was violated when the Variance was granted. 7. Did the Variance violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements? No. Petitioner is unaware of any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to development agreements that was violated when the Variance was granted. -25 4862-5574-8005.3.051730-00058 E. Dedication of the Mauka Haleki`i Extension. 1. As of November 9, 2012, did any statute, ordinance, rule, or order within the Planning Director's jurisdiction require notice of the Resolution to be served on neighboring property owners? No. Petitioner is unaware of any statute, ordinance, rule, or order within the Planning Director's jurisdiction that required notice of the adoption of the Resolution to be provided to neighboring property owners. 2. Did adoption of the Resolution violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending rezoning ordinances? No. Petitioner is unaware of any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending rezoning ordinances that was violated when the Resolution was adopted. 3. Did adoption of the Resolution violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements? No. Petitioner is unaware of any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements that was violated when the Variance was granted. IX. CONCLUSION AND REQUESTED RULINGS. Based on the foregoing, and pursuant to HRS § 91-8 and PD Rule 3, Petitioner respectfully requests that the Planning Director issue an Order declaring the following: 1. The express terms of Ordinance No. 96-7 do not require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road. 2. The express terms of Ordinance No. 96-8 do not require the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road by a date certain or any milestone in the development of Hokuli`a. -26 4862-5574-8005.3.051730-00058 3. The express terms of the Development Agreement do not impose any dedication obligations for the Mauka Haleki`i Extension, Makai Halekii Extension, or Connector Road separate and apart from Ordinance No. 96-8. 4. The express terms of the Ordinances do not set specific construction standards to which the Mauka Halekii Extension, Makai Haleki`i Extension, and Connector Road must be built to. 5. The express terms of the Ordinances do not require compliance with Sections 23-86 and 23-95 of the Hawaii County Code for the Halekii Extension, Makai Haleki`i Extension, and Connector Road. 6. The express terms of the Development Agreement do not set specific construction standards to which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road must be built to. 7. The express terms of the Development Agreement do not require compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the Haleki`i Extension, Makai Halekii Extension, and Connector Road. 8. The express terms of the Ordinances do not prohibit variances under Chapter 23 for the Halekii Extension, Makai Haleki`i Extension, and Connector Road. 9. The express terms of the Development Agreement do not prohibit variances under Chapter 23 for the Halekii Extension, Makai Haleki`i Extension, and Connector Road. 10. As of January 31, 2011, Chapter 23 had provisions for granting variances. 11. As of January 31, 2011, the provisions for granting variances under Chapter 23 allowed for variances from Sections 23-86 and 23-95 of the Hawaii County Code. 12. A roadway subject to a properly granted variance from Sections 23-86 and 23-95 of the Hawaii County Code can be in full compliance with Chapter 23. 13. A roadway that is subject to a variance and is otherwise in full compliance with Chapter 23 can be accepted for dedication by the County under Section 23-10 of the Hawai`i County Code. 14. A roadway subject to a variance from Sections 23-86 and 23-95 of the Hawai`i County Code can be dedicated under Section 23-10 of the Hawaii County Code. 15. As of January 31, 2011, Section 23-17(a) of the Hawaii County Code allowed for notice of a variance application to be served by mail on owners of interests in properties within 300 feet of the perimeter boundary of the applicant's property. 16. As of January 31, 2011, Section 23-17(a) of the Hawaii County Code allowed for proof of an applicant's service or good faith efforts to serve notice of a variance application on neighboring property owners to be provided in the form of an affidavit. -27 4862-5574-8005.3.051730-00058 17. As of January 31, 2011, neither Chapter 23 nor any other statute, ordinance, rule, or order within the Planning Director's jurisdiction required notice of a variance application to be served on neighboring property owners other than as provided in Section 23-17(a) of the Hawai`i County Code. 18. As of January 31, 2011, Chapter 23 allowed for any person aggrieved by the decision of the Planning Director in the administration of Chapter 23 to file an appeal with the Hawai`i County Board of Appeals within thirty days of the Planning Director's written decision. 19. As of January 31, 2011, neither Chapter 23 nor any other statute, ordinance, rule, or order within the Planning Director's jurisdiction authorized an appeal of the Planning Director's decision on a variance application other than by filing an appeal with the Board of Appeals within thirty days of the Planning Director's written decision on the variance application. 20. The Variance did not violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending County rezoning ordinances. 21. The Variance did not violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements. 22. As of November 9, 2012, no statute, ordinance, rule, or order within the Planning Director's jurisdiction required notice of the Resolution to be served on neighboring property owners. 23. The adoption of the Resolution did not violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending rezoning ordinances. 24. The adoption of the Resolution did not violate any statute, ordinance, rule, or order within the Planning Director's jurisdiction related to amending development agreements. DATED: Honolulu, Hawai`i, February 27, 2024. ls/Derek B. Simon PATRICK K. WONG DEREK B. SIMON IAN WESLEY-SMITH Attorneys for Petitioner 1250 OCEANSIDE, LLC -28 4862-5574-8005.3.051730-00058 EXHIBIT A COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft 5) ORDINANCE NO. 96 7 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 HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-12 :4 , 11 AND PORTION OF 3 AND 8-1-4 :PORTION OF 3 . BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1. Section 25-87, Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A-1a) : PARCEL 1 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 5, 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South: 1 . 345° 15 ' 189 . 91 feet along Grant 2029 to S. W. Makahiki to a point : Thence, following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the right with a radius of 470 . 00 feet, the chord azimuth and distance being: EXHIBIT A 2 . 316° 23 ' 15" 424 . 98 feet to a point ; 3 . 343° 16 ' 839 . 35 feet along the remainders of Grant 2029 to S . W. Makahiki, Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point ; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 4 . 329° 59 ' 30 " 473 . 03 feet to a point ; 5 . 316° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point ; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270 . 00 feet, the chord azimuth and distance being: 6 . 345° 33 ' 1224 . 95 feet to a point; 7 . 14° 23 ' 350 . 20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 8 . 354° 32 ' 30" 699 . 21 feet to a point; 9 . 334° 42 ' 918 . 92 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, for the next three (3 ) courses following along 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 : -2- 10 . 66° 00 ' 770 . 00 feet to a point ; 11 . 74° 30 ' 930 . 00 feet to a point ; 12 . 67° 00 ' 285 . 65 feet to a point ; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall : 13 . 179° 00 ' 416 . 28 feet to a point ; 14 . 149° 00 ' 221 . 00 feet to a point ; 15 . 52° 00 ' 205 . 00 feet to a point ; 16 . 67° 00 ' 304 . 00 feet to a point ; 17 . 80° 00 ' 573 . 00 feet to a point ; 18 . 102° 00 ' 259 . 00 feet to a point ; 19 . 136° 00 ' 441 . 00 feet to a point ; 20 . 120° 00 ' 641 . 00 feet to a point ; 21 . 137° 00 ' 256 . 00 feet to a point ; 22 . 168° 20 ' 1123 . 00 feet to a point ; 23 . 163 ° 30 ' 456 . 00 feet to a point ; 24 . 206° 00 ' 214 . 09 feet to a point ; 25 . 243 ° 00 ' 693 . 46 feet to a point ; 26 . 193° 00 ' 282 . 00 feet to a point ; 27 . 222° 00 ' 513 . 00 feet to a point ; 28 . 210° 19 ' 324 . 00 feet to a point ; 29 . 198° 00 ' 497 . 68 feet to a point ; 30 . 181° 00 ' 307 . 60 feet to a point; 31 . 258° 00 ' 140 . 74 feet to a point ; 32 . 188° 49 ' 30" 106 . 80 feet to a point ; 33 . 170° 53 ' 443 . 95 feet to a point ; -3- 34 . 268° 39 ' 20 . 00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin: 35 . 272° 51 ' 57 . 35 feet to a point ; 36 . 267° 36 ' 189 . 05 feet to a point ; 37 . 269° 43 ' 203 . 15 feet to a point; 38 . 275° 15 ' 223 . 35 feet to a point; Thence, for the next three (3 ) courses following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 39 . 268° 14 ' 434 . 20 feet to a point ; 40 . 275° 04 ' 236 . 30 feet to a point; 41 . 262° 13 ' 206 . 40 feet to the point of beginning and containing an area of 383 . 952 Acres, more or less . (Refer to Parcel 1 as shown on Exhibit "A" ) . SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Halekii , Keekee 1st and 2nd, Ilikahi , Kanakau 1st and 2nd, Kalukalu 1st, 2nd and 3rd and Onouli 1st , South Kona, Hawaii, shall be Agricultural (A-1a) : -4 - PARCEL 2 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1587 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 601 . 01 feet North and 2 , 479 . 11 feet East and running by azimuths measured clockwise from True South: 1 . 334° 42 ' 342 . 98 feet 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 a point : Thence, following along the remainders 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 and Grant 1176 to Kini on a curve to the left with a radius of 705 . 00 feet , the chord azimuth and distance being: 2 . 298° 34 ' 831 . 43 feet to a point ; 3 . 262° 26 ' 397 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being : 4 . 277° 14 ' 329 . 53 feet to a point ; 5 . 292° 02 ' 85 . 32 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of - 5- 30 . 00 feet, the chord azimuth and distance being: 6 . 337° 02 ' 42 . 43 feet to a point ; 7 . 22° 02 ' 35 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainders of Grant 1176 to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being : 8 . 6° 12 ' 384 . 70 feet to a point; 9 . 350° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: 10 . 6° 42 ' 30" 362 . 96 feet to a point ; 11 . 23° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point ; Thence, following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to Ialua along a curve to the left with a radius or 705 . 00 feet , the chord azimuth and distance being: 12 . 6° 06 ' 411 . 07 feet to a point ; 13 . 349° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: -6- 14 . 3° 07 ' 311 . 35 feet to a point ; 15 . 17° 05 ' 307 . 17 feet along the remainders of Grant 1464 to Ialua and Grant 1576 to Lohi to a point; Thence, following along the remainders of Grant 1576 to Lohi , Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the left with a radius of 1130 . 00 feet, the chord azimuth and distance being: 16 . 349° 47 ' 1036 . 55 feet to a point ; 17 . 322° 29 ' 272 . 49 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the right with a radius of 870 . 00 feet , the chord azimuth and distance being: 18 . 352° 50 ' 30" 879 . 41 feet to a point ; 19 . 23° 12 ' 488 . 09 feet along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being: 20 . 78° 08 ' 30" 958 . 38 feet to a point ; Thence, following along middle of stonewall and along Grant 1162 to F . 0. Shulze, the direct azimuth and distance being: 21 . 57° 14 ' 50 " 1532 . 00 feet to a point ; -7- Thence, for the next four (4) courses following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole : 22 . 160° 00 ' 200 . 00 feet to a point ; 23 . 149° 00 ' 452 . 00 feet to a point ; 24 . 160° 51 ' 628 . 00 feet to a point; 25 . 152° 30 ' 327 . 00 feet to a point; 26 . 182° 19 ' 313 . 00 feet along the remainders of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point ; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah: 27 . 171° 27 ' 400 . 00 feet to a point ; 28 . 161° 20 ' 606 . 00 feet to a point; 29 . 175° 16 ' 440 . 00 feet to a point ; 30 . 182° 42 ' 30" 1190 . 00 feet to a point ; 31 . 155° 00 ' 489 . 00 feet to a point; 32 . 181° 00 ' 353 . 00 feet along the remainders of Grant 1745 to John Cavanah 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; 33 . 153° 00 ' 492 . 00 feet 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 a point ; 34 . 179° 00 ' 126 . 72 feet along the remainder of Royal Patent 1670 to John D. -8- 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 ; 35 . 247° 00 ' 285 . 65 feet along Grant 1651 to Charles Hall to a point; 36 . 254° 30 ' 930 . 00 feet along Grant 1651 to Charles Hall to a point; 37 . 246° 00 ' 770 . 00 feet along Grant 1587 to John Peters to the point of beginning and containing an area of 372 . 010 Acres, more or less . All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof herein after referred to as "subject property" ) . SECTION 3 . These changes in district classification are conditioned upon the following: A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval . B . The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205 , Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District . C . The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of Water -9- Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" . Prior to approval of the 500th lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply' s "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development . D . Subdivision plans for any portion of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance . E . A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable . F . All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site . G. A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property. -10- H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans : 1 . an archaeological data recovery plan for the sites to undergo data recovery, 2 . a detailed interim protection/preservation plan for the sites to undergo preservation, and 3 . an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. 1 . Should any unidentified sites or remains such as artifacts , shell , bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of -11- Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development . Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works . K. 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 comes 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 -12- 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 ; 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 restrictions 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 accessway (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 . -13- L. Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area ' s pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions . This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264 , Hawaii Revised Statutes; M. 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 : 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki' i Street intersection; -14 - 2 . determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass, the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the applicant ' s reimbursement to the county for the acquisition of the lands condemned; 3 . construct the Mamalahoa Highway Bypass 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 Haleki ' i 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 extension of Haleki' i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the - 15- Department of Public Works . If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki' i Street improvements . The purpose of this condition is to prevent the use of Haleki ' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5 . provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings, as required by the chief engineer, to reduce the impacts of noise and light on the residents therein -16- and to generally beautify the highway appearance in such locations; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose ; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant , less the pro rata portion attributed to the subject property; N. In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements . -17- 0 . The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads . The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments . If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment . The fair share contribution for each lot , except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of building sites as determined by the zoning of such lot . The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of $7, 239 .16 per lot. Based upon the applicant ' s representation of intent to subdivide and develop up to 400 lots, the indicated total fair share contribution is $2, 895, 664 . 00, however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0 . -18- The fair share contribution shall be allocated as follows : 1 . $3 , 490 . 85 per lot, for an indicated total of $1, 396, 340 . 00 to the County to support park and recreational improvements and facilities ; 2 . $168 . 40 per lot, for an indicated total of $67, 360 . 00 to the County to support police facilities ; 3 . $332 . 61 per lot, for an indicated total of $133, 044 . 00 to the County to support fire facilities; 4 . $145 . 62 per lot , for an indicated total of $58, 248 . 00 to the County to support solid waste facilities ; 5 . $3 , 101 . 68 per lot, for an indicated total of $1, 240, 672 . 00 to the State or County to support road and traffic improvements . The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI) . In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development , subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall -19- be credited against the sum specified in Condition 0 (4) for solid waste facilities, Condition 0 (1) for parks and recreation, and in Condition 0 (5) for road and traffic improvements . For purposes of administering Condition 0, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies . P. Comply with all applicable laws, rules , regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Q. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance . R. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone . The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. -20- S . An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances : 1 . the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant , successors or assigns, and that are not the result of their fault or negligence ; 2 . granting of the time extension would not be contrary to the General Plan or Zoning Code ; 3 . granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; 4 . the time extension granted shall be for a period not to exceed the period originally granted for performance (i . e . , a condition to be performed within one year may be extended for up to one additional year) ; and 5 . should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. -21- SECTION 4 . In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance . SECTION 5 . This ordinance shall take effect upon its approval . INTRODUCED BY: 14.00110046mogiLit) .4m440000440ftwil COUNCIL MEMBER, LINTY OF HAI Hilo, Hawaii Date of Introduction : December 15 , 1995 Date of 1st Reading: December 15 , 1995 Date of 2nd Reading: January 3 , 1996 Effective Date : January 15 , 1996 Af•Tr:OvED cs to CC`Rr?_ .,iT:ON COUNSEL CC.:NTV OF HAWAII Date -22- .- . ..-••...•'- ii •• - . -,.:. ,...; ••,-.... , V .4 i a,j... ... .. ....... ;: 1 I LPI:l.i.:. f I *"'.'") i , .i•..n.:9 '.:-.**"" 4-"7"2717:: WI/; ii 1• r: i I. -.... 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ALL VOTE CLERR Mee N I'YNQESi 5 W Aff/S EX Introduced By: Takashi Dcmingo Arakaki X Date Introduced: December 15, 1995 December 15, 1995 Bonk-Abramson X First Reading: Childs X Published: NIA De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 ( DRAFT 5 ) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Returned: January 16, 1996 Aralcaki X Effective: January 15 , 19 9 6 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. f COUNCIL CHAIRMAN A/Irre.iltee_----- COUNTY CLERK ek Appr ved/Aisappraved this Arday of ,19 616 . FR, COUNTY F WAII Bill No.: 158 (Draft 5 ) Reference: C-734/PC-88 96 7 Ord.No.: A s. € --.' a F 1 Fi )__t;:icall3 i '' ' I i -. ,,,,,, :, t -..-...= iel u" _? oll 3 rl 1-1—'' `a__ ,. a... ,n..n,,„ JET w..� , x S y 1 1 `� -�nb \ w-��cy �w J 1 -.1�� J ,. - - H .EIS ,. -- .EPIE ;� .,..._._ :.,..:7-- _ y sq 4 .% e - `Y'rar nag iiiipft H •_ .' ems^ 1 '10I As ah `pI J ar -173 /m 0 7 3 .. c. d 1 r B H4 5 �,L Jam_~ � _ 53 rr 1II p .a.�.., — 3 GM.2 '� Ili m�H -,u.b ��� kr`�i.ill m 2 --nwx n> .;- g r- i=t _ gg ,r,, =''-- '+, r .,..a 22 w.,.... " ., a .,,,�,>K acvt .e^"-W.n 9 g I i ~ }S 1 m _ •- - V.4% d4-v S - 7.Y ].� J®T F w _ ; .r _� ,16,!=,..,.....,c,.... -�- —---- Jf _ —_ �,.,:.,.., ,.+ r` �,t�}'. ,s ! Ff} s a1+.1, it a 6 f.;'rt" {�,.A ' ,pc., Lir..: J .... ._. k.Jr. -- o-w.. .m ,. F 35le 1 L Yi e`' r. 6,1 m ,.°'4'"..:""o'r.-4' ii il: ..., , ..°. \ ''''''61 V Ill �_.,-- Ie. /If '' 1 f 0 � ny ' .•••• „. .. t Jar. _un l 3,=. R O E = S' °•9€s _S f---- 1 - i • ee; in ti Y S is P 3 - 2. .8J G 'mow J \4__________JSF ) ' `ti 4 i i `_� ..r.."r ,.. 6 e { 8W'r ' C. ti C. U I =NP - i i _u rHeW vnn, ,1.• 18 •.U 28881•. :6 ` a i0 9 S•6 .^x� m .. ., w z GI ° i s P` £ 'iI 2 m y 4 cgs e� "8,, u _ o _ .. z ” `f2 i 4g r4. p g 8 - 0 m �,R Ia ! 8 mei gAc =E. N i R 7 o s 7, m m „ Ep _ ,. "s W o r, u ffeW nN a "m o• y 8 .1 I.$ 3 ry o o N N J EXHIBIT B COUNTY OF HAWAII STATE OF HAWAII 181 BILL NO. (Draft 6) ORDINANCE NO. 96 8 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 HAWAII COUNTY CODE,AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a)AND UNPLANNED (U) TO AGRICULTURAL (A-1a)AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, KANAUEUE 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST,NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-I-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 71° 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; EXHIBIT B Thence. for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251 ° 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255° 17' 131.07 feet to a point; 6. 240° 43' 26.91 feet to a point; 7. 257° 50' 172.57 feet to a point; 8. 243° 13' 30" 21.91 feet to a point; 9. 256° 57' 98.95 feet to a point; Thence, for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 338° 17' 30" 158.36 feet to a point; 11. 257° 24' 102.95 feet to a point; 12. 255° 40' 30" 171.35 feet to a point; 13. 261° 29' 101.46 feet to a point; 14. 346° 30' 30" 54.40 feet to a point; 15. 343° 21' 30" 152.40 feet to a point; 16. 346° 20' 165.46 feet to a point; 17. 343° 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345° 53' 30" 154.41 feet to a point; 20. 333° 53' 114.71 feet to a point; 21. 345° 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres, more or less. (Refer to Parcel 1 as shown on Exhibit "A"). -7- The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hail, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 1. 172° 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251 ° 15' 39.58 feet to a point; 5. 259° 25' 18.68 feet to a point; 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271° 10' 30" 50.61 feet to a point; 12. 261 ° 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262° 38' 30.23 feet to a point; 15. 258° 17' 37.28 feet to a point; 16. 254° 45' 21.32 feet to a point; 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 21.89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° 07' 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; 23. 250° 03' 30" 91.17 feet to a point; 24. 257° 28' 88.18 feet to a point; 25. 253° 37' 30" 14.36 feet to a point; 26. 271° 49' 7.86 feet to a point; 27. 243° 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; 30. 265° 31' 13.70 feet to a point; 31. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259° 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 266° 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 272° 05' 60.95 feet to a point; 40. 269° 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; -4- 43. 272° 21' 30" 28.45 feet to a point; 44. 277° 12' 46.47 feet to a point; 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; 50. 261° 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' 166.66 feet to a point; 55. 261° 47' 108.98 feet to a point; 56. 243° 34' 33.10 feet to a point; 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 256° 19' 39.78 feet to a point; 61. 262° 44' 82.08 feet to a point; 62. 267° 50' 34.11 feet to a point; 63. 265° 25' 63.09 feet to a point; 64. 273° 36' 30" 112.92 feet to a point; 65. 268° 50' 151.03 feet to a point; 66. 274° 59' 30" 35.27 feet to a point; 67. 268° 30' 30" 48.40 feet to a point; -5- Thence, for the next three (3) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; 73. 333° 41' 55.11 feet to a point; 74. 341° 52' 42.41 feet to a point; 75. 350° 21' 65.77 feet to a point; 76. 357° 11' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81. 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83. 356° 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to a point; 85. 6° 27' 30" 75.31 feet to a point; -6- 86. 357° 30' 30" 143.26 feet to a point; 87. 8° 45' 30" 30.57 feet to a point; 88. 359° 52' 108.27 feet to a point; 89. 265° 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357° 33' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point; 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; 96. 329° 39' 30" 32.22 feet to a point; 97. 326° 06' 51.01 feet to a point; 98. 324° 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72° 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- 104. 79° 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105. 82° 05' 30" 51.64 feet to a point; 106. 83° 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91 ° 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; 111. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 268° 21' 280.72 feet to a point; 114. 259° 47' 379.67 feet to a point; 115. 260° 53' 149.26 feet to a point; 116. 259° 07' 153.59 feet to a point; 117. 266° 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 246° 41' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; 123. 245° 12' 30" 66.16 feet to a point; 124. 257° 45' 30" 34.33 feet to a point; 125. 239° 59' 72.54 feet to a point; 126. 250° 39' 30" 70.76 feet to a point; -8- 127. 246° 08' 111.93 feet to a point; 128. 332° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four(4) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 64° 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.78 feet to a point; 133. 154° 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 163° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; -9- Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165° 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A") SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) 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 American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; 4. 266° 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point; -10- Thence, for the next eleven (11) courses following along middle of stonewall: 5. 4° 59' 157.50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6. 17° 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7. 7° 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 91° 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9. 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four (4) courses following along Grant 866 to Kapule: 10. 86° 02' 30" 309.93 feet along Lot 2 to a point; 11. 80° 19' 207.35 feet along Lot 1 to a point; 12. 75° 14' 183.86 feet along Lot 1 to a point; 13. 79° 02' 674.13 feet along Lot 1 to a point; 14. 177° 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 750 14' 1,338.05 feet along Grant 977 to Panaunau to a point; 16. 150° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251° 45' 902.30 feet along Grant 865 to John Nakookoo to a point; -11- Thence, for the next thirty-six (36) courses following along middle of stonewall and along Grant 865 to John Nakookoo: 18. 250° 02' 30" 41.72 feet to a point; 19. 238° 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253° 29' 121.82 feet to a point; 22. 257° 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 110.46 feet to a point; 28. 258° 29' 24.30 feet to a point; 29. 274° 56' 30" 31.91 feet to a point; 30. 260° 18' 30" 148.31 feet to a point; 31. 253° 43' 47.09 feet to a point; 32. 243° 21' 30" 89.60 feet to a point; 33. 263° 53' 30" 70.49 feet to a point; 34. 254° 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241° 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point; 40. 216° 24' 30" 55.73 feet to a point; 4I. 238° 55' 30" 27.24 feet to a point -12- 42. 255° 23' 30" 29.74 feet to a point; 43. 271° 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271° 04' 85.71 feet to a point; 47. 277° 42' 30" 71.32 feet to a point; 48. 269° 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A".) The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' 54" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78° 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -1 3- 3. 203' 12' 488.09 feet to a point; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. 172° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183° 07' 311.35 feet to a point; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to Ialua to a point; Thence, following along the remainders of Grant 1 464 to Ialua and Grant 1 175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 411.07 feet to a point; 11. 203° 03' 162.63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 12. 186° 42' 30" 362.96 feet to a point; -14- 13. 1700 22' 60.05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 202° 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112° 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 97° 14' 329.53 feet to a point; 19. 82° 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118° 34' 831.43 feet to a point; 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; -15- Thence, for the next three (3) courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244° 12' 628.00 feet to a point; 26. 330° 55' 956,00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' I.338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 76° 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old railroad: 31. 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to a paint; Thence, for the next six (6) courses following along the remainder of Grant 1175 to Nakauwaa: 36. 350° 55' 30" 47.80 feet to a point; -16- 37. 260° 45' 8.34 feet to a point; Thence, for the next four (4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. 1° 03' 30" 50.75 feet to a point; 40. 4° 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four (4) courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340° 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342° 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332° 23' 82.87 feet to a point; 53. 324° 00' 11.13 feet to a point; 54. 332° 36' 30" 113.50 feet to a point; -17- 55. 347° 43' 24.68 feet to a point; Thence, for the next four (4) courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 344° 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 341° 48' 30" 54.25 feet to a point; 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 111.89 feet to a point; 65. 325° 21' 106.90 feet to a point; 66. 62° 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: 71. 338° 26' 168.87 feet to a point; 72. 337° 34' 153.12 feet to a point; -18- 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot Iess than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (11) 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 -20- to final subdivision approvaLor any land alteration activity, whichever comes first. The final comprehensive ptblic access plan shall be developed in consultation with the Planning Director and the Department of Land and N_aturaLResources and shall include mauka-makai and lateral shoreline accesses. •arkina area(s). signage. emergency response considerations. restrictions on use (if any)�provigion of recreational and restroom facilities at appropriate locations and related improvements [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993]; 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) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;] W[(2)] 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; [(3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] 12)[(4)] [A] 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 -21- 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 restrictions 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 al[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(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. (I) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of[the] its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the] coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264, Hawaii Revised Statutes; (J) Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken; (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (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: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire MamaIahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mamalahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit "C",] 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 Haleki'i Street shall be completed and available -23- 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;] L [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. [A] If, before the completion and opening of the entire Mamalahoa I Iighway Bypass. a portion of said bypass is completed and opened. and said portion provides aeonnection to f-laleki'i Street. &barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first,] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and A portion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and (5)[(6)] provide roadway stub-outs, generally shown in Exhibit "Be, to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;] and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works. The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to -24- reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;] -25- (M)[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall he dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law] County of Hawaii; LN i[O)] To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q,)[(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; [(R)] It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition, "agriculture" shall be defined as the cultivation of crops, including but not limited to flowers, vegetable, foliage, and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: _26- (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; 1Q)[(S)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; MKT)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- any combination thereof shall have a maximum combined value of$ 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ] The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation . fire. police. solid waste disposal facilities.and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot. and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject properly is subdivided in two or mere increments, the amount of the fair share contribution duo an_cd payable prior to final subdivision=royal of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes shall be based on the maximum allowable density of building sites as determined by the zoning of such lot. The fair share contribution in a form of cash. land. facilities. or arkv combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of$7.239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to 400 lots. the indicated total fair share contribution is S2-895-664.00. however. the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. The fair share contribution shall be allocated as follows: (11 $3,490.85 per lot. for an indicated total of$1.396.340.00 to the County to support park and recreational improvements and facilities; -28- (2) $168.40 per lot. for an indicated total of$67,36000 to the County to support police facilities; 13) 4, ..1 .-r 6 a . , 'ia' - . . .1 .. ', I 411 a t- t _ ii a _ soot fire facilities; (4) $145.62 per lot. for an indicated total of$58,248.00 to the County to support solid waste facilities; (51 $3.101.68 per lot. for an indicated total of SI-240.02.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall he adjusted annually beginning three years after the effective date of this ordinance based on the percentage change in the Honolulu Consumer Price Index ()HPI). In lieu of paving the fair share contribution. the applicant may construct improvements/facilities related to parks and recreation. fire. police. solid waste disposal facilities. and roads within the region impacted by the proposed development. subject to the approval of the planning director. The cost of constructing the improvements required in Conditions H. K and L shall be credited against the sum specified in Condition R(1) for parks and recreation. Condition R(4) for solid waste facilities,and in ConditionR(5) for road and traffic improvements. For purposes of administering Condition R. the value of land contributed or the cost of any improvements required or made ix lieu of the fair share contribution shall be such amount as approved by the Planning Director. upon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; ] alf(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- TW[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (U)[(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; [(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, �Wl[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and -30- (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: je..3........04..... COUNCIL MEMBER, COUNTY OF H All Hilo, Hawaii Date of Introduction: December 15 , 1995 Date of 1st Reading: December 15 , 1995 Date of 2nd Reading: January 3 , 1996 Effective Date: January 15 , 1996 A! PRCV D as to Fr P.N1 C:C'4% GAU TY DE CORP()ATV N COUN`:FL COUNTY Or HAWAII Date I/SI 1 -31- •—�. ._•. 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L' I 1 ''•„ O CO) 7-- � '4E4 r` 1 • i\,\`;�. ,,r 'I S`4Y;r1s,r I ,�"" ,.;;:'..,‘ , .. ,,,,,,,,... ..1„. •♦ `` �;) t 1 Q rJ .1� :1.: ;':,r�� rlrj;:r( '• ,\ ':;` „�., 1 - \�.�;y,' �l _iJ V/ a P4, J.:--c�• i', . g • OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , Hawaii REv ( D 71fl11)16 WI 7 57 r F I C Ei.,.,,RoLL,c4kityptTE COUNTY OAcYlISWAINOES ABS EX Introduced By: Takashi Domingo Arakaki X Date Introduced: December 15, 1995 Bonk-Abramson X First Reading: _ December 15, 1995 Childs X Published: N/A De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 ( DRAFT 6 ) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Arakaki X Returned: January 16, 1996 Effective: January 15 , 1996 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. COUNCIL CHAIRMAN COUNTY CLERK ArAL Approved FlisiVprurrri this day of aft ,199G . / ge aiLD OR, COUNTY a�AII Bill No.: 181 (Draft 6 ) Reference: C-821/PC-91[ Ord.No.: 96 8 EXHIBIT C R-915 STATE OF HAWAII BUREAU OF CONVEYANCES Development RECORDED Agreement APR 30, 1998 08 :02 AM Between County of Hawaii and 1250 Oceanside Doc No(s) 98-060529 /s/CARL T. WATANABE Return to: ACTING REGISTRAR OF CONVEYANCES' Benjamin A. Kudo Ix,.ryer Imanaka Schraff Kudo Meyer & Fujim 900 Fort St. Mall Suite 1800 Honolulu, HI 96813 Modified April I, 1998 1250 Oceanside Partners 74-5620 A Palani Road Suite 200 Kailua-Kona, Hawaii 96740 EXHIBIT C Development Agreement Table of Contents Recitals 1 Agreement 24 Definitions 4 Headings 25 Effective Date 9 Administrative Act 25 Affected Land 10 Binding Effect 25 Permitted Uses 10 Entities Obligated 25 Density of Use 10 Partial Release 25 Maximum Height 10 Compliance Certificate 25 Maximum Size 10 Satisfaction 25 Benefits 10 Final Release 25 Acquisition 10 Administration of Agreement 26 Condemnation 11 Recordation 26 Donation 12 Counterparts 26 Bypass Construction 12 Facsimile Documents 26 Dedication of Bypass 13 Notices 26 Reimbursements 14 Public Dedication 26 Roadway Stub-outs 16 Public Access Plan 17 Coastline Park 17 Guest Houses 19 General Development 19 Subsequent Changes 19 Necessary Approvals 19 Conformance 20 Annual Review 20 Material Breach 20 Time Extension 21 Amendment 22 Discretion to Encumber 22 Obligation to Modify 22 Written Notice 22 Cooperation 22 Assignment 23 Enforcement 23 Waiver 23 Gender 23 Parties 23 Partnership 24 Applicable Law 24 Force Majeure 24 Good Faith 24 Computation of Periods 24 Severability 24 LAND COURT SYSTEM REGULAR SYSTEM AFTER RECORDATION, RETURN BY MAIL (X) PICK UP ( ) To: BENJAMIN A. KUDO Dwyer Imanaka Schraff Kudo Meyer & Fujimoto 900 Fort Street Mall Suite 1800 Honolulu, HI 96813 TMK Nos: (3) 7-9-12: 03 (3) 7-9-12: 04 (3) 7-9-12: 11 (3) 8-1-04: 03 (portion) DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT("AGREEMENT"), made this .20411 day of A ID -: k 1998, by and between 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, Hawaii, acting through its mayor("COUNTY"), and 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740 ("OCEANSIDE"). RECITALS: A. These Recitals refer to and utilize certain capitalized terms which are defined in Paragraph (2), herein. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Hawaii State Legislature, under Development Agreement Statute section 46-123, granted authorization to the COUNTY to enact an ordinance authorizing the executive branch of the B. The Hawaii State Legislature, under Development Agreement Statute section 46-123, granted authorization to the COUNTY to enact an ordinance authorizing the executive branch of the COUNTY to enter into a development agreement with any person having a legal or equitable interest in real property, for the development of such property; C. The County Council enacted Ordinance No. 93-37 pursuant to Development Agreement Statute section 46-123, which ordinance was passed into law on April 27, 1993. D. Pursuant to the Development Agreement Statute and the Development Agreement Code, the COUNTY adopted rules governing Development Agreements on May 16, 1995. E. The Development Agreement Code and the Development Agreement rules establish the procedures and requirements for the consideration of development agreements upon application by or on behalf of persons having a legal or equitable interest in property. F. OCEANSIDE is the owner in fee simple of a portion of the Property,and Lessee of the remainder of the Property. A map describing that portion of the Property owned by OCEANSIDE in fee simple and that portion that is leased is attached hereto and identified as Exhibit "A". G. OCEANSIDE or its related entity,affiliate or subsidiary plans to develop the Project on the Property. H. The Project will require a major investment by OCEANSIDE, for example, in public facilities and on- and off-site improvements, to make the Project feasible. 1. The Project was reviewed and planned according to the Land Use Regulations. J. OCEANSIDE has applied for and the COUNTY has granted a number of Approvals for the Project. K. As part of OCEANSIDE's applications for Approvals from the COUNTY: 1. The COUNTY has examined the Project's impacts on vehicular traffic conditions,and has determined that construction of the Bypass Highway will not only offset traffic impacts caused by the Project, it will also provide a public purpose by improving existing traffic conditions in the region. 2. The COUNTY has determined that the construction and development of a Coastline Park will be an asset to the COUNTY and the public by providing coastal recreational opportunities, preserving open space and archaeological sites within the Project, as well as meeting the Project's park requirements pursuant to Ordinance No. 96-7, Ordinance No. 96-8 and Special Management Area("SMA") Permit No. 345. L. The COUNTY has concluded that development of the Project will provide many public benefits to the COUNTY through the zoning, the SMA conditions of approval,and the imposition of on- 2 financing and/or installation and construction of infrastructure and the creation of job opportunities in and through the construction, development and use of the Project. OCEANSIDE shall not be obligated to adhere to and perform the terms and conditions of this Development Agreement("Agreement") until it has commenced construction of the Project and provided that any zoning approvals and permits that OCEANSIDE has received have not been challenged and overturned by or that such challenges are not pending resolution before a court of law or a comparable federal, state or county administrative body. For purposes of this paragraph, "commenced construction" shall mean that OCEANSIDE has been awarded final subdivision approval and has received all necessary construction permits for the Project. M. Pursuant to Sec. 46-12I, HRS, Hawaii County Code Chapter 30, and Hawaii County's Rule 1, relating to Development Agreements, the COUNTY and OCEANSIDE have entered into this Agreement. This Agreement will: (i)provide for the parameters within which the obligations of OCEANSIDE for public and other improvements will be met; (ii)provide assurances to OCEANSIDE that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use Regulations, including but not limited to changes in zoning classifications or revocation of OCEANSIDE's Approvals, except when, with the agreement of OCEANSIDE, it becomes necessary to preserve the public health, safety and welfare; and (iii)provide appropriate assurances to OCEANSIDE that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of this Agreement, subject to OCEANSIDE's adherence to and performance of all material terms and conditions of this Agreement. N. Use of this Agreement will reduce or eliminate the uncertainty in the Project planning and development approval process, which in turn,would encourage the efficient utilization of resources and minimize the economic cost to the public; allow for the orderly planning of public facilities and services; and otherwise achieve the purposes and objectives for which the Development Agreement Statute and the Development Agreement Code were enacted. This Agreement clarifies the Land Use Regulations and Approvals,which in turn provide for the overall design,construction and development of the Project and all on-site and off-site improvements and appurtenances associated therewith, in the manner specified in this Agreement, including, without limitation,the design, construction and development of projects to provide benefits to the region and the COUNTY such as the Bypass Highway and the Coastline Park as set forth herein. O. OCEANSIDE submitted an Application to the Office of the Mayor on A 1 LA`--I- r7. , 1998 pursuant to Development Agreement Code section 5. 3 P. On PIA arc.1, 16 ��' a�d 3 ooh , 1998, pursuant to Development Agreement Code section 5(a)and Development Agreement Statute section 46-128,the County Council held a Public Hearing on the draft of this Agreement. Q. On A r-, I I s.4- , 1998, pursuant to Development Agreement Code sections 5(d)and 5(e)and Development Agreement Statute section 46-129, after review and comment by appropriate governmental agencies of the draft of this Agreement,and consideration of all evidence presented and heard at the Public Hearing pursuant to the Development Agreement Code, the County Council found and determined that this Agreement complies and is in accordance with the County General Plan, as amended,and any applicable community development plans adopted by the County Council as of the date of the Enacting Resolution. In connection with said findings, the County Council passed the Enacting Resolution approving this Agreement for execution by the Mayor. Now,THEREFORE, pursuant to the authority contained in the Development Agreement Statute, the Development Agreement Code, and the Development Agreement Rules, and in consideration of the mutual covenants and agreements set forth herein,the COUNTY and OCEANSIDE mutually agree as follows: 1. RECITALS. The recitals hereinabove are incorporated herein by this reference and made a part of this Agreement as though set forth in full herein. 2. DEFINITIONS. Whenever used in this Agreement,the terms defined below shall have the following meaning: a. AGREEMENT. "Agreement" shall mean this Development Agreement entered into by the COUNTY and OCEANSIDE, approved by the County Council through the Enacting Resolution, and executed by the Mayor on behalf of COUNTY. b. APPLICATION. "Application" shall mean the application for this Agreement submitted by OCEANSIDE to the Planning Department. c. APPRAISER. "Appraiser" shall mean any unbiased appraiser, licensed and certified in the State of Hawaii and appointed as provided herein. d. APPROVALS. "Approvals" shall mean any and all permits or approvals which have been or will be received by OCEANSIDE for the Project from the COUNTY,the State, or any other governmental or quasi-governmental agency pursuant to any Land Use Regulations as of the date of this Agreement, including, without limitation: (1) Change of Zone Approval (REZ 93-5),accepted by the County Council on June 15, 1994 as Bill 182, Draft 6 and signed into law by the Mayor on June 28, 1994 as Ordinance No. 94-73, attached hereto as Exhibit "S"; and amended and superseded by Bill 181, Draft 6 accepted by 4 the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B" and incorporated herein by this reference. (2) Change of Zone Approval (REZ 95-12) accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C" and incorporated herein by this reference. (3) Special Management Area Use Permit Approval(SMA 93-1) granted by the Planning Commission on November 5, 1993 (SMA Permit No. 345) attached hereto as Exhibit "D" and incorporated herein by this reference. (4) Use Permit Approval (USE 93-2)granted by the Planning Commission on November 5, 1993 (Use Permit No. 115)attached hereto as Exhibit "E" and incorporated herein by this reference. (5) Special Management Area Use Permit Approval(SMA 95-3)granted by the Planning Commission on September 28, 1995 (SMA Permit No. 356) attached hereto as Exhibit "F" and incorporated herein by this reference. (6) Change of Zone Approval passed by the County Council on March 7, 1997 and signed into law by the Mayor on March 13, 1997 as Ordinance 97-36 attached hereto as Exhibit "G" incorporated herein by this reference. e. BOND. "Bond" shall mean a performance bond, cash bond, surety company bond, personal surety bond,or other financial assurance obtained or caused to be obtained by OCEANSIDE. Such bond shall be good for no more than five(5)years from the date the bond is issued, unless otherwise extended by the mutual agreement of the Director of the COUNTY Department of Public Works and OCEANSIDE in writing. f. BYPASS HIGHWAY. "Bypass Highway" shall mean that bypass highway between the approximate vicinity of Keauhou and Captain Cook,consisting of two(2) lanes with a sufficient Right-of-Way for a total of four(4) lanes required in part to satisfy the conditions of Approvals and to alleviate traffic congestion on the Mamalahoa Highway that has existed for many years. This Bypass Highway is also referred to as the "Mamalahoa Highway Bypass" under Ordinance Nos. 96-7, 96-8 and 97-36 attached hereto as Exhibits "C", "B" and "G", respectively. Further detail and description of the Bypass Highway is attached hereto as Exhibit"H" and incorporated herein by this reference. g. COASTLINE PARK. "Coastline Park" shall mean that coastline park required by the COUNTY to be established under Conditions 8 and 10 of SMA Permit No. 345,Condition li of Ordinance No. 96-8, and Condition K of Ordinance No. 96-7,and subject to the terms and conditions as set forth in this Agreement. 5 h. COUNTY. "COUNTY" shall mean the County of Hawaii, municipal corporation,and where applicable, the appropriate departments and agencies but does not include the County Council. i. COUNTY COUNCIL. "County Council"shall mean the County of Hawaii County Council. j. DENSITY."Density"shall have the meaning given such term in the Zoning Code. k. DEVELOPER. "Developer" shall mean a person,corporation, organization, partnership, association,or other legal entity constructing, erecting, enlarging,altering, or engaging in any development activity. I. DEVELOPMENT AGREEMENT CODE. "Development Agreement Code" shall mean Ordinance No. 93-37, which ordinance was passed into law on April 27, 1993 (now HCC chapter 30). m. DEVELOPMENT AGREEMENT RULES. "Development Agreement Rules" shall mean County of Hawaii Office of the Mayor Rule 1 regarding Development Agreements, approved by the Mayor on May 16, 1995 and filed in the Office of the County Clerk on May 18, 1995. n. DEVELOPMENT AGREEMENT STATUTE. "Development Agreement Statute" shall mean HRS sections 46-121 through 46-132. o. DIRECTOR. "Director" shall mean the Director of the Planning Department of the County of Hawaii. p. ENACTING RESOLUTION. "Enacting Resolution" shall mean Resolution No. 2414/ 98 (DY-a-(4 3approving this Agreement, adopted by the County Council on A p.-; I I s+ , 1998, a copy of which is attached hereto as Exhibit "I" and incorporated herein by this reference. q. EXACTION. "Exaction" shall mean any and all exactions; fair share contributions, impact or in-lieu fees or payments; dedication or reservation requirements; obligations for on-or off-site improvements or construction requirements for public facilities or infrastructure; or services called for in connection with the development or construction of the Project pursuant to the Land Use Regulations and Approvals. r. GOVERNMENTAL ENTITY OR AGENCY. "Governmental entity or agency" shall mean and include, without limitation, the legislative, administrative and executive branches of the local, statc and federal governments. s. HCC. "HCC" shall mean Hawaii County Code, as amended. 6 t. HRS. "HRS" shall mean Hawaii Revised Statutes,as amended. u. IMPACT FEE ORDINANCE. "Impact Fee Ordinance" shall mean a Unified Impact Fees Ordinance or similar ordinance setting forth criteria for the imposition of the exactions or the assessment of impact fees. v. LAND USE REGULATIONS. "Land Use Regulations" shall mean any and all State and County laws, ordinances, resolutions, rules and policies governing the permitted uses of the Property, including, without limitation, uses, density, design, height,size and building specifications of proposed buildings; construction standards and specifications for roads and utilities, roadway improvements; affordable housing; community benefit assessments; water utilization and all exaction requirements applicable to the development of the Property; made applicable and in force as of the date of this Agreement. w. LAND OWNER. "Land Owner" shall mean the equitable or legal holder of interest in real property or the lessee holding under a recorded lease. x. LAWS. "Laws" shall mean the laws of the State, the Constitution of the United States, the Constitution of the State,any federal, state or local codes, statutes,or executive mandates in any court decision, ordinances,or charter provisions or administrative rules and regulations of any applicable governmental entity or agency. y. LENDER. "Lender" shall mean any financial institution or entity providing funds for the Project, including but not limited to banks, savings and loans, investors and partners. z. MAYOR. "Mayor" shall mean the Mayor of the COUNTY. aa. OFFICE OF THE MAYOR. "Office of the Mayor" shall mean the Mayor of the COUNTY and the managing director. ab. OCEANSIDE. "OCEANSIDE" shall mean 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740, its successors and assigns. ac. PERSON. "Person" shall mean any individual, group, partnership, firm, association, corporation, trust,governmental official, administrative body,tribunal or any form of business or legal entity. ad. PLANNING COMMISSION. "Planning Commission" shall mean the Planning Commission of the COUNTY. ac. PLANNING DEPARTMENT. "Planning Department" shall mean the Planning Department of the COUNTY. 7 af. PROJECT. "Project" shall mean that agricultural lot community and its various components,also including but not limited to the lodge,golf course,golf clubhouse, and the coastline park, and more fully described and shown in Exhibit "J" attached hereto and incorporated herein by reference. Project shall not include the Bypass Highway. ag. PROPERTY. "Property" shall mean any and all conservation lands and areas which are the lands under the Change of Zone Approvals: (1) accepted by the County Council on June 15, 1994 as Bill 182, Draft 6, signed into law by the Mayor on June 28, 1994 as Ordinance No.94-73 attached hereto as Exhibit "S", and amended and superseded by Bill 181, Draft 6, accepted by the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B"; and(2)accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C"; that is, those lands which include the 711.2 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key No. 7-9-12: 03, and the 580.63 acres of land (more or less) located on and in the Island and County of Hawaii and identified as Tax Map Key No. 8-1-04: 03 (portion), both of which OCEANSIDE owns in fee simple; and 260.8 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key Nos. 7-9-12: 04 and 7-9-12: 11, and more fully described and shown in Exhibit "K" attached hereto and incorporated herein by this reference, which OCEANSIDE leases from Ackerman Ranch under the development lease dated July 28, 1989, a short form of which is attached hereto as Exhibit "L", and incorporated herein by this reference. ah. PUBLIC ACCESS PLAN. "Public Access Plan", also known as the "Public Shoreline Access Plan", shall mean that plan,developed in consultation with community groups and submitted to and to be approved by the Director, as required by the COUNTY pursuant to Condition 8 of SMA Permit No. 345, Condition H of Ordinance No.96-8, and Condition K of Ordinance No.96-7, and subject to the terms and conditions as set forth in this Agreement. ai. PUBLIC HEARING. "Public Hearing" shall mean the public hearing held for purposes of receiving public comments regarding the draft of this Agreement as required pursuant to Rule I-6(d)of the Development Agreement Rules. aj. RIGHT-OF-WAY. "Right-of-Way" shall mean the route required for construction of the Bypass Highway. ak. SEGMENT(s). "Segment(s)" shall mean that portion of Right(s)-of-Way falling within a parcel or parcels of land owned by Seller(s). 8 al. SMALL-LOT SUBDIVISION. "Small-lot Subdivision"shall mean the subdivision by OCEANSIDE of the Property into lots less than twenty(20) acres in size. am. STATE. "State" shall mean the State of Hawaii. an. TERM. "Term" shall mean the term of this Agreement as determined in Paragraph (3), herein. ao. UNIT OF CREDIT. "Unit of Credit" shall mean the present value of past or future payments or contributions, including, but not limited to the dedication of land or construction of roadway improvements toward the cost of existing or future public facility capital improvements being issued in lieu of payment for Segment(s)of the Right-of-Way. One(1)Unit of Credit shall be issued for each$3,101.68 value of land contributed toward the Bypass Highway. The value of the unit of credit shall be equivalent to the amount of roadway fair share contribution or road impact fee required to be paid for each dwelling or lodge unit at the time of redemption. The recipient of a Unit of Credit may redeem the Unit of Credit toward any roadway fair share contribution or toward any roadway impact fee should the COUNTY adopt such an impact fee ordinance. ap. ZONING CODE. "Zoning Code" shall mean HCC chapter 25 as it exists as of the date of this Agreement. aq. OTHER DEFINITIONS. Unless otherwise provided herein, other words and terms shall have the meaning set forth in the Zoning Code. To the extent that the definitions in the Zoning Code conflict with the definitions contained in this Agreement, the definitions in this Agreement shall be controlling. 3. EFFECTIVE DATE; TERM. The Term of this Agreement shall commence on the effective A gri l I s-4- , 2.02.2' date of the Enacting Resolution and shall terminate on JMONTH,DAY,YEARL [30 years from date of Enacting Resolution] unless sooner terminated: a. By agreement of the parties to this Agreement that the parties have satisfied all of the terms and conditions of this Agreement, as further evidenced by a resolution of the County Council pursuant to Paragraph(50), herein; provided that, OCEANSIDE has been reimbursed for the construction costs it incurred for the Bypass Highway pursuant to Paragraph(15); b. As a result of a material breach of OCEANSIDE pursuant to Paragraph(25), herein; or c. By cancellation of this Agreement pursuant to Paragraph (27), herein; or unless subsequently extended by mutual agreement of the COUNTY and OCEANSIDE; or d. By reimbursement of construction costs for the Bypass Highway paid to OCEANSIDE pursuant to Paragraph(15), herein; provided,however,that the parties to this Agreement have 9 agreed that both parties have satisfied all of the terms and conditions of this Agreement as further evidenced by a resolution of the County Council pursuant to Paragraph (48), herein. 4. AFFECTED LAND. The Property that is the land subject to this Agreement and the Right-of-Way for the Bypass Highway. 5. PERMITTED USES OF THE PROPERTY. Permitted uses of the Property shall be all uses permitted under the Land Use Regulations and Approvals, including, without limitation, the permitted uses in Chapter 205, HRS, the Zoning Code section 25-5-72, and all supplemental uses allowed under Zoning Code sections 25-4-1 through 25-4-14. 6. DENSITY OF USE. With the exception of that use described under Zoning Code section 25-4-9,one(I)dwelling unit per building site is permitted on the Property pursuant to Zoning Code section 25-5-72(a)(9). 7. MAXIMUM HEIGHT OF PROPOSED BUILDINGS. The height of the buildings proposed for the Property shall be limited to the maximum height restrictions contained in the Zoning Code. 8. MAXIMUM SIZE OF PROPOSED BUILDINGS. The size of buildings proposed for the Property shall be limited to the maximum size restrictions, if any, contained in the Zoning Code. 9. BENEFITS. The COUNTY acknowledges that OCEANSIDE is providing the benefits to the County and/or the Community. 10. ACQUISITION AND DEDICATION OF LAND FOR BYPASS HIGHWAY. a. The Bypass Highway has been determined by the COUNTY as providing a regional public purpose and will therefore benefit the COUNTY. OCEANSIDE shall be deemed to have satisfied the requirements of Condition M(2)of Ordinance 96-7 and Condition L(2)of Ordinance 96-8, if and when it has:(i) acquired all Segments of Right-of-way,or(ii)acquired one or more Segment(s)of Right-of-Way and the remaining Segments have been requested by OCEANSIDE for the COUNTY to condemn. b. OCEANSIDE shall attempt to negotiate a purchase price with any and all Persons. Should OCEANSIDE and any Person be unable to negotiate a mutually agreeable purchase price, then OCEANSIDE shall provide to the Person a list containing no less than three(3) and no more than five (5) qualified Appraisers to appraise the value of the Person's Segment(s)of the Right-of-Way. From the list of Appraisers, the Person shall select one(1) Appraiser to assess the value of the Segment(s). OCEANSIDE may offer to purchase the fee simple interest in the Segment(s) from the Person for a price at or near the appraisal value as determined by the Appraiser. Should OCEANSIDE and the Person be unable to select an Appraiser or if the Person and OCEANSIDE cannot decide on a price recommended by mutually selected Appraiser,then upon written request to the Mayor,the COUNTY shall be required to use its condemnation powers to acquire the Segment(s)from the Person pursuant to Paragraph(I I). 10 c. Notwithstanding Paragraph(10.b), if the Person fails to participate in negotiations with OCEANSIDE for the purchase of Segment(s) of the Right-of-Way from the Person despite OCEANSIDE's good faith attempts to negotiate, then OCEANSIDE may, in its sole discretion, submit a letter to the Mayor to have the COUNTY utilize its condemnation powers. Upon receipt of the written request, the COUNTY shall be required to use its condemnation powers to acquire the Segment(s)from the Person pursuant to Paragraph (11). I I. CONDEMNATION OF LAND FOR BYPASS HIGHWAY. Should the Person fail to participate in negotiations with OCEANSIDE over the purchase of Segment(s)of the Right-of-Way from the Person, or should OCEANSIDE and the Person be unable to agree, during their negotiations,to the purchase of the Segment(s) because of their failure to agree upon an Appraiser or on the purchase price of the Segment(s) or on the terms of the purchase, the condemnation powers of the COUNTY shall be required for the acquisition of the Segment(s). a. Upon OCEANSIDE's tender of a requirement of condemnation by letter to the COUNTY, the COUNTY shall within thirty(30) days begin to immediately and expeditiously exercise the same pursuant to HRS Chapter 101. OCEANSIDE's tender of such requirement of condemnation to the COUNTY shall constitute a"formal initiation of condemnation action" as the term is used in Condition L(2) of Ordinance 96-8 and Condition M(2) of Ordinance 96-7 and shall relieve OCEANSIDE of all further liability or obligation to purchase Segment(s)of the Right-of-Way directly from such Person. b. The COUNTY shall submit to OCEANSIDE a written request for payment of any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY'S exercise of its condemnation powers when OCEANSIDE has determined in its sole and absolute discretion that there is a need for possession or in the event that a Court orders payment for the acquired land. Within forty-five (45) days of written notice from the COUNTY, OCEANSIDE shall reimburse the COUNTY for any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY's exercise of its condemnation powers. OCEANSIDE shall not be responsible to reimburse the COUNTY for any and all costs relating to the salary of County personnel and administration and overhead, including but not limited to independent contractors and legal counsel, and any interest payments incurred by COUNTY as a result of COUNTY's failure to pay compensation to the Person within thirty (30) days of final judgment in the condemnation action. The written notice described herein from the COUNTY to OCEANSIDE shall contain a detailed verifiable accounting of any and all such costs and expenses. c. Should a dispute arise over the amount of monies owed by OCEANSIDE to the COUNTY,then both parties agree to first pursue settlement of the dispute by arbitration pursuant to HRS 11 Chapter 658. OCEANSIDE shall submit to the COUNTY a list of arbitrators to hear the dispute. The COUNTY has ten(10)calendar days to select one(1)arbitrator from OCEANSIDE's list. If the COUNTY fails to select an arbitrator, then OCEANSIDE may select an arbitrator to hear the dispute. I2. DONATION OF RIGHT-OF-WAY. Notwithstanding anything herein to the contrary, should a Person donate the Segment(s) of the Right-of-Way to OCEANSIDE for no consideration, the COUNTY shall: a. Grant the Person who contributes their land towards the Bypass Highway units of credit which may be used by the Person to off-set future roadway fair share assessment or impact fee requirements. Each unit of credit shall off-set the roadway fair share assessment or impact fee requirement for one(1)dwelling or lodge unit. The amount of credits shall be the total value of the Segment(s)for Right- of-Way divided by the per lot fair share assessment or impact fee requirement to mitigate road impacts for each$3,101.68 value of land contributed. The total value of the Segment(s)for Right-of-Way shall be based on the appraised value of the Segment(s) at the time the Person dedicates and/or donates the Segment(s)to OCEANSIDE as determined by the Appraiser selected using the procedures outlined in subparagraph(10.b). b. The COUNTY shall grant a density credit to Persons whose lands are donated for the Segment(s) of the Right-of-Way. The density credit is equal to the area of land that is utilized. The density credit shall be added to the Person's remaining property at the time the Person obtains land use approvals from the COUNTY. The density credit allows the Person to develop the total number of units that would be permitted under the applicable zoning at the time the Person obtains land use approvals as if the Person had not contributed land for the Right-of-Way c. The COUNTY shall impose no additional fair share assessments or any impact fee ordinance requirements relating to Regional highway Impacts on Persons whose lands have been donated to the County or sold for the Right-of-Way and who develop their lands in conformance with existing zoning. 13. CONSTRUCTION OF THE BYPASS HIGHWAY. The Bypass Highway shall consist of two(2) lanes with sufficient Right-of-Way for a total of four(4) lanes. The Bypass Highway shall be constructed to standards set forth by the Department of Public Works with such modifications as may be deemed necessary by the Department of Public Works;provided,however,that the expansion of the Bypass Highway from two(2)to four(4) lanes shall not be the responsibility of OCEANSIDE. a. OCEANSIDE shall obtain final approval from the County Department of Public Works for any and all necessary construction plans for the Bypass Highway. OCEANSIDE shall construct the Bypass Highway to the standards set forth in Exhibit "M" by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the County Department of Public Works and by OCEANSIDE. As required by the chief engineer of the County Department of Public Works, 12 OCEANSIDE shall provide a landscape buffer along highway sections where the highway is within five hundred (500) feet of dwellings existing as of January 1, 1998. b. Prior to the issuance of the first final Small-lot Subdivision approval for any portion of the Property, OCEANSIDE shall: (I) Post a bond in favor of the COUNTY to assure that the infrastructure improvements for the Bypass Highway and for the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection will be constructed; (2) Determine the final Right-of-Way for the alignment of the entire Bypass Highway, including the intersection areas. OCEANSIDE shall provide the Director with a metes and bounds description of each Segment of the Right-of-Way involved and evidence of ownership or control as deemed necessary by the Director. In lieu of OCEANSIDE obtaining or acquiring ownership or control of any segment of the Bypass Highway, the requirement shall be deemed fulfilled upon the COUNTY's formal initiation of condemnation action(s) pursuant to Paragraph (11) for such Segments. The COUNTY shall issue a letter attached as Exhibit "N"that acknowledges OCEANSIDE's satisfaction of the requirement to obtain or acquire ownership or control of the Right-of-Way for the entire length of the Bypass Highway, including those portions that the County has initiated condemnation proceedings and/or has ownership or control over, which removes the requirement from OCEANSIDE. (3) Provide a bond for relevant phases of the extension of Haleki'i Street, through the subject property as generally reflected in Exhibit"O", which phasing of improvements shall be approved by the COUNTY Department of Public Works. c. Prior to occupancy of any dwelling unit within the Property or prior to the issuance of an occupancy permit for the lodge, whichever occurs first,OCEANSIDE shall: (1) Complete construction of the roadway section from Keauhou to the makai extension of Haleki'i Street; and (2) Install a barricade or breakaway gate meeting with the requirements of the COUNTY Department of Public Works if,before the completion and opening of the entire Bypass Highway, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki'i Street; d. In any event from the time construction commences, the entire Bypass Highway shall be completed within five(5)years provided that those certain circumstances as articulated in Paragraph (39)do not exist. 14. DEDICATION OF BYPASS HIGHWAY. The Bypass Highway shall be dedicated to the COUNTY in phases, if any,upon completion and the COUNTY shall accept said dedication within sixty(60) calendar days; provided that the Bypass Highway,as constructed,complies with plans and specifications for 13 said highway as approved by the County. Following dedication of the Bypass Highway to the COUNTY, the COUNTY shall assume all responsibility and costs for operation,maintenance, repair or reconstruction of the Bypass Highway. 15. REIMBURSEMENT OF CONSTRUCTION COSTS FOR THE BYPASS HIGHWAY. a. Responsibility of Developer. OCEANSIDE shall be responsible for all costs associated with the design, land acquisition, construction of the Bypass Highway, including, without limitation, the costs associated with obtaining any necessary Approvals associated with the same ("Total Cost"); provided that, nothing herein shall be construed as preventing OCEANSIDE from seeking reimbursement for such costs and the total amount of reimbursement received by OCEANSIDE shall not exceed the difference between the Total Cost of the Bypass Highway and the "Project Impact Cost", as described in further detail in Paragraph(15.a.1). (1) Based on a development constituting seven hundred thirty(730) lots and eighty(80) lodge units("Project Unit Count"),the Project constitutes approximately thirty-eight(38) percent of the total capacity of the Bypass Highway based upon a Level of Service "D" ("Project Impact"). Should OCEANSIDE develop less or more than the Project Unit Count,then the percentage of traffic attributable to the Project shall be adjusted accordingly. The Total Cost of the Bypass Highway multiplied by the Project Impact shall determine the Project Impact Cost. For example, if the Total Cost of the Bypass Highway is $1.0 million and the Project Impact is thirty-eight(38%) percent, the Project Impact Cost is $380,000.00. In such a case,OCEANSIDE shall then be eligible to receive no more than$620,000 of reimbursement($1.0 million minus $380,000). (2) The remaining balance of the Total Cost of the Bypass Highway after deducting OCEANSIDE's and Kealakekua Development Corporation's share shall be reimbursed to OCEANSIDE with funds from income sources identified in Paragraph (15.c.1) for costs incurred by OCEANSIDE in the land acquisition, design, planning, construction, development and approval of the Bypass Highway. b. Adoption of a Impact Fee Ordinance. Should the County Council adopt a Impact Fee Ordinance,OCEANSIDE shall receive one(1)unit of credit for every$3,101.68 it has spent toward the construction of the Bypass Highway and the Haleki'i Street intersection improvements. The credits may be applied toward the requirements of an Impact Fee Ordinance. c. Funds for Reimbursement. During the course of this Agreement, if the COUNTY approves new rezonings in the vicinity of Mamalahoa Highway,then the COUNTY shall assess those new developments a "Fair Share" contribution in accordance with Council policy, or similar fee, to address the regional impacts of their development on road facilities. In the event that the COUNTY collects funds for 14 such "Fair Share" contributions, or similar fees, as may be allowed by the rezoning ordinances, and as identified in Paragraphs(15.c.I. and 15.c.2. herein) from developers and landowners whom the County has determined as benefitting from the Bypass Highway,the COUNTY shall reimburse OCEANSIDE from such funds as they are collected. (1) Funds to reimburse OCEANSIDE shall be from, but not limited to, the following sources: (a) "Fair Share" contributions paid to the COUNTY to address potential regional impacts of their development on road facilities; (b) Upon the adoption of a Impact Fee Ordinance that assesses or imposes an impact fee either for the COUNTY as a whole or for the region extending from Keauhou to Milolii, that portion of the impact fee necessary to address potential regional impacts on road facilities; (c) Any other monetary contribution paid to the COUNTY from developers or land owners, whom the COUNTY determines as benefiting from the Bypass Highway, to address potential regional impacts of such developer's or land owner's development on road facilities; (2) In addition to the reimbursement funds identified in Paragraph (15.c.1), OCEANSIDE shall be entitled to "Fair Share" contributions in the amount of$3.6 million, as may be adjusted from time to time,paid to the COUNTY by Kealakekua Development Corporation or its successors to address potential regional impacts of Kealakekua Development Corporation's project, less $1.3 million representing contributions toward Mamalahoa Highway Improvements and improvements to Greenwell Park as required by Conditions K and N(2), respectively, of Ordinance 95-70,as may be amended. (3) Should the COUNTY Council adopt an Impact Fee Ordinance, developers and land owners whom the COUNTY determined as benefitting from the Bypass Highway shall receive Highway Credits to be applied toward the requirements of a Impact Fee Ordinance. (4) As long as the COUNTY shall assess those new rezonings in the vicinity of Mamalahoa Highway a fair share contribution in accordance with Council policy,or if adopted,an impact fee,to address the regional impacts of their developments on road facilities, OCEANSIDE acknowledges and understands that should any funds or options identified in the preceding sections 15.b and c. fail to materialize or fail to meet the remainder of the total cost of the Bypass Highway,the COUNTY shall not be held responsible for any reimbursements. d. "Benefit" to Other Developments. The COUNTY finds that certain geographic portions of Mamalahoa Highway are currently congested and that any new development is severely restricted because of traffic considerations. Developments within the geographic region extending from Keauhou to the north and to Milolii to the south will benefit in varying degrees from the construction of the Bypass 15 Highway. This benefit is based on the congestion relief provided by the Bypass Highway to Mamalahoa Highway/Kuakini Highway as well as by providing direct access to the land along the Bypass Highway corridor. Accordingly, the amount of the"benefit"of the bypass Highway will vary by geographic region. (1) Amount of Reimbursement to OCEANSIDE. The amount of the COUNTY's reimbursement to OCEANSIDE shall be based on a percentage of those income sources identified in subparagraph(15.c)which are collected or assessed by the COUNTY from other developers and land owners whom the COUNTY has determined as benefitting from the Bypass Highway. The percentage paid shall be in accordance with the geographic areas as described below, and as more particularly shown on Exhibit"P". Area Description Percentage 1. Keauhou 25%* 2. Honalo-Captain Cook- Existing Mamalahoa Hwy Corridor 80% 3. Honalo-Captain Cook- Mauka Area I00% 4. Honalo-Captain Cook- Makai Area 100% 5. Captain Cook to Milolii 65% *In recognition of the existing Keauhou road and traffic improvements, any "Fair Share" contribution, impact fee or similar fee assessed on new rezonings by the County Council in the Keauhou Area may be satisfied in the form of cash, land and/or facilities, or any combination thereof acceptable to the director. (2) Collection of Funds. Any Reimbursement Funds received by COUNTY shall be held in trust for OCEANSIDE and promptly remitted to OCEANSIDE by the COUNTY no later than ninety(90)days following the COUNTY's receipt of such remittance. e. Private Agreements. The provisions of this Paragraph shall not preclude OCEANSIDE from entering into private agreements with the State and/or such other developers or landowners to allocate the payment of Reimbursement Funds related to the Bypass Highway directly to OCEANSIDE. OCEANSIDE shall submit receipts of such payments to the COUNTY. f. Reimbursement Agreement. The provisions for reimbursement contained in this Agreement shall constitute an agreement for reimbursement between COUNTY and OCEANSIDE, which agreement shall satisfy the mandates of Condition L of Ordinance 96-8,and Condition M of Ordinance 96-7. 16. ROADWAY STUB-OUTS. OCEANSIDE shall provide roadway stub-outs,generally shown in Exhibit "Q", to provide future connections between the Property and its adjacent north and south boundaries. Such roadway stub-outs shall be constructed in phases and in conjunction with the completion of subdivision improvements on adjacent Property. 16 17. PUBLIC ACCESS PLAN. OCEANSIDE shall develop, in consultation with community groups, a final comprehensive Public Access Plan. The Public Access Plan shall be submitted to and approved by the Director prior to final subdivision approval of the first small-lot subdivision. a. The final comprehensive Public Access Plan shall be developed in consultation with the Director and the Hawaii State Department of Land and Natural Resources ("DLNR")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. b. In accordance with Ordinance 96-7 and 96-8, the Public Access Plan shall also integrate at the trail heads, shoreline access parks and the historical park, any public accessway(s) to the interpretive trail system(s)and to the historical and archaeological sites. Such a Public Access Plan shall be approved by the Director, in consultation with the DLNR. In developing the Public Access Plan, OCEANSIDE should attempt to protect both land and ocean resources and natural conditions, as reasonably practicable. 18. COASTLINE PARK. OCEANSIDE shall develop the portion of its lands in the Property located in the Conservation District for use as a Coastline Park for the benefit of the public pursuant to the Approvals. a. Construction and Development of the Coastline Park. OCEANSIDE shall be responsible for any and all costs associated with the design, operation and maintenance, construction and development of the Coastline Park, including, without limitation, the costs associated with obtaining any necessary Approvals associated with the same. Notwithstanding the foregoing, OCEANSIDE may transfer it obligations, in whole or in part, under this paragraph to the Project's "Homeowner Association"or other similar entity formed for the purpose of serving as the governing body for all the members and owners of the Project for the protection, improvement,alteration,maintenance, repair,replacement,administration and operation of the common areas, for the assessment of expenses, for the payment of losses, and for other matters as may be provided for in the Project's Declaration, the Homeowner Association's Articles of Incorporation,the Homeowner Association's By-laws,or the Project's Design Guidelines, The Declaration shall contain language providing for the perpetuity of the Coastline Park and its availability to the public for use in accordance with certain rules and guidelines that will be established in the public access plan as required under SMA Permit No. 345 to be submitted by OCEANSIDE to the Director for approval. Additionally, if requested by OCEANSIDE or the Homeowner Association,and if approved by the COUNTY, which approval shall not be unreasonably withheld, said Developer or the Homeowner 17 Association may assign its responsibilities, in whole or in part, under this paragraph to a foundation or other entity to assume the duties and obligations stated herein. b. The construction and development of the Coastline Park shall be completed in phases roughly proportional to the phases of the Project's development as may be approved by the Director pursuant to the Approvals and shall be subject to the obtaining of all necessary discretionary permits (e.g. Conservation District Use Approval, Special Management Area Use Permit, etc.). (1) An area comprising twenty five percent(25%)of the total Coastline Park as shown on Exhibit "R"attached hereto and incorporated herein by this reference, shall be developed and improved by OCEANSIDE in phases within five (5) years from the date final Small-lot Subdivision Approval is obtained on any portion of the Property. (2) The first phase of the Coastline Park shall be opened to the public within thirty(30)days following the opening of the golf course. (3) In accordance with Ordinance 96-7 and 96-8, upon opening the first phase of the park area, OCEANSIDE shall provide: (a) a minimum of twenty-five(25)public parking stalls,with separate parking stalls for residents and their guests, and separate parking stalls for the Coastline Park's employees. As may be imposed in permits necessary to complete the Coastline Park's improvements,the parking stalls shall, at OCEANSIDE's discretion,either be within the Coastline Park and/or within OCEANSIDE's adjacent lands. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; (b) signage and provisions for public access for night fishing and marine food gathering purposes subject to restrictions which limit said uses to non-commercial and recreation uses only; and (c) other restrictions which provide for the health and safety of the public. c. In accordance with SMA Permit No. 345, upon the approval of the final comprehensive public access plan, draft covenants which detail the rights,obligations and privileges of the public,the County of Hawaii and OCEANSIDE, its successors or assigns shall be submitted to the Director for approval. The approved covenants shall be recorded in the manner required pursuant to SMA Permit No. 345. d. Prior to receiving final approval of the first Small-lot Subdivision, OCEANSIDE shall convey to COUNTY a perpetual easement for public access over and recreational use of the Coastline Park area pursuant to such restrictions as may be established by OCEANSIDE with the approval of the 18 Director,to promote public health and safety and the general security of the Coastline Park for residents and guests of the Project, to protect the area's natural condition, and to minimize any liability to OCEANSIDE, pursuant to HRS Chapter 520. e. OCEANSIDE's fee simple interest in the land area of the Coastline Park shall be retained by OCEANSIDE, who shall own and manage the Coastline Park; provided that OCEANSIDE, in its sole discretion, may transfer management responsibilities for the Coastline Park to any homeowners' association or other entity which may be formed for the Project subject to the aforementioned covenants. I9. GUEST HOUSES. Nothing herein shall be construed as prohibiting the construction of"guest houses"within the Project as the term is defined in Zoning Code section 25-1-5(55),as allowed under Zoning Code section 25-4-9,and pursuant to Chapter 205-6, HRS. 20. GENERAL DEVELOPMENT OF THE PROJECT. OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park in accordance with the terms and conditions of this Agreement and the Approvals, and the parties shall have the right to enforce the provisions of this Agreement. The parties hereto acknowledge that this Agreement is intended to implement the intent of the parties and that OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park pursuant to the Land Use Regulations and Approvals, subject to its adherence to and performance of all terms and conditions of this Agreement. In the event that a question arises regarding OCEANSIDE's and the COUNTY's responsibilities or their intent, the parties shall look toward this Agreement to clarify such issues. 21. SUBSEQUENT CHANGES IN LAND USE REGULATIONS. Any subsequent change in any applicable law adopted by the COUNTY or any other governmental entity or agency party to this Agreement, which alters or amends the Land Use Regulations, including, without limitation, any moratoriums, shall be void as applied to the Property; provided that this Paragraph shall not prevent the COUNTY or any other governmental entity or agency party to this Agreement from requiring OCEANSIDE to comply with laws, ordinances, resolutions, rules and policies of general applicability and not specific to OCEANSIDE enacted subsequent to the date of this Agreement, if, under prior law, such laws, ordinances, resolutions, rules and policies could have been lawfully applied to the Property or any uses thereof as of the date of this Agreement if the COUNTY or any other governmental entity or agency party to this Agreement finds it necessary to impose the requirements because a failure to do so would place the residents of the Project or the immediate community in a condition perilous to the residents' health or safety, or both. 22. NECESSARY COUNTY APPROVALS. a. With regard to any applications to the COUNTY by OCEANSIDE for any and all appropriate COUNTY Approvals required for the construction or development of the Project, the Bypass 19 Highway and the Coastline Park, the COUNTY shall process such applications under the Land Use Regulations and issue to OCEANSIDE all such approvals; provided that such applications are consistent with and conform to the standards,terms and conditions of this Agreement and the Land Use Regulations; and provided further,that the COUNTY shall not impose on OCEANSIDE any further Exactions or requirements other than those already existing as of the date of the Enacting Resolution under the Approvals. b. The COUNTY shall accept and process expeditiously any application(s)submitted under this Paragraph or otherwise required under the terms of this Agreement within such time frames as specified within the Land Use Regulations; provided, however, that if the Land Use Regulations do not contain a specific time frame for processing such application(s),the application(s)shall be processed within a reasonable amount of time from the date of receipt of a complete application(s) by the COUNTY; and provided further that if, for any reason,the application(s)as submitted by OCEANSIDE is/are not complete, the COUNTY shall promptly request from OCEANSIDE any information or materials necessary to complete the application(s). 23. CONFORMANCE WITH THE COUNTY GENERAL PLAN AND COMMUNITY DEVELOPMENT PLANS. By virtue of the County Council's approval of the Enacting Resolution, the County Council finds that as of the date of this Agreement, this Agreement is consistent with the COUNTY's General Plan as amended,and any applicable community development plans adopted by the County Council and in effect as of the date of this Agreement; provided, however, that in the event of any inconsistency between the County General Plan and any applicable community development plan by ordinance, the County General Plan shall prevail. 24. ANNUAL REVIEW. On or before January 14th of each and every year following the execution of this Agreement,OCEANSIDE shall submit an annual report of its compliance with the terms and conditions of this Agreement to the Planning Department,or such agency as the COUNTY designates in writing to OCEANSIDE; provided further,that the Planning Department or such designated agency shall review such report for adequacy and accuracy and shall forward a copy of the annual report together with its findings and any other comments to the Mayor,County Council,OCEANSIDE and any other parties to this Agreement within sixty(60)days. 25. MATERIAL BREACH BY OCEANSIDE. a. Within thirty (30)days after the Planning Department or the Office of the Mayor determines on the basis of the periodic report that OCEANSIDE has committed a material breach of the terms or conditions of this Agreement,the Planning Department or the Office of the Mayor,as applicable, shall inform OCEANSIDE in writing of the same, setting forth with reasonable particularity the nature of 20 the breach and any and all evidence supporting the finding and determination; provided, however, that OCEANSIDE shall be given a reasonable time period in which to cure any such material breach. b. OCEANSIDE shall have one hundred eighty(180)days to cure the material breach. If OCEANSIDE fails to cure the material breach within that time,the COUNTY may terminate or modify the terms of this Agreement in accordance with HCC section 30-6; provided, however,that the Office of the Mayor shall have first given the OCEANSIDE the opportunity: (1) To rebut the finding and determination by the Office of the Mayor of the existence of the material breach;or (2) To consent to amend this Agreement according to such terms as the Office of the Mayor may elect to propose in order to cure the material breach; provided, however, that such amendments must be accepted and approved by the County Council pursuant to Paragraph(27), herein. c. Upon the mutual agreement of the parties to the Agreement, this Agreement may be terminated by County Council resolution if: (I) OCEANSIDE does not agree to such amendments proposed by the Office of the Mayor or as subsequently modified by the County Council pursuant to Paragraph (27), herein; or (2) The County Council reasonably rejects the amendments proposed by the Office of the Mayor and the County Council states its reasons, in writing, for rejecting the proposed amendments. d. Should the County Council terminate this Agreement, OCEANSIDE will have the right to appeal such a decision to a court of law, in which case the standard of review shall be whether the County Council acted reasonably in its termination of this Agreement. The termination of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement not been entered into. 26. EXTENSION OF TIME. a. Pursuant to Ordinances 96-7,96-8 and 97-36,upon written request of OCEANSIDE to the Director, any dates of commencement or completion for the Bypass Highway or the Coastline Park may be extended by the Director at OCEANSIDE's request. b. Notwithstanding any extension limitations set forth herein,upon written request by either party for an extension of time in which to complete its obligations hereunder which request is made due to a delay in the performance of any of the obligations of either party, a reasonable extension of the commencement,completion,or termination dates shall be granted by the other party for the performance of the terms of this Agreement; provided, however, that the delay in performance must be due to an unforeseeable cause or causes beyond the control and without the fault or negligence of either party, 21 including, without limitation, acts of God, acts of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes or walkouts, freight embargoes, or unusually severe weather. c. Nothing in this Agreement shall be construed to preclude the parties hereto from further extending any commencement, completion or termination date hereunder by mutual agreement, or from entering into subsequent agreements subject to the approval of the County Council. 27. AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement may be amended or canceled, in whole or in part, by mutual consent of the parties to this Agreement, or their successors in interest,as further evidenced by County Council resolution; provided that if the County Council determines that the proposed amendment would substantially alter the original terms of this Agreement, a public hearing on the amendment shall be held by the County Council before it consents to the proposed amendment. Non-substantive or technical amendments which affect only procedural requirements under this Agreement or do not materially alter the original terms of this Agreement shall only require the approval of the Office of the Mayor,without action by the County Council;and provided further that cancellation of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement not been entered into. 28. DISCRETION TO ENCUMBER. This Agreement shall not prevent or limit OCEANSIDE, in any manner and at OCEANSIDE's sole discretion, from encumbering all or any portion of the Property,or any improvement on the Property by any mortgage,deed of trust,or other security device securing financing with respect to the Property or any improvements located thereon. 29. OBLIGATION TO MODIFY. The COUNTY acknowledges that any Lenders providing financing under Paragraph (28), herein, may require certain modifications to this Agreement, and the COUNTY agrees, upon request from time to time,to meet with OCEANSIDE and/or representatives of such lenders to negotiate in good faith any such requirement for modification. The COUNTY shall not unreasonably withhold its consent to any such requested modification,and any such modifications shall be subject to the provisions of Paragraph (27), herein. 30. ENTITLEMENT TO WRITTEN NOTICE OF DEFAULT. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering all or any portion of the Property and their successors and assigns shall, upon written request to the COUNTY,be entitled to receive from the COUNTY written notification of any default by OCEANSIDE of the performance of OCEANSIDE's obligations under this Agreement which has not been cured within such time period as set forth in Paragraph (25), herein. 31. COOPERATION. The COUNTY shall not impede OCEANSIDE in carrying out the transactions contemplated herein and in obtaining all required approvals, authorizations, and clearances. Furthermore, the COUNTY shall cooperate with OCEANSIDE in executing and delivering in recordable 22 form all documents, instruments, or copies thereof; in providing non-financial and/or non-proprietary information deemed reasonably necessary or useful by the other party or parties; in delivering prompt payment of any monies required to be paid to the other party or parties under this Agreement; and to process, in a timely manner, any and all construction, permit or other applications relating to the Project, the Bypass Highway or the Coastline Park. With regard to any application(s)submitted by OCEANSIDE to any other governmental or quasi-governmental agency having jurisdiction over the Project, the Bypass Highway or the Coastline Park for any and all appropriate Approvals required for the construction or development of the Project, the Bypass Highway, or the Coastline Park the COUNTY shall not impede OCEANSIDE in obtaining such Approvals. 32. ASSIGNMENT. OCEANSIDE shall have the right to sell, assign or transfer, in whole or in part, this Agreement, and all of its rights, duties and obligations hereunder, to any entity, subsidiary, or partner of OCEANSIDE at any time during the term of this Agreement upon written notice to the Director. Such a transfer shall be considered a non-substantive or technical amendment that does not alter the material terms of this Agreement and which does not require action by the County Council, nor the approval of the Office of the Mayor. 33. ENFORCEMENT. Unless terminated pursuant to Paragraph (25) or canceled pursuant to Paragraph (27) herein, this Agreement, as amended or modified, shall be enforceable by any party hereto, or its successors in interest or assigns, notwithstanding any change in any applicable law, which alters or amends the Land Use Regulations or Approvals, the Development Agreement Statute, the Development Agreement Code,or the Development Agreement Rules,that is adopted by the COUNTY or any other party to this Agreement after the date of the Enacting Resolution. 34. WAIVER. The failure of any party to this Agreement to insist upon strict performance of any of the covenants or conditions herein, or to exercise any option herein conferred, or the waiver of a breach, shall not be deemed a waiver of such party's right to demand strict compliance by such other party in the future, nor shall it be deemed a relinquishment or waiver for the future of any rights, covenants, conditions or options under this Agreement. 35. GENDER. The terms "COUNTY" and "OCEANSIDE", wherever used herein, or any pronoun used in place thereof, shall mean and include the masculine or feminine or neuter gender, the singular or plural number,jointly and severally, individuals, firms or corporations,and their and each of their respective successors, legal representatives and assigns, according to the context thereof. 36. No PARTY DEEMED DRAFTER. No party shall be deemed the drafter of this Agreement. If this Agreement is ever construed by a court of law, such court shall not construe any provision thereof against any party as drafter. 23 37. No PARTNERSHIP. Nothing contained in this Agreement is intended,nor shall be construed to establish an agency relationship, a partnership or a joint venture between the parties hereto. 38. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Hawaii both as to interpretation and performance. 39. FORCE MAJEURE. In the event that either party shall be delayed or hindered in or prevented from the performance of any duties, obligations or conditions provided for and required under this Agreement by reason of strikes or other disturbances, lockouts, labor troubles, riots, insurrection, war or civil disturbance, fire or earthquake,tidal wave,acts of God,the elements, government legislation, regulation or controls, or economic controls, making it impossible to complete any duties, obligations, or conditions provided for and required under this Agreement, then performance of such duty, obligation, or condition shall be excused for the period of the delay and the period for the performance of any such duty,obligation, or condition shall be extended for a period equivalent to the period of such delay. Under no circumstances shall this provision operate or be construed to excuse either party from the payment of any sum required to be paid to the other party. OCEANSIDE or the COUNTY shall notify the other in writing of any force majeure event upon which OCEANSIDE or the COUNTY intends to rely upon for an extension of the period for the performance of any such duty,obligation,or condition,and shall also notify the other in writing of the date on which any such force majeure event ended. 40. GOOD FAITH. Either party to this Agreement shall perform its duties under this Agreement in good faith. 41. COMPUTATION OF PERIODS. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays; provided, however, that if the date or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday,such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday. 42. SEVERABILITY. If any provision of this Agreement,or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of any provisions thereof to other persons or circumstances shall not be thereby affected. 43. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the parties hereto and supersedes any other agreements or understandings with respect to the subject matter hereof that may ever have existed between the parties. 24 44. SECTION AND PARAGRAPH HEADINGS. Section and paragraph headings are inserted only for convenience and reference and in no way define, limit, extend or describe the scope of intent of this Agreement, or any provisions thereof. 45. ADMINISTRATIVE ACT. The approval of this Agreement shall, under Development Agreement Statute HRS section 46-131, be deemed an administrative act of the COUNTY and any and all governmental agencies or entities party to this Agreement. 46. BINDING EFFECT. The terms and conditions of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to,all successors in interest to and assigns of the parties hereto, and the covenants contained herein shall run with the land. 47. ENTITIES OBLIGATED. Except as provided to the contrary herein, individual lot purchasers or builders, mortgagees or beneficiaries shall not have the obligation or duty under this Agreement to perform the obligations of OCEANSIDE or other affirmative covenants of OCEANSIDE hereunder,or to guarantee such performance. 48. PARTIAL RELEASE. Any terms and restrictions of this Agreement which are satisfied as of the annual review shall be released upon request of OCEANSIDE; provided that any such release shall be in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable, within twenty (20) days of the execution of such release. 49. COMPLIANCE CERTIFICATE. If,during the annual review conducted pursuant to Paragraph (24), herein, the Planning Department finds compliance by OCEANSIDE with the terms of this Agreement, the Planning Department shall issue a certificate of compliance in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable. 50. SATISFACTION. Upon the satisfaction of the terms and conditions of this Agreement, and upon request by the Office of the Mayor and OCEANSIDE, the County Council shall propose and approve a resolution indicating that this Agreement has been satisfied. 51. FINAL RELEASE. The COUNTY agrees that upon written request of OCEANSIDE and payment of all fees and performance of the obligations of OCEANSIDE under this Agreement with respect to all or any portion of the Property, the COUNTY shall execute and deliver to OCEANSIDE appropriate release(s) of OCEANSIDE from any and all further obligations under this Agreement in such form and substance necessary to effect such release and to record the same with the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable; provided that any such release shall be recorded within twenty(20)days of its execution. 25 52. ADMINISTRATION OF THIS AGREEMENT. The Planning Department shall be responsible for the overall administration of this Agreement. 53. RECORDATION. The Planning Department, or such other executive agency designated in writing to OCEANSIDE by the Mayor, shall file or record copies of this Agreement and any amendment or modification hereto in the Office of the Assistant Registrar of the Land Court of the State of Hawaii or in the State of Hawaii Bureau of Conveyances,or both, whichever is applicable,within twenty(20)days after the execution of this Agreement, or twenty(20) days after any amendment hereto. 54. COUNTERPARTS. The parties hereto agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same instrument, binding all of the parties hereto, notwithstanding that all the parties are not signatories to the original or the same counterparts. For all purposes, including, without limitation, the recordation, filing and delivery of this Agreement,duplicate, unexecuted and unacknowledged pages of the counterpart may be discarded and the remaining pages assembled as one (I) document. 55. FACSIMILE DOCUMENTS. The parties agree to accept facsimile executed documents as if they were originally signed documents. Any party submitting facsimile signatures shall provide the other parties with originally signed replacement documents within five(5)business days from the date of receipt by such other parties of the facsimile executed documents. 56. NOTICES. Unless otherwise provided herein, any notice to either party given under this Agreement shall be in writing and given by delivering the same to such party in person, or by sending the same by registered, certified or express mail, return receipt requested, first class postage prepaid, to the party's address as first noted herein, or as otherwise provided through written notice to the other party. 57. PUBLIC DEDICATION. Unless otherwise provided by OCEANSIDE in writing, this Agreement shall not be deemed a gift or dedication of the Project or the Property,or any portion thereof, to the general public, for the general public,or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes expressed herein for the development of the Project and the Property as private property. 26 IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed the day and year first above written. COUNTY OF HAWAII "COUNTY" Approved as to form and legality: Corporation Counsel By . 7 tC• yglu45444 Its Mayor 1250 OCEANSIDE PARTNERS "OCEANSIDE" Approved as to form and legality: By RED HILL 1250, INC. Its Gener. '•rtner r .Its Legal Counsel By Richard T. Frye Its Vice President 27 STATE OF HAWAII ) ss : COUNTY OF HAWAII ) On this ;),A day of Pk'pv1l , 19 9& before me, rkVyNAt.e.h K• Y�1oi , the undersigned Notary Public, 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 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 . • i o44.ai LNotar Public,' State of Hawaii My commission expires : gliqa001 L.5 • STATE OF HAWAII SS: COUNTY OF HAWAII rh•K.•K. On this 19442 day of PhD,, , 1998, before me appeared Richard T. Frye,`te, who, being by me duly sworn, did say that he is the Vice President of Red Hill 1250, Inc., general partner of 1250 OCEANSIDE PARTNERS dba OCEANSIDE 1250, a Hawaii limited partnership, that the foregoing instrument was signed in the name of and in behalf of said partnership, and said Richard T. Frye acknowledged that he executed the same as his free act and deed and as the free act and deed of said partnership. Notary 1Public,;Stat of Hawaii My commission expires: a//c/ao o S. 29 List of Exhibits Exhibit Description A Map describing portion of the Property owned by OCEANSIDE in fee simple and that portion that is leased. B Ordinance No. 96-8 C Ordinance No. 96-7 D SMA Permit No. 345 E Use Permit No. 115 F SMA Permit No. 356 G Ordinance No. 97-36 H Mamalahoa Highway bypass detail and description. I Enacting Resolution approving the Agreement (not available until after Council acts). J Project Plan - Agricultural lot community and its various components, including the lodge and coastline park. Excludes the Mamalahoa Highway Bypass. K Map identifying 260.8 acres as TMK 7-9-12:04 and 11, which is leased from Ackerman Ranch. L Short Form of Ackerman Ranch lease. M Construction standards for the Mamalahoa Highway Bypass. N Sample Letter releasing OCEANSIDE from all further responsibilities and obligations with respect to segments of the Mamalahoa Highway Bypass. O Map of the relevant phases of the extension of Halekii Street through the Property. P Map of geographic areas for reimbursement. 1 List of Exhibits Exhibit Description Q Map of roadway stub-outs providing future connections between Property and its north and south boundaries. R Coastline Park S Ordinance No. 94-73 T1 Mamalahoa Highway Bypass TMX Map T2 Mamalahoa Highway Bypass TMX Map 2 • '� `0 .4 rI - ' `die. c ` , ' '., ; .'_� ;'%` - , •A �,:-•.Lr^,c VASt 7 � - �.. 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I.\I: • ( .. ::: L , LEASE AREA EXHIBIT A COUNTY OF HAWAII STATE OF HAWAII BILL NO. 181 (Draft ORDINANCE NO. 96 8 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 HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a) AND UNPLANNED (U) TO AGRICULTURAL (A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND. KANAUEUE 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA. HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-1-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd. North Kona. Hawaii, shall be Agricultural (A-1a): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 71 • 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152• 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; EXHIBIT B Thence, for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251 ° 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255° 17' 131.07 feet to a point; 6. 240° 43' 26.91 feet to a point; 7. 257° 50' 172.57 feet to a point; 8. 243° 13' 30" 21.91 feet to a point; 9. 256° 57' 98.95 feet to a point; Thence, for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 338° IT 30" 158.36 feet to a point; 11. 257° 24' 102.95 feet to a point; 12. 255° 40' 30" 171.35 feet to a point; 13. 261 ° 29' 101.46 feet to a point; 14. 346° 30' 30" 54.40 feet to a point; 15. 343° 21' 30" 152.40 feet to a point; 16. 346° 20' 165.46 feet to a point; 17. 343° 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345° 53' 30" 154.41 feet to a point; 20. 333 53' 114.71 feet to a point; 21. 345° 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres. more or less. (Refer to Parcel 1 as shown on Exhibit "A"). _1. The district classification of the following area situated at Honuaino 3rd and 4th. Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona. Hawaii. shall be Agricultural (A-1a): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall. the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: I . 172° 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251 ° 15' 39.58 feet to a point; 5. 259° 25' 18.68 feet to a point; 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271 ° 10' 30" 50.61 feet to a point; 12. 261 • 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262• 38' 30.23 feet to a point; 15. 258' 17' 37.28 feet to a point; 16. 254• 45' 21.32 feet to a point; -3- 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 2L89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° OT 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; 23. 250° 03' 30" 91.17 feet to a point; 24. 2570 28' 88.18 feet to a point; 25. 253° 37' 30" 14.36 feet to a point; 26. 271° 49' 7.86 feet to a point; 27. 243° 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; 30. 265° 31' 13.70 feet to a point; 3I. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259° 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 266° 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 272° 05' 60.95 feet to a point; 40. 269° 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; -4- 43. 272° 21' 30" 28.45 feet to a point; 44. 277° 12' 46.47 feet to a point; 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; 50. 261° 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' _ 166.66 feet to a point; 55. 261° 4T 108.98 feet to a point; 56. 243° 34' 33.10 feet to a point; 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 256° 19' 39.78 feet to a point; 61. 262° 44' 82.08 feet to a point; 62. 267° 50' 34.11 feet to a point; 63. 265° 25' 63.09 feet to a point; 64. 273' 36' 30" 112.92 feet to a point; 65. 268• 50' 151.03 feet to a point; 66. 274• 59' 30" 35.27 feet to a point; 67. 268' 30' 30" 48.40 feet to a point; -5- Thence, for the next three (3) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; 73. 333° 41' 55.11 feet to a point; 74. 341 ° 52' 42.41 feet toapoint; 75. 350° 21' 65.77 feet to a point; 76. 357° 1 1' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawc: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81 . 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83. 356° 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to a point; 85. 6° 27' 30" 75.31 feet to a point; -6- 86. 357° 30' 30" 143.26 feet to a point; 87. 8° 45' 30" 30.57 feet to a point: 88. 359° 52' 108.27 feet to a point; 89. 265° 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence. for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keaw.-e: 90. 357° 33' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point: 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; 96. 329° 39' 30" 32.22 feet to a point; 97. 326° 06' 51.01 feet to a point; 98. 324° 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72' 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- 104. 79° 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to \V. Whitmarsh: 105. 82° 05' 30" 51.64 feet to a point; 106. 83° 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91 ° 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; 1 1 1. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 268° 21' 280.72 feet to a point; 114. 259° 47' 379.67 feet to a point; 115. 260° 53' 149.26 feet to a point; 116. 259° 07' 153.59 feet to a point; 117. 266° 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 246° 41' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; 123. 245° 12' 30" 66.16 feet to a point; 12-1. 257° 45' 30" 34.33 feet to a point: 125. 239° 59' 72.54 feet to a point; 126. 250° 39' 30" 70.76 feet to a point; -8- 127. 246° 08' 111.93 feet to a point; 128. 332° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four (4) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 64° 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.78 feet to a point; 133. 154' 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 163° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; -9- Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165° 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A".) SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code. is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii, shall be Agricultural (A-la): PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2.272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit I1 (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Pan 4, Section 2 to American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; -1. 266° 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point: -10- Thence, for the next eleven (1 1) courses following along middle of stonewall: 5. 4° 59' 157.50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6. 17° 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7. 70 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 91 ° 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9. 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four(4) courses following along Grant 866 to Kapule: 10. 86° 02' 30" 309.93 feet along Lot 2 to a point; 11. 80° 19' 207.35 feet along Lot 1 to a point; 12. 75° 14' 183.86 feet along Lot 1 to a point; 13. 79° 02' 674.13 feet along Lot 1 to a point; 14. 177° 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 75° 14' 1,338.05 feet along Grant 977 to Panaunau to a point; 16. 150° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251 ' 45' 902.30 feet along Grant 865 to John Nakookoo to a point; -11- Thence, for the next thirty-six (36) courses following along middle of stonewall and along Gram 865 to John Nakookoo: 18. 250° 02' 30" 41.72 feet to a point; 19. 238° 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253° 29' 121.82 feet to a point; 22. 257° 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 1 10.46 feet to a point; 28. 258° 29' 24.30 feet to a point; 29. 274° 56' 30" 31.91 feet to a point; 30. 260° 18' 30" 148.31 feet to a point: 31. 253° 43' 47.09 feet to a point: 32. 243° 21' 30" 89.60 feet to a point; 33. 263° 53' 30" 70.49 feet to a point: 34. 254° 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241 ° 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point: 40. 216° 24' 30" 55.73 feet to a point: -11 . 238° 55' 30" 27.24 feet to a point: -12- 42. 255° 23' 30" 29.74 feet to a point; 43. 271 ° 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271 ° 04' 85.71 feet to a point; 47. 277° 42' 30" 71.32 feet to a point; 48. 269° 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A".) The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1 162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' 54" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78* 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1 162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -13- 3. 203° 12' 488.09 feet to a point; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. 172° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183° 07' 31 1.35 feet to a point; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to lalua to a point; Thence, following along the remainders of Grant 1464 to lalua and Grant 1 175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 41 1.07 feet to a point; 11. 203° 03' 162.63 feet along the remainder of Grant 1 175 to Nakauwaa to a point; Thence. following along the remainder of Grant 1 175 to Nakauwaa and Grant 1 177 to Kamakahiona on a curve to the left with a radius of 645.00 feet. the chord azimuth and distance beinc: 186° 42' 30" 362.96 feet to a point: -14- 13. 170° 22' 60.05 feet along the remainder of Grant 1 177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1 176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 202° 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112* 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 970 14' 329.53 feet to a point; 19. 82° 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118° 34' 831.43 feet to a point; 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; -15- Thence, for the next three (3) courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244* 12' 628.00 feet to a point; 26. 330° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' 1,338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 76° 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old railroad: 31 . 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341 ° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1 177 to Kamakahiona and Grant 1 175 to Nakauwaa to a point; Thence. for the next six (6) courses following along the remainder of Grant 1 175 to Nakauwaa: 36 350° 55' 30" 47.80 feet to a point; -16- 3 7. 260° 45' 8.34 feet to a point; Thence, for the next four(4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. 1 ° 03' 30" 50.75 feet to a point; 40. .1° 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four(4) courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340° 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342' 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332' 23' 82.87 feet to a point; 53. 324* 00' 11.13 feet to a point; 54. 332' 36' 30" 113.50 feet to a point; -17- 55. 347* 43' 24.68 feet to a point; Thence, for the next four (4) courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 3440 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 341 ° 48' 30" 54.25 feet to a point; 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 11 1.89 feet to a point; 65. 325° 21' 106.90 feet to a point; 66. 62° 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point: Thence. for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146. Land Commission Award 8452 to A. Keohokalole: 71 . 338° 26' 168.87 feet to a point; 72. 337° 34' 153.12 feet to a point: -18- 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit "A".) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part ereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance: (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones. signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) . • • • u .reh • .ve . • - • al • • • V Of • •1 p . .• • W . • •� •• I• V • • • • • 9 II• • • . •• . •• •V . •V . • 1 • 1 . /• • • •• • I. u••-v- '• • a.• •va • . • a d . - r. • i • wi • V • lie Ile - I• • •• . e• • •v- . .cce • B. .: • V • . . '• • • at.. • %%' • Planning Director and the Department of Land and Natural Resources and shall include r auka-makai and lateral shoreline accesses. parking area(s). signage, • - 11 - • - • - •• . - •I - I '•1 II . - • I . •V . • • • • •• . 1. - eon • •. • 111 . ' Ii , I• • • 11 • •V" si [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993]; 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) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;] M[(2)] 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; [(3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] L21[(4)] [A] 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 -21- 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 restrictions 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 a i. • • 11111 - 1 [% x • 1 I . •• •V. • . ••' ' la • ; phases in accordance with the public access plan; and M[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(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. (1) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of[the] its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the) coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, • • • - 1 -• -w. ' w.' • . - • - - u - • • • i' iw. ' • a . • i • •i Chapter 264. Hawaii Revised Statutes; (.11 Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits. human burials. rock or coral alignments. pavings or walls be encountered. work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken: -22- (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (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: (1) construct the channelization and signalization of the Mamalahoa Highway.. Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mamalahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit "C",] ' - , - , , . . • • ,'•,• v. .'., • . - - Be • .• 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 i .. • . . • • • tie . • So • • n • - • . se •V. .• -23- • • • • • . •1• • 1 - • •. • • • ow- � • �' • . - • project area; [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Marnalahoa Bypass;] (4) [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. [A] If. before the completion . •• • •." • • • • • - - • - ►/ • i•e • I•• . • I W.v ;ye. • •.•U•• • .•• • • •. • 1• • - - • .•• • •- • - • . •• • • •• ! • • • •v'. - • • • • • • • Haleki'i Street. a barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as pan of the required Haleki'i Street improvements, [prior to the completion of Phase 1 of the Marnalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and L5.)[(6)] provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;) and the adjacent properties to the north and south: provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Marnalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] • •. • . • ■ • .v • - - •• i •• - • • • ' W• : • .'• •w.vw • • n •. • • • • ••a . • ' •• • • " • ' .v • Pe•all• - i • Public Works, The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to -24- reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit `C', meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;) -25- fM'[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law) County of Hawaii; (N1[O)) To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q)[(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation. provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; _MR)) It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition. "agriculture" shall be defined as the cultivation of crops. including but not limited to flowers, vegetable. foliage. and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: -?6- (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; (Ql[(S)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; (Rl[(T)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park., fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- any combination thereof shall have a maximum combined value of S 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ] • •• • 1 Ie 11e :- . 1• - Si i• 11 • 11• • 1 - • - / _. - 'al • •a • 1 - •. • • /: l • 1 - • - • •e . . 1• - 1 • IN. - • •• . • • •.I• •.• 11 eIle . 1 I 1 - e• le_ - •1 u • ' Si the sum which is the product ofmultiplying the number of lois proposed to be subdivided by the amounts allocated hereinbelow for each such lot. and shall become due and payable prior to final subdivision approval for any portion of the subject property- or its increments. If the subject properly is subdivided in two or more increments. the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot. except for lots larger than ten acres in size or which arc committed exclusively foLgol[ourse and park purposes. shall be based on the maximum allowable density of building sites as determined by the zoning of such lot. The fair share contribution in a form of cash. land. facilities. or any combination he - • . - • • • - t• l - •. - • •1 •1 .t-411 N, ' a 1 ai tea a' - l 1 lave a maximum combined value of S7.239.16per lot. Based upon the applicant's • - • , •e1 • 1 - 1 • •Ae•v'• - • l• • -v- • e • • ' 11 • 1 - •1 • a e• • • • 1 • • 1 i• • 1 • : ' 11 1•w-v- 1 - • . e 11• 1 •• • - '1 • reduced in proportion with the actual number of subdivided lots according to the a U . .• 1 • 1 • •. 'II - 1 • •v. .• 1 • t , l , l• • l • II contribution shall be allocated as follows: 1 4'1 : - • - • • 1 -1•' .1 • t• . • 1' 41.11 t 1 151v 5 • • i •• : 1• 1 • .1/ %' 11 1 • l. . -28- (,2-1 1 . 41 • • • • 1 •••• . - • • • • . . 1 11 • - • • i c • police facilities: (.� . • • • . • •••. . • • . • 3 1 .411 • • fire facilities: 141 , 4 • • - • • . • .•.. . - . • . • • : 11 • • - • s ••• O solid waste facilities; L51 53.101.68 per lot. for anindicated total of S1.24Q-672.0Q to the State or County Jo support road and traffic improvements. The fairshare contributions de.ctibedabove shall be adiusted arytually beginning • - .r • l - 1 - - i - •v- . - • I- • .•I, 1 - e - 4 • • • - •- • , 1 •• the Honolulu Consumer Price Index LHCPIL In lieu of paving the fair share contribution. the applicant may construct improvements/facilities related to parks and recreation. fire. police. solid waste disposal facilities. and roads within the region •• •. • I I - • • •.• • . V • ••• - • • • • - • •• IV. • • • • • • • director. The cost of constructing the improvements required in Conditions H. K and •e • - - . • • • S . . II I. - • '1 • 1•• ••• • I •., : • II recreation. Condition R(4) for solid waste facilities and in Condition RLS for road and traffic improvements. For purposes of administering Condition R. the value of land contributed or the cost of a.ny improvements required or madejn lieu of the fair share contribution shall be such amount as approved by the Planning Director. upon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Codc, in the construction of dwellings within the subject property; ] S1[(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- LD[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (U1[(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (V�[(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, (W)[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and -30- (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: jo....4.....44.........Lz COUNCIL MEMBER, COUNTY O2Li..4...+_,l iawaii fIntroduction: December 15 , 1995 •f 1st Reading: December 15 , 1995 .f2nd Reading: January 3 , 1996 iveDate: January 15 , 1996 APPROVED as to Fr'•R6,s;: cr:71., GAL1TY 7:-:--c -,...... -,....i.- CO2P0r:L.TICN COUNSEL COUNTY CF HAWAII Dote .1/V 1/ -31- { 11 t i • • a i - - - i i s I I.. / 1 l� A r ; _ : : l1• i . ii : is= Z - cczo }- •• • - w N s. 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I. .-,„ . ..- •. = ___,,., 4! - .....,-: -„,-........--& . :.- 1 • AI • L as e . .- • ll '•. • :. l • ....il_ -• . '' '• f ) - l t .., 4 -. .--> • N i),.•./• --. ( 1 '? >s • 0 (,) ginij t .(. ..; . _ - l_ , = A r, - - - / .1;c./ . :. : 1 --k---:.•�--i •: F_ 2 _A, -,- v.Cly •1' O }-- OFFICE OF THE COUNTY CLERK County of Hawaii REQ' ' Hilo , Hawaii - - ( DiriErah )16 fill 7 57 -ROLL CA Yd ,;FFICE itTi_ Q COUNT f °AYIS:1AINOES ABS E iuced By: Takashi Domingo Araka i X Introduced: December 15, 1995 Bonk-Abramson X Reading: December 15, 1995 Childs X shed: N/A _ De Lima X Domingo X ARKS: Osorio X Rath X Ray X Smith X 7 2 0 ( DRAFT 6 ) ROLL CALL VOTE id Reading: January 3 , 1996 AYES NOES ABS f ayor: January 4 , 1996 Arakaki X -ned: January 16 , 1996 X tive: January 15 , 1996 Bonk-Abramson shed January 24 , 1996 Childs X De Lima X ARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 ) HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as rated above. r-, .A.&. .,/,Fg---, COUNCIL CHAIRMAN JMiGE.- / -tom( COUNTY CLERK -oval B-I pprvard this day al , 199e- . )6i,L, if ,e 4%.4,4_, OR COUNTY • ATI Bill No_ 181 (Draft 6 1 Reference C-821/PC-91 Ord No: 96 8 COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft 5) ORDINANCE NO. 96 7 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 HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A-la) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, HALEKII , KEEKEE 1ST AND 2ND, ILIKAHI , KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII , COVERED BY TAX MAP KEY 7-9-12 : 4 , 11 AND PORTION OF 3 AND 8-1-4 : PORTION OF 3 . BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section 25-87, Article 3 , Chapter 25 (Zoning Code) • of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A- 1a) : PARCEL 1 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098 , Land Commission Award 614 to Charles Hall , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 5 , 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South : 1 . 345° 15 ' 189 . 91 feet along Grant 2029 to S . W . Makahiki to a point : Thence , following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the right with a radius of 470 . 00 feet , the chord azimuth and distance being : EXHIBITC 2 . 316° 23 ' 15" 424 . 98 feet to a point; 3 . 343° 16 ' 839 . 35 feet along the remainders of Grant 2029 to S . W. Makahiki , Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 4 . 329° 59 ' 30" 473 . 03 feet to a point; 5 . 316° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270 . 00 feet, the chord azimuth and distance being: 6 . 345° 33 ' 1224 . 95 feet to a point; 7 . 14 ° 23 ' 350 . 20 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030 . 00 feet , the chord azimuth and distance being : 8 . 354 ° 32 ' 30" 699 . 21 feet to a point ; 9 . 334 ° 42 ' 918 . 92 feet along the remainder of Grant 1587 to John Peters to a point ; Thence , for the next three (3 ) courses following along 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 : - 2- 10 . 66° 00 ' 770 . 00 feet to a point ; 11 . 74 ° 30 ' 930 . 00 feet to a point ; 12 . 67° 00 ' 285 . 65 feet to a point; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall : 13 . 179° 00 ' 416 . 28 feet to a point ; 14 . 149° 00 ' 221 . 00 feet to a point ; 15 . 52° 00 ' 205 . 00 feet to a point ; 16 . 67° 00 ' 304 . 00 feet to a point ; 17 . 80° 00 ' 573 . 00 feet to a point ; 18 . 102° 00 ' 259 . 00 feet to a point; 19 . 136° 00 ' . 441 . 00 feet to a point ; 20 . 120° 00 ' 641 . 00 feet to a point ; 21 . 137° 00 ' 256 . 00 feet to a point; 22 . 168° 20 ' 1123 . 00 feet to a point ; 23 . 163° 30 ' 456 . 00 feet to a point ; 24 . 206° 00 ' 214 . 09 feet to a point ; 25 . 243° 00 ' 693 . 46 feet to a point ; 26 . 193° 00 ' 282 . 00 feet to a point ; 27 . 222° 00 ' 513 . 00 feet to a point ; 28 . 210° 19 ' 324 . 00 feet to a point ; 29 . 198° 00 ' 497 . 68 feet to a point ; 30 . 181° 00 ' 307 . 60 feet to a point ; 31 . 258° 00 ' 140 . 74 feet to a point ; 32 . 188° 49 ' 30" 106 . 80 feet to a point ; 33 . 170° 53 ' 443 . 95 feet to a point ; -3 - 34 . 268° 39 ' 20 . 00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4 ) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin : 35 . 272° 51 ' 57 . 35 feet to a point ; 36 . 267° 36 ' 189 . 05 feet to a point ; 37 . 269° 43 ' 203 . 15 feet to a point ; 38 . 275° 15 ' 223 . 35 feet to a point ; Thence , for the next three (3) courses following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 39 . 268° 14 ' 434 . 20 feet to a point ; 40 . 275° 04 ' 236 . 30 feet to a point ; 41 . 262° 13 ' 206 . 40 feet to the point of beginning and containing an area of 383 . 952 Acres, more or less . (Refer to Parcel 1 as shown on Exhibit "A" ) . SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Halekii , Keekee 1st and 2nd , Ilikahi , Kanakau 1st and 2nd , Kalukalu 1st, 2nd and 3rd and Onouli 1st , South Kona , Hawaii , shall be Agricultural (A- la) : - 4 - PARCEL 2 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1557 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station " PUU CHAU" , being 601 . 01 feet North and 2 , 479 . 11 feet East and running by azimuths measured clockwise from True South : 1 . 334 ° 42 ' 342 . 98 feet 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 a point : Thence, following along the remainders 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 and Grant 1176 to Kini on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being : 2 . 298° 34 ' 831 . 43 feet to a point ; 3 . 262° 26 ' 397 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence , following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being : 4 . 277° 14 ' 329 . 53 feet to a point ; 5 . 292° 02 ' 85 . 32 feet along the remainder of Grant 1176 to Kini to a point ; Thence , following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 5 - 30 . 00 feet , the chord azimuth and distance being : 6 . 337° 02 ' 42 . 43 feet to a point ; 7 . 22° 02 ' 35 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainders of Grant 1176 to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705 . 00 feet , the chord azimuth and distance being: 8 . 6° 12 ' 384 . 70 feet to a point ; 9 . 350° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point ; Thence , following along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being : 10 . 6° 42 ' 30" 362 . 96 feet to a .point ; 11 . 23° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point ; Thence , following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to Ialua along a curve to the left with a radius or 705 . 00 feet , the chord azimuth and distance being : 12 . 6° 06 ' 411 . 07 feet to a point ; 13 . 349° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence , following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645 . 00 feet , the chord azimuth and distance being : -6 - 14 . 3° 07 ' 311 . 35 feet to a point; 15 . 17° 05 ' 307 . 17 feet along the remainders of Grant 1464 to Ialua and Grant 1576 to Lohi to a point ; Thence, following along the remainders of Grant 1576 to Lohi , Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the left with a radius of 1130 . 00 feet, the chord azimuth and distance being: 16 . 349° 47 ' 1036 . 55 feet to a point ; 17 . 322° 29 ' 272 . 49 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence , following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the right with a radius of 870 . 00 feet, the chord azimuth and distance being: 18 . 352° 50 ' 30" 879 . 41 feet to a point ; 19 . 23° 12 ' 488 . 09 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze , the direct azimuth and distance being : 20 . 78° 08 ' 30" 958 . 38 feet to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being : 21 . 57° 14 ' 50" 1532 . 00 feet to a point ; -7- Thence , for the next four (4) courses following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole : 22 . 160° 00 200 . 00 feet to a point ; 23 . 149° 00 ' 452 . 00 feet to a point ; 24 . 160° 51 ' 628 . 00 feet to a point ; 25 . 152° 30 ' 327 . 00 feet to a point; 26 . 182° 19 ' 313 . 00 feet along the remainders of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point ; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah : 27 . 171° 27 ' 400 . 00 feet to a point ; 28 . 161° 20 ' 606 . 00 feet to a point ; 29 . 175° 16 ' 440 . 00 feet to a point ; 30 . 182° 42 ' 30" 1190 . 00 feet to a point ; 31 . 155° 00 ' 489 . 00 feet to a point ; 32 . 181° 00 ' 353 . 00 feet along the remainders of Grant 1745 to John Cavanah 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 ; 33 . 153 ° 00 ' 492 . 00 feet 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 a point ; 34 . 179° 00 ' 126 . 72 feet along the remainder of Royal Patent 1670 to John D. - 8- 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 ; 35 . 247° 00 ' 285 . 65 feet along Grant 1651 to Charles Hall to a point; 36 . 254° 30 ' 930 . 00 feet along Grant 1651 to Charles Hall to a point; 37 . 246° 00 ' 770 . 00 feet along Grant 1587 to John Peters to the point •of beginning and containing an area of 372 . 010 Acres, more or . less . All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof herein after referred to as "subject property" ) . SECTION 3 . These changes in district classification are conditioned upon the following : A. The applicant , successors or assigns shall be responsible for complying with all of the stated conditions of approval . B . The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205 , Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District . C. The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of Water - 9 - Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" . Prior to approval of the 500th lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply' s "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development . D . Subdivision plans for any portion of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance . E . A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable . F . All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site . G . A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property . Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works , prior to the issuance of Final Subdivision Approval for the subject property . - 10- An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans : 1 . an archaeological data recovery plan for the sites to undergo data recovery, 2 . a detailed interim protection/preservation plan for the sites to undergo preservation, and 3 . an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. Should any unidentified sites or remains such as artifacts, shell , bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken . J . A solid waste management plan shall be prepared meeting with the approval of the Department of - 11 - Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development . Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works . K . 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 comes 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 - 12 - 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; 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 restrictions 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 accessway (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 . - 13 - L . Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area ' s pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions . This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264 , Hawaii Revised Statutes; M . 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 : 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki ' i Street intersection ; - 14 - 2 . determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass , the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the applicant ' s reimbursement to the county for the acquisition of the lands condemned; 3 . construct the Mamalahoa Highway Bypass 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 Haleki ' i 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 extension of Haleki ' i Street through the subject property as generally reflected in Exhibit `B', which phasing of improvements shall be approved by the - 15- Department of Public Works . If, before the completion and opening of the entire Mamalahoa Highway Bypass , a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki' i Street improvements . The purpose of this condition is to prevent the use of Haleki' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5 . provide roadway stub-outs, generally shown in Exhibit "B', to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to reduce the impacts of noise and light on the residents therein - 16- and to generally beautify the highway appearance in such locations ; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant , less the pro rata portion attributed to the subject property; N . In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements . -17- 0. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads . The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot , and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments . If the subject property is subdivided in two or more increments , the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment . The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of building sites as determined by the zoning of such lot . The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of $7 , 239 . 16 per lot. Based upon the applicant ' s representation of intent to subdivide and develop up to 400 lots , the indicated total fair share contribution is $2, 895, 664 . 00 , however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. - 18- The fair share contribution shall be allocated as follows : 1 . $3 , 490 . 85 per lot , for an indicated total of $1, 396, 340 . 00 to the County to support park and recreational improvements and facilities ; 2 . $168 . 40 per lot , for an indicated total of $67, 360 . 00 to the County to support police facilities ; 3 . $332 . 61 per lot , for an indicated total of $133 , 044 . 00 to the County to support fire facilities ; 4 . $145 . 62 per lot , for an indicated total of $58, 248 . 00 to the County to support solid waste facilities ; 5 . $3, 101 . 68 per lot, for an indicated total of $1, 240 , 672 . 00 to the State or County to support road and traffic improvements . The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI) . In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire , police, solid waste disposal facilities , and roads within the region impacted by the proposed development , subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall -19- be credited against the sum specified in Condition 0 (4 ) for solid waste facilities, Condition 0 (1) for parks and recreation, and in Condition 0 (5) for road and traffic improvements . For purposes of administering Condition 0, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies . P . Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. 0 . Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance . P . An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone . The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required . - 20- S . An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances : 1 . the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant , successors or assigns, and that are not the result of their fault or negligence; 2 . granting of the time extension would not be contrary to the General Plan or Zoning Code ; 3 . granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; 4 . the time extension granted shall be for a period not to exceed the period originally granted for performance (i .e . , a condition to be performed within one year may be extended for up to one additional year) ; and 5 . should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action . Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation . -21- SECTION 4 . In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance . SECTION 5 . This ordinance shall take effect upon its approval . INTRODUCED BY: i COUNCIL MEMBER, UNTY OF HAW I Hilo, Hawaii Date of Introduction: December 15 , 1995 Date of 1st Reading : December 15 , 1995 Date of 2nd Reading : January 3 , 1996 Effective Date : January 15 , 1996 A'-^^'"`,EJ cs to Li .•:EL c::-_: 1' 'I Dote 1l. / - 22- r : = ar : 1 • : : • / : :: • I:, ; , : . .. • •• • i : • -' . 2 I .:. i ! r • 7 : J • I ;• i ; !6_, i . r. - i - i : ; i I : • i . = i' 1 ? ts a 3 3 1 ! • • . : : 1 • 1 ' 2 22 r . i • f 3 : 1 . ; t' : :: : - 1 : : I- ; I : f ; ii : t • -% - -. 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''r ' ),.1 •. .. .. • .,r_ m,,,,k..• ,,,,,J,....41 , . ..:_.,F: . ) • . d. •:- "•., qtroz.fp•P• ,' =.1. , , ......., -. . ...../t:1•• ( / .I. .- E . '‘• :5- lilsir4 \\41 , " a_,„... . ‘...--,-:;---,:..:_______ ',' . , _` `i_ . !.. t ` ' `'1' ::i / . te. /' � r /. 1. • s, t. _ \ Y:. .' : -T— • • • • ( 4 •.-iii"� :'. • ;I. -- • l r - • /. �• lY:'1 • \ I-- '''''.: • . •••• t laifiLl‘-.'.1..... ..,t .... ..,.. • •••• I : ;.••.•;„-.7 : ..•7411411rait '1' • ) • ....C. • . -% •• .M * --.- _fi •�l ••• -..• _ • )rats. -.:r • �•Z-'1. • e �� • \\Zl.l•:: �! •,A •lam -J 11 ,Nt •1,,4 -pr . I7NC�� l . OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , Hawaii R E C r. ' • (DRAFT 4) '96 JAN 16 f1111 7 57 ALL VOTE • /6.9 I-I T t'NGIt, w tvQS E luced By: Takashi. DomingoArakaki X Introduced: December 15, 1995 leading: December 15, 1995 Bonk-Abramson X :hed: N/A Childs X De lima X IRKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 ( DRAFT 5 ) ROLL CALL VOTE I Reading: January 3 , 1996 AYES NOES ABS E yor: January 4 , 1996 Arakaki X ied: January 16 , 1996 X ye: January 15 , 19 9 6 Bonk-Abramson hed January 24 , 1996 Childs X De Lima X RKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 YEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as ted above. t -e(-2) •-. 4.,,.._______ COUNCIL A4/.4.e CHAIRMAN .ik COUNTY CLERK ,ed/Bi� pprr arvtd this /� day ZR"'"1--'47 , 19 (16 . 1.1C'C 1 L G1OIL :. COUNTY • •: WAIL• Bill No.: 158 (Draft S ) Reference: C-734/PC-98 S Ord No.: Yant,shiro .i`�y�_y- • Jam, y' -!/ al. �T:ESO &aunf' nd pZIfintii PLANNING COMMISSION 25 Aurum(Scrcu.Room 109 • 1(ito,llaw.i( 96720.425Z (806) 961.8286 Fa^(808)961-9615 fRTIFIED MAIL 'vember 5, 1993 . Richard Frye, Project Manager eanside 1250 -5620A Palani Road, Suite 200 ilua-Kona, HI 96740 ar Mr. Frye: ange of Zone Application (REZ 93-5) quest: Agricultural-5acre (A-5a) and .Unplanned (U) to Agricultural-lacre (A-la) ; e Permit Application (USE 93-2) quest: 27-Hole Golf Course, Golf Clubhouse, Driving Range and Related Improvements ecial Management Area (SMA) Use Permit Application (SMA 93-1) questr 27-Hole Golf Course, Driving Range, Public Shoreline Access and Related Improvements plicant: Oceanside 1250 K: 7-9--6:portion of 1; 7-9-12 :portions of 3 , 4 , 5 & 11 ; and 8-1-4 :portion of 3 a . Planning Commission at its duly held public hearing on tober 27 , 1993 , voted to recommend the approval of the )ve-referenced Change of Zone request to the County Council . a Commission also voted to approve the above-referenced Use and Special Management Area (SHA) Use Permit applications. subject properties are located makai of the Mamalahoa ;hway, makai of Kealakekua Village, Halekii , Keekee, North and ith Kona, Hawaii . Commission voted to recommend approval of the Change of Zone the County Council subject to the following conditions: EXHIBIT D + E Mr. Richard Frye, Project Manager November 5, 1993 Page 2 A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval . B. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this ordinance or relating to- or connected with the approval of the ordinance. C. The effective date of the rezoning shall be upon: (1) the execution of an agreement, meeting with the approval of the Water Commission of the County of Hawaii , to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject properties within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by- the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance. D. Subdivision plans for any portion of the agricultural-zoned area within the project site shall be submitted to the Planning Department and Final - Subdivision Approval secured within five (5) years from the effective date of this ordinance as determined in Condition C. E. A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works , whichever is applicable. F. All electrical and communication utilities and systems within the project site shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. r. Richard Frye, Project Manager ovember 5, 1993 age 3 G. A Flood Study of the project site shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the Agricultural-zoned area within the project site. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the residential-agricultural development. H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the project area. I. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works. Mr. Richard Frye, Project Manager November 5, 1993 Page 4 K. Access (es) to the project site shall be constructed in a manner meeting with the approval of the Departments of Transportation-Highways Division and/or Public Works, whichever is applicable, for the following roadway improvements which shall be completed prior to the issuance of Final Subdivision Approval for any portion of the residential-agricultural subdivision within the project site: (1) the channelization and signalization of the project site's Mamalahoa Highway-Haleki'i Street intersection; (2) the construction of- the Mamalahoa Highway ByPass, consisting of two 'lanes with sufficient right-of-way to accommodate its expansion to four lanes, along its general alignment as shown in Figure 20 of the Villages at Hokukano Final Environmental Impact Statement (FEIS) dated September 1993 ; (3) the construction of channelization improvements to the ByPass at its intersections with Kuakini Highway, Mamalahoa Highway/Napo'opo'o Road and Haleki' i Street; and (4 ) the construction of the project's main access roadway extension from Haleki'i Street along the general alignment as reflected in Figure 4 of the FEIS with provisions for a stub-out along the project site's northern boundary to accommodate its future connection with the Alii Highway. L. Infrastructural improvements as required under Conditions E, G and K shall not prohibit the Applicant from participating in a Development Agreement or any other agreement together with the appropriate bond, surety or other security deemed acceptable by the Planning Director, appropriate agencies or the County Council , whichever• is applicable, to ensure the provision of necessary infrastructural improvements to support the proposed development in a timely manner. M. The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions K and N. N. The Applicant shall pay its fair share contribution to address potential regional impacts of the project with respect to park, fire, police, solid waste disposal facilities, sewer and roads . The fair share Richard Frye, Project Manager )vember 5, 1993 &ge 5 ' contribution shall be initially based on the representations contained within the change of zone application and may be increased or 'reduced proportionally if the residential-agricultural lot counts are adjusted. A pro rata portion of the contribution, based • upon the density of the land affected, shall become due and payable, at the discretion of the Planning Director, in the event the Applicant conveys an ownership, leasehold, or controlling development interest in the land prior to receiving its subdivision approval of any portion of the agricultural-zoned area within the project site. Otherwise, said contribution shall be satisfied in conjunction with the receipt of Final Subdivision Approval of the affected land. The fair share contribution for each residential-agricultural lot shall be based on a maximum density for each lot as determined by the applicant with the concurrence of the Planning Director. The fair share contribution in a form of cash, land, 'facilities, or any combination thereof shall have a maximum combined value of $ 4 , 701, 205. 74 . In lieu of paying the fair share contribution, the applicant may construct such facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies) . O. The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the project site. P. The Applicant shall contribute its fair share of costs attributable to school facilities made necessary by the project, provided that the contribution of Applicant's fair share shall be paid no later than the date upon which Final Subdivision Approval is obtained for the two-hundredth and first (201st) lot of the small lot subdivision. Q. Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Mr. Richard Frye, Project Manager November 5, 1993 Page 6 R. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. S. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. 'The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. T. An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could 'not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e. , a condition to be performed within one year may be extended for up to one additional year) ; and (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. e Permit No. 115 is hereby issued to construct a 27-hole golf urse, golf clubhouse, driving range and related improvements . proval of the Use Permit is based on the following: In considering a Use Permit for a proposed 27-hole golf course and rel :-F---d improvements, Rule 7 of the Planning r. Richard Frye, Project Manager Dvember 5, 1993 age 7 Commission relating to Use Permits require that such action conform to the following guidelines: (a) The proposed use will still be consistent with the general purpose of the zoned district, the intent and purpose of this chapter, and the County General Plan; . (b) The proposed use will not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community's character or to surrounding properties; (c) The proposed use will not adversely affect similar or related existing uses within the surrounding area, community or region; and (ci) Thv Proroscd use will not unreasonably burden public agencies to provide voads and virecLu, sewer, water, drainage, schools, police and fire protection and other related infrastructure. Non-conformance with any of the above-mentioned guidelines would require that the requested Use Permit be denied. The establishment of a 27-hole golf course and related facilities within the County's Unplanned (U) zoned district will not be inconsistent with the general purpose of that zoned district, the intent and purpose of the Zoning Code, and the General Plan, provided adequate mitigating conditions are met. • The subject request will provide a form of perpetual open space, thus, maintaining the current open character of the surrounding area to the north and south along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of both the Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic, and cultural character or the area , and that the recreational use should be compatible with the adjacent areas. The project site is characterized as predominantly pastureland used for cattle grazing. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u Ohau, or Red Hill which is a prominent feature in the middle of the property, near the coast. No improvements are presently being Mr. Richard Frye, Project Manager November 5, 1993 Page 8 proposed within this area, which is located within the State Land Use Conservation District. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. An archaeological inventory survey of the entire Villages at Hokukano project site located evidence of features associated with the Kona Field System, primarily the rectangular walled fields formed by kua' iwi walls. Other features associated with the walled fields consist of intermittent mound concentrations, terraces and modified outcrops. The Survey located 807 structural and non-strnr-tural features which were subsequently organized into 47., •ites and site complexes, some of which were Jr . Ited within the golf course project site. Of this total, 1 of these sites are recommended for preservation; sites are recommended for selective preservation, and 2:") sites are recommended for data recovery. These findings w'-re supported by limited subsurface testing conducted at nine probable and possible burial sites, one agricultural mound complex, and within two extensive lava tube systems. Fourteen sites within the project area were interpreted to be possible heiau or shrine structures, with one major structure known as "Ukanipo". Sites intended for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua 'a boundary walls. Preservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, with slight modifications if necessary. Possible burials, if not preserved "as is" , will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR) -Historic Preservation Division. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Planning Director in consultation with the DLNR-Historic Preservation Division, is recommended prior to the submittal of plans for Final Plan Approval review of the golf course or any land alteration activities . The granting of this proposal would complement the goals of the General Plan's Recreation Element which states to "Provide a diversity of environments for active and passive pursuits" and to "Provide a wide variety of recreational opportunities . be further achieved through the development sofe gaapublic ls 1play program at the propose golf course which will be implemented prior to commencing operations. • Ir. Richard Frye, Project Manager lovember 5, 1993 )age 9 Golf courses are permitted uses within the State Land Use Agricultural District provided that the affected lands are not classified either "A" and "B" soils by the Land Study Bureau. The Land Study Bureau's Overall Master Productivity rating for agricdltural use of the golf course project site is Class "D" and "E" or "Poor" and "Very Poor", respectively. Therefore, consideration of a golf course within these State land use parameters is permissible. The granting of the proposed use will not be materially detrimental to the public welfare hor cause substantial adverse impact to, the community's character or to surrounding properties. The character of land use in the immediate area consists largely of pasture and vacant lands to the north and south of the golf course project site. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u ohau, or Red Hill which is a prominent feature in the middle of the property near the coast. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. Pu'u Ohau and Hokukano Village or located within the coastal portions of the affected properties and designated Conservation by the State Land Use Commission. Located to the east (mauka) are the Kona Scenic and Keekee Estates subdivisions and the town of Kealakekua. Approval of the proposed golf course in this particular location would expand on the open space character to the north, south and west (makai) of the project site, thereby complementing the open space character of the Conservation District along the coastal area fronting the project site as well as reducing urban development pressure on the nearby historic Hokukano Village. The siting of the clubhouse, driving range, parking areas, maintenance facility and related improvements will consider the historical, open space, and cultural elements located within and adjacent to the project site during plan approval review. The Planning Department' s Guidelines for Golf Course Development will be utilized to assure that adjacent properties will not be adversely affected by direct play on the golf course (i . e. errant golf balls) . In addition, the central location of the clubhouse and its related facilities will take advantage of the landscaping elements within the golf course to mitigate any adverse visual impacts to surrounding properties as well as from coastal areas. Due consideration by the Applicant in the siting, height , bulk, color schemes, and landscaping of golf Mr. Richard Frye, Project Manager November 5, 1993 Page 10 course-related structures will be required to mitigate any adverse noise and visual impacts. The granting of the proposed use will not adversely affect similar or related existing uses within the surrounding area, community, or region: Kona Country Club, a resort golf course located in Keauhou, is the only existing course in the immediate region. The Kona Country Club golf course is oriented for resort and public play, while the proposed golf course will be oriented toward private membership play. Therefore, it is not anticipated that this approval would affect the operations of the Kona Country Club. Located approximately 16 miles to the south of the project site in Opihihale is the proposed Akahi Golf Course, which received the Planning Commission's approval in 1992.. While the proposed Akahi Golf Course is also planned as a private membership course; it is anticipated that the distance of these project sites from one another would assist to negate any adverse affect to the operation of either golf courses. All essential utilities and services required for the development of a golf course and related facilities arc or will be made available. Conditions of approval relative to the provision of such services are being proposed. Primary access to the golf course and clubhouse facilities will be provided through an extension of Haleki'i Street. Haleki'i Street, which has a pavement width of approximately 34 feet with gutters and sidewalks within an 80-foot wide right-of-way. Haleki' i Street is currently channelized as a "T" intersection with separate left and right turn lanes at its intersection With the Mamalahoa Highway. A Traffic Impact Study prepared by the Applicant found that the traffic signal warrant for this intersection has been marginally met based on existing traffic volumes. Therefore, it is recommended that signalization of this intersection and its attendant improvements be provided prior to commencing operations at the golf course. The General Plan Facilities Map delineates this Haleki' i Street extension as a major arterial in a makai, then north, direction to its eventual connection to the proposed Alii Highway Extension. This approval is also conditioned upon the extension and construction of this Alii Highway-Haleki' i Street extension along its general mauka-makai alignment as shown on the General Plan Facilities Map in accordance with county dedicable standards meeting with the requirements of the Department of Public Works, concurrently with the golf course development. No golf cart paths shall gain access Ir. Richard Frye, Project Manager november 5, 1993 Dage 11 across the this extension. Further, the Alii Drive-Haleki' i Street extension shall be open to the public or may be dedicated to the county. To eliminate impacts through the possible future development of residential lots along the Alii Drive-Haleki ' i Street extension, no direct access shall be permitted from lots adjoining this roadway. Main access to any residential lots shall be from interior roadway systems. The Department of Water Supply has issued the Applicant 499 water commitments, which is sufficient to support the golf clubhouse activities. A water assignment agreement and commitment payment will be required from the Applicant prior to the submittal of golf course plans for Plan Approval review. An "Evaluation of Water Resources for Hokukano Project" was conducted by the Applicant which found that for general planning purposes, the proposed golf course would demand approximately 900, 000 gallons of water per day for irrigation purposes. The Applicant has drilled an irrigation well within the project site to explore the use of brackish water to supplement its golf course irrigation needs . The pilot irrigation well indicated promising results for its possible use as a .brackish water source for irrigation purposes. In addition, the provision of on-site retention basins and storage reservoirs within the proposed golf course will provide another supplemental source of irrigation water through the use of excess runoff. A condition of approval will require the Applicant to establish an irrigation water source of sufficient quantity and quality to support the total irrigation needs of the proposed golf course, prior to the commencement of operations at the golf course. All other essential utilities and services are or will be made available to support the proposed golf course, golf clubhouse, driving range and related improvements. )roval of the Use Permit is subject to the following editions : 1 . The applicant, successors or assigns shall comply with all of the stated conditions of approval . 2 . The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or Ir. Richard Frye, Project Manager 4ovember 5, 1993 'age 12 relating to or connected with the approval of this permit. 3 . The Applicant shall provide assurance(s) satisfactory to the Planning Director, upon consultation with the Department of Land 'and Natural Resources-Commission on Water Resource Management and the Department of Health, that a water source(s) of sufficient quality and quantity to support the total irrigation needs of the golf course be established prior to the issuance of a certificate of' occupancy or opening of the golf course, whichever occurs first. 4 . Final Plan Approval for the proposed golf course and related improvements shall be secured from the Planning Director. In the design and review of any improvements, noise and visual impacts shall be minimized through appropriate siting, height, bulk, color schemes, and landscaping. The Planning Director shall determine the related improvements and accessory uses to the golf course not inconsistent with the applicable provisions of the Zoning Code at the time of plan approval review. 5 . Construction of the golf course and related improvements shall be completed within five (5) years from the date of receipt of Final Plan Approval . 6 . A detailed drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for Plan Approval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approval of the Department of Public Works , prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first . • 7 . In the design of the golf course, the County of Hawaii Planning Department's Guidelines for Golf Course Design (November 1989, as amended) shall be utilized. The Planning Director shall determine appropriate setback requirements ( i .e. building and property line) at the time of plan approval review. Easements for golf course purposes over and across abutting lots, either Richard Frye, Project Manager )vember 5, 1993 •ge 13 existing or proposed, shall not be permissible, except as may be approved by the Planning Director. 8 . The Alii Drive-Haleki' i Street extension shall be constructed as an arterial along its general mauka-makai alignment as shown on the General Plan Facilities Map to County dedicable standards, meeting with the approval of the County Department of Public Works. The mauka-makai alignment of Alii Drive-Haleki' i Street shall be installed prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. The Alii Drive-Haleki' i Street extension shall allow for perpetual public use by easement or be dedicated to the county. No golf cart path shall be permitted to cross over the Alii Drive-Haleki' i Street extension, except as may be approved by the Planning Director and Chief Engineer. Furthermore, direct access from future residential lots adjoining this alignment will not be permitted. 9 . Intersection improvements at the Mamalahoa Highway-Haleki' i Street intersection, including traffic signals and channelization, shall be installed in a manner meeting with the approval of the State Department of Transportation and the County Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. 10. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations , prior to submitting plans for plan approval review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3 ) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area. The Plan shall also include a detailed map of known lava tube/cave systems located within the project site and Mr. Richard Frye, Project Manager November 5, 1993 Page 14 mitigative measures to ensure that the golf course and related drainage systems do not impact these cave systems. 11. Should any unanticipated archaeological sites or features be uncovered during land preparation activities, work within the affected area shall immediately cease and the Planning Director immediately notified. Work within the affected area shall not resume until clearance is obtained from the Planning Director. 12 . The use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulations of appropriate governmental agencies. 13 . During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices Utilized during construction projects of the State of Hawaii . 14 . Prior to construction, the applicant shall demonstrate to the satisfaction of the Planning Director that all proposed off-site construction material such as topsoil or sand are being supplied from an approved quarry or resource site. 15. A program for public play at the proposed golf course shall be developed meeting with the approval of the Planning Director, prior to the issuance of a certificate of occupancy or the opening of the golf course, whichever occurs first. The Program shall include, but not be limited to, the provision of public play, at kama'aina rates, at least one (1) day per month. 16. The Applicant shall establish a program for employee housing and which shall be submitted for the review and approval of the Planning Director and Housing Agency together with the submittal of plans for plan approval of the golf course and clubhouse. The program shall include provisions for on-site or off-site housing for the employees at a ratio to be determined by a study of surrounding housing opportunities and employee needs. The ratio shall be no less than 10% and no more than • r. Richard Frye, Project Manager ovember 5, 1993 age 15 50t of the number of employees . The program may also include consideration for other alternatives such as rental housing subsidies or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy with the golf course. 17 . A job training program for the operating phase of the golf course and golf clubhouse shall be developed and submitted to the Planning Director for review and approval prior to the issuance of a certificate of occupancy or opening of the golf course, whichever occurs first. 18 . Comply with all other applicable laws, rules, regulations and requirements, including those of the Departments of Health and Public Works. 19 . An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. •This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. • 20. An initial extension of time for the performance of conditions within the permit may be .granted by the Planning Director upon the following circumstances: a) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, ' and that are not the result of their fault or negligence; b) the granting of the time extension would not be contrary to the general plan or zoning code; c) granting of the time extension would not be contrary to the original reasons for the granting of the permit; and d) the time extension granted shall be for a period not to exceed the period originally granted for performance ( i . e. , a condition to be performed within one year may be extended for up to one additional year) . Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke the permit. Mr. Richard Frye, Project Manager November 5, 1993 Page 16 Special Management Area (SMA) Use Permit No. 345 is hereby issued to construct a 27-hole golf course, driving range, public shoreline access and related improvements. ;pproval of the Special Management Area (SMA) Use Permit is based Dn the following: The purpose of Chapter 205-A, Hawaii Revised and Rule 9, Special Management Area Rules and Regulationssof the County of Hawaii is to preserve, protect, and, where possible, to restore the natural resources of the coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. One of the criteria for approving :a development within the Special Management Area (SMA) is that it is consistent with the General Plan and Zoning Code. The construction of portions of a proposed 27-hole golf course, driving range, public access improvement and other related improvements within the Unplanned (U) zoned district will not be inconsistent with the general purpose of the Zoning Code, and the General Plan, provided adequate mitigating conditions are met. The subject request will provide a form of perpetual open space, thus, maintaining the current open character of the surrounding area to the north, south and west (makai) along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of the Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic, and cultural character of the area, and that the recreational use should be compatible with the adjacent areas. The project site is characterized as predominantly pastureland used for cattle grazing . Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u Ohau, or Red Hill which is a prominent feature in the middle of the property near the coast. No improvements are presently being proposed within these areas, which are located within the State Land Use Conservation District. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. The proposed golf course will not encroach upon lands located makai of the project site within the State Land Use Conservation District . An archaeological inventory survey of the entire Villages at Mr. Richard Frye, Project Manager November 5, 1993 Page 17 Hokukano project site recommended that of the 473 site and site complexes located, 179 are recommended for preservation, of which 17 are recommended for selective preservation, and 289 sites are recommended for data recovery. With the approval of an archaeological mitigation and interpretation plan by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, archaeological features will be incorporated within the golf course project site through historic parks, interpretive programs and an extensive pedestrian trail system. According to plans, an internal roadway within the northern portion of the project site will provide a public access roadway and parking area in the vicinity of the proposed 8th and 9th holes of the golf course. It is recommended that the Applicant develop and implement a comprehensive coastal public access plan for the review and approval of the Planning Director. With the approval and implementation of the comprehensive coastal access plan and the establishment of the public access area within the Conservation District, the proposal would not have any adverse effect on public access to the shoreline and would complement the goals of the General Plan' s Recreation Element which states to "Provide a diversity of environments for active and passive pursuits" and to "Provide a wide variety of recreational opportunities . . . . " Another criteria in reviewing an SMA Use Permit application is that "The development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. Such adverse effect shall include, but not limited to, the potential cumulative impact of individual developments, each of which taken in itself might not have a substantial adverse effect and elimination of planning options . " The proposed improvements are not anticipated to create substantial adverse ecological effects to the affected area . No endangered species of flora or fauna were located within the project site nor were any special habitats identified. Air emissions generated during the construction phase can be mitigated by existing construction regulations. As proposed by the Applicant, native plant species, such as the Prosopis tree, Capparis, and Wili Wili tree, shall be preserved or utilized to the furthest extent possible for landscaping in and around the golf course . The use of such native plantings will be detailed in a landscaping plan to be required oC the Mr. Richard Frye, Project Manager November 5, 1993 Page 18 Applicant . Applicable and appropriate governmental regulations will be adhered to in the application and use of pesticides and herbicides within the project site. The project site is located approximately 300 feet from the shoreline. Any potential runoff or discharge which could reach ocean waters can be handled by existing construction regulations during the construction phase and on-site drainage systems during operations. Wastewater generated by the golf course clubhouse will be disposed of within a wastewater' treatment system meeting with the approval of the Department of Health. As recommended by the Department of Public Works, appropriate drainage systems will be required to accommodate runoff generated by the proposed improvements . To ensure that bo significant adverse impacts to coastal systems are generated, a groundwater and coastal water monitoring plan (s) will be required. The proposed golf course will not have an adverse impact to cultural or historical resources within the area. An archaeological inventory survey of the entire Villages at Hokukano project site located 473 sites and site complexes, some of which were located within the golf course project site. of this total , 179 of these sites are recommended for preservation of which 17 sites are recommended for selective preservation, and 289 sites are recommended for data recovery. Sites intended for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua'a boundary walls. Preservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, with slight modifications if necessary. Possible burials, if not preserved "as is", will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR) -Historic Preservation Division. - These archaeological mitigative measures were recommended by the Applicant and it' s archaeological consultant. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Planning Director in consultation with the DLNR-Historic Preservation Division, is recommended prior to the submittal of plans for Final Plan Approval review of the golf course or any land alteration activities. Mr. Richard Frye, Project Manager November 5, 1993 Page 19 Due to the open nature of the proposed golf course, viewplanes within the area will not be significantly affected by the proposed improvements. To further ensure that viewplanes will not be adversely impacted, all electrical and communication systems will be placed underground, with the exception of the 69 KV line from the Mamalahoa Highway to the proposed substation site. approval of the Special Management Area (SMA) Use Permit is subject to the following conditions: 1. The applicant, successors, or assigns shall be responsible for complying with all of the stated conditions of approval; 2 . The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or . relating to or connected with the approval of this permit. . 3 . An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for plan approval review. The Plan . shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area . The Plan shall also include a detailed map of known lava tube/cave systems located within the project site and mitigative measures to ensure that the golf course and related drainage systems do not impact these cave systems. Mr. Richard Frye, Project Manager November 5 , 1993 Page 20 4 . Should any unidentified sites or remains, such as lava tubes, artifacts, shell, bone or charcoal deposits, human burials, rock . or coral alignments, pavings or wall be encountered, work in the affected area shall cease and the Planning Director immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. 5. A detailed drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for Plan Approval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approval of the Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, Whichever occurs first. 6 . The use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulations of appropriate governmental agencies . 7. During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance With construction industry standards and practices utilized during construction projects of the State of Hawaii . 8 . 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 Tr. Richard Frye, Project Manager fovember 5, 1993 'age 21 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. 9 . The Alii Drive-Haleki 'i Street extension shall allow for perpetual public use by easement or be dedicated to the County. • 10. Areas of the affected properties located within the State Land Use Conservation District shall be set aside as public shoreline access areas in a manner consistent with the approved final comprehensive public access plan via covenants recorded with the Bureau of Conveyances . Upon approval of the final comprehensive public access plan, draft covenants which detail the rights, obligations and privileges of the public, the County of Hawaii and the applicant, its successors or assigns shall be submitted to the Planning Director for approval . The approved covenants shall be recorded prior to the receipt of Final Plan Approval for the golf course or the subdivision of any portion of the Agricultural-zoned area within the project site, whichever occurs first. These covenants shall be encumbrances running with the land and shall be binding on all parties and persons claiming under them. 11 . Prior to the commencement of construction of any portion of the proposed golf course development, an overall monitoring plan on the potential pollution to groundwater and coastal waters shall be submitted to the Planning Director for approval in consultation with the Department of Health. A Golf Course Best Management Plan and Integrated Groundwater Monitoring Plan shall be component parts of this overall monitoring plan. 12 . The Applicant shall prepare and submit to the Planning Director for approval a Landscaping Plan for the golf course and golf clubhouse along with plans submitted for plan approval review. The Plan shall discuss the method of preservation and/or propagation and use of native plants, such as the Prosopis tree, Capparis, and Wili Wili tree, within and around the golf course and golf clubhouse facilities. Mr. Richard Frye, Project Manager November 5, 1993 Page 22 13 . All electrical and communication utilities and systems shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. 14 . Comply with all other applicable laws, rules , regulations and requirements; 15. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with . This condition shall remain in effect until all of the conditions of approval have been complied and the Planning Director acknowledges that further reports are not required; 16. An initial extension of time for the performance of conditions within this permit may be granted by the Planning Director upon the following circumstances: (a) ' the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (b) granting of the time extension would not be contrary to the General Plan or the Zoning code; (c) granting of the time extension would not be contrary to the original reasons for the granting of the permit; and (d) the time extension granted shall be for a period not to exceed the period originally granted for performance (i. e. , a condition to be performed within one year may be extended for up to one additional year) . Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke this permit. hese approval do not, however, sanction the specific plans ubmitted with the applications as they may be subject to change iven specific code and regulatory requirements of the affected gencies. Mr. Richard Frye, Project Manager November 5, 1993 Page 23 Should you have any questions, please feel free to contact Rodney Nakano of the Planning Department at 961-8288 . Sincerely, Wilton Wong, Vice Chairman Planning Commission DSA: jdk LOcean01 .PC xc: Honorable Stephen K. Yamashiro, Mayor Planning Director PSR Hawaii , Inc. Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of State Planning, CZM Program w/background Department of Land and Natural Resources Department of Transportation-Highways Division Department of Parks & Recreation Fire Department Police Department Department of Health Department of Education Office of Housing and Community Development Plan Approval Section Subdivision Section Illi K. YrnuNharo OP2. •fl l uiiltfu uf LI�1rLIti PLANNING COMMISSION 25 Aur,,..t$neer, Ron... 109 . 11:4‘.114..r11 96720.4252 (ROR)961 8288 r., (808) 961-9615 IZTIP1CI) MAIL 416 228 850 cptcnlbcr 28, 1995 .. T. "Dick" Frye, Project Manager 250 Oceanside Partners 1-5620A Palalii Road, Suite 200 ailua-Kona, I11 96740 tear Mr. Frye: licant: Oceanside 1250 dba 1250 Oceanside Partners ial Management Area Use Permit Application No. 95-3 -quest: To Allow Development of Portions of a 730-Lot Agricultural Subdivision and its Related Improvements aX..1`1al)KCy.:_7-9-12:11 and PoCtiaus_oC3 11u1 4: R-1 4:l'ortiotlsy[�_ he Planning Commission at its duly held public hearing on September 14. 1995, "cited-t approve c above-iefctenced application. Special Management Arca 11c (SMA) Permit Nus 3 1s hcicby sued to allow the development of portions of die pioposcd 400-lot acricultural subdivision and lased infrastructure improvements and facilities On apploxrluately 110 acres of land. The plication reps eSents a portion of the approximately 1,540 acres Master planned community known the Villages of Ilokukano. The property is Io.:ated makai of i Iauualalloa IIIghwat• and ealakckua Village, Ilaleki'i, Keekee, North and South Kona, Hawaii. rproval of this request is based on the following: The purpose of Chapter 205-A, liawaii Revised Statures. and Rule 9. Special Management Arca Rules and ReculationS of the County of Hawaii ['(:►.unit Cuniutission is to prcSC1 te, ploteet and, where possible. to restore the natural ICSoutccs of the cuaaal zone areas. "I'11c1cfore, special contlohs on development within an arca along the shoreline ate necess:►ty to avoid permanent loss of valuable resources and the foreclosure of ut:utatzeutent options. One of the criteria for approving a development within the Special t Ia11aLtentent Alea (SMA) is that it is consistent with the General Plaut and Zoning Code. The subject arca is designated fur Orchards and Extensive Agricultural uses by the General flan Land Use Pattern Allocation Guide (LUI'AG) Map. 'flee applicant's proposal to develop agricullutatl lute otte•acie and large' i11 siie i, cottistent with the Gcnetal Plaut Goals. Policies and EXHIBIT F • T. "Dick" Frye, Project Manager ) Oceanside Partners . _6e 2 LUPAG Map. Such agricultural-type of development provides opportunities for a mix of residential and limited-scale agricultural activities. The project site has historically been marginally used for cattle grazing purposes. The applicant is exploring options aimed at integrating agricultural zones on portions of the agricultural zoned lots in a manner that would allow for an efficient management operation for select crops and/or orchard uses. h is anticipated that these agricultural zones will be provided to farmers through a leasing arrangement at a nominal cost initially, with the applicant to provide the necessary infrastructural development to sustain such agricultural activity. Along with the provision of residential sites, the proposed 011C-acre lots can provide opportunities for gardening, hobby activities and reasonable-scaled agricultural endeavors on these marginal agricultural lands. This combination of uses will provide a balance between the agricultural potential of the project site and the residential and commercial uses located in the Kealakekua area: The construction of approximately (00 agricultural tots and related farm dwellings, related infrastructure improvements, trails, signs and landscape improvements associated with implementation of an archaeological preservation program within the Agriculture 1-acre (A-Ia) zoned district will be consistent with the general purpose of the Zoning Code and tine General Plan, provided adequate mitigating conditions are met. The subject request will be compatible with the proposed golf course development in maintaining (he current open character of Else surrounding area to the north, south and west (ntakai) along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of the Housing, Land Use Agriculture, Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic and cultural character of the area, and that the housing, agriculture and recreational use should be compatible with the adjacent areas. Another criteria for reviewing the SMA Use Permit is that, "Tho development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent piacticahlc and clearly cuuweighed by public. health. safety or compelling public intenest. Such :calve, c_ effects shall include, Dili nut limited to. the potential cumulative impact of individual developments, each of which taken in itself might not have a substantial adverse effect and elimination of planning options." The proposed development is part of the Villages at L-lokukano master planned community. The preliminary development plan includes a 27-hole golf course, clubhouse and related facilities, a future members lodge with up to 80-units, au approximately 140 acre coastal pat k, open space elements and community facilities, and approximately 730 agricultural lots with associated dwelling and agricultural uses, including approximately 100 lots within the SMA. • The proposed development is not anticipated to have any substantial adverse environmental or ecological effects. Surveys conducted for biological resources, historic and cultural tcsources, visual impacts, public access and recreation aspects and socio-economic impacts support this conclusion. The goals and objectives of tate SMA with respect to coastal, recreational, scenic, historic and economic mesuurces can be met with an apptoval with conditions. f The proposed project will not have anv adverse impact to et:ltttral or 1tistot i;.,l re:,+urcec within the protect at ca An atcl,aeoloeical tnvrnttorY survey of the cutinc '•mll:,i �•; "Dick" Frye, Project &tanager Oceanside Partners tngc3 at Ilokukauo project site located 408 sites and site cotnplexe.c. Of (his total, 161 of these sites are recommended for preservation, 17 sites are recommended fur selective preservation, and 228 sites arc recommended to be available for data recovery and 2 recommended for no further study. Sites intended fur selective preservation include portion of the Kiakit►i Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the altupua'a boundary walls. Preservation is recommended fur all co►tfir►ned burial sites, all confirmed and probable I►eiaus, and all major lava tubes. The applicant intends to preserve die King's Trail or Ala Loa in its present location, with some modifications, including possible breaches, as approved by the Planning Director in consultation with the State Department of land and Natural Resources (DLNR). Possible burials, if not preserved "as is," will be treated in a manlier as prescribed by the I)LNR-(liswric Ptcscrvation Division. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Plan►ti►►g Department in consultation with the ULNR-1 Iistoric Preservation Division, is recommended prior to the submittal of plans for subdivision review or any land alteration activities. The project site is situated east (nnauka) of the Conservation District which extends along the shoreline and will be retained as a coastal park. The proposed agricultural lots will he (nutter buffered from the shore by the proposed gulf course, which was previously approved by the Planning Commission. Potential negative iutpacts on coastal waters during site preparation and construction can be mitigated (lttough compliance with existing ordinances and regulations. Runoff or discharge generated by the proposed subdivision development which could reach ocean waters can be handled by on-site drainaue improvements meeting with the approval of the Department of Public Works. Wastewater generated by die project will he disposed of within a wastewater treatment system meeting with the approval of the Department of Ilealtlt. To further ensure that no significant adverse impacts to coastal systems are generated, a groundwater and coastal water monitoring plan(s) will be required. Vicwplanes within the area will not be signilicantly affected by the proposed improvements. The visual character of the subject arca and the ;ore;ts directly ntauka will be low profile, with landscaped dwellings integrated with compatible agricultural uses. The coastal area within the State Land Use Conservation District is planned to remain primarily as a natural open space with minimal improvements to support park activities. To further ensure that vicwplanes will not be adversely impacted, all electrical and communication systems will be placed underground with the exception of the 69 KV transmission line front the Matrtalahoa highway to the proposed substation site. Based on the foregoing, the proposed construction of portions of an agricultural subdivision and other related improvements will not have a substantial adverse impact on the surrounding area, nor will its approval be contrary to the objectives and policies of Chapter 205-A, IIRS, relating to Coastal Zone Management and Rule 9 of the Planning Commission relating to the Special Managentent Area. ►pt oval of this request is subject to the following conditions: The applicant, successors of assigns shall be responsible for complying with all of the stated conditions of.approval; T. "Dick" Frye, Project Manager -0 Oceanside Partners .ge 4 2. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or relating to or connected with the approval of this permit. 3. The effective date of this Special Management Arca Use Permit shall be the effective date of the Change of Zone. 4. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by (he Planning Director, in consultation with the Department of (.arid and Natural Resources-1-Iistoric l'tescrvaticn Division and Hawaiian comnarrrity organizations, prior to submitting plans for plan approval review. The Plan shall consist of three subplans; (A) an archaeological data recovery plan for the sites to undergo data recovery, (I3) a detailed interim protection/preservation plan for the sites to undergo preservation, and (C) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns ivlticlt may be submitted at a later date. Approved mitigation ateasuies shall be implemented prior to or in conjunction with any land alteration activity within the project area. The flan shall also include a detailed map of known lava tube/cave systems located within the project site and mitigative measures to ensure that the proposed development does not impact these cave systems. 5. Should any unidentified sites or remains, such as lava tubes, artifacts, shell, bone or charcoal deposits, human burials, rock or coral alignments, pavings or wall be encountered, work in the affected arca shall cease, and the Planning Director immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. 6. A Natural Resources Management Plan shall he subnritmed for review and approval by the Planting Director, in consultation with fire Department ol Land and Natural Resources, prior to securing Final Subdivision Approval. • 7. A detailed drainage study shall he prepared by the applicant fur review and approval by the Dcparuncitt of Public Works prior to submittal of phots (or Subdivision Approval review of the agricultural subdivision. A drainage system shall be installed meeting with the approval of die Depattrrrent of Public Works. pricer to securing (sinal Subdivision Approval. 8. Use of pesticides and het bicides in conjunction with all phases of operation shall conform with the applicable regulations of the appropriate vovernurcmt ,Dent i• . R. T. "Dick- Frye, Project Manager ') Oceanside Pat triers . 5 9. During constructions, measurer. 'II be •::I;cn W minimize the potential of both fugitive dust and runoff sedinti tion. Such measures shall be in compliance with construction industry standard• ,d practices utilized during construction projects of • the State of Ilawaii. JO. Prior to Final Subdivision Approval of any lands within the project site, an overall monitoring plait on the potential pollution of groundwater and coastal waters shall be submitted to die Planning Director fete approval in consultation with the State Department of Ilcaltls. 11. All electrical and communication utilities and systems witltinn the project site shall I,c placed underground, with the exception of the main 69 KV transmission line from the lvlausalalwa Highway to the proposed electrical substation site. 12. A wastewater disposal system shall be cous(ruc(ed in a manner meeting with the approval of (lie State Depatttnen( of Ilealth and/or the Dcparuttcnt of Public: Works, whichever is applicable. l3. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this pestnit. The report shall include, but not be limited to, the status of the development and to wha( extend the conditions of approval arc being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports arc not required. 1'I. Au extension of time fur the performance of conditions within this permit tnay he granted by the Planning Diteclor upon the following circumstances: (A) (lie non performance is the result of conditions that could not have been foreseen ur arc beyond the couluol of Ilie applicant. succcssms or assigns, acid that are not the result of their fault or negligence; (II) granting of die time extension would not be contrary to the Central Platt or Zoninng Code; (C) granting of the time extension would not be contrary to die original reasons for the granting of this permit, (D) the time extension granted shall he fun a pct iud not to exceed the period originally granted for perforniance (i.e., a condition to be performed within one year may be extended fur up to one additional year). Should any of the conditions not be tact or substantially complied ‘vi(Ii in a timely fashion, the Director shall initiate pioccdures to revoke this permit. is approval dues not, however , sanction'(lie specific plans submitted with the application as they y be subject to clsatsgc given specific code and segulatury requitemetds of the attested agencies. .. T. "Dick- Frye. Project Manager 250 Oc,cansidc Panncrs agc 6 hould you haus any questions. Please feel frcc to contact Alicc Kawaha or Susan Gagorik of the anning Dcpannncnt at 96l-8288. nccrcly, . . e - vrd E. Crook. Chairman Inning Commission ::syw :cxnO1.PC Honorahlc Stcphcn K. Yatnashiro, Mayor Planning Director Department of Public Works Department of Watcr Supply County Rcal Property Taz Division Wcc( Hawaii Office Office of Mate Planning, CZM Program wfbackground Department of Land and Natural Resources, Historic Preservation Division Plan Approval Section Mr. James Leonard/PDR Hawaii ' Department of Hcalth COUNTY OF HAWAII STATE OF HAWAII BILL NO. 373 (D r51-(57----- ORDINANCE 5 tORDINANCE NO. 97 36 AN ORDINANCE AMENDING SECTION 25-88 (SOUTH KONA ZONE MAP). ARTICLE 3. CHAPTER 25 (ZONING CODE) OF THE HAWAJI COUNTY CODE. BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-1a) TO RESORT(V-6.0) AT KEEKEE 2nd, ILIKAHI, KANAKAU 1st and 2nd, and KALUKALU 1st, 2nd and 3rd. SOUTH KONA. HAWAII, COVERED BY TAX MAP KEY 8-I-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION I. Section 25-88, Article 3. Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows: The district classification of the following subject arca situated at Keckcc 2nd, llikahi, Kanakau 1st and 2nd. and Kalukalu 1st, 2nd and 3rd. South Kona, Hawaii, shall be Resort (1-6.0): Beginning at the Northwesterly corner of this parcel of land at a point bearing 300' 33' 20- 399.34 feet from an angle point on the Easterly boundary of the State Land Use Conservation District, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,636.53 feet South and 1,386.52 feet East and running by azimuths measured clockwise from True South: Thence, for the next fifteen (1 S) courses following along the remainder of Grant 1745 to John Cavanah: 1. 226° 00' 604.00 feet to a point; 2. 3 16° 00' 319.00 fcct to a point; 3. 353° 00' 80.00 feet to a point; 4. 16' 00' 290.00 feet to a point; 5. 67' 00' 275.79 feet to a ,o.itt; 6. 157' 00' 5027 feet to a point: EXHIBIT G 7. 67° 00' I44.00 feet to a point.; 8. 337° 00' 174.00 feet to a point; 9. 247° 00' 10536 fcct to a point; 10. 3337° 00' 725.39 feet to a point; I I. 89° 00' 447.00 feet to a point; 12. 157° 00' 238.00 feet to a point; 13. 146° 00' 303.00 fcct to a point; 14. 191* 00' 362.00 feet to a point; ' 15. 182° 4T 30" 255.00 feet to the point of beginning and containing an arca of 14.854 Acres. All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof. SECTION 2. This change in district classification is conditioned upon thc following: A. The applicant. its successors or assigns shall be responsible for complying with all of thc stated conditions of approval. B. Thc cifectuation of thc water commitment rights in the'Kealakckua Source Agreement to thc current landowners of the subject arca with acceptance of the prevailing facilities charge by the Department of Water Supply of thc required water commitment payment shall be in accordance with its "Water Commitment Policy- prior to the issuance of Final Plan Approval. C. Subdivision plans for any portion of the subject arca shall be submitted to the Planning Director and Final Subdivision Approval secured within five (5) years from the effective daft of this ordinance. D. Final Plan Approval for thc proposed development within thc subjcci arca shall be secured within five (5) years from the effective date of this ordinance. E. A wastewater disposal system for the subject arca shall be constructed in a manner meeting with the approval of the Statc Department of Health and/or thc Department of Public Works, whichever is applicable. F. All electrical and communication lints within the subject arca shall be placed underground. - G. A Flood Study of the subjcc:t arca shall be submitted to the Planning Director in conjunction with plans submitted for subdivision or plan approval review, whichever occurs first, for any portion of the 14.8 acre arca. Drainage improvements shall be constructed meeting with the approval of the Dcpart ncnt of Public Works, prior to the issuance of Final Subdivision or Plan Approval for the subject arca. H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision or plan approval review, whichever occurs first. The Plan shall consist of three subplans: • (1) an archaeological data recovery plan for the sites to undergo data tern vc ry; (2) a detailed interim protection/preservation plan for the sites to undergo preservation; and -3- (3) an into prctation plan which shall include buffer zona, signage and long-range preservation concerns which may be submincd at a later daft. Approved mitigation mcasures shall be implemented prior to or in conjunction with any land alterations within the subjcct arca Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate arca shall cease and the Dcpartrncnt of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when the DLNR-HPD finds that sufficient mitigative measures have been taken. �- A Solid Waste Management Plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision or plan approval review, whichever occurs first. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development within the subject arca_ Approved recommendations and mitigation measures shall be implemented meeting with the approval of the Department of Public Works. K. Accesses) to the subjcct arca shall be constructed meeting with the approval of the Depart ncnt of Public Works. The following roadway improvements between Haleki'i Strcct and the 14.8-acre subject area shall be completed in conjunction with the issuance of a certificate of occupancy for any development within the subjcct arca: (I) II c �hannelization and signalization of the project sites Marr a:-hoa Highway-Halcki'i Strcct intersection; .4. (2) the extension of Halekui Street shall be constructed as an arterial along its general mauka-makai alignment, as shown on Exhibit -B-. which phasing of improvements shall be approved by the Deparunent of Public Works. If. before the completion and opening of the entire Marnalahoa Highway Bypass, a portion of said bypass is complctcd and opcncd, and said portion provides a connection to Halcki'i Street, a ban-icadc or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Halcki'i Strcct improvements. The purposc of this condition is to prevent the use of Halcki'i Strcct as a vehicular thoroughfare bcrwccn the existing Marnalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been complctcd and opcncd for general public use; (3) the roadway segment from. the Halcki'i Strcct extension to the subject arca shall be constructed prior to the certificate of occupancy for any development within the 14.8 acre subject arca. Also, the Mamalahoa Highway Bypass shall be constructed in its entirety between the approximate vicinity of Kcauhou 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 Kcauhou and Halcki'i Street shall be completed and available for public use prior to the issuance of a ccrliftcatc of occupancy of the proposed development within the subject arca. L. Infrastructural improvements as required undcr Conditions C. E. F. G, .1, and K shall not prohibit the applicant from participating in a Development Agreement or any other erg mcjt t. gethcr with the appropriate bond, surety or other security deemed acccptablc by the Planning Director, appropriate agencies or the County -5- Council, whichever is applicable, to ensure the provision ofneccssary infrastructural improvements to support the proposed development in a timely manner. M. The applicant shall establish a program for employee housing which shall be submitted for the review and approval of the Planning Director and Housing Agency together with the submittal of plans for Plan Approval for the proposed lodge. The program shall include provisions for on-site or off-site housing for the employees of the lodge in an amount to be determined by a study of surrounding housing opportunities and employee needs. Thc program may also include consideration for othcr alternatives such as rental housing subsidics or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy of the lodge within the subject arra N. The applicant shall make its fair share contribution to raitigatc the potential impacts of the proposed development within the subject arca with respect to parks and recreation, fire, solid waste disposal facilities and roads. Thc amount of the fair share contribution shall be the sum which is the product of multiplying thc,nwnber of units proposed to be developed by the amounts allocated hereinbelow for each such unit, and shall become due and payable prior to final plan approval or final subdivision approval, whichever occurs first, for any portion of the subject arca or its increments. If the subject arca is developed in two or more increments, the amount of the fair share contribution due and payable prior to final plan approval of each increment shall be a sum calculated in the same manner according to the number of proposed units in each such increment. Thc fair share contribution may be in a form of cash. land, facilities, or any combination thereof acceptable to the Planning Director in consultation with the affected agencies. The fair share contribution shall have a maximum corub:ncd value of 57,966.90 per resort unit. Based upon the applicant's representation of intent to develop up to 80 units, the indicated -6- total fair share contribution is 5637,272.00. However, the total amount shall be increased or reduced in proportion with the actual number of lots/units according to the calculation and payment provisions set forth in this Condition N. The fair sharc contribution shall be allocated as follows: 1. 51.94/74 per resort unit for an indicated total of 5155,419.20 to thc County to support park and recreational improvements and facilitics; 2 587.99 per resort unit or an indicated total of 57.039.20 to the County to support fire facilities: 3 543.02 per resort unit for an indicated total of 53,441.60 to the County to support solid waste facilitics; a 55.892.15 per rcsott unit for an indicated total of 5471,372.00 to the Statc or County to support road and traffic iroprovcmcnts. The fair share contributions described abovc shall be adjusted annually beginning three.years after the effective date of thc change of zone, based on the percentage change in the Honolulu Consumer Pricc Indcx (HCPI). In licu of paying thc fair share contribution, thc applicant may construct and contribute land, improvements/facilities related to parks and recreation, fire, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the Planning Director. The cost of constructing the improvements and the fair market vatuc of land contributed rcquircd in Condition K shall be credited against the sum specified in Condition N(4) for road and traffic improvcmcnts. For purposes of administering Condition N. the fair market value of land contributed or the cost of any tmprovcments rcquircd or crude in lieu of the fair share contribution shall be _7_ subject to thc review and approval of the Planning Director, upon consultation with thc appropriate agencies. O. Comply with all applicable laws, rules, regulations and requirements, including those of the Dcparcmcnt of Health, Fire Department and the Dcparo-ncnt of Water Supply. P. Should the Council adopt a Unified Impact Fccs Ordinance s-ctting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited toward the requirements of the Unified Impact Fees Ordinance. Q. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zonc. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports arc not required. R. An initial extension of time for the performance of conditions within the ordinance, with the exception of Condition B, may be granted by the Planning Director upon the following circumstances: (1) The non-performance is the result of conditions that could not have bccn foreseen or arc beyond the control of the applicant, successors or assigns, and that is not the result of their fault or negligence. (2) Granting of the time extension would not be contrary to the General Plan or Zoning Code. -8- (3) Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. (4) The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). S. Should any of the conditions not be met or substantially complied within a timely fashion, the Director may initiate rezoning of the subject arca to its original or more appropriate designation. - SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: // 1 ;3 /. ---4---V OLrja MEMBER, COUNTY OFW HA AJ 1 Hilo, Hawaii Date of Introduction: F bru y 19, 1997 Date of 1st Reading: February 19, )997 • Dale of 2nd Reading: I-larch 7• 1997 Effective Date: Mazda -3 1997 APPROVED AS TO FORM AND LEGALITY -Lf / tet`.-11--Z/ CORPORATION COUNSEL DATED: 3ic;/7 7 -9- 11 ill �_ fairs/MOP ifib -== :::-7. s% lir 11141Pit "II ,0111.1•111111 is„ r a I IIII ..s.;V gli fit ri 1 I „f1I1� :=„z ;;w#4 iirf i IMP E N tValliinill l'''' 11111 • I dir Afig&RV."' ( - /-so - i U ' !' / a • _ , IN • A-S. I /1-I_ r.......:11/1) A-S. A_! _ A-I. a- -C 0 _ ' z I A-I. O a d Ur 1.-..J -C , ..0Z 2 2 p 1.636.53 S " 1.3a6sz E AGRICULTURAL. (A- 1a) Puu ower AS E ) x TO ^-I. RESORT (V--6.0) O ' o �� � AREA: 14.854 ACRES -Pull oHAlr • r�' .,e S E w AMENDMENT TO THE ZONING CODE MENDING SECTION 25-88 (SOUTH KONA ZONE MAP) ARTICLE 3, CHAPTER 25 (ZONING ODE) OF THE HAWAII COUNTY CODE. 131 CHANGING THE DISTRICT CLASSIFICATION FROM GRICULTURAL (A-1a) TO RESORT (V-6.0) AT KEEKEE 2ND, IUKAHI, KANAKAU 1ST ANO ND AND KALUKALU 1ST, 2ND AND 3R0, SOUTH KONA. HAWAII. PREPARED BY : PLANNING DEPARTMENT COUNTY OF HAWAII a--t—..PORTION or [1-11817 7,41:* OGTo6ER v. t1. o r .. tocc ..ac ...• - • • - .- _ lb• c -_,........„, 4. _ x- -rI;_._..:_,-.?:-.rE1 {. �1:� %. •' 1 ,�• - lr rim-736f.4tr e.1i 4:t:' 1 ; `-) .*-.-.. -f0• •� '41,iftailiiir"- --C647',Z."iler -41% / ;'. ' . 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' ' =a •i •- OFFICE OF THE COUNTY CWu( County of i21,-raii _ Kilo , ticwcrr =(� - R- -.,.' 9 D, - s) ' 97 PIE P, 13 ill 2 1 7 ROLL CAL -[E-1.- • --• AYES 1Ar1S-1'11 )duccd By: _ Jean Lie thead-Todd Ari.kIntroduced: February 19. 1997 Chungi X zading: February 19. 1997 Chung X P. istird: February 28. 1997 Lei thead-Todd X Ray x + ARXS: Reynolds X Ir Santangelo X Smith x Tyler X _Yaponz X - 9 0 0 1 ( ROLL CALL VOTE ,d Reading: March 7, 1997 - 1 ayo- March 7, 1997 AYES NOES ABS I EX ncd: March13� 1997 _Arakaki X I Eve: Mardi 13, 1997 Chun. X •hcd Hardt 21, 3397 ' Lei thcad-Todd X IRKS: Ray X Reynolds X I Santangelo X I I Srai th X I 1 - TYler I X I - yagong X 1 8 1 1 I o 1 0 • YEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as ted above. APPROVED AS TO F7 AND LE ITY: 4. DEPUTY CORPORATION COVNSE ••r CIL C>�/R�LtN COUNTY OF HAWAII 11. COUN YCLERK cd/_ ` (his 13 .. � day 19 97 . ..L___ co J-r F H,1 w,A 1 37 3 (Draft S ) -c HEREBY CERTIFY that above Ii . Bill Na_ true and correct copy of the origlo.t Rc/,.,.-„« C-1474/1996/PC-27 now on file in ray office_ Ord. No. ,4-,1.(.EQ „Q_. .G r....-.r. c:—i `� ; / r 4L\ vLk I.. . st."W \\ \ \v. "r `1 - 6) --NP . ' 1 k. • -, , , -, , 1 • , 1... ,. N , . • ,\ .., , , : \ g, 3 . Jii.,:-.. . .v, • \ , sl f 104' ?? .0• A- . ' w U ,. ir,,,,,,,- 1.\\ t. . • a ''. " if-11117 eierill%k II 4' litilS 0* it i\ li 2 ; 4-thtneWlb \ og o L'-i!.i.. rakirlastlit -\ ."n1111014,P, 1 li ' i a' Th5?c.--. itt 191 1. k s .,\ -, i 4* Yei er#t,.: `.i"'re•21- ( 1 1 ‘ e a cliT•6441 iliv, - - $ etitif .0.- , . 146 _ . ergialiaL, ) i ,5';1 S \ r , ingq,sk\i a nNo ,jil ›.= - .hoot- \ , ) ) , : • Miti . LI. ( ( - if: • • ,,, \ ‘iivitilinri itreAr÷ / Wilt Ine":41101*Allt #fit \'' -\ ‘ Nitill% \ -.11411110" --% 1W1 S\ \ iAtiot . ,,t�.mo _ ' ' ) � - �• ifi ... f lA - ...f3 ( K ) IC i p , c.11:170ii lift . *. iL . j \ „ s" ..\ 0 04* I Ilk .6,„.- . . ) --,:).\ ) w.,‘„,„di ." '4 .1%' ii?(icti) 4, 17,4:Uct-t I \, i'. ( -40 . Mr, \-•\.-\ - \‘-, tat Lffia, . % -, `-c. \ ‘4, a 1 ‘,0, -, ' 4% ) ' ) vgipkrtr\- ,_? \;. .. A. , ; , . .s . ‘ ._.. .. : • •:::: r.. ,. , , 'Si. ‘sA\-------,..s. 7 -__1 . . :Ai )1/4 i .1 % ,( ,uuir:i; Q PE ;_ ''s• COUNTY OF HAWAII ,s=- STATE OF HAWAII RESOLUTION NO. 244 9 8 (Draft 3) A RESOLUTION AUTHORIZING THE COUNTY OF HAWAII TO ENTER INTO A DEVELOPMENT AGREEMENT WITH 1250 OCEANSIDE PARTNERS. WHEREAS, the Hawaii State Legislature, under section 46-123, Hawaii Revised Statutes, granted authorization to the County of Hawaii (County) to enact an ordinance authorizing the executive branch of the County to enter into a development agreement with any person having a legal or equitable interest in real property for the development of such property; and WHEREAS, pursuant to 46-123, Hawaii Revised Statutes, the Hawaii County Council enacted Ordinance No. 93-37 (Chapter 30, Hawaii County Code) establishing the requirements for Development Agreements, which ordinance was passed into law on April 27, 1993; and WHEREAS, pursuant to Section 46-123, Hawaii Revised Statutes, and Chapter 30, Hawaii County Code, the County adopted rules governing Development Agreements on May 16, 1995; and WHEREAS, 1250 Oceanside Partners, a Hawaii limited partnership, dba Oceanside 1250 (Oceanside) is the owner in fee simple and lessee of certain lands situated in North and South Kona, Hawaii County, Hawaii,TMK: (3)7-9-12:03, (3) 7-9-12:04, (3)7-9-12:11 and (3)8-1-04:03 (por) (" Property")and more particularly described in Exhibit "A", as modified, of the Development Agreement(Oceanside Development Agreement), which is attached hereto and incorporated herein; and WHEREAS, Oceanside or its related entity, affiliate or subsidiary, plans to develop the Property and has submitted a development agreement and application to the Office of the Mayor; and WHEREAS, Oceanside's development will provide many public benefits to the County through the zoning, Special Management Area conditions of approval, and the imposition of on- and off-site development requirements; and WHEREAS, pursuant to Section 30-5(d), Hawaii County Code, the Mayor, through the Planning Director, has submitted a final draft of the Oceanside Development Agreement to the County Council for its action; and WHEREAS, pursuant to Section 30-4(b), Hawaii County Code, the Mayor may enter into development agreements on behalf of the County; and EXHIBIT Z WHEREAS, pursuant to Section 30-5(1), Hawaii County Code, a public hearing was held by the County Council on March 18, 1998 and continued on March 30, 1998 at the Kona Surf Resort and Country Club, which is located in the Council district affected by the proposed development. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the provisions of the Oceanside Development Agreement are consistent with the County General Plan, as amended. BE IT FURTI-IER RESOLVED that the County Council hereby approves the Oceanside Development Agreement as submitted in accordance with Section 30-5(d) of the Hawaii County Code, and as further modified by the County Council. BE IT FURTHER RESOLVED that the Honorable Stephen K. Yamashiro, or his designee, is hereby authorized to execute said Oceanside Development Agreement, as modified, on behalf of the County. BE IT FINALLY RESOLVED that the County Clerk is hereby directed to forward copies of this Resolution to the Honorable Stephen K. Yamashiro, Mayor of the County of I Iawaii and 1250 Oceanside Partners. Dated at Hilo, Hawaii this 1st day of April ,1998. INTRODUCED BY: G'(>ifi ; ;.t/1 COUNCIL MEMBER, COUNTY OF I IAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawaii ARAKAKI X (HUNG X reby certify that the foregoing RESOLUTION was by the LEITH EAD-TODD X icated to the right hereof adopted by the COUNCIL of the RAY X of Hawaii on April 1, 1998 • REYNOLDS X T: SANTANGELO X SMMITtt X TYLER X YAC:ONG X 8 1 0 0 Reference C-7 5 9 . 10 FY CLERK . HAIRMAN & PRESIDING OFFICER RESOLUTION NO. 244 98 (DRAFT r :,,, . ...r<p*, ." ". ; 1 r i s 71•. - .44run6iiv. "•••14 :7.0"\ -., v. :. „., . , .. . .,- . • 0,......47-7-...,,-.. ..,.....„.7. ,:• .., , ., .., : •_, , ..k:•A • J.,,-. 4":1'4.0,fy Ici i., 1 '., .,y-i ..,.. .a... . • ,. .. 1.4.1:. ...-.: ,s .:,!.r.;„ • 7,.... ...• • _4, ..,.. . •• . ;.1 ••„-•, , 0 . •••• Yer �.• � A MTS. •r, i v � i 41 • 1;-...:::-:::, .. %'}rpt • l :•• ,' ` • ;; •a '��r'+4 •-- -• • •: . all ` -:::', �._ .r:.�F tv�:...� : �•L. \i„-:-..a ; _�. -• •rsi : 'i w ( • •• b'•.`- - KA:::-,t42; .. 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A91 ..., MI r..,— • le " :f' 14 .::::_, ...:, ..:./!1;i1:..... \ .. :, ).... k k , ` f, ---„,__Hl i k , • /: . : -(.1-, • 7.1 : .....: r; .: ( .:... • • • a` li • • 0 ♦ _ ; J)I - 1 I I 1 ' ...1 ••••.) I �i 1 1 8- 7-041:03i♦� F v . % 2 . : . •,...414:41.> 1141;• it___ • O. -- �� FEE 'AC f 1: 0- o ? ..10.K." 1 .....r . 'I . •. i Y ` x J I e7. A .11 t L 1 • LEASE AREA EXHIBIT K U • • • • • • • • • • • • • LAND COURT SYSTEM ter Recordation. Return b REGULAR SYSTEM Y Mail ( ) Pickup ( ) ACKERMAN RANCH INC. P. O. BOX SSS TG : ACCOM KEALAKEKUA, HI 96750 TGE: 881010819 4TTN: JAMES J. ACKERMAN LILY BRUME 'LE OF DOCUMENT: MEMORANDUM OF DEVELOPMENT LEASE TIES TO DOCUMENT: ACKERMAN RANCH, INC. , Lessor LYLE ANDERSON, Lessee 'ERTY DESCRIPTION: LIBER/PAGE: DOCUMENT NO. : . TRANSFER CERTIFICATE OF : TITLE NO(S). : EXHIBIT L MEMORANDUM OF DEVELOPMENT LEASE THIS INDENTURE made this rXt day of ( l.(/c/ 19 sI by and :ween ACKERMAN RANCH, INC. , a Hawaii corporation, (hose principal place of isiness is in Kealakekua , Hawaii and whose post office address is 0. Box 555, Kealakekua, Hawaii 96750, hereinafter called the "Lessor", and 'LE ANDERSON, husband of Kerri Anderson, whose principal place of business d post office address is 7373 N. Scottsdale Road, Suite C226, Scottsdale, izona 85253, hereinafter called the "Lessee". WITNESSET H: That in consideration of their mutual covenants and agreements , the ssor does hereby demise and lease unto the Lessee, and the Lessee does reby accept and lease from the Lessor the property described in Exhibit "A" [ached hereto (herein the "Property") ; TO HAVE AND TO HOLD the same for the term and upon the rents , 'enants, agreements and conditions contained in that certain unrecorded 'elopment Lease between the parties dated as of July 28 , 1989, all of the )visions of which are incorporated by reference. This Memorandum of Lease is executed for the purpose of giving notice the existence of the Development Lease. Reference is made to the •elopment Lease, as it may now or hereafter be amended, for the full cription of the rights and duties of the Lessor and the Lessee. This lorandum of Development Lease shall not affect the terms and conditions of Development Lease, as now or hereafter amended, or the interpretation of rights and duties of Lessor and Lessee under the Development Lease. The Development Lease further grants to the Lessee the following hts, privileges and powers: DEVELOPMENT OF PROPERTY (1 ) Permits and Governmental Approvals. The Lessee may file all lications and take all actions necessary or desirable to obtain lassification under the state land use law and changes in or variances of zty master and development plans and zoning for all purposes and uses witted the Lessee under this lease; seek subdivision and consolidation -ovals and permits required for the initial subdivision of the Property and ;equent subdivision and development of the Premises; and seek grading , .ding and other permits necessary for the demolition of existing -ovements and the construction of new improvements on the Premises. The ;or will join into, cooperate with, support and assist the Lessee with all ications for such reclassifications, changes, variances , zoning , ivisions and permits provided that the Lessee pays all costs as described e. The Lessee shall not be required to -pay any money to or for the Lessor btain the Lessor's cooperation. If and when requested by the Lessee, the or shall execute all applications, consents or other such forms or ruments necessary or desirable to accomplish any of the aforesaid, uding, without limitation, obtaining governmental approvals or permits. -2 (2) Dedications by the Lessor. From time to time during the development id subdivision of the Premises and upon receipt of written request from the .ssee, the Lessor will, without the payment of additional compensation, •dicate from the Premises such streets, parks and other improvements for iblic or private use as reasonably designated by the Lessee in connection th the development of the Premises , convey portions of the Premises to such blic utility companies , governmental agencies or improvement districts as e Lessee shall reasonably designate , including without limitation the well to within a portion of the Property described in Exhibit A, and grant any sements which the Lessee reasonably deems necessary for the respective rvices . The Lessor shall not encumber its interest in the land or this ase in a manner which shall interfere with such dedication. (3) Power of Attorney. The Lessor irrevocably, for the term of the ase, makes and appoints the Lessee (and his successors and assigns ) his Corney-in-fact to do and accomplish for and on behalf of the Lessor the llowing: (a) In order to facilitate the applications, actions and approvals described in Paragraph A(1 ) above to sign and deliver any document requiring the Lessor's signature that is related to matters before the Hawaii County Planning Commission, the State Land Use Commission, the Real Estate Commission of the State of Hawaii and any successor to such agencies or other administrative agency from which approvals or permits are required for land use changes, zoning, subdivision or development of the Premises, provided that all plans are in accordance with the uses permitted in Paragraph B below; (b) In order to facilitate the actions described in Paragraph C(1) below, to join in, sign and deliver the declarations , bylaws and other instruments and amendments thereto and to sign and deliver apartment leases to the extent the Lessor is required to do so by the provisions of the Development Lease; and (c) In order to facilitate the execution and delivery of the covenants , conditions and restrictions described in Paragraph C(2), to sign and deliver the documents containing such covenants, conditions and restrictions. (d) The power provided for in (b) and (c) above shall be exercised only after the intended action has been submitted in writing for review by the Lessor and has been approved by the Lessor in writing or the Lessor has failed to respond either approving or disapproving the proposed action within 20 days of receiving the submittal; provided, however, that no third person shall need to confirm that such approval was obtained in order to rely on an exercise of the power by the Lessee. 'equested by the Lessee, the Lessor (and its successors and assigns ) shall ver separate, executed limited powers of attorney containing the same rs and authority described above. -3- USE OF THE PREMISES (1 ) Specific Use Allowed. The Premises shall be occupied and used by the ssee for grazing, agriculture and any uses consistent with the "Urban" State nd Use Classification and the Hawaii County Alternate Urban Expansion signations, including residential and multi-family residential uses , private .ibs , resorts, commercial uses , public or private support facilities , golf lrse, parks and all other similar urban uses. CONDOMINIUM DEVELOPMENT, CONDITIONS, COVENANTS AND RESTRICTIONS (1 ) Submission to Condominium Property Regime. If requested by the ;see, the Lessor will join into a declaration of condominium property regime leclaration"), bylaws and other instruments required by law to subject such Lcts as specified by the Lessee to the Condominium Property Act , Chapter IA, Hawaii Revised Statutes , or any successor law, in order to establish a izontal property regime for any of the uses permitted under this lease. Lessor agrees to assent to amendments of the declaration and bylaws of the ject and the apartment lease requested by the Lessee, including , without citation, requests made in order to comply with Law or to incorporate nges which are reasonably required by a mortgagee under a loan commitment finance the construction of improvements or the purchase of apartments , vided amendments required by mortgagees do not substantially and adversely ect the Lessor's interest under this lease or any replacement lease, or in Premises. With respect to apartments for which no apartment lease has n issued, the Lessee shall be deemed to be the owner of the apartments for purposes of the declaration and bylaws and shall have all rights , vileges and obligations of an owner, including membership and vote in the ociation. Apartment leases may either be direct leases from the Lessor or leases under this lease. (2) Covenants and Restrictions; PUD. The Lessor will also, from time to join with the Lessee in submitting Tracts or the Premises to covenants , iitions and restrictions not inconsistent with the Development Lease which tide for the development of the area in an orderly and aesthetically ising manner and for the maintenance of common areas by a community )ciation or provide for development of portions of the arca as planned unit :lopments. In order to facilitate the execution and delivery of such :pants, conditions and restrictions, the Lessor will irrevocably appoint Lessee as its attorney-in-fact to sign and deliver such documents raining any such covenants , conditions and restrictions. TRANSFERS (1) Assignment and Subletting. The Lessee may assign or sublet or part • possession of all or any part of the Premises without the prior written ent of the Lessor, provided, however that (i) no assignment or sublease of portion of the Property to be surrendered to the Lessor upon Initial ivision (as defined in the Development Lease) shall be made, and ( ii ) no gement shall be permitted during the initial five years of the term out the Lessor's prior written consent except an assignment to an liate of the Lessee or a partnership in which the Lessee or his Affiliate a general partner. Upon any assignment or sublease to an Affiliate or ird-Party, a true copy of the assignment or sublease shall be promptly livered to the Lessor. Upon an assignment of this lease to a Person whose t worth and financial condition is substantial given the nature and the tent of the obligations to be assumed by the assignee, the Lessor shall lease the Lessee from all further liability under the lease with respect to portion assigned. (2) Partial Assignments. The Lessee may assign the lease with respect to Tract or Tracts on the same conditions as are stated in Paragraph D(1 ) , ,vided that (i) if the Tract is not a Developed Tract , the Minimum Annual A under the partial assignment shall be in the proportion that the area of Tract or Tracts so assigned bears to the area of Premises immediately or to assignment, and (ii) if the Tract is a Developed Tract at the time of ignment, the rent shall be determined in accordance with the Development se. (3) Consent to Mortgage. The Lessee may from time to time without the sent of the Lessor mortgage this lease to any lender as mortgagee, or ome the beneficiary of carryback financing liens with respect to the sehold interest in connection with assignments of all or portions of this se. (4) Notices. After receipt of an executed copy of a mortgage of the ;e, the Lessor shall send the mortgagee a copy of any notice sent by the ;or to the Lessee pursuant to this lease. (5) Enforcement of Mortgage. A mortgagee of this lease may enforce its :gage and acquire title to the leasehold estate in any lawful way, and ling foreclosure of the mortgage (or pending sale of the lease in lieu of :closure of the mortgage) , may take possession of and rent the Premises . i foreclosure of the mortgage or assignment in lieu of foreclosure the gagee may, without consent of the Lessor, sell and assign the leasehold to by assignment in which the assignee shall expressly assume and agree to rve and perform all the covenants of the lessee under this lease, and such gnee may make a purchase money mortgage of this lease to the mortgagee or other Person provided that a true copy of the executed assignment and any gage shall be delivered promptly to the Lessor. The mortgagee or any nt of the mortgagee pending foreclosure shall be liable to perform the gations imposed on the lessee by this lease only during the period such on has possession or ownership of the leasehold estate. Nothing contained he mortgage shall release or be deemed to relieve the Lessee from the full faithful observance and performance of any covenant and condition lined in the lease and on the Lessee's part to be observed and performed From any liability for the nonobservance or nonperformance of such tants or conditions nor a waiver of any rights of the Lessor under the e. Should there be any conflict between the provisions of this lease and mortgage, the former shall control except as hereinabove set forth. .6) Protection of Mortgagee. The Lessor will not exercise the Lessor 's . to terminate the lease with respect to all or any portion of the ses because of any default by the Lessee under the lease if the mortgagee -5- 1r its assigns, within one hundred twenty days after receipt of written notice rom the Lessor of its intention to terminate the lease for any such cause, hall cure such default if the default consists of a failure to make any ayments required under the lease. Notwithstanding anything to the contrary n this lease, whenever the leasehold interest is encumbered by a mortgage or eed of trust, this lease shall not be subject to termination with respect to he entire Premises or any portion of the Premises for any default that does of consist of a failure to make any payments required under the lease, but he Lessor shall continue to have its remedies under the lease as well as the emedy of injunction when irreparable harm is threatened. Upon foreclosure ale of this lease or assignment in lieu of foreclosure, the time for erformance of any obligation of the Lessee then in default not consisting of le failure to pay money shall be extended by the time reasonably necessary to )mplete such performance with due diligence. The ownership by or for the une Person of both the fee and leasehold estates in the Premises shall not 'feet the merger of those estates without the prior written consent of any >rtgagee affected by the merger. (7) Lessee's Bankruptcy. If a bankruptcy proceeding is commenced by or ainst the Lessee, the mortgagee shall have the option and the Lessor shall cognize the mortgagee's right , within the statutory period , to obtain or use the Lessee or the trustee in bankruptcy to obtain (i) an abandonment of e leasehold estate by the Lessee or the trustee in bankruptcy pursuant to e provisions of the Bankruptcy Code, or any successor law having similar feet , or (ii) an assumption of the lease pursuant to the provisions of the nkruptcy Code, or any successor law having similar effect. The Lessor reel to extend the limitation period for the trustee to assume or reject the ase for a period of not more than sixty days. All such extensions are on e continuing conditions that all rent and other charges under the lease are id when due. (8) New Lease. If this lease shall terminate prior to the expiration of term (whether due to bankruptcy of the Lessee, operation of law or lerwise), the mortgagee (or the senior mortgagee, if there is more than one) X11 have an option to obtain from the Lessor (i) an instrument recognizing, 'firming, and giving legal effect to the continued existence of the lease m "Lease Confirmation"), or (ii) a new lease of the Premises demised by the se in favor of the mortgagee or its designee (the "New lease") upon the lowing terms and conditions: (a) Within sixty days after the mortgagee receives written notice from the Lessor of the termination of the lease, the mortgagee shall make a written request to the Lessor for a Lease Confirmation or a New Lease, and the mortgagee or its designee shall enter into the applicable document within thirty days after receipt of the document from the Lessor. (b) As a condition to and upon the execution and delivery of the Lease Confirmation or the New Lease, the mortgagee shall pay to the Lessor (i) any and all sums which are then due under the lease (whether or not terminated), (ii) all expenses, including advances made under the lease to protect the Premises and reasonable attorneys ' fees incurred by the Lessor in connection with the Lessee 's default, the rejection or termination of -6- this lease and the recovery of possession of the Premises and all expenses incurred in the preparation, execution and delivery of thei)Lease Confirmation or the New Lease. (c) The New Lease shall have a term commencing as of the date of termination of the lease and coinciding with the remaining term of this lease and be at the same rent and upon the same terms, covenants and conditions as contained in the lease , as it may have been amended prior to the date of termination, except that the New Lease shall contain the promise of the lessee to indemnify the Lessor from and against all claims , demands or liability for loss or damage arising out of or in connection with the issuance of the New Lease and to reimburse the Lessor for its costs and expenses, including reasonable attorney's fees, incurred in connection with the defense of any such claims , and the five year provision in Paragraph D(1 ) shall not be applicable to the New Lease. (d) Concurrently with execution of the New Lease, the Lessor shall assign to the new lessee Lessor's interest in and to any existing subleases , if applicable, the subtenants of which have attorned to and been recognized by the Lessor. During the period between the termination of the lease and the execution of the New Lease, the Lessor shall not amend or modify the subleases or take any action with respect to the demised Premises which will impair the property which is the security for the mortgage. (e) The Lease Confirmation or the New Lease shall have the same priority with respect to any mortgage, lien, charge or encumbrance on the fee of the Premises as the lease had immediately prior to its termination, and the lessee under the New Lease shall have the same right, title and interest in and to the Premises and the buildings and improvements thereon as the Lessee had under the lease immediately prior to its termination; provided, however, that the Lessor makes no representations, warranties or covenants with respect to encumbrances, liens or other matters not within the control of the Lessor that impair or may impair the lessee's right, title and interest under the New Lease; (f) The mortgagee, if it is the initial new lessee. may assign the New Lease without the Lessor's consent by an assignment in which the assignee shall expressly assume and agree to observe and perform all the covenants of the lessee under the New Lease, and such assignee may make a purchase money mortgage of the New Lease to the mortgagee. A true copy of the executed assignment and any mortgage shall be delivered promptly to the Lessor. No other or further assignment or mortgage of the New Lease for which the written consent of the Lessor is required shall be made without such consent; (g) If the mortgagee shall demand a New Lease, the Lessor agrees, at :he request of, on behalf of, and at the sole expense of the mortgagee to join in any proceedings (and if required by law, such )roceedings to be brought in its name) to oust or t emo e� ny the o peita original .essee from the Premises, but not any subtenants actually occupying the 'remises who have attorned to and been recognized by the Lessor. -7- (h) The provisions of this Paragraph D(8) are intended for the exclusive benefit of the mortgagee or any Person acquiring the Lease upon or in lieu of foreclosure of the mortgage and is not intended to and shall not be deemed to, confer any rights or benefits upon the Lessee or the Lessee's trustee in bankruptcy. (i) Mention of this Paragraph D(8) may be placed of record, and any and all mortgages or other liens , charges or encumbrances on the Lessor's interest in the Premises arising after the date of recordation or filing shall be subordinate to the provisions of this instrument. Any New Lease issued pursuant to the provisions of this instrument shall be prior to any such mortgage or other lien, charge, or encumbrance to the fullest extent permitted by law. (9) Amendment or Surrender of Lease. During the continuance of a rtgage of which the Lessor has notice, no agreement hereafter made between e Lessor and the Lessee amending, correcting or surrendering the lease shall effective without the prior written consent of the mortgagee. (10) Liability of Mortgagee. (a) No mortgagee of this lease shall be or become liable to the Lessor as an assignee of this lease or otherwise for the payment or performance of any obligation of the Lessee until the holder expressly assumes by written agreement the payment or performance of such obligation. No assumption of liability shall be inferred from or result from foreclosure or other proceedings in the nature of foreclosure or as a result of any other action or remedy contained in a mortgage, or from a conveyance or assignment pursuant to which any purchaser at foreclosure shall acquire the rights and interests of the Lessee under the terms of this lease. (b) The Lessor and the Lessee agree for the benefit of any holder of a mortgage of this lease that they will not subordinate this lease to any mortgage that may hereafter be placed on the fee interest in the real property which comprises any portion of the Premises or amend or alter any provisions of this lease or consent to any prepayment of any rental or additional rental without securing the written consent of any such mortgagee. WELL SITE OPTION (1) During the lease term, the Lessor grants the Lessee an option to lire twenty thousand square feet of land on the portion of the Property -endered to the Lessor upon completion of the Initial Subdivision to be I expressly for the purpose of a potable water well. The exact location of well site will be as mutually agreed upon so as not to unreasonably !rfere with the use of Lessor's property when and if the Lessee determines a well on the Lessor's mauka property is desirable for the Lessee 's )oses in developing the Premises. The Lessor understands that in order to :in potable water, the Well Site must be located at an elevation which is mated to be between nine hundred and twelve hundred feet above sea level . -8- 3 ie Lessee shall have the right to assign this option for the Well Site to the iter Commission of the County of Hawaii and either the Lessor or the County Hawaii shall have the right to develop a water well with associated squired facilities on the site. In addition to the Well Site, this option ►all include the right to easements for access , electric transmission lines id water transmission lines from the Well Site across the Lessor's property water storage facilities to be built on the Premises or other property of e Lessee. Access to the Well Site shall , to the extent reasonably possible, across the Lessee's property. The Lessee (1) shall pay all expenses sociated with the conveyance and development of the site, (2) shall covenant at any intrusion and disturbance to the Lessor will be minimized, and (3) ter construction, shall restore the Lessor's land surrounding the Well Site d transmission lines to even grade and good condition to the extent asonably possible. The Lessor agrees to cooperate with the Lessee, his ents and the Water Commission of the County of Hawaii in the selection, Ddivision and development of the site and to give reasonable access for the astruction and maintenance of the facility. Access to the Well Site and )urtenant easements and rights of way by the Lessee shall be limited to -poses reasonably related to the construction, use, operation, maintenance, )air and replacement of the well , electric and water transmission facilities ! appurtenant facilities. Any determination that this Paragraph E is 'alid or unenforceable shall not in any respect affect any other provisions this lease. (2) The consideration to purchase the Well Site shall be $4,590.00. consideration shall be paid in cash upon acquisition of title. FIRST REFUSAL TO PURCHASE. (1) If the Lessor shall decide to sell in whole or part its interest in Property or shall receive a bona fide offer from a Third Party to purchase or a portion of the Lessor's interest in the Property which the Lessor is ling to accept , the Lessor shall first give written notice to the Lessee, :h notice shall state the price, terms and conditions upon which the Lessor =rs its interest in the Property for sale (which price, terms and iitions shall not vary from those of any bona fide. Third-Party offer to :hale) and which notice shall contain a true copy of the bona fide offer, .uding the offeror's name and address. Such notice shall constitute an :vocable offer to sell such interest to the Lessee on the same terms as :ained in the notice from the Lessor. If within sixty days from the .ipt of the Notice the Lessee shall agree in writing to purchase the land the Lessor, the Lessor must sell and transfer the land to the Lessee upon terms and conditions set forth in the notice. If the Lessee does not e in writing to purchase within the sixty-day period, the Lessor is free ell and transfer the land to a Third Party, provided, however, that the or shall not make such a transfer at a price or upon terms or conditions favorable than those upon which the interest was first offered to the ee. If the Lessee agrees to purchase the land, the purchase shall be unmated within sixty days after the date of acceptance by the Lessee, ect to extensions for matters beyond the control of a party. If this e expires or is terminated in any manner or for any reason, all rights of -9- l 'we Lessee under this Paragraph shall cease, provided, however, that the first !fugal right shall continue with respect to lands surrendered to the Lessor lrsuant to the Development Lease for the balance of the lease term. This ight may not be assigned separately from the Development Lease. This right wall not be exerciseable by the Lessee if he is in default hereunder either the time the notice is given to the Lessee or on the date for closing the file. This right does not extend to transfers to the descendants of James and -ace Ackerman, but upon such transfer, this right in favor of the Lessee tall be binding upon said descendants in all respects as it was binding upon le Lessor. IN WITNESS WHEREOF, the parties hereto have executed these presents e day and year first above written. ACKERMAN RANCH, INC. , a Hawaii corpor tion B (:4-97((-, eY /1 !c - Its President BY it j/1/7/le- �1,f144 er- s Secretary-Treasurer Lessor i( ./ /irt.ztA,/,--- LYLE I,RSON "Lessee- -10- ATE OF HAWAII ) ) SS. LINTY OF HAWAII ) On this -X. dayof -(om , 191') , before me appeared A. ACKERMAN and GRACE B. ACKERMAN, to me personally known, who, being by me ty sworn, did say that they are the President and Secretary-Treasurer, :pectively, of ACKERMAN RANCH, INC. , a Hawaii corporation, and that the seal .ixed to the foregoing instrument is the corporate seal of said corporation I that said instrument was signed and sealed in behalf of said corporation authority of its Board of Directors, and said officers acknowledged said trument to be the free act and deed of said corporation. >G' (14 Notary Public, State of Hawaii My commission expires : I -/.q-$y T OF ARIZONA . ) TY OF �p�(1 d } ) S S. On this day of( -J , 192a, before me personally ared LYLE ANDERSON, to me knee the person described who uted the foregoing instrument, and acknowledged that he executed the dsame is free act and deed. -- (-1\fir\A : 6.1).\.11S) (I. Noary Public, in and for said County and State My commission ex. ' ; d ` �My _ -ll - EXHIBIT "A- All arcels (onuaina 4th and those certain Honuaina3rd, North of Kona ,rd Hawaii ,at de no ate , , the Tax Maps for the County of Hawaii as Tax Ma designated n -9-12 : 5 (approximately 246 . 75 acres) , 7-9-12 : 4 P Key Nos . 7 . 4 acres) , 7-9-12 : 11 (approximate) 22 . 664 approximataly -9-06 : 01 (approximately 60 . 546 acres) , togethercrwit and h uildings, gates , fences , waterlines and other improvements all xisting thereon . is now SUBJECT, HOWEVER, TO: 1 . Reservation in favor of the State of Hawaii of 11 mineral and metallic mines . 2 . Unrecorded lease dated January 31 , 1981 , between :kerman Ranch, Inc . , as Lessor , and Kealakekua Ranch , Ltd. , as :ssee, expiring on January 31 , 1991 . 081689 7052H w V) CC WD cn o LU c U W O W o CCUv) U Z W CO O cn m OL W U Q D WF- CD V) 7 C W ---1 F- /- CD 2 - I Q Q cn < < Q co m -4• oo co R z -co Co' _0 . P 0 W ccnn b3 = V) co II s%; >-- 2 iv\ f Q i � "` Q ON # IIII N / > N i;; V) cn Q 1,% 1--- CC f�, Z 140 A0 >-- 0 %0 CO cn O % o LN % I III 1 CO 1 N = 1 ' d Q. I- )._ ..__.- I__. W & W cr ~' D - cr W O N _J> - U3 U U _ >- cn CO X• a O u p N -COWti- I m tD W --1Z � in a Q FO- Q E5 C' _ !• d N IL I-- -up O - < CD CC N (Co 0 w CC CC 4 C r._ ( Cr)WD a- t- D 1- DU U0 1-1-i O W _ , 0 UU UU (n N Z U Q - - Z w co - Ct O O cn CO U < U < D 1-- CO I- 1.1.1 m (n J J I— J 1-- F- < J Q 1 < Q J J � = Q Q U) n- < a U) U) < u) Q Q < CO < CO m i/ N cD .� 00 cD z II% O J `` I to 1i' W N z j1 N 2 N � IA }- Q CO IA 0 'IAW W N 11 N > I '' LO 1 (n Q tIA V) Nz '°` 06 CLiQ o P > F- 6 o = 1 CO (/) (1) i w J Q (I) cr N 0 X 4 cc OG U- ui N• a e tD Mr. Richard Frye Oceanside 1250 74-5620A Palani Road Suite 200 Kailua-Kona, Hawaii 96740 Re: TMK Nos: (3) 7-9-12: 04 (3) 7-9-12: 11 (3) 8-1-04: 03 (3) 8-1-04: 56 Dear Mr. Frye: This letter is to acknowledge that 1250 Oceanside Partners, a Hawaii limited partnership, dba OCEANSIDE 1250 has obtained or acquired ownership or control of the Right(s)-of-Way for the entire length of the Bypass Highway and has satisfied the requirements as described in Paragraph 13 of that certain Development Agreement dated entered into by and between OCEANSIDE 1250 and the County of Hawaii. OCEANSIDE 1250 is hereby released from all further responsibilities and obligations with respect to said segment of the Bypass Highway. Very truly yours, COUNTY OF HAWAII EXHIBIT N -a~� /— ��^ _ `moi- 1�— _ • . _ / !-_i `. _ - - �_ \ 1.J �1 � .7--1,..-_ilv_ l, • - o- - ..- Cmo` ���- J: - i .,` -- • • .°: - `�:'.� _' _ �' c ..wahxy -1-:.-=--'-'.' '', - em -, -,,. , . ,.. , ,.,...,,, ,..,,,1- ....a -- ------- :;_,-..! -• ! r y h. V ►Z`� i it _ p • `: ' I" -tel• ...--• y. .�•►- .•.- +..d� \.� `.411N. --,";:r.)--:1-1--• a%?."• -...- •- ' _ \ G• �-fir_ �L' a.'�i - , ` .\ •�' �_ _�•�` �[sgw sN. em .%• 44,�. • -i'v�• - r `_ _ r 'fie .,4.1,�a� i L -- •,, �' L=2c'' - .. , - • .• a 4"140 .. � _- s • Ii. `..•/ �_ . '_�e ` `rte J`� \ +s 4,,J - C • _ _ J ,:5�!!M; � +syyl _ ,� wa b�K,.v �� B' }p}p��� '�yy�'�J � to d � C=.• �. ,s,���•- ��' ' ,i. ! _ �� �` r ,trK • '• ` t , P • r: r . � i. Y .,E- \ i —a • � ` _ ' � *Ci.:1:\-...7.: .''‘`•• ) i • r•ok - Ck 1 ' :. • I t wilkl .4 tom- 'r * t _, - _- T• • `•.1 - e . 4 ..t • /, EXHIBIT o Allocation of Fair-Sha sessments for the Proposed Mam 3 Bypass Road `Ion 0. .y gyp a, Q' .4;4©`ted J�� ! Y •VI • i fS rn 0 3 o CC O m f0 U c roc Q� m U O � za a i4 tis Q z Q Yo P`7ia�m r A 4' o O m ea� d O a7 0.% 00, ` OUB 11. w ocvm I ccz 0 % SUS >• y .c of co OrIal Xi'c o , oU-e ` o o C D'O m Fo.c-0 cd C O co•>t O Y 2UwU - • Ni n cn1,„ A eAO �y tI tl.,► fIlli, I �° 7. a o E m 1. itioill,,,, ONS CKERHOFF EXHIBIT P t...7•- - i •' I 1' : .2".t.. \:•',-7•'::.""•;.. ... 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( 7. •`- (('y , i-•--Z 1.... - r __,...... 1 ........„......isti. •• _,...._....,.....,,..1.. ..,.."....,,.... _,............ :,..„..., _.,747,..„„......v,.. ..„ ., _ . . . . • _ _ _. ,..t ,__:...„, . .... . ,4 .,t,.-,h.,4„--_- .... , ....,.. ...,/nt. , .. . _ --. 1... .. • -,...-....., -ei,: -'•`•_ .\. -i ,-%c 1\..-`.,----- tis, �g lec .•- ...,-,......A...,...... l ,' .-• > _ .uC. ..ynoana.c �. tw� �}/ �- n., -- " i� Ilitrdrigr s � � _ t `� 1 [J ; - .= :i NC. �, .\• _ • _ ' tt �-•' P►..T.„,,,..4.-.._. ...,.....„4,, a1MI” S BC . -. - � �S)� �.-- t - •,..�(I�' A . _w•.e`:2:p4,`,...„*"a �a�` l•,\- _r " 1� '',•-•:::.',--- -- • sr � �` `' �`v -/\ :_LY., k.-�,`i_'�,„--... Q ...,.':.4... .- _ �ksVtr T , 43'� 7 P • *As revitA.,„„ � \ < f s..L., •� a!" .- a � iO`K•� . c'f`' -` l ' � Y it-e_ r1r �\ , • . '.V0'44.1 A evi,:a174' .1.4 -. .. •1 ) , .v.,... .A...‘, ,.., ,,, ,,, fit, .... e. .. • -•- u • 1,1-W 11 - . AI lir -• 7772 COASTLINE PARK EXHIBIT K COUNTY OF HAWAII STATE OF HAWAII BILL NO. (Dr, ORDINANCE NO. _ 94 73 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND SECTION 25-88 (SOUTH KONA ZONE MAP) , (ZONING CODE) OF THE HAWAII COUNTYCODE, BYECHANG NGTTR.i.•25 DISTRICT CLASSIFICATION FROM AGRICULTURAL UNPLANNED (U) TO AGRICULTURAL (A-Sa) AND HOKUKANO 1ST 2ND, KANAUEUE(A-la) AT HONUAINO 3RD AND 4TH, AND 2ND, IANDAH NDN 1ST AND 2ND, HALEKII AKAU 1ST AND 2ND, KALUKALU 1ST, 2NDNAN 1ST AN 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, Y TAX MAP KEY 7-9-06 : PORTION OF 1, 7_ HAWAII , COVERED By AND 8-1-04 : PORTION OF 3 . 9-12 : PORTIONS OF 3 , 4 , AND 5 BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section 25-87 , Article 3 , Chapter 25 (Zonin Code g of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows : The district classification of the following area situated at Kanaueue 1st and 2nd , North Kona , Hawaii , shall be Agricultural (A-la) : PARCEL 1 : Beginning at the Southeasterly corner of this land , being also a point on the Northerl paryel of Royal Patent 1670 to John D. Y boundary of Commission Award 387 , Parish on a portion of Land of Commissioners for Foreign4 �Missions Section 2 to being alsooaa point on the division between Noth and SouthKona , ta point coordinates of said point of beginningthe o Government Survey Triangulation StationrePUU OHArred U- being 1 , 704 . 58 feet North and 6 , 126 . 02 feet East and running by azimuths measured clockwise from True South: EXHIBIT S 1 . 71' 45 ' 902 . 30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point; 2 . 152° 14 ' 1, 055 . 02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3 . 251` 23 ' 30" 224 . 69 feet to a point ; 4 . 250° 35 ' 58 . 35 feet to a point ; 5 . 255 ° 17 ' 131 . 07 feet to a point ; 6 . 240° 43 ' 26 . 91 feet to a point; 7 . 257° 50 ' 172 . 57 -feet to a point ; 8 . 243 ` 13 ' 30" 21 . 91 feet to a point ; 9 . 256° 57 ' 98 . 95 feet to a point ; Thence , for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo : 10 . 338` 17 ' 30" 158 . 36 feet to a point ; 11 . 257" 24 ' 102 . 95 feet to a point ; 12 . 255" 40 ' 30" 171 . 35 feet to a point ; 13 . 261 ° 29 ' 101 . 46 feet to a point ; 14 . 346" 30 ' 30" 54 . 40 feet to a point ; 15 . 343 ° 21 ' 30" 152 . 40 feet to a point ; 16 . 346" 20 ' 165 . 46 feet to a point ; -2- 17 . 343 ° 29 ' 30' 80 . 88 feet to a point ; 18 . 3570 13 ' 57 . 51 feet to a point ; 19 . 345 ° 53 ' 30` 154 . 41 feet to a point ; 20 . 333 ° 53 ' 114 . 71 feet to a point ; 21 . 345 ° 43 ' 43 . 78 feet to the point of beginning and containing an area of 22 . 25J. Acres , more or less . (Refer to Parcel 1 as shown on Exhibit "A" . ) The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanaueue 1st and 2nd , North Kona , Hawaii , shall be Agricultural (A-la ) : PARCEL 2 : Beginning at the Northwesterly corner of this parcel of land , being also a point on the Southerly boundary of Royal Patent 1098 , Land Commission Award 614 to Charles Hall , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUJU OHAU" being 5 , 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South : Thence , for the next sixty-seven ( 67) courses following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 1 . 172° 44 ' 35 . 46 feet to a point ; 2 . 250° 06 ' 26 . 01 feet to a point ; 3 . 245° 26 ' 19 . 20 feet to a point ; 4 . 251" 15 ' 39 . 58 feet to a point ; 5 . 259° 25 ' 18 . 68 feet to a point ; 6 . 246° 50 ' 16 . 35 feet to a point ; -3- 7 . 254 " 27 ' 40 . 28 feet to a point ; 8 . 323 " 16 ' 7 . 32 feet to a point ; 9 . 249 ° 32 ' 44 . 32 feet to a point; 10 . 265 ' 01 ' 30" 16 . 93 feet to a point ; 11 . 271" 10 ' 30" 50 . 61 feet to a point; 12 . 261 " 46 ' 30" 67 . 77 feet to a point ; 13 . 256 ' 32 ' 30" 36 . 61 feet to a point ; 14 . 262° . 38 ' 30 . 23 feet to a point ; 15 . 258 ` 17 ' 37 . 28 feet to a point ; 16 . 254 ° 45 ' 21 . 32 feet to a point ; 17 . 257' 35 ' 30 " 36 . 22 feet to a point ; 18 . 265 ° 03 ' 21 . 89 feet to a point ; 19 . 263 " 53 ' 30" 45 . 49 feet to a point ; 20 . 266 ' 14 ' 44 . 43 feet to a point ; 21 . 249 ° 07 ' 32 . 29 feet to a point ; 22 . 256 ' 49 ' 30" 41 . 74 feet to a point ; 23 . 250' 03 ' 30" 91 . 17 feet to a point ; 24 . 257° 28 ' 88 . 18 feet to a point ; 25 . 253 " 37 ' 30" 14 . 36 feet to a point ; 26 . 271° 49 ' 7 . 86 feet to a point ; 27 . 243 " 18 ' 30" 43 . 30 feet to a point ; 28 . 252 ' 36 ' 45 . 75 feet to a point ; 29 . 262" 29 ' 35 . 65 feet to a point ; 30 . 265 ' 31 ' 13 . 70 feet to a point ; 31 . 260' 35 ' 30" 76 . 29 feet to a point ; 32 . 268 " 05 ' 30" 59 . 53 feet to a point ; -4- 33 . 253 " 44 ' 30" 12 . 40 feet to a point; 34 . 259 ° 40 ' 25 . 69 feet to a point; 35 . 264 ° 02 ' 51 . 71 feet to a point; 36 . 259 ° 49 ' 30" 85 . 74 feet to a point ; 37 . 266 ° 56 ' 48 . 70 feet to a point ; 38 . 265 ° 44 ' 61 . 02 feet to a point ; 39 . 272 ° 05 ' 60 . 95 feet to a point ; 40 . 269 ° 19 ' 30" 91 . 04 feet to . a point ; 41 . 275 ° 29 ' 26 . 42 feet to a point ; 42 . 280° 52 ' 30" 26 . 76 feet to a point ; 43 . 272 ° 21 ' 30" 28 . 45 feet to a point ; 44 . 277 ° 12 ' 46 . 47 feet to a point ; 45 . 273 ° 22 ' 30" 84 . 54 feet to a point ; 46 . 273 ° 04 ' 30" 57 . 99 feet to a point ; 47 . 270° 29 • 30 . 67 feet to •a point ; 48 . 275 ° 46 ' 30" 91 . 01 feet to a point ; 49 . 267° 59 ' 30" 87 . 48 feet to a point ; 50 . 261° 05 ' 30" 28 . 16 feet to a point ; 51 . 266 ° 13 ' 128 . 24 feet to a point ; 52 . 270° 26 ' 114 . 47 feet to a point ; 53 . 260° 09 • 81 . 24 feet to a point ; 54 . 262° 27 ' 166 . 66 feet to a point ; 55 . 261° 97 ' 108 . 98 feet to a point ; 56 . 243 ° 34 ' 33 . 10 feet to a point ; 57 . 259 ° 14 ' 30" 37 . 03 feet to a point ; 58 . 265 " 34 ' 30" 77 . 10 feet to a point ; -5- 59 . 262' 59 ' 118 . 99 feet to a point; 60 . 256" 19 ' 39 . 78 feet to a point ; 61 . 262° 44 ' 82 . 08 feet to a point ; 62 . 267" 50 ' 34 . 11 feet to a point ; 63 . 265 ° 25 ' 63 . 09 feet to a point ; 64 . 273 " 36 ' 30" 112 . 92 feet to a point : 65 . 268 ° 50 ' • 151 . 03 feet to a point ; 66 . 274 °. 59 ' 30" 35 . 27 feet to a point ; 67 . 268 ° 30 ' 30" 48 . 40 feet to a point ; Thence, for the next three (3 ) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S . W. Makahiki : 68 . 15 ' 00 ' 431 . 60 feet to a point ; 69 . 0" 23 ' 223 .30 feet to a point ; 70 . 333 " 44 ' 145 . 20 feet to a point ; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John • Cavanah: 71 . 319 " 08 ' 63 . 63 feet to a point ; 72 . 327° 12 ' 30" 92 . 54 feet to a point ; 73 . 333 ° 41 ' 55 . 11 feet to a point ; 74 . 341 " 52 ' 42 . 41 feet to a point ; 75 . 350" 21 ' 65 . 77 feet to a point ; 76 . 357' 11 ' 30" 87 . 84 feet to a point ; 77 . 7" 46 ' 82 . 65 feet to a point ; -6- 1 78 . 17° 59 ' 209 . 88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence , for the next ten ( 10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe : 79 . 15° 46 ' 30" 221 . 91 feet to a point ; 80 . 350° 40 ' 30" 86 . 03 feet to a point ; 81 . 346° 02 ' 30" 127 . 39 feet to a point ; 82 . 347° 43 ' 68 . 36 feet to a point ; 83 . 356 ° 37 ' 108 . 84 feet to a point ; 84 . 358 ° 09 ' 110 . 66 feet to a point ; 85 . 6 ' 27 ' 30" 75 . 31 feet to a point ; 86 . 357° 30 ' 30" 143 . 26 feet to a point ; 87 . 8 ' 45 ' 30" 30 . 57 feet to a point ; 88 . 359 ° 52 ' 108 . 27 feet to a point ; 89 . 265° 47 ' 29 . 79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight ( 8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe : 90 . 357° 33 ' 107 . 96 feet to a point ; 91 . 352" 21 ' 72 . 88 feet to a point ; 92 . 356 ' 43 ' 30" 32 . 40 feet to a point ; 93 . 353 ' 27 ' 38 . 77 feet to a point ; _7_ 1 j 94 . 350° 36 ' 29 . 09 feet to a point ; 95 . 339° 51 ' 130 . 13 feet to a point ; 96 . 329 ° 39 ' 30" 32 . 22 feet to a point ; 97 . 326 ° 06 ' 51 . 01 feet to a point ; 98 . 324 ° 59 ' 10 . 48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336 , Land Commission Award 9413 to Kahana to a point ; 99 . 320° 39 ' 115 . 81 feet along the remainder of Royal Patent 5336 , Land Commission Award 9413 to Kahana to a point ; 100 . 67° 26 ' 30" 92 . 41 feet along wire fence and along Grant 992 to W. Whitmarsh . to a point ; 101 . 70° 35 ' 63 . 69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point ; 102 . 67° 10 ' 30" 124 . 47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point ; 103 . 72 ° 45 ' 45" 371 . 54 feet along Grant 992 to W. Whitmarsh to a point ; 104 . 79 ° 49 ' 199 . 17 feet along Grant 992 to W. Whitmarsh to a point ; Thence, for the next twenty-three (23 ) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105 . 82' 05 ' 30" 51 . 64 feet to a point ; 106 . 83 ' 18 ' 181 . 52 feet to a point ; - 8-- 107 . 84 ' 58 ' 30" 118 . 82 feet to a point ; 108 . 85 ° 30 ' 30" 145 . 13 feet to a point ; 109 . 91° 09 ' 79 . 55 feet to a point ; 110 . 82' 04 ' 95 . 77 feet to a point ; 111 . 82° 31 ' 45 " 212 . 72 feet to a point ; 112 . 359 ° 15 ' 512 . 31 feet to a point ; 113 . 268 ° 21 ' 280 . 72 feet to a point ; 114 . 259 ° 47 ' 379 . 67 feet to a point ; 115 . 260° 53 ' 149 . 26 feet to a point ; 116 . 259 ' 07 ' 153 . 59 feet to a point ; 117 . 266 ° 02 ' 30" 90 . 63 feet to a point ; 118 . 250° 32 ' 115 . 64 feet to a point ; 119 . 240° 54 ' 54 . 22 feet to a point ; 120 . 246 ° 41 ' 140 . 89 feet to a point ; 121 . 256 ° 30 ' 30" 95 . 53 feet to ' a point ; 122 . 240° 04 ' 30" 52 . 97 feet to a point ; 123 . 245 ° 12 ' 30" 66 . 16 feet to a point ; 124 . 257° 45 ' 30" 34 . 33 feet to a point ; 125 . 239 ' 59 ' 72 . 54 feet to a point ; 126 . 250° 39 ' 30" 70 . 76 feet to a point ; 127 . 246° 08 ' 111 . 93 feet to a point ; 128 . 332° 14 ' 1 , 055 . 02 feet along the remainder of Grant 865 to John Nakookoo to a point ; -9- Thence, for the next four (4 ) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions : 129 . 64 ° 12 ' 628 . 00 feet to a point; 130 . 79 ° 26 ' 602 . 00 feet to a point; 131. 77° 00 ' 987 . 00 feet to a point; 132 . 72° 13 ' 704 . 78 feet to a point; 133 . 154 ° 42 ' 918 . 93 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with • a radius of 1, 030 . 00, the chord azimuth and distance being : 134 . 174 ° 32 ' 30" 699 . 21 feet to a point ; 135 . 194 ° 23 ' 350 . 20 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1, 270 . 00 feet , the chord azimuth and distance being : 136 . 165° 33 ' 1 , 224 . 95 feet to a point; 137 . 136 ° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point ; -10- Thence , following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1, 030 . 00 feet , the chord azimuth and distance being : 138 . 149 ° 59 ' 30" 473 . 03 feet to a point; 139 . 163 ° 16 ' 839 . 35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; Thence , following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the left with a radius of 470 . 00 feet , the chord azimuth and distance being : • 140 . 136° 23 ' 15" 424 . 98 feet to a point; 141 . 165 ° 15 ' 189 . 91 feet along Grant 1651 to Charles Hall to the point of 'beginning and containing an area of 295 . 539 Acres . (Refer to Parcel 2 as shown on Exhibit "A" . ) SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows : The district classification of the following area situated at Halekii and Keekee 1st, South Kona , Hawaii , shall be Agricultural (A-la) : -11- PARCEL 3 : Beginning at the Northeasterly corner of this parcel of land , being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2 , 272 . 75 feet North and 8 , 616 . 61 feet East and running by azimuths measured clockwise from True South: 1 . 350° 44 ' 55" . 482 . 03 feet along Lots 39 , 38 , 37 , 36 , 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) 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 American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki ' i Street to a point; 2 . 78 ' 30 ' 470 . 15 feet along Lot 3 (Government Land - County of Hawaii ) to a point; 3 . 348 ° 30 ' 438 . 70 feet along Lot 3 (Government Land - County of Hawaii ) to a point ; 4 . 266 ` 28 ' 187 . 31 feet along Lot 3 (Government Land - County of Hawaii) to a point; Thence, for the next eleven ( 11) courses following along middle of stonewall : - 12- 5 . 4 " 59 ' 157 . 50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6 . 17° 24 ' 30" 102 . 93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7 . 7 ° 45 ' 30" 174 . 98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point ; 8 . 91' 17 ' 30" 56 . 46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9 . 355 ° 54 ' 30" 333 . 18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four (4 ) courses following along Grant 866 to Kapule: 10 . 86 ° 02 ' 30" 309 . 93 feet along Lot 2 to a point ; 11 . 80° 19 ' 207 . 35 feet along Lot 1 to a point; 12 . 75" 14 ' 183 . 86 feet along Lot 1 to a point ; 13 . 79 ° 02 ' 674 . 13 feet along Lot 1 to a point ; -13- 14 . 177° 38 ' 634 . 16 feet along the remainder of Grant 977 to Panaunau to a point; 15 . 75 ° 14 ' 1 , 338 . 05 feet along Grant 977 to Panaunau to a point; 16 . 150° 55 ' 956 . 00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land • Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point; 17 . 251° 45 ' 902 . 30 feet along Grant 865 to John Nakookoo to a point; Thence, for the next thirty-six (36) courses following along middle of stonewall - and along Grant 865 to John • Nakookoo : 18 . 250° 02 ' 30" 41 . 72 feet to a point; 19 . 238° 11 ' 30" 99 . 82 feet to a point ; 20 . 246° 13 ' 93 .37 feet to a point; 21. 253 ° 29 ' 121. 82 feet to a point ; 22 . 257° 51 ' 121 . 61 feet to a point; 23 . 249° 33 ' 59 . 76 feet to a point; 24 . 245° 51 ' 177 . 23 feet to a point ; 25 . 248 ° 02 ' 30" 92 . 17 feet to a point; 26 . 240° 26 ' 30" 60 . 37 feet to a point ; 27 . 254 ° 58 ' 110 . 46 feet to a point ; 28 . 258° 29 ' 24 . 30 feet to a point ; -14- n 29 . 274 " 56 ' 30" 31 . 91 feet to a point; 30 . 260° 18 ' 30" 148 . 31 feet to a point; 31 . 253 " 43 ' 47 . 09 feet to a point ; 32 . 243 ° 21 ' 30 " 89 . 60 feet to a point ; 33 . 263 ° 53 ' 30" 70 . 49 feet to a point ; 34 . 254 ° 39 • 30" 21 . 88 feet to a point ; 35 . 269° 41 ' 41 . 10 feet to a point; 36 . 288° 24 ' 45 . 97 feet to a point ; 37 . 255° 29 ' 30" 27 . 38 feet to a point ; 38 . 241° 21 ' 30 . 35 feet to a point; 39 . 227° 12 ' 30" 53 . 91 feet to a point ; 40 . 216° 24 ' 30" 55 . 73 feet to a point; 41 . 238 ° 55 ' 30 " 27 . 24 feet to a point; 42 . 255 ° 23 ' 30" 29 . 74 feet to a point; 43 . 271° 22 ' 69 . 73 feet to 'a point ; 44 . 265 ° 04 ' 29 . 52 feet to a point; 45 . 275° 29 ' 30" 98 . 69 feet to a point; 46 . 271° 04 ' 85 . 71 feet to a point; 47 . 277 ° 42 ' 30" 71 . 32 feet to a point ; 48 . 269 ° 46 ' 21 . 84 feet to a point ; 49 . 270° 48 ' 110 . 24 feet to a point; 50 . 268° 22 ' 91 . 02 feet to a point; 51 . 258° 19 ' 92 . 53 feet to a point ; 52 . 270" 26 ' 57 . 58 feet to a point ; -15- 53 . 265 ` 38 ' 177 . 70 feet to the point of beginning and containing an area of 94 . 387 Acres , more or less . (Refer to Pacel 3 as shown on Exhibit "A" . ) The district classification of the following area situated at Halekii , Keekee 1st and 2nd, Ilikahi , Kanakau - 1st and 2nd , Kalukalu 1st, . 2nd, and 3rd and Onouli 1st , South Kona , Hawaii , shall be Agricultural (A-la) : PARCEL 4 : Beginning at the Southeasterly corner of this parcel of land , being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4 , 046 . 78 feet South and 6 , 502 . 93 feet East and running by azimuths measured clockwise from True South : 1 . 65° 45 ' 54 " 1, 071. 96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2 . 78 ° 08 ' 30" 1, 407 . 43 feet along middle of stonewall and along Grant 1162 to F. O . Schulze to a point; Thence, for the next three (3 ) courses following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole: 3 . 203 ° 12 ' 488 . 09 feet to a point; Thence , following on a curve to the left with a radius of 870 . 00 feet , the chord azimuth and distance being : - 16- 4 . 172` 50 ' 30" 879 . 41 feet to a point ; 5 . 142° 29 ' 272 . 49 feet to a point ; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell , and Grant 1576 to Lohi on a curve to the right with a radius of 1, 130 . 00 feet, the chord azimuth and distance being : 6 . 169 ° 47 ' 1 , 036 . 55 feet to a point ; 7 . 197° 05 ' 307 . 17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point ; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645 . 00 feet, the chord azimuth and distance being : 8 . 183 ° 07 ' 311 . 35 feet to a point ; 9 . 169 ° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence , following along the remainders of Grant 1464 to Ialua and Grant 1175 to Nakauwaa on a curve to the right with a radius of 705 . 00 feet, the chord azimuth and distance being : 10 . 186° 06 ' 411 . 07 feet to a point ; -17- 11 . 203 ° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point ; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645 . 00 feet, the chord azimuth and distance being : 12 . 186° 42 ' 30" 362 . 96 feet to a point ; 13 . 170° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point ; Thence , following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705 . 00 feet, the chord azimuth and distance being : • 14 . 186° 12 ' 384 . 70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini : 15 . 202° 02 ' 35 . 26 feet to a point ; Thence, following on a curve to the left with a radius of 30 . 00 fee€ , the chord azimuth and distance being : 16 . 157" 02 ' 42 . 43 feet to a point ; 17 . 112° 02 ' 85 . 32 feet to a point ; Thence, following on a curve to the left with a radius of 645 . 00 feet , the chord azimuth and distance being : 18 . 97" 14 ' 329 . 53 feet to a point ; 19 . 82° 26 ' 397 . 26 feet to a point ; -18- Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705 . 00 feet , the chord azimuth and distance being : 20 . 118 " 34 ' 831 . 43 feet to a point ; 21 . 154 ` 42 ' • 342 . 97 feet along the remainder of Royal Patent 1670 to John D . Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point ; 22 . 252 ° 13 ' 704 . 78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point ; Thence, for the next three (3) courses following along Grant 865 to John Nakookoo : 23 . 257" 00 ' 987 . 00 feet to a point ; 24 . 259 ' 26 ' 602 . 00 feet to a point ; 25 . 244 " 12 ' 628 . 00 feet to a point ; 26 . 330' 55 ' 956 . 00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point ; - 19- I 27 . 255" 14 ' 1, 338 . 05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point ; 28 . 357" 38 ' 634 . 16 feet along Grant 977 to Panaunau to a point ; 29 . 76" 40 ' 30" 1, 596 . 74 feet along Grant 1177 to Kamakahiona to a point; 30 . 76 " 40 ' 30" 44 . 81 feet along Grant 1177 to Kamakahiona to a point ; Thence, for the next six ( 6 ) courses following along the Westerly side of old railroad : 31 . 353 ` 25 ' 54 . 23 feet to a point ; 32 . 346" 06 ' 95 . 32 feet to a point ; 33 . 342' 16 ' 30" 289 . 54 feet to a point ; 34 . 341 ` 04 ' 132 . 29 feet to a point; 35 . 345" 33 ' 48 . 71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to . a point ; Thence, for the next six ( 6) courses following along the remainder of Grant 1175 to Nakauwaa : 36 . 350` 55 ' 30" 47 . 80 feet to a point ; 37 . 260` 45 ' 8 . 34 feet to a point ; Thence , for the next four (4 ) courses following along the Westerly face of stonewall and along the Easterly side of old railroad : -20- 38 . 353 ` 43 ' 30- 58 . 69 feet to a point; 39 . 1 ' 03 ' 30" 50 . 75 feet to a point; 40 . 4 ' 06 ' 30` 32 . 09 feet to a point; 41 . 9 ` 18 ' 30- 46 . 75 feet to a point; Thence , for the next four (4 ) courses following along the Northerly face of stonewall : 42 . 79 ' 50 ' 28 . 51 feet along Grant 787 to H . N. Greenwell to a point; 43 . 63 ' 01 ' 30` 205 . 62 feet along Grant 787 to H . N. Greenwell to a point ; Thence , for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell : 44 . 58 ' 15 ' 190 . 84 feet to a point; 45 . 95° 12 ' 30" 36 . 26 feet to a point; Thence , for the next ten ( 10) courses following along the Westerly face of stonewall : 46 . 340" 55 ' 30- 51 . 47 feet to a point; 47 . 336point; 12 ' 30- 95 . 40 feet to a . 48 . 340" 54 ' 85 . 38 feet to a point; 49 . 338" 48 ' 30- 46 . 81 feet to a point; 50 . 342` 23 ' 65 . 75 feet to a point; 51 . 334 ' 35 ' 30- 65 . 95 feet to a point ; 52 . 332' 23 ' 82 . 87 feet to a point ; 53 . 324 ' 00 ' 11 . 13 feet to a point; 54 . 332" 36 ' 30" 113 . 50 feet to a point; -21- i n 55 . 347" 43 ' 24 . 68 feet to a point; Thence, for the next four (4 ) courses following along the Westerly side of old railroad : 56 . 338' 19 ' 61 . 45 feet to a point; 57 . 327" 39 ' 30" 17 . 91 feet to a point ; 58 . 347" 16 ' 94 . 25 feet to a _ point ; 59 . 344 ` 55 ' 30" 113 . 58 feet to a point; 60 . 267`. 05 ' 30" 16 . 83 feet to. a point; Thence, for the next six (6) courses following along middle of stonewall : 61 . 341` 48 ' 30" 54 . 25 feet to a point ; 62 . 346" 24 ' 30" 109 . 52 feet to a point; 63 . 330" 20 ' 62 . 30 feet to a point; 64 . 336" 48 ' 111 . 89 feet to a point; 65 . 325` 21 ' 106 . 90 feet to a point; 66 . 62 ` 18 ' 30" 29 . 22 feet to a point ; Thence, for the next three (3 ) courses following along Westerly face of stonewall : 67 . 337" 28 ' 30" 112 . 46 feet to a point ; 68 . 337 " 08 ' 183 . 98 feet to a point ; 69 . 337 ' 36 ' 30- 153 . 52 feet to a point ; 70 . 254 ` 02 ' 30" 25 . 45 feet along the Southerly face of stonewall and along Grant 787 to H . N . Greenwell to a point ; -22- Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole : 71 . 338` 26 ' 168 . 87 feet to a point; 72 . 337 39 • 153 . 12 feet to a point; 73 . 335" 16 ' 30" 329 . 74 feet to a point; 74 . 336 ° 16 ' 30" 122 . 94 feet to a point; 75 . 334 ` 38 ' 30" 193 . 93 feet to a point ; 76 . 335" S9 • 267 . 46 feet to a point; 77 . 329 ` 13 ' 30- 141 . 50 feet to the point of beginning and containing an area of 271. 415 Acres . (Refer to Parcel 4 as shown on Exhibit "A" . ) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof (herein after referred to as "subject property" ) , SECTION 3 . These changes in district classification are conditioned upon the following : (A) The applicant , successors or assigns shall be responsible for complying with all of the stated conditions of approva (B) The effective date of the rezoning shall be upon : ( 1) the execution of an agreement between the applicant , Lyle Anderson, and the County through its Department of Water Supply and Planning , to assign water commitment rights in the Kealakekua Source Agreement -23- to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the DepartmenL of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty ( 180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within fourq ( ) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B . For the purpose of this ordinance, Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works , whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground , with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; -24 - (F) A Flood Study of the subject property shall be, submi the Planning Department in tted conjunction with plans submitt for subdivision review for any portion of the sub 'ec property. Drainage improvements � t shall be constructed in manner meeting with the approval of the Department of Public Works , prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be 'Prepared and submitted for approval by the Planning Director , in consultation with the Department of Land and Natural Resources-Historic Preservation Division , prior to submitting plans for subdivision review. consist of three subplans : The Plan shall ( 1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3 ) an interpretation plan which shall include buffer zones , signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) The applicant shall be responsible to comply with Condition No . 8 of SMA Permit No . 345 issued to the applicant on November 5 , 1993 ; 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 -25- shall be responsible to comply with the following terms ar conditions : (1) The applicant shall develop and submit a comprehensiv public shoreline access plan for the subject propert and the properties described in the SMA Permit y No . 345 , subject to the review and approval by the Planning Director, in consultation with the Departmen of Land and Natural Resources , prior to Final Subdivision Approval , or any land alteration activity whichever comes first;. (2) 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; (3) No more than a total land area of twelve ( 12) acres shall be permitted to be constructed , operated and maintained as part of the applicant ' s golf course , approved as Use Permit No . 115 , and included within the coastline park or the existing conservation district lands ; (4 ) 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 -26- gathering purposes over designated vehicular and pedestrian access routes subject to restrictions whic limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike; and (5) The public shoreline access plan shall also integrate 4.nere appropriate, any public accesswayks) to interpretive trail system(s) and to the historical anc archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources and in conjunction with the detail mitigation plan for the park area situated in the Conservation district . ( Z) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of the coastline park and trails ; provided, that restrictions in accordance with Chapter 115 , Hawaii Revised Statutes , will be allowed to be established by the applicant , subject to the approval of the Planning Director, to promote public health and safety and the general security of the -premises for residents and guest of the project to protect the areas ' pristine condition, and to minimize any liability to the applicant , pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall own the coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions ; -27- n (J) Should any unidentified sites or remains such as artifacts shell , bone, or charcoal deposits , human burials , rock or coral alignments , ered pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified . Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken; (K) A solid waste management plan shall be prepared meeting with the approval of the s Department of Public Works prior to submitting plans for subdivision review . The Plan shall include , but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works ; (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 : ( 1) construct the channelization and signalization of the Mamalahoa Highway-Haleki ' i Street intersection ; (2) determine the final right-of-way alignment of the entire Mamalahoa Bypass road as shown in Exhibit 'C` , including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed -28- necessary by the Planning Director . In lieu of the applicant obtaining or acquiring ownership or control of any segment within the Phase Two portion of the Mamalahoa Bypass road , the requirement shall be deemed fulfilled up, the county ' s formal initiation of condemnation action such segments and an a 9 reement has been entered into for between the applicantto and the county providing for the applicant ' s reimbursement to the county for the acquisitic of the lands condemned; (3 ) construct Phase One of the Mamalahoa Bypass , as showr in Exhibit "C" , consisting of two lanes with sufficient right-of-way for a total of four lanes ; (4 ) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass ; (5) construct the extension of Haleki ' i Street through th subject property as generally reflected in Exhibit "B" , which phasing of improvements shall be approved by the Department of Public Works . A barricade or breakaway gate, meeting with the requirements of the Department of Public Works , shall be installed by the applicant as part of the required Haleki ' i Street improvements prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first . The purpose of this conditior is to prevent the use of Haleki ' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and the Phase 1 section of the Mamalahoa Highway Bypass until the entire proposed Bypass has been completed and opened for general public use; and -29- (6) provide roadway stub-outs , generally shown in Exhibit "B" , to provide future connections between the subject property, the Alii Highway, and southern extensions there from; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public *Works . The applicant shall construct the Mamalahoa Bypass to State Department of Transportation-Highways Division standards for a• regional arterial bypass highway or segments thereof , and shall provide a landscape buffer along highway sections within five hundred feet of existing dwelling , as required by the chief engineer , to reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations . Roadway segments providing the bypass ' s connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials , pursuant to Chatper 23 of the Hawaii County Code, instead of the State DOT standards for major arterials , in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways ; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction , land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the By-pass Highway and which funds are available to the county for such purpose; and provided further , that the total amount of reimbursement due to the applicant shall not exceed the -30- total cost of land acquisition, design and construction the Bypass Highway incurred bythe applicant, less the rata portion attributed to the subject property; (M) Prior to Final Subdivision Approval of any portion wit Area 2 as shown in Exhibit 'D- except for the golf hi cours golf clubhouse, lodge, and related facilities , the applicant shall : ( 1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes a shown in Exhibit `C' , meeting with the approval of Department of Public Works , in consultation with the State Department of Transportation-Highways Divisio1 and (2) complete the construction of the Mamalahoa Bypass • channelization improvements at its intersection witt Mamalohoa Highway and Napo ' opo ' o Road , meeting with the requirements of the Department of Public Works , consultation with the State Department of Transportation-Highways Division; • (N) All roadway improvements stated in Condition L and M of this ordinance shall be dedicated to the appropriate government entity. Those improvements associated with tui Mamalahoa Highway Bypass shall be offered to the State Director of Transportation pursuant to Section 264-1 of t Hawaii Revised Statutes . Any connector roadways , and any protion of the Mamalahoa Highway Bypass not accepted by t State Director of Transportation shall be dedicated to th County, as provided by law; -31- (0) To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide a maximum of two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (P) In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, I: L, and M, the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond , surety or other security deemed acceptable to the Planning Director and the Corporation Counsel . Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements ; (Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation , provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts , as required in Conditions L and M; (R) It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval . For the purpose of this condition , -agriculture" shall be defined as the cultivation of crops , including but not limited to flowers , vegetable , foliage, and fruits that are propagated for economic or personal use . An agricultural activity will be considered satisfactory: (1) if such activity is implementing a conservation program for the affected the a ProPerty( ies) , as approved pplicable soil and water conservation dist directors and filed with the Soil Conservati Sect on Servic (2) if it provides a source of income reside on to the person(s) wh the property; or (3 ) if the property is dedicated for a accordance with a griculture uses in pplicable Tax Department procedures and that such agriculture dedication deed covenant and dulyshall be made recorded witha of Conveyances and a the State Bureau copy of the recorded deeds shall be filed with the Planning Department w' from1 thin date of Final Subdivision A one year the pproval , Each approved lot must •• comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; (S) Restrictive covenants in the deeds of all shall prohibit the construction of a the proposed lots on each lot ; second dwelling unit provided that this shall not construction of a Preclude the guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant (s) to be recorded with the Bureau shall be submitted to the of Conveyances Planning Department for review and approval prior to final subdivision of the approved covenant shall be recited approval . A copy in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise Prior to final subdivision approval ; -33- • (T) The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police , solid waste disposal facilities , sewer and roads . The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted . The fair share contributions described :,elow shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI) . The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone . The fair share contribution in a form of cash , land , facilities , or any combination thereof shall have a maximum combined value of $ 4 , 701 , 205 . 74 . In lieu of paying the fair share contribution , the applicant may construct such improvements/facilities related to park, fire, police , solid waste disposal facilities , sewers and roads with the approval of the appropriate agency( ies) . Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall , at the applicant ' s request be credited towards any of the applicant ' s future developments that require infrastructural impact contributions ; (U) The Applicant shall conform, to the best extent practicable , with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code , in the construction of dwellings within the subject property; -34 - (V) In the event that the State Department of Education an educational facilities impact fee programadop. ram shall participateP g the applicz in the requirements of the program; , (W) Comply with all applicable laws , rules , regulations and requirements, including those of the Department ofal Fire, and the Department of Water Supply; Health • (X) Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees , conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (Y) An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and , (Z) An extension of time for the performance of conditions within the ordinance, with the exception of Condition C. may be granted by the Planning Director upon the following circumstances : ( 1) the non-performance is the result of conditions that could not have been foreseen or are beyond the contro] of the applicant , successors or assigns , and that are not the result of their fault or negligence ; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code ; -35- t (3 ) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; • (4) the time extension granted shall be for a period not to exceed the period originally granted for performance ( i . e . , a condition to be performed within one year may be extended for up to one addi.ional year) ; and (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action . Further , should any of the conditions not be met or substantially complied with in a timely fashion , the Director shall initiate rezoning of the area to its original or more appropriate designation. SECTION 4 . In the event that any portion of the ordinance is aclared invalid , such invalidity shall not affect the other parts E this ordinance . -36- SECTION 5 . This ordinance shall take effect upon its approval INTRODUCED BY: • COUNCIL MEMBER, COUNTY 0m1 HAhIA I I Hilo, Hawaii Date of Introduction : May 11 , 1994 Date of 1st Reading : May 11 . 1994 Date of 2nd Reading : June 15 , 1994 Effective Date : June 28 , 1994 APPROVED AS TO FORM AND LEGALITY: • -tiCORPORATION COUNSEL DATED: //G 9 -37- J ROBIN I.YAHDCU • %ter' y ate.+ / 41V4M j' !: CONSTAN BOBBY JEAN LE OFFICE OF THE COUNTY CLERK County of I-/aw i Hawaii County Building 25 Aupuni Strcct Hilo. Hawaii 96720 NQI On Bill No . 182, Dr. 6, Ordinance No . 94-73 , reference is made to map attached hereto, marked Exhibit ` A Said Exhibit is not part of the duplicate copies of this ordinance, due to its size, but is available .for viewing in the Office of the County Clerk. • If further information is needed , call 961-8255 . i_ i ' . ...: 5icsi; 'ob. . J Yahiku •UNTY CLERK c = z z , ►-- u, - � --\ S • '1 O x I- - , ! - t (.1) w (f) • .,a -.) • - s _ . . — _ - _ J = • ,... .•____L=TIRS 1..- sl (• , -.N.„ „ ) .,),,- •• : . __ _ 1,-LA . 14-. j . • ' Irkifs:rj _ _ _ 1- ..t ;1.1 t-- . '••• / - ' \SPA Is4-".t.':-.: 'I.\ I - • 31. : ..::). 1) a 9 1. ii /t • it d ,; r �` .1•%.- :)•W i ; ;) 4 I,k. . 1 •;,-.1)' ...r. ifi:•*;L.41 '114.5"iftterMdt -,12-.60v.-a V.0,-.-ir 744.`� -; 1�i>/„. i +_�1/•ice/ �L�/j,. %v;MM `, , war-041.1 ipi, • �'ie C' r, �"+;� r �! (• � '.'. \;' `1\ •'�jr�e�,Is.� .. � ,{,moi / ;Yr? / ,1,�,• �• 110011.16 �ti��...D.P,4gEravii - :111, - '.---A. 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I ....7.N.,- . ••I : ' • Ut.'IL../E• IV VI,\2: -f ' ' ' . .- i ..1 ''-.4,-.‘'. 't Ziii I o /._... ._ • • '-': -1::,:.-,..- - , .0 . - % rte{ - J '- / T • �.•—, • ., .. ., �.Y.� . `` ,' I;�� X11 i i /1 .. • • -1_F: '----( -(-1 1 r.t .7 . 1 ��; -__ ice` • --1.4 f:::: '• :I..—._-_ 1. )s\'e( j ,, ;' .'':Ni., • -,.....••/••1/-?• OFFICE OF THE COUNTY CLERK .- - County of Hawaii " Hilo , Hawaii °1; ( .. - 3 F1 -; .. ( DRAFT 5 ) ROLL CALL VOTE cd By. Takashi Domingo oducad: May 11 , 1994 AYES NOES ABS EX din g: Hay 11 , 1994AIa 111131.1111111111.111111111 3: NA sOrnc-ABRAM sON CHLLDS X . DE LIMA _ 11 ; 1994 - Deferred DOM[NGO X HALE _ . RA - ROSEHILL - SCH TTE ,_411lMllMIIIIIIIIIIIIII n ( DRAFT 6 ) :aging: June 15 , 1994 • ROLL June 15 . 1 994 'VOTE June 28 , 1994 AYES June 28 , 1994 NOES AIIS EX • X July 7 , 1994 BONK_ABR .MSON X CHIL.DS DE LIMA X DOMINGO X HALE X RAIN X ROSEHILL x SCHLITTE X 5 4 D J HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as above. <0011, 'PROVED as Io tA ond LEG • LITY �� V // J COUNCIL CHAIRMAN O;tA110N Courts .<-9 } r^/�'. UNTY OF HAWAII J l I • , /(/ COU C Di. this _ day . , 19 `_SF OUNTY F HAWAII Bill No.: l C 2 I Dra f t 6 ; '' u J RG H ,) . N u A H 7 2ND J N u 1.4N o NG 6O:Z� 6 L 1 ti N eo: Ilk ). „I, � ------ . . 0 7 r 6 s 90— -L e PO.9p-6-L V 1 L e rl v u t a 4, oe SO:90-6—L , L f rl u u t A 7 r 61-.90-6—L - limaLO:90-6—L r"•" ..r•-•• • 'r A W A N u • 2 /y G Y ° )1, St 90-6-1 o� Xi �. �.. d ct I s \ --\ ' .4� ,. Sp:SO'6_L 0 o ,k- U / -=1 7 c, s � i C.-1 m .47J -\ / r o e .y ^` be.50,6-` ••41,y J 0. o / ill 90:S0-6-LHJ / al ipIIr s i -•, j� /,/ Otri r I'4 L-11 of t 'r F p of ..g1 U 6„) e i� r/ O -I. Li V a0 --.:L_ o ch Ci o /VcD N 1 Nr.0 /;"fro \ IJ 1 1( :1wit I. neeigiligi C ., 4 ... . x-11 - ,4.1,.....------- L______ po , 4....-- .., Nikir'"1-'!, a .. II iv, O v y c., cr) it m co 1f ap,pplir 0 o of o �' I ci -y, I / I O a I 1-- • col O \I v. • I rto CO ).'''''''''''---. . r n ,tr T- 0 O r d ^ I y w ff CO 1 \ 1�C` O N r \' If - IA Q IA _________..2. o col *Nil7 4'118/ Z r� 1-2 I i----•---................ 7Y \ r 1nw 4 oN I r m �Lair 7 V b \ .1. `J N v N o N Era / I_ ( ., 0 ��.r S Al .. A. �4111111111%� i - ••\ IIIIIIIID ilii t y ) a \ 1111111111ridiLU: .1 minium ����$ \ nulunu►���ia 3 ' \ o N 1111111 ///q4i \•• x • 1 y OAI Y \ t N 1 p d d r a o x iy 1 S a21 �s� \ s n N---"----- '-_l / \ C`.\ v N Y '90 , ,J L, epi x Q Q N O h 7 N• I Y Q / T \ Q \ n N ' O h h C .Z .Z.:,... .. c, \ EXHIBIT D Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law Electronically Filed A Law Corporation THIRD CIRCUIT 3CCV-23-0000123 KENNETH R. KUPCHAK 1085-0 31-MAR-2023 TOREN K. YAMAMOTO 11520-0 01:33 PM 1003 Bishop Street, Suite 1600 Dkt. 1 CMPS Honolulu, Hawaii 96813 www.hawaiilawyer.com Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Plaintiff C & J COUPE FAMILY LIMITED PARTNERSHIP IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C & J COUPE FAMILY LIMITED ) CIVIL NO. PARTNERSHIP, ) ) COMPLAINT FOR DECLARATORY Plaintiff, ) AND INJUNCTIVE RELIEF; ) APPENDICES "A"— "B"; SUMMONS vs. ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) Defendants. ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COMES NOW Plaintiff C & J FAMILY PARTNERSHIP ("Plaintiff'), and for claims against Defendants COUNTY OF HAWAII; COUNTY OF HAWAII, PLANNING DEPARTMENT; ZENDO KERN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE EXHIBIT D COUNTY OF HAWAII, PLANNING DEPARTMENT (collectively "County" or "County Defendants"); 1250 OCEANSIDE LLC ("Oceanside"); JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10 alleges and avers as follows: INTRODUCTION L Oceanside Breaches Promise to Create and Dedicate Three Standard Public Road Segments. 1. Decades ago Oceanside) promised the people of the Big Island, among other things, to design, construct and dedicate to County three new public road segments — all to the express requirements of County standards. 2. Not only has Oceanside failed to do so, but they and County appear to have actively attempted to circumvent and/or ignore these obligations which are specifically required by at least two zoning ordinances and a development agreement, all of which, by law, were adopted by the County Council and signed by the Mayor. 3. Specifically, in 1996, Oceanside received two rezoning's for 711.2 acres of land (more or less)just South of Keauhou (the "Hokulia Lands"), in the form of Ordinance No. 96-8 and Ordinance 96-7 (signed into law by the Mayor on January 15, 1996). The rezoning of Hokulia Lands, granted by Ordinance No. 96-8 and Ordinance 96-7, made it possible for Oceanside to begin developing a high-end luxury golf-course and ocean viewing residential development which would be situated on said rezoned land ("Hokulia"). 4. Ordinance No. 96-8 and Ordinance 96-7 were later incorporated by reference into a development agreement entered into between Oceanside and County Defendant, recorded in the State of Hawaii Bureau of Conveyances on April 30, 1998 ("Development Agreement"). Oceanside's predecessor in interest 1250 Oceanside Partners, a Hawaii limited partnership, dba Oceanside 1250, had been responsible for actions prior to 2008. Oceanside as we now know it picked up all responsibilities and requirements under the Development Agreement. 2 710088 5. At issue here, Ordinances No. 96-8 and 96-7 required Oceanside, at its sole expense, to design and build, to the dedicable County standards specified under Chapter 23 of the Hawaii County Code, three roadways as located on Exhibit "B" to Ordinance 96-8, attached hereto and incorporated herein, as Appendix "A": a. a North-South Connector Road(the "Connector Road"), b. an extension of the Halekii Street from the end of the then public portion thereof to the Mauka side of Mamalahoa By-Pass ("Mauka Halekii Extension"); and c. a continuation of Halekii Street Makai of the Mamalahoa By-Pass ("Makai Halekii Extension"). 6. All three of these roadways (collectively "Required Public Roads") are expressly required, under the Development Agreement and Ordinances No. 96-8 and 96-7, to be dedicated to County. 7. In order to accommodate for the impact of Hokulia and its anticipated influence on the population of Kona, County required the dedication of Required Public Roads as important public infrastructure; and, Oceanside, anticipating a significant development timeframe and a lengthy absorption period for sale of the luxury residences to be developed on Hokulia Lands, sought to freeze the zoning obtained in Ordinance 96-8 and 96-7, to ensure their would-be purchasers that the zoning would remain intact. 8. State law (see Haw. Rev. Stat. § 46-121) offers a legal tool which can toll a county's rezoning hand, often referred to as a development agreement. In order to justify the staying of government action under a development agreement, a county is to receive material consideration often including developers creating public infrastructure which inter alia, might help to defray the burden imposed on the county to ameliorate changes in the community influenced by the contemplated development. 3 710088 9. Oceanside and County entered into and recorded a Development Agreement on April 30, 1998, which incorporated by reference the County of Hawaii Ordinance No. 96-8 and 96-7 (hereinafter the "Incorporated Ordinances"). Under the Development Agreement, the Required Public Roads are among the specific consideration promised by Oceanside to justify County's agreement to freeze the then existing land use controls on Hokulia Land. Such roadways were to be built to County standards at Oceanside's sole expense and dedicated as public infrastructure to County. 10. Now, 25 years later, while County has made no efforts to unilaterally change or undo the zoning freeze under the Development Agreement (i.e. keeping the zoning for the development untouched), it has come to Plaintiffs attention that County and Oceanside have not complied with a number of the key terms of the bargain, causing a material failure of the considerations of the Development Agreement and Incorporated Ordinances. 11. Despite the requirements in the Development Agreement and Incorporated Ordinances to have the Required Public Roads built for dedication to the County, the roads have not been built to dedicable County standards, specifically, those prescribed in Section 23-86. 12. The dedication of Required Public Roads has also yet to be effectuated, despite the Development Agreement's impending end date. Additionally, Oceanside has erected a guard facility on the Makai Halekii Extension (the "Guard Facility") in attempts to privatize the community and, for too long, deprive the public free, unfettered access to these public roads. 13. Thus, not only has Oceanside (while avoiding incurring millions of dollars in construction costs) deprived the public of the safety inherent in County's road building and dedication standards, but they have also unlawfully, and in contravention of the express language of Development Agreement and Incorporated Ordinances, deprived the community public access altogether. 4 710088 14. Defendant Oceanside, however, continues to benefit from marketing and sales that tout Hokulia as a private gated community, in direct contradiction of the intent of the Development Agreement and Incorporated Ordinances. See Hokulia Advertisement, attached hereto as Appendix B and made a part hereof. IL Oceanside and County's Unlawful Attempt to Amend the Development Agreement and Incorporated Ordinances. 15. Development agreements and ordinances can be amended in a number of legal ways, listed out in the Hawaii Revised Statutes, county ordinances, and development agreements themselves. 16. Yet, at least twice over, Oceanside (misguidedly or intentionally) and County (apparently casting a blind eye) have sought to circumvent the timely design and build, to standards, of the Required Public Roads within Hokulia as required under the Development Agreement and Incorporated Ordinances. 17. First, Oceanside and County attempted to sub-silentio amend the requirements of the Development Agreement and Incorporated Ordinances by way of an improper, inferior, and illegal variance. Said variance was procedurally and substantively improper, yet it was granted by County in an unlawful attempt to afford the Required Public Roads amnesty from the County code's dedication standards. A variance is not a valid tool to amend a development agreement or ordinances in the way in which it was attempted here, even if it otherwise complied with the requirements for obtaining a variance, which it did not. 18. Second, the County, pursuant to a resolution, accepted the Mauka Halekii Extension in a substandard condition to the County Code. The acceptance of a substandard dedication was on its face improper and illegal, but also, in effect, moved to amend the Development Agreement and Incorporated Ordinances in a similar fashion to the above 5 710088 mentioned variance. Amendment of the Development Agreement, pursuant to this resolution, was procedurally and substantively improper, and not only straps the County's citizens with tremendous liability via maintenance and improvement costs (a burden that was supposed to be shouldered by Oceanside), but also creates a potentially dangerous condition for said citizens. 19. These efforts to circumvent and failures to enforce (each ill-conceived, ultra vires, and against the strict dictates of the law) the Incorporated Ordinances and Development Agreement, including the use of a variance to circumvent County dedicable standards and a resolution to accept substandard dedications, cannot be left unaddressed. 20. Moreover, attempts to amend (i.e. the variance and resolution) by deficient legal means were unconstitutionally processed by stealth, without proper notice to Plaintiff, a neighboring land owner and the public, thereby depriving Plaintiff and public of due process rights. 21. Residents of the Big Island, such as the Plaintiff, are entitled to the consideration promised for freezing their land use powers. They should not be asked to shoulder the burden of having to design, build, and acquire these promised public roads. 22. County, on behalf of its residents, has fairly and freely bargained for Oceanside to, at its expense, design, build and dedicate these public roads. 23. Oceanside, after presumably receiving significant compensation from selling residential lots within the development as a private gated community, cannot be relieved of its obligation and certainly should not be allowed to shift the burden to the tax paying public. Even more wanting for redress is the fact that Oceanside has tried to relieve itself of these crucial obligations through a pattern of bad acts stemming back almost from the inception of the Development Agreement. 6 710088 24. This complaint requests the Court declare that Defendant Oceanside remains obligated to provide these public improvements and requires the establishment of a schedule for prompt compliance, and Defendant County be required to enforce strict compliance of the Development Agreement and Incorporated Ordinances. NATURE OF THE ACTION 25. Plaintiff is C&J Coupe Family LTD Partnership, landowner of (with a material property interest in) TMK 3-8-1-7:045, the property directly south to and abutting the Hokulia Lands. Plaintiff as neighboring landowner has an interest in the enforcement of the Development Agreement and Incorporated Ordinances. 26. This case stems from two major issues: (1) a breach of the public's trust due to Oceanside's failure to comply with, and County's failure to enforce, the express requirements of the Development Agreement and the Incorporated Ordinances, and (2) Oceanside and County's improper, unconstitutional, and illegal sub-silentio attempts to amend the Development Agreement and Incorporated Ordinances via a variance and substandard dedication. 27. Development agreements are meant to be mutually beneficial situations in which a county (and, by extension, its citizens) as well as the developer benefit. The developer receives the benefit of a freeze on existing land development regulations and plans for a fixed period of years and, in exchange, a county receives agreed to public infrastructure and facilities. 28. In this case, the Development Agreement's Incorporated Ordinances contemplates the developer constructing Hokulia, a residential community in Kealakekua, Hawaii. As such, County agreed not to unilaterally change the land use contemplated by the Incorporated Ordinances for a set period of time, in exchange for, among other things, Oceanside providing benefits to the community through, inter alia, the public dedication of county standard roads and unfettered public access upon those Required Public Roads. 7 710088 29. Specifically at issue here, the Development Agreement and Incorporated Ordinances require the timely,public dedication of Required Public Roads within Hokulia. 30. Each of the three Required Public Roads were to be timely dedicated to County as important public infrastructure under the express terms of the Development Agreement and Incorporated Ordinances, and, as such, needed to be built in strict compliance to County dedication standards as dictated under Chapter 23 of the Hawaii County Code. However, rather than enforce these conditions, County has ignored their obligations without enforcement of any kind. 31. Oceanside has breached the Development Agreement and its Incorporated Ordinances by (1) building the Required Public Roads substandard to the requirements of the Code, (2) failing to timely, publically dedicate the Required Public Roads to County dedicable standards, and (3) erecting Guard Facility on the Required Public Roads in efforts to prey upon the unsuspecting public and market their community as a private gated community with security personnel on duty 24/7. 32. As such, Oceanside has been able to unlawfully profit by reaping the benefit of the Development Agreement without having to bear materials and costs, in the millions of dollars,required to comply with these most important burdens. 33. The second major issue here is the fact that County and Oceanside have twice over (as far as we know) attempted to sub-silentio unlawfully amend the Development Agreement and Incorporated Ordinances through improper, unconstitutional, and illegal means, via a variance and pursuant to a sham dedication. In both situations, Plaintiff, as a neighboring landowner, was not provided with the requisite notice of Oceanside and County's true efforts to circumvent the legal process. 8 710088 34. Oceanside sought a variance to the above mentioned requirements in contravention of the law. However, as neighboring property owner to Oceanside, Plaintiff was/is directly affected by said variance. Recognizing the effect of variances on neighboring property owners, the Hawaii County Code expressly requires variance applicants to provide neighboring property owners of their attempts to circumvent County Code, whether lawfully or unlawfully requested. Plaintiff was provided no notice of the variance whatsoever. 35. Following the variance (which required public notice) County and Oceanside once again attempted to remove the County's dedication standards from the terms of the deal. Specifically, Oceanside dedicated the Mauka Halekii Extension to the County, and the County accepted said dedication pursuant to a County resolution. Dubiously, the Mauka Halekii Extension was not built to dedicable standard as required by the Code as well as the Development Agreement and Incorporated Ordinances. 36. This was not a proper dedication and was, in actually, a thinly vailed attempt to once again amend the Development Agreement and Incorporated Ordinances, this time without any notice to the public. Because this "dedication", amended the Development Agreement and Incorporated Ordinances, proper notice should have been provided to the Plaintiff and the public at large. 37. This display of lethargy and evasion of legal requirements cannot continue. The Development Agreement and Incorporated Ordinances were enacted in order to provide essential benefits to the community, including the Plaintiff Oceanside knew what was expected, required, and agreed to, and, therefore, must be held to the negotiated terms, and the County, in the interest of the Plaintiff and the community at large, must be commanded to enforce the terms. 38. After all, this project was meant to be constructed to create a residential community as well as provide very important public infrastructure to the residents of the 9 710088 Kealakekua area. Oceanside and County should not be able to side step their responsibilities, nor should they be allowed to profit from the bad acts that are on display here. THE PARTIES 39. At all times relevant to this complaint, Plaintiff C & J Coupe Family Partnership ("Plaintiff') is and was the owner of interests in the following parcels with TMK No. (3) 8-1- 007-045 & (3) 8-1-007-057 located in Kealakekua, Hawaii, which is adjacent to the master planned residential development known as Hokulia. 40. Defendant County of Hawaii is a municipal corporation, and is legally responsible for the acts and omission of its departments, officials, and boards and the enforcement of its laws. 41. Defendant Planning Department of the County of Hawaii is created pursuant to Chapter 7 of the Hawaii County Charter is the agency charged with, among other things, enforcing zoning regulations on Hawaii Island pursuant to the Hawaii County Code, Chapter 25. 42. Defendant Zendo Kern is the Director of the Planning Department of the County of Hawaii, and, in performing his duties is and was, at all relevant times, acting under color of law. The Director is being sued only in his official capacity. 43. Defendant 1250 Oceanside LLC is a Delaware limited liability company licensed to do business in the State of Hawaii and is the developer of the residential community known as Hokulia(the "Project") located on the Kona coast in Kealakekua, Hawaii. 44. JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITITES 1-10 (collectively "Doe Defendants") are persons, governments, entities, agents or estates which are in some manner presently unknown to Plaintiffs and who are liable for the claims for relief set forth in this Complaint. Plaintiff is 10 710088 presently unaware of the true names and capacities of the Doe Defendants but will amend the Complaint as soon as they are ascertained. JURISDICTION AND VENUE 45. There is an actual controversy between and among the parties and this Court has jurisdiction to make binding adjudications of right pursuant to Haw. Rev. Stat. § 632-1 and Rule 57 of the Hawaii Rules of Civil Procedure. 46. Venue is proper pursuant to Haw. Rev. Stat. § 603-36(5) because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred in this judicial district, and because the Project which is the subject of this action is located in this judicial district. STATEMENT OF THE FACTS L THE ORDINANCES. 47. On January 15, 1996, Ordinance No. 96-8 and Ordinance 96-7 were signed into law by the Mayor of Hawaii Island. Said ordinances rezoned Oceanside's land, making it possible to begin developing a high-end luxury golf-course and ocean viewing residential development. Ordinance No. 96-8 and 96-7 specifically conditioned their rezoning grant on set requirements. 48. Condition M(4) of Ordinance 96-7 requires Oceanside to "construct the extension of Halekii Street through the subject property . . . which phasing of improvements shall be approved by the Department of Public Works." Condition M(5) of Ordinance 96-7 requires Oceanside to "provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works." 11 710088 49. Condition L(4) of Ordinance 96-8 (which amended certain provision of Ordinance 96-7 but importantly kept those at issue here largely unamended) reaffirmed the requirement that Oceanside "construct the extension of Halekii Street through the subject property[.]" Condition L(5) of Ordinance 96-8 also reiterates the requirement that Oceanside to "provide roadway stub- outs . . . to provide future connections between the subject property and the adjacent properties to the north and south[.]" these roadways were all to be constructed "[p]rior to the issuance of Final Subdivision Approval for any portion of the subject property." 50. Condition N of Ordinance 96-8 requires that "[alit roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." Thus, since 1996, Ordinance 96-8 and 96-7 have required Oceanside to provide the County (1) the Mauka Halekii Extension, (2) the Makai Halekii Extension, and (3) Connector Road. IL THE DEVELOPMENT AGREEMENT. 51. The purpose of a development agreement, among other things, is to freeze existing land development regulations and plans for a fixed period of years in return for good and valuable consideration of, among other things, public infrastructure and facilities. See Haw. Rev. Stat. § 46-121; Hawaii County Code § 30-2; see also DAVID L. CALLIES, REGULATING PARADISE at 6 (2d ed. 2010). 52. On April 20, 1998, the County of Hawaii and 1250 Oceanside Partners (the predecessor in interest to Oceanside)2 entered into the Development Agreement, which was approved and consented to, pursuant to HRS § 46-121 et seq. and Hawaii County Code Chapter 30 and signed into law by the Mayor. Pursuant to the purpose listed above, this Development 2 Paragraph 46 of the Development Agreement provides: "The terms and conditions of this Agreement shall be binding upon,and the benefits of this Agreement shall inure to all successors in interest to the assigns of the parties hereto,and the covenants contained herein shall run with the land."Therefore, though entered into by Oceanside's predecessor in interest, the express terms of the Development Agreement and its Incorporated Ordinances continue to be binding upon Oceanside. 12 710088 Agreement (among other things) locked the rezoning granted under Ordinance 96-8 and 96-7 into place for a term of 30 years, in favor of Oceanside. 53. In exchange, the County was to receive a number of valuable considerations including the conditions of the Incorporated Ordinances, which were incorporated by reference in Section 2(d)(1) and 2(d)(2)respectively. 54. Recital M and N of the Development Agreement provides: M. Pursuant to Sec. 46-121, HRS, Hawaii County Code Chapter 30, and Hawaii County's Rule 1, relating to Development Agreements, the COUNTY and OCEANSIDE have entered into this Agreement. This Agreement will (i) provide for the parameters within which the obligations of OCEANSIDE for public and other improvements will be met; (ii) provide assurances to OCEANSIDE that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use Regulations, including but not limited to changes in zoning classifications or revocation of OCEANSIDE's Approvals, except when, with the agreement of OCEANSIDE, it becomes necessary to preserve the public health, safety and welfare; and (iii) provide appropriate assurances to OCEANSIDE that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of the Agreement, subject to OCEANSIDE's adherence to and performance of all material terms and conditions of this Agreement. N. Use of this Agreement will reduce or eliminate the uncertainty in the Project planning and development approval process, which in turn, would encourage the efficient utilization of resources and minimize the economic cost to the public: allow for the orderly planning of public facilities and services, and otherwise achieve the purposes and objectives for which the Development Agreement Statute and the Development Agreement Code were enacted. This Agreement clarifies the Land Use Regulations and Approvals, which in turn provide for the overall design, construction and development of the Project and all on-site improvements and appurtenances associated therewith, in the manner specified in this Agreement, including, without limitation, the design, construction and development of projects to provide benefits to the region and the COUNTY such as the Bypass Highway and the Coastline Park as set forth herein. (Emphasis added.) 13 710088 III. DEDICATIONS UNDER HAWAII COUNTY CODE. 55. Hawaii County Code § 23-10 provides that the County "shall not . . . receive by dedication . . . any street in any subdivision . . . except in full compliance with the provisions of this chapter." The Incorporated Ordinances made clear that the Required Public Roads needed to be dedicated to the County. 56. In other words, Oceanside is required to construct the Required Public Roads, AND dedicate those roads to and for the benefit of the County and its citizens (including the Plaintiff). In order to properly dedicate these roads, they must be in full compliance with the requirements of the Hawaii County Code. 57. Upon information and belief, Oceanside has not constructed the Mauka Halekii Street Extension, the Makai Halekii Street Extension, or the Connector Road in accordance with the requirements of the Hawaii County Code. 58. Furthermore, Oceanside has placed the Guard Facility at the entrance of Hokulia, directly on the Required Public Roadways. The effect of said Guard Facility is the creation of a private gated community and, to the detriment of the public, the privatization of the Makai portion of the Halekii Street Extension and Connector Road. 59. Given that the Development Agreement and Incorporated Ordinances expressly required the Required Public Roads within Hokulia to be dedicated to the County (and the public at large), Oceanside has clearly breached the Development Agreement and Incorporated Ordinances by erecting the Guard Facility which, in effect, has allowed Oceanside to create and market Hokulia as a private gated community. The Makai Halekii Street Extension and Connector Road both being covered under the variance verify the information and belief of their substandard build. Worse yet, Oceanside illegally attempted to dedicate the Mauka Halekii Extension and the County unlawfully accepted said illegal dedication through County of Hawaii Resolution No. 317-12,despite said road not being in compliance with Chapter 23 of the Code and contrary to the Development Agreement and Incorporated Ordinances. 14 710088 IV. NO LEGAL AMENDMENT TO DEVELOPMENT AGREEMENT OR INCORPORATED ORDINANCES HAS BEEN ISSUED. 60. Paragraph 27 of the Development Agreement provides: This Agreement may be amended or canceled in whole or in part by mutual consent of the parties to this Agreement, or their successors in interest, as further evidenced by County Council resolution, provided that if the County Council determines that the proposed amendment would substantially alter the original terms of this Agreement, a public hearing on the amendment shall be held by the County Council before it consents to the proposed amendment. This language echoes both Haw. Rev. Stat. §46-130 and Hawaii County Code Section 30- 9's requirements to amend development agreements. 61. The process required to amend a County of Hawaii ordinance is a steeper hurdle. Ordinances are the laws of a county or municipality, and typically only amendable through a subsequent ordinance. (See Revised Charter of the City & County of Honolulu Section 3-204 (stating "[n]o ordinance shall be amended, revised or repealed by the council except by ordinance.")). 62. The County of Hawaii Charter lacks express language dictating the means to amend an ordinance. See generally County of Hawaii Charter (lacking similar language to the Revised Charter of the City & County of Honolulu Section 3-204). However, Section 2-2 of the County of Hawaii Charter states that "[a]11 powers of the county shall be carried into execution as provided by this charter or, if the charter makes no provision,by ordinance or resolution of the county council."Additionally, Section 3-8 of the Charter states that "[e]very legislative act of the council shall be by ordinance." 63. So, despite not expressly stating that an "ordinance shall not be amended, revised or repealed by the council except by ordinance", as the Charter of Honolulu does, the catchall provision of the County of Hawaii Charter creates a similar mechanism for amending ordinances. 15 710088 64. Neither the Development Agreement nor its Incorporated Ordinances have ever been lawfully amended, thus, Oceanside's obligations under both, specifically as to the design, build, and dedication of the Halekii Street Extension (both Mauka and Makai of the By-Pass Highway) and Connector Road, have never changed. 65. County and Oceanside are very much aware of the above detailed legal process of amending an ordinance, as they have previously amended the Incorporated Ordinance. On May 8, 2008, County enacted Ordinance 08-59 with the specific purpose of amending Ordinance 96- 8. 66. Ordinance 08-59 removed a requirement set in place by Ordinance 96-8 which called for a barricade of the Mauka Halekii Extension. In exchange for the removal of said condition, Oceanside was required to put in place a number of mitigation measures for the increase in traffic that the Mauka Halekii Extension would bring to the preexisting Halekii Street. County conducted a traffic study and held public hearings in order to determine the validity of said amendment. Following this legal ordinance amendment process, County Council and the Mayor signed Ordinance 08-59 into law. 67. However, despite being party to the proper amendment procedure back in 2008, County and Oceanside have since that time tried to circumvent the ordinance amendment requirements through a number of unpermitted and unlawful means (to be discussed in the following sections), misguidedly ignorant to, or maliciously ignoring, the clear and proper way to amend the Development Agreement and Incorporated Ordinances. V. THE VARIANCE 68. Sometime in or around 2010, Oceanside attempted to amend condition M-4 (Ordinance No. 96-7) and condition L-4 (Ordinance No. 96-8) by submitting Variance Application: VAR 10-027 (the "Variance"). Said application was an effort to circumvent 16 710088 dedication standards under the County Code prescribed under Sections 23-86 and 23-41 of the County Code. 69. Variance 10-027 was deficient for a number of reasons: (1) Oceanside failed to meet the specific criteria required for a variance under the County code, (2) the Variance unlawfully attempted to amend the Development Agreement and Incorporated Ordinances, and (3) Oceanside failed to provide Plaintiff with specific notice of the variance application. 70. Despite these deficiencies, County improperly and illegally issued the Variance on January 31, 2011. a. Conditions for Variance Were Not Met. 71. Section 23-15 of the Hawaii County Code states that all the following conditions must exist for a variance to be granted: i. There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial property rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; and ii. There are no other reasonable alternatives that would resolve the difficulty; and iii. The variance will be consistent with the general purpose of the district, the intent and purpose of this chapter, and the County general plan and will not be materially detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties 72. These express requirements to grant a variance were not met here, inter alia, because the most reasonable alternative was for Oceanside to do as it promised and bear the burdens that they agreed to in the Development Agreement and Incorporated Ordinances and build the Required Public Roads to County dedicable standards. Passing the burden to the County, while Oceanside purely reaps the benefits, is not a reasonable alternative for a variance. 73. Further, it is well settled law that in order to show deprivation of property rights warranting a variance, an applicant must prove something more than financial burdens or 17 710088 economic hardships. Surfrider Found. v. Zoning Bd. of Appeals, 136 Haw. 95, 110 (2015). Oceanside pleaded these economic hardship grounds when applying for the Variance. In their variance application, Oceanside claims that due to the special and unusual circumstances of the property (the topography of the Hokulia Development) full compliance with the County Standards of Section 23-86 and Section 23-95 would "add considerable cost to [Oceanside]." This does not meet the requirement for deprivation justifying a variance. b. Variance is an Improper, Impermissible, and Illegal Means to Amend Development Agreement and Incorporated Ordinance. 74. In actuality, the Variance was a thinly veiled attempt to amend the Development Agreement and Incorporated Ordinances. A method of amendment that is improper, impermissible, and illegal. 75. Specifically, in granting Variance 10-027, Oceanside sought to circumvent the express language of the Development Agreement and Incorporated Ordinances, which requires Oceanside to dedicate the Required Public Roads to County dedicable standards, as important public infrastructure. 76. This very issue was highlighted in a Memorandum from Division Chief of the Engineering Division of the Department of Public Works, Ben Ishii, to Leithead Todd (County Planning Director at the time) ("Ishii Letter"), "the application does not acknowledge that Ordinance 96-8 Condition L and M required dedication of the connecting roads [(Required Public Roads)]. DPW object to granting a variance without specifying cross section details and distinguishing those streets. For example, Halekii street extension which is a collector street . . . shall be dedicated to the County as required by ordinance. Because of safety, liability and maintenance concerns, separate details should be provided for roads that do not require dedication to the County by ordinance and those that do require dedication. Additional conditions such as roadside landscape and drainage system maintenance requirements and streetlights along with a surety in case of default should be imposed for roads required to be dedicated to the County." 18 710088 77. The Ishii Letter highlighted the fact that conditions on ordinances and requirements under development agreements are amended via the rules listed above, and may not permissibly be alleviated through simple variance. 78. To reiterate, the way to properly and legally amend an ordinance is via subsequent ordinance, not through variance. A fact that Oceanside and County are very well aware of, as they amended the Incorporated Ordinances in 2008 through Ordinance 08-59 (pertaining to barricading the Mauka Halekii Extension). 79. Thus, not only had Oceanside failed to meet the elements required to grant a variance, but they have also attempted to circumvent the law by impermissibly, improperly, and illegally attempting to amend the Development Agreement and Incorporated Ordinances. c. Improper Procedure: Failure to Provide Notice to Neighboring Landowners. 80. In addition, the Variance was also procedurally deficient. 81. Any and all applications for variances under the Chapter 23 of the County Code, requires specific notice to be provided to neighboring landowners. 82. Section 23-17 of the Hawaii County Code sets forth the notice provision of the subdivision variance procedure, expressly stating that in order for a variance to be issued, "the applicant shall serve notice of the application on owners of interest in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought." 83. Plaintiff (a neighboring landowner) was not, upon information and belief'', provided specific notice of Oceanside's application for Variance 10-027 as is required by the clear dictate of the law, let alone notice sufficiently disclosing the Variance's true impact. Plaintiff did not receive specific notice of the Variance application and the variance files provided by County(for Variance 10-027)do not include a certified mail receipt corroborating any such notice having been provided to Plaintiff. 19 710088 84. Oceanside's failure to provide notice of the Variance is made even more likely given their pattern of behavior when it comes to providing Plaintiff with notice of adverse (relative to Plaintiff's interest) attempts to amend the Development Agreement and Incorporated Ordinances. 85. Specifically, on January 23, 2020, Oceanside sent Planning Department Director, Michael Yee, a request to amend Condition M of Ordinance No. 96-8 under which Oceanside would no longer be obligated to dedicate the Required Public Roads. Such request required Oceanside to also provide a list of neighboring property owners who would be affected by the requested amendment. 86. Merits of the 2020 request to amend Ordinance No. 96-8 (which froze zoning on the land for over two decades) aside, Oceanside "conveniently" failed to include Plaintiff on the required list of neighboring properties. 87. As highlighted by Michael Yee's response to Oceanside, dated February 11, 2020 (the "Yee Letter"), this omission was due to Oceanside only seeking to notify property owners located 1,000 feet from the road lots rather than 1,000 feet from all property boundaries. This duplicity allowed Oceanside to avoid providing Plaintiff's lot (TMK: (3) 7-9-012:004) notification of any attempts to amend. 88. Despite the Yee Letter informing Oceanside to include Plaintiff on any notice lists, Plaintiff only recently discovered the attempted 2020 amendment through independent investigation. That is to say, Oceanside once again refused to freely (as required by law) provide specific notice of an attempt to adversely affect Plaintiff's property interest. 89. The blatant evasion displayed in Oceanside's failure to provide notice for the attempted 2020 amendment further corroborates the premise that the Variance similarly lacked the requisite notice. 20 710088 90. Thus, not only did the Variance lack substantive merit, it was also procedurally deficient as well. In almost all perceivable aspects, the Variance was improper, impermissible, and illegal. VI. UNLAWFUL GRANT OF MAUKA HALEKII EXTENSION WITHOUT ADHERENCE TO DEDICATION STANDARDS. 91. An illegal variance was not the only act of subterfuge at play here. Oceanside also attempted to dedicate substandard roadways to County in an attempt to sidestep its obligations under the Development Agreement and Incorporated Ordinances, and the County, for its part, accepted. 92. The County attempted to receive the Mauka Halekii Extension from Oceanside in the form of three roadway lots, more particularly described as Tax Map Numbers (3) 8-1- 035:004, (3) 8-1-035:001, and (3) 8-1-036-001 (portions of) (i.e. lots 10-A, 1B and 3-A2, which respectively correspond to the TMK numbers). The physical road upon the Mauka Halekii Extension sits on top of these three roadway lots. 93. Oceanside unlawfully and impermissibly "dedicated" roadway lots as the Mauka Halekii Extension and, pursuant to resolution No. 317-12 the County accepted said "dedication" on November 9, 2012 (the "Resolution"). 94. Dedication of the Mauka Halekii Extension was improper for two reasons: (1) Mauka Halekii Extension was not built to County standards required for dedication, thereby breaching the Development Agreement and Incorporated Ordinances, and (2) the actual intent of this resolution/dedication was to unjustly amend the Development Agreement and Incorporated Ordinances, either of which require notice to Plaintiff and the Public. a. Attempted Dedication is Material Breach of the Development Agreement and Incorporated Ordinances. 21 710088 95. First, the Resolution makes a number of representations that are patently untrue about the condition of the Mauka Halekii Extension. The Mauka Halekii Extension was accepted under the express condition that said road was "in full compliance with the provision of Chapter 23 of the Hawaii County Code." 96. However, the Mauka Halekii Extension was not built to dedicable standards, failing to be in full compliance with Chapter 23 of the Hawaii County Code in a number of ways. 97. Specifically, Hawaii County Code § 23-86(b) requires that dedicable streets "shall be constructed in accordance with the specifications in this section and those on file with the department of public works." In addition, dedicable streets "shall be installed under the supervision of the director of public works and to permanent grades approved by him." 98. Upon information and belief, the Mauka Halekii Extension (1) was not "constructed in accordance with the specifications in 1§ 23-86]," (2) was not "constructed in accordance" with the specifications "on file with the department of public works," and (3) was not "installed under the supervision of the director of public works[.]" 99. This is confirmed by the Planning Director Leithead Todd in the issuance of Variance 10-027 on January 31, 2011 where she states that: "It should be noted that the extension of Halekii Street has been completed without full right-of-way improvements per construction plans approved by the Department of Public Works." 100. The Mauka Halekii Extension is displayed below: 22 710088 101. This is in stark contrast to the already existing Halekii Street, which lies east of the Mauka Halekii Extension (the "Old Halekii Street"). The Old Halekii Street provides a greater width of pavement and multiple improvements. To illustrate the differences, the Old Halekii Street has 36-feet of paved surface, curbs, gutters, sidewalks, and streetlights. In contrast, the Mauka Halekii Extension shown above is a 24-foot wide paved surface, but devoid of curbs, gutters, sidewalks, and streetlights. It also has no graded and paved shoulders and swales as is standard for dedicable streets. Displayed in the photographs below is a west facing view from the vantage point of the Old Halekii Street toward the Mauka Halekii Extension: - � k .w�lS i s� 23 710088 4 Y t �. ^�`•Y ti s. '" r a i - R t a d�! L"._ Y;,-, '., ✓ 4. X ..l".-( fid „ ?'t `N y.T�. w 44t ;4 `, "v -,-.,;).7... ..�y„ M ,...ka.t�srt: 102. To further highlight the differences between the Old Halekii Street and the Mauka Halekii Extension, below is a photograph taken of the Old Halekii Street facing East: .� W... /. ' 1 % A ,, AA _x i . G _�-.. - '/ ru m ,; 6b l ..•'. :' ''''.*a r.."'1"4 '''.4;/41TZ." 103. The drastic decrease in infrastructure is not only impermissible and improper for dedication, but also may cause confusion and create a hazard for drivers and pedestrians, thereby exposing citizens to unsafe conditions. 24 710088 104. Further, and perhaps more damning, upon information and belief, the Mauka Halekii Extension was not constructed to the Department of Public Work's standard and based upon detailed plans and specifications approved by the Chief Engineer of the Department of Public Works, as had been represented and as is expressly required under County Code, nor did the director of public works supervise the construction of the Mauka Halekii Extension to ensure that it meets County standards. Both of which are requirements for dedicable streets under Section 23-86 of the County Code. 105. As stated above, the road that is the Mauka Halekii Extension was built in the early 2000's, before Oceanside in its current iteration, far before this current County administration, before Ordinance 08-59 was implemented to allow the opening of the road to the public, and before the importance of Mauka Halekii Extension as a secondary arterial road was even considered. 106. Importantly, the Variance sought to "permit[] the retention of existing" roadways within Hokulia which were not built to County dedicable standard. This included, but was not limited to, the Mauka Halekii Extension. The Variance, already lacking in merit as indicated above, also once again highlights the fact that the Mauka Halekii Extension was not legally dedicated to the County. 107. The fact that an after-the-fact variance was requested for the Mauka Halekii Extension's substandard condition all but proves that the roadway was neither "constructed in accordance with the specifications in [Section 23-86] and those on file with the department of public works" nor was it "installed under the supervision of the director of public works and to permanent grades approved by him." After all, if the Mauka Halekii Extension had been constructed and supervised to dedicable standard, it would not have needed a variance in order to be"dedicable". 25 710088 108. It is therefore unlikely, if not impossible, for the Department of Public Works to have provided specifications before construction as well as supervision during construction of the Mauka Halekii Extension in the form in which it was "dedicated" (as a secondary arterial). 109. Because it failed to meet the dedicable standards of the County, the dedication of the Mauka Halekii Extension was, for all intents and purposes, a sham. 110. Despite the warranties of the County made in the Resolution, the County illegally attempted to accept the Mauka Halekii Extension far below the acceptable standards, in violation of the Development Agreement and Incorporated Ordinances. 111. By attempting to accept the substandard dedication of the Mauka Halekii Extension, County has publicly violated its own standards set forth in the Hawaii County Code § 23-10, bald-facedly misrepresented adherence to the Development Agreement and Incorporated Ordinances, and dubiously attempted to deceive the public at large. 112. Further, this substandard attempt at dedication has placed the onus of maintaining the currently deficient Mauka Halekii Extension, as well as liability stemming from the road, upon the County and, by extension, its citizens. Thus, not only has the County's subterfuge betrayed the public trust, but it has also strapped its citizens with millions of dollars in construction costs, liability and long term maintenance. 113. Thus, the Mauka Halekii Extension needs to be closed and rebuilt to the express requirements of Chapter 23 of the Hawaii County Code. This means an 80-foot width and 24-feet of pavement, sufficient base course, graded and paved shoulders and swales, streetlights, and, perhaps most importantly, thorough and in-depth input from the Department of Public Works in the form of specifications before, and supervision during, construction. b. Attempted Dedication is, in Actuality, a Faulty Attempt to Amend the Development Agreement and Incorporated Ordinances, Which Required Notice to Plaintiff. 26 710088 114. What acceptance of the Mauka Halekii Extension truly represents is another attempt (albeit less public and more dubious) to, like the variance, circumvent the legal requirements to amend the Development Agreement and Incorporated Ordinances. 115. A resolution is not a valid way of amending a development agreement or a county ordinance. 116. In addition, as has been stated before, amendments to a Development Agreement (in this substantial way) and Incorporated Ordinances (in any way) requires notice to be provided to the public. Perhaps in attempts to stealthily avoid such notice, County and Oceanside simply ignored the requirements of the County Code and signed the resolution accepting the dedication in this substandard form, no questions asked. 117. Whatever the motive or justification the County had for issuing the Resolution, it failed to amend either the Development Agreement or the Incorporated Ordinances. 118. Thus, even if County could accept the dedication of these substandard "roadway lots" being offered by Oceanside (which they cannot, as detailed above), this acceptance of "roadway lots"would not relieve Oceanside of its obligations under the Development Agreement and Incorporated Ordinances to design and build the Mauka Halekii Extension (and all Required Public Roadways for that matter) on top of said "roadway lots" to the express dedicable standards prescribed under the County Code, and at Oceanside's sole cost and expense. 119. The Resolution was, in actuality an unlawful and impermissible attempt to amend the Development Agreement and Incorporated Ordinances. Because no lawful amendment to the Development Agreement or Incorporated Ordinances has been effectuated in the Resolution, the obligations under those instruments to dedicate the Mauka Halekii Extension (to County standards)has not been satisfied. 27 710088 VII. UNLAWFUL DENIAL OF PUBLIC INFRASTRUCTURE. 120. Finally, at some point in time, Oceanside constructed the Guard Facility just west of the point at which the Mamalahoa By-pass Highway meets the Makai Halekii Extension, effectively creating the "private" community known and marketed as Hokulia. 121. Sometime in or around 2011, Hokulia installed the first iteration of the Guard Facility in efforts to impede public access to the Required Public Roads. The aerial photograph below depicts the first location of the Guard Facility in 2011. MEMO lams 44 ... - • 122. Over the years, this Guard Facility has continuously increased its fortification. Changing locations within Hokulia in order to increasingly bolster efforts for the privatization of said "private" community. The 2013 image below shows the first major shift in the Guard Facility's location along the public road entrance to Hokulia. This position allowed the simple, rudimentary Guard Facility to have a better strategic position for controlling egress and ingress into Hokulia: 28 710088 r4 • • 123. The current iteration of the Guard Facility was provided after-the-fact permitting approval on August 28, 2014 and passed final inspection on July 28, 2015. In the pursuit of which, Oceanside misrepresented the structure as a simple "Greeter Hale", created solely for the purpose of distributing information. However, misrepresentation or not, the County's grant of a permit for the Guard Facility makes them complicit in the privatization of roads that were expressly to be dedicated to the public. 124. To further highlight the bad acts here, as of 2023, this simple "Greeter Hale" comes equipped with electric gates and cameras. The Guard Facility is now firmly positioned between the ingress and egress point of Hokulia's entrance and members of the public are required to state a name and purpose for their visit to the "public roadway". 29 710088 125. It is clear that Oceanside designed and built the Guard Facility as a linchpin in keeping Hokulia "private". The current iteration of which, affords Oceanside a stranglehold on the public's access to their community, as the Makai Halekii Street Extension is the only road currently entering Hokulia. 126. This privatization, flies entirely in the face of a true "public dedication" as required under the express language of the Development Agreement and the Incorporated Ordinances, and also robs the citizens of Hawaii of the public access to the shoreline park located on the Hokulia Lands, which was bargained for under the Development Agreement. 127. Following a dedication to the County, the Makai Halekii Street Extension and Connector Road will be the responsibility of the County. The County (and by extension its citizens) should not be strapped with the liability and costs associated with maintaining the Makai Halekii Extension and Connector Road when said public roadways have, in effect, become the private property of Oceanside. COUNT I: DECLARATORY RELIEF (All Defendants) 128. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 129. An actual controversy exists between Plaintiffs and Defendants because Oceanside has not complied with the Development Agreement and its Incorporated Ordinances, and the County Defendants have not enforced the conditions of the Development Agreement and its Incorporated Ordinances mentioned herein. 130. County Defendants are indefinitely and arbitrarily refusing to enforce the conditions set forth in the Development Agreement and ordinances incorporated therein. 30 710088 131. A declaratory judgment will serve to terminate the uncertainty or controversy giving rise to this proceeding. 132. Plaintiff is entitled to a declaratory judgment that Oceanside has violated the Development Agreement and Incorporated Ordinances by (1) not timely designing, building and dedicating Required Public Roads according to condition M of Ordinance 96-7 as well as conditions L and N of Ordinance 96-8, and (2) developing, marketing, and selling subdivided lots as part of a "private gated community" against the public access requirements of the Development Agreement. 133. Plaintiff is entitled to declaratory judgment that County unlawfully granted Variance to amend conditions expressly required under the Development Agreement and Incorporated Ordinances, as well as impermissibly accepted the Mauka Halekii Extension via Resolution accepting three roadway lots despite the roadway on said lots failing to meet County dedicable standards. COUNT II: INJUNCTIVE RELIEF—MANDAMUS TO ENFORCE DEVELOPMENT AGREEMENT (County Defendants) 134. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 135. "Mandamus relief is available to compel an official to perform a duty allegedly owed to an individual only if the individual's claim is clear and certain, the official's duty is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available." In re Disciplinary Bd. Of the Haw. Supreme Court, 91 Haw. 363, 368, 984 P.2d 688, 693 (1999). 136. Enforcement of the Development Agreement is a ministerial act in that it leaves no discretion to the County Defendants in determining whether the conditions of the Development Agreement have been met. 31 710088 137. Paragraph 25 of the Development Agreement provides: [w]ithin thirty (30) days after the Planning Department or the Office of the Mayor determines on the basis of the periodic report that OCEANSIDE has committed a material breach of the terms or conditions of this Agreement, the Planning Department or the Office of the Mayor, as applicable, shall inform OCEANSIDE in writing of the same, setting forth with reasonable particularity of the nature of the breach and any and all evidence supporting the finding and determination, provided, however, that OCEANSIDE shall be given reasonable time period in which to cure any such material breach. 138. Upon information and belief, the County Defendants have failed to inform Oceanside of its material breach of the Development Agreement due to the fact that Oceanside has not constructed the Required Public Roads to County decidable standards. Upon information and belief the County has failed to give Oceanside reasonable time in which to cure its breach. 139. Plaintiff is entitled to an order preliminarily and permanently enjoining the County Defendants from refusing to enforce the Development Agreement. 140. Plaintiff is entitled to a mandatory injunction and mandamus relief requiring the County Defendants to enforce the conditions of the Development Agreement and require Oceanside to construct the roads listed in condition M of Ordinance 96-7 and conditions L and N of Ordinance 96-8 to dedicable County standards, within a timeframe determined as reasonable by the Court. 141. The County and Oceanside should be required to submit a plan to the Court detailing how and when Oceanside will come into compliance with the ordinances mentioned herein. 142. No other remedy is available because without constructing the Required Public Roads to County dedicable standards Oceanside is unable to comply with the conditions of the Development Agreement. COUNT III: DENIAL OF DUE PROCESS UNDER THE UNITED STATES AND HAWAII CONSTITUTIONS 32 710088 143. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 144. Plaintiff has a valuable and constitutionally protected property interest as the neighboring property to Defendant. 145. The Fifth and Fourteenth Amendment of the United States Constitution, as well as the Hawaii State Constitution, provides that no person shall be deprived of life, liberty, or property without due process of law. See also Haw. Const. Art. I, § 5 (stating same). 146. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant property interest. Sandy Beach Def Fund v. City Council of City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 147. Pursuant to its rule making power under HRS § 91-2(a)(2), Hawaii County adopted Section 23-17 of the Hawaii County Code. Said section of the Code sets forth the notice provision of the variance procedure, expressly stating that in order for a variance to be issued, "the applicant shall serve notice of the application on owners of interest in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought." Further, the Hawaii County Code requires such notice to list "the nature of the use sought and the proposed accompanying structures, if any[.]" 148. In this case, Plaintiff, an "owner[] of interest in properties within three hundred feet of the perimeter boundary of the applicant's property", was afforded neither notice nor an 33 710088 opportunity to be heard at a meaningful time and in a meaningful manner before being deprived by County of its significant property interest via the grant of Variance 10-027. 149. Due process also includes a substantive component that guards against arbitrary and capricious government action which has no substantial relation to the public health, safety, morals or general welfare. Lopez v. State, 133 Haw. 311, 322, 328 P.3d 320, 331 (2014) (quoting In re Herrick, 82 Haw. 329, 349, 992 P.2d 942, 962 (1996)). 150. By granting the Variance the County allowed Oceanside to sidestep the express requirements of the Development Agreement and the Incorporated Ordinances, which had been put in place for the public's health, safety and general welfare. The Variance was granted despite both Oceanside and County having knowledge of the proper procedure to amend ordinances, and acknowledgement of these very issues in a memorandum from Ben Ishii of the Department of Public Works. Thus, County's grant of Variance 10-027 was arbitrary and capricious and directly at odds with the principals of public health, safety and general welfare. 151. For the above reasons, Plaintiff is entitled to a judicial declaration that County has interfered with Plaintiff's procedural and substantive due process rights. RELIEF SOUGHT WHEREFORE, Plaintiff respectfully requests that judgment be entered in their favor and against Defendants as follows: A. For appropriate declaratory relief regarding the unlawful acts and practices of Defendants. B. For a mandamus and injunction (respectively) against the County and Oceanside for the compliance and enforcement of the Development Agreement and Incorporated Ordinances, specifically in regards to building and dedicating the Roads to County standards and the immediate cessation of restricted public access and removal of the Guard Facility and the 34 710088 adjoining walls, gates, etc. that serve to impede public access, in a timeframe the Court determines to be reasonable, as well as declaration that the Variance and Resolution accepting dedication of the Mauka Halekii Extension were illegal and therefore void. C. For the immediate closure of the Mauka Halekii Extension, from the point at which it meets the Old Halekii Street (on the upper east end) and down to the point at which it connects to the Mamalahoa By-Pass Highway, until said Required Public Roadway can be brought up to dedicable county standards, inclusive of construction plans and specifications approved by the Department of Public Works as well as supervision by County engineers at the Department of Public Works during construction of the Mauka Halekii Extension. Such closure is necessary to protect the general public's health, safety and welfare from travel over a substandard road. D. For an award of reasonable attorneys' fees and costs to be awarded on directed judgment. E. Such other and further relief as the Court deems just and proper. DATED: Honolulu, Hawaii, March 31, 2023. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K Yamamoto KENNETH R. KUPCHAK TOREN K. YAMAMOTO Attorneys for Plaintiff C &J FAMILY PARTNERSHIP 35 710088 APPENDIX "A" _ Z z i CC Z ° •_ • ~ J l ! _ _ti` a.. .. W : , -4,-7-- j ;. . ... 1. t, • - ♦ -• '�T -e .• Inm 1 ,__,. : )) \ W 4.';:(4. . \-41-14.,. .r" • -7L $ \ '4.. --' - .:::i%. f• .':.: --:' :•-• 'f: 1.. TAY VP:, .1 41 :ii. ) '... r • I ,i 1..., .1) ' ' tl ‘4 k‘ ' ' , •‘.-"ri)yi.i;•7 • 1 I! I .. 2 , lit....., „ I'�j r---i 01 • '�C ,�''Ft� a �� QiCr� 1. • • '.t(}ll` ��l• ��,1�� J. , �i;��g L ';�C i �,� ' t' i --1. 4 �11,/,'. 4- II 1 . ; ‘'.!ilit,2t.,,,4)s tiogiteT44// '' ....,, . , -:i ----1, Al •e,-' Vit;f:!,,P?- 4'-,i(..,4-'t, ,-14-,/,.#9, • l'i c4,!„ "� T' ` 0177:SIJ• t. g � IA• w, �7 , ,moo' , . , '- ► 7 �. _ IC 11. i t:'? n..,1-.-/0. � • , �• 7N4. A4t'tl'rkrrPy 'C l t. 'F"'•i• .d� 1 9 fr.f ji i /� it ���' .r p &A;k .4*:"( ?: ',...‘131-• .. 1- „, ?I . < u) 2,,,ti Ile-1:b ,' ,/AI U -i0-1•'. •i'.i. • •;-. s)0/(0‘,0,P, .-4....,L.4. • / 21y1 PO t .,. 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( :-..1;p u,l -,.."1-7. ar.• ,„s„. . _if.4,,,, .,7 . ., ........"::: '''' - ':":4-. 1 .1 I -(3:-.: .7,...;..:....1.4:S'.4...):7..4.:iacc.c...rie..11:1-if.411j Irv.fk\-sc: 5.... •uil.' --. , 7 i k: .: if _ i i , ../••••),.- .. • -, : • 5.&t-e e- ' .1••• 199 CO i$'1-1---e• le— I •17.: Ji fi:.—:".-T7*- ' ' ._..- .• • ".-' ,„,- • • - i*! .1• 14,•z „.I 0 1 1 i.,,, •Nct,..--, ...g, i,- iii. , `� 1.T `rl' . •1 • IQ— A00563 APPENDIX "A" APPENDIX "B" Aie ennethspringerLlisting�/ Big Island(/kennethspringerLlistingLg-island/)/ South Kona(/kennethspringerLlistings/big-islandLsouth-konaL)/ Hokulia(/kennethspringer/listings/big-island/south-kona/hokulia/) a ,- — --... .`— •- _ rr Z '' * ",r vi•, r �: litilit ,�. -.w4w ••"- .T iy "'';''./'. 1 it'i ,70 '. -,V4';:;•:/.,,.'.:',',:A' o 'f 1,,,'„.: 1 -� ,, . ..,...4`4::,. 3,..1 I .�!',:,...,14,1,,/,', ..',9.',i/11/1, i} �br -- y�)444'4 - ,. prey �' - r — , - ___-Amor ,r.1 iii • ita ad'r '' 4� _ I � .4! �-7yr7hr � q J,m }y iso'" F y�� ',ate '%%.,q, - `*,fd` 81-6511 LAUPAI WY in Kealakekua, Hawaii 9 Show Location(/kennethspringer/listings/81-6511-Iaupai-wy-kealakekua-hi-96750-1#map) Q Virtual Ti3ur(https:h tours.hawaiianvirtualtours.cam/1760809?idx=1) Print Page (https:h s3-us-west-2.amazonaws.aom/rets- m Is/feature_sheets/documents/000/136/964/original/136964_9694c307743f5a8df6b771 ca6268808 a.pdf? 1626479712) APPENDIX "B" $390,000 44,257 sq ft land 1.02 ac Est. Mortgage Payment$1,991 (/kennethspringer/listings/81-6511-laupai-wy-kealakekua-hi-96750- 1#mortgage calc) Fee Simple I Sold I Days on Market 94 Aloha! 011, 1 ir it Kenneth (/kennethspringer) Springer (/kennethspringer) REALTOR SALESPERSON kennethspringer@hawaiilife.com (808)937-3535 i C/ n 6Lb`f y Mika (/mikaono) Ono (/mikaono) REALTOR SALESPERSON mikaono@hawaiilife.com (808)443-1281 Aloha! . Je f f(je f freid) Reid (/jeffreid) REALTOR SALESPERSON jeffreid@hawaiilife.com (808)339-6275 ACTIONS FOR 81-6511 LAUPAI WY SET ALERT SEE THIS PROPERTY VIRTUAL OR IN-PERSON Located on the Kona Coast of Hawaii Island, Hokuli'a is a stunning 1,300 acre private residential community situated one of the world's most beautiful and culturally significant ocean-side properties. Hokuli'a extends three miles along the Kona Coast, rising from the dramatic shoreline up to an elevation over 700 feet with amazing ocean views. The Club at Hokuli'a is home to Jack Nicklaus Signature Design golf course and constantly ranked among the best courses in Hawaii. Polynesian styled pavilion with full bar and restaurant seating where seasonal whales, spinner dolphins and fishing vessels may be enjoyed. The sunsets are spectacular! Other Club Features are: Fitness Center Lap pool and Aquatics Tennis Courts Shoreline Park and Trails Locker Rooms and Lounges Akom and Massages Bocce Ball Courts The luxury amenity offerings available to members and their guests. Lot 183 is a superior 1.02 acre home site with panoramic ocean and whitewater views, gorgeous sunsets, views of Red Hill and the southern coastline with the waves crashing against the cliffs. Excellent home site for a great price. Elevation 579 feet. An equity membership in the Club at Hokuli'a, valued at $150,000, is included in the sales price. Hokuli'a is a gated community with security personnel on duty 24/7. PROPERTY DETAILS FOR 81-6511 LAUPAI WY TAXES FOR 81-6511 LAUPAI WY MLS # 647751 Tax Id 3810290350000 Property Type Land Gross Taxes $2,550 Lot Size (Ft) 44,257 Taxes For Tax Year 2020 Flood Zone X Pool N Water Source Municipal Topography Gentle Slope Solid Waste Disposal Private Contractor Listing Brokerage Windermere C&H Properties Hoa Fees $2,928 View Specify Coastline,Ocean,Ocean Horizon, Sunset County Data Click Here (https://gpublic.schneidercorp.com/Application.as... Appl D=1048&Layerl D=23618&PageTypel D=4&Pag... IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C & J COUPE FAMILY LIMITED ) CIVIL NO. PARTNERSHIP, ) ) SUMMONS Plaintiff, ) ) vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) SUMMONS STATE OF HAWAI`I To the above-named Defendants: YOU ARE HEREBY SUMMONED and required to file with the Court and serve upon, KENNETH R. KUPCHAK, and TOREN K. YAMAMOTO, Plaintiff's attorneys, whose address is 1003 Bishop Street, Suite 1600, Honolulu, Hawai`i 96813, an answer to the Complaint which is hereby served upon you, within twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be rendered against you for the relief demanded in the Complaint. This Summons shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises not open to the general public, unless a judge of the above-entitled court permits, in writing on this Summons, personal delivery during those hours. A failure to obey this summons may result in an entry of default and default judgment against the disobeying person or party. DATED: Kailua-Kona, Hawai`i, CLERK OF THE ABOVE-ENTITLED COURT In accordance with theAmencans with Disabilities Act,and other applicable stale and federal laws,it you require e (1SPreasonable accommodation for a disability,please contact the ADA Coordinator at the Circuit Court Administration Off ce on OAHU-Phone No.808-539-4400,TTY 808-539-4853,FAX 539.4402,at least ten(10)working days prior to your hearing or appointment date_ 37 710088 STATE OF HAWAII CASE NUMBER CIRCUIT COURT OF THE SUMMONS THIRD CIRCUIT TO ANSWER CIVIL COMPLAINT PLAINTIFF VS. DEFENDANT(S) C & J COUPE FAMILY LIMITED PARTNERSHIP COUNTY OF HAWAII; COUNTY OF HAWAII, PLANNING DEPARTMENT; ZENDO KERN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE COUNTY OF HAWAII, PLANNING DEPARTMENT; 1250 OCEANSIDE LLC; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10 PLAINTIFF'S NAME&ADDRESS,TEL. NO. DAMON KEY LEONG KUPCHAK HASTERT KENNETH R. KUPCHAK#1085-0 TOREN K. YAMAMOTO#11520-0 1003 BISHOP STREET, SUITE 1600 HONOLULU, HAWAII 96813 TO THE ABOVE-NAMED DEFENDANT(S) You are hereby summoned and required to f le with the court and serve upon DAMON KEY LEONG KUPCHAK HASTERT, ATTN: KENNETH R. KUPCHAK, ESQ. and TOREN K. YAMAMOTO, ESQ. plaintiff's attorney, whose address is stated above, an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the date of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. THIS SUMMONS SHALL NOT BE PERSONALLY DELIVERED BETWEEN 10:00 P.M.AND 6:00 A.M. ON PREMISES NOT OPEN TO THE GENERAL PUBLIC, UNLESS A JUDGE OF THE ABOVE-ENTITLED COURT PERMITS, IN WRITING ON THIS SUMMONS, PERSONAL DELIVERY DURING THOSE HOURS. A FAILURE TO OBEY THIS SUMMONS MAY RESULT IN AN ENTRY OF DEFAULT AND DEFAULT JUDGMENT AGAINST THE DISOBEYING PERSON OR PARTY. OS C,4 The original document is f led in the Effective Date of 28-Oct-2019 q} Judiciary's electronic case management Signed by: /s/CherSalmo s a system which is accessible via eCourt Kokua r at: http:/www.courts.state.hi.us Clerk, 3rd Circuit, State of Hawaii ;fes o- ~ 0p •e- In In accordance with the Americans with Disabilities Act, and other applicable state and federal laws, if you require a reasonable accommodation for a disability, please contact the ADA Coordinator at the Circuit Court Administration Off ce on HAWAII-Phone No.808-961-7424,TTY 808-961-7422, FAX 808-961-7411, at least ten (10)working days prior to your hearing or appointment date. Form 1C-P-787(3CCT)(10/19) Summons to Complaint EliRG-AC-508(10/19) EXHIBIT E CARLSMITH BALL LLP Electronically Filed PATRICK K.WONG 5878 THIRD CIRCUIT 75-5722 Kauakini Highway, Suite 208 3CCV-23-0000123 Kailua Kona,Hawai`i 96740 12-JAN-2024 Tel.No. (808) 329-6464 0314 PM Facsimile No. (808)329-9450 pwongna,carlsmith.com Dkt. 149 ORD 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 Defendant -1250 OCEANSIDE LLC IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C&J COUPE FAMILY LIMITED CIVIL NO. 3CCV-23-0000123- PARTNERSHIP, ORDER RE:DEFENDANT 1250 Plaintiff, OCEANSIDE LLC'S MOTION TO vs. DISMISS COMPLAINT,FILED MARCH 31,2023 [DKT. 1],FILED COUNTY OF HAWAII; COUNTY OF MAY 11,2023 MKT. 15] HAWAII,PLANNING DEPARTMENT; ZENDO KERN,IN HIS OFFICIAL HEARING: CAPACITY AS DIRECTOR OF THE DATE: September 15, 2023 COUNTY OF HAWAII,PLANNING TIME: 3:00 p.m. DEPARTMENT; 1250 OCEANSIDE LLC; JUDGE: Hon.Wendy M. DeWeese JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;DOE PARTNERSHIPS 1-10;DOE ENTITIES 1-10; JUDGE: Hon.Wendy M. DeWeese TRIAL: None set Defendants. 4895-9945-30572.051730-00058 EXHIBIT E ORDER RE: DEFENDANT 1250 OCEANSIDE LLC'S MOTION TO DISMISS COMPLAINT, FILED MARCH 31, 2023 [DKT. 11, FILED MAY 11, 2023 [DKT. 151 Defendant 1 250 OCEANSIDE LLC's ("Oceanside")Motion to Dismiss Complaint,filed March 31, 2023[Dkt. 1J, filed May 11, 2023 [Dkt. 15] ("Motion"), came on for hearing before the Honorable Wendy M. DeWeese on September 15, 2023 at 3:00 p.m. Kenneth R. Kupchak, Esq. and Toren K. Yamamoto, Esq. (via Zoom) appeared for Plaintiff C &J Coupe Family Limited Partnership. Lerisa L. Heroldt, Esq. appeared for Defendant County of Hawai`i ("County"). Patrick K. Wong, Esq., Derek B. Simon, Esq. (via Zoom), and Ian R. Wesley- Smith (via Zoom) appeared for Oceanside. The Court, having considered the Motion, the opposition, reply memorandum, the argument of counsel, and the records and files in this action, and good cause appearing therefor, hereby finds, concludes, and orders as follows: FINDINGS OF FACT 1. To the extent that any of the following Findings of Fact shall be determined to be Conclusions of Law, they shall be deemed as such. 2. Plaintiff's First Amended Complaint for Declaratory and Injunctive Relief filed June 27, 2023 [Dkt. 83] ("Complaint"), alleges that Oceanside and the County have failed to comply with their obligations under County of Hawai`i Ordinance Nos. 96-7 and 96-8 (together, the "Ordinances"), and the Development Agreement dated April 20, 1998, by and between the County and Oceanside's predecessor-in-interest, 1250 Oceanside Partners (the "Development Agreement"). 3. The Ordinances are incorporated by reference into the Development Agreement, both of which relate to the development of the residential subdivision known as Hokuli`a. - - _ - 4895-9945-3057.2.051730-00058 2 4. Plaintiff alleges that, as an adjoining landowner, it has suffered tangible harm arising from Oceanside's alleged failure to build certain roadways (including stub outs) to dedicable standards and provide adequate public access to the shoreline as required under the Ordinances and Development Agreement. 5. Plaintiff further alleges that it has suffered tangible harm, including deprivation of its constitutional due process rights, arising from the County's alleged failure to enforce the Ordinances and Development Agreement against Oceanside, and the County's alleged use of improper procedures for amending the Development Agreement. 6. Plaintiff's Complaint asserts the following three causes of action: (i) Count I (County and Oceanside) seeks a declaratory judgment that: (a) Oceanside has violated the terms of the Ordinances and Development Agreement; and (b) the _. County unlawfully granted a variance to amend the conditions of the Development Agreement and Ordinances, and unlawfully adopted a resolution accepting dedication of three roadway lots that do not meet County dedicable standards; (ii) Count II (County) seeks injunctive relief enjoining the County from refusing to enforce the Development Agreement; and (iii) Count III (County) seeks a declaratory judgmentthat the County has interfered with Plaintiff's procedural and substantive due process rights. 7. The Complaint does not assert a breach of contract claim, but Plaintiff uses its alleged status as a third-party beneficiary under the Development Agreement as a vehicle to argue that this Court has concurrent subject-matter jurisdiction under Haw. Rev. Stat. ("HRS") § 46-4(a). 4895-9945-3057.2.051730-00058 3 8. Oceanside's Motion seeks dismissal of Plaintiff's Complaint on a number of grounds, including under the primary jurisdiction doctrine. CONCLUSIONS OF LAW 1. To the extent that any of the following Conclusions of Law shall be determined to be Findings of Fact, they shall be deemed as such. 2. The Court and the County of Hawai`i Planning Department ("Planning Department") share concurrent jurisdiction over the subject matter of this action pursuant to HRS § 46-4, and venue is proper in this Circuit. 3. The primary jurisdiction doctrine is implicated when, as here, claims are originally cognizable by both the court and the administrative agency. Specifically, the primary jurisdiction doctrine comes into play when claims are originally cognizable in court, but where enforcement of the claims requires a resolution of issues, which under a regulatory scheme, have been placed within the special competence of an administrative body. 4. When the primary jurisdiction doctrine applies, the judicial process is generally suspended pending referral of the issues to the relevant admini§trative body for its views. 5. The Complaint's allegations warrant application of the primary jurisdiction doctrine because: a. the allegations raise issues of fact that are not within the conventional experience of judges and require the exercise of administrative discretion; b. application of the primary jurisdiction doctrine here will promote uniformity and consistency in the regulatory process; c. the- Court is not an expert in County zoning regulations, building standards, or the various other arcane nuances of County-level administrative procedures with 4895-9945-3057.2.051730-00058 4 respect to complex development agreements, all of which are directly relevant to the determination of the issues raised in Plaintiff's Complaint; d. the Court is not the best-suited decision-maker for determining whether the Development Agreement and Ordinances were actually complied with, whether the Haleki`i street extension was built to dedicable standards, or whether the County's variance and resolution procedures allegedly used to amend the Development Agreement were proper amendments as contemplated by the,Development Agreement; and e. the Court may not substitute its judgment for the expertise of the Planning Department and County of Hawai`i Board of Appeals. 6. Application of the primary jurisdiction doctrine here requires Plaintiff to avail itself of the declaratory ruling procedure provided under HRS Chapter 91 and the Planning Department's Rules of Practice and Procedure by seeking a declaratory ruling from the County of Hawai`i Planning Director("Planning Director") regarding the County's enforcement of and Oceanside's compliance with the Development Agreement and Ordinances. 7. Even if referral of the issues raised in the Complaint to the County's administration process does not resolve Plaintiff's claims, at the very least it will develop a record in this case. The Planning Depailnient's expertise and specialized knowledge is critical to the Court's ability to understand the issues raised sufficient to render an adequate and well- considered judgment in this case. This necessary perspective will only be available to the Court if the Court first refers the matter to the Planning Directorand the matter runs its course through the County's administrative process.. 4895-9945-3057.2.051730-00058 5 ORDER GRANTING IN PART DEFENDANT 1250 OCEANSIDE LLC'S MOTION TO DISMISS COMPLAINT,AND FILED MARCH 31, 2023[DKT. 11, FILED MAY 11, 2023 [DKT. 15], AND STAYING PROCEEDINGS PENDING REFERRAL TO THE COUNTY OF HAWAII PLANNING DEPARTMENT Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED: 1. The Motion is hereby GRANTED, in part, under the primary jurisdiction doctrine; 2. Plaintiff shall avail itself of the declaratory ruling procedure provided under HRS Chapter 91 and the Planning Department's Rules of Practice and Procedure, and seek a declaratory ruling from the Planning Director regarding the issues raised in the Complaint, including Oceanside's compliance with the Ordinances and Development Agreement; 3. This action is STAYED pending the outcome of the County's declaratory ruling process; 4. Every six months following the entry of this Order, Plaintiff shall file a brief status report with the Court regarding Plaintiff's progress with the County's declaratory rulings process; Oceanside and the County may also submit similar reports. 5. All claims set forth in the Complaint remain in this action. DATED: Kailua-Kona, Hawai`i, I____ . • 41" `�a JUDGE OF THE AB-71.—ENTITLED COURT • 4895-9945-3057.2.051730-00058 6 RECEWED JAN 11 2(124 (LOB) APPROVED AS TO FORM: KENNETH R. KUPCHAK, ESQ. TOREN K. YAMAMOTO, ESQ. Attorneys for Plaintiff C &J COUPE FAMILY LIMITED PARTNERSHIP ELIZABETH A. STRANCE, ESQ. LERISA L. HEROLDT, ESQ. LAUREEN L. MARTIN, ESQ. Attorneys for County of Hawai`i C&J Coupe Family Limited Partnership v. County of Hawaii et al.; Civil No. 3CCV-23- 0000123; ORDER RE: DEFENDANT 1250 OCEANSIDE LLC'S MOTION TO DISMISS COMPLAINT, FILED MARCH 31, 2023 [DKT. 1],FILED MAY 11, 2023 [DKT. 15] 4895-9945-3057.2.051730-00058 7 - 7.CEIV, ED DEC 0 6 2023 RECEIVEV) JAN 12 2024 (LOSiq- EXHIBIT F ELIZABETH A. STRANCE 4715 Electronically Filed Corporation Counsel THIRD CIRCUIT LERISA L. HEROLDT 7519 3CCV-23-0000123 Deputy Corporation Counsel, Section Chief 19-JAN-2024 Office of the Corporation Counsel 10:11 AM County of Hawai`i Dkt. 151 ORDG 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961=8622 E-mail: lerisa.heroldt@hawaiicounty.gov Attorneys for County Defendants IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C &J COUPE FAMILY LIMITED Civil No. 3CCV-23-0000123 PARTNERSHIP, ORDER GRANTING IN PART Plaintiff, COUNTY DEFENDANTS'MOTION TO DISMISS THE COMPLAINT FOR DECLARATORY AND INJUNCTIVE vs. RELIEF,FILED MARCH 31, 2023 [DKT. 1], FILED MAY 25, 2023 [DKT. COUNTY OF HAWAII; COUNTY OF 21], AND STAYING PROCEEDINGS HAWAII, PLANNING DEPARTMENT; PENDING REFERRAL TO COUNTY ZENDO KERN, IN HIS OFFICIAL OF HAWAII PLANNING CAPACITY AS DIRECTOR OF THE DEPARTMENT COUNTY OF HAWAII, PLANNING DEPARTMENT; 1250 OCEANSIDE Hearing Held: LLC; JOHN DOES 1-10;JANE DOES 1- Date: September 15, 2023 10; DOE CORPORATIONS 1-10; DOE Time: 3:00 p.m. PARTNERSHIPS 1-10; and DOE Judge: Hon. Wendy M. DeWeese ENTITIES 1-10, Trial Date: None Defendants. 1 EXHIBIT F ORDER GRANTING IN PART COUNTY DEFENDANTS'MOTION TO DISMISS THE COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, FILED MARCH 31, 2023[DKT. 1j, FILED MAY 25, 2023 [DKT. 21], AND STAYING PROCEEDINGS PENDING REFERRAL TO COUNTY OF HAWAII PLANNING DEPARTMENT County Defendants'Motion to Dismiss the Complaint for Declaratory and Injunctive Relief, filed March 31, 2023[Dkt. 1], filed May 25, 2023 [Dkt. 21] ("Motion") came on for hearing before the Honorable Wendy M. DeWeese on September 15, 2023, at 3:00 p.m. Kenneth R. Kupchak, Esq. and Toren K. Yamamoto, Esq. (via Zoom) appeared for Plaintiff C & J COUPE FAMILY LIMITED PARTNERSHIP ("Plaintiff'). Deputy Corporation Counsel Lerisa L. Heroldt, Esq. appeared for Defendant COUNTY OF HAWAII ("County"). Patrick K. Wong, Esq., Derek B. Simon, Esq. (via Zoom) and Ian R. Wesley-Smith (via Zoom) appeared for Defendant 1250 OCEANSIDE LLC ("Oceanside"). The Court, having fully examined and considered the pleadings, the Motion, the memoranda, declarations and exhibits filed in support of and in opposition to the Motion, the records and files herein, having heard and considered the arguments of counsel and having placed its ruling on the record on September 15, 2023, hereby FINDS, CONCLUDES AND ORDERS: FINDINGS OF FACT To the extent any of the following Findings of Fact are determined to be Conclusions of Law, they shall be deemed as such. 1. Plaintiffs First Amended Complaint for Declaratory and Injunctive Relief, filed June 27, 2023, Dkt. 83 ("Complaint"), alleges the County and 2 Oceanside have failed to comply with their obligations under County Ordinance Nos. 96-7 and 96-8 (collectively "Ordinances"), and the Development Agreement, dated April 20, 1998, by and between the County and Oceanside's predecessor-in- interest, 1250 Oceanside Partners ("Development Agreement"). 2. The Ordinances are incorporated by reference into the Development Agreement, and the Ordinances and Development Agreement relate to the development of the residential subdivision known as Hokuli`a ("Hokuli`a"), surrounding areas and roadways. 3. Plaintiff, as an adjoining landowner to Hokuli`a, claims it has suffered tangible harm arising from Oceanside's alleged failure to build certain roadways (including stub outs) to dedicable standards and provide adequate public access to the shoreline as required under the Ordinances and Development Agreement. 4. Plaintiff further claims it has suffered tangible harm, including deprivation of its constitutional due process rights, arising from the County's alleged failure to enforce the Ordinances and Development Agreement against Oceanside and the County's alleged use of improper procedures for amending the Development Agreement. 5. The Complaint asserts the following three claims: a. Count I (County and Oceanside): seeking, in part, a declaratory judgment Oceanside has violated the Ordinances' and Development Agreement's terms; 3 b. Count II: requesting injunctive relief enjoining the County from refusing to enforce the Development Agreement; and c. Count III: requesting a declaratory judgment the County has somehow interfered with Plaintiffs procedural and substantive due process rights. 6. The Complaint does not assert a breach of contract claim, even though Plaintiff uses its third-party beneficiary allegations as a vehicle to argue this Court has concurrent subject matter jurisdiction under Haw. Rev. Stat. § 46-4(a). 7. The County's Motion seeks a dismissal of Plaintiffs Complaint on various grounds, including the primary jurisdiction doctrine. CONCLUSIONS OF LAW To the extent any of the following Conclusion of Law shall be determined to be Findings of Fact, they shall be deemed as such. Pursuant to the foregoing findings of fact, the Court concludes: 1. The Court and the County of Hawai`i Planning Department ("Planning") share concurrent jurisdiction over the subject matter of this action pursuant to Haw. Rev. Stat. § 46-4, and venue is proper in this Circuit. 2. The primary jurisdiction doctrine is implicated when, as here, claims are originally cognizable by both the court and the administrative agency. The primary jurisdiction doctrine comes into play when claims are originally cognizable in court, but where enforcement of the claims requires a resolution of issues which, under a regulatory scheme, have been placed within a special competence of an administrative body. 4 3. When the primary jurisdiction doctrine is applied, the judicial process is generally suspended pending referral of the issues to the relevant administrative body for its views. 4. The Complaint's allegations warrant the application of the primary jurisdiction doctrine to this action because: a. the allegations raise issues of fact not within the conventional experience of judges, requiring the exercise of administrative discretion; b. Application of the primary jurisdiction doctrine here will promote uniformity and consistency in the regulatory process; c. the Court is not an expert in County zoning regulations, building standards or the various other arcane nuances of County-level administrative procedures with respect to complex development agreements, all of which are directly relevant to the determination of the issues raised in Plaintiffs Complaint; d. the Court is not the best-suited decisionmaker for determining whether the Development Agreement and Ordinances were actually complied with, whether the Halekii street extension was built to dedicable standards or whether the County's variance and resolution procedures allegedly used to amend the Development Agreement were proper amendments as contemplated by the Development Agreement; and e. the Court may not substitute its judgment for Planning's or the County Board of Appeals' expertise. 5 5. Application of the primary jurisdiction doctrine here requires Plaintiff to avail itself of the declaratory ruling procedure provided under Haw. Rev. Stat. ch. 91 and the Planning's Rules of Practice and Procedure (2021) by seeking a declaratory ruling from the County's Planning Director ("Planning Director") regarding the County's enforcement and Oceanside's compliance with the Development Agreement and Ordinances. 6. Even if referral of the issues raised in the Complaint to the County's administrative process does not ultimately resolve Plaintiffs claims, at the very least referral will cause the development of a record in this case. The Planning Director's expertise and specialized knowledge is critical to the Court's ability to understand the issues raised sufficient to render an adequate and well-considered judgment in this case. This necessary perspective will only be available to the Court if the Court first refers the matter to the Planning Director and the matter runs its course through the County's administrative process. ORDER GRANTING IN PART COUNTY DEFENDANTS'MOTION TO DISMISS THE COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, FILED MARCH 31, 2023 [DKT. 1], FILED MAY 25, 2023 [DKT. 21], AND STAYING PROCEEDINGS PENDING REFERRAL TO COUNTY OF HAWAII PLANNING DEPARTMENT Based on the Findings of Fact and Conclusions of Law herein, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. The Motion is hereby GRANTED, in part, under the primary jurisdiction doctrine; 6 2. Plaintiff shall avail itself of the declaratory ruling procedure provided under Haw. Rev. Stat. ch. 91 and the Planning's Rules of Practice and Procedure and seek a declaratory ruling from the Planning Director regarding the issues raised in the Complaint, including Oceanside's compliance with the Ordinances and Development Agreement; 3. This action is STAYED pending the outcome of Planning's declaratory ruling process; 4. Every six months following the entry of this Order, Plaintiff shall file a brief status report with the Court regarding Plaintiffs progress with Planning's declaratory ruling process; the County and Oceanside may also submit similar reports. 5. All claims set forth in the Complaint - •0 ai .' I this action. Dated: Kailua-Kona, Hawaii 4f'2- 7 As. FrArose,: JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: /s/ Kenneth R. Kupehak,Esq. Attorney for Plaintiff C & J COUPE FAMILY LIMITED PARTNERSHIP /s/ Derek B. Simon, Esq. Attorney for Plaintiff 1250 OCEANSIDE LLC 7 EXHIBIT G +.Y OIy William P.Kenai apt!`` "' ;. BJ Leithead Todd Mayorl - `,�l Director Margaret K.Masunaga Deputy • County of Hawaii PLANNING DEPARTMENT Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawai`i 96720 Phone(808)961-8288 • Fax(808)961-8742 January 3I, 2011 Sidney Fuke Planning Consultant 100 Pauahi Street, Suite 212 Hilo,HI 96720 Dear Mr. Fuke: SUBJECT: Variance Application: VARIANCE(VAR 10-027) Agent: Sidney Fuke,Planning Consultant Applicant: 1250 Oceanside Partners Owner: 1250 Oceanside Partners Request: Variance from Chapter 23,Subdivisions TMK: 7-9-012:004,006,011,029 and 034; 8-1-004: 003, 064, 065, 068 and 070; 8-1-032: 054; 8-1-033: 013 through 017;and 8-1-026: 057 and 8-1-032: 054 After reviewing your Variance Application, the Planning Director certifies the approval of VAR 10-027 from minimum road improvements, subject to variance conditions. The variance is from Hawai`i County Code, Chapter 23, Subdivisions, Article 6, Division 2, Improvements Required, Section 23-86, Requirements for dedicable streets and Section 23-95, Right-of-way improvement. VAR 10-027 permits the retention of existing and construction of new private 20-foot wide roadways with 50 and 60-foot wide rights-of-way within a multi-phased residential subdivision (Hokulia). The requested road section would be to omit the requirement for grading and paving of the road shoulders and replace with grassed shoulders, The decision to approve VAR 10-027 is based on the following background information and findings. BACKGROUND 1. Location. The subdivision measures approximately 1,552 acres and is located on the border of the North and South Kona districts, Hawai.i County is an Equal Opportunity Provider and Employer FEB i ?nil EXHIBIT G Sidney Fake Planning Consultant Page 2 January 31, 2011 2. Zoning. The property is zoned Residential-.Agriculture — 1 Acre (RA-I A) by the County and designated Agriculture (A) by the State Land Use Commission (LUC). 3. Subdivision Application. The Hokulia subdivision proposes a maximum of 665 residential lots, a golf course and associated amenities. Roads w ithin the development, both existing and planned, are intended to be privately owned and maintained. The development is broken into three general phases: Phase I, Phase II, and Phase III. Phases I and II have been completed and granted final subdivision approval. Phase III is further separated into three sub-phases, North, South and East, with Phase III North and South having received tentative subdivision approval. Phase III East is under review by the Planning Department. 4. Variance Application. On April 20, 2010, a variance application was submitted for review, concerning the existing and proposed roads. On July 6, 2010 the variance application was returned, in part due to the department's stance that variance approval was not needed for Phases I, II and III North and South. Construction plans, including roadways with grassed shoulders in lieu of the paved shoulders, had already been approved by the County Departments of Public Works and Planning. Bonding and/or improvements in many of these road sections had already been completed. Following further discussion with the applicant and the request to reconsider, in order to legitimize the deviations from the subdivision code, the variance application was resubmitted on July 29, 2010 and included such items as the application, fee, narrative, maps and other associated material. Supplemental materials were also subsequently provided on October 18, 2010_ 5. Agcnc Comments and Requirements. a. The State of Hawai`i Department of Health (DOH) memorandum is dated December 23, 2010. Refer to SOH-DOH memo in VAR application file. b. The Hawaii Fire Department (HFD) memorandum is dated January 4, 2011. Refer to HFD Memo in Variance application file. c. The Departnieul of Public Works (DPW) memorandum is dated January 5, 2011. Refer to I)P1 ' inertia in V SIR application tile. , 4diosl Sidney Fake Planning Consultant Page 3 January 31,2011 6. Public Notice. The applicant filed a copy of the notice sent to surrounding property owners within 500 feet of the subject property. According to the affidavit provided by the applicant and dated May 18, 201 0, notices were provided on May 17th. Notice of this application was published in the Hawai`i Tribune Herald and West Hawaii Today on December 28. 2010. The applicant filed an affidavit dated May 18, 2010, in regards to posting a sign upon the subject site that included pictures of the installed signage and other information. 7. Comments from Surrounding Property Owners or Public. a. A letter from Devlyn. Akau, dated May 24, 2010, was submitted and cites concerns with impacts of development on the environment. Refer to memo in VAR application file. b. A letter from R. Dvorak, dated June 20,2010, was submitted and requests that no variances or future approval should be granted until past commitments are met. Refer to memo in VAR application file. Aside from the above, no further comments in support of or in opposition to the request have been submitted to the department REVIEW CRITERIA Chapter 23, Subdivisions, specifically, Section 23-14, provides the Planning Director general authority to grant variances from Chapter 23. Section 23-14 states in part: "Variances from the provisions of this chapter may be granted; provided, that a variance shall not allow the introduction of a use not otherwise permitted within the district; and provided further that a variance shall not primarily effectuate relief from applicable density limitations. Further, Section 23-15, Grounds for variances, states that no variance will be granted unless it is found that: a) There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial property rights that would otherwise be available or to a degree which obviously interferes with the hest use or manner of development of that property; and b) There are no other reasonable alternatives that would resolve the difficulty; and c) The variance will be consistent with the general purpose of the district, the intent and purpose of this chapter, and the County general plan and will not be materially I'a e. 4 ,1iulnary 31, 2011 detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties. DISCUSSION The subject subdivision known as Hokulia is located in Central Kona which spans over 1.55' acres and will consists of 665 residential/agricultural parcels. The applicant is proposing, a 20 foot roadway within 50 and 60-foot wide right-of-sways with the balance of the road-right-of-way being grassed in lieu of the Department of Public Works recommendation for shoulders and swales to he graded and paved. More specifically the applicant is seeking relief from all roadways within the subject subdivision, existing or proposed, including the Halekii Street extension (Road Lot R-1). The average slope of the subject property ranges from 15-20 percent, with some areas exceeding 20 percent. Therctbr , full pavement of the right-of-way would increase water runoff impacting the lower and adjoining properties. The applicant has indicated that grassed swales would not only he more visually compatible and consistent with the area's character but would also act as natural storm drain and impede the velocity of any potential storm water. In considering Criteria "c"" above, the department cites the DPW memo, dated January 5, 2011,. which states in part the follow ing: "The applicant asks for relief for all Hokulia Subdivision roads, none of which have rr t [ rved .r c on.slr-rr[ ion final approval. DPW recommends that planning confirm if rrrect 7't 1K parcels are included on the application. The application does not rr knoti+'e,/Lrc that Ordinance 96-008 Conditions L and Al required dedication of the [`r+Ifrra r't/n roads. DPW objects to granting variance without specie lnn er[:kss section ,011,1/15 and rI1. a rs,rcishing those streets. For [!:raniplc Halekii Street eatcvrsian, iti hid/ is a [ r11 cctor .'ar'c's. (see General Plan and Kona Community Development Plan). .shall be 'rbc rli :lied to the County as required by orchn;rlif'e Because of sakir, lf[ll,ility and n+,/mitt rrarr['[l, concerns, separate details should he provided for Ilaul.c that (IQ not t7[ c ;lic ulll rcquire• dedication to the County he ordolanre and thu%'e that do require do/cation. Additional conditions .such as roadside Iandvc'ape and drainage system wain tenanec;' rc[fairr'rnt`11(5 arr[l.streetlights along ll ith .5111115 in ease° of cle'lctrclt should be unposed for roads required to he dedicated to the [ 'aunty". ft ..hotlld he noted that the c\tcilsion of Halekii Street has been completed with[n.11 full right-of- way inlprov(El eni!!. per con.-;traction plans approved by the Department of Public Works. Sidney Fuke Planning Consultant Page 5 January 31, 2011 Also, similar type relief from road right-of-way improvements have been granted in the past for subdivisions where the road right-of-way and all improvements therein would be owned and maintained by an entity other than the County of Hawaii. More specifically, the development of the Lualagi subdivision in Waimea was given relief from improvements by installing grassed swales within the road rights-of-way. This approval was granted with the condition that there would be a written assurance for a maintenance program for the grassed swales. This program may include the requirements for a maintenance bond or other security to assure the work is done in a timely manner. In order to subdivide the property, an applicant is required to provide road improvements meeting the minimum requirements of the Department of Public Works_ In review of the road variance request, the cost for additional right-of-way road improvements would be putting excessive demands upon the applicant when a more reasonable alternative (i.e. allowing the existing road improvement to continue with ongoing maintenance provided by the private owners association)may be permitted under the general authority of the Subdivision. INTENT AND PURPOSE Chapter 23, Subdivisions, specifically, Section 23-14, permits and provides the Planning Director general authority to grant variances from Chapter 23. The intent and purpose of road/access requirements to a proposed subdivision is to ensure legal and physical access to the proposed lots that are clearly defined and accessible from a public road by domestic and farm vehicles, police, fire, and other service vehicles under various weather conditions without constant maintenance. Further intent of requiring full improvements within the right-of-ways is to minimize the cost of its maintenance by the County of Hawaii. The applicant's report has stated in part: "However, as the existing and proposed roads are intended to be private, its maintenance and associated Iiability will he the responsibility of the homeowners association, who will eventually end up owning and maintaining all of the roads. Thus, the County's concern of maintenance -• resulting in the full right-of-way pavement requirement — is absent for private roads. It should also he noted that this variance would not compromise any safety concern. There will still be a 20-22 foot wide paved road, which will be sufficient to allow for emergency vehicles to access the entire project area. The approval of this variance should therefore not be inherently violative of the spirit and intent of the Subdivision Code". Sidney Fuk.e Planning Consultant Page 6 January 31, 2011 Based on the foregoing findings, this variance request would be consistent with the general purpose of the zoning district and the intents and purposes of the Zoning Code, Subdivision Code and the County General Plan. Furthermore, it is felt that the variances sought to permit the subdivision will not be materially detrimental to the public's welfare and will not cause substantial adverse impact to the area's character and to adjoining properties in this subdivision or immediate area. VARIANCE DECISION—CONDITIONS The variance request concerns the Department of Public Works recommendation for 20-foot. paved roadways within 50 and 60 foot rights-of-way, with the balance of the right-of-way (shoulders and swales) being graded and paved. for all existing and proposed roadways within the subject subdivision including the Halekii Street extension (Road Lot R-1). The variance request, to permit the shoulder and swale areas to be grassed in lieu of the grading and pavement, is approved subject to following variance conditions: 1. Road Variance. The sub divider, owners, their assigns, or successors shall be required to provide written assurance meeting with the approval of the Planning dircctl7r, in consultation with the Department of Public Works, that there will be a maintenance program for the grassed swales. This program may include the requirements for a maintenance bond or other security to assure the work is done in a timely manner. The proposed lots shall form a Homeowner or Road Association or include appropriate deed language, being covenants, conditions, and restrictions, which affect the entire property and/or proposed lots arising from the approval of the pending subdivision application and be duly recorded at the Bureau of Conveyances of the State of Hawaii by the Planning Department at the cost and expense of the applicant: a. The applicant and/ or owner(s) shall indemnify and defend the State of 1 f:Iw aii or County of Hawaii from any and all liability arising out of vehicular access to and from the subject property utilizing the paved road or utilities within the Hokulia subdivision. Upon written demand of the County of Hawaii, the applicant and /or owners, their assigns, or successors shall agree to participate and pay their fair share percentage of any improvement district adopted for the purpose of roadway impt-oventents serving the proposed lists arising out of the Hokulia Subdivision. Should the improvement district require acquisition of any privately owned rights-of-way fronting the lots arising out of the Hokulia Subdivision, such rights-of-gay shall he dedicated to the County without cost and the value ofthe dedication credited to the lair share 1 Sidney Fuke Plannine, COfsult.nit Paye 7 January 31. 2011 contribution of the respective lot owner(s). Should the Council adopt a Unified Impact Fees Ordinance, setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the t.lnitied Impact Fees Ordinance. h. The future lot owner(s) agree to participate in any road maintenance agreement or/and pay their fair share to maintain access and paved roadways within the Hokulia Subdivision. In the event that there are any amendments or changes to the subdivision after the agreement is signed, the applicant shall be responsible for informing the County Planning Department of such amendments or changes so that the agreement can be amended concomitantly. Further, the written or recorded agreement shall be binding upon the owner(s), their successors or assigns and shall be incorporated as an exhibit and made part of each agreement of sale, deed, lease, or similar documents affecting the title or ownership of the existing property or approved subdivided lots. 2. The subdivision shall meet with all of the conditions of Ordinance No. 96 007 and Ordinance 96 008, Tentative Subdivision Approval conditions and requirements of the Hawaii County Zoning Code, Ordinance and Subdivision Code not covered by this variance. 3. The sub divider, owner(s), their assigns or successors shall pay any outstanding real property taxes and comply with all other applicable State statutes and County ordinances pertaining to building improvements and land use. Should any of the foregoing stated conditions not be complied with, the Planning Director may proceed to declare VAR 10-027 null and void. Sincerely, il :.74 L BJ LEITHEAD TODD Planning Director GS:LN:nci P:\Admin Permits Division\Variance1201O Files\VAR 10-027 1250 Oceanside Partners.doc Sidney Fuke Planning Consultant Page 8 January 31, 2011 cc: DPW L:nginccring VAR 10-027 TPM File SUBDIVISION Files OPPONENTS EXHIBIT H • • COUNTY OF HAWAII •4A'7>f.:01.- STATE OF HAWAII RESOLUTION NO. 317 12 RESOLUTION ACCEPTING THE DEDICATION OF ROAD LOTS 10-A, 1-B AND 3-A-2, BEING TAX MAP KEYS: (3) 8-1-035:004(POR.)(LOT 10-A), (3) 8-1-035:001 (POR.)(LOT 1-B)AND (3) 8-1-036:001 (POR.) (LOT 3-A-2), SITUATED AT HALEKII AND KEEKEE 1, 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 Hawai`i limited partnership, is the owner of the Road Lots 10-A, 1-B and 3-A-2, portions of which contains an area of 7.868 acres, 0.081 acre and 0.066 acre,more or less, respectively, identified as a portion of Tax Map Keys: (3) 8-1-035:004(por.), (Lot 10-A), (3) 8-1-035:001 (por.) (Lot 1-B) and(3) 8-1-036:001 (por.) (Lot 3-A-2), situated at Haleki`i and Keekee 1, district of South Kona, Island, County and State of Hawai`i, as delineated on Exhibit"A"attached; and WHEREAS, subdivision approval for Road Lots 10-A, 1-B and 3-A-2 was granted on August 10, 2012, with the understanding that these lots will be transferred to the County of Hawai`i as a secondary arterial road (rural) connected to the Mamalahoa Bypass; and WHEREAS, 1250 Oceanside Partners, a Hawai`i limited partnership is desirous of dedicating the above 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 EXHIBIT H 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 Hawai`i 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. 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 Hawaii County Charter, and Sections 23-10 and 23-41 of the Hawaii County Code, that the County of Hawai`i accepts the dedication of Road Lots 10-A, 1-B and 3-A-2, portions of which contains an area of 7.868 acres, 0.081 acre and 0.066 acre, more or less, respectively, identified as a portion of Tax Map Keys: (3) 8-1-035:004 (por.) (Lot 10-A), (3) 8-1-035:001 (por.) (Lot 1-B) and (3) 8-1-036:001 (por.) (Lot 3-A-2) and, delineated on Exhibit "A" attached hereto for public road and drainage purposes. 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; 2 (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 Hilo , Hawai`i, this 9th day of November , 2012. INTRODUCED BY: 4,fr/ COUNCIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawai`i BLAS X FORD X I hereby certify that the foregoing RESOLUTION was by I IOFFMANN X the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawai`i on November 9, 2012 IKEDA X ONISHI X PILAGO X ATTEST: SMART X YAGONG X Aa YOSIIIMOTO X Qticettplootaii v` Reference: C-896/Waived PWIRC LINTY CLERK CHAIRPERSON & PRESIDI G O ICER RESOLUTION NO. 317 12 3 440t0 ¢�bZ- 111i i LOT 3-A-1-A LOT l-A-1 1 SOT ' Qv `v1 nor J DEDICATION LOCATION MAP HOKULI'A, PHASE 1 TO BE DEDICATED:HALEKI'I STREET (LOTS 10-A, 1-B AND 3-A-2) TYPE OF ROAD:80-FT. WIDE RIGHT-OF-WAY WITH 24-FT. WIDE AC PAVEMENT LENGTH OF ROAD:4.284 FEET NUMBER OF LOTS: 2 AVERAGE LOT SIZE: 52 ACRES TAX MAP KEY: 8-1-035 (3RD DIVISION) SHEET 1 OF 1 DATE APRIL 7,2012 p.\18000-18499\18400.31\d9.\184003Ird1q. EXHIBIT "A" EXHIBIT 3 COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft 5) ORDINANCE NO. 96 7 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 HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-12 :4 , 11 AND PORTION OF 3 AND 8-1-4 :PORTION OF 3 . BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1. Section 25-87, Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A-1a) : PARCEL 1 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 5,408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South: 1 . 345° 15 ' 189 . 91 feet along Grant 2029 to S. W. Makahiki to a point : Thence, following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the right with a radius of 470 . 00 feet, the chord azimuth and distance being: EXHIBIT 3 2 . 316° 23 ' 15" 424 . 98 feet to a point ; 3 . 343° 16 ' 839 . 35 feet along the remainders of Grant 2029 to S . W. Makahiki, Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point ; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 4 . 329° 59 ' 30 " 473 . 03 feet to a point ; 5 . 316° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point ; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270 . 00 feet, the chord azimuth and distance being: 6 . 345° 33 ' 1224 . 95 feet to a point; 7 . 14° 23 ' 350 . 20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 8 . 354° 32 ' 30" 699 . 21 feet to a point; 9 . 334° 42 ' 918 . 92 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, for the next three (3 ) courses following along 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 : -2- 10 . 66° 00 ' 770 . 00 feet to a point ; 11 . 74° 30 ' 930 . 00 feet to a point ; 12 . 67° 00 ' 285 . 65 feet to a point ; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall : 13 . 179° 00 ' 416 . 28 feet to a point ; 14 . 149° 00 ' 221 . 00 feet to a point ; 15 . 52° 00 ' 205 . 00 feet to a point ; 16 . 67° 00 ' 304 . 00 feet to a point ; 17 . 80° 00 ' 573 . 00 feet to a point ; 18 . 102° 00 ' 259 . 00 feet to a point ; 19 . 136° 00 ' 441 . 00 feet to a point ; 20 . 120° 00 ' 641 . 00 feet to a point ; 21 . 137° 00 ' 256 . 00 feet to a point ; 22 . 168° 20 ' 1123 . 00 feet to a point ; 23 . 163 ° 30 ' 456 . 00 feet to a point ; 24 . 206° 00 ' 214 . 09 feet to a point ; 25 . 243 ° 00 ' 693 . 46 feet to a point ; 26 . 193° 00 ' 282 . 00 feet to a point ; 27 . 222° 00 ' 513 . 00 feet to a point ; 28 . 210° 19 ' 324 . 00 feet to a point ; 29 . 198° 00 ' 497 . 68 feet to a point ; 30 . 181° 00 ' 307 . 60 feet to a point; 31 . 258° 00 ' 140 . 74 feet to a point ; 32 . 188° 49 ' 30" 106 . 80 feet to a point ; 33 . 170° 53 ' 443 . 95 feet to a point ; -3- 34 . 268° 39 ' 20 . 00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin: 35 . 272° 51 ' 57 . 35 feet to a point ; 36 . 267° 36 ' 189 . 05 feet to a point ; 37 . 269° 43 ' 203 . 15 feet to a point; 38 . 275° 15 ' 223 . 35 feet to a point; Thence, for the next three (3 ) courses following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 39 . 268° 14 ' 434 . 20 feet to a point ; 40 . 275° 04 ' 236 . 30 feet to a point; 41 . 262° 13 ' 206 . 40 feet to the point of beginning and containing an area of 383 . 952 Acres, more or less . (Refer to Parcel 1 as shown on Exhibit "A" ) . SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Halekii , Keekee 1st and 2nd, Ilikahi , Kanakau 1st and 2nd, Kalukalu 1st, 2nd and 3rd and Onouli 1st , South Kona, Hawaii, shall be Agricultural (A-1a) : -4 - PARCEL 2 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1587 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 601 . 01 feet North and 2 , 479 . 11 feet East and running by azimuths measured clockwise from True South: 1 . 334° 42 ' 342 . 98 feet 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 a point : Thence, following along the remainders 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 and Grant 1176 to Kini on a curve to the left with a radius of 705 . 00 feet , the chord azimuth and distance being: 2 . 298° 34 ' 831 . 43 feet to a point ; 3 . 262° 26 ' 397 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being : 4 . 277° 14 ' 329 . 53 feet to a point ; 5 . 292° 02 ' 85 . 32 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of - 5- 30 . 00 feet, the chord azimuth and distance being: 6 . 337° 02 ' 42 . 43 feet to a point ; 7 . 22° 02 ' 35 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainders of Grant 1176 to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being : 8 . 6° 12 ' 384 . 70 feet to a point; 9 . 350° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: 10 . 6° 42 ' 30" 362 . 96 feet to a point ; 11 . 23° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point ; Thence, following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to Ialua along a curve to the left with a radius or 705 . 00 feet , the chord azimuth and distance being: 12 . 6° 06 ' 411 . 07 feet to a point ; 13 . 349° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being: -6- 14 . 3° 07 ' 311 . 35 feet to a point ; 15 . 17° 05 ' 307 . 17 feet along the remainders of Grant 1464 to Ialua and Grant 1576 to Lohi to a point; Thence, following along the remainders of Grant 1576 to Lohi , Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the left with a radius of 1130 . 00 feet, the chord azimuth and distance being: 16 . 349° 47 ' 1036 . 55 feet to a point ; 17 . 322° 29 ' 272 . 49 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the right with a radius of 870 . 00 feet , the chord azimuth and distance being: 18 . 352° 50 ' 30" 879 . 41 feet to a point ; 19 . 23° 12 ' 488 . 09 feet along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being: 20 . 78° 08 ' 30" 958 . 38 feet to a point ; Thence, following along middle of stonewall and along Grant 1162 to F . 0. Shulze, the direct azimuth and distance being: 21 . 57° 14 ' 50 " 1532 . 00 feet to a point ; -7- Thence, for the next four (4) courses following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole : 22 . 160° 00 ' 200 . 00 feet to a point ; 23 . 149° 00 ' 452 . 00 feet to a point ; 24 . 160° 51 ' 628 . 00 feet to a point; 25 . 152° 30 ' 327 . 00 feet to a point; 26 . 182° 19 ' 313 . 00 feet along the remainders of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point ; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah: 27 . 171° 27 ' 400 . 00 feet to a point ; 28 . 161° 20 ' 606 . 00 feet to a point; 29 . 175° 16 ' 440 . 00 feet to a point ; 30 . 182° 42 ' 30" 1190 . 00 feet to a point ; 31 . 155° 00 ' 489 . 00 feet to a point; 32 . 181° 00 ' 353 . 00 feet along the remainders of Grant 1745 to John Cavanah 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; 33 . 153° 00 ' 492 . 00 feet 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 a point ; 34 . 179° 00 ' 126 . 72 feet along the remainder of Royal Patent 1670 to John D. -8- 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 ; 35 . 247° 00 ' 285 . 65 feet along Grant 1651 to Charles Hall to a point; 36 . 254° 30 ' 930 . 00 feet along Grant 1651 to Charles Hall to a point; 37 . 246° 00 ' 770 . 00 feet along Grant 1587 to John Peters to the point of beginning and containing an area of 372 . 010 Acres, more or less . All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof herein after referred to as "subject property" ) . SECTION 3 . These changes in district classification are conditioned upon the following: A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval . B . The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205 , Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District . C . The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of Water -9- Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" . Prior to approval of the 500th lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply' s "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development . D . Subdivision plans for any portion of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance . E . A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable . F . All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site . G. A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property. -10- H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans : 1 . an archaeological data recovery plan for the sites to undergo data recovery, 2 . a detailed interim protection/preservation plan for the sites to undergo preservation, and 3 . an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. 1 . Should any unidentified sites or remains such as artifacts , shell , bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of -11- Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development . Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works . K. 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 comes 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 -12- 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 ; 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 restrictions 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 accessway (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 . -13- L. Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area ' s pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions . This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264 , Hawaii Revised Statutes; M. 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 : 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki' i Street intersection; -14 - 2 . determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass, the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the applicant ' s reimbursement to the county for the acquisition of the lands condemned; 3 . construct the Mamalahoa Highway Bypass 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 Haleki ' i 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 extension of Haleki' i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the - 15- Department of Public Works . If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki' i Street improvements . The purpose of this condition is to prevent the use of Haleki ' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5 . provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings, as required by the chief engineer, to reduce the impacts of noise and light on the residents therein -16- and to generally beautify the highway appearance in such locations; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose ; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant , less the pro rata portion attributed to the subject property; N. In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements . -17- 0 . The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads . The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments . If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment . The fair share contribution for each lot , except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of building sites as determined by the zoning of such lot . The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of $7, 239 .16 per lot. Based upon the applicant ' s representation of intent to subdivide and develop up to 400 lots, the indicated total fair share contribution is $2, 895, 664 . 00, however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0 . -18- The fair share contribution shall be allocated as follows : 1 . $3 , 490 . 85 per lot, for an indicated total of $1, 396, 340 . 00 to the County to support park and recreational improvements and facilities ; 2 . $168 . 40 per lot, for an indicated total of $67, 360 . 00 to the County to support police facilities ; 3 . $332 . 61 per lot, for an indicated total of $133, 044 . 00 to the County to support fire facilities; 4 . $145 . 62 per lot , for an indicated total of $58, 248 . 00 to the County to support solid waste facilities ; 5 . $3 , 101 . 68 per lot, for an indicated total of $1, 240, 672 . 00 to the State or County to support road and traffic improvements . The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI) . In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development , subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall -19- be credited against the sum specified in Condition 0 (4) for solid waste facilities, Condition 0 (1) for parks and recreation, and in Condition 0 (5) for road and traffic improvements . For purposes of administering Condition 0, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies . P. Comply with all applicable laws, rules , regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Q. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance . R. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone . The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. -20- S . An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances : 1 . the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant , successors or assigns, and that are not the result of their fault or negligence ; 2 . granting of the time extension would not be contrary to the General Plan or Zoning Code ; 3 . granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; 4 . the time extension granted shall be for a period not to exceed the period originally granted for performance (i . e . , a condition to be performed within one year may be extended for up to one additional year) ; and 5 . should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. -21- SECTION 4 . In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance . SECTION 5 . This ordinance shall take effect upon its approval . INTRODUCED BY: 14.00110046mogiLit) .4m440000440ftwil COUNCIL MEMBER, LINTY OF HAI Hilo, Hawaii Date of Introduction : December 15 , 1995 Date of 1st Reading: December 15 , 1995 Date of 2nd Reading: January 3 , 1996 Effective Date : January 15 , 1996 Af•Tr:OvED cs to CC`Rr?_ .,iT:ON COUNSEL CC.:NTV OF HAWAII Date -22- .- . ..-••...•'- ii •• - . -,.:. ,...; ••,-.... , V .4 i a,j... ... .. ....... ;: 1 I LPI:l.i.:. f I *"'.'") i , .i•..n.:9 '.:-.**"" 4-"7"2717:: WI/; ii 1• r: i I. -.... 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ALL VOTE CLERR Mee N I'YNQESi 5 W Aff/S EX Introduced By: Takashi Dcmingo Arakaki X Date Introduced: December 15, 1995 December 15, 1995 Bonk-Abramson X First Reading: Childs X Published: NIA De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 ( DRAFT 5 ) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Returned: January 16, 1996 Aralcaki X Effective: January 15 , 19 9 6 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. f COUNCIL CHAIRMAN A/Irre.iltee_----- COUNTY CLERK ek Appr ved/Aisappraved this Arday of ,19 616 . FR, COUNTY F WAII Bill No.: 158 (Draft 5 ) Reference: C-734/PC-88 96 7 Ord.No.: A s. € --.' a F 1 Fi )__t;:icall3 i '' ' I i -. ,,,,,, :, t -..-...= iel u" _? oll 3 rl 1-1—'' `a__ ,. a... ,n..n,,„ JET w..� , x S y 1 1 `� -�nb \ w-��cy �w J 1 -.1�� J ,. - - H .EIS ,. -- .EPIE ;� .,..._._ :.,..:7-- _ y sq 4 .% e - `Y'rar nag iiiipft H •_ .' ems^ 1 '10I As ah `pI J ar -173 /m 0 7 3 .. c. d 1 r B H4 5 �,L Jam_~ � _ 53 rr 1II p .a.�.., — 3 GM.2 '� Ili m�H -,u.b ��� kr`�i.ill m 2 --nwx n> .;- g r- i=t _ gg ,r,, =''-- '+, r .,..a 22 w.,.... " ., a .,,,�,>K acvt .e^"-W.n 9 g I i ~ }S 1 m _ •- - V.4% d4-v S - 7.Y ].� J®T F w _ ; .r _� ,16,!=,..,.....,c,.... -�- —---- Jf _ —_ �,.,:.,.., ,.+ r` �,t�}'. ,s ! Ff} s a1+.1, it a 6 f.;'rt" {�,.A ' ,pc., Lir..: J .... ._. k.Jr. -- o-w.. .m ,. F 35le 1 L Yi e`' r. 6,1 m ,.°'4'"..:""o'r.-4' ii il: ..., , ..°. \ ''''''61 V Ill �_.,-- Ie. /If '' 1 f 0 � ny ' .•••• „. .. t Jar. _un l 3,=. R O E = S' °•9€s _S f---- 1 - i • ee; in ti Y S is P 3 - 2. .8J G 'mow J \4__________JSF ) ' `ti 4 i i `_� ..r.."r ,.. 6 e { 8W'r ' C. ti C. U I =NP - i i _u rHeW vnn, ,1.• 18 •.U 28881•. :6 ` a i0 9 S•6 .^x� m .. ., w z GI ° i s P` £ 'iI 2 m y 4 cgs e� "8,, u _ o _ .. z ” `f2 i 4g r4. p g 8 - 0 m �,R Ia ! 8 mei gAc =E. N i R 7 o s 7, m m „ Ep _ ,. "s W o r, u ffeW nN a "m o• y 8 .1 I.$ 3 ry o o N N J EXHIBIT 4 COUNTY OF HAWAII STATE OF HAWAII 181 BILL NO. (Draft 6) ORDINANCE NO. 96 8 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 HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL(A-5a)AND UNPLANNED (U) TO AGRICULTURAL (A-1a)AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, KANAUEUE 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST,NORTH AND SOUTH KONA, HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3,4, AND 5 AND 8-I-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions,being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 71° 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; EXHIBIT 4 Thence. for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251 ° 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255° 17' 131.07 feet to a point; 6. 240° 43' 26.91 feet to a point; 7. 257° 50' 172.57 feet to a point; 8. 243° 13' 30" 21.91 feet to a point; 9. 256° 57' 98.95 feet to a point; Thence, for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 338° 17' 30" 158.36 feet to a point; 11. 257° 24' 102.95 feet to a point; 12. 255° 40' 30" 171.35 feet to a point; 13. 261° 29' 101.46 feet to a point; 14. 346° 30' 30" 54.40 feet to a point; 15. 343° 21' 30" 152.40 feet to a point; 16. 346° 20' 165.46 feet to a point; 17. 343° 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345° 53' 30" 154.41 feet to a point; 20. 333° 53' 114.71 feet to a point; 21. 345° 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres, more or less. (Refer to Parcel 1 as shown on Exhibit "A"). -7- The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hail, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: 1. 172° 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251 ° 15' 39.58 feet to a point; 5. 259° 25' 18.68 feet to a point; 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271° 10' 30" 50.61 feet to a point; 12. 261 ° 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262° 38' 30.23 feet to a point; 15. 258° 17' 37.28 feet to a point; 16. 254° 45' 21.32 feet to a point; 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 21.89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° 07' 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; 23. 250° 03' 30" 91.17 feet to a point; 24. 257° 28' 88.18 feet to a point; 25. 253° 37' 30" 14.36 feet to a point; 26. 271° 49' 7.86 feet to a point; 27. 243° 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; 30. 265° 31' 13.70 feet to a point; 31. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259° 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 266° 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 272° 05' 60.95 feet to a point; 40. 269° 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; -4- 43. 272° 21' 30" 28.45 feet to a point; 44. 277° 12' 46.47 feet to a point; 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; 50. 261° 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' 166.66 feet to a point; 55. 261° 47' 108.98 feet to a point; 56. 243° 34' 33.10 feet to a point; 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 256° 19' 39.78 feet to a point; 61. 262° 44' 82.08 feet to a point; 62. 267° 50' 34.11 feet to a point; 63. 265° 25' 63.09 feet to a point; 64. 273° 36' 30" 112.92 feet to a point; 65. 268° 50' 151.03 feet to a point; 66. 274° 59' 30" 35.27 feet to a point; 67. 268° 30' 30" 48.40 feet to a point; -5- Thence, for the next three (3) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; 73. 333° 41' 55.11 feet to a point; 74. 341° 52' 42.41 feet to a point; 75. 350° 21' 65.77 feet to a point; 76. 357° 11' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81. 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83. 356° 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to a point; 85. 6° 27' 30" 75.31 feet to a point; -6- 86. 357° 30' 30" 143.26 feet to a point; 87. 8° 45' 30" 30.57 feet to a point; 88. 359° 52' 108.27 feet to a point; 89. 265° 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe: 90. 357° 33' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point; 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; 96. 329° 39' 30" 32.22 feet to a point; 97. 326° 06' 51.01 feet to a point; 98. 324° 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72° 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- 104. 79° 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105. 82° 05' 30" 51.64 feet to a point; 106. 83° 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91 ° 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; 111. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 268° 21' 280.72 feet to a point; 114. 259° 47' 379.67 feet to a point; 115. 260° 53' 149.26 feet to a point; 116. 259° 07' 153.59 feet to a point; 117. 266° 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 246° 41' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; 123. 245° 12' 30" 66.16 feet to a point; 124. 257° 45' 30" 34.33 feet to a point; 125. 239° 59' 72.54 feet to a point; 126. 250° 39' 30" 70.76 feet to a point; -8- 127. 246° 08' 111.93 feet to a point; 128. 332° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four(4) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 64° 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.78 feet to a point; 133. 154° 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 163° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; -9- Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165° 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A") SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2,272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) 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 American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; 4. 266° 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point; -10- Thence, for the next eleven (11) courses following along middle of stonewall: 5. 4° 59' 157.50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6. 17° 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7. 7° 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 91° 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9. 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four (4) courses following along Grant 866 to Kapule: 10. 86° 02' 30" 309.93 feet along Lot 2 to a point; 11. 80° 19' 207.35 feet along Lot 1 to a point; 12. 75° 14' 183.86 feet along Lot 1 to a point; 13. 79° 02' 674.13 feet along Lot 1 to a point; 14. 177° 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 750 14' 1,338.05 feet along Grant 977 to Panaunau to a point; 16. 150° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251° 45' 902.30 feet along Grant 865 to John Nakookoo to a point; -11- Thence, for the next thirty-six (36) courses following along middle of stonewall and along Grant 865 to John Nakookoo: 18. 250° 02' 30" 41.72 feet to a point; 19. 238° 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253° 29' 121.82 feet to a point; 22. 257° 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 110.46 feet to a point; 28. 258° 29' 24.30 feet to a point; 29. 274° 56' 30" 31.91 feet to a point; 30. 260° 18' 30" 148.31 feet to a point; 31. 253° 43' 47.09 feet to a point; 32. 243° 21' 30" 89.60 feet to a point; 33. 263° 53' 30" 70.49 feet to a point; 34. 254° 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241° 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point; 40. 216° 24' 30" 55.73 feet to a point; 4I. 238° 55' 30" 27.24 feet to a point -12- 42. 255° 23' 30" 29.74 feet to a point; 43. 271° 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271° 04' 85.71 feet to a point; 47. 277° 42' 30" 71.32 feet to a point; 48. 269° 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A".) The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' 54" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78° 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -1 3- 3. 203' 12' 488.09 feet to a point; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. 172° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183° 07' 311.35 feet to a point; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to Ialua to a point; Thence, following along the remainders of Grant 1 464 to Ialua and Grant 1 175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 411.07 feet to a point; 11. 203° 03' 162.63 feet along the remainder of Grant 1175 to Nakauwaa to a point; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 12. 186° 42' 30" 362.96 feet to a point; -14- 13. 1700 22' 60.05 feet along the remainder of Grant 1177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 202° 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112° 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 97° 14' 329.53 feet to a point; 19. 82° 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118° 34' 831.43 feet to a point; 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; -15- Thence, for the next three (3) courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244° 12' 628.00 feet to a point; 26. 330° 55' 956,00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' I.338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 76° 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old railroad: 31. 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to a paint; Thence, for the next six (6) courses following along the remainder of Grant 1175 to Nakauwaa: 36. 350° 55' 30" 47.80 feet to a point; -16- 37. 260° 45' 8.34 feet to a point; Thence, for the next four (4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. 1° 03' 30" 50.75 feet to a point; 40. 4° 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four (4) courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340° 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342° 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332° 23' 82.87 feet to a point; 53. 324° 00' 11.13 feet to a point; 54. 332° 36' 30" 113.50 feet to a point; -17- 55. 347° 43' 24.68 feet to a point; Thence, for the next four (4) courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 344° 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 341° 48' 30" 54.25 feet to a point; 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 111.89 feet to a point; 65. 325° 21' 106.90 feet to a point; 66. 62° 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: 71. 338° 26' 168.87 feet to a point; 72. 337° 34' 153.12 feet to a point; -18- 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot Iess than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (11) 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 -20- to final subdivision approvaLor any land alteration activity, whichever comes first. The final comprehensive ptblic access plan shall be developed in consultation with the Planning Director and the Department of Land and N_aturaLResources and shall include mauka-makai and lateral shoreline accesses. •arkina area(s). signage. emergency response considerations. restrictions on use (if any)�provigion of recreational and restroom facilities at appropriate locations and related improvements [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993]; 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) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;] W[(2)] 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; [(3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] 12)[(4)] [A] 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 -21- 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 restrictions 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 al[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(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. (I) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of[the] its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the] coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264, Hawaii Revised Statutes; (J) Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken; (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (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: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire MamaIahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mamalahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit "C",] 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 Haleki'i Street shall be completed and available -23- 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;] L [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. [A] If, before the completion and opening of the entire Mamalahoa I Iighway Bypass. a portion of said bypass is completed and opened. and said portion provides aeonnection to f-laleki'i Street. &barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first,] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and A portion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and (5)[(6)] provide roadway stub-outs, generally shown in Exhibit "Be, to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;] and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works. The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to -24- reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;] -25- (M)[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall he dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law] County of Hawaii; LN i[O)] To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q,)[(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; [(R)] It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition, "agriculture" shall be defined as the cultivation of crops, including but not limited to flowers, vegetable, foliage, and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: _26- (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; 1Q)[(S)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; MKT)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- any combination thereof shall have a maximum combined value of$ 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ] The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation . fire. police. solid waste disposal facilities.and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot. and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject properly is subdivided in two or mere increments, the amount of the fair share contribution duo an_cd payable prior to final subdivision=royal of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes shall be based on the maximum allowable density of building sites as determined by the zoning of such lot. The fair share contribution in a form of cash. land. facilities. or arkv combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of$7.239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to 400 lots. the indicated total fair share contribution is S2-895-664.00. however. the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. The fair share contribution shall be allocated as follows: (11 $3,490.85 per lot. for an indicated total of$1.396.340.00 to the County to support park and recreational improvements and facilities; -28- (2) $168.40 per lot. for an indicated total of$67,36000 to the County to support police facilities; 13) 4, ..1 .-r 6 a . , 'ia' - . . .1 .. ', I 411 a t- t _ ii a _ soot fire facilities; (4) $145.62 per lot. for an indicated total of$58,248.00 to the County to support solid waste facilities; (51 $3.101.68 per lot. for an indicated total of SI-240.02.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall he adjusted annually beginning three years after the effective date of this ordinance based on the percentage change in the Honolulu Consumer Price Index ()HPI). In lieu of paving the fair share contribution. the applicant may construct improvements/facilities related to parks and recreation. fire. police. solid waste disposal facilities. and roads within the region impacted by the proposed development. subject to the approval of the planning director. The cost of constructing the improvements required in Conditions H. K and L shall be credited against the sum specified in Condition R(1) for parks and recreation. Condition R(4) for solid waste facilities,and in ConditionR(5) for road and traffic improvements. For purposes of administering Condition R. the value of land contributed or the cost of any improvements required or made ix lieu of the fair share contribution shall be such amount as approved by the Planning Director. upon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; ] alf(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- TW[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (U)[(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; [(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, �Wl[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and -30- (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: je..3........04..... COUNCIL MEMBER, COUNTY OF H All Hilo, Hawaii Date of Introduction: December 15 , 1995 Date of 1st Reading: December 15 , 1995 Date of 2nd Reading: January 3 , 1996 Effective Date: January 15 , 1996 A! PRCV D as to Fr P.N1 C:C'4% GAU TY DE CORP()ATV N COUN`:FL COUNTY Or HAWAII Date I/SI 1 -31- •—�. ._•. 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L' I 1 ''•„ O CO) 7-- � '4E4 r` 1 • i\,\`;�. ,,r 'I S`4Y;r1s,r I ,�"" ,.;;:'..,‘ , .. ,,,,,,,,... ..1„. •♦ `` �;) t 1 Q rJ .1� :1.: ;':,r�� rlrj;:r( '• ,\ ':;` „�., 1 - \�.�;y,' �l _iJ V/ a P4, J.:--c�• i', . g • OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , Hawaii REv ( D 71fl11)16 WI 7 57 r F I C Ei.,.,,RoLL,c4kityptTE COUNTY OAcYlISWAINOES ABS EX Introduced By: Takashi Domingo Arakaki X Date Introduced: December 15, 1995 Bonk-Abramson X First Reading: _ December 15, 1995 Childs X Published: N/A De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 ( DRAFT 6 ) ROLL CALL VOTE Second Reading: January 3 , 1996 AYES NOES ABS EX To Mayor: January 4 , 1996 Arakaki X Returned: January 16, 1996 Effective: January 15 , 1996 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima X REMARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. COUNCIL CHAIRMAN COUNTY CLERK ArAL Approved FlisiVprurrri this day of aft ,199G . / ge aiLD OR, COUNTY a�AII Bill No.: 181 (Draft 6 ) Reference: C-821/PC-91[ Ord.No.: 96 8 EXHIBIT 5 R-915 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED Development Agreement APR 30, 1998 08 :02 AM Between County of Hawaii and 1250 Oceanside Doc No(s) 98-060529 /s/CARL T. WATANABE Return to: ACTING REGISTRAR OF CONVEYANCES Benjamin A. Kudo Dwyer Imanaka Schraff Kudo Meyer & Fujim 900 Fort St. Mall Suite 1800 Honolulu, HI 96813 Modified April I, 1998 1250 Oceanside Partners 74-5620 A Palani Road Suite 200 Kailua-Kona,Hawaii 96740 EXHIBIT 5 Development Agreement Table of Contents Recitals 1 Agreement 24 Definitions 4 Headings 25 Effective Date 9 Administrative Act 25 Affected Land 10 Binding Effect 25 Permitted Uses 10 Entities Obligated 25 Density of Use 10 Partial Release 25 Maximum Height 10 Compliance Certificate 25 Maximum Size 10 Satisfaction 25 Benefits 10 Final Release 25 Acquisition 10 Administration of Agreement 26 Condemnation 11 Recordation 26 Donation 12 Counterparts 26 Bypass Construction 12 Facsimile Documents 26 Dedication of Bypass 13 Notices 26 Reimbursements 14 Public Dedication 26 Roadway Stub-outs 16 Public Access Plan 17 Coastline Park 17 Guest Houses 19 General Development 19 Subsequent Changes 19 Necessary Approvals 19 Conformance 20 Annual Review 20 Material Breach 20 Time Extension 21 Amendment 22 Discretion to Encumber 22 Obligation to Modify 22 Written Notice 22 Cooperation 22 Assignment 23 Enforcement 23 Waiver 23 Gender 23 Parties 23 Partnership 24 Applicable Law 24 Force Majeure 24 Good Faith 24 Computation of Periods 24 Severability 24 LAND COURT SYSTEM REGULAR SYSTEM AFTER RECORDATION, RETURN BY MAIL (X) PICK UP ( ) To: BENJAMIN A. KUDO Dwyer Imanaka Schraff Kudo Meyer & Fujimoto 900 Fort Street Mall Suite 1800 Honolulu, HI 96813 TMK Nos: (3) 7-9-12: 03 (3) 7-9-12: 04 (3) 7-9-12: 11 (3) 8-1-04: 03 (portion) DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT("AGREEMENT"), made this .20411 day of A ID -: k 1998, by and between 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, Hawaii, acting through its mayor("COUNTY"), and 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740 ("OCEANSIDE"). RECITALS: A. These Recitals refer to and utilize certain capitalized terms which are defined in Paragraph (2), herein. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Hawaii State Legislature, under Development Agreement Statute section 46-123, granted authorization to the COUNTY to enact an ordinance authorizing the executive branch of the B. The Hawaii State Legislature, under Development Agreement Statute section 46-123, granted authorization to the COUNTY to enact an ordinance authorizing the executive branch of the COUNTY to enter into a development agreement with any person having a legal or equitable interest in real property, for the development of such property; C. The County Council enacted Ordinance No. 93-37 pursuant to Development Agreement Statute section 46-123, which ordinance was passed into law on April 27, 1993. D. Pursuant to the Development Agreement Statute and the Development Agreement Code, the COUNTY adopted rules governing Development Agreements on May 16, 1995. E. The Development Agreement Code and the Development Agreement rules establish the procedures and requirements for the consideration of development agreements upon application by or on behalf of persons having a legal or equitable interest in property. F. OCEANSIDE is the owner in fee simple of a portion of the Property,and Lessee of the remainder of the Property. A map describing that portion of the Property owned by OCEANSIDE in fee simple and that portion that is leased is attached hereto and identified as Exhibit "A". G. OCEANSIDE or its related entity,affiliate or subsidiary plans to develop the Project on the Property. H. The Project will require a major investment by OCEANSIDE, for example, in public facilities and on- and off-site improvements, to make the Project feasible. 1. The Project was reviewed and planned according to the Land Use Regulations. J. OCEANSIDE has applied for and the COUNTY has granted a number of Approvals for the Project. K. As part of OCEANSIDE's applications for Approvals from the COUNTY: 1. The COUNTY has examined the Project's impacts on vehicular traffic conditions,and has determined that construction of the Bypass Highway will not only offset traffic impacts caused by the Project, it will also provide a public purpose by improving existing traffic conditions in the region. 2. The COUNTY has determined that the construction and development of a Coastline Park will be an asset to the COUNTY and the public by providing coastal recreational opportunities, preserving open space and archaeological sites within the Project, as well as meeting the Project's park requirements pursuant to Ordinance No. 96-7, Ordinance No. 96-8 and Special Management Area("SMA") Permit No. 345. L. The COUNTY has concluded that development of the Project will provide many public benefits to the COUNTY through the zoning, the SMA conditions of approval,and the imposition of on- 2 financing and/or installation and construction of infrastructure and the creation of job opportunities in and through the construction, development and use of the Project. OCEANSIDE shall not be obligated to adhere to and perform the terms and conditions of this Development Agreement("Agreement") until it has commenced construction of the Project and provided that any zoning approvals and permits that OCEANSIDE has received have not been challenged and overturned by or that such challenges are not pending resolution before a court of law or a comparable federal, state or county administrative body. For purposes of this paragraph, "commenced construction" shall mean that OCEANSIDE has been awarded final subdivision approval and has received all necessary construction permits for the Project. M. Pursuant to Sec. 46-12I, HRS, Hawaii County Code Chapter 30, and Hawaii County's Rule 1, relating to Development Agreements, the COUNTY and OCEANSIDE have entered into this Agreement. This Agreement will: (i)provide for the parameters within which the obligations of OCEANSIDE for public and other improvements will be met; (ii)provide assurances to OCEANSIDE that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use Regulations, including but not limited to changes in zoning classifications or revocation of OCEANSIDE's Approvals, except when, with the agreement of OCEANSIDE, it becomes necessary to preserve the public health, safety and welfare; and (iii)provide appropriate assurances to OCEANSIDE that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of this Agreement, subject to OCEANSIDE's adherence to and performance of all material terms and conditions of this Agreement. N. Use of this Agreement will reduce or eliminate the uncertainty in the Project planning and development approval process, which in turn,would encourage the efficient utilization of resources and minimize the economic cost to the public; allow for the orderly planning of public facilities and services; and otherwise achieve the purposes and objectives for which the Development Agreement Statute and the Development Agreement Code were enacted. This Agreement clarifies the Land Use Regulations and Approvals,which in turn provide for the overall design,construction and development of the Project and all on-site and off-site improvements and appurtenances associated therewith, in the manner specified in this Agreement, including, without limitation,the design, construction and development of projects to provide benefits to the region and the COUNTY such as the Bypass Highway and the Coastline Park as set forth herein. O. OCEANSIDE submitted an Application to the Office of the Mayor on A 1 LA`--I- r7. , 1998 pursuant to Development Agreement Code section 5. 3 P. On PIA arc.1, 16 ��' a�d 3 ooh , 1998, pursuant to Development Agreement Code section 5(a)and Development Agreement Statute section 46-128,the County Council held a Public Hearing on the draft of this Agreement. Q. On A r-, I I s.4- , 1998, pursuant to Development Agreement Code sections 5(d)and 5(e)and Development Agreement Statute section 46-129, after review and comment by appropriate governmental agencies of the draft of this Agreement,and consideration of all evidence presented and heard at the Public Hearing pursuant to the Development Agreement Code, the County Council found and determined that this Agreement complies and is in accordance with the County General Plan, as amended,and any applicable community development plans adopted by the County Council as of the date of the Enacting Resolution. In connection with said findings, the County Council passed the Enacting Resolution approving this Agreement for execution by the Mayor. Now,THEREFORE, pursuant to the authority contained in the Development Agreement Statute, the Development Agreement Code, and the Development Agreement Rules, and in consideration of the mutual covenants and agreements set forth herein,the COUNTY and OCEANSIDE mutually agree as follows: 1. RECITALS. The recitals hereinabove are incorporated herein by this reference and made a part of this Agreement as though set forth in full herein. 2. DEFINITIONS. Whenever used in this Agreement,the terms defined below shall have the following meaning: a. AGREEMENT. "Agreement" shall mean this Development Agreement entered into by the COUNTY and OCEANSIDE, approved by the County Council through the Enacting Resolution, and executed by the Mayor on behalf of COUNTY. b. APPLICATION. "Application" shall mean the application for this Agreement submitted by OCEANSIDE to the Planning Department. c. APPRAISER. "Appraiser" shall mean any unbiased appraiser, licensed and certified in the State of Hawaii and appointed as provided herein. d. APPROVALS. "Approvals" shall mean any and all permits or approvals which have been or will be received by OCEANSIDE for the Project from the COUNTY,the State, or any other governmental or quasi-governmental agency pursuant to any Land Use Regulations as of the date of this Agreement, including, without limitation: (1) Change of Zone Approval (REZ 93-5),accepted by the County Council on June 15, 1994 as Bill 182, Draft 6 and signed into law by the Mayor on June 28, 1994 as Ordinance No. 94-73, attached hereto as Exhibit "S"; and amended and superseded by Bill 181, Draft 6 accepted by 4 the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B" and incorporated herein by this reference. (2) Change of Zone Approval (REZ 95-12) accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C" and incorporated herein by this reference. (3) Special Management Area Use Permit Approval(SMA 93-1) granted by the Planning Commission on November 5, 1993 (SMA Permit No. 345) attached hereto as Exhibit "D" and incorporated herein by this reference. (4) Use Permit Approval (USE 93-2)granted by the Planning Commission on November 5, 1993 (Use Permit No. 115)attached hereto as Exhibit "E" and incorporated herein by this reference. (5) Special Management Area Use Permit Approval(SMA 95-3)granted by the Planning Commission on September 28, 1995 (SMA Permit No. 356) attached hereto as Exhibit "F" and incorporated herein by this reference. (6) Change of Zone Approval passed by the County Council on March 7, 1997 and signed into law by the Mayor on March 13, 1997 as Ordinance 97-36 attached hereto as Exhibit "G" incorporated herein by this reference. e. BOND. "Bond" shall mean a performance bond, cash bond, surety company bond, personal surety bond,or other financial assurance obtained or caused to be obtained by OCEANSIDE. Such bond shall be good for no more than five(5)years from the date the bond is issued, unless otherwise extended by the mutual agreement of the Director of the COUNTY Department of Public Works and OCEANSIDE in writing. f. BYPASS HIGHWAY. "Bypass Highway" shall mean that bypass highway between the approximate vicinity of Keauhou and Captain Cook,consisting of two(2) lanes with a sufficient Right-of-Way for a total of four(4) lanes required in part to satisfy the conditions of Approvals and to alleviate traffic congestion on the Mamalahoa Highway that has existed for many years. This Bypass Highway is also referred to as the "Mamalahoa Highway Bypass" under Ordinance Nos. 96-7, 96-8 and 97-36 attached hereto as Exhibits "C", "B" and "G", respectively. Further detail and description of the Bypass Highway is attached hereto as Exhibit"H" and incorporated herein by this reference. g. COASTLINE PARK. "Coastline Park" shall mean that coastline park required by the COUNTY to be established under Conditions 8 and 10 of SMA Permit No. 345,Condition li of Ordinance No. 96-8, and Condition K of Ordinance No. 96-7,and subject to the terms and conditions as set forth in this Agreement. 5 h. COUNTY. "COUNTY" shall mean the County of Hawaii, municipal corporation,and where applicable, the appropriate departments and agencies but does not include the County Council. i. COUNTY COUNCIL. "County Council"shall mean the County of Hawaii County Council. j. DENSITY."Density"shall have the meaning given such term in the Zoning Code. k. DEVELOPER. "Developer" shall mean a person,corporation, organization, partnership, association,or other legal entity constructing, erecting, enlarging,altering, or engaging in any development activity. I. DEVELOPMENT AGREEMENT CODE. "Development Agreement Code" shall mean Ordinance No. 93-37, which ordinance was passed into law on April 27, 1993 (now HCC chapter 30). m. DEVELOPMENT AGREEMENT RULES. "Development Agreement Rules" shall mean County of Hawaii Office of the Mayor Rule 1 regarding Development Agreements, approved by the Mayor on May 16, 1995 and filed in the Office of the County Clerk on May 18, 1995. n. DEVELOPMENT AGREEMENT STATUTE. "Development Agreement Statute" shall mean HRS sections 46-121 through 46-132. o. DIRECTOR. "Director" shall mean the Director of the Planning Department of the County of Hawaii. p. ENACTING RESOLUTION. "Enacting Resolution" shall mean Resolution No. 2414/ 98 (DY-a-(4 3approving this Agreement, adopted by the County Council on A p.-; I I s+ , 1998, a copy of which is attached hereto as Exhibit "I" and incorporated herein by this reference. q. EXACTION. "Exaction" shall mean any and all exactions; fair share contributions, impact or in-lieu fees or payments; dedication or reservation requirements; obligations for on-or off-site improvements or construction requirements for public facilities or infrastructure; or services called for in connection with the development or construction of the Project pursuant to the Land Use Regulations and Approvals. r. GOVERNMENTAL ENTITY OR AGENCY. "Governmental entity or agency" shall mean and include, without limitation, the legislative, administrative and executive branches of the local, statc and federal governments. s. HCC. "HCC" shall mean Hawaii County Code, as amended. 6 t. HRS. "HRS" shall mean Hawaii Revised Statutes,as amended. u. IMPACT FEE ORDINANCE. "Impact Fee Ordinance" shall mean a Unified Impact Fees Ordinance or similar ordinance setting forth criteria for the imposition of the exactions or the assessment of impact fees. v. LAND USE REGULATIONS. "Land Use Regulations" shall mean any and all State and County laws, ordinances, resolutions, rules and policies governing the permitted uses of the Property, including, without limitation, uses, density, design, height,size and building specifications of proposed buildings; construction standards and specifications for roads and utilities, roadway improvements; affordable housing; community benefit assessments; water utilization and all exaction requirements applicable to the development of the Property; made applicable and in force as of the date of this Agreement. w. LAND OWNER. "Land Owner" shall mean the equitable or legal holder of interest in real property or the lessee holding under a recorded lease. x. LAWS. "Laws" shall mean the laws of the State, the Constitution of the United States, the Constitution of the State,any federal, state or local codes, statutes,or executive mandates in any court decision, ordinances,or charter provisions or administrative rules and regulations of any applicable governmental entity or agency. y. LENDER. "Lender" shall mean any financial institution or entity providing funds for the Project, including but not limited to banks, savings and loans, investors and partners. z. MAYOR. "Mayor" shall mean the Mayor of the COUNTY. aa. OFFICE OF THE MAYOR. "Office of the Mayor" shall mean the Mayor of the COUNTY and the managing director. ab. OCEANSIDE. "OCEANSIDE" shall mean 1250 OCEANSIDE PARTNERS, a Hawaii limited partnership, dba OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620A Palani Road, Suite 200, Kailua-Kona, Hawaii 96740, its successors and assigns. ac. PERSON. "Person" shall mean any individual, group, partnership, firm, association, corporation, trust,governmental official, administrative body,tribunal or any form of business or legal entity. ad. PLANNING COMMISSION. "Planning Commission" shall mean the Planning Commission of the COUNTY. ac. PLANNING DEPARTMENT. "Planning Department" shall mean the Planning Department of the COUNTY. 7 af. PROJECT. "Project" shall mean that agricultural lot community and its various components,also including but not limited to the lodge,golf course,golf clubhouse, and the coastline park, and more fully described and shown in Exhibit "J" attached hereto and incorporated herein by reference. Project shall not include the Bypass Highway. ag. PROPERTY. "Property" shall mean any and all conservation lands and areas which are the lands under the Change of Zone Approvals: (1) accepted by the County Council on June 15, 1994 as Bill 182, Draft 6, signed into law by the Mayor on June 28, 1994 as Ordinance No.94-73 attached hereto as Exhibit "S", and amended and superseded by Bill 181, Draft 6, accepted by the County Council on January 3, 1996, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-8 attached hereto as Exhibit "B"; and(2)accepted by the County Council on January 3, 1996 as Bill 158, Draft 5, and signed into law by the Mayor on January 15, 1996 as Ordinance No. 96-7 attached hereto as Exhibit "C"; that is, those lands which include the 711.2 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key No. 7-9-12: 03, and the 580.63 acres of land (more or less) located on and in the Island and County of Hawaii and identified as Tax Map Key No. 8-1-04: 03 (portion), both of which OCEANSIDE owns in fee simple; and 260.8 acres of land (more or less) located on and in the Island and County of Hawaii, identified as Tax Map Key Nos. 7-9-12: 04 and 7-9-12: 11, and more fully described and shown in Exhibit "K" attached hereto and incorporated herein by this reference, which OCEANSIDE leases from Ackerman Ranch under the development lease dated July 28, 1989, a short form of which is attached hereto as Exhibit "L", and incorporated herein by this reference. ah. PUBLIC ACCESS PLAN. "Public Access Plan", also known as the "Public Shoreline Access Plan", shall mean that plan,developed in consultation with community groups and submitted to and to be approved by the Director, as required by the COUNTY pursuant to Condition 8 of SMA Permit No. 345, Condition H of Ordinance No.96-8, and Condition K of Ordinance No.96-7, and subject to the terms and conditions as set forth in this Agreement. ai. PUBLIC HEARING. "Public Hearing" shall mean the public hearing held for purposes of receiving public comments regarding the draft of this Agreement as required pursuant to Rule I-6(d)of the Development Agreement Rules. aj. RIGHT-OF-WAY. "Right-of-Way" shall mean the route required for construction of the Bypass Highway. ak. SEGMENT(s). "Segment(s)" shall mean that portion of Right(s)-of-Way falling within a parcel or parcels of land owned by Seller(s). 8 al. SMALL-LOT SUBDIVISION. "Small-lot Subdivision"shall mean the subdivision by OCEANSIDE of the Property into lots less than twenty(20) acres in size. am. STATE. "State" shall mean the State of Hawaii. an. TERM. "Term" shall mean the term of this Agreement as determined in Paragraph (3), herein. ao. UNIT OF CREDIT. "Unit of Credit" shall mean the present value of past or future payments or contributions, including, but not limited to the dedication of land or construction of roadway improvements toward the cost of existing or future public facility capital improvements being issued in lieu of payment for Segment(s)of the Right-of-Way. One(1)Unit of Credit shall be issued for each$3,101.68 value of land contributed toward the Bypass Highway. The value of the unit of credit shall be equivalent to the amount of roadway fair share contribution or road impact fee required to be paid for each dwelling or lodge unit at the time of redemption. The recipient of a Unit of Credit may redeem the Unit of Credit toward any roadway fair share contribution or toward any roadway impact fee should the COUNTY adopt such an impact fee ordinance. ap. ZONING CODE. "Zoning Code" shall mean HCC chapter 25 as it exists as of the date of this Agreement. aq. OTHER DEFINITIONS. Unless otherwise provided herein, other words and terms shall have the meaning set forth in the Zoning Code. To the extent that the definitions in the Zoning Code conflict with the definitions contained in this Agreement, the definitions in this Agreement shall be controlling. 3. EFFECTIVE DATE; TERM. The Term of this Agreement shall commence on the effective A gri l I s-4- , 2.02.2' date of the Enacting Resolution and shall terminate on JMONTH,DAY,YEARL [30 years from date of Enacting Resolution] unless sooner terminated: a. By agreement of the parties to this Agreement that the parties have satisfied all of the terms and conditions of this Agreement, as further evidenced by a resolution of the County Council pursuant to Paragraph(50), herein; provided that, OCEANSIDE has been reimbursed for the construction costs it incurred for the Bypass Highway pursuant to Paragraph(15); b. As a result of a material breach of OCEANSIDE pursuant to Paragraph(25), herein; or c. By cancellation of this Agreement pursuant to Paragraph (27), herein; or unless subsequently extended by mutual agreement of the COUNTY and OCEANSIDE; or d. By reimbursement of construction costs for the Bypass Highway paid to OCEANSIDE pursuant to Paragraph(15), herein; provided,however,that the parties to this Agreement have 9 agreed that both parties have satisfied all of the terms and conditions of this Agreement as further evidenced by a resolution of the County Council pursuant to Paragraph (48), herein. 4. AFFECTED LAND. The Property that is the land subject to this Agreement and the Right-of-Way for the Bypass Highway. 5. PERMITTED USES OF THE PROPERTY. Permitted uses of the Property shall be all uses permitted under the Land Use Regulations and Approvals, including, without limitation, the permitted uses in Chapter 205, HRS, the Zoning Code section 25-5-72, and all supplemental uses allowed under Zoning Code sections 25-4-1 through 25-4-14. 6. DENSITY OF USE. With the exception of that use described under Zoning Code section 25-4-9,one(I)dwelling unit per building site is permitted on the Property pursuant to Zoning Code section 25-5-72(a)(9). 7. MAXIMUM HEIGHT OF PROPOSED BUILDINGS. The height of the buildings proposed for the Property shall be limited to the maximum height restrictions contained in the Zoning Code. 8. MAXIMUM SIZE OF PROPOSED BUILDINGS. The size of buildings proposed for the Property shall be limited to the maximum size restrictions, if any, contained in the Zoning Code. 9. BENEFITS. The COUNTY acknowledges that OCEANSIDE is providing the benefits to the County and/or the Community. 10. ACQUISITION AND DEDICATION OF LAND FOR BYPASS HIGHWAY. a. The Bypass Highway has been determined by the COUNTY as providing a regional public purpose and will therefore benefit the COUNTY. OCEANSIDE shall be deemed to have satisfied the requirements of Condition M(2)of Ordinance 96-7 and Condition L(2)of Ordinance 96-8, if and when it has:(i) acquired all Segments of Right-of-way,or(ii)acquired one or more Segment(s)of Right-of-Way and the remaining Segments have been requested by OCEANSIDE for the COUNTY to condemn. b. OCEANSIDE shall attempt to negotiate a purchase price with any and all Persons. Should OCEANSIDE and any Person be unable to negotiate a mutually agreeable purchase price, then OCEANSIDE shall provide to the Person a list containing no less than three(3) and no more than five (5) qualified Appraisers to appraise the value of the Person's Segment(s)of the Right-of-Way. From the list of Appraisers, the Person shall select one(1) Appraiser to assess the value of the Segment(s). OCEANSIDE may offer to purchase the fee simple interest in the Segment(s) from the Person for a price at or near the appraisal value as determined by the Appraiser. Should OCEANSIDE and the Person be unable to select an Appraiser or if the Person and OCEANSIDE cannot decide on a price recommended by mutually selected Appraiser,then upon written request to the Mayor,the COUNTY shall be required to use its condemnation powers to acquire the Segment(s)from the Person pursuant to Paragraph(I I). 10 c. Notwithstanding Paragraph(10.b), if the Person fails to participate in negotiations with OCEANSIDE for the purchase of Segment(s) of the Right-of-Way from the Person despite OCEANSIDE's good faith attempts to negotiate, then OCEANSIDE may, in its sole discretion, submit a letter to the Mayor to have the COUNTY utilize its condemnation powers. Upon receipt of the written request, the COUNTY shall be required to use its condemnation powers to acquire the Segment(s)from the Person pursuant to Paragraph (11). I I. CONDEMNATION OF LAND FOR BYPASS HIGHWAY. Should the Person fail to participate in negotiations with OCEANSIDE over the purchase of Segment(s)of the Right-of-Way from the Person, or should OCEANSIDE and the Person be unable to agree, during their negotiations,to the purchase of the Segment(s) because of their failure to agree upon an Appraiser or on the purchase price of the Segment(s) or on the terms of the purchase, the condemnation powers of the COUNTY shall be required for the acquisition of the Segment(s). a. Upon OCEANSIDE's tender of a requirement of condemnation by letter to the COUNTY, the COUNTY shall within thirty(30) days begin to immediately and expeditiously exercise the same pursuant to HRS Chapter 101. OCEANSIDE's tender of such requirement of condemnation to the COUNTY shall constitute a"formal initiation of condemnation action" as the term is used in Condition L(2) of Ordinance 96-8 and Condition M(2) of Ordinance 96-7 and shall relieve OCEANSIDE of all further liability or obligation to purchase Segment(s)of the Right-of-Way directly from such Person. b. The COUNTY shall submit to OCEANSIDE a written request for payment of any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY'S exercise of its condemnation powers when OCEANSIDE has determined in its sole and absolute discretion that there is a need for possession or in the event that a Court orders payment for the acquired land. Within forty-five (45) days of written notice from the COUNTY, OCEANSIDE shall reimburse the COUNTY for any and all reasonable costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY's exercise of its condemnation powers. OCEANSIDE shall not be responsible to reimburse the COUNTY for any and all costs relating to the salary of County personnel and administration and overhead, including but not limited to independent contractors and legal counsel, and any interest payments incurred by COUNTY as a result of COUNTY's failure to pay compensation to the Person within thirty (30) days of final judgment in the condemnation action. The written notice described herein from the COUNTY to OCEANSIDE shall contain a detailed verifiable accounting of any and all such costs and expenses. c. Should a dispute arise over the amount of monies owed by OCEANSIDE to the COUNTY,then both parties agree to first pursue settlement of the dispute by arbitration pursuant to HRS 11 Chapter 658. OCEANSIDE shall submit to the COUNTY a list of arbitrators to hear the dispute. The COUNTY has ten(10)calendar days to select one(1)arbitrator from OCEANSIDE's list. If the COUNTY fails to select an arbitrator, then OCEANSIDE may select an arbitrator to hear the dispute. I2. DONATION OF RIGHT-OF-WAY. Notwithstanding anything herein to the contrary, should a Person donate the Segment(s) of the Right-of-Way to OCEANSIDE for no consideration, the COUNTY shall: a. Grant the Person who contributes their land towards the Bypass Highway units of credit which may be used by the Person to off-set future roadway fair share assessment or impact fee requirements. Each unit of credit shall off-set the roadway fair share assessment or impact fee requirement for one(1)dwelling or lodge unit. The amount of credits shall be the total value of the Segment(s)for Right- of-Way divided by the per lot fair share assessment or impact fee requirement to mitigate road impacts for each$3,101.68 value of land contributed. The total value of the Segment(s)for Right-of-Way shall be based on the appraised value of the Segment(s) at the time the Person dedicates and/or donates the Segment(s)to OCEANSIDE as determined by the Appraiser selected using the procedures outlined in subparagraph(10.b). b. The COUNTY shall grant a density credit to Persons whose lands are donated for the Segment(s) of the Right-of-Way. The density credit is equal to the area of land that is utilized. The density credit shall be added to the Person's remaining property at the time the Person obtains land use approvals from the COUNTY. The density credit allows the Person to develop the total number of units that would be permitted under the applicable zoning at the time the Person obtains land use approvals as if the Person had not contributed land for the Right-of-Way c. The COUNTY shall impose no additional fair share assessments or any impact fee ordinance requirements relating to Regional highway Impacts on Persons whose lands have been donated to the County or sold for the Right-of-Way and who develop their lands in conformance with existing zoning. 13. CONSTRUCTION OF THE BYPASS HIGHWAY. The Bypass Highway shall consist of two(2) lanes with sufficient Right-of-Way for a total of four(4) lanes. The Bypass Highway shall be constructed to standards set forth by the Department of Public Works with such modifications as may be deemed necessary by the Department of Public Works;provided,however,that the expansion of the Bypass Highway from two(2)to four(4) lanes shall not be the responsibility of OCEANSIDE. a. OCEANSIDE shall obtain final approval from the County Department of Public Works for any and all necessary construction plans for the Bypass Highway. OCEANSIDE shall construct the Bypass Highway to the standards set forth in Exhibit "M" by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the County Department of Public Works and by OCEANSIDE. As required by the chief engineer of the County Department of Public Works, 12 OCEANSIDE shall provide a landscape buffer along highway sections where the highway is within five hundred (500) feet of dwellings existing as of January 1, 1998. b. Prior to the issuance of the first final Small-lot Subdivision approval for any portion of the Property, OCEANSIDE shall: (I) Post a bond in favor of the COUNTY to assure that the infrastructure improvements for the Bypass Highway and for the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection will be constructed; (2) Determine the final Right-of-Way for the alignment of the entire Bypass Highway, including the intersection areas. OCEANSIDE shall provide the Director with a metes and bounds description of each Segment of the Right-of-Way involved and evidence of ownership or control as deemed necessary by the Director. In lieu of OCEANSIDE obtaining or acquiring ownership or control of any segment of the Bypass Highway, the requirement shall be deemed fulfilled upon the COUNTY's formal initiation of condemnation action(s) pursuant to Paragraph (11) for such Segments. The COUNTY shall issue a letter attached as Exhibit "N"that acknowledges OCEANSIDE's satisfaction of the requirement to obtain or acquire ownership or control of the Right-of-Way for the entire length of the Bypass Highway, including those portions that the County has initiated condemnation proceedings and/or has ownership or control over, which removes the requirement from OCEANSIDE. (3) Provide a bond for relevant phases of the extension of Haleki'i Street, through the subject property as generally reflected in Exhibit"O", which phasing of improvements shall be approved by the COUNTY Department of Public Works. c. Prior to occupancy of any dwelling unit within the Property or prior to the issuance of an occupancy permit for the lodge, whichever occurs first,OCEANSIDE shall: (1) Complete construction of the roadway section from Keauhou to the makai extension of Haleki'i Street; and (2) Install a barricade or breakaway gate meeting with the requirements of the COUNTY Department of Public Works if,before the completion and opening of the entire Bypass Highway, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki'i Street; d. In any event from the time construction commences, the entire Bypass Highway shall be completed within five(5)years provided that those certain circumstances as articulated in Paragraph (39)do not exist. 14. DEDICATION OF BYPASS HIGHWAY. The Bypass Highway shall be dedicated to the COUNTY in phases, if any,upon completion and the COUNTY shall accept said dedication within sixty(60) calendar days; provided that the Bypass Highway,as constructed,complies with plans and specifications for 13 said highway as approved by the County. Following dedication of the Bypass Highway to the COUNTY, the COUNTY shall assume all responsibility and costs for operation,maintenance, repair or reconstruction of the Bypass Highway. 15. REIMBURSEMENT OF CONSTRUCTION COSTS FOR THE BYPASS HIGHWAY. a. Responsibility of Developer. OCEANSIDE shall be responsible for all costs associated with the design, land acquisition, construction of the Bypass Highway, including, without limitation, the costs associated with obtaining any necessary Approvals associated with the same ("Total Cost"); provided that, nothing herein shall be construed as preventing OCEANSIDE from seeking reimbursement for such costs and the total amount of reimbursement received by OCEANSIDE shall not exceed the difference between the Total Cost of the Bypass Highway and the "Project Impact Cost", as described in further detail in Paragraph(15.a.1). (1) Based on a development constituting seven hundred thirty(730) lots and eighty(80) lodge units("Project Unit Count"),the Project constitutes approximately thirty-eight(38) percent of the total capacity of the Bypass Highway based upon a Level of Service "D" ("Project Impact"). Should OCEANSIDE develop less or more than the Project Unit Count,then the percentage of traffic attributable to the Project shall be adjusted accordingly. The Total Cost of the Bypass Highway multiplied by the Project Impact shall determine the Project Impact Cost. For example, if the Total Cost of the Bypass Highway is $1.0 million and the Project Impact is thirty-eight(38%) percent, the Project Impact Cost is $380,000.00. In such a case,OCEANSIDE shall then be eligible to receive no more than$620,000 of reimbursement($1.0 million minus $380,000). (2) The remaining balance of the Total Cost of the Bypass Highway after deducting OCEANSIDE's and Kealakekua Development Corporation's share shall be reimbursed to OCEANSIDE with funds from income sources identified in Paragraph (15.c.1) for costs incurred by OCEANSIDE in the land acquisition, design, planning, construction, development and approval of the Bypass Highway. b. Adoption of a Impact Fee Ordinance. Should the County Council adopt a Impact Fee Ordinance,OCEANSIDE shall receive one(1)unit of credit for every$3,101.68 it has spent toward the construction of the Bypass Highway and the Haleki'i Street intersection improvements. The credits may be applied toward the requirements of an Impact Fee Ordinance. c. Funds for Reimbursement. During the course of this Agreement, if the COUNTY approves new rezonings in the vicinity of Mamalahoa Highway,then the COUNTY shall assess those new developments a "Fair Share" contribution in accordance with Council policy, or similar fee, to address the regional impacts of their development on road facilities. In the event that the COUNTY collects funds for 14 such "Fair Share" contributions, or similar fees, as may be allowed by the rezoning ordinances, and as identified in Paragraphs(15.c.I. and 15.c.2. herein) from developers and landowners whom the County has determined as benefitting from the Bypass Highway,the COUNTY shall reimburse OCEANSIDE from such funds as they are collected. (1) Funds to reimburse OCEANSIDE shall be from, but not limited to, the following sources: (a) "Fair Share" contributions paid to the COUNTY to address potential regional impacts of their development on road facilities; (b) Upon the adoption of a Impact Fee Ordinance that assesses or imposes an impact fee either for the COUNTY as a whole or for the region extending from Keauhou to Milolii, that portion of the impact fee necessary to address potential regional impacts on road facilities; (c) Any other monetary contribution paid to the COUNTY from developers or land owners, whom the COUNTY determines as benefiting from the Bypass Highway, to address potential regional impacts of such developer's or land owner's development on road facilities; (2) In addition to the reimbursement funds identified in Paragraph (15.c.1), OCEANSIDE shall be entitled to "Fair Share" contributions in the amount of$3.6 million, as may be adjusted from time to time,paid to the COUNTY by Kealakekua Development Corporation or its successors to address potential regional impacts of Kealakekua Development Corporation's project, less $1.3 million representing contributions toward Mamalahoa Highway Improvements and improvements to Greenwell Park as required by Conditions K and N(2), respectively, of Ordinance 95-70,as may be amended. (3) Should the COUNTY Council adopt an Impact Fee Ordinance, developers and land owners whom the COUNTY determined as benefitting from the Bypass Highway shall receive Highway Credits to be applied toward the requirements of a Impact Fee Ordinance. (4) As long as the COUNTY shall assess those new rezonings in the vicinity of Mamalahoa Highway a fair share contribution in accordance with Council policy,or if adopted,an impact fee,to address the regional impacts of their developments on road facilities, OCEANSIDE acknowledges and understands that should any funds or options identified in the preceding sections 15.b and c. fail to materialize or fail to meet the remainder of the total cost of the Bypass Highway,the COUNTY shall not be held responsible for any reimbursements. d. "Benefit" to Other Developments. The COUNTY finds that certain geographic portions of Mamalahoa Highway are currently congested and that any new development is severely restricted because of traffic considerations. Developments within the geographic region extending from Keauhou to the north and to Milolii to the south will benefit in varying degrees from the construction of the Bypass 15 Highway. This benefit is based on the congestion relief provided by the Bypass Highway to Mamalahoa Highway/Kuakini Highway as well as by providing direct access to the land along the Bypass Highway corridor. Accordingly, the amount of the"benefit"of the bypass Highway will vary by geographic region. (1) Amount of Reimbursement to OCEANSIDE. The amount of the COUNTY's reimbursement to OCEANSIDE shall be based on a percentage of those income sources identified in subparagraph(15.c)which are collected or assessed by the COUNTY from other developers and land owners whom the COUNTY has determined as benefitting from the Bypass Highway. The percentage paid shall be in accordance with the geographic areas as described below, and as more particularly shown on Exhibit"P". Area Description Percentage 1. Keauhou 25%* 2. Honalo-Captain Cook- Existing Mamalahoa Hwy Corridor 80% 3. Honalo-Captain Cook- Mauka Area I00% 4. Honalo-Captain Cook- Makai Area 100% 5. Captain Cook to Milolii 65% *In recognition of the existing Keauhou road and traffic improvements, any "Fair Share" contribution, impact fee or similar fee assessed on new rezonings by the County Council in the Keauhou Area may be satisfied in the form of cash, land and/or facilities, or any combination thereof acceptable to the director. (2) Collection of Funds. Any Reimbursement Funds received by COUNTY shall be held in trust for OCEANSIDE and promptly remitted to OCEANSIDE by the COUNTY no later than ninety(90)days following the COUNTY's receipt of such remittance. e. Private Agreements. The provisions of this Paragraph shall not preclude OCEANSIDE from entering into private agreements with the State and/or such other developers or landowners to allocate the payment of Reimbursement Funds related to the Bypass Highway directly to OCEANSIDE. OCEANSIDE shall submit receipts of such payments to the COUNTY. f. Reimbursement Agreement. The provisions for reimbursement contained in this Agreement shall constitute an agreement for reimbursement between COUNTY and OCEANSIDE, which agreement shall satisfy the mandates of Condition L of Ordinance 96-8,and Condition M of Ordinance 96-7. 16. ROADWAY STUB-OUTS. OCEANSIDE shall provide roadway stub-outs,generally shown in Exhibit "Q", to provide future connections between the Property and its adjacent north and south boundaries. Such roadway stub-outs shall be constructed in phases and in conjunction with the completion of subdivision improvements on adjacent Property. 16 17. PUBLIC ACCESS PLAN. OCEANSIDE shall develop, in consultation with community groups, a final comprehensive Public Access Plan. The Public Access Plan shall be submitted to and approved by the Director prior to final subdivision approval of the first small-lot subdivision. a. The final comprehensive Public Access Plan shall be developed in consultation with the Director and the Hawaii State Department of Land and Natural Resources ("DLNR")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. b. In accordance with Ordinance 96-7 and 96-8, the Public Access Plan shall also integrate at the trail heads, shoreline access parks and the historical park, any public accessway(s) to the interpretive trail system(s)and to the historical and archaeological sites. Such a Public Access Plan shall be approved by the Director, in consultation with the DLNR. In developing the Public Access Plan, OCEANSIDE should attempt to protect both land and ocean resources and natural conditions, as reasonably practicable. 18. COASTLINE PARK. OCEANSIDE shall develop the portion of its lands in the Property located in the Conservation District for use as a Coastline Park for the benefit of the public pursuant to the Approvals. a. Construction and Development of the Coastline Park. OCEANSIDE shall be responsible for any and all costs associated with the design, operation and maintenance, construction and development of the Coastline Park, including, without limitation, the costs associated with obtaining any necessary Approvals associated with the same. Notwithstanding the foregoing, OCEANSIDE may transfer it obligations, in whole or in part, under this paragraph to the Project's "Homeowner Association"or other similar entity formed for the purpose of serving as the governing body for all the members and owners of the Project for the protection, improvement,alteration,maintenance, repair,replacement,administration and operation of the common areas, for the assessment of expenses, for the payment of losses, and for other matters as may be provided for in the Project's Declaration, the Homeowner Association's Articles of Incorporation,the Homeowner Association's By-laws,or the Project's Design Guidelines, The Declaration shall contain language providing for the perpetuity of the Coastline Park and its availability to the public for use in accordance with certain rules and guidelines that will be established in the public access plan as required under SMA Permit No. 345 to be submitted by OCEANSIDE to the Director for approval. Additionally, if requested by OCEANSIDE or the Homeowner Association,and if approved by the COUNTY, which approval shall not be unreasonably withheld, said Developer or the Homeowner 17 Association may assign its responsibilities, in whole or in part, under this paragraph to a foundation or other entity to assume the duties and obligations stated herein. b. The construction and development of the Coastline Park shall be completed in phases roughly proportional to the phases of the Project's development as may be approved by the Director pursuant to the Approvals and shall be subject to the obtaining of all necessary discretionary permits (e.g. Conservation District Use Approval, Special Management Area Use Permit, etc.). (1) An area comprising twenty five percent(25%)of the total Coastline Park as shown on Exhibit "R"attached hereto and incorporated herein by this reference, shall be developed and improved by OCEANSIDE in phases within five (5) years from the date final Small-lot Subdivision Approval is obtained on any portion of the Property. (2) The first phase of the Coastline Park shall be opened to the public within thirty(30)days following the opening of the golf course. (3) In accordance with Ordinance 96-7 and 96-8, upon opening the first phase of the park area, OCEANSIDE shall provide: (a) a minimum of twenty-five(25)public parking stalls,with separate parking stalls for residents and their guests, and separate parking stalls for the Coastline Park's employees. As may be imposed in permits necessary to complete the Coastline Park's improvements,the parking stalls shall, at OCEANSIDE's discretion,either be within the Coastline Park and/or within OCEANSIDE's adjacent lands. The number of parking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; (b) signage and provisions for public access for night fishing and marine food gathering purposes subject to restrictions which limit said uses to non-commercial and recreation uses only; and (c) other restrictions which provide for the health and safety of the public. c. In accordance with SMA Permit No. 345, upon the approval of the final comprehensive public access plan, draft covenants which detail the rights,obligations and privileges of the public,the County of Hawaii and OCEANSIDE, its successors or assigns shall be submitted to the Director for approval. The approved covenants shall be recorded in the manner required pursuant to SMA Permit No. 345. d. Prior to receiving final approval of the first Small-lot Subdivision, OCEANSIDE shall convey to COUNTY a perpetual easement for public access over and recreational use of the Coastline Park area pursuant to such restrictions as may be established by OCEANSIDE with the approval of the 18 Director,to promote public health and safety and the general security of the Coastline Park for residents and guests of the Project, to protect the area's natural condition, and to minimize any liability to OCEANSIDE, pursuant to HRS Chapter 520. e. OCEANSIDE's fee simple interest in the land area of the Coastline Park shall be retained by OCEANSIDE, who shall own and manage the Coastline Park; provided that OCEANSIDE, in its sole discretion, may transfer management responsibilities for the Coastline Park to any homeowners' association or other entity which may be formed for the Project subject to the aforementioned covenants. I9. GUEST HOUSES. Nothing herein shall be construed as prohibiting the construction of"guest houses"within the Project as the term is defined in Zoning Code section 25-1-5(55),as allowed under Zoning Code section 25-4-9,and pursuant to Chapter 205-6, HRS. 20. GENERAL DEVELOPMENT OF THE PROJECT. OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park in accordance with the terms and conditions of this Agreement and the Approvals, and the parties shall have the right to enforce the provisions of this Agreement. The parties hereto acknowledge that this Agreement is intended to implement the intent of the parties and that OCEANSIDE shall have the right to develop the Project, the Bypass Highway and the Coastline Park pursuant to the Land Use Regulations and Approvals, subject to its adherence to and performance of all terms and conditions of this Agreement. In the event that a question arises regarding OCEANSIDE's and the COUNTY's responsibilities or their intent, the parties shall look toward this Agreement to clarify such issues. 21. SUBSEQUENT CHANGES IN LAND USE REGULATIONS. Any subsequent change in any applicable law adopted by the COUNTY or any other governmental entity or agency party to this Agreement, which alters or amends the Land Use Regulations, including, without limitation, any moratoriums, shall be void as applied to the Property; provided that this Paragraph shall not prevent the COUNTY or any other governmental entity or agency party to this Agreement from requiring OCEANSIDE to comply with laws, ordinances, resolutions, rules and policies of general applicability and not specific to OCEANSIDE enacted subsequent to the date of this Agreement, if, under prior law, such laws, ordinances, resolutions, rules and policies could have been lawfully applied to the Property or any uses thereof as of the date of this Agreement if the COUNTY or any other governmental entity or agency party to this Agreement finds it necessary to impose the requirements because a failure to do so would place the residents of the Project or the immediate community in a condition perilous to the residents' health or safety, or both. 22. NECESSARY COUNTY APPROVALS. a. With regard to any applications to the COUNTY by OCEANSIDE for any and all appropriate COUNTY Approvals required for the construction or development of the Project, the Bypass 19 Highway and the Coastline Park, the COUNTY shall process such applications under the Land Use Regulations and issue to OCEANSIDE all such approvals; provided that such applications are consistent with and conform to the standards,terms and conditions of this Agreement and the Land Use Regulations; and provided further,that the COUNTY shall not impose on OCEANSIDE any further Exactions or requirements other than those already existing as of the date of the Enacting Resolution under the Approvals. b. The COUNTY shall accept and process expeditiously any application(s)submitted under this Paragraph or otherwise required under the terms of this Agreement within such time frames as specified within the Land Use Regulations; provided, however, that if the Land Use Regulations do not contain a specific time frame for processing such application(s),the application(s)shall be processed within a reasonable amount of time from the date of receipt of a complete application(s) by the COUNTY; and provided further that if, for any reason,the application(s)as submitted by OCEANSIDE is/are not complete, the COUNTY shall promptly request from OCEANSIDE any information or materials necessary to complete the application(s). 23. CONFORMANCE WITH THE COUNTY GENERAL PLAN AND COMMUNITY DEVELOPMENT PLANS. By virtue of the County Council's approval of the Enacting Resolution, the County Council finds that as of the date of this Agreement, this Agreement is consistent with the COUNTY's General Plan as amended,and any applicable community development plans adopted by the County Council and in effect as of the date of this Agreement; provided, however, that in the event of any inconsistency between the County General Plan and any applicable community development plan by ordinance, the County General Plan shall prevail. 24. ANNUAL REVIEW. On or before January 14th of each and every year following the execution of this Agreement,OCEANSIDE shall submit an annual report of its compliance with the terms and conditions of this Agreement to the Planning Department,or such agency as the COUNTY designates in writing to OCEANSIDE; provided further,that the Planning Department or such designated agency shall review such report for adequacy and accuracy and shall forward a copy of the annual report together with its findings and any other comments to the Mayor,County Council,OCEANSIDE and any other parties to this Agreement within sixty(60)days. 25. MATERIAL BREACH BY OCEANSIDE. a. Within thirty (30)days after the Planning Department or the Office of the Mayor determines on the basis of the periodic report that OCEANSIDE has committed a material breach of the terms or conditions of this Agreement,the Planning Department or the Office of the Mayor,as applicable, shall inform OCEANSIDE in writing of the same, setting forth with reasonable particularity the nature of 20 the breach and any and all evidence supporting the finding and determination; provided, however, that OCEANSIDE shall be given a reasonable time period in which to cure any such material breach. b. OCEANSIDE shall have one hundred eighty(180)days to cure the material breach. If OCEANSIDE fails to cure the material breach within that time,the COUNTY may terminate or modify the terms of this Agreement in accordance with HCC section 30-6; provided, however,that the Office of the Mayor shall have first given the OCEANSIDE the opportunity: (1) To rebut the finding and determination by the Office of the Mayor of the existence of the material breach;or (2) To consent to amend this Agreement according to such terms as the Office of the Mayor may elect to propose in order to cure the material breach; provided, however, that such amendments must be accepted and approved by the County Council pursuant to Paragraph(27), herein. c. Upon the mutual agreement of the parties to the Agreement, this Agreement may be terminated by County Council resolution if: (I) OCEANSIDE does not agree to such amendments proposed by the Office of the Mayor or as subsequently modified by the County Council pursuant to Paragraph (27), herein; or (2) The County Council reasonably rejects the amendments proposed by the Office of the Mayor and the County Council states its reasons, in writing, for rejecting the proposed amendments. d. Should the County Council terminate this Agreement, OCEANSIDE will have the right to appeal such a decision to a court of law, in which case the standard of review shall be whether the County Council acted reasonably in its termination of this Agreement. The termination of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement not been entered into. 26. EXTENSION OF TIME. a. Pursuant to Ordinances 96-7,96-8 and 97-36,upon written request of OCEANSIDE to the Director, any dates of commencement or completion for the Bypass Highway or the Coastline Park may be extended by the Director at OCEANSIDE's request. b. Notwithstanding any extension limitations set forth herein,upon written request by either party for an extension of time in which to complete its obligations hereunder which request is made due to a delay in the performance of any of the obligations of either party, a reasonable extension of the commencement,completion,or termination dates shall be granted by the other party for the performance of the terms of this Agreement; provided, however, that the delay in performance must be due to an unforeseeable cause or causes beyond the control and without the fault or negligence of either party, 21 including, without limitation, acts of God, acts of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes or walkouts, freight embargoes, or unusually severe weather. c. Nothing in this Agreement shall be construed to preclude the parties hereto from further extending any commencement, completion or termination date hereunder by mutual agreement, or from entering into subsequent agreements subject to the approval of the County Council. 27. AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement may be amended or canceled, in whole or in part, by mutual consent of the parties to this Agreement, or their successors in interest,as further evidenced by County Council resolution; provided that if the County Council determines that the proposed amendment would substantially alter the original terms of this Agreement, a public hearing on the amendment shall be held by the County Council before it consents to the proposed amendment. Non-substantive or technical amendments which affect only procedural requirements under this Agreement or do not materially alter the original terms of this Agreement shall only require the approval of the Office of the Mayor,without action by the County Council;and provided further that cancellation of this Agreement pursuant to this Paragraph shall not preclude any rights or remedies that would have existed had this Agreement not been entered into. 28. DISCRETION TO ENCUMBER. This Agreement shall not prevent or limit OCEANSIDE, in any manner and at OCEANSIDE's sole discretion, from encumbering all or any portion of the Property,or any improvement on the Property by any mortgage,deed of trust,or other security device securing financing with respect to the Property or any improvements located thereon. 29. OBLIGATION TO MODIFY. The COUNTY acknowledges that any Lenders providing financing under Paragraph (28), herein, may require certain modifications to this Agreement, and the COUNTY agrees, upon request from time to time,to meet with OCEANSIDE and/or representatives of such lenders to negotiate in good faith any such requirement for modification. The COUNTY shall not unreasonably withhold its consent to any such requested modification,and any such modifications shall be subject to the provisions of Paragraph (27), herein. 30. ENTITLEMENT TO WRITTEN NOTICE OF DEFAULT. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering all or any portion of the Property and their successors and assigns shall, upon written request to the COUNTY,be entitled to receive from the COUNTY written notification of any default by OCEANSIDE of the performance of OCEANSIDE's obligations under this Agreement which has not been cured within such time period as set forth in Paragraph (25), herein. 31. COOPERATION. The COUNTY shall not impede OCEANSIDE in carrying out the transactions contemplated herein and in obtaining all required approvals, authorizations, and clearances. Furthermore, the COUNTY shall cooperate with OCEANSIDE in executing and delivering in recordable 22 form all documents, instruments, or copies thereof; in providing non-financial and/or non-proprietary information deemed reasonably necessary or useful by the other party or parties; in delivering prompt payment of any monies required to be paid to the other party or parties under this Agreement; and to process, in a timely manner, any and all construction, permit or other applications relating to the Project, the Bypass Highway or the Coastline Park. With regard to any application(s)submitted by OCEANSIDE to any other governmental or quasi-governmental agency having jurisdiction over the Project, the Bypass Highway or the Coastline Park for any and all appropriate Approvals required for the construction or development of the Project, the Bypass Highway, or the Coastline Park the COUNTY shall not impede OCEANSIDE in obtaining such Approvals. 32. ASSIGNMENT. OCEANSIDE shall have the right to sell, assign or transfer, in whole or in part, this Agreement, and all of its rights, duties and obligations hereunder, to any entity, subsidiary, or partner of OCEANSIDE at any time during the term of this Agreement upon written notice to the Director. Such a transfer shall be considered a non-substantive or technical amendment that does not alter the material terms of this Agreement and which does not require action by the County Council, nor the approval of the Office of the Mayor. 33. ENFORCEMENT. Unless terminated pursuant to Paragraph (25) or canceled pursuant to Paragraph (27) herein, this Agreement, as amended or modified, shall be enforceable by any party hereto, or its successors in interest or assigns, notwithstanding any change in any applicable law, which alters or amends the Land Use Regulations or Approvals, the Development Agreement Statute, the Development Agreement Code,or the Development Agreement Rules,that is adopted by the COUNTY or any other party to this Agreement after the date of the Enacting Resolution. 34. WAIVER. The failure of any party to this Agreement to insist upon strict performance of any of the covenants or conditions herein, or to exercise any option herein conferred, or the waiver of a breach, shall not be deemed a waiver of such party's right to demand strict compliance by such other party in the future, nor shall it be deemed a relinquishment or waiver for the future of any rights, covenants, conditions or options under this Agreement. 35. GENDER. The terms "COUNTY" and "OCEANSIDE", wherever used herein, or any pronoun used in place thereof, shall mean and include the masculine or feminine or neuter gender, the singular or plural number,jointly and severally, individuals, firms or corporations,and their and each of their respective successors, legal representatives and assigns, according to the context thereof. 36. No PARTY DEEMED DRAFTER. No party shall be deemed the drafter of this Agreement. If this Agreement is ever construed by a court of law, such court shall not construe any provision thereof against any party as drafter. 23 37. No PARTNERSHIP. Nothing contained in this Agreement is intended,nor shall be construed to establish an agency relationship, a partnership or a joint venture between the parties hereto. 38. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Hawaii both as to interpretation and performance. 39. FORCE MAJEURE. In the event that either party shall be delayed or hindered in or prevented from the performance of any duties, obligations or conditions provided for and required under this Agreement by reason of strikes or other disturbances, lockouts, labor troubles, riots, insurrection, war or civil disturbance, fire or earthquake,tidal wave,acts of God,the elements, government legislation, regulation or controls, or economic controls, making it impossible to complete any duties, obligations, or conditions provided for and required under this Agreement, then performance of such duty, obligation, or condition shall be excused for the period of the delay and the period for the performance of any such duty,obligation, or condition shall be extended for a period equivalent to the period of such delay. Under no circumstances shall this provision operate or be construed to excuse either party from the payment of any sum required to be paid to the other party. OCEANSIDE or the COUNTY shall notify the other in writing of any force majeure event upon which OCEANSIDE or the COUNTY intends to rely upon for an extension of the period for the performance of any such duty,obligation,or condition,and shall also notify the other in writing of the date on which any such force majeure event ended. 40. GOOD FAITH. Either party to this Agreement shall perform its duties under this Agreement in good faith. 41. COMPUTATION OF PERIODS. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays; provided, however, that if the date or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday,such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday. 42. SEVERABILITY. If any provision of this Agreement,or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of any provisions thereof to other persons or circumstances shall not be thereby affected. 43. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the parties hereto and supersedes any other agreements or understandings with respect to the subject matter hereof that may ever have existed between the parties. 24 44. SECTION AND PARAGRAPH HEADINGS. Section and paragraph headings are inserted only for convenience and reference and in no way define, limit, extend or describe the scope of intent of this Agreement, or any provisions thereof. 45. ADMINISTRATIVE ACT. The approval of this Agreement shall, under Development Agreement Statute HRS section 46-131, be deemed an administrative act of the COUNTY and any and all governmental agencies or entities party to this Agreement. 46. BINDING EFFECT. The terms and conditions of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to,all successors in interest to and assigns of the parties hereto, and the covenants contained herein shall run with the land. 47. ENTITIES OBLIGATED. Except as provided to the contrary herein, individual lot purchasers or builders, mortgagees or beneficiaries shall not have the obligation or duty under this Agreement to perform the obligations of OCEANSIDE or other affirmative covenants of OCEANSIDE hereunder,or to guarantee such performance. 48. PARTIAL RELEASE. Any terms and restrictions of this Agreement which are satisfied as of the annual review shall be released upon request of OCEANSIDE; provided that any such release shall be in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable, within twenty (20) days of the execution of such release. 49. COMPLIANCE CERTIFICATE. If,during the annual review conducted pursuant to Paragraph (24), herein, the Planning Department finds compliance by OCEANSIDE with the terms of this Agreement, the Planning Department shall issue a certificate of compliance in recordable form that OCEANSIDE may record in the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable. 50. SATISFACTION. Upon the satisfaction of the terms and conditions of this Agreement, and upon request by the Office of the Mayor and OCEANSIDE, the County Council shall propose and approve a resolution indicating that this Agreement has been satisfied. 51. FINAL RELEASE. The COUNTY agrees that upon written request of OCEANSIDE and payment of all fees and performance of the obligations of OCEANSIDE under this Agreement with respect to all or any portion of the Property, the COUNTY shall execute and deliver to OCEANSIDE appropriate release(s) of OCEANSIDE from any and all further obligations under this Agreement in such form and substance necessary to effect such release and to record the same with the Office of the Assistant Registrar of the Land Court of the State of Hawaii and/or the State of Hawaii Bureau of Conveyances, as applicable; provided that any such release shall be recorded within twenty(20)days of its execution. 25 52. ADMINISTRATION OF THIS AGREEMENT. The Planning Department shall be responsible for the overall administration of this Agreement. 53. RECORDATION. The Planning Department, or such other executive agency designated in writing to OCEANSIDE by the Mayor, shall file or record copies of this Agreement and any amendment or modification hereto in the Office of the Assistant Registrar of the Land Court of the State of Hawaii or in the State of Hawaii Bureau of Conveyances,or both, whichever is applicable,within twenty(20)days after the execution of this Agreement, or twenty(20) days after any amendment hereto. 54. COUNTERPARTS. The parties hereto agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same instrument, binding all of the parties hereto, notwithstanding that all the parties are not signatories to the original or the same counterparts. For all purposes, including, without limitation, the recordation, filing and delivery of this Agreement,duplicate, unexecuted and unacknowledged pages of the counterpart may be discarded and the remaining pages assembled as one (I) document. 55. FACSIMILE DOCUMENTS. The parties agree to accept facsimile executed documents as if they were originally signed documents. Any party submitting facsimile signatures shall provide the other parties with originally signed replacement documents within five(5)business days from the date of receipt by such other parties of the facsimile executed documents. 56. NOTICES. Unless otherwise provided herein, any notice to either party given under this Agreement shall be in writing and given by delivering the same to such party in person, or by sending the same by registered, certified or express mail, return receipt requested, first class postage prepaid, to the party's address as first noted herein, or as otherwise provided through written notice to the other party. 57. PUBLIC DEDICATION. Unless otherwise provided by OCEANSIDE in writing, this Agreement shall not be deemed a gift or dedication of the Project or the Property,or any portion thereof, to the general public, for the general public,or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes expressed herein for the development of the Project and the Property as private property. 26 IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed the day and year first above written. COUNTY OF HAWAII "COUNTY" Approved as to form and legality: Corporation Counsel By . 7 tC• yglu45444 Its Mayor 1250 OCEANSIDE PARTNERS "OCEANSIDE" Approved as to form and legality: By RED HILL 1250, INC. Its Gener. '•rtner r .Its Legal Counsel By Richard T. Frye Its Vice President 27 STATE OF HAWAII ) ss : COUNTY OF HAWAII ) On this ;),A day of Pk'pv1l , 19 9& before me, rkVyNAt.e.h K• Y�1oi , the undersigned Notary Public, 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 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 . • i o44.ai LNotar Public,' State of Hawaii My commission expires : gliqa001 L.5 • STATE OF HAWAII SS: COUNTY OF HAWAII rh•K.•K. On this 19442 day of PhD,, , 1998, before me appeared Richard T. Frye,`te, who, being by me duly sworn, did say that he is the Vice President of Red Hill 1250, Inc., general partner of 1250 OCEANSIDE PARTNERS dba OCEANSIDE 1250, a Hawaii limited partnership, that the foregoing instrument was signed in the name of and in behalf of said partnership, and said Richard T. Frye acknowledged that he executed the same as his free act and deed and as the free act and deed of said partnership. Notary 1Public,;Stat of Hawaii My commission expires: a//c/ao o S. 29 List of Exhibits Exhibit Description A Map describing portion of the Property owned by OCEANSIDE in fee simple and that portion that is leased. B Ordinance No. 96-8 C Ordinance No. 96-7 D SMA Permit No. 345 E Use Permit No. 115 F SMA Permit No. 356 G Ordinance No. 97-36 H Mamalahoa Highway bypass detail and description. I Enacting Resolution approving the Agreement (not available until after Council acts). J Project Plan - Agricultural lot community and its various components, including the lodge and coastline park. Excludes the Mamalahoa Highway Bypass. K Map identifying 260.8 acres as TMK 7-9-12:04 and 11, which is leased from Ackerman Ranch. L Short Form of Ackerman Ranch lease. M Construction standards for the Mamalahoa Highway Bypass. N Sample Letter releasing OCEANSIDE from all further responsibilities and obligations with respect to segments of the Mamalahoa Highway Bypass. O Map of the relevant phases of the extension of Halekii Street through the Property. P Map of geographic areas for reimbursement. 1 List of Exhibits Exhibit Description Q Map of roadway stub-outs providing future connections between Property and its north and south boundaries. R Coastline Park S Ordinance No. 94-73 T1 Mamalahoa Highway Bypass TMX Map T2 Mamalahoa Highway Bypass TMX Map 2 • '� `0 .4 rI - ' `die. c ` , ' '., ; .'_� ;'%` - , •A �,:-•.Lr^,c VASt 7 � - �.. 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I.\I: • ( .. ::: L , LEASE AREA EXHIBIT A COUNTY OF HAWAII STATE OF HAWAII BILL NO. 181 (Draft ORDINANCE NO. 96 8 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 HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a) AND UNPLANNED (U) TO AGRICULTURAL (A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND. KANAUEUE 1ST AND 2ND, HALEKII, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA. HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-1-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd. North Kona. Hawaii, shall be Agricultural (A-1a): PARCEL 1: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 71 • 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152• 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; EXHIBIT B Thence, for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3. 251 ° 23' 30" 224.69 feet to a point; 4. 250° 35' 58.35 feet to a point; 5. 255° 17' 131.07 feet to a point; 6. 240° 43' 26.91 feet to a point; 7. 257° 50' 172.57 feet to a point; 8. 243° 13' 30" 21.91 feet to a point; 9. 256° 57' 98.95 feet to a point; Thence, for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo: 10. 338° IT 30" 158.36 feet to a point; 11. 257° 24' 102.95 feet to a point; 12. 255° 40' 30" 171.35 feet to a point; 13. 261 ° 29' 101.46 feet to a point; 14. 346° 30' 30" 54.40 feet to a point; 15. 343° 21' 30" 152.40 feet to a point; 16. 346° 20' 165.46 feet to a point; 17. 343° 29' 30" 80.88 feet to a point; 18. 357° 13' 57.51 feet to a point; 19. 345° 53' 30" 154.41 feet to a point; 20. 333 53' 114.71 feet to a point; 21. 345° 43' 43.78 feet to the point of beginning and containing an area of 22.251 Acres. more or less. (Refer to Parcel 1 as shown on Exhibit "A"). _1. The district classification of the following area situated at Honuaino 3rd and 4th. Hokukano 1st and 2nd and Kanaueue 1st and 2nd, North Kona. Hawaii. shall be Agricultural (A-1a): PARCEL 2: Beginning at the Northwesterly corner of this parcel of land, being also a point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall. the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 5,408.20 feet North and 934.23 feet East and running by azimuths measured clockwise from True South: Thence, for the next sixty-seven (67) courses following along middle of stonewall and along Royal Patent 1098, Land Commission Award 614 to Charles Hall: I . 172° 44' 35.46 feet to a point; 2. 250° 06' 26.01 feet to a point; 3. 245° 26' 19.20 feet to a point; 4. 251 ° 15' 39.58 feet to a point; 5. 259° 25' 18.68 feet to a point; 6. 246° 50' 16.35 feet to a point; 7. 254° 27' 40.28 feet to a point; 8. 323° 16' 7.32 feet to a point; 9. 249° 32' 44.32 feet to a point; 10. 265° 01' 30" 16.93 feet to a point; 11. 271 ° 10' 30" 50.61 feet to a point; 12. 261 • 46' 30" 67.77 feet to a point; 13. 256° 32' 30" 36.61 feet to a point; 14. 262• 38' 30.23 feet to a point; 15. 258' 17' 37.28 feet to a point; 16. 254• 45' 21.32 feet to a point; -3- 17. 257° 35' 30" 36.22 feet to a point; 18. 265° 03' 2L89 feet to a point; 19. 263° 53' 30" 45.49 feet to a point; 20. 266° 14' 44.43 feet to a point; 21. 249° OT 32.29 feet to a point; 22. 256° 49' 30" 41.74 feet to a point; 23. 250° 03' 30" 91.17 feet to a point; 24. 2570 28' 88.18 feet to a point; 25. 253° 37' 30" 14.36 feet to a point; 26. 271° 49' 7.86 feet to a point; 27. 243° 18' 30" 43.30 feet to a point; 28. 252° 36' 45.75 feet to a point; 29. 262° 29' 35.65 feet to a point; 30. 265° 31' 13.70 feet to a point; 3I. 260° 35' 30" 76.29 feet to a point; 32. 268° 05' 30" 59.53 feet to a point; 33. 253° 44' 30" 12.40 feet to a point; 34. 259° 40' 25.69 feet to a point; 35. 264° 02' 51.71 feet to a point; 36. 259° 49' 30" 85.74 feet to a point; 37. 266° 56' 48.70 feet to a point; 38. 265° 44' 61.02 feet to a point; 39. 272° 05' 60.95 feet to a point; 40. 269° 19' 30" 91.04 feet to a point; 41. 275° 29' 26.42 feet to a point; 42. 280° 52' 30" 26.76 feet to a point; -4- 43. 272° 21' 30" 28.45 feet to a point; 44. 277° 12' 46.47 feet to a point; 45. 273° 22' 30" 84.54 feet to a point; 46. 273° 04' 30" 57.99 feet to a point; 47. 270° 29' 30.67 feet to a point; 48. 275° 46' 30" 91.01 feet to a point; 49. 267° 54' 30" 87.48 feet to a point; 50. 261° 05' 30" 28.16 feet to a point; 51. 266° 13' 128.24 feet to a point; 52. 270° 26' 114.47 feet to a point; 53. 260° 09' 81.24 feet to a point; 54. 262° 27' _ 166.66 feet to a point; 55. 261° 4T 108.98 feet to a point; 56. 243° 34' 33.10 feet to a point; 57. 259° 14' 30" 37.03 feet to a point; 58. 265° 34' 30" 77.10 feet to a point; 59. 262° 59' 118.99 feet to a point; 60. 256° 19' 39.78 feet to a point; 61. 262° 44' 82.08 feet to a point; 62. 267° 50' 34.11 feet to a point; 63. 265° 25' 63.09 feet to a point; 64. 273' 36' 30" 112.92 feet to a point; 65. 268• 50' 151.03 feet to a point; 66. 274• 59' 30" 35.27 feet to a point; 67. 268' 30' 30" 48.40 feet to a point; -5- Thence, for the next three (3) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S. W. Makahiki: 68. 15° 00' 431.60 feet to a point; 69. 0° 23' 223.30 feet to a point; 70. 333° 44' 145.20 feet to a point; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John Cavanah: 71. 319° 08' 63.63 feet to a point; 72. 327° 12' 30" 92.54 feet to a point; 73. 333° 41' 55.11 feet to a point; 74. 341 ° 52' 42.41 feet toapoint; 75. 350° 21' 65.77 feet to a point; 76. 357° 1 1' 30" 87.84 feet to a point; 77. 7° 46' 82.65 feet to a point; 78. 17° 59' 209.88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, for the next ten (10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawc: 79. 15° 46' 30" 221.91 feet to a point; 80. 350° 40' 30" 86.03 feet to a point; 81 . 346° 02' 30" 127.39 feet to a point; 82. 347° 43' 68.36 feet to a point; 83. 356° 37' 108.84 feet to a point; 84. 358° 09' 110.66 feet to a point; 85. 6° 27' 30" 75.31 feet to a point; -6- 86. 357° 30' 30" 143.26 feet to a point; 87. 8° 45' 30" 30.57 feet to a point: 88. 359° 52' 108.27 feet to a point; 89. 265° 47' 29.79 feet along the remainder of Grant 1463 to Keawe to a point; Thence. for the next eight (8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keaw.-e: 90. 357° 33' 107.96 feet to a point; 91. 352° 21' 72.88 feet to a point; 92. 356° 43' 30" 32.40 feet to a point; 93. 353° 27' 38.77 feet to a point: 94. 350° 36' 29.09 feet to a point; 95. 339° 51' 130.13 feet to a point; 96. 329° 39' 30" 32.22 feet to a point; 97. 326° 06' 51.01 feet to a point; 98. 324° 59' 10.48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 99. 320° 39' 115.81 feet along the remainder of Royal Patent 5336, Land Commission Award 9413 to Kahana to a point; 100. 67° 26' 30" 92.41 feet along wire fence and along Grant 992 to W. Whitmarsh to a point; 101. 70° 35' 63.69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 102. 67° 10' 30" 124.47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point; 103. 72' 45' 45" 371.54 feet along Grant 992 to W. Whitmarsh to a point; -7- 104. 79° 49' 199.17 feet along Grant 992 to W. Whitmarsh to a point; Thence, for the next twenty-three (23) courses following along middle of stonewall and along Grant 992 to \V. Whitmarsh: 105. 82° 05' 30" 51.64 feet to a point; 106. 83° 18' 181.52 feet to a point; 107. 84° 58' 30" 118.82 feet to a point; 108. 85° 30' 30" 145.13 feet to a point; 109. 91 ° 09' 79.55 feet to a point; 110. 82° 04' 95.77 feet to a point; 1 1 1. 82° 31' 45" 212.72 feet to a point; 112. 359° 15' 512.31 feet to a point; 113. 268° 21' 280.72 feet to a point; 114. 259° 47' 379.67 feet to a point; 115. 260° 53' 149.26 feet to a point; 116. 259° 07' 153.59 feet to a point; 117. 266° 02' 30" 90.63 feet to a point; 118. 250° 32' 115.64 feet to a point; 119. 240° 54' 54.22 feet to a point; 120. 246° 41' 140.89 feet to a point; 121. 256° 30' 30" 95.53 feet to a point; 122. 240° 04' 30" 52.97 feet to a point; 123. 245° 12' 30" 66.16 feet to a point; 12-1. 257° 45' 30" 34.33 feet to a point: 125. 239° 59' 72.54 feet to a point; 126. 250° 39' 30" 70.76 feet to a point; -8- 127. 246° 08' 111.93 feet to a point; 128. 332° 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next four (4) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions: 129. 64° 12' 628.00 feet to a point; 130. 79° 26' 602.00 feet to a point; 131. 77° 00' 987.00 feet to a point; 132. 72° 13' 704.78 feet to a point; 133. 154' 42' 918.93 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with a radius of 1,030.00, the chord azimuth and distance being: 134. 174° 32' 30" 699.21 feet to a point; 135. 194° 23' 350.20 feet along the remainder of Grant 1587 to John Peters to a point; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1,270.00 feet, the chord azimuth and distance being: 136. 165° 33' 1,224.95 feet to a point; 137. 136° 43' 68.92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1,030.00 feet, the chord azimuth and distance being: 138. 149° 59' 30" 473.03 feet to a point; 139. 163° 16' 839.35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; -9- Thence, following along the remainder of Grant 2029 to S. W. Makahiki on a curve to the left with a radius of 470.00 feet, the chord azimuth and distance being: 140. 136° 23' 15" 424.98 feet to a point; 141. 165° 15' 189.91 feet along Grant 1651 to Charles Hall to the point of beginning and containing an area of 295.539 Acres. (Refer to Parcel 2 as shown on Exhibit "A".) SECTION 2. Section 25-88, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code. is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Halekii and Keekee 1st, South Kona, Hawaii, shall be Agricultural (A-la): PARCEL 3: Beginning at the Northeasterly corner of this parcel of land, being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2.272.75 feet North and 8,616.61 feet East and running by azimuths measured clockwise from True South: 1. 350° 44' 55" 482.03 feet along Lots 39, 38, 37, 36, 35 and 34 of Kona Scenic Subdivision, Unit I1 (File Plan 1591) and along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Pan 4, Section 2 to American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki'i Street to a point; 2. 78° 30' 470.15 feet along Lot 3 (Government Land - County of Hawaii) to a point; 3. 348° 30' 438.70 feet along Lot 3 (Government Land - County of Hawaii) to a point; -1. 266° 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point: -10- Thence, for the next eleven (1 1) courses following along middle of stonewall: 5. 4° 59' 157.50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6. 17° 24' 30" 102.93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7. 70 45' 30" 174.98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 8. 91 ° 17' 30" 56.46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9. 355° 54' 30" 333.18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four(4) courses following along Grant 866 to Kapule: 10. 86° 02' 30" 309.93 feet along Lot 2 to a point; 11. 80° 19' 207.35 feet along Lot 1 to a point; 12. 75° 14' 183.86 feet along Lot 1 to a point; 13. 79° 02' 674.13 feet along Lot 1 to a point; 14. 177° 38' 634.16 feet along the remainder of Grant 977 to Panaunau to a point; 15. 75° 14' 1,338.05 feet along Grant 977 to Panaunau to a point; 16. 150° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 17. 251 ' 45' 902.30 feet along Grant 865 to John Nakookoo to a point; -11- Thence, for the next thirty-six (36) courses following along middle of stonewall and along Gram 865 to John Nakookoo: 18. 250° 02' 30" 41.72 feet to a point; 19. 238° 11' 30" 99.82 feet to a point; 20. 246° 13' 93.37 feet to a point; 21. 253° 29' 121.82 feet to a point; 22. 257° 51' 121.61 feet to a point; 23. 249° 33' 59.76 feet to a point; 24. 245° 51' 177.23 feet to a point; 25. 248° 02' 30" 92.17 feet to a point; 26. 240° 26' 30" 60.37 feet to a point; 27. 254° 58' 1 10.46 feet to a point; 28. 258° 29' 24.30 feet to a point; 29. 274° 56' 30" 31.91 feet to a point; 30. 260° 18' 30" 148.31 feet to a point: 31. 253° 43' 47.09 feet to a point: 32. 243° 21' 30" 89.60 feet to a point; 33. 263° 53' 30" 70.49 feet to a point: 34. 254° 39' 30" 21.88 feet to a point; 35. 269° 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255° 29' 30" 27.38 feet to a point; 38. 241 ° 21' 30.35 feet to a point; 39. 227° 12' 30" 53.91 feet to a point: 40. 216° 24' 30" 55.73 feet to a point: -11 . 238° 55' 30" 27.24 feet to a point: -12- 42. 255° 23' 30" 29.74 feet to a point; 43. 271 ° 22' 69.73 feet to a point; 44. 265° 04' 29.52 feet to a point; 45. 275° 29' 30" 98.69 feet to a point; 46. 271 ° 04' 85.71 feet to a point; 47. 277° 42' 30" 71.32 feet to a point; 48. 269° 46' 21.84 feet to a point; 49. 270° 48' 110.24 feet to a point; 50. 268° 22' 91.02 feet to a point; 51. 258° 19' 92.53 feet to a point; 52. 270° 26' 57.58 feet to a point; 53. 265° 38' 177.70 feet to the point of beginning and containing an area of 94.387 Acres, more or less. (Refer to Pacel 3 as shown on Exhibit "A".) The district classification of the following area situated at Halekii, Keekee 1st and 2nd, Ilikahi, Kanakau 1st and 2nd, Kalukalu 1st, 2nd, and 3rd and Onouli 1st, South Kona, Hawaii, shall be Agricultural (A-1a): PARCEL 4: Beginning at the Southeasterly corner of this parcel of land, being also a point on the Northerly boundary of Grant 1 162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4,046.78 feet South and 6,502.93 feet East and running by azimuths measured clockwise from True South: 1. 65° 45' 54" 1,071.96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2. 78* 08' 30" 1,407.43 feet along middle of stonewall and along Grant 1 162 to F. O. Schulze to a point; Thence, for the next three (3) courses following along the remainder of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole: -13- 3. 203° 12' 488.09 feet to a point; Thence, following on a curve to the left with a radius of 870.00 feet, the chord azimuth and distance being: 4. 172° 50' 30" 879.41 feet to a point; 5. 142° 29' 272.49 feet to a point; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell, and Grant 1576 to Lohi on a curve to the right with a radius of 1,130.00 feet, the chord azimuth and distance being: 6. 169° 47' 1,036.55 feet to a point; 7. 197° 05' 307.17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 8. 183° 07' 31 1.35 feet to a point; 9. 169° 09' 54.98 feet along the remainder of Grant 1464 to lalua to a point; Thence, following along the remainders of Grant 1464 to lalua and Grant 1 175 to Nakauwaa on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 10. 186° 06' 41 1.07 feet to a point; 11. 203° 03' 162.63 feet along the remainder of Grant 1 175 to Nakauwaa to a point; Thence. following along the remainder of Grant 1 175 to Nakauwaa and Grant 1 177 to Kamakahiona on a curve to the left with a radius of 645.00 feet. the chord azimuth and distance beinc: 186° 42' 30" 362.96 feet to a point: -14- 13. 170° 22' 60.05 feet along the remainder of Grant 1 177 to Kamakahiona to a point; Thence, following along the remainders of Grant 1177 to Kamakahiona and Grant 1 176 to Kini on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 14. 186° 12' 384.70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini: 15. 202° 02' 35.26 feet to a point; Thence, following on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being: 16. 157° 02' 42.43 feet to a point; 17. 112* 02' 85.32 feet to a point; Thence, following on a curve to the left with a radius of 645.00 feet, the chord azimuth and distance being: 18. 970 14' 329.53 feet to a point; 19. 82° 26' 397.26 feet to a point; Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705.00 feet, the chord azimuth and distance being: 20. 118° 34' 831.43 feet to a point; 21. 154° 42' 342.97 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 22. 252° 13' 704.78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point; -15- Thence, for the next three (3) courses following along Grant 865 to John Nakookoo: 23. 257° 00' 987.00 feet to a point; 24. 259° 26' 602.00 feet to a point; 25. 244* 12' 628.00 feet to a point; 26. 330° 55' 956.00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 27. 255° 14' 1,338.05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 28. 357° 38' 634.16 feet along Grant 977 to Panaunau to a point; 29. 76° 40' 30" 1,596.74 feet along Grant 1177 to Kamakahiona to a point; 30. 76° 40' 30" 44.81 feet along Grant 1177 to Kamakahiona to a point; Thence, for the next six (6) courses following along the Westerly side of old railroad: 31 . 353° 25' 54.23 feet to a point; 32. 346° 06' 95.32 feet to a point; 33. 342° 16' 30" 289.54 feet to a point; 34. 341 ° 04' 132.29 feet to a point; 35. 345° 33' 48.71 feet along the remainders of Grant 1 177 to Kamakahiona and Grant 1 175 to Nakauwaa to a point; Thence. for the next six (6) courses following along the remainder of Grant 1 175 to Nakauwaa: 36 350° 55' 30" 47.80 feet to a point; -16- 3 7. 260° 45' 8.34 feet to a point; Thence, for the next four(4) courses following along the Westerly face of stonewall and along the Easterly side of old railroad: 38. 353° 43' 30" 58.69 feet to a point; 39. 1 ° 03' 30" 50.75 feet to a point; 40. .1° 06' 30" 32.09 feet to a point; 41. 9° 18' 30" 46.75 feet to a point; Thence, for the next four(4) courses following along the Northerly face of stonewall: 42. 79° 50' 28.51 feet along Grant 787 to H. N. Greenwell to a point; 43. 63° 01' 30" 205.62 feet along Grant 787 to H. N. Greenwell to a point; Thence, for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell: 44. 58° 15' 190.84 feet to a point; 45. 95° 12' 30" 36.26 feet to a point; Thence, for the next ten (10) courses following along the Westerly face of stonewall: 46. 340° 55' 30" 51.47 feet to a point; 47. 336° 12' 30" 95.40 feet to a point; 48. 340° 54' 85.38 feet to a point; 49. 338° 48' 30" 46.81 feet to a point; 50. 342' 23' 65.75 feet to a point; 51. 334° 35' 30" 65.95 feet to a point; 52. 332' 23' 82.87 feet to a point; 53. 324* 00' 11.13 feet to a point; 54. 332' 36' 30" 113.50 feet to a point; -17- 55. 347* 43' 24.68 feet to a point; Thence, for the next four (4) courses following along the Westerly side of old railroad: 56. 338° 19' 61.45 feet to a point; 57. 327° 39' 30" 17.91 feet to a point; 58. 347° 16' 94.25 feet to a point; 59. 3440 55' 30" 113.58 feet to a point; 60. 267° 05' 30" 16.83 feet to a point; Thence, for the next six (6) courses following along middle of stonewall: 61. 341 ° 48' 30" 54.25 feet to a point; 62. 346° 24' 30" 109.52 feet to a point; 63. 330° 20' 62.30 feet to a point; 64. 336° 48' 11 1.89 feet to a point; 65. 325° 21' 106.90 feet to a point; 66. 62° 18' 30" 29.22 feet to a point; Thence, for the next three (3) courses following along Westerly face of stonewall: 67. 337° 28' 30" 112.46 feet to a point; 68. 337° 08' 183.98 feet to a point; 69. 337° 36' 30" 153.52 feet to a point; 70. 254° 02' 30" 25.45 feet along the Southerly face of stonewall and along Grant 787 to H. N. Greenwell to a point: Thence. for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146. Land Commission Award 8452 to A. Keohokalole: 71 . 338° 26' 168.87 feet to a point; 72. 337° 34' 153.12 feet to a point: -18- 73. 335° 16' 30" 329.74 feet to a point; 74. 336° 16' 30" 122.94 feet to a point; 75. 334° 38' 30" 193.93 feet to a point; 76. 335° 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of beginning and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit "A".) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part ereof(herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance: (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones. signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) . • • • u .reh • .ve . • - • al • • • V Of • •1 p . .• • W . • •� •• I• V • • • • • 9 II• • • . •• . •• •V . •V . • 1 • 1 . /• • • •• • I. u••-v- '• • a.• •va • . • a d . - r. • i • wi • V • lie Ile - I• • •• . e• • •v- . .cce • B. .: • V • . . '• • • at.. • %%' • Planning Director and the Department of Land and Natural Resources and shall include r auka-makai and lateral shoreline accesses. parking area(s). signage, • - 11 - • - • - •• . - •I - I '•1 II . - • I . •V . • • • • •• . 1. - eon • •. • 111 . ' Ii , I• • • 11 • •V" si [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993]; 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) The applicant shall develop and submit a comprehensive public shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;] M[(2)] 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; [(3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant's golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] L21[(4)] [A] 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 -21- 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 restrictions 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 a i. • • 11111 - 1 [% x • 1 I . •• •V. • . ••' ' la • ; phases in accordance with the public access plan; and M[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(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. (1) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of[the] its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the) coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions. This condition shall not be applicable to any roadway, • • • - 1 -• -w. ' w.' • . - • - - u - • • • i' iw. ' • a . • i • •i Chapter 264. Hawaii Revised Statutes; (.11 Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits. human burials. rock or coral alignments. pavings or walls be encountered. work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken: -22- (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (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: (1) construct the channelization and signalization of the Mamalahoa Highway.. Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass [road as shown in Exhibit "C",] between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mamalahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One of] the Mamalahoa Highway Bypass [as shown in Exhibit "C",] ' - , - , , . . • • ,'•,• v. .'., • . - - Be • .• 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 i .. • . . • • • tie . • So • • n • - • . se •V. .• -23- • • • • • . •1• • 1 - • •. • • • ow- � • �' • . - • project area; [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Marnalahoa Bypass;] (4) [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. [A] If. before the completion . •• • •." • • • • • - - • - ►/ • i•e • I•• . • I W.v ;ye. • •.•U•• • .•• • • •. • 1• • - - • .•• • •- • - • . •• • • •• ! • • • •v'. - • • • • • • • Haleki'i Street. a barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as pan of the required Haleki'i Street improvements, [prior to the completion of Phase 1 of the Marnalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion [the Phase 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and L5.)[(6)] provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property, [the Alii Highway, and southern extensions there from;) and the adjacent properties to the north and south: provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Marnalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] • •. • . • ■ • .v • - - •• i •• - • • • ' W• : • .'• •w.vw • • n •. • • • • ••a . • ' •• • • " • ' .v • Pe•all• - i • Public Works, The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to -24- reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit `C', meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;) -25- fM'[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law) County of Hawaii; (N1[O)) To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (Q)[(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation. provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions L and M]; _MR)) It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition. "agriculture" shall be defined as the cultivation of crops. including but not limited to flowers, vegetable. foliage. and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: -?6- (1) if such activity is implementing a conservation program for the affected property(ies), as approved by the applicable soil and water conservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; (Ql[(S)] Restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; (Rl[(T)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park., fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- any combination thereof shall have a maximum combined value of S 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ] • •• • 1 Ie 11e :- . 1• - Si i• 11 • 11• • 1 - • - / _. - 'al • •a • 1 - •. • • /: l • 1 - • - • •e . . 1• - 1 • IN. - • •• . • • •.I• •.• 11 eIle . 1 I 1 - e• le_ - •1 u • ' Si the sum which is the product ofmultiplying the number of lois proposed to be subdivided by the amounts allocated hereinbelow for each such lot. and shall become due and payable prior to final subdivision approval for any portion of the subject property- or its increments. If the subject properly is subdivided in two or more increments. the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment. The fair share contribution for each lot. except for lots larger than ten acres in size or which arc committed exclusively foLgol[ourse and park purposes. shall be based on the maximum allowable density of building sites as determined by the zoning of such lot. The fair share contribution in a form of cash. land. facilities. or any combination he - • . - • • • - t• l - •. - • •1 •1 .t-411 N, ' a 1 ai tea a' - l 1 lave a maximum combined value of S7.239.16per lot. Based upon the applicant's • - • , •e1 • 1 - 1 • •Ae•v'• - • l• • -v- • e • • ' 11 • 1 - •1 • a e• • • • 1 • • 1 i• • 1 • : ' 11 1•w-v- 1 - • . e 11• 1 •• • - '1 • reduced in proportion with the actual number of subdivided lots according to the a U . .• 1 • 1 • •. 'II - 1 • •v. .• 1 • t , l , l• • l • II contribution shall be allocated as follows: 1 4'1 : - • - • • 1 -1•' .1 • t• . • 1' 41.11 t 1 151v 5 • • i •• : 1• 1 • .1/ %' 11 1 • l. . -28- (,2-1 1 . 41 • • • • 1 •••• . - • • • • . . 1 11 • - • • i c • police facilities: (.� . • • • . • •••. . • • . • 3 1 .411 • • fire facilities: 141 , 4 • • - • • . • .•.. . - . • . • • : 11 • • - • s ••• O solid waste facilities; L51 53.101.68 per lot. for anindicated total of S1.24Q-672.0Q to the State or County Jo support road and traffic improvements. The fairshare contributions de.ctibedabove shall be adiusted arytually beginning • - .r • l - 1 - - i - •v- . - • I- • .•I, 1 - e - 4 • • • - •- • , 1 •• the Honolulu Consumer Price Index LHCPIL In lieu of paving the fair share contribution. the applicant may construct improvements/facilities related to parks and recreation. fire. police. solid waste disposal facilities. and roads within the region •• •. • I I - • • •.• • . V • ••• - • • • • - • •• IV. • • • • • • • director. The cost of constructing the improvements required in Conditions H. K and •e • - - . • • • S . . II I. - • '1 • 1•• ••• • I •., : • II recreation. Condition R(4) for solid waste facilities and in Condition RLS for road and traffic improvements. For purposes of administering Condition R. the value of land contributed or the cost of a.ny improvements required or madejn lieu of the fair share contribution shall be such amount as approved by the Planning Director. upon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Codc, in the construction of dwellings within the subject property; ] S1[(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- LD[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (U1[(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (V�[(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, (W)[(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year); and -30- (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: jo....4.....44.........Lz COUNCIL MEMBER, COUNTY O2Li..4...+_,l iawaii fIntroduction: December 15 , 1995 •f 1st Reading: December 15 , 1995 .f2nd Reading: January 3 , 1996 iveDate: January 15 , 1996 APPROVED as to Fr'•R6,s;: cr:71., GAL1TY 7:-:--c -,...... -,....i.- CO2P0r:L.TICN COUNSEL COUNTY CF HAWAII Dote .1/V 1/ -31- { 11 t i • • a i - - - i i s I I.. / 1 l� A r ; _ : : l1• i . ii : is= Z Zo �- - w N - - - ---- - o x �- t • - • i'.. u-) w cn /- S..1.• ''' .. ... -•••• I . -�.1 'i, I :4.-.I. -• _- • - ;1 f j - - — • -11:7F7/-) --• .1.0 *- ' s •••:::,. / 1' I. ji• .. • - -; � -) --. . -iy. p..(., `�: X11 � . <,i oiN •) p '--\ k, , - f . , .� � acs <. � ��.' .- i'4 , ita /of- :to) iii N.)}s..p,„ --i*I' A\tti. . ---, 1 ')'ig?i? 1., .it P dt. ri:4117gLetk. IT... 111 IVilkr',-(''(1911 . / vsit 21r� gr ��.�/�/ `•l 'i'O, .."4, *.ICI"°frtir ts Ake ,..,: , �/ •�• .:25 � 'e / /e:- . 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C� w 14.:C• -.4----.--- r . 17 . .. i 1.:,:-J .!C .... 1)I ,.., •--.--•._)_../.... . . .c, ..,,,Al_ r..i..-J-1. -1. .. -) 1 __..r.,,•1. rni 0 _ 1,y. ..*„..\*-4.... .�:c!/)r_ : :ny1 _ -.• y: --t•--..\- ....A..; _:. - }-- Q ; ,1 \--Cay 1•. 0 H OFFICE OF THE COUNTY CLERK County of Hawaii REQ' ' Hilo , Hawaii - - ( DiriErah )16 fill 7 57 -ROLL CA Yd ,;FFICE itTi_ Q COUNT f °AYIS:1AINOES ABS E iuced By: Takashi Domingo Araka i X Introduced: December 15, 1995 Bonk-Abramson X Reading: December 15, 1995 Childs X shed: N/A _ De Lima X Domingo X ARKS: Osorio X Rath X Ray X Smith X 7 2 0 ( DRAFT 6 ) ROLL CALL VOTE id Reading: January 3 , 1996 AYES NOES ABS f ayor: January 4 , 1996 Arakaki X -ned: January 16 , 1996 X tive: January 15 , 1996 Bonk-Abramson shed January 24 , 1996 Childs X De Lima X ARKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 ) HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as rated above. r-, .A.&. .,/,Fg---, COUNCIL CHAIRMAN JMiGE.- / -tom( COUNTY CLERK -oval B-I pprvard this day al , 199e- . )6i,L, if ,e 4%.4,4_, OR COUNTY • ATI Bill No_ 181 (Draft 6 1 Reference C-821/PC-91 Ord No: 96 8 COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 (Draft 5) ORDINANCE NO. 96 7 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 HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM UNPLANNED (U) TO AGRICULTURAL (A-la) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, HALEKII , KEEKEE 1ST AND 2ND, ILIKAHI , KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII , COVERED BY TAX MAP KEY 7-9-12 : 4 , 11 AND PORTION OF 3 AND 8-1-4 : PORTION OF 3 . BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section 25-87, Article 3 , Chapter 25 (Zoning Code) • of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A- 1a) : PARCEL 1 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098 , Land Commission Award 614 to Charles Hall , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" , being 5 , 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South : 1 . 345° 15 ' 189 . 91 feet along Grant 2029 to S . W . Makahiki to a point : Thence , following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the right with a radius of 470 . 00 feet , the chord azimuth and distance being : EXHIBITC 2 . 316° 23 ' 15" 424 . 98 feet to a point; 3 . 343° 16 ' 839 . 35 feet along the remainders of Grant 2029 to S . W. Makahiki , Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe on a curve to the left with a radius of 1030 . 00 feet, the chord azimuth and distance being: 4 . 329° 59 ' 30" 473 . 03 feet to a point; 5 . 316° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point; Thence, following along the remainder of Grant 1463 to Keawe and Grant 1587 to John Peters on a curve to the right with a radius of 1270 . 00 feet, the chord azimuth and distance being: 6 . 345° 33 ' 1224 . 95 feet to a point; 7 . 14 ° 23 ' 350 . 20 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the left with a radius of 1030 . 00 feet , the chord azimuth and distance being : 8 . 354 ° 32 ' 30" 699 . 21 feet to a point ; 9 . 334 ° 42 ' 918 . 92 feet along the remainder of Grant 1587 to John Peters to a point ; Thence , for the next three (3 ) courses following along 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 : - 2- 10 . 66° 00 ' 770 . 00 feet to a point ; 11 . 74 ° 30 ' 930 . 00 feet to a point ; 12 . 67° 00 ' 285 . 65 feet to a point; Thence, for the next twenty-one (21) courses following along the remainder of Grant 1651 to Charles Hall : 13 . 179° 00 ' 416 . 28 feet to a point ; 14 . 149° 00 ' 221 . 00 feet to a point ; 15 . 52° 00 ' 205 . 00 feet to a point ; 16 . 67° 00 ' 304 . 00 feet to a point ; 17 . 80° 00 ' 573 . 00 feet to a point ; 18 . 102° 00 ' 259 . 00 feet to a point; 19 . 136° 00 ' . 441 . 00 feet to a point ; 20 . 120° 00 ' 641 . 00 feet to a point ; 21 . 137° 00 ' 256 . 00 feet to a point; 22 . 168° 20 ' 1123 . 00 feet to a point ; 23 . 163° 30 ' 456 . 00 feet to a point ; 24 . 206° 00 ' 214 . 09 feet to a point ; 25 . 243° 00 ' 693 . 46 feet to a point ; 26 . 193° 00 ' 282 . 00 feet to a point ; 27 . 222° 00 ' 513 . 00 feet to a point ; 28 . 210° 19 ' 324 . 00 feet to a point ; 29 . 198° 00 ' 497 . 68 feet to a point ; 30 . 181° 00 ' 307 . 60 feet to a point ; 31 . 258° 00 ' 140 . 74 feet to a point ; 32 . 188° 49 ' 30" 106 . 80 feet to a point ; 33 . 170° 53 ' 443 . 95 feet to a point ; -3 - 34 . 268° 39 ' 20 . 00 feet along Honalo-Kainaliu Beach Road; Thence, for the next four (4 ) courses following along middle of stonewall and along Land Commission Award 3659 to J. Martin : 35 . 272° 51 ' 57 . 35 feet to a point ; 36 . 267° 36 ' 189 . 05 feet to a point ; 37 . 269° 43 ' 203 . 15 feet to a point ; 38 . 275° 15 ' 223 . 35 feet to a point ; Thence , for the next three (3) courses following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 39 . 268° 14 ' 434 . 20 feet to a point ; 40 . 275° 04 ' 236 . 30 feet to a point ; 41 . 262° 13 ' 206 . 40 feet to the point of beginning and containing an area of 383 . 952 Acres, more or less . (Refer to Parcel 1 as shown on Exhibit "A" ) . SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows : The district classification of the following area situated at Halekii , Keekee 1st and 2nd , Ilikahi , Kanakau 1st and 2nd , Kalukalu 1st, 2nd and 3rd and Onouli 1st , South Kona , Hawaii , shall be Agricultural (A- la) : - 4 - PARCEL 2 : Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Grant 1557 to John Peters, the coordinates of said point of beginning referred to Government Survey Triangulation Station " PUU CHAU" , being 601 . 01 feet North and 2 , 479 . 11 feet East and running by azimuths measured clockwise from True South : 1 . 334 ° 42 ' 342 . 98 feet 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 a point : Thence, following along the remainders 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 and Grant 1176 to Kini on a curve to the left with a radius of 705 . 00 feet, the chord azimuth and distance being : 2 . 298° 34 ' 831 . 43 feet to a point ; 3 . 262° 26 ' 397 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence , following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being : 4 . 277° 14 ' 329 . 53 feet to a point ; 5 . 292° 02 ' 85 . 32 feet along the remainder of Grant 1176 to Kini to a point ; Thence , following along the remainder of Grant 1176 to Kini on a curve to the right with a radius of 5 - 30 . 00 feet , the chord azimuth and distance being : 6 . 337° 02 ' 42 . 43 feet to a point ; 7 . 22° 02 ' 35 . 26 feet along the remainder of Grant 1176 to Kini to a point ; Thence, following along the remainders of Grant 1176 to Kini and Grant 1177 to Kamakahiona on a curve to the left with a radius of 705 . 00 feet , the chord azimuth and distance being: 8 . 6° 12 ' 384 . 70 feet to a point ; 9 . 350° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point ; Thence , following along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa on a curve to the right with a radius of 645 . 00 feet, the chord azimuth and distance being : 10 . 6° 42 ' 30" 362 . 96 feet to a .point ; 11 . 23° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point ; Thence , following along the remainders of Grant 1175 to Nakauwaa and Grant 1464 to Ialua along a curve to the left with a radius or 705 . 00 feet , the chord azimuth and distance being : 12 . 6° 06 ' 411 . 07 feet to a point ; 13 . 349° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence , following along the remainder of Grant 1464 to Ialua on a curve to the right with a radius of 645 . 00 feet , the chord azimuth and distance being : -6 - 14 . 3° 07 ' 311 . 35 feet to a point; 15 . 17° 05 ' 307 . 17 feet along the remainders of Grant 1464 to Ialua and Grant 1576 to Lohi to a point ; Thence, following along the remainders of Grant 1576 to Lohi , Grant 1160 to H. N. Greenwell and Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the left with a radius of 1130 . 00 feet, the chord azimuth and distance being: 16 . 349° 47 ' 1036 . 55 feet to a point ; 17 . 322° 29 ' 272 . 49 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence , following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole on a curve to the right with a radius of 870 . 00 feet, the chord azimuth and distance being: 18 . 352° 50 ' 30" 879 . 41 feet to a point ; 19 . 23° 12 ' 488 . 09 feet along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze , the direct azimuth and distance being : 20 . 78° 08 ' 30" 958 . 38 feet to a point ; Thence, following along middle of stonewall and along Grant 1162 to F. 0. Shulze, the direct azimuth and distance being : 21 . 57° 14 ' 50" 1532 . 00 feet to a point ; -7- Thence , for the next four (4) courses following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole : 22 . 160° 00 200 . 00 feet to a point ; 23 . 149° 00 ' 452 . 00 feet to a point ; 24 . 160° 51 ' 628 . 00 feet to a point ; 25 . 152° 30 ' 327 . 00 feet to a point; 26 . 182° 19 ' 313 . 00 feet along the remainders of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole and Grant 1745 to John Cavanah to a point ; Thence, for the next five (5) courses following along the remainder of Grant 1745 to John Cavanah : 27 . 171° 27 ' 400 . 00 feet to a point ; 28 . 161° 20 ' 606 . 00 feet to a point ; 29 . 175° 16 ' 440 . 00 feet to a point ; 30 . 182° 42 ' 30" 1190 . 00 feet to a point ; 31 . 155° 00 ' 489 . 00 feet to a point ; 32 . 181° 00 ' 353 . 00 feet along the remainders of Grant 1745 to John Cavanah 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 ; 33 . 153 ° 00 ' 492 . 00 feet 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 a point ; 34 . 179° 00 ' 126 . 72 feet along the remainder of Royal Patent 1670 to John D. - 8- 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 ; 35 . 247° 00 ' 285 . 65 feet along Grant 1651 to Charles Hall to a point; 36 . 254° 30 ' 930 . 00 feet along Grant 1651 to Charles Hall to a point; 37 . 246° 00 ' 770 . 00 feet along Grant 1587 to John Peters to the point •of beginning and containing an area of 372 . 010 Acres, more or . less . All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof herein after referred to as "subject property" ) . SECTION 3 . These changes in district classification are conditioned upon the following : A. The applicant , successors or assigns shall be responsible for complying with all of the stated conditions of approval . B . The applicant, successors or assigns shall be responsible for complying with all requirements of Chapter 205 , Hawaii Revised Statutes, relating to permissible uses within the State Land Use Agricultural District . C. The effectuation of the water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property with the acceptance of the prevailing facilities charge for the 499 units of water by the Department of Water - 9 - Supply of the required water commitment payment shall be in accordance with its "Water Commitment Policy" . Prior to approval of the 500th lot within the development area, the applicant shall secure the necessary "Water Commitments" and comply with the Department of Water Supply' s "Water Commitment Policy" for the remaining units of water for the proposed subdivision and golf course development . D . Subdivision plans for any portion of the subject property for this change of zone shall be submitted to the Planning Department and Final Subdivision Approval secured within five (5) years from the effective date of this ordinance . E . A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable . F . All electrical and communication utilities and systems within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site . G . A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property . Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works , prior to the issuance of Final Subdivision Approval for the subject property . - 10- An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans : 1 . an archaeological data recovery plan for the sites to undergo data recovery, 2 . a detailed interim protection/preservation plan for the sites to undergo preservation, and 3 . an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property. Should any unidentified sites or remains such as artifacts, shell , bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken . J . A solid waste management plan shall be prepared meeting with the approval of the Department of - 11 - Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development . Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works . K . 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 comes 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 - 12 - 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; 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 restrictions 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 accessway (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 . - 13 - L . Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area ' s pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions . This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or trails as defined in Chapter 264 , Hawaii Revised Statutes; M . 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 : 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki ' i Street intersection ; - 14 - 2 . determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass , the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the applicant ' s reimbursement to the county for the acquisition of the lands condemned; 3 . construct the Mamalahoa Highway Bypass 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 Haleki ' i 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 extension of Haleki ' i Street through the subject property as generally reflected in Exhibit `B', which phasing of improvements shall be approved by the - 15- Department of Public Works . If, before the completion and opening of the entire Mamalahoa Highway Bypass , a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki' i Street improvements . The purpose of this condition is to prevent the use of Haleki' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5 . provide roadway stub-outs, generally shown in Exhibit "B', to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief engineer, to reduce the impacts of noise and light on the residents therein - 16- and to generally beautify the highway appearance in such locations ; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant , less the pro rata portion attributed to the subject property; N . In lieu of actual construction of infrastructural improvements as required under Conditions E, G, J, K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements . -17- 0. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation , fire, police, solid waste disposal facilities, and roads . The amount of the fair share contribution shall be the sum which is the product of multiplying the number of lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot , and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments . If the subject property is subdivided in two or more increments , the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed lots in each such increment . The fair share contribution for each lot, except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes, shall be based on the maximum allowable density of building sites as determined by the zoning of such lot . The fair share contribution in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies shall have a maximum combined value of $7 , 239 . 16 per lot. Based upon the applicant ' s representation of intent to subdivide and develop up to 400 lots , the indicated total fair share contribution is $2, 895, 664 . 00 , however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition 0. - 18- The fair share contribution shall be allocated as follows : 1 . $3 , 490 . 85 per lot , for an indicated total of $1, 396, 340 . 00 to the County to support park and recreational improvements and facilities ; 2 . $168 . 40 per lot , for an indicated total of $67, 360 . 00 to the County to support police facilities ; 3 . $332 . 61 per lot , for an indicated total of $133 , 044 . 00 to the County to support fire facilities ; 4 . $145 . 62 per lot , for an indicated total of $58, 248 . 00 to the County to support solid waste facilities ; 5 . $3, 101 . 68 per lot, for an indicated total of $1, 240 , 672 . 00 to the State or County to support road and traffic improvements . The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance, based on the percentage change in the Honolulu Consumer Price Index (HCPI) . In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire , police, solid waste disposal facilities , and roads within the region impacted by the proposed development , subject to the approval of the director. The cost of constructing the improvements required in Conditions J, K and M shall -19- be credited against the sum specified in Condition 0 (4 ) for solid waste facilities, Condition 0 (1) for parks and recreation, and in Condition 0 (5) for road and traffic improvements . For purposes of administering Condition 0, the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning Director, upon consultation with the appropriate agencies . P . Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. 0 . Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance . P . An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone . The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required . - 20- S . An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances : 1 . the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant , successors or assigns, and that are not the result of their fault or negligence; 2 . granting of the time extension would not be contrary to the General Plan or Zoning Code ; 3 . granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; 4 . the time extension granted shall be for a period not to exceed the period originally granted for performance (i .e . , a condition to be performed within one year may be extended for up to one additional year) ; and 5 . should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action . Should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation . -21- SECTION 4 . In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance . SECTION 5 . This ordinance shall take effect upon its approval . INTRODUCED BY: i COUNCIL MEMBER, UNTY OF HAW I Hilo, Hawaii Date of Introduction: December 15 , 1995 Date of 1st Reading : December 15 , 1995 Date of 2nd Reading : January 3 , 1996 Effective Date : January 15 , 1996 A'-^^'"`,EJ cs to Li .•:EL c::-_: 1' 'I Dote 1l. / - 22- r : = ar : 1 • : : • / : :: • I:, ; , : . .. • •• • i : • -' . 2 I .:. i ! r • 7 : J • I ;• i ; !6_, i . r. - i - i : ; i I : • i . = i' 1 ? ts a 3 3 1 ! • • . : : 1 • 1 ' 2 22 r . i • f 3 : 1 . ; t' : :: : - 1 : : I- ; I : f ; ii : t • -% - -. 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''r ' ),.1 •. .. .. • .,r_ m,,,,k..• ,,,,,J,....41 , . ..:_.,F: . ) • . d. •:- "•., qtroz.fp•P• ,' =.1. , , ......., -. . ...../t:1•• ( / .I. .- E . '‘• :5- lilsir4 \\41 , " a_,„... . ‘...--,-:;---,:..:_______ ',' . , _` `i_ . !.. t ` ' `'1' ::i / . te. /' � r /. 1. • s, t. _ \ Y:. .' : -T— • • • • ( 4 •.-iii"� :'. • ;I. -- • l r - • /. �• lY:'1 • \ I-- '''''.: • . •••• t laifiLl‘-.'.1..... ..,t .... ..,.. • •••• I : ;.••.•;„-.7 : ..•7411411rait '1' • ) • ....C. • . -% •• .M * --.- _fi •�l ••• -..• _ • )rats. -.:r • �•Z-'1. • e �� • \\Zl.l•:: �! •,A •lam -J 11 ,Nt •1,,4 -pr . I7NC�� l . OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , Hawaii R E C r. ' • (DRAFT 4) '96 JAN 16 f1111 7 57 ALL VOTE • /6.9 I-I T t'NGIt, w tvQS E luced By: Takashi. DomingoArakaki X Introduced: December 15, 1995 leading: December 15, 1995 Bonk-Abramson X :hed: N/A Childs X De lima X IRKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 ( DRAFT 5 ) ROLL CALL VOTE I Reading: January 3 , 1996 AYES NOES ABS E yor: January 4 , 1996 Arakaki X ied: January 16 , 1996 X ye: January 15 , 19 9 6 Bonk-Abramson hed January 24 , 1996 Childs X De Lima X RKS: Domingo X Osorio X Rath X Ray X Smith X 7 2 0 YEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as ted above. t -e(-2) •-. 4.,,.._______ COUNCIL A4/.4.e CHAIRMAN .ik COUNTY CLERK ,ed/Bi� pprr arvtd this /� day ZR"'"1--'47 , 19 (16 . 1.1C'C 1 L G1OIL :. COUNTY • •: WAIL• Bill No.: 158 (Draft S ) Reference: C-734/PC-98 S Ord No.: Yant,shiro .i`�y�_y- • Jam, y' -!/ al. �T:ESO &aunf' nd pZIfintii PLANNING COMMISSION 25 Aurum(Scrcu.Room 109 • 1(ito,llaw.i( 96720.425Z (806) 961.8286 Fa^(808)961-9615 fRTIFIED MAIL 'vember 5, 1993 . Richard Frye, Project Manager eanside 1250 -5620A Palani Road, Suite 200 ilua-Kona, HI 96740 ar Mr. Frye: ange of Zone Application (REZ 93-5) quest: Agricultural-5acre (A-5a) and .Unplanned (U) to Agricultural-lacre (A-la) ; e Permit Application (USE 93-2) quest: 27-Hole Golf Course, Golf Clubhouse, Driving Range and Related Improvements ecial Management Area (SMA) Use Permit Application (SMA 93-1) questr 27-Hole Golf Course, Driving Range, Public Shoreline Access and Related Improvements plicant: Oceanside 1250 K: 7-9--6:portion of 1; 7-9-12 :portions of 3 , 4 , 5 & 11 ; and 8-1-4 :portion of 3 a . Planning Commission at its duly held public hearing on tober 27 , 1993 , voted to recommend the approval of the )ve-referenced Change of Zone request to the County Council . a Commission also voted to approve the above-referenced Use and Special Management Area (SHA) Use Permit applications. subject properties are located makai of the Mamalahoa ;hway, makai of Kealakekua Village, Halekii , Keekee, North and ith Kona, Hawaii . Commission voted to recommend approval of the Change of Zone the County Council subject to the following conditions: EXHIBIT D + E Mr. Richard Frye, Project Manager November 5, 1993 Page 2 A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval . B. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this ordinance or relating to- or connected with the approval of the ordinance. C. The effective date of the rezoning shall be upon: (1) the execution of an agreement, meeting with the approval of the Water Commission of the County of Hawaii , to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject properties within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by- the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance. D. Subdivision plans for any portion of the agricultural-zoned area within the project site shall be submitted to the Planning Department and Final - Subdivision Approval secured within five (5) years from the effective date of this ordinance as determined in Condition C. E. A wastewater disposal system shall constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works , whichever is applicable. F. All electrical and communication utilities and systems within the project site shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. r. Richard Frye, Project Manager ovember 5, 1993 age 3 G. A Flood Study of the project site shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the Agricultural-zoned area within the project site. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the residential-agricultural development. H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the project area. I. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. J. A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works. Mr. Richard Frye, Project Manager November 5, 1993 Page 4 K. Access (es) to the project site shall be constructed in a manner meeting with the approval of the Departments of Transportation-Highways Division and/or Public Works, whichever is applicable, for the following roadway improvements which shall be completed prior to the issuance of Final Subdivision Approval for any portion of the residential-agricultural subdivision within the project site: (1) the channelization and signalization of the project site's Mamalahoa Highway-Haleki'i Street intersection; (2) the construction of- the Mamalahoa Highway ByPass, consisting of two 'lanes with sufficient right-of-way to accommodate its expansion to four lanes, along its general alignment as shown in Figure 20 of the Villages at Hokukano Final Environmental Impact Statement (FEIS) dated September 1993 ; (3) the construction of channelization improvements to the ByPass at its intersections with Kuakini Highway, Mamalahoa Highway/Napo'opo'o Road and Haleki' i Street; and (4 ) the construction of the project's main access roadway extension from Haleki'i Street along the general alignment as reflected in Figure 4 of the FEIS with provisions for a stub-out along the project site's northern boundary to accommodate its future connection with the Alii Highway. L. Infrastructural improvements as required under Conditions E, G and K shall not prohibit the Applicant from participating in a Development Agreement or any other agreement together with the appropriate bond, surety or other security deemed acceptable by the Planning Director, appropriate agencies or the County Council , whichever• is applicable, to ensure the provision of necessary infrastructural improvements to support the proposed development in a timely manner. M. The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts, as required in Conditions K and N. N. The Applicant shall pay its fair share contribution to address potential regional impacts of the project with respect to park, fire, police, solid waste disposal facilities, sewer and roads . The fair share Richard Frye, Project Manager )vember 5, 1993 &ge 5 ' contribution shall be initially based on the representations contained within the change of zone application and may be increased or 'reduced proportionally if the residential-agricultural lot counts are adjusted. A pro rata portion of the contribution, based • upon the density of the land affected, shall become due and payable, at the discretion of the Planning Director, in the event the Applicant conveys an ownership, leasehold, or controlling development interest in the land prior to receiving its subdivision approval of any portion of the agricultural-zoned area within the project site. Otherwise, said contribution shall be satisfied in conjunction with the receipt of Final Subdivision Approval of the affected land. The fair share contribution for each residential-agricultural lot shall be based on a maximum density for each lot as determined by the applicant with the concurrence of the Planning Director. The fair share contribution in a form of cash, land, 'facilities, or any combination thereof shall have a maximum combined value of $ 4 , 701, 205. 74 . In lieu of paying the fair share contribution, the applicant may construct such facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies) . O. The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the project site. P. The Applicant shall contribute its fair share of costs attributable to school facilities made necessary by the project, provided that the contribution of Applicant's fair share shall be paid no later than the date upon which Final Subdivision Approval is obtained for the two-hundredth and first (201st) lot of the small lot subdivision. Q. Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, State Department of Education and the Department of Water Supply. Mr. Richard Frye, Project Manager November 5, 1993 Page 6 R. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. S. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. 'The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. T. An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, may be granted by the Planning Director upon the following circumstances: (1) the non-performance is the result of conditions that could 'not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code; (3) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; (4) the time extension granted shall be for a period not to exceed the period originally granted for performance (i.e. , a condition to be performed within one year may be extended for up to one additional year) ; and (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation. e Permit No. 115 is hereby issued to construct a 27-hole golf urse, golf clubhouse, driving range and related improvements . proval of the Use Permit is based on the following: In considering a Use Permit for a proposed 27-hole golf course and rel :-F---d improvements, Rule 7 of the Planning r. Richard Frye, Project Manager Dvember 5, 1993 age 7 Commission relating to Use Permits require that such action conform to the following guidelines: (a) The proposed use will still be consistent with the general purpose of the zoned district, the intent and purpose of this chapter, and the County General Plan; . (b) The proposed use will not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community's character or to surrounding properties; (c) The proposed use will not adversely affect similar or related existing uses within the surrounding area, community or region; and (ci) Thv Proroscd use will not unreasonably burden public agencies to provide voads and virecLu, sewer, water, drainage, schools, police and fire protection and other related infrastructure. Non-conformance with any of the above-mentioned guidelines would require that the requested Use Permit be denied. The establishment of a 27-hole golf course and related facilities within the County's Unplanned (U) zoned district will not be inconsistent with the general purpose of that zoned district, the intent and purpose of the Zoning Code, and the General Plan, provided adequate mitigating conditions are met. • The subject request will provide a form of perpetual open space, thus, maintaining the current open character of the surrounding area to the north and south along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of both the Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic, and cultural character or the area , and that the recreational use should be compatible with the adjacent areas. The project site is characterized as predominantly pastureland used for cattle grazing. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u Ohau, or Red Hill which is a prominent feature in the middle of the property, near the coast. No improvements are presently being Mr. Richard Frye, Project Manager November 5, 1993 Page 8 proposed within this area, which is located within the State Land Use Conservation District. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. An archaeological inventory survey of the entire Villages at Hokukano project site located evidence of features associated with the Kona Field System, primarily the rectangular walled fields formed by kua' iwi walls. Other features associated with the walled fields consist of intermittent mound concentrations, terraces and modified outcrops. The Survey located 807 structural and non-strnr-tural features which were subsequently organized into 47., •ites and site complexes, some of which were Jr . Ited within the golf course project site. Of this total, 1 of these sites are recommended for preservation; sites are recommended for selective preservation, and 2:") sites are recommended for data recovery. These findings w'-re supported by limited subsurface testing conducted at nine probable and possible burial sites, one agricultural mound complex, and within two extensive lava tube systems. Fourteen sites within the project area were interpreted to be possible heiau or shrine structures, with one major structure known as "Ukanipo". Sites intended for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua 'a boundary walls. Preservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, with slight modifications if necessary. Possible burials, if not preserved "as is" , will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR) -Historic Preservation Division. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Planning Director in consultation with the DLNR-Historic Preservation Division, is recommended prior to the submittal of plans for Final Plan Approval review of the golf course or any land alteration activities . The granting of this proposal would complement the goals of the General Plan's Recreation Element which states to "Provide a diversity of environments for active and passive pursuits" and to "Provide a wide variety of recreational opportunities . be further achieved through the development sofe gaapublic ls 1play program at the propose golf course which will be implemented prior to commencing operations. • Ir. Richard Frye, Project Manager lovember 5, 1993 )age 9 Golf courses are permitted uses within the State Land Use Agricultural District provided that the affected lands are not classified either "A" and "B" soils by the Land Study Bureau. The Land Study Bureau's Overall Master Productivity rating for agricdltural use of the golf course project site is Class "D" and "E" or "Poor" and "Very Poor", respectively. Therefore, consideration of a golf course within these State land use parameters is permissible. The granting of the proposed use will not be materially detrimental to the public welfare hor cause substantial adverse impact to, the community's character or to surrounding properties. The character of land use in the immediate area consists largely of pasture and vacant lands to the north and south of the golf course project site. Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u ohau, or Red Hill which is a prominent feature in the middle of the property near the coast. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. Pu'u Ohau and Hokukano Village or located within the coastal portions of the affected properties and designated Conservation by the State Land Use Commission. Located to the east (mauka) are the Kona Scenic and Keekee Estates subdivisions and the town of Kealakekua. Approval of the proposed golf course in this particular location would expand on the open space character to the north, south and west (makai) of the project site, thereby complementing the open space character of the Conservation District along the coastal area fronting the project site as well as reducing urban development pressure on the nearby historic Hokukano Village. The siting of the clubhouse, driving range, parking areas, maintenance facility and related improvements will consider the historical, open space, and cultural elements located within and adjacent to the project site during plan approval review. The Planning Department' s Guidelines for Golf Course Development will be utilized to assure that adjacent properties will not be adversely affected by direct play on the golf course (i . e. errant golf balls) . In addition, the central location of the clubhouse and its related facilities will take advantage of the landscaping elements within the golf course to mitigate any adverse visual impacts to surrounding properties as well as from coastal areas. Due consideration by the Applicant in the siting, height , bulk, color schemes, and landscaping of golf Mr. Richard Frye, Project Manager November 5, 1993 Page 10 course-related structures will be required to mitigate any adverse noise and visual impacts. The granting of the proposed use will not adversely affect similar or related existing uses within the surrounding area, community, or region: Kona Country Club, a resort golf course located in Keauhou, is the only existing course in the immediate region. The Kona Country Club golf course is oriented for resort and public play, while the proposed golf course will be oriented toward private membership play. Therefore, it is not anticipated that this approval would affect the operations of the Kona Country Club. Located approximately 16 miles to the south of the project site in Opihihale is the proposed Akahi Golf Course, which received the Planning Commission's approval in 1992.. While the proposed Akahi Golf Course is also planned as a private membership course; it is anticipated that the distance of these project sites from one another would assist to negate any adverse affect to the operation of either golf courses. All essential utilities and services required for the development of a golf course and related facilities arc or will be made available. Conditions of approval relative to the provision of such services are being proposed. Primary access to the golf course and clubhouse facilities will be provided through an extension of Haleki'i Street. Haleki'i Street, which has a pavement width of approximately 34 feet with gutters and sidewalks within an 80-foot wide right-of-way. Haleki' i Street is currently channelized as a "T" intersection with separate left and right turn lanes at its intersection With the Mamalahoa Highway. A Traffic Impact Study prepared by the Applicant found that the traffic signal warrant for this intersection has been marginally met based on existing traffic volumes. Therefore, it is recommended that signalization of this intersection and its attendant improvements be provided prior to commencing operations at the golf course. The General Plan Facilities Map delineates this Haleki' i Street extension as a major arterial in a makai, then north, direction to its eventual connection to the proposed Alii Highway Extension. This approval is also conditioned upon the extension and construction of this Alii Highway-Haleki' i Street extension along its general mauka-makai alignment as shown on the General Plan Facilities Map in accordance with county dedicable standards meeting with the requirements of the Department of Public Works, concurrently with the golf course development. No golf cart paths shall gain access Ir. Richard Frye, Project Manager november 5, 1993 Dage 11 across the this extension. Further, the Alii Drive-Haleki' i Street extension shall be open to the public or may be dedicated to the county. To eliminate impacts through the possible future development of residential lots along the Alii Drive-Haleki ' i Street extension, no direct access shall be permitted from lots adjoining this roadway. Main access to any residential lots shall be from interior roadway systems. The Department of Water Supply has issued the Applicant 499 water commitments, which is sufficient to support the golf clubhouse activities. A water assignment agreement and commitment payment will be required from the Applicant prior to the submittal of golf course plans for Plan Approval review. An "Evaluation of Water Resources for Hokukano Project" was conducted by the Applicant which found that for general planning purposes, the proposed golf course would demand approximately 900, 000 gallons of water per day for irrigation purposes. The Applicant has drilled an irrigation well within the project site to explore the use of brackish water to supplement its golf course irrigation needs . The pilot irrigation well indicated promising results for its possible use as a .brackish water source for irrigation purposes. In addition, the provision of on-site retention basins and storage reservoirs within the proposed golf course will provide another supplemental source of irrigation water through the use of excess runoff. A condition of approval will require the Applicant to establish an irrigation water source of sufficient quantity and quality to support the total irrigation needs of the proposed golf course, prior to the commencement of operations at the golf course. All other essential utilities and services are or will be made available to support the proposed golf course, golf clubhouse, driving range and related improvements. )roval of the Use Permit is subject to the following editions : 1 . The applicant, successors or assigns shall comply with all of the stated conditions of approval . 2 . The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or Ir. Richard Frye, Project Manager 4ovember 5, 1993 'age 12 relating to or connected with the approval of this permit. 3 . The Applicant shall provide assurance(s) satisfactory to the Planning Director, upon consultation with the Department of Land 'and Natural Resources-Commission on Water Resource Management and the Department of Health, that a water source(s) of sufficient quality and quantity to support the total irrigation needs of the golf course be established prior to the issuance of a certificate of' occupancy or opening of the golf course, whichever occurs first. 4 . Final Plan Approval for the proposed golf course and related improvements shall be secured from the Planning Director. In the design and review of any improvements, noise and visual impacts shall be minimized through appropriate siting, height, bulk, color schemes, and landscaping. The Planning Director shall determine the related improvements and accessory uses to the golf course not inconsistent with the applicable provisions of the Zoning Code at the time of plan approval review. 5 . Construction of the golf course and related improvements shall be completed within five (5) years from the date of receipt of Final Plan Approval . 6 . A detailed drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for Plan Approval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approval of the Department of Public Works , prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first . • 7 . In the design of the golf course, the County of Hawaii Planning Department's Guidelines for Golf Course Design (November 1989, as amended) shall be utilized. The Planning Director shall determine appropriate setback requirements ( i .e. building and property line) at the time of plan approval review. Easements for golf course purposes over and across abutting lots, either Richard Frye, Project Manager )vember 5, 1993 •ge 13 existing or proposed, shall not be permissible, except as may be approved by the Planning Director. 8 . The Alii Drive-Haleki' i Street extension shall be constructed as an arterial along its general mauka-makai alignment as shown on the General Plan Facilities Map to County dedicable standards, meeting with the approval of the County Department of Public Works. The mauka-makai alignment of Alii Drive-Haleki' i Street shall be installed prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. The Alii Drive-Haleki' i Street extension shall allow for perpetual public use by easement or be dedicated to the county. No golf cart path shall be permitted to cross over the Alii Drive-Haleki' i Street extension, except as may be approved by the Planning Director and Chief Engineer. Furthermore, direct access from future residential lots adjoining this alignment will not be permitted. 9 . Intersection improvements at the Mamalahoa Highway-Haleki' i Street intersection, including traffic signals and channelization, shall be installed in a manner meeting with the approval of the State Department of Transportation and the County Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. 10. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations , prior to submitting plans for plan approval review. The Plan shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3 ) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area. The Plan shall also include a detailed map of known lava tube/cave systems located within the project site and Mr. Richard Frye, Project Manager November 5, 1993 Page 14 mitigative measures to ensure that the golf course and related drainage systems do not impact these cave systems. 11. Should any unanticipated archaeological sites or features be uncovered during land preparation activities, work within the affected area shall immediately cease and the Planning Director immediately notified. Work within the affected area shall not resume until clearance is obtained from the Planning Director. 12 . The use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulations of appropriate governmental agencies. 13 . During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance with construction industry standards and practices Utilized during construction projects of the State of Hawaii . 14 . Prior to construction, the applicant shall demonstrate to the satisfaction of the Planning Director that all proposed off-site construction material such as topsoil or sand are being supplied from an approved quarry or resource site. 15. A program for public play at the proposed golf course shall be developed meeting with the approval of the Planning Director, prior to the issuance of a certificate of occupancy or the opening of the golf course, whichever occurs first. The Program shall include, but not be limited to, the provision of public play, at kama'aina rates, at least one (1) day per month. 16. The Applicant shall establish a program for employee housing and which shall be submitted for the review and approval of the Planning Director and Housing Agency together with the submittal of plans for plan approval of the golf course and clubhouse. The program shall include provisions for on-site or off-site housing for the employees at a ratio to be determined by a study of surrounding housing opportunities and employee needs. The ratio shall be no less than 10% and no more than • r. Richard Frye, Project Manager ovember 5, 1993 age 15 50t of the number of employees . The program may also include consideration for other alternatives such as rental housing subsidies or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy with the golf course. 17 . A job training program for the operating phase of the golf course and golf clubhouse shall be developed and submitted to the Planning Director for review and approval prior to the issuance of a certificate of occupancy or opening of the golf course, whichever occurs first. 18 . Comply with all other applicable laws, rules, regulations and requirements, including those of the Departments of Health and Public Works. 19 . An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. •This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. • 20. An initial extension of time for the performance of conditions within the permit may be .granted by the Planning Director upon the following circumstances: a) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, ' and that are not the result of their fault or negligence; b) the granting of the time extension would not be contrary to the general plan or zoning code; c) granting of the time extension would not be contrary to the original reasons for the granting of the permit; and d) the time extension granted shall be for a period not to exceed the period originally granted for performance ( i . e. , a condition to be performed within one year may be extended for up to one additional year) . Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke the permit. Mr. Richard Frye, Project Manager November 5, 1993 Page 16 Special Management Area (SMA) Use Permit No. 345 is hereby issued to construct a 27-hole golf course, driving range, public shoreline access and related improvements. ;pproval of the Special Management Area (SMA) Use Permit is based Dn the following: The purpose of Chapter 205-A, Hawaii Revised and Rule 9, Special Management Area Rules and Regulationssof the County of Hawaii is to preserve, protect, and, where possible, to restore the natural resources of the coastal zone areas. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. One of the criteria for approving :a development within the Special Management Area (SMA) is that it is consistent with the General Plan and Zoning Code. The construction of portions of a proposed 27-hole golf course, driving range, public access improvement and other related improvements within the Unplanned (U) zoned district will not be inconsistent with the general purpose of the Zoning Code, and the General Plan, provided adequate mitigating conditions are met. The subject request will provide a form of perpetual open space, thus, maintaining the current open character of the surrounding area to the north, south and west (makai) along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of the Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic, and cultural character of the area, and that the recreational use should be compatible with the adjacent areas. The project site is characterized as predominantly pastureland used for cattle grazing . Located makai of the project site on the boundary of North and South Kona is the cinder cone Pu'u Ohau, or Red Hill which is a prominent feature in the middle of the property near the coast. No improvements are presently being proposed within these areas, which are located within the State Land Use Conservation District. Also located makai of the project site along its northwestern boundary is the historic Hokukano Village. The proposed golf course will not encroach upon lands located makai of the project site within the State Land Use Conservation District . An archaeological inventory survey of the entire Villages at Mr. Richard Frye, Project Manager November 5, 1993 Page 17 Hokukano project site recommended that of the 473 site and site complexes located, 179 are recommended for preservation, of which 17 are recommended for selective preservation, and 289 sites are recommended for data recovery. With the approval of an archaeological mitigation and interpretation plan by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, archaeological features will be incorporated within the golf course project site through historic parks, interpretive programs and an extensive pedestrian trail system. According to plans, an internal roadway within the northern portion of the project site will provide a public access roadway and parking area in the vicinity of the proposed 8th and 9th holes of the golf course. It is recommended that the Applicant develop and implement a comprehensive coastal public access plan for the review and approval of the Planning Director. With the approval and implementation of the comprehensive coastal access plan and the establishment of the public access area within the Conservation District, the proposal would not have any adverse effect on public access to the shoreline and would complement the goals of the General Plan' s Recreation Element which states to "Provide a diversity of environments for active and passive pursuits" and to "Provide a wide variety of recreational opportunities . . . . " Another criteria in reviewing an SMA Use Permit application is that "The development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. Such adverse effect shall include, but not limited to, the potential cumulative impact of individual developments, each of which taken in itself might not have a substantial adverse effect and elimination of planning options . " The proposed improvements are not anticipated to create substantial adverse ecological effects to the affected area . No endangered species of flora or fauna were located within the project site nor were any special habitats identified. Air emissions generated during the construction phase can be mitigated by existing construction regulations. As proposed by the Applicant, native plant species, such as the Prosopis tree, Capparis, and Wili Wili tree, shall be preserved or utilized to the furthest extent possible for landscaping in and around the golf course . The use of such native plantings will be detailed in a landscaping plan to be required oC the Mr. Richard Frye, Project Manager November 5, 1993 Page 18 Applicant . Applicable and appropriate governmental regulations will be adhered to in the application and use of pesticides and herbicides within the project site. The project site is located approximately 300 feet from the shoreline. Any potential runoff or discharge which could reach ocean waters can be handled by existing construction regulations during the construction phase and on-site drainage systems during operations. Wastewater generated by the golf course clubhouse will be disposed of within a wastewater' treatment system meeting with the approval of the Department of Health. As recommended by the Department of Public Works, appropriate drainage systems will be required to accommodate runoff generated by the proposed improvements . To ensure that bo significant adverse impacts to coastal systems are generated, a groundwater and coastal water monitoring plan (s) will be required. The proposed golf course will not have an adverse impact to cultural or historical resources within the area. An archaeological inventory survey of the entire Villages at Hokukano project site located 473 sites and site complexes, some of which were located within the golf course project site. of this total , 179 of these sites are recommended for preservation of which 17 sites are recommended for selective preservation, and 289 sites are recommended for data recovery. Sites intended for selective preservation include the Kuakini Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the ahupua'a boundary walls. Preservation is recommended for all confirmed burial sites, all confirmed and probable heiaus, and all major lava tubes. The Applicant intends to preserve the King's Trail or Ala Loa in its present location, with slight modifications if necessary. Possible burials, if not preserved "as is", will be treated in a manner as prescribed by the State Department of Land and Natural Resources (DLNR) -Historic Preservation Division. - These archaeological mitigative measures were recommended by the Applicant and it' s archaeological consultant. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Planning Director in consultation with the DLNR-Historic Preservation Division, is recommended prior to the submittal of plans for Final Plan Approval review of the golf course or any land alteration activities. Mr. Richard Frye, Project Manager November 5, 1993 Page 19 Due to the open nature of the proposed golf course, viewplanes within the area will not be significantly affected by the proposed improvements. To further ensure that viewplanes will not be adversely impacted, all electrical and communication systems will be placed underground, with the exception of the 69 KV line from the Mamalahoa Highway to the proposed substation site. approval of the Special Management Area (SMA) Use Permit is subject to the following conditions: 1. The applicant, successors, or assigns shall be responsible for complying with all of the stated conditions of approval; 2 . The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or . relating to or connected with the approval of this permit. . 3 . An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for plan approval review. The Plan . shall consist of three subplans; (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with any land alteration activity within the project area . The Plan shall also include a detailed map of known lava tube/cave systems located within the project site and mitigative measures to ensure that the golf course and related drainage systems do not impact these cave systems. Mr. Richard Frye, Project Manager November 5 , 1993 Page 20 4 . Should any unidentified sites or remains, such as lava tubes, artifacts, shell, bone or charcoal deposits, human burials, rock . or coral alignments, pavings or wall be encountered, work in the affected area shall cease and the Planning Director immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. 5. A detailed drainage study shall be prepared by the applicant for review and approval by the Department of Public Works prior to submittal of plans for Plan Approval review of the golf course. The Study shall take into consideration the tile drainage system, retention basins and "Reduced Turf" design to be incorporated within the golf course. A drainage system shall be installed meeting with the approval of the Department of Public Works, prior to issuance of a certificate of occupancy or golf course opening, Whichever occurs first. 6 . The use of pesticides and herbicides in conjunction with all phases of operation shall conform with the applicable regulations of appropriate governmental agencies . 7. During construction, measures shall be taken to minimize the potential of both fugitive dust and runoff sedimentation. Such measures shall be in compliance With construction industry standards and practices utilized during construction projects of the State of Hawaii . 8 . 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 Tr. Richard Frye, Project Manager fovember 5, 1993 'age 21 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. 9 . The Alii Drive-Haleki 'i Street extension shall allow for perpetual public use by easement or be dedicated to the County. • 10. Areas of the affected properties located within the State Land Use Conservation District shall be set aside as public shoreline access areas in a manner consistent with the approved final comprehensive public access plan via covenants recorded with the Bureau of Conveyances . Upon approval of the final comprehensive public access plan, draft covenants which detail the rights, obligations and privileges of the public, the County of Hawaii and the applicant, its successors or assigns shall be submitted to the Planning Director for approval . The approved covenants shall be recorded prior to the receipt of Final Plan Approval for the golf course or the subdivision of any portion of the Agricultural-zoned area within the project site, whichever occurs first. These covenants shall be encumbrances running with the land and shall be binding on all parties and persons claiming under them. 11 . Prior to the commencement of construction of any portion of the proposed golf course development, an overall monitoring plan on the potential pollution to groundwater and coastal waters shall be submitted to the Planning Director for approval in consultation with the Department of Health. A Golf Course Best Management Plan and Integrated Groundwater Monitoring Plan shall be component parts of this overall monitoring plan. 12 . The Applicant shall prepare and submit to the Planning Director for approval a Landscaping Plan for the golf course and golf clubhouse along with plans submitted for plan approval review. The Plan shall discuss the method of preservation and/or propagation and use of native plants, such as the Prosopis tree, Capparis, and Wili Wili tree, within and around the golf course and golf clubhouse facilities. Mr. Richard Frye, Project Manager November 5, 1993 Page 22 13 . All electrical and communication utilities and systems shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site. 14 . Comply with all other applicable laws, rules , regulations and requirements; 15. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this permit. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with . This condition shall remain in effect until all of the conditions of approval have been complied and the Planning Director acknowledges that further reports are not required; 16. An initial extension of time for the performance of conditions within this permit may be granted by the Planning Director upon the following circumstances: (a) ' the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; (b) granting of the time extension would not be contrary to the General Plan or the Zoning code; (c) granting of the time extension would not be contrary to the original reasons for the granting of the permit; and (d) the time extension granted shall be for a period not to exceed the period originally granted for performance (i. e. , a condition to be performed within one year may be extended for up to one additional year) . Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke this permit. hese approval do not, however, sanction the specific plans ubmitted with the applications as they may be subject to change iven specific code and regulatory requirements of the affected gencies. Mr. Richard Frye, Project Manager November 5, 1993 Page 23 Should you have any questions, please feel free to contact Rodney Nakano of the Planning Department at 961-8288 . Sincerely, Wilton Wong, Vice Chairman Planning Commission DSA: jdk LOcean01 .PC xc: Honorable Stephen K. Yamashiro, Mayor Planning Director PSR Hawaii , Inc. Department of Public Works Department of Water Supply County Real Property Tax Division West Hawaii Office Office of State Planning, CZM Program w/background Department of Land and Natural Resources Department of Transportation-Highways Division Department of Parks & Recreation Fire Department Police Department Department of Health Department of Education Office of Housing and Community Development Plan Approval Section Subdivision Section Illi K. YrnuNharo OP2. •fl l uiiltfu uf LI�1rLIti PLANNING COMMISSION 25 Aur,,..t$neer, Ron... 109 . 11:4‘.114..r11 96720.4252 (ROR)961 8288 r., (808) 961-9615 IZTIP1CI) MAIL 416 228 850 cptcnlbcr 28, 1995 .. T. "Dick" Frye, Project Manager 250 Oceanside Partners 1-5620A Palalii Road, Suite 200 ailua-Kona, I11 96740 tear Mr. Frye: licant: Oceanside 1250 dba 1250 Oceanside Partners ial Management Area Use Permit Application No. 95-3 -quest: To Allow Development of Portions of a 730-Lot Agricultural Subdivision and its Related Improvements aX..1`1al)KCy.:_7-9-12:11 and PoCtiaus_oC3 11u1 4: R-1 4:l'ortiotlsy[�_ he Planning Commission at its duly held public hearing on September 14. 1995, "cited-t approve c above-iefctenced application. Special Management Arca 11c (SMA) Permit Nus 3 1s hcicby sued to allow the development of portions of die pioposcd 400-lot acricultural subdivision and lased infrastructure improvements and facilities On apploxrluately 110 acres of land. The plication reps eSents a portion of the approximately 1,540 acres Master planned community known the Villages of Ilokukano. The property is Io.:ated makai of i Iauualalloa IIIghwat• and ealakckua Village, Ilaleki'i, Keekee, North and South Kona, Hawaii. rproval of this request is based on the following: The purpose of Chapter 205-A, liawaii Revised Statures. and Rule 9. Special Management Arca Rules and ReculationS of the County of Hawaii ['(:►.unit Cuniutission is to prcSC1 te, ploteet and, where possible. to restore the natural ICSoutccs of the cuaaal zone areas. "I'11c1cfore, special contlohs on development within an arca along the shoreline ate necess:►ty to avoid permanent loss of valuable resources and the foreclosure of ut:utatzeutent options. One of the criteria for approving a development within the Special t Ia11aLtentent Alea (SMA) is that it is consistent with the General Plaut and Zoning Code. The subject arca is designated fur Orchards and Extensive Agricultural uses by the General flan Land Use Pattern Allocation Guide (LUI'AG) Map. 'flee applicant's proposal to develop agricullutatl lute otte•acie and large' i11 siie i, cottistent with the Gcnetal Plaut Goals. Policies and EXHIBIT F • T. "Dick" Frye, Project Manager ) Oceanside Partners . _6e 2 LUPAG Map. Such agricultural-type of development provides opportunities for a mix of residential and limited-scale agricultural activities. The project site has historically been marginally used for cattle grazing purposes. The applicant is exploring options aimed at integrating agricultural zones on portions of the agricultural zoned lots in a manner that would allow for an efficient management operation for select crops and/or orchard uses. h is anticipated that these agricultural zones will be provided to farmers through a leasing arrangement at a nominal cost initially, with the applicant to provide the necessary infrastructural development to sustain such agricultural activity. Along with the provision of residential sites, the proposed 011C-acre lots can provide opportunities for gardening, hobby activities and reasonable-scaled agricultural endeavors on these marginal agricultural lands. This combination of uses will provide a balance between the agricultural potential of the project site and the residential and commercial uses located in the Kealakekua area: The construction of approximately (00 agricultural tots and related farm dwellings, related infrastructure improvements, trails, signs and landscape improvements associated with implementation of an archaeological preservation program within the Agriculture 1-acre (A-Ia) zoned district will be consistent with the general purpose of the Zoning Code and tine General Plan, provided adequate mitigating conditions are met. The subject request will be compatible with the proposed golf course development in maintaining (he current open character of Else surrounding area to the north, south and west (ntakai) along with its natural and scenic qualities. The proposed development would, therefore, be consistent with the policies of the Housing, Land Use Agriculture, Recreation and Open Space elements of the General Plan which state that recreational facilities in the County shall reflect the natural, historic and cultural character of the area, and that the housing, agriculture and recreational use should be compatible with the adjacent areas. Another criteria for reviewing the SMA Use Permit is that, "Tho development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent piacticahlc and clearly cuuweighed by public. health. safety or compelling public intenest. Such :calve, c_ effects shall include, Dili nut limited to. the potential cumulative impact of individual developments, each of which taken in itself might not have a substantial adverse effect and elimination of planning options." The proposed development is part of the Villages at L-lokukano master planned community. The preliminary development plan includes a 27-hole golf course, clubhouse and related facilities, a future members lodge with up to 80-units, au approximately 140 acre coastal pat k, open space elements and community facilities, and approximately 730 agricultural lots with associated dwelling and agricultural uses, including approximately 100 lots within the SMA. • The proposed development is not anticipated to have any substantial adverse environmental or ecological effects. Surveys conducted for biological resources, historic and cultural tcsources, visual impacts, public access and recreation aspects and socio-economic impacts support this conclusion. The goals and objectives of tate SMA with respect to coastal, recreational, scenic, historic and economic mesuurces can be met with an apptoval with conditions. f The proposed project will not have anv adverse impact to et:ltttral or 1tistot i;.,l re:,+urcec within the protect at ca An atcl,aeoloeical tnvrnttorY survey of the cutinc '•mll:,i �•; "Dick" Frye, Project &tanager Oceanside Partners tngc3 at Ilokukauo project site located 408 sites and site cotnplexe.c. Of (his total, 161 of these sites are recommended for preservation, 17 sites are recommended fur selective preservation, and 228 sites arc recommended to be available for data recovery and 2 recommended for no further study. Sites intended fur selective preservation include portion of the Kiakit►i Wall, distinguishable portions of the King's Trail or Ala Loa, the railroad bed and the altupua'a boundary walls. Preservation is recommended fur all co►tfir►ned burial sites, all confirmed and probable I►eiaus, and all major lava tubes. The applicant intends to preserve die King's Trail or Ala Loa in its present location, with some modifications, including possible breaches, as approved by the Planning Director in consultation with the State Department of land and Natural Resources (DLNR). Possible burials, if not preserved "as is," will be treated in a manlier as prescribed by the I)LNR-(liswric Ptcscrvation Division. A detailed archaeological mitigation and interpretation plan, meeting with the approval of the Plan►ti►►g Department in consultation with the ULNR-1 Iistoric Preservation Division, is recommended prior to the submittal of plans for subdivision review or any land alteration activities. The project site is situated east (nnauka) of the Conservation District which extends along the shoreline and will be retained as a coastal park. The proposed agricultural lots will he (nutter buffered from the shore by the proposed gulf course, which was previously approved by the Planning Commission. Potential negative iutpacts on coastal waters during site preparation and construction can be mitigated (lttough compliance with existing ordinances and regulations. Runoff or discharge generated by the proposed subdivision development which could reach ocean waters can be handled by on-site drainaue improvements meeting with the approval of the Department of Public Works. Wastewater generated by die project will he disposed of within a wastewater treatment system meeting with the approval of the Department of Ilealtlt. To further ensure that no significant adverse impacts to coastal systems are generated, a groundwater and coastal water monitoring plan(s) will be required. Vicwplanes within the area will not be signilicantly affected by the proposed improvements. The visual character of the subject arca and the ;ore;ts directly ntauka will be low profile, with landscaped dwellings integrated with compatible agricultural uses. The coastal area within the State Land Use Conservation District is planned to remain primarily as a natural open space with minimal improvements to support park activities. To further ensure that vicwplanes will not be adversely impacted, all electrical and communication systems will be placed underground with the exception of the 69 KV transmission line front the Matrtalahoa highway to the proposed substation site. Based on the foregoing, the proposed construction of portions of an agricultural subdivision and other related improvements will not have a substantial adverse impact on the surrounding area, nor will its approval be contrary to the objectives and policies of Chapter 205-A, IIRS, relating to Coastal Zone Management and Rule 9 of the Planning Commission relating to the Special Managentent Area. ►pt oval of this request is subject to the following conditions: The applicant, successors of assigns shall be responsible for complying with all of the stated conditions of.approval; T. "Dick" Frye, Project Manager -0 Oceanside Partners .ge 4 2. The applicant shall indemnify and hold the County of Hawaii harmless from and against any loss, liability, claim or demand for the property damage, personal injury or death arising out of any act or omission of the applicant, its successors or assigns, officers, employees, contractors and agents under this permit or relating to or connected with the approval of this permit. 3. The effective date of this Special Management Arca Use Permit shall be the effective date of the Change of Zone. 4. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by (he Planning Director, in consultation with the Department of (.arid and Natural Resources-1-Iistoric l'tescrvaticn Division and Hawaiian comnarrrity organizations, prior to submitting plans for plan approval review. The Plan shall consist of three subplans; (A) an archaeological data recovery plan for the sites to undergo data recovery, (I3) a detailed interim protection/preservation plan for the sites to undergo preservation, and (C) an interpretation plan which shall include buffer zones, signage, and long-range preservation concerns ivlticlt may be submitted at a later date. Approved mitigation ateasuies shall be implemented prior to or in conjunction with any land alteration activity within the project area. The flan shall also include a detailed map of known lava tube/cave systems located within the project site and mitigative measures to ensure that the proposed development does not impact these cave systems. 5. Should any unidentified sites or remains, such as lava tubes, artifacts, shell, bone or charcoal deposits, human burials, rock or coral alignments, pavings or wall be encountered, work in the affected arca shall cease, and the Planning Director immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken. 6. A Natural Resources Management Plan shall he subnritmed for review and approval by the Planting Director, in consultation with fire Department ol Land and Natural Resources, prior to securing Final Subdivision Approval. • 7. A detailed drainage study shall he prepared by the applicant fur review and approval by the Dcparuncitt of Public Works prior to submittal of phots (or Subdivision Approval review of the agricultural subdivision. A drainage system shall be installed meeting with the approval of die Depattrrrent of Public Works. pricer to securing (sinal Subdivision Approval. 8. Use of pesticides and het bicides in conjunction with all phases of operation shall conform with the applicable regulations of the appropriate vovernurcmt ,Dent i• . R. T. "Dick- Frye, Project Manager ') Oceanside Pat triers . 5 9. During constructions, measurer. 'II be •::I;cn W minimize the potential of both fugitive dust and runoff sedinti tion. Such measures shall be in compliance with construction industry standard• ,d practices utilized during construction projects of • the State of Ilawaii. JO. Prior to Final Subdivision Approval of any lands within the project site, an overall monitoring plait on the potential pollution of groundwater and coastal waters shall be submitted to die Planning Director fete approval in consultation with the State Department of Ilcaltls. 11. All electrical and communication utilities and systems witltinn the project site shall I,c placed underground, with the exception of the main 69 KV transmission line from the lvlausalalwa Highway to the proposed electrical substation site. 12. A wastewater disposal system shall be cous(ruc(ed in a manner meeting with the approval of (lie State Depatttnen( of Ilealth and/or the Dcparuttcnt of Public: Works, whichever is applicable. l3. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this pestnit. The report shall include, but not be limited to, the status of the development and to wha( extend the conditions of approval arc being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports arc not required. 1'I. Au extension of time fur the performance of conditions within this permit tnay he granted by the Planning Diteclor upon the following circumstances: (A) (lie non performance is the result of conditions that could not have been foreseen ur arc beyond the couluol of Ilie applicant. succcssms or assigns, acid that are not the result of their fault or negligence; (II) granting of die time extension would not be contrary to the Central Platt or Zoninng Code; (C) granting of the time extension would not be contrary to die original reasons for the granting of this permit, (D) the time extension granted shall he fun a pct iud not to exceed the period originally granted for perforniance (i.e., a condition to be performed within one year may be extended fur up to one additional year). Should any of the conditions not be tact or substantially complied ‘vi(Ii in a timely fashion, the Director shall initiate pioccdures to revoke this permit. is approval dues not, however , sanction'(lie specific plans submitted with the application as they y be subject to clsatsgc given specific code and segulatury requitemetds of the attested agencies. .. T. "Dick- Frye. Project Manager 250 Oc,cansidc Panncrs agc 6 hould you haus any questions. Please feel frcc to contact Alicc Kawaha or Susan Gagorik of the anning Dcpannncnt at 96l-8288. nccrcly, . . e - vrd E. Crook. Chairman Inning Commission ::syw :cxnO1.PC Honorahlc Stcphcn K. Yatnashiro, Mayor Planning Director Department of Public Works Department of Watcr Supply County Rcal Property Taz Division Wcc( Hawaii Office Office of Mate Planning, CZM Program wfbackground Department of Land and Natural Resources, Historic Preservation Division Plan Approval Section Mr. James Leonard/PDR Hawaii ' Department of Hcalth COUNTY OF HAWAII STATE OF HAWAII BILL NO. 373 (D r51-(57----- ORDINANCE 5 tORDINANCE NO. 97 36 AN ORDINANCE AMENDING SECTION 25-88 (SOUTH KONA ZONE MAP). ARTICLE 3. CHAPTER 25 (ZONING CODE) OF THE HAWAJI COUNTY CODE. BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-1a) TO RESORT(V-6.0) AT KEEKEE 2nd, ILIKAHI, KANAKAU 1st and 2nd, and KALUKALU 1st, 2nd and 3rd. SOUTH KONA. HAWAII, COVERED BY TAX MAP KEY 8-I-04:PORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION I. Section 25-88, Article 3. Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows: The district classification of the following subject arca situated at Keckcc 2nd, llikahi, Kanakau 1st and 2nd. and Kalukalu 1st, 2nd and 3rd. South Kona, Hawaii, shall be Resort (1-6.0): Beginning at the Northwesterly corner of this parcel of land at a point bearing 300' 33' 20- 399.34 feet from an angle point on the Easterly boundary of the State Land Use Conservation District, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,636.53 feet South and 1,386.52 feet East and running by azimuths measured clockwise from True South: Thence, for the next fifteen (1 S) courses following along the remainder of Grant 1745 to John Cavanah: 1. 226° 00' 604.00 feet to a point; 2. 3 16° 00' 319.00 fcct to a point; 3. 353° 00' 80.00 feet to a point; 4. 16' 00' 290.00 feet to a point; 5. 67' 00' 275.79 feet to a ,o.itt; 6. 157' 00' 5027 feet to a point: EXHIBIT G 7. 67° 00' I44.00 feet to a point.; 8. 337° 00' 174.00 feet to a point; 9. 247° 00' 10536 fcct to a point; 10. 3337° 00' 725.39 feet to a point; I I. 89° 00' 447.00 feet to a point; 12. 157° 00' 238.00 feet to a point; 13. 146° 00' 303.00 fcct to a point; 14. 191* 00' 362.00 feet to a point; ' 15. 182° 4T 30" 255.00 feet to the point of beginning and containing an arca of 14.854 Acres. All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof. SECTION 2. This change in district classification is conditioned upon thc following: A. The applicant. its successors or assigns shall be responsible for complying with all of thc stated conditions of approval. B. Thc cifectuation of thc water commitment rights in the'Kealakckua Source Agreement to thc current landowners of the subject arca with acceptance of the prevailing facilities charge by the Department of Water Supply of thc required water commitment payment shall be in accordance with its "Water Commitment Policy- prior to the issuance of Final Plan Approval. C. Subdivision plans for any portion of the subject arca shall be submitted to the Planning Director and Final Subdivision Approval secured within five (5) years from the effective daft of this ordinance. D. Final Plan Approval for thc proposed development within thc subjcci arca shall be secured within five (5) years from the effective date of this ordinance. E. A wastewater disposal system for the subject arca shall be constructed in a manner meeting with the approval of the Statc Department of Health and/or thc Department of Public Works, whichever is applicable. F. All electrical and communication lints within the subject arca shall be placed underground. - G. A Flood Study of the subjcc:t arca shall be submitted to the Planning Director in conjunction with plans submitted for subdivision or plan approval review, whichever occurs first, for any portion of the 14.8 acre arca. Drainage improvements shall be constructed meeting with the approval of the Dcpart ncnt of Public Works, prior to the issuance of Final Subdivision or Plan Approval for the subject arca. H. An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division and Hawaiian community organizations, prior to submitting plans for subdivision or plan approval review, whichever occurs first. The Plan shall consist of three subplans: • (1) an archaeological data recovery plan for the sites to undergo data tern vc ry; (2) a detailed interim protection/preservation plan for the sites to undergo preservation; and -3- (3) an into prctation plan which shall include buffer zona, signage and long-range preservation concerns which may be submincd at a later daft. Approved mitigation mcasures shall be implemented prior to or in conjunction with any land alterations within the subjcct arca Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal deposits, human burials, rock or coral alignments, pavings or walls be encountered, work in the immediate arca shall cease and the Dcpartrncnt of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when the DLNR-HPD finds that sufficient mitigative measures have been taken. �- A Solid Waste Management Plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision or plan approval review, whichever occurs first. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the proposed development within the subject arca_ Approved recommendations and mitigation measures shall be implemented meeting with the approval of the Department of Public Works. K. Accesses) to the subjcct arca shall be constructed meeting with the approval of the Depart ncnt of Public Works. The following roadway improvements between Haleki'i Strcct and the 14.8-acre subject area shall be completed in conjunction with the issuance of a certificate of occupancy for any development within the subjcct arca: (I) II c �hannelization and signalization of the project sites Marr a:-hoa Highway-Halcki'i Strcct intersection; .4. (2) the extension of Halekui Street shall be constructed as an arterial along its general mauka-makai alignment, as shown on Exhibit -B-. which phasing of improvements shall be approved by the Deparunent of Public Works. If. before the completion and opening of the entire Marnalahoa Highway Bypass, a portion of said bypass is complctcd and opcncd, and said portion provides a connection to Halcki'i Street, a ban-icadc or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Halcki'i Strcct improvements. The purposc of this condition is to prevent the use of Halcki'i Strcct as a vehicular thoroughfare bcrwccn the existing Marnalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been complctcd and opcncd for general public use; (3) the roadway segment from. the Halcki'i Strcct extension to the subject arca shall be constructed prior to the certificate of occupancy for any development within the 14.8 acre subject arca. Also, the Mamalahoa Highway Bypass shall be constructed in its entirety between the approximate vicinity of Kcauhou 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 Kcauhou and Halcki'i Street shall be completed and available for public use prior to the issuance of a ccrliftcatc of occupancy of the proposed development within the subject arca. L. Infrastructural improvements as required undcr Conditions C. E. F. G, .1, and K shall not prohibit the applicant from participating in a Development Agreement or any other erg mcjt t. gethcr with the appropriate bond, surety or other security deemed acccptablc by the Planning Director, appropriate agencies or the County -5- Council, whichever is applicable, to ensure the provision ofneccssary infrastructural improvements to support the proposed development in a timely manner. M. The applicant shall establish a program for employee housing which shall be submitted for the review and approval of the Planning Director and Housing Agency together with the submittal of plans for Plan Approval for the proposed lodge. The program shall include provisions for on-site or off-site housing for the employees of the lodge in an amount to be determined by a study of surrounding housing opportunities and employee needs. Thc program may also include consideration for othcr alternatives such as rental housing subsidics or housing allowances. The approval of the program shall be secured prior to the issuance of a certificate of occupancy of the lodge within the subject arra N. The applicant shall make its fair share contribution to raitigatc the potential impacts of the proposed development within the subject arca with respect to parks and recreation, fire, solid waste disposal facilities and roads. Thc amount of the fair share contribution shall be the sum which is the product of multiplying thc,nwnber of units proposed to be developed by the amounts allocated hereinbelow for each such unit, and shall become due and payable prior to final plan approval or final subdivision approval, whichever occurs first, for any portion of the subject arca or its increments. If the subject arca is developed in two or more increments, the amount of the fair share contribution due and payable prior to final plan approval of each increment shall be a sum calculated in the same manner according to the number of proposed units in each such increment. Thc fair share contribution may be in a form of cash. land, facilities, or any combination thereof acceptable to the Planning Director in consultation with the affected agencies. The fair share contribution shall have a maximum corub:ncd value of 57,966.90 per resort unit. Based upon the applicant's representation of intent to develop up to 80 units, the indicated -6- total fair share contribution is 5637,272.00. However, the total amount shall be increased or reduced in proportion with the actual number of lots/units according to the calculation and payment provisions set forth in this Condition N. The fair sharc contribution shall be allocated as follows: 1. 51.94/74 per resort unit for an indicated total of 5155,419.20 to thc County to support park and recreational improvements and facilitics; 2 587.99 per resort unit or an indicated total of 57.039.20 to the County to support fire facilities: 3 543.02 per resort unit for an indicated total of 53,441.60 to the County to support solid waste facilitics; a 55.892.15 per rcsott unit for an indicated total of 5471,372.00 to the Statc or County to support road and traffic iroprovcmcnts. The fair share contributions described abovc shall be adjusted annually beginning three.years after the effective date of thc change of zone, based on the percentage change in the Honolulu Consumer Pricc Indcx (HCPI). In licu of paying thc fair share contribution, thc applicant may construct and contribute land, improvements/facilities related to parks and recreation, fire, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the Planning Director. The cost of constructing the improvements and the fair market vatuc of land contributed rcquircd in Condition K shall be credited against the sum specified in Condition N(4) for road and traffic improvcmcnts. For purposes of administering Condition N. the fair market value of land contributed or the cost of any tmprovcments rcquircd or crude in lieu of the fair share contribution shall be _7_ subject to thc review and approval of the Planning Director, upon consultation with thc appropriate agencies. O. Comply with all applicable laws, rules, regulations and requirements, including those of the Dcparcmcnt of Health, Fire Department and the Dcparo-ncnt of Water Supply. P. Should the Council adopt a Unified Impact Fccs Ordinance s-ctting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited toward the requirements of the Unified Impact Fees Ordinance. Q. An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zonc. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports arc not required. R. An initial extension of time for the performance of conditions within the ordinance, with the exception of Condition B, may be granted by the Planning Director upon the following circumstances: (1) The non-performance is the result of conditions that could not have bccn foreseen or arc beyond the control of the applicant, successors or assigns, and that is not the result of their fault or negligence. (2) Granting of the time extension would not be contrary to the General Plan or Zoning Code. -8- (3) Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. (4) The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). S. Should any of the conditions not be met or substantially complied within a timely fashion, the Director may initiate rezoning of the subject arca to its original or more appropriate designation. - SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY: // 1 ;3 /. ---4---V OLrja MEMBER, COUNTY OFW HA AJ 1 Hilo, Hawaii Date of Introduction: F bru y 19, 1997 Date of 1st Reading: February 19, )997 • Dale of 2nd Reading: I-larch 7• 1997 Effective Date: Mazda -3 1997 APPROVED AS TO FORM AND LEGALITY -Lf / tet`.-11--Z/ CORPORATION COUNSEL DATED: 3ic;/7 7 -9- 11 ill �_ fairs/MOP ifib -== :::-7. s% lir 11141Pit "II ,0111.1•111111 is„ r a I IIII ..s.;V gli fit ri 1 I „f1I1� :=„z ;;w#4 iirf i IMP E N tValliinill l'''' 11111 • I dir Afig&RV."' ( - /-so - i U ' !' / a • _ , IN • A-S. I /1-I_ r.......:11/1) A-S. A_! _ A-I. a- -C 0 _ ' z I A-I. O a d Ur 1.-..J -C , ..0Z 2 2 p 1.636.53 S " 1.3a6sz E AGRICULTURAL. (A- 1a) Puu ower AS E ) x TO ^-I. RESORT (V--6.0) O ' o �� � AREA: 14.854 ACRES -Pull oHAlr • r�' .,e S E w AMENDMENT TO THE ZONING CODE MENDING SECTION 25-88 (SOUTH KONA ZONE MAP) ARTICLE 3, CHAPTER 25 (ZONING ODE) OF THE HAWAII COUNTY CODE. 131 CHANGING THE DISTRICT CLASSIFICATION FROM GRICULTURAL (A-1a) TO RESORT (V-6.0) AT KEEKEE 2ND, IUKAHI, KANAKAU 1ST ANO ND AND KALUKALU 1ST, 2ND AND 3R0, SOUTH KONA. HAWAII. PREPARED BY : PLANNING DEPARTMENT COUNTY OF HAWAII a--t—..PORTION or [1-11817 7,41:* OGTo6ER v. t1. o r .. tocc ..ac ...• - • • - .- _ lb• c -_,........„, 4. _ x- -rI;_._..:_,-.?:-.rE1 {. �1:� %. •' 1 ,�• - lr rim-736f.4tr e.1i 4:t:' 1 ; `-) .*-.-.. -f0• •� '41,iftailiiir"- --C647',Z."iler -41% / ;'. ' . 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' ' =a •i •- OFFICE OF THE COUNTY CWu( County of i21,-raii _ Kilo , ticwcrr =(� - R- -.,.' 9 D, - s) ' 97 PIE P, 13 ill 2 1 7 ROLL CAL -[E-1.- • --• AYES 1Ar1S-1'11 )duccd By: _ Jean Lie thead-Todd Ari.kIntroduced: February 19. 1997 Chungi X zading: February 19. 1997 Chung X P. istird: February 28. 1997 Lei thead-Todd X Ray x + ARXS: Reynolds X Ir Santangelo X Smith x Tyler X _Yaponz X - 9 0 0 1 ( ROLL CALL VOTE ,d Reading: March 7, 1997 - 1 ayo- March 7, 1997 AYES NOES ABS I EX ncd: March13� 1997 _Arakaki X I Eve: Mardi 13, 1997 Chun. X •hcd Hardt 21, 3397 ' Lei thcad-Todd X IRKS: Ray X Reynolds X I Santangelo X I I Srai th X I 1 - TYler I X I - yagong X 1 8 1 1 I o 1 0 • YEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as ted above. APPROVED AS TO F7 AND LE ITY: 4. DEPUTY CORPORATION COVNSE ••r CIL C>�/R�LtN COUNTY OF HAWAII 11. COUN YCLERK cd/_ ` (his 13 .. � day 19 97 . ..L___ co J-r F H,1 w,A 1 37 3 (Draft S ) -c HEREBY CERTIFY that above Ii . Bill Na_ true and correct copy of the origlo.t Rc/,.,.-„« C-1474/1996/PC-27 now on file in ray office_ Ord. No. ,4-,1.(.EQ „Q_. .G r....-.r. c:—i `� ; / r 4L\ vLk I.. . st."W \\ \ \v. "r `1 - 6) --NP . ' 1 k. • -, , , -, , 1 • , 1... ,. N , . • ,\ .., , , : \ g, 3 . Jii.,:-.. . .v, • \ , sl f 104' ?? .0• A- . ' w U ,. ir,,,,,,,- 1.\\ t. . • a ''. " if-11117 eierill%k II 4' litilS 0* it i\ li 2 ; 4-thtneWlb \ og o L'-i!.i.. rakirlastlit -\ ."n1111014,P, 1 li ' i a' Th5?c.--. itt 191 1. k s .,\ -, i 4* Yei er#t,.: `.i"'re•21- ( 1 1 ‘ e a cliT•6441 iliv, - - $ etitif .0.- , . 146 _ . ergialiaL, ) i ,5';1 S \ r , ingq,sk\i a nNo ,jil ›.= - .hoot- \ , ) ) , : • Miti . LI. ( ( - if: • • ,,, \ ‘iivitilinri itreAr÷ / Wilt Ine":41101*Allt #fit \'' -\ ‘ Nitill% \ -.11411110" --% 1W1 S\ \ iAtiot . ,,t�.mo _ ' ' ) � - �• ifi ... f lA - ...f3 ( K ) IC i p , c.11:170ii lift . *. iL . j \ „ s" ..\ 0 04* I Ilk .6,„.- . . ) --,:).\ ) w.,‘„,„di ." '4 .1%' ii?(icti) 4, 17,4:Uct-t I \, i'. ( -40 . Mr, \-•\.-\ - \‘-, tat Lffia, . % -, `-c. \ ‘4, a 1 ‘,0, -, ' 4% ) ' ) vgipkrtr\- ,_? \;. .. A. , ; , . .s . ‘ ._.. .. : • •:::: r.. ,. , , 'Si. ‘sA\-------,..s. 7 -__1 . . :Ai )1/4 i .1 % ,( ,uuir:i; Q PE ;_ ''s• COUNTY OF HAWAII ,s=- STATE OF HAWAII RESOLUTION NO. 244 9 8 (Draft 3) A RESOLUTION AUTHORIZING THE COUNTY OF HAWAII TO ENTER INTO A DEVELOPMENT AGREEMENT WITH 1250 OCEANSIDE PARTNERS. WHEREAS, the Hawaii State Legislature, under section 46-123, Hawaii Revised Statutes, granted authorization to the County of Hawaii (County) to enact an ordinance authorizing the executive branch of the County to enter into a development agreement with any person having a legal or equitable interest in real property for the development of such property; and WHEREAS, pursuant to 46-123, Hawaii Revised Statutes, the Hawaii County Council enacted Ordinance No. 93-37 (Chapter 30, Hawaii County Code) establishing the requirements for Development Agreements, which ordinance was passed into law on April 27, 1993; and WHEREAS, pursuant to Section 46-123, Hawaii Revised Statutes, and Chapter 30, Hawaii County Code, the County adopted rules governing Development Agreements on May 16, 1995; and WHEREAS, 1250 Oceanside Partners, a Hawaii limited partnership, dba Oceanside 1250 (Oceanside) is the owner in fee simple and lessee of certain lands situated in North and South Kona, Hawaii County, Hawaii,TMK: (3)7-9-12:03, (3) 7-9-12:04, (3)7-9-12:11 and (3)8-1-04:03 (por) (" Property")and more particularly described in Exhibit "A", as modified, of the Development Agreement(Oceanside Development Agreement), which is attached hereto and incorporated herein; and WHEREAS, Oceanside or its related entity, affiliate or subsidiary, plans to develop the Property and has submitted a development agreement and application to the Office of the Mayor; and WHEREAS, Oceanside's development will provide many public benefits to the County through the zoning, Special Management Area conditions of approval, and the imposition of on- and off-site development requirements; and WHEREAS, pursuant to Section 30-5(d), Hawaii County Code, the Mayor, through the Planning Director, has submitted a final draft of the Oceanside Development Agreement to the County Council for its action; and WHEREAS, pursuant to Section 30-4(b), Hawaii County Code, the Mayor may enter into development agreements on behalf of the County; and EXHIBIT Z WHEREAS, pursuant to Section 30-5(1), Hawaii County Code, a public hearing was held by the County Council on March 18, 1998 and continued on March 30, 1998 at the Kona Surf Resort and Country Club, which is located in the Council district affected by the proposed development. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the provisions of the Oceanside Development Agreement are consistent with the County General Plan, as amended. BE IT FURTI-IER RESOLVED that the County Council hereby approves the Oceanside Development Agreement as submitted in accordance with Section 30-5(d) of the Hawaii County Code, and as further modified by the County Council. BE IT FURTHER RESOLVED that the Honorable Stephen K. Yamashiro, or his designee, is hereby authorized to execute said Oceanside Development Agreement, as modified, on behalf of the County. BE IT FINALLY RESOLVED that the County Clerk is hereby directed to forward copies of this Resolution to the Honorable Stephen K. Yamashiro, Mayor of the County of I Iawaii and 1250 Oceanside Partners. Dated at Hilo, Hawaii this 1st day of April ,1998. INTRODUCED BY: G'(>ifi ; ;.t/1 COUNCIL MEMBER, COUNTY OF I IAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawaii ARAKAKI X (HUNG X reby certify that the foregoing RESOLUTION was by the LEITH EAD-TODD X icated to the right hereof adopted by the COUNCIL of the RAY X of Hawaii on April 1, 1998 • REYNOLDS X T: SANTANGELO X SMMITtt X TYLER X YAC:ONG X 8 1 0 0 Reference C-7 5 9 . 10 FY CLERK . HAIRMAN & PRESIDING OFFICER RESOLUTION NO. 244 98 (DRAFT r :,,, . ...r<p*, ." ". ; 1 r i s 71•. - .44run6iiv. "•••14 :7.0"\ -., v. :. „., . , .. . .,- . • 0,......47-7-...,,-.. ..,.....„.7. ,:• .., , ., .., : •_, , ..k:•A • J.,,-. 4":1'4.0,fy Ici i., 1 '., .,y-i ..,.. .a... . • ,. .. 1.4.1:. ...-.: ,s .:,!.r.;„ • 7,.... ...• • _4, ..,.. . •• . ;.1 ••„-•, , 0 . •••• Yer �.• � A MTS. •r, i v � i 41 • 1;-...:::-:::, .. %'}rpt • l :•• ,' ` • ;; •a '��r'+4 •-- -• • •: . all ` -:::', �._ .r:.�F tv�:...� : �•L. \i„-:-..a ; _�. -• •rsi : 'i w ( • •• b'•.`- - KA:::-,t42; .. 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A91 ..., MI r..,— • le " :f' 14 .::::_, ...:, ..:./!1;i1:..... \ .. :, ).... k k , ` f, ---„,__Hl i k , • /: . : -(.1-, • 7.1 : .....: r; .: ( .:... • • • a` li • • 0 ♦ _ ; J)I - 1 I I 1 ' ...1 ••••.) I �i 1 1 8- 7-041:03i♦� F v . % 2 . : . •,...414:41.> 1141;• it___ • O. -- �� FEE 'AC f 1: 0- o ? ..10.K." 1 .....r . 'I . •. i Y ` x J I e7. A .11 t L 1 • LEASE AREA EXHIBIT K U • • • • • • • • • • • • • LAND COURT SYSTEM ter Recordation. Return b REGULAR SYSTEM Y Mail ( ) Pickup ( ) ACKERMAN RANCH INC. P. O. BOX SSS TG : ACCOM KEALAKEKUA, HI 96750 TGE: 881010819 4TTN: JAMES J. ACKERMAN LILY BRUME 'LE OF DOCUMENT: MEMORANDUM OF DEVELOPMENT LEASE TIES TO DOCUMENT: ACKERMAN RANCH, INC. , Lessor LYLE ANDERSON, Lessee 'ERTY DESCRIPTION: LIBER/PAGE: DOCUMENT NO. : . TRANSFER CERTIFICATE OF : TITLE NO(S). : EXHIBIT L MEMORANDUM OF DEVELOPMENT LEASE THIS INDENTURE made this rXt day of ( l.(/c/ 19 sI by and :ween ACKERMAN RANCH, INC. , a Hawaii corporation, (hose principal place of isiness is in Kealakekua , Hawaii and whose post office address is 0. Box 555, Kealakekua, Hawaii 96750, hereinafter called the "Lessor", and 'LE ANDERSON, husband of Kerri Anderson, whose principal place of business d post office address is 7373 N. Scottsdale Road, Suite C226, Scottsdale, izona 85253, hereinafter called the "Lessee". WITNESSET H: That in consideration of their mutual covenants and agreements , the ssor does hereby demise and lease unto the Lessee, and the Lessee does reby accept and lease from the Lessor the property described in Exhibit "A" [ached hereto (herein the "Property") ; TO HAVE AND TO HOLD the same for the term and upon the rents , 'enants, agreements and conditions contained in that certain unrecorded 'elopment Lease between the parties dated as of July 28 , 1989, all of the )visions of which are incorporated by reference. This Memorandum of Lease is executed for the purpose of giving notice the existence of the Development Lease. Reference is made to the •elopment Lease, as it may now or hereafter be amended, for the full cription of the rights and duties of the Lessor and the Lessee. This lorandum of Development Lease shall not affect the terms and conditions of Development Lease, as now or hereafter amended, or the interpretation of rights and duties of Lessor and Lessee under the Development Lease. The Development Lease further grants to the Lessee the following hts, privileges and powers: DEVELOPMENT OF PROPERTY (1 ) Permits and Governmental Approvals. The Lessee may file all lications and take all actions necessary or desirable to obtain lassification under the state land use law and changes in or variances of zty master and development plans and zoning for all purposes and uses witted the Lessee under this lease; seek subdivision and consolidation -ovals and permits required for the initial subdivision of the Property and ;equent subdivision and development of the Premises; and seek grading , .ding and other permits necessary for the demolition of existing -ovements and the construction of new improvements on the Premises. The ;or will join into, cooperate with, support and assist the Lessee with all ications for such reclassifications, changes, variances , zoning , ivisions and permits provided that the Lessee pays all costs as described e. The Lessee shall not be required to -pay any money to or for the Lessor btain the Lessor's cooperation. If and when requested by the Lessee, the or shall execute all applications, consents or other such forms or ruments necessary or desirable to accomplish any of the aforesaid, uding, without limitation, obtaining governmental approvals or permits. -2 (2) Dedications by the Lessor. From time to time during the development id subdivision of the Premises and upon receipt of written request from the .ssee, the Lessor will, without the payment of additional compensation, •dicate from the Premises such streets, parks and other improvements for iblic or private use as reasonably designated by the Lessee in connection th the development of the Premises , convey portions of the Premises to such blic utility companies , governmental agencies or improvement districts as e Lessee shall reasonably designate , including without limitation the well to within a portion of the Property described in Exhibit A, and grant any sements which the Lessee reasonably deems necessary for the respective rvices . The Lessor shall not encumber its interest in the land or this ase in a manner which shall interfere with such dedication. (3) Power of Attorney. The Lessor irrevocably, for the term of the ase, makes and appoints the Lessee (and his successors and assigns ) his Corney-in-fact to do and accomplish for and on behalf of the Lessor the llowing: (a) In order to facilitate the applications, actions and approvals described in Paragraph A(1 ) above to sign and deliver any document requiring the Lessor's signature that is related to matters before the Hawaii County Planning Commission, the State Land Use Commission, the Real Estate Commission of the State of Hawaii and any successor to such agencies or other administrative agency from which approvals or permits are required for land use changes, zoning, subdivision or development of the Premises, provided that all plans are in accordance with the uses permitted in Paragraph B below; (b) In order to facilitate the actions described in Paragraph C(1) below, to join in, sign and deliver the declarations , bylaws and other instruments and amendments thereto and to sign and deliver apartment leases to the extent the Lessor is required to do so by the provisions of the Development Lease; and (c) In order to facilitate the execution and delivery of the covenants , conditions and restrictions described in Paragraph C(2), to sign and deliver the documents containing such covenants, conditions and restrictions. (d) The power provided for in (b) and (c) above shall be exercised only after the intended action has been submitted in writing for review by the Lessor and has been approved by the Lessor in writing or the Lessor has failed to respond either approving or disapproving the proposed action within 20 days of receiving the submittal; provided, however, that no third person shall need to confirm that such approval was obtained in order to rely on an exercise of the power by the Lessee. 'equested by the Lessee, the Lessor (and its successors and assigns ) shall ver separate, executed limited powers of attorney containing the same rs and authority described above. -3- USE OF THE PREMISES (1 ) Specific Use Allowed. The Premises shall be occupied and used by the ssee for grazing, agriculture and any uses consistent with the "Urban" State nd Use Classification and the Hawaii County Alternate Urban Expansion signations, including residential and multi-family residential uses , private .ibs , resorts, commercial uses , public or private support facilities , golf lrse, parks and all other similar urban uses. CONDOMINIUM DEVELOPMENT, CONDITIONS, COVENANTS AND RESTRICTIONS (1 ) Submission to Condominium Property Regime. If requested by the ;see, the Lessor will join into a declaration of condominium property regime leclaration"), bylaws and other instruments required by law to subject such Lcts as specified by the Lessee to the Condominium Property Act , Chapter IA, Hawaii Revised Statutes , or any successor law, in order to establish a izontal property regime for any of the uses permitted under this lease. Lessor agrees to assent to amendments of the declaration and bylaws of the ject and the apartment lease requested by the Lessee, including , without citation, requests made in order to comply with Law or to incorporate nges which are reasonably required by a mortgagee under a loan commitment finance the construction of improvements or the purchase of apartments , vided amendments required by mortgagees do not substantially and adversely ect the Lessor's interest under this lease or any replacement lease, or in Premises. With respect to apartments for which no apartment lease has n issued, the Lessee shall be deemed to be the owner of the apartments for purposes of the declaration and bylaws and shall have all rights , vileges and obligations of an owner, including membership and vote in the ociation. Apartment leases may either be direct leases from the Lessor or leases under this lease. (2) Covenants and Restrictions; PUD. The Lessor will also, from time to join with the Lessee in submitting Tracts or the Premises to covenants , iitions and restrictions not inconsistent with the Development Lease which tide for the development of the area in an orderly and aesthetically ising manner and for the maintenance of common areas by a community )ciation or provide for development of portions of the arca as planned unit :lopments. In order to facilitate the execution and delivery of such :pants, conditions and restrictions, the Lessor will irrevocably appoint Lessee as its attorney-in-fact to sign and deliver such documents raining any such covenants , conditions and restrictions. TRANSFERS (1) Assignment and Subletting. The Lessee may assign or sublet or part • possession of all or any part of the Premises without the prior written ent of the Lessor, provided, however that (i) no assignment or sublease of portion of the Property to be surrendered to the Lessor upon Initial ivision (as defined in the Development Lease) shall be made, and ( ii ) no gement shall be permitted during the initial five years of the term out the Lessor's prior written consent except an assignment to an liate of the Lessee or a partnership in which the Lessee or his Affiliate a general partner. Upon any assignment or sublease to an Affiliate or ird-Party, a true copy of the assignment or sublease shall be promptly livered to the Lessor. Upon an assignment of this lease to a Person whose t worth and financial condition is substantial given the nature and the tent of the obligations to be assumed by the assignee, the Lessor shall lease the Lessee from all further liability under the lease with respect to portion assigned. (2) Partial Assignments. The Lessee may assign the lease with respect to Tract or Tracts on the same conditions as are stated in Paragraph D(1 ) , ,vided that (i) if the Tract is not a Developed Tract , the Minimum Annual A under the partial assignment shall be in the proportion that the area of Tract or Tracts so assigned bears to the area of Premises immediately or to assignment, and (ii) if the Tract is a Developed Tract at the time of ignment, the rent shall be determined in accordance with the Development se. (3) Consent to Mortgage. The Lessee may from time to time without the sent of the Lessor mortgage this lease to any lender as mortgagee, or ome the beneficiary of carryback financing liens with respect to the sehold interest in connection with assignments of all or portions of this se. (4) Notices. After receipt of an executed copy of a mortgage of the ;e, the Lessor shall send the mortgagee a copy of any notice sent by the ;or to the Lessee pursuant to this lease. (5) Enforcement of Mortgage. A mortgagee of this lease may enforce its :gage and acquire title to the leasehold estate in any lawful way, and ling foreclosure of the mortgage (or pending sale of the lease in lieu of :closure of the mortgage) , may take possession of and rent the Premises . i foreclosure of the mortgage or assignment in lieu of foreclosure the gagee may, without consent of the Lessor, sell and assign the leasehold to by assignment in which the assignee shall expressly assume and agree to rve and perform all the covenants of the lessee under this lease, and such gnee may make a purchase money mortgage of this lease to the mortgagee or other Person provided that a true copy of the executed assignment and any gage shall be delivered promptly to the Lessor. The mortgagee or any nt of the mortgagee pending foreclosure shall be liable to perform the gations imposed on the lessee by this lease only during the period such on has possession or ownership of the leasehold estate. Nothing contained he mortgage shall release or be deemed to relieve the Lessee from the full faithful observance and performance of any covenant and condition lined in the lease and on the Lessee's part to be observed and performed From any liability for the nonobservance or nonperformance of such tants or conditions nor a waiver of any rights of the Lessor under the e. Should there be any conflict between the provisions of this lease and mortgage, the former shall control except as hereinabove set forth. .6) Protection of Mortgagee. The Lessor will not exercise the Lessor 's . to terminate the lease with respect to all or any portion of the ses because of any default by the Lessee under the lease if the mortgagee -5- 1r its assigns, within one hundred twenty days after receipt of written notice rom the Lessor of its intention to terminate the lease for any such cause, hall cure such default if the default consists of a failure to make any ayments required under the lease. Notwithstanding anything to the contrary n this lease, whenever the leasehold interest is encumbered by a mortgage or eed of trust, this lease shall not be subject to termination with respect to he entire Premises or any portion of the Premises for any default that does of consist of a failure to make any payments required under the lease, but he Lessor shall continue to have its remedies under the lease as well as the emedy of injunction when irreparable harm is threatened. Upon foreclosure ale of this lease or assignment in lieu of foreclosure, the time for erformance of any obligation of the Lessee then in default not consisting of le failure to pay money shall be extended by the time reasonably necessary to )mplete such performance with due diligence. The ownership by or for the une Person of both the fee and leasehold estates in the Premises shall not 'feet the merger of those estates without the prior written consent of any >rtgagee affected by the merger. (7) Lessee's Bankruptcy. If a bankruptcy proceeding is commenced by or ainst the Lessee, the mortgagee shall have the option and the Lessor shall cognize the mortgagee's right , within the statutory period , to obtain or use the Lessee or the trustee in bankruptcy to obtain (i) an abandonment of e leasehold estate by the Lessee or the trustee in bankruptcy pursuant to e provisions of the Bankruptcy Code, or any successor law having similar feet , or (ii) an assumption of the lease pursuant to the provisions of the nkruptcy Code, or any successor law having similar effect. The Lessor reel to extend the limitation period for the trustee to assume or reject the ase for a period of not more than sixty days. All such extensions are on e continuing conditions that all rent and other charges under the lease are id when due. (8) New Lease. If this lease shall terminate prior to the expiration of term (whether due to bankruptcy of the Lessee, operation of law or lerwise), the mortgagee (or the senior mortgagee, if there is more than one) X11 have an option to obtain from the Lessor (i) an instrument recognizing, 'firming, and giving legal effect to the continued existence of the lease m "Lease Confirmation"), or (ii) a new lease of the Premises demised by the se in favor of the mortgagee or its designee (the "New lease") upon the lowing terms and conditions: (a) Within sixty days after the mortgagee receives written notice from the Lessor of the termination of the lease, the mortgagee shall make a written request to the Lessor for a Lease Confirmation or a New Lease, and the mortgagee or its designee shall enter into the applicable document within thirty days after receipt of the document from the Lessor. (b) As a condition to and upon the execution and delivery of the Lease Confirmation or the New Lease, the mortgagee shall pay to the Lessor (i) any and all sums which are then due under the lease (whether or not terminated), (ii) all expenses, including advances made under the lease to protect the Premises and reasonable attorneys ' fees incurred by the Lessor in connection with the Lessee 's default, the rejection or termination of -6- this lease and the recovery of possession of the Premises and all expenses incurred in the preparation, execution and delivery of thei)Lease Confirmation or the New Lease. (c) The New Lease shall have a term commencing as of the date of termination of the lease and coinciding with the remaining term of this lease and be at the same rent and upon the same terms, covenants and conditions as contained in the lease , as it may have been amended prior to the date of termination, except that the New Lease shall contain the promise of the lessee to indemnify the Lessor from and against all claims , demands or liability for loss or damage arising out of or in connection with the issuance of the New Lease and to reimburse the Lessor for its costs and expenses, including reasonable attorney's fees, incurred in connection with the defense of any such claims , and the five year provision in Paragraph D(1 ) shall not be applicable to the New Lease. (d) Concurrently with execution of the New Lease, the Lessor shall assign to the new lessee Lessor's interest in and to any existing subleases , if applicable, the subtenants of which have attorned to and been recognized by the Lessor. During the period between the termination of the lease and the execution of the New Lease, the Lessor shall not amend or modify the subleases or take any action with respect to the demised Premises which will impair the property which is the security for the mortgage. (e) The Lease Confirmation or the New Lease shall have the same priority with respect to any mortgage, lien, charge or encumbrance on the fee of the Premises as the lease had immediately prior to its termination, and the lessee under the New Lease shall have the same right, title and interest in and to the Premises and the buildings and improvements thereon as the Lessee had under the lease immediately prior to its termination; provided, however, that the Lessor makes no representations, warranties or covenants with respect to encumbrances, liens or other matters not within the control of the Lessor that impair or may impair the lessee's right, title and interest under the New Lease; (f) The mortgagee, if it is the initial new lessee. may assign the New Lease without the Lessor's consent by an assignment in which the assignee shall expressly assume and agree to observe and perform all the covenants of the lessee under the New Lease, and such assignee may make a purchase money mortgage of the New Lease to the mortgagee. A true copy of the executed assignment and any mortgage shall be delivered promptly to the Lessor. No other or further assignment or mortgage of the New Lease for which the written consent of the Lessor is required shall be made without such consent; (g) If the mortgagee shall demand a New Lease, the Lessor agrees, at :he request of, on behalf of, and at the sole expense of the mortgagee to join in any proceedings (and if required by law, such )roceedings to be brought in its name) to oust or t emo e� ny the o peita original .essee from the Premises, but not any subtenants actually occupying the 'remises who have attorned to and been recognized by the Lessor. -7- (h) The provisions of this Paragraph D(8) are intended for the exclusive benefit of the mortgagee or any Person acquiring the Lease upon or in lieu of foreclosure of the mortgage and is not intended to and shall not be deemed to, confer any rights or benefits upon the Lessee or the Lessee's trustee in bankruptcy. (i) Mention of this Paragraph D(8) may be placed of record, and any and all mortgages or other liens , charges or encumbrances on the Lessor's interest in the Premises arising after the date of recordation or filing shall be subordinate to the provisions of this instrument. Any New Lease issued pursuant to the provisions of this instrument shall be prior to any such mortgage or other lien, charge, or encumbrance to the fullest extent permitted by law. (9) Amendment or Surrender of Lease. During the continuance of a rtgage of which the Lessor has notice, no agreement hereafter made between e Lessor and the Lessee amending, correcting or surrendering the lease shall effective without the prior written consent of the mortgagee. (10) Liability of Mortgagee. (a) No mortgagee of this lease shall be or become liable to the Lessor as an assignee of this lease or otherwise for the payment or performance of any obligation of the Lessee until the holder expressly assumes by written agreement the payment or performance of such obligation. No assumption of liability shall be inferred from or result from foreclosure or other proceedings in the nature of foreclosure or as a result of any other action or remedy contained in a mortgage, or from a conveyance or assignment pursuant to which any purchaser at foreclosure shall acquire the rights and interests of the Lessee under the terms of this lease. (b) The Lessor and the Lessee agree for the benefit of any holder of a mortgage of this lease that they will not subordinate this lease to any mortgage that may hereafter be placed on the fee interest in the real property which comprises any portion of the Premises or amend or alter any provisions of this lease or consent to any prepayment of any rental or additional rental without securing the written consent of any such mortgagee. WELL SITE OPTION (1) During the lease term, the Lessor grants the Lessee an option to lire twenty thousand square feet of land on the portion of the Property -endered to the Lessor upon completion of the Initial Subdivision to be I expressly for the purpose of a potable water well. The exact location of well site will be as mutually agreed upon so as not to unreasonably !rfere with the use of Lessor's property when and if the Lessee determines a well on the Lessor's mauka property is desirable for the Lessee 's )oses in developing the Premises. The Lessor understands that in order to :in potable water, the Well Site must be located at an elevation which is mated to be between nine hundred and twelve hundred feet above sea level . -8- 3 ie Lessee shall have the right to assign this option for the Well Site to the iter Commission of the County of Hawaii and either the Lessor or the County Hawaii shall have the right to develop a water well with associated squired facilities on the site. In addition to the Well Site, this option ►all include the right to easements for access , electric transmission lines id water transmission lines from the Well Site across the Lessor's property water storage facilities to be built on the Premises or other property of e Lessee. Access to the Well Site shall , to the extent reasonably possible, across the Lessee's property. The Lessee (1) shall pay all expenses sociated with the conveyance and development of the site, (2) shall covenant at any intrusion and disturbance to the Lessor will be minimized, and (3) ter construction, shall restore the Lessor's land surrounding the Well Site d transmission lines to even grade and good condition to the extent asonably possible. The Lessor agrees to cooperate with the Lessee, his ents and the Water Commission of the County of Hawaii in the selection, Ddivision and development of the site and to give reasonable access for the astruction and maintenance of the facility. Access to the Well Site and )urtenant easements and rights of way by the Lessee shall be limited to -poses reasonably related to the construction, use, operation, maintenance, )air and replacement of the well , electric and water transmission facilities ! appurtenant facilities. Any determination that this Paragraph E is 'alid or unenforceable shall not in any respect affect any other provisions this lease. (2) The consideration to purchase the Well Site shall be $4,590.00. consideration shall be paid in cash upon acquisition of title. FIRST REFUSAL TO PURCHASE. (1) If the Lessor shall decide to sell in whole or part its interest in Property or shall receive a bona fide offer from a Third Party to purchase or a portion of the Lessor's interest in the Property which the Lessor is ling to accept , the Lessor shall first give written notice to the Lessee, :h notice shall state the price, terms and conditions upon which the Lessor =rs its interest in the Property for sale (which price, terms and iitions shall not vary from those of any bona fide. Third-Party offer to :hale) and which notice shall contain a true copy of the bona fide offer, .uding the offeror's name and address. Such notice shall constitute an :vocable offer to sell such interest to the Lessee on the same terms as :ained in the notice from the Lessor. If within sixty days from the .ipt of the Notice the Lessee shall agree in writing to purchase the land the Lessor, the Lessor must sell and transfer the land to the Lessee upon terms and conditions set forth in the notice. If the Lessee does not e in writing to purchase within the sixty-day period, the Lessor is free ell and transfer the land to a Third Party, provided, however, that the or shall not make such a transfer at a price or upon terms or conditions favorable than those upon which the interest was first offered to the ee. If the Lessee agrees to purchase the land, the purchase shall be unmated within sixty days after the date of acceptance by the Lessee, ect to extensions for matters beyond the control of a party. If this e expires or is terminated in any manner or for any reason, all rights of -9- l 'we Lessee under this Paragraph shall cease, provided, however, that the first !fugal right shall continue with respect to lands surrendered to the Lessor lrsuant to the Development Lease for the balance of the lease term. This ight may not be assigned separately from the Development Lease. This right wall not be exerciseable by the Lessee if he is in default hereunder either the time the notice is given to the Lessee or on the date for closing the file. This right does not extend to transfers to the descendants of James and -ace Ackerman, but upon such transfer, this right in favor of the Lessee tall be binding upon said descendants in all respects as it was binding upon le Lessor. IN WITNESS WHEREOF, the parties hereto have executed these presents e day and year first above written. ACKERMAN RANCH, INC. , a Hawaii corpor tion B (:4-97((-, eY /1 !c - Its President BY it j/1/7/le- �1,f144 er- s Secretary-Treasurer Lessor i( ./ /irt.ztA,/,--- LYLE I,RSON "Lessee- -10- ATE OF HAWAII ) ) SS. LINTY OF HAWAII ) On this -X. dayof -(om , 191') , before me appeared A. ACKERMAN and GRACE B. ACKERMAN, to me personally known, who, being by me ty sworn, did say that they are the President and Secretary-Treasurer, :pectively, of ACKERMAN RANCH, INC. , a Hawaii corporation, and that the seal .ixed to the foregoing instrument is the corporate seal of said corporation I that said instrument was signed and sealed in behalf of said corporation authority of its Board of Directors, and said officers acknowledged said trument to be the free act and deed of said corporation. >G' (14 Notary Public, State of Hawaii My commission expires : I -/.q-$y T OF ARIZONA . ) TY OF �p�(1 d } ) S S. On this day of( -J , 192a, before me personally ared LYLE ANDERSON, to me knee the person described who uted the foregoing instrument, and acknowledged that he executed the dsame is free act and deed. -- (-1\fir\A : 6.1).\.11S) (I. Noary Public, in and for said County and State My commission ex. ' ; d ` �My _ -ll - EXHIBIT "A- All arcels (onuaina 4th and those certain Honuaina3rd, North of Kona ,rd Hawaii ,at de no ate , , the Tax Maps for the County of Hawaii as Tax Ma designated n -9-12 : 5 (approximately 246 . 75 acres) , 7-9-12 : 4 P Key Nos . 7 . 4 acres) , 7-9-12 : 11 (approximate) 22 . 664 approximataly -9-06 : 01 (approximately 60 . 546 acres) , togethercrwit and h uildings, gates , fences , waterlines and other improvements all xisting thereon . is now SUBJECT, HOWEVER, TO: 1 . Reservation in favor of the State of Hawaii of 11 mineral and metallic mines . 2 . Unrecorded lease dated January 31 , 1981 , between :kerman Ranch, Inc . , as Lessor , and Kealakekua Ranch , Ltd. , as :ssee, expiring on January 31 , 1991 . 081689 7052H w V) CC WD cn o LU c U W O W o CCUv) U Z W CO O cn m OL W U Q D WF- CD V) 7 C W ---1 F- /- CD 2 - I Q Q cn < < Q co m -4• oo co R z -co Co' _0 . P 0 W ccnn b3 = V) co II s%; >-- 2 iv\ f Q i � "` Q ON # IIII N / > N i;; V) cn Q 1,% 1--- CC f�, Z 140 A0 >-- 0 %0 CO cn O % o LN % I III 1 CO 1 N = 1 ' d Q. I- )._ ..__.- I__. W & W cr ~' D - cr W O N _J> - U3 U U _ >- cn CO X• a O u p N -COWti- I m tD W --1Z � in a Q FO- Q E5 C' _ !• d N IL I-- -up O - < CD CC N (Co 0 w CC CC 4 C r._ ( Cr)WD a- t- D 1- DU U0 1-1-i O W _ , 0 UU UU (n N Z U Q - - Z w co - Ct O O cn CO U < U < D 1-- CO I- 1.1.1 m (n J J I— J 1-- F- < J Q 1 < Q J J � = Q Q U) n- < a U) U) < u) Q Q < CO < CO m i/ N cD .� 00 cD z II% O J `` I to 1i' W N z j1 N 2 N � IA }- Q CO IA 0 'IAW W N 11 N > I '' LO 1 (n Q tIA V) Nz '°` 06 CLiQ o P > F- 6 o = 1 CO (/) (1) i w J Q (I) cr N 0 X 4 cc OG U- ui N• a e tD Mr. Richard Frye Oceanside 1250 74-5620A Palani Road Suite 200 Kailua-Kona, Hawaii 96740 Re: TMK Nos: (3) 7-9-12: 04 (3) 7-9-12: 11 (3) 8-1-04: 03 (3) 8-1-04: 56 Dear Mr. Frye: This letter is to acknowledge that 1250 Oceanside Partners, a Hawaii limited partnership, dba OCEANSIDE 1250 has obtained or acquired ownership or control of the Right(s)-of-Way for the entire length of the Bypass Highway and has satisfied the requirements as described in Paragraph 13 of that certain Development Agreement dated entered into by and between OCEANSIDE 1250 and the County of Hawaii. OCEANSIDE 1250 is hereby released from all further responsibilities and obligations with respect to said segment of the Bypass Highway. Very truly yours, COUNTY OF HAWAII EXHIBIT N -a~� /— ��^ _ `moi- 1�— _ • . _ / !-_i `. _ - - �_ \ 1.J �1 � .7--1,..-_ilv_ l, • - o- - ..- Cmo` ���- J: - i .,` -- • • .°: - `�:'.� _' _ �' c ..wahxy -1-:.-=--'-'.' '', - em -, -,,. , . ,.. , ,.,...,,, ,..,,,1- ....a -- ------- :;_,-..! -• ! r y h. V ►Z`� i it _ p • `: ' I" -tel• ...--• y. .�•►- .•.- +..d� \.� `.411N. --,";:r.)--:1-1--• a%?."• -...- •- ' _ \ G• �-fir_ �L' a.'�i - , ` .\ •�' �_ _�•�` �[sgw sN. em .%• 44,�. • -i'v�• - r `_ _ r 'fie .,4.1,�a� i L -- •,, �' L=2c'' - .. , - • .• a 4"140 .. � _- s • Ii. `..•/ �_ . '_�e ` `rte J`� \ +s 4,,J - C • _ _ J ,:5�!!M; � +syyl _ ,� wa b�K,.v �� B' }p}p��� '�yy�'�J � to d � C=.• �. ,s,���•- ��' ' ,i. ! _ �� �` r ,trK • '• ` t , P • r: r . � i. Y .,E- \ i —a • � ` _ ' � *Ci.:1:\-...7.: .''‘`•• ) i • r•ok - Ck 1 ' :. • I t wilkl .4 tom- 'r * t _, - _- T• • `•.1 - e . 4 ..t • /, EXHIBIT o Allocation of Fair-Sha sessments for the Proposed Mam 3 Bypass Road 44Y+r •'..-,'"''.:,:.'"..'"'..',:.,:*':*::::,".:.•;:.•,.:. .n X/ C T. 1 �F 7 S. f : 1).. � L w • =J >4. C: C' .. 1 \ ',a P .° +YAM, x<c CPa .: �C'' 44y�JJ4kx t,+k� " 4 ,' i• i4 Vii"` >`` : x 4 _ �Ay�• t <_ {i. �+y, r 'p er'k '',i.P.l.`•Y }.. C ) CC40 fW = rJ sw� �m ,- , • cu 4 ., L vJ in { Xmm , } Z i x O t9 P�3ayP ` ) �a� • q O m mai p tII '� • o0 � } ohm Z tal4 oc¢ �� 2U� o w x2 °re SU • x �' ' : COCI I — 111) co ' of ` x2 C O l9 �[ O Y 2UwO 3 . N i -( i 1- n cn 9m���� t l. ll2 go ° �° tl:�►1111IIIII 11111 a o E 1. ONS CKERHOFF EXHIBIT P t...7•- - i •' I 1' : .2".t.. \:•',-7•'::.""•;.. ... 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't. al.' ,,k.••• ,.\.„ - , ,N . .,•-4-.---- •-• , ,F...' ,.. / . - ,• •N \•- •-•'4 i .. .1 "Zr:•• ' rAti'. .,:.01' .• 1(7-2-• "I..' •'•••• "• ...,y.er-..- ...., _.,. .\ .?• r.•\5..„‘...• ). :N.;,.. 1 4-1 4:://r-4..1)"I' _thidi1 • • ''''' „„_V• '..,. .._••:_:,-%., ••4•--. '`..:4._ : _. -- ,a -' A „. N, ,,_, Jp,!. .(' ...1. -•••• 4•„,(.1...r., - --'1, ...,1 .._. -4 • • 1• A IS - , , ...j.-.................7 ,e1 ' ..'. • 5 . ' '•••'- - N. - • -1' tgi•'"I'L‘Cir..1- :-:-... . 1 _ • \ r--* • A.- ''.. • .4 7,,,,,•7; -...4 Nii 0 • ''' f...PCS", -'.%•'" -:.....\ .,.. _. L.-•• •• .-.,N %. ...: .. k.;_-__..: ....--'"_s 3. c • .4 .. ..t , .. - ..'•r- .-- - • Y -':- %-, ... 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( 7. •`- (('y , i-•--Z 1.... - r __,...... 1 ........„......isti. •• _,...._....,.....,,..1.. ..,.."....,,.... _,............ :,..„..., _.,747,..„„......v,.. ..„ ., _ . . . . • _ _ _. ,..t ,__:...„, . .... . ,4 .,t,.-,h.,4„--_- .... , ....,.. ...,/nt. , .. . _ --. 1... .. • -,...-....., -ei,: -'•`•_ .\. -i ,-%c 1\..-`.,----- tis, �g lec .•- ...,-,......A...,...... l ,' .-• > _ .uC. ..ynoana.c �. tw� �}/ �- n., -- " i� Ilitrdrigr s � � _ t `� 1 [J ; - .= :i NC. �, .\• _ • _ ' tt �-•' P►..T.„,,,..4.-.._. ...,.....„4,, a1MI” S BC . -. - � �S)� �.-- t - •,..�(I�' A . _w•.e`:2:p4,`,...„*"a �a�` l•,\- _r " 1� '',•-•:::.',--- -- • sr � �` `' �`v -/\ :_LY., k.-�,`i_'�,„--... Q ...,.':.4... .- _ �ksVtr T , 43'� 7 P • *As revitA.,„„ � \ < f s..L., •� a!" .- a � iO`K•� . c'f`' -` l ' � Y it-e_ r1r �\ , • . '.V0'44.1 A evi,:a174' .1.4 -. .. •1 ) , .v.,... .A...‘, ,.., ,,, ,,, fit, .... e. .. • -•- u • 1,1-W 11 - . AI lir -• 7772 COASTLINE PARK EXHIBIT K COUNTY OF HAWAII STATE OF HAWAII BILL NO. (Dr, ORDINANCE NO. _ 94 73 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND SECTION 25-88 (SOUTH KONA ZONE MAP) , (ZONING CODE) OF THE HAWAII COUNTYCODE, BYECHANG NGTTR.i.•25 DISTRICT CLASSIFICATION FROM AGRICULTURAL UNPLANNED (U) TO AGRICULTURAL (A-Sa) AND HOKUKANO 1ST 2ND, KANAUEUE(A-la) AT HONUAINO 3RD AND 4TH, AND 2ND, IANDAH NDN 1ST AND 2ND, HALEKII AKAU 1ST AND 2ND, KALUKALU 1ST, 2NDNAN 1ST AN 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA, Y TAX MAP KEY 7-9-06 : PORTION OF 1, 7_ HAWAII , COVERED By AND 8-1-04 : PORTION OF 3 . 9-12 : PORTIONS OF 3 , 4 , AND 5 BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1 . Section 25-87 , Article 3 , Chapter 25 (Zonin Code g of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows : The district classification of the following area situated at Kanaueue 1st and 2nd , North Kona , Hawaii , shall be Agricultural (A-la) : PARCEL 1 : Beginning at the Southeasterly corner of this land , being also a point on the Northerl paryel of Royal Patent 1670 to John D. Y boundary of Commission Award 387 , Parish on a portion of Land of Commissioners for Foreign4 �Missions Section 2 to being alsooaa point on the division between Noth and SouthKona , ta point coordinates of said point of beginningthe o Government Survey Triangulation StationrePUU OHArred U- being 1 , 704 . 58 feet North and 6 , 126 . 02 feet East and running by azimuths measured clockwise from True South: EXHIBIT S 1 . 71' 45 ' 902 . 30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point; 2 . 152° 14 ' 1, 055 . 02 feet along the remainder of Grant 865 to John Nakookoo to a point; Thence, for the next seven (7) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 3 . 251` 23 ' 30" 224 . 69 feet to a point ; 4 . 250° 35 ' 58 . 35 feet to a point ; 5 . 255 ° 17 ' 131 . 07 feet to a point ; 6 . 240° 43 ' 26 . 91 feet to a point; 7 . 257° 50 ' 172 . 57 -feet to a point ; 8 . 243 ` 13 ' 30" 21 . 91 feet to a point ; 9 . 256° 57 ' 98 . 95 feet to a point ; Thence , for the next twelve (12) courses following along middle of stonewall and along the remainder of Grant 865 to John Nakookoo : 10 . 338` 17 ' 30" 158 . 36 feet to a point ; 11 . 257" 24 ' 102 . 95 feet to a point ; 12 . 255" 40 ' 30" 171 . 35 feet to a point ; 13 . 261 ° 29 ' 101 . 46 feet to a point ; 14 . 346" 30 ' 30" 54 . 40 feet to a point ; 15 . 343 ° 21 ' 30" 152 . 40 feet to a point ; 16 . 346" 20 ' 165 . 46 feet to a point ; -2- 17 . 343 ° 29 ' 30' 80 . 88 feet to a point ; 18 . 3570 13 ' 57 . 51 feet to a point ; 19 . 345 ° 53 ' 30` 154 . 41 feet to a point ; 20 . 333 ° 53 ' 114 . 71 feet to a point ; 21 . 345 ° 43 ' 43 . 78 feet to the point of beginning and containing an area of 22 . 25J. Acres , more or less . (Refer to Parcel 1 as shown on Exhibit "A" . ) The district classification of the following area situated at Honuaino 3rd and 4th, Hokukano 1st and 2nd and Kanaueue 1st and 2nd , North Kona , Hawaii , shall be Agricultural (A-la ) : PARCEL 2 : Beginning at the Northwesterly corner of this parcel of land , being also a point on the Southerly boundary of Royal Patent 1098 , Land Commission Award 614 to Charles Hall , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUJU OHAU" being 5 , 408 . 20 feet North and 934 . 23 feet East and running by azimuths measured clockwise from True South : Thence , for the next sixty-seven ( 67) courses following along middle of stonewall and along Royal Patent 1098 , Land Commission Award 614 to Charles Hall : 1 . 172° 44 ' 35 . 46 feet to a point ; 2 . 250° 06 ' 26 . 01 feet to a point ; 3 . 245° 26 ' 19 . 20 feet to a point ; 4 . 251" 15 ' 39 . 58 feet to a point ; 5 . 259° 25 ' 18 . 68 feet to a point ; 6 . 246° 50 ' 16 . 35 feet to a point ; -3- 7 . 254 " 27 ' 40 . 28 feet to a point ; 8 . 323 " 16 ' 7 . 32 feet to a point ; 9 . 249 ° 32 ' 44 . 32 feet to a point; 10 . 265 ' 01 ' 30" 16 . 93 feet to a point ; 11 . 271" 10 ' 30" 50 . 61 feet to a point; 12 . 261 " 46 ' 30" 67 . 77 feet to a point ; 13 . 256 ' 32 ' 30" 36 . 61 feet to a point ; 14 . 262° . 38 ' 30 . 23 feet to a point ; 15 . 258 ` 17 ' 37 . 28 feet to a point ; 16 . 254 ° 45 ' 21 . 32 feet to a point ; 17 . 257' 35 ' 30 " 36 . 22 feet to a point ; 18 . 265 ° 03 ' 21 . 89 feet to a point ; 19 . 263 " 53 ' 30" 45 . 49 feet to a point ; 20 . 266 ' 14 ' 44 . 43 feet to a point ; 21 . 249 ° 07 ' 32 . 29 feet to a point ; 22 . 256 ' 49 ' 30" 41 . 74 feet to a point ; 23 . 250' 03 ' 30" 91 . 17 feet to a point ; 24 . 257° 28 ' 88 . 18 feet to a point ; 25 . 253 " 37 ' 30" 14 . 36 feet to a point ; 26 . 271° 49 ' 7 . 86 feet to a point ; 27 . 243 " 18 ' 30" 43 . 30 feet to a point ; 28 . 252 ' 36 ' 45 . 75 feet to a point ; 29 . 262" 29 ' 35 . 65 feet to a point ; 30 . 265 ' 31 ' 13 . 70 feet to a point ; 31 . 260' 35 ' 30" 76 . 29 feet to a point ; 32 . 268 " 05 ' 30" 59 . 53 feet to a point ; -4- 33 . 253 " 44 ' 30" 12 . 40 feet to a point; 34 . 259 ° 40 ' 25 . 69 feet to a point; 35 . 264 ° 02 ' 51 . 71 feet to a point; 36 . 259 ° 49 ' 30" 85 . 74 feet to a point ; 37 . 266 ° 56 ' 48 . 70 feet to a point ; 38 . 265 ° 44 ' 61 . 02 feet to a point ; 39 . 272 ° 05 ' 60 . 95 feet to a point ; 40 . 269 ° 19 ' 30" 91 . 04 feet to . a point ; 41 . 275 ° 29 ' 26 . 42 feet to a point ; 42 . 280° 52 ' 30" 26 . 76 feet to a point ; 43 . 272 ° 21 ' 30" 28 . 45 feet to a point ; 44 . 277 ° 12 ' 46 . 47 feet to a point ; 45 . 273 ° 22 ' 30" 84 . 54 feet to a point ; 46 . 273 ° 04 ' 30" 57 . 99 feet to a point ; 47 . 270° 29 • 30 . 67 feet to •a point ; 48 . 275 ° 46 ' 30" 91 . 01 feet to a point ; 49 . 267° 59 ' 30" 87 . 48 feet to a point ; 50 . 261° 05 ' 30" 28 . 16 feet to a point ; 51 . 266 ° 13 ' 128 . 24 feet to a point ; 52 . 270° 26 ' 114 . 47 feet to a point ; 53 . 260° 09 • 81 . 24 feet to a point ; 54 . 262° 27 ' 166 . 66 feet to a point ; 55 . 261° 97 ' 108 . 98 feet to a point ; 56 . 243 ° 34 ' 33 . 10 feet to a point ; 57 . 259 ° 14 ' 30" 37 . 03 feet to a point ; 58 . 265 " 34 ' 30" 77 . 10 feet to a point ; -5- 59 . 262' 59 ' 118 . 99 feet to a point; 60 . 256" 19 ' 39 . 78 feet to a point ; 61 . 262° 44 ' 82 . 08 feet to a point ; 62 . 267" 50 ' 34 . 11 feet to a point ; 63 . 265 ° 25 ' 63 . 09 feet to a point ; 64 . 273 " 36 ' 30" 112 . 92 feet to a point : 65 . 268 ° 50 ' • 151 . 03 feet to a point ; 66 . 274 °. 59 ' 30" 35 . 27 feet to a point ; 67 . 268 ° 30 ' 30" 48 . 40 feet to a point ; Thence, for the next three (3 ) courses following along the Westerly side of old railroad and along the remainder of Grant 2029 to S . W. Makahiki : 68 . 15 ' 00 ' 431 . 60 feet to a point ; 69 . 0" 23 ' 223 .30 feet to a point ; 70 . 333 " 44 ' 145 . 20 feet to a point ; Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Grant 1453 to John • Cavanah: 71 . 319 " 08 ' 63 . 63 feet to a point ; 72 . 327° 12 ' 30" 92 . 54 feet to a point ; 73 . 333 ° 41 ' 55 . 11 feet to a point ; 74 . 341 " 52 ' 42 . 41 feet to a point ; 75 . 350" 21 ' 65 . 77 feet to a point ; 76 . 357' 11 ' 30" 87 . 84 feet to a point ; 77 . 7" 46 ' 82 . 65 feet to a point ; -6- 1 78 . 17° 59 ' 209 . 88 feet along the Westerly side of old railroad and along the remainders of Grant 1453 to John Cavanah and Grant 1463 to Keawe to a point; Thence , for the next ten ( 10) courses following along the Westerly side of old railroad and along the remainder of Grant 1463 to Keawe : 79 . 15° 46 ' 30" 221 . 91 feet to a point ; 80 . 350° 40 ' 30" 86 . 03 feet to a point ; 81 . 346° 02 ' 30" 127 . 39 feet to a point ; 82 . 347° 43 ' 68 . 36 feet to a point ; 83 . 356 ° 37 ' 108 . 84 feet to a point ; 84 . 358 ° 09 ' 110 . 66 feet to a point ; 85 . 6 ' 27 ' 30" 75 . 31 feet to a point ; 86 . 357° 30 ' 30" 143 . 26 feet to a point ; 87 . 8 ' 45 ' 30" 30 . 57 feet to a point ; 88 . 359 ° 52 ' 108 . 27 feet to a point ; 89 . 265° 47 ' 29 . 79 feet along the remainder of Grant 1463 to Keawe to a point; Thence, for the next eight ( 8) courses following along the Easterly side of old railroad and along the remainder of Grant 1463 to Keawe : 90 . 357° 33 ' 107 . 96 feet to a point ; 91 . 352" 21 ' 72 . 88 feet to a point ; 92 . 356 ' 43 ' 30" 32 . 40 feet to a point ; 93 . 353 ' 27 ' 38 . 77 feet to a point ; _7_ 1 j 94 . 350° 36 ' 29 . 09 feet to a point ; 95 . 339° 51 ' 130 . 13 feet to a point ; 96 . 329 ° 39 ' 30" 32 . 22 feet to a point ; 97 . 326 ° 06 ' 51 . 01 feet to a point ; 98 . 324 ° 59 ' 10 . 48 feet along the Westerly face of stonewall and along the remainder of Royal Patent 5336 , Land Commission Award 9413 to Kahana to a point ; 99 . 320° 39 ' 115 . 81 feet along the remainder of Royal Patent 5336 , Land Commission Award 9413 to Kahana to a point ; 100 . 67° 26 ' 30" 92 . 41 feet along wire fence and along Grant 992 to W. Whitmarsh . to a point ; 101 . 70° 35 ' 63 . 69 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point ; 102 . 67° 10 ' 30" 124 . 47 feet along middle of stonewall and along Grant 992 to W. Whitmarsh to a point ; 103 . 72 ° 45 ' 45" 371 . 54 feet along Grant 992 to W. Whitmarsh to a point ; 104 . 79 ° 49 ' 199 . 17 feet along Grant 992 to W. Whitmarsh to a point ; Thence, for the next twenty-three (23 ) courses following along middle of stonewall and along Grant 992 to W. Whitmarsh: 105 . 82' 05 ' 30" 51 . 64 feet to a point ; 106 . 83 ' 18 ' 181 . 52 feet to a point ; - 8-- 107 . 84 ' 58 ' 30" 118 . 82 feet to a point ; 108 . 85 ° 30 ' 30" 145 . 13 feet to a point ; 109 . 91° 09 ' 79 . 55 feet to a point ; 110 . 82' 04 ' 95 . 77 feet to a point ; 111 . 82° 31 ' 45 " 212 . 72 feet to a point ; 112 . 359 ° 15 ' 512 . 31 feet to a point ; 113 . 268 ° 21 ' 280 . 72 feet to a point ; 114 . 259 ° 47 ' 379 . 67 feet to a point ; 115 . 260° 53 ' 149 . 26 feet to a point ; 116 . 259 ' 07 ' 153 . 59 feet to a point ; 117 . 266 ° 02 ' 30" 90 . 63 feet to a point ; 118 . 250° 32 ' 115 . 64 feet to a point ; 119 . 240° 54 ' 54 . 22 feet to a point ; 120 . 246 ° 41 ' 140 . 89 feet to a point ; 121 . 256 ° 30 ' 30" 95 . 53 feet to ' a point ; 122 . 240° 04 ' 30" 52 . 97 feet to a point ; 123 . 245 ° 12 ' 30" 66 . 16 feet to a point ; 124 . 257° 45 ' 30" 34 . 33 feet to a point ; 125 . 239 ' 59 ' 72 . 54 feet to a point ; 126 . 250° 39 ' 30" 70 . 76 feet to a point ; 127 . 246° 08 ' 111 . 93 feet to a point ; 128 . 332° 14 ' 1 , 055 . 02 feet along the remainder of Grant 865 to John Nakookoo to a point ; -9- Thence, for the next four (4 ) courses following along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions : 129 . 64 ° 12 ' 628 . 00 feet to a point; 130 . 79 ° 26 ' 602 . 00 feet to a point; 131. 77° 00 ' 987 . 00 feet to a point; 132 . 72° 13 ' 704 . 78 feet to a point; 133 . 154 ° 42 ' 918 . 93 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, following along the remainder of Grant 1587 to John Peters on a curve to the right with • a radius of 1, 030 . 00, the chord azimuth and distance being : 134 . 174 ° 32 ' 30" 699 . 21 feet to a point ; 135 . 194 ° 23 ' 350 . 20 feet along the remainder of Grant 1587 to John Peters to a point ; Thence, following along the remainders of Grant 1587 to John Peters and Grant 1463 to Keawe on a curve to the left with a radius of 1, 270 . 00 feet , the chord azimuth and distance being : 136 . 165° 33 ' 1 , 224 . 95 feet to a point; 137 . 136 ° 43 ' 68 . 92 feet along the remainder of Grant 1463 to Keawe to a point ; -10- Thence , following along the remainder of Grant 1463 to Keawe on a curve to the right with a radius of 1, 030 . 00 feet , the chord azimuth and distance being : 138 . 149 ° 59 ' 30" 473 . 03 feet to a point; 139 . 163 ° 16 ' 839 . 35 feet along the remainders of Grant 1463 to Keawe, Grant 1453 to John Cavanah and Grant 2029 to S. W. Makahiki to a point; Thence , following along the remainder of Grant 2029 to S . W. Makahiki on a curve to the left with a radius of 470 . 00 feet , the chord azimuth and distance being : • 140 . 136° 23 ' 15" 424 . 98 feet to a point; 141 . 165 ° 15 ' 189 . 91 feet along Grant 1651 to Charles Hall to the point of 'beginning and containing an area of 295 . 539 Acres . (Refer to Parcel 2 as shown on Exhibit "A" . ) SECTION 2 . Section 25-88 , Article 3 , Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows : The district classification of the following area situated at Halekii and Keekee 1st, South Kona , Hawaii , shall be Agricultural (A-la) : -11- PARCEL 3 : Beginning at the Northeasterly corner of this parcel of land , being also the Northwesterly corner of Lot 39 of Kona Scenic Subdivision, Unit II (File Plan 1591) and being a point on the Southerly boundary of Grant 865 to John Nakookoo , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 2 , 272 . 75 feet North and 8 , 616 . 61 feet East and running by azimuths measured clockwise from True South: 1 . 350° 44 ' 55" . 482 . 03 feet along Lots 39 , 38 , 37 , 36 , 35 and 34 of Kona Scenic Subdivision, Unit II (File Plan 1591) 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 American Board of Commissioners for Foreign Missions and along the Westerly end of Haleki ' i Street to a point; 2 . 78 ' 30 ' 470 . 15 feet along Lot 3 (Government Land - County of Hawaii ) to a point; 3 . 348 ° 30 ' 438 . 70 feet along Lot 3 (Government Land - County of Hawaii ) to a point ; 4 . 266 ` 28 ' 187 . 31 feet along Lot 3 (Government Land - County of Hawaii) to a point; Thence, for the next eleven ( 11) courses following along middle of stonewall : - 12- 5 . 4 " 59 ' 157 . 50 feet along Lots 22 and 21 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 6 . 17° 24 ' 30" 102 . 93 feet along Lots 21 and 20 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 7 . 7 ° 45 ' 30" 174 . 98 feet along Lots 20 and 19 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point ; 8 . 91' 17 ' 30" 56 . 46 feet along Lot 18 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; 9 . 355 ° 54 ' 30" 333 . 18 feet along Lots 18 and 17 of Keekee Estates (File Plan 2087) and along the remainder of Grant 977 to Panaunau to a point; Thence, for the next four (4 ) courses following along Grant 866 to Kapule: 10 . 86 ° 02 ' 30" 309 . 93 feet along Lot 2 to a point ; 11 . 80° 19 ' 207 . 35 feet along Lot 1 to a point; 12 . 75" 14 ' 183 . 86 feet along Lot 1 to a point ; 13 . 79 ° 02 ' 674 . 13 feet along Lot 1 to a point ; -13- 14 . 177° 38 ' 634 . 16 feet along the remainder of Grant 977 to Panaunau to a point; 15 . 75 ° 14 ' 1 , 338 . 05 feet along Grant 977 to Panaunau to a point; 16 . 150° 55 ' 956 . 00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land • Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point; 17 . 251° 45 ' 902 . 30 feet along Grant 865 to John Nakookoo to a point; Thence, for the next thirty-six (36) courses following along middle of stonewall - and along Grant 865 to John • Nakookoo : 18 . 250° 02 ' 30" 41 . 72 feet to a point; 19 . 238° 11 ' 30" 99 . 82 feet to a point ; 20 . 246° 13 ' 93 .37 feet to a point; 21. 253 ° 29 ' 121. 82 feet to a point ; 22 . 257° 51 ' 121 . 61 feet to a point; 23 . 249° 33 ' 59 . 76 feet to a point; 24 . 245° 51 ' 177 . 23 feet to a point ; 25 . 248 ° 02 ' 30" 92 . 17 feet to a point; 26 . 240° 26 ' 30" 60 . 37 feet to a point ; 27 . 254 ° 58 ' 110 . 46 feet to a point ; 28 . 258° 29 ' 24 . 30 feet to a point ; -14- n 29 . 274 " 56 ' 30" 31 . 91 feet to a point; 30 . 260° 18 ' 30" 148 . 31 feet to a point; 31 . 253 " 43 ' 47 . 09 feet to a point ; 32 . 243 ° 21 ' 30 " 89 . 60 feet to a point ; 33 . 263 ° 53 ' 30" 70 . 49 feet to a point ; 34 . 254 ° 39 • 30" 21 . 88 feet to a point ; 35 . 269° 41 ' 41 . 10 feet to a point; 36 . 288° 24 ' 45 . 97 feet to a point ; 37 . 255° 29 ' 30" 27 . 38 feet to a point ; 38 . 241° 21 ' 30 . 35 feet to a point; 39 . 227° 12 ' 30" 53 . 91 feet to a point ; 40 . 216° 24 ' 30" 55 . 73 feet to a point; 41 . 238 ° 55 ' 30 " 27 . 24 feet to a point; 42 . 255 ° 23 ' 30" 29 . 74 feet to a point; 43 . 271° 22 ' 69 . 73 feet to 'a point ; 44 . 265 ° 04 ' 29 . 52 feet to a point; 45 . 275° 29 ' 30" 98 . 69 feet to a point; 46 . 271° 04 ' 85 . 71 feet to a point; 47 . 277 ° 42 ' 30" 71 . 32 feet to a point ; 48 . 269 ° 46 ' 21 . 84 feet to a point ; 49 . 270° 48 ' 110 . 24 feet to a point; 50 . 268° 22 ' 91 . 02 feet to a point; 51 . 258° 19 ' 92 . 53 feet to a point ; 52 . 270" 26 ' 57 . 58 feet to a point ; -15- 53 . 265 ` 38 ' 177 . 70 feet to the point of beginning and containing an area of 94 . 387 Acres , more or less . (Refer to Pacel 3 as shown on Exhibit "A" . ) The district classification of the following area situated at Halekii , Keekee 1st and 2nd, Ilikahi , Kanakau - 1st and 2nd , Kalukalu 1st, . 2nd, and 3rd and Onouli 1st , South Kona , Hawaii , shall be Agricultural (A-la) : PARCEL 4 : Beginning at the Southeasterly corner of this parcel of land , being also a point on the Northerly boundary of Grant 1162 to F. O. Schulze, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 4 , 046 . 78 feet South and 6 , 502 . 93 feet East and running by azimuths measured clockwise from True South : 1 . 65° 45 ' 54 " 1, 071. 96 feet along middle of stonewall and along Grant 1162 to F. O. Schulze to a point; 2 . 78 ° 08 ' 30" 1, 407 . 43 feet along middle of stonewall and along Grant 1162 to F. O . Schulze to a point; Thence, for the next three (3 ) courses following along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole: 3 . 203 ° 12 ' 488 . 09 feet to a point; Thence , following on a curve to the left with a radius of 870 . 00 feet , the chord azimuth and distance being : - 16- 4 . 172` 50 ' 30" 879 . 41 feet to a point ; 5 . 142° 29 ' 272 . 49 feet to a point ; Thence, following along the remainders of Royal Patents 4386 and 7146, Land Commission Award 8452 to A. Keohokalole, Grant 1160 to H. N. Greenwell , and Grant 1576 to Lohi on a curve to the right with a radius of 1, 130 . 00 feet, the chord azimuth and distance being : 6 . 169 ° 47 ' 1 , 036 . 55 feet to a point ; 7 . 197° 05 ' 307 . 17 feet along the remainders of Grant 1576 to Lohi and Grant 1464 to Ialua to a point ; Thence, following along the remainder of Grant 1464 to Ialua on a curve to the left with a radius of 645 . 00 feet, the chord azimuth and distance being : 8 . 183 ° 07 ' 311 . 35 feet to a point ; 9 . 169 ° 09 ' 54 . 98 feet along the remainder of Grant 1464 to Ialua to a point ; Thence , following along the remainders of Grant 1464 to Ialua and Grant 1175 to Nakauwaa on a curve to the right with a radius of 705 . 00 feet, the chord azimuth and distance being : 10 . 186° 06 ' 411 . 07 feet to a point ; -17- 11 . 203 ° 03 ' 162 . 63 feet along the remainder of Grant 1175 to Nakauwaa to a point ; Thence, following along the remainder of Grant 1175 to Nakauwaa and Grant 1177 to Kamakahiona on a curve to the left with a radius of 645 . 00 feet, the chord azimuth and distance being : 12 . 186° 42 ' 30" 362 . 96 feet to a point ; 13 . 170° 22 ' 60 . 05 feet along the remainder of Grant 1177 to Kamakahiona to a point ; Thence , following along the remainders of Grant 1177 to Kamakahiona and Grant 1176 to Kini on a curve to the right with a radius of 705 . 00 feet, the chord azimuth and distance being : • 14 . 186° 12 ' 384 . 70 feet to a point; Thence, for the next five (5) courses following along the remainder of Grant 1176 to Kini : 15 . 202° 02 ' 35 . 26 feet to a point ; Thence, following on a curve to the left with a radius of 30 . 00 fee€ , the chord azimuth and distance being : 16 . 157" 02 ' 42 . 43 feet to a point ; 17 . 112° 02 ' 85 . 32 feet to a point ; Thence, following on a curve to the left with a radius of 645 . 00 feet , the chord azimuth and distance being : 18 . 97" 14 ' 329 . 53 feet to a point ; 19 . 82° 26 ' 397 . 26 feet to a point ; -18- Thence, following along the remainders of Grant 1176 to Kini and Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions on a curve to the right with a radius of 705 . 00 feet , the chord azimuth and distance being : 20 . 118 " 34 ' 831 . 43 feet to a point ; 21 . 154 ` 42 ' • 342 . 97 feet along the remainder of Royal Patent 1670 to John D . Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point ; 22 . 252 ° 13 ' 704 . 78 feet along Grant 1587 to John Peters and Grant 865 to John Nakookoo to a point ; Thence, for the next three (3) courses following along Grant 865 to John Nakookoo : 23 . 257" 00 ' 987 . 00 feet to a point ; 24 . 259 ' 26 ' 602 . 00 feet to a point ; 25 . 244 " 12 ' 628 . 00 feet to a point ; 26 . 330' 55 ' 956 . 00 feet along the remainder of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point ; - 19- I 27 . 255" 14 ' 1, 338 . 05 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387 , Part 4 , Section 2 to American Board of Commissioners for Foreign Missions to a point ; 28 . 357" 38 ' 634 . 16 feet along Grant 977 to Panaunau to a point ; 29 . 76" 40 ' 30" 1, 596 . 74 feet along Grant 1177 to Kamakahiona to a point; 30 . 76 " 40 ' 30" 44 . 81 feet along Grant 1177 to Kamakahiona to a point ; Thence, for the next six ( 6 ) courses following along the Westerly side of old railroad : 31 . 353 ` 25 ' 54 . 23 feet to a point ; 32 . 346" 06 ' 95 . 32 feet to a point ; 33 . 342' 16 ' 30" 289 . 54 feet to a point ; 34 . 341 ` 04 ' 132 . 29 feet to a point; 35 . 345" 33 ' 48 . 71 feet along the remainders of Grant 1177 to Kamakahiona and Grant 1175 to Nakauwaa to . a point ; Thence, for the next six ( 6) courses following along the remainder of Grant 1175 to Nakauwaa : 36 . 350` 55 ' 30" 47 . 80 feet to a point ; 37 . 260` 45 ' 8 . 34 feet to a point ; Thence , for the next four (4 ) courses following along the Westerly face of stonewall and along the Easterly side of old railroad : -20- 38 . 353 ` 43 ' 30- 58 . 69 feet to a point; 39 . 1 ' 03 ' 30" 50 . 75 feet to a point; 40 . 4 ' 06 ' 30` 32 . 09 feet to a point; 41 . 9 ` 18 ' 30- 46 . 75 feet to a point; Thence , for the next four (4 ) courses following along the Northerly face of stonewall : 42 . 79 ' 50 ' 28 . 51 feet along Grant 787 to H . N. Greenwell to a point; 43 . 63 ' 01 ' 30` 205 . 62 feet along Grant 787 to H . N. Greenwell to a point ; Thence , for the next twenty-six (26) courses following along the remainder of Grant 787 to H. N. Greenwell : 44 . 58 ' 15 ' 190 . 84 feet to a point; 45 . 95° 12 ' 30" 36 . 26 feet to a point; Thence , for the next ten ( 10) courses following along the Westerly face of stonewall : 46 . 340" 55 ' 30- 51 . 47 feet to a point; 47 . 336point; 12 ' 30- 95 . 40 feet to a . 48 . 340" 54 ' 85 . 38 feet to a point; 49 . 338" 48 ' 30- 46 . 81 feet to a point; 50 . 342` 23 ' 65 . 75 feet to a point; 51 . 334 ' 35 ' 30- 65 . 95 feet to a point ; 52 . 332' 23 ' 82 . 87 feet to a point ; 53 . 324 ' 00 ' 11 . 13 feet to a point; 54 . 332" 36 ' 30" 113 . 50 feet to a point; -21- i n 55 . 347" 43 ' 24 . 68 feet to a point; Thence, for the next four (4 ) courses following along the Westerly side of old railroad : 56 . 338' 19 ' 61 . 45 feet to a point; 57 . 327" 39 ' 30" 17 . 91 feet to a point ; 58 . 347" 16 ' 94 . 25 feet to a _ point ; 59 . 344 ` 55 ' 30" 113 . 58 feet to a point; 60 . 267`. 05 ' 30" 16 . 83 feet to. a point; Thence, for the next six (6) courses following along middle of stonewall : 61 . 341` 48 ' 30" 54 . 25 feet to a point ; 62 . 346" 24 ' 30" 109 . 52 feet to a point; 63 . 330" 20 ' 62 . 30 feet to a point; 64 . 336" 48 ' 111 . 89 feet to a point; 65 . 325` 21 ' 106 . 90 feet to a point; 66 . 62 ` 18 ' 30" 29 . 22 feet to a point ; Thence, for the next three (3 ) courses following along Westerly face of stonewall : 67 . 337" 28 ' 30" 112 . 46 feet to a point ; 68 . 337 " 08 ' 183 . 98 feet to a point ; 69 . 337 ' 36 ' 30- 153 . 52 feet to a point ; 70 . 254 ` 02 ' 30" 25 . 45 feet along the Southerly face of stonewall and along Grant 787 to H . N . Greenwell to a point ; -22- Thence, for the next seven (7) courses following along the Westerly side of old railroad and along the remainder of Royal Patents 4386 and 7146 , Land Commission Award 8452 to A. Keohokalole : 71 . 338` 26 ' 168 . 87 feet to a point; 72 . 337 39 • 153 . 12 feet to a point; 73 . 335" 16 ' 30" 329 . 74 feet to a point; 74 . 336 ° 16 ' 30" 122 . 94 feet to a point; 75 . 334 ` 38 ' 30" 193 . 93 feet to a point ; 76 . 335" S9 • 267 . 46 feet to a point; 77 . 329 ` 13 ' 30- 141 . 50 feet to the point of beginning and containing an area of 271. 415 Acres . (Refer to Parcel 4 as shown on Exhibit "A" . ) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof (herein after referred to as "subject property" ) , SECTION 3 . These changes in district classification are conditioned upon the following : (A) The applicant , successors or assigns shall be responsible for complying with all of the stated conditions of approva (B) The effective date of the rezoning shall be upon : ( 1) the execution of an agreement between the applicant , Lyle Anderson, and the County through its Department of Water Supply and Planning , to assign water commitment rights in the Kealakekua Source Agreement -23- to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the DepartmenL of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty ( 180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within fourq ( ) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B . For the purpose of this ordinance, Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall be constructed in a manner meeting with the approval of the State Department of Health and/or the Department of Public Works , whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground , with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; -24 - (F) A Flood Study of the subject property shall be, submi the Planning Department in tted conjunction with plans submitt for subdivision review for any portion of the sub 'ec property. Drainage improvements � t shall be constructed in manner meeting with the approval of the Department of Public Works , prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be 'Prepared and submitted for approval by the Planning Director , in consultation with the Department of Land and Natural Resources-Historic Preservation Division , prior to submitting plans for subdivision review. consist of three subplans : The Plan shall ( 1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to undergo preservation, and (3 ) an interpretation plan which shall include buffer zones , signage and long-range preservation concerns which may be submitted at a later date . Approved mitigation measures shall be implemented prior to or in conjunction with any land alterations within the subject property; (H) The applicant shall be responsible to comply with Condition No . 8 of SMA Permit No . 345 issued to the applicant on November 5 , 1993 ; 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 -25- shall be responsible to comply with the following terms ar conditions : (1) The applicant shall develop and submit a comprehensiv public shoreline access plan for the subject propert and the properties described in the SMA Permit y No . 345 , subject to the review and approval by the Planning Director, in consultation with the Departmen of Land and Natural Resources , prior to Final Subdivision Approval , or any land alteration activity whichever comes first;. (2) 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; (3) No more than a total land area of twelve ( 12) acres shall be permitted to be constructed , operated and maintained as part of the applicant ' s golf course , approved as Use Permit No . 115 , and included within the coastline park or the existing conservation district lands ; (4 ) 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 -26- gathering purposes over designated vehicular and pedestrian access routes subject to restrictions whic limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike; and (5) The public shoreline access plan shall also integrate 4.nere appropriate, any public accesswayks) to interpretive trail system(s) and to the historical anc archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources and in conjunction with the detail mitigation plan for the park area situated in the Conservation district . ( Z) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of the coastline park and trails ; provided, that restrictions in accordance with Chapter 115 , Hawaii Revised Statutes , will be allowed to be established by the applicant , subject to the approval of the Planning Director, to promote public health and safety and the general security of the -premises for residents and guest of the project to protect the areas ' pristine condition, and to minimize any liability to the applicant , pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall own the coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordance with the above terms and conditions ; -27- n (J) Should any unidentified sites or remains such as artifacts shell , bone, or charcoal deposits , human burials , rock or coral alignments , ered pavings or walls be encountered, work in the immediate area shall cease and the Planning Director shall be immediately notified . Subsequent work shall proceed upon an archaeological clearance from the Planning Director when it finds that sufficient mitigative measures have been taken; (K) A solid waste management plan shall be prepared meeting with the approval of the s Department of Public Works prior to submitting plans for subdivision review . The Plan shall include , but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works ; (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 : ( 1) construct the channelization and signalization of the Mamalahoa Highway-Haleki ' i Street intersection ; (2) determine the final right-of-way alignment of the entire Mamalahoa Bypass road as shown in Exhibit 'C` , including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed -28- necessary by the Planning Director . In lieu of the applicant obtaining or acquiring ownership or control of any segment within the Phase Two portion of the Mamalahoa Bypass road , the requirement shall be deemed fulfilled up, the county ' s formal initiation of condemnation action such segments and an a 9 reement has been entered into for between the applicantto and the county providing for the applicant ' s reimbursement to the county for the acquisitic of the lands condemned; (3 ) construct Phase One of the Mamalahoa Bypass , as showr in Exhibit "C" , consisting of two lanes with sufficient right-of-way for a total of four lanes ; (4 ) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass ; (5) construct the extension of Haleki ' i Street through th subject property as generally reflected in Exhibit "B" , which phasing of improvements shall be approved by the Department of Public Works . A barricade or breakaway gate, meeting with the requirements of the Department of Public Works , shall be installed by the applicant as part of the required Haleki ' i Street improvements prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first . The purpose of this conditior is to prevent the use of Haleki ' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and the Phase 1 section of the Mamalahoa Highway Bypass until the entire proposed Bypass has been completed and opened for general public use; and -29- (6) provide roadway stub-outs , generally shown in Exhibit "B" , to provide future connections between the subject property, the Alii Highway, and southern extensions there from; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public *Works . The applicant shall construct the Mamalahoa Bypass to State Department of Transportation-Highways Division standards for a• regional arterial bypass highway or segments thereof , and shall provide a landscape buffer along highway sections within five hundred feet of existing dwelling , as required by the chief engineer , to reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations . Roadway segments providing the bypass ' s connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials , pursuant to Chatper 23 of the Hawaii County Code, instead of the State DOT standards for major arterials , in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways ; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction , land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the By-pass Highway and which funds are available to the county for such purpose; and provided further , that the total amount of reimbursement due to the applicant shall not exceed the -30- total cost of land acquisition, design and construction the Bypass Highway incurred bythe applicant, less the rata portion attributed to the subject property; (M) Prior to Final Subdivision Approval of any portion wit Area 2 as shown in Exhibit 'D- except for the golf hi cours golf clubhouse, lodge, and related facilities , the applicant shall : ( 1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes a shown in Exhibit `C' , meeting with the approval of Department of Public Works , in consultation with the State Department of Transportation-Highways Divisio1 and (2) complete the construction of the Mamalahoa Bypass • channelization improvements at its intersection witt Mamalohoa Highway and Napo ' opo ' o Road , meeting with the requirements of the Department of Public Works , consultation with the State Department of Transportation-Highways Division; • (N) All roadway improvements stated in Condition L and M of this ordinance shall be dedicated to the appropriate government entity. Those improvements associated with tui Mamalahoa Highway Bypass shall be offered to the State Director of Transportation pursuant to Section 264-1 of t Hawaii Revised Statutes . Any connector roadways , and any protion of the Mamalahoa Highway Bypass not accepted by t State Director of Transportation shall be dedicated to th County, as provided by law; -31- (0) To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide a maximum of two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. (P) In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, I: L, and M, the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond , surety or other security deemed acceptable to the Planning Director and the Corporation Counsel . Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements ; (Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation , provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts , as required in Conditions L and M; (R) It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval . For the purpose of this condition , -agriculture" shall be defined as the cultivation of crops , including but not limited to flowers , vegetable , foliage, and fruits that are propagated for economic or personal use . An agricultural activity will be considered satisfactory: (1) if such activity is implementing a conservation program for the affected the a ProPerty( ies) , as approved pplicable soil and water conservation dist directors and filed with the Soil Conservati Sect on Servic (2) if it provides a source of income reside on to the person(s) wh the property; or (3 ) if the property is dedicated for a accordance with a griculture uses in pplicable Tax Department procedures and that such agriculture dedication deed covenant and dulyshall be made recorded witha of Conveyances and a the State Bureau copy of the recorded deeds shall be filed with the Planning Department w' from1 thin date of Final Subdivision A one year the pproval , Each approved lot must •• comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; (S) Restrictive covenants in the deeds of all shall prohibit the construction of a the proposed lots on each lot ; second dwelling unit provided that this shall not construction of a Preclude the guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant (s) to be recorded with the Bureau shall be submitted to the of Conveyances Planning Department for review and approval prior to final subdivision of the approved covenant shall be recited approval . A copy in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise Prior to final subdivision approval ; -33- • (T) The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police , solid waste disposal facilities , sewer and roads . The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted . The fair share contributions described :,elow shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI) . The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone . The fair share contribution in a form of cash , land , facilities , or any combination thereof shall have a maximum combined value of $ 4 , 701 , 205 . 74 . In lieu of paying the fair share contribution , the applicant may construct such improvements/facilities related to park, fire, police , solid waste disposal facilities , sewers and roads with the approval of the appropriate agency( ies) . Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall , at the applicant ' s request be credited towards any of the applicant ' s future developments that require infrastructural impact contributions ; (U) The Applicant shall conform, to the best extent practicable , with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code , in the construction of dwellings within the subject property; -34 - (V) In the event that the State Department of Education an educational facilities impact fee programadop. ram shall participateP g the applicz in the requirements of the program; , (W) Comply with all applicable laws , rules , regulations and requirements, including those of the Department ofal Fire, and the Department of Water Supply; Health • (X) Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees , conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (Y) An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval . This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and , (Z) An extension of time for the performance of conditions within the ordinance, with the exception of Condition C. may be granted by the Planning Director upon the following circumstances : ( 1) the non-performance is the result of conditions that could not have been foreseen or are beyond the contro] of the applicant , successors or assigns , and that are not the result of their fault or negligence ; (2) granting of the time extension would not be contrary to the General Plan or Zoning Code ; -35- t (3 ) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; • (4) the time extension granted shall be for a period not to exceed the period originally granted for performance ( i . e . , a condition to be performed within one year may be extended for up to one addi.ional year) ; and (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant ' s request to the County Council for appropriate action . Further , should any of the conditions not be met or substantially complied with in a timely fashion , the Director shall initiate rezoning of the area to its original or more appropriate designation. SECTION 4 . In the event that any portion of the ordinance is aclared invalid , such invalidity shall not affect the other parts E this ordinance . -36- SECTION 5 . This ordinance shall take effect upon its approval INTRODUCED BY: • COUNCIL MEMBER, COUNTY 0m1 HAhIA I I Hilo, Hawaii Date of Introduction : May 11 , 1994 Date of 1st Reading : May 11 . 1994 Date of 2nd Reading : June 15 , 1994 Effective Date : June 28 , 1994 APPROVED AS TO FORM AND LEGALITY: • -tiCORPORATION COUNSEL DATED: //G 9 -37- J ROBIN I.YAHDCU • %ter' y ate.+ / 41V4M j' !: CONSTAN BOBBY JEAN LE OFFICE OF THE COUNTY CLERK County of I-/aw i Hawaii County Building 25 Aupuni Strcct Hilo. Hawaii 96720 NQI On Bill No . 182, Dr. 6, Ordinance No . 94-73 , reference is made to map attached hereto, marked Exhibit ` A Said Exhibit is not part of the duplicate copies of this ordinance, due to its size, but is available .for viewing in the Office of the County Clerk. • If further information is needed , call 961-8255 . i_ i ' . ...: 5icsi; 'ob. . J Yahiku •UNTY CLERK c = z z , ►-- u, - � --\ S • '1 O x I- - , ! - t (.1) w (f) • .,a -.) • - s _ . . — _ - _ J = • ,... .•____L=TIRS 1..- sl (• , -.N.„ „ ) .,),,- •• : . __ _ 1,-LA . 14-. j . • ' Irkifs:rj _ _ _ 1- ..t ;1.1 t-- . '••• / - ' \SPA Is4-".t.':-.: 'I.\ I - • 31. : ..::). 1) a 9 1. ii /t • it d ,; r �` .1•%.- :)•W i ; ;) 4 I,k. . 1 •;,-.1)' ...r. ifi:•*;L.41 '114.5"iftterMdt -,12-.60v.-a V.0,-.-ir 744.`� -; 1�i>/„. i +_�1/•ice/ �L�/j,. %v;MM `, , war-041.1 ipi, • �'ie C' r, �"+;� r �! (• � '.'. \;' `1\ •'�jr�e�,Is.� .. � ,{,moi / ;Yr? / ,1,�,• �• 110011.16 �ti��...D.P,4gEravii - :111, - '.---A. 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I ....7.N.,- . ••I : ' • Ut.'IL../E• IV VI,\2: -f ' ' ' . .- i ..1 ''-.4,-.‘'. 't Ziii I o /._... ._ • • '-': -1::,:.-,..- - , .0 . - % rte{ - J '- / T • �.•—, • ., .. ., �.Y.� . `` ,' I;�� X11 i i /1 .. • • -1_F: '----( -(-1 1 r.t .7 . 1 ��; -__ ice` • --1.4 f:::: '• :I..—._-_ 1. )s\'e( j ,, ;' .'':Ni., • -,.....••/••1/-?• OFFICE OF THE COUNTY CLERK .- - County of Hawaii " Hilo , Hawaii °1; ( .. - 3 F1 -; .. ( DRAFT 5 ) ROLL CALL VOTE cd By. Takashi Domingo oducad: May 11 , 1994 AYES NOES ABS EX din g: Hay 11 , 1994AIa 111131.1111111111.111111111 3: NA sOrnc-ABRAM sON CHLLDS X . DE LIMA _ 11 ; 1994 - Deferred DOM[NGO X HALE _ . RA - ROSEHILL - SCH TTE ,_411lMllMIIIIIIIIIIIIII n ( DRAFT 6 ) :aging: June 15 , 1994 • ROLL June 15 . 1 994 'VOTE June 28 , 1994 AYES June 28 , 1994 NOES AIIS EX • X July 7 , 1994 BONK_ABR .MSON X CHIL.DS DE LIMA X DOMINGO X HALE X RAIN X ROSEHILL x SCHLITTE X 5 4 D J HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as above. <0011, 'PROVED as Io tA ond LEG • LITY �� V // J COUNCIL CHAIRMAN O;tA110N Courts .<-9 } r^/�'. UNTY OF HAWAII J l I • , /(/ COU C Di. this _ day . , 19 `_SF OUNTY F HAWAII Bill No.: l C 2 I Dra f t 6 ; '' u J RG H ,) . N u A H 7 2ND J N u 1.4N o NG 6O:Z� 6 L 1 ti N eo: Ilk ). „I, � ------ . . 0 7 r 6 s 90— -L e PO.9p-6-L V 1 L e rl v u t a 4, oe SO:90-6—L , L f rl u u t A 7 r 61-.90-6—L - limaLO:90-6—L r"•" ..r•-•• • 'r A W A N u • 2 /y G Y ° )1, St 90-6-1 o� Xi �. �.. d ct I s \ --\ ' .4� ,. Sp:SO'6_L 0 o ,k- U / -=1 7 c, s � i C.-1 m .47J -\ / r o e .y ^` be.50,6-` ••41,y J 0. o / ill 90:S0-6-LHJ / al ipIIr s i -•, j� /,/ Otri r I'4 L-11 of t 'r F p of ..g1 U 6„) e i� r/ O -I. Li V a0 --.:L_ o ch Ci o /VcD N 1 Nr.0 /;"fro \ IJ 1 1( :1wit I. neeigiligi C ., 4 ... . x-11 - ,4.1,.....------- L______ po , 4....-- .., Nikir'"1-'!, a .. II iv, O v y c., cr) it m co 1f ap,pplir 0 o of o �' I ci -y, I / I O a I 1-- • col O \I v. • I rto CO ).'''''''''''---. . r n ,tr T- 0 O r d ^ I y w ff CO 1 \ 1�C` O N r \' If - IA Q IA _________..2. o col *Nil7 4'118/ Z r� 1-2 I i----•---................ 7Y \ r 1nw 4 oN I r m �Lair 7 V b \ .1. `J N v N o N Era / I_ ( ., 0 ��.r S Al .. A. �4111111111%� i - ••\ IIIIIIIID ilii t y ) a \ 1111111111ridiLU: .1 minium ����$ \ nulunu►���ia 3 ' \ o N 1111111 ///q4i \•• x • 1 y OAI Y \ t N 1 p d d r a o x iy 1 S a21 �s� \ s n N---"----- '-_l / \ C`.\ v N Y '90 , ,J L, epi x Q Q N O h 7 N• I Y Q / T \ Q \ n N ' O h h C .Z .Z.:,... .. c, \ EXHIBIT 6 Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law Electronically Filed A Law Corporation THIRD CIRCUIT 3CCV-23-0000123 KENNETH R. KUPCHAK 1085-0 31-MAR-2023 TOREN K. YAMAMOTO 11520-0 01:33 PM 1003 Bishop Street, Suite 1600 Dkt. 1 CMPS Honolulu, Hawaii 96813 www.hawaiilawyer.com Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Plaintiff C &J COUPE FAMILY LIMITED PARTNERSHIP IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C & J COUPE FAMILY LIMITED ) CIVIL NO. PARTNERSHIP, ) ) COMPLAINT FOR DECLARATORY Plaintiff, ) AND INJUNCTIVE RELIEF; ) APPENDICES "A"— "B"; SUMMONS vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COMES NOW Plaintiff C & J FAMILY PARTNERSHIP ("Plaintiff'), and for claims against Defendants COUNTY OF HAWAII; COUNTY OF HAWAII, PLANNING DEPARTMENT; ZENDO KERN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE EXHIBIT 6 COUNTY OF HAWAII, PLANNING DEPARTMENT (collectively "County" or "County Defendants"); 1250 OCEANSIDE LLC ("Oceanside"); JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10 alleges and avers as follows: INTRODUCTION L Oceanside Breaches Promise to Create and Dedicate Three Standard Public Road Segments. 1. Decades ago Oceanside) promised the people of the Big Island, among other things, to design, construct and dedicate to County three new public road segments — all to the express requirements of County standards. 2. Not only has Oceanside failed to do so, but they and County appear to have actively attempted to circumvent and/or ignore these obligations which are specifically required by at least two zoning ordinances and a development agreement, all of which, by law, were adopted by the County Council and signed by the Mayor. 3. Specifically, in 1996, Oceanside received two rezoning's for 711.2 acres of land (more or less)just South of Keauhou (the "Hokulia Lands"), in the form of Ordinance No. 96-8 and Ordinance 96-7 (signed into law by the Mayor on January 15, 1996). The rezoning of Hokulia Lands, granted by Ordinance No. 96-8 and Ordinance 96-7, made it possible for Oceanside to begin developing a high-end luxury golf-course and ocean viewing residential development which would be situated on said rezoned land ("Hokulia"). 4. Ordinance No. 96-8 and Ordinance 96-7 were later incorporated by reference into a development agreement entered into between Oceanside and County Defendant, recorded in the State of Hawaii Bureau of Conveyances on April 30, 1998 ("Development Agreement"). Oceanside's predecessor in interest 1250 Oceanside Partners, a Hawaii limited partnership, dba Oceanside 1250, had been responsible for actions prior to 2008. Oceanside as we now know it picked up all responsibilities and requirements under the Development Agreement. 2 710088 5. At issue here, Ordinances No. 96-8 and 96-7 required Oceanside, at its sole expense, to design and build, to the dedicable County standards specified under Chapter 23 of the Hawaii County Code, three roadways as located on Exhibit "B" to Ordinance 96-8, attached hereto and incorporated herein, as Appendix "A": a. a North-South Connector Road(the "Connector Road"), b. an extension of the Halekii Street from the end of the then public portion thereof to the Mauka side of Mamalahoa By-Pass ("Mauka Halekii Extension"); and c. a continuation of Halekii Street Makai of the Mamalahoa By-Pass ("Makai Halekii Extension"). 6. All three of these roadways (collectively "Required Public Roads") are expressly required, under the Development Agreement and Ordinances No. 96-8 and 96-7, to be dedicated to County. 7. In order to accommodate for the impact of Hokulia and its anticipated influence on the population of Kona, County required the dedication of Required Public Roads as important public infrastructure; and, Oceanside, anticipating a significant development timeframe and a lengthy absorption period for sale of the luxury residences to be developed on Hokulia Lands, sought to freeze the zoning obtained in Ordinance 96-8 and 96-7, to ensure their would-be purchasers that the zoning would remain intact. 8. State law (see Haw. Rev. Stat. § 46-121) offers a legal tool which can toll a county's rezoning hand, often referred to as a development agreement. In order to justify the staying of government action under a development agreement, a county is to receive material consideration often including developers creating public infrastructure which inter alia, might help to defray the burden imposed on the county to ameliorate changes in the community influenced by the contemplated development. 3 710088 9. Oceanside and County entered into and recorded a Development Agreement on April 30, 1998, which incorporated by reference the County of Hawaii Ordinance No. 96-8 and 96-7 (hereinafter the "Incorporated Ordinances"). Under the Development Agreement, the Required Public Roads are among the specific consideration promised by Oceanside to justify County's agreement to freeze the then existing land use controls on Hokulia Land. Such roadways were to be built to County standards at Oceanside's sole expense and dedicated as public infrastructure to County. 10. Now, 25 years later, while County has made no efforts to unilaterally change or undo the zoning freeze under the Development Agreement (i.e. keeping the zoning for the development untouched), it has come to Plaintiffs attention that County and Oceanside have not complied with a number of the key terms of the bargain, causing a material failure of the considerations of the Development Agreement and Incorporated Ordinances. 11. Despite the requirements in the Development Agreement and Incorporated Ordinances to have the Required Public Roads built for dedication to the County, the roads have not been built to dedicable County standards, specifically, those prescribed in Section 23-86. 12. The dedication of Required Public Roads has also yet to be effectuated, despite the Development Agreement's impending end date. Additionally, Oceanside has erected a guard facility on the Makai Halekii Extension (the "Guard Facility") in attempts to privatize the community and, for too long, deprive the public free, unfettered access to these public roads. 13. Thus, not only has Oceanside (while avoiding incurring millions of dollars in construction costs) deprived the public of the safety inherent in County's road building and dedication standards, but they have also unlawfully, and in contravention of the express language of Development Agreement and Incorporated Ordinances, deprived the community public access altogether. 4 710088 14. Defendant Oceanside, however, continues to benefit from marketing and sales that tout Hokulia as a private gated community, in direct contradiction of the intent of the Development Agreement and Incorporated Ordinances. See Hokulia Advertisement, attached hereto as Appendix B and made a part hereof. IL Oceanside and County's Unlawful Attempt to Amend the Development Agreement and Incorporated Ordinances. 15. Development agreements and ordinances can be amended in a number of legal ways, listed out in the Hawaii Revised Statutes, county ordinances, and development agreements themselves. 16. Yet, at least twice over, Oceanside (misguidedly or intentionally) and County (apparently casting a blind eye) have sought to circumvent the timely design and build, to standards, of the Required Public Roads within Hokulia as required under the Development Agreement and Incorporated Ordinances. 17. First, Oceanside and County attempted to sub-silentio amend the requirements of the Development Agreement and Incorporated Ordinances by way of an improper, inferior, and illegal variance. Said variance was procedurally and substantively improper, yet it was granted by County in an unlawful attempt to afford the Required Public Roads amnesty from the County code's dedication standards. A variance is not a valid tool to amend a development agreement or ordinances in the way in which it was attempted here, even if it otherwise complied with the requirements for obtaining a variance, which it did not. 18. Second, the County, pursuant to a resolution, accepted the Mauka Halekii Extension in a substandard condition to the County Code. The acceptance of a substandard dedication was on its face improper and illegal, but also, in effect, moved to amend the Development Agreement and Incorporated Ordinances in a similar fashion to the above 5 710088 mentioned variance. Amendment of the Development Agreement, pursuant to this resolution, was procedurally and substantively improper, and not only straps the County's citizens with tremendous liability via maintenance and improvement costs (a burden that was supposed to be shouldered by Oceanside), but also creates a potentially dangerous condition for said citizens. 19. These efforts to circumvent and failures to enforce (each ill-conceived, ultra vires, and against the strict dictates of the law) the Incorporated Ordinances and Development Agreement, including the use of a variance to circumvent County dedicable standards and a resolution to accept substandard dedications, cannot be left unaddressed. 20. Moreover, attempts to amend (i.e. the variance and resolution) by deficient legal means were unconstitutionally processed by stealth, without proper notice to Plaintiff, a neighboring land owner and the public, thereby depriving Plaintiff and public of due process rights. 21. Residents of the Big Island, such as the Plaintiff, are entitled to the consideration promised for freezing their land use powers. They should not be asked to shoulder the burden of having to design, build, and acquire these promised public roads. 22. County, on behalf of its residents, has fairly and freely bargained for Oceanside to, at its expense, design, build and dedicate these public roads. 23. Oceanside, after presumably receiving significant compensation from selling residential lots within the development as a private gated community, cannot be relieved of its obligation and certainly should not be allowed to shift the burden to the tax paying public. Even more wanting for redress is the fact that Oceanside has tried to relieve itself of these crucial obligations through a pattern of bad acts stemming back almost from the inception of the Development Agreement. 6 710088 24. This complaint requests the Court declare that Defendant Oceanside remains obligated to provide these public improvements and requires the establishment of a schedule for prompt compliance, and Defendant County be required to enforce strict compliance of the Development Agreement and Incorporated Ordinances. NATURE OF THE ACTION 25. Plaintiff is C&J Coupe Family LTD Partnership, landowner of (with a material property interest in) TMK 3-8-1-7:045, the property directly south to and abutting the Hokulia Lands. Plaintiff as neighboring landowner has an interest in the enforcement of the Development Agreement and Incorporated Ordinances. 26. This case stems from two major issues: (1) a breach of the public's trust due to Oceanside's failure to comply with, and County's failure to enforce, the express requirements of the Development Agreement and the Incorporated Ordinances, and (2) Oceanside and County's improper, unconstitutional, and illegal sub-silentio attempts to amend the Development Agreement and Incorporated Ordinances via a variance and substandard dedication. 27. Development agreements are meant to be mutually beneficial situations in which a county (and, by extension, its citizens) as well as the developer benefit. The developer receives the benefit of a freeze on existing land development regulations and plans for a fixed period of years and, in exchange, a county receives agreed to public infrastructure and facilities. 28. In this case, the Development Agreement's Incorporated Ordinances contemplates the developer constructing Hokulia, a residential community in Kealakekua, Hawaii. As such, County agreed not to unilaterally change the land use contemplated by the Incorporated Ordinances for a set period of time, in exchange for, among other things, Oceanside providing benefits to the community through, inter alia, the public dedication of county standard roads and unfettered public access upon those Required Public Roads. 7 710088 29. Specifically at issue here, the Development Agreement and Incorporated Ordinances require the timely,public dedication of Required Public Roads within Hokulia. 30. Each of the three Required Public Roads were to be timely dedicated to County as important public infrastructure under the express terms of the Development Agreement and Incorporated Ordinances, and, as such, needed to be built in strict compliance to County dedication standards as dictated under Chapter 23 of the Hawaii County Code. However, rather than enforce these conditions, County has ignored their obligations without enforcement of any kind. 31. Oceanside has breached the Development Agreement and its Incorporated Ordinances by (1) building the Required Public Roads substandard to the requirements of the Code, (2) failing to timely, publically dedicate the Required Public Roads to County dedicable standards, and (3) erecting Guard Facility on the Required Public Roads in efforts to prey upon the unsuspecting public and market their community as a private gated community with security personnel on duty 24/7. 32. As such, Oceanside has been able to unlawfully profit by reaping the benefit of the Development Agreement without having to bear materials and costs, in the millions of dollars,required to comply with these most important burdens. 33. The second major issue here is the fact that County and Oceanside have twice over (as far as we know) attempted to sub-silentio unlawfully amend the Development Agreement and Incorporated Ordinances through improper, unconstitutional, and illegal means, via a variance and pursuant to a sham dedication. In both situations, Plaintiff, as a neighboring landowner, was not provided with the requisite notice of Oceanside and County's true efforts to circumvent the legal process. 8 710088 34. Oceanside sought a variance to the above mentioned requirements in contravention of the law. However, as neighboring property owner to Oceanside, Plaintiff was/is directly affected by said variance. Recognizing the effect of variances on neighboring property owners, the Hawaii County Code expressly requires variance applicants to provide neighboring property owners of their attempts to circumvent County Code, whether lawfully or unlawfully requested. Plaintiff was provided no notice of the variance whatsoever. 35. Following the variance (which required public notice) County and Oceanside once again attempted to remove the County's dedication standards from the terms of the deal. Specifically, Oceanside dedicated the Mauka Halekii Extension to the County, and the County accepted said dedication pursuant to a County resolution. Dubiously, the Mauka Halekii Extension was not built to dedicable standard as required by the Code as well as the Development Agreement and Incorporated Ordinances. 36. This was not a proper dedication and was, in actually, a thinly vailed attempt to once again amend the Development Agreement and Incorporated Ordinances, this time without any notice to the public. Because this "dedication", amended the Development Agreement and Incorporated Ordinances, proper notice should have been provided to the Plaintiff and the public at large. 37. This display of lethargy and evasion of legal requirements cannot continue. The Development Agreement and Incorporated Ordinances were enacted in order to provide essential benefits to the community, including the Plaintiff Oceanside knew what was expected, required, and agreed to, and, therefore, must be held to the negotiated terms, and the County, in the interest of the Plaintiff and the community at large, must be commanded to enforce the terms. 38. After all, this project was meant to be constructed to create a residential community as well as provide very important public infrastructure to the residents of the 9 710088 Kealakekua area. Oceanside and County should not be able to side step their responsibilities, nor should they be allowed to profit from the bad acts that are on display here. THE PARTIES 39. At all times relevant to this complaint, Plaintiff C & J Coupe Family Partnership ("Plaintiff') is and was the owner of interests in the following parcels with TMK No. (3) 8-1- 007-045 & (3) 8-1-007-057 located in Kealakekua, Hawaii, which is adjacent to the master planned residential development known as Hokulia. 40. Defendant County of Hawaii is a municipal corporation, and is legally responsible for the acts and omission of its departments, officials, and boards and the enforcement of its laws. 41. Defendant Planning Department of the County of Hawaii is created pursuant to Chapter 7 of the Hawaii County Charter is the agency charged with, among other things, enforcing zoning regulations on Hawaii Island pursuant to the Hawaii County Code, Chapter 25. 42. Defendant Zendo Kern is the Director of the Planning Department of the County of Hawaii, and, in performing his duties is and was, at all relevant times, acting under color of law. The Director is being sued only in his official capacity. 43. Defendant 1250 Oceanside LLC is a Delaware limited liability company licensed to do business in the State of Hawaii and is the developer of the residential community known as Hokulia(the "Project") located on the Kona coast in Kealakekua, Hawaii. 44. JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITITES 1-10 (collectively "Doe Defendants") are persons, governments, entities, agents or estates which are in some manner presently unknown to Plaintiffs and who are liable for the claims for relief set forth in this Complaint. Plaintiff is 10 710088 presently unaware of the true names and capacities of the Doe Defendants but will amend the Complaint as soon as they are ascertained. JURISDICTION AND VENUE 45. There is an actual controversy between and among the parties and this Court has jurisdiction to make binding adjudications of right pursuant to Haw. Rev. Stat. § 632-1 and Rule 57 of the Hawaii Rules of Civil Procedure. 46. Venue is proper pursuant to Haw. Rev. Stat. § 603-36(5) because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred in this judicial district, and because the Project which is the subject of this action is located in this judicial district. STATEMENT OF THE FACTS L THE ORDINANCES. 47. On January 15, 1996, Ordinance No. 96-8 and Ordinance 96-7 were signed into law by the Mayor of Hawaii Island. Said ordinances rezoned Oceanside's land, making it possible to begin developing a high-end luxury golf-course and ocean viewing residential development. Ordinance No. 96-8 and 96-7 specifically conditioned their rezoning grant on set requirements. 48. Condition M(4) of Ordinance 96-7 requires Oceanside to "construct the extension of Halekii Street through the subject property . . . which phasing of improvements shall be approved by the Department of Public Works." Condition M(5) of Ordinance 96-7 requires Oceanside to "provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works." 11 710088 49. Condition L(4) of Ordinance 96-8 (which amended certain provision of Ordinance 96-7 but importantly kept those at issue here largely unamended) reaffirmed the requirement that Oceanside "construct the extension of Halekii Street through the subject property[.]" Condition L(5) of Ordinance 96-8 also reiterates the requirement that Oceanside to "provide roadway stub- outs . . . to provide future connections between the subject property and the adjacent properties to the north and south[.]" these roadways were all to be constructed "[p]rior to the issuance of Final Subdivision Approval for any portion of the subject property." 50. Condition N of Ordinance 96-8 requires that "[alit roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." Thus, since 1996, Ordinance 96-8 and 96-7 have required Oceanside to provide the County (1) the Mauka Halekii Extension, (2) the Makai Halekii Extension, and (3) Connector Road. IL THE DEVELOPMENT AGREEMENT. 51. The purpose of a development agreement, among other things, is to freeze existing land development regulations and plans for a fixed period of years in return for good and valuable consideration of, among other things, public infrastructure and facilities. See Haw. Rev. Stat. § 46-121; Hawaii County Code § 30-2; see also DAVID L. CALLIES, REGULATING PARADISE at 6 (2d ed. 2010). 52. On April 20, 1998, the County of Hawaii and 1250 Oceanside Partners (the predecessor in interest to Oceanside)2 entered into the Development Agreement, which was approved and consented to, pursuant to HRS § 46-121 et seq. and Hawaii County Code Chapter 30 and signed into law by the Mayor. Pursuant to the purpose listed above, this Development 2 Paragraph 46 of the Development Agreement provides: "The terms and conditions of this Agreement shall be binding upon,and the benefits of this Agreement shall inure to all successors in interest to the assigns of the parties hereto,and the covenants contained herein shall run with the land."Therefore, though entered into by Oceanside's predecessor in interest, the express terms of the Development Agreement and its Incorporated Ordinances continue to be binding upon Oceanside. 12 710088 Agreement (among other things) locked the rezoning granted under Ordinance 96-8 and 96-7 into place for a term of 30 years, in favor of Oceanside. 53. In exchange, the County was to receive a number of valuable considerations including the conditions of the Incorporated Ordinances, which were incorporated by reference in Section 2(d)(1) and 2(d)(2)respectively. 54. Recital M and N of the Development Agreement provides: M. Pursuant to Sec. 46-121, HRS, Hawaii County Code Chapter 30, and Hawaii County's Rule 1, relating to Development Agreements, the COUNTY and OCEANSIDE have entered into this Agreement. This Agreement will (i) provide for the parameters within which the obligations of OCEANSIDE for public and other improvements will be met; (ii) provide assurances to OCEANSIDE that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use Regulations, including but not limited to changes in zoning classifications or revocation of OCEANSIDE's Approvals, except when, with the agreement of OCEANSIDE, it becomes necessary to preserve the public health, safety and welfare; and (iii) provide appropriate assurances to OCEANSIDE that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of the Agreement, subject to OCEANSIDE's adherence to and performance of all material terms and conditions of this Agreement. N. Use of this Agreement will reduce or eliminate the uncertainty in the Project planning and development approval process, which in turn, would encourage the efficient utilization of resources and minimize the economic cost to the public: allow for the orderly planning of public facilities and services, and otherwise achieve the purposes and objectives for which the Development Agreement Statute and the Development Agreement Code were enacted. This Agreement clarifies the Land Use Regulations and Approvals, which in turn provide for the overall design, construction and development of the Project and all on-site improvements and appurtenances associated therewith, in the manner specified in this Agreement, including, without limitation, the design, construction and development of projects to provide benefits to the region and the COUNTY such as the Bypass Highway and the Coastline Park as set forth herein. (Emphasis added.) 13 710088 III. DEDICATIONS UNDER HAWAII COUNTY CODE. 55. Hawaii County Code § 23-10 provides that the County "shall not . . . receive by dedication . . . any street in any subdivision . . . except in full compliance with the provisions of this chapter." The Incorporated Ordinances made clear that the Required Public Roads needed to be dedicated to the County. 56. In other words, Oceanside is required to construct the Required Public Roads, AND dedicate those roads to and for the benefit of the County and its citizens (including the Plaintiff). In order to properly dedicate these roads, they must be in full compliance with the requirements of the Hawaii County Code. 57. Upon information and belief, Oceanside has not constructed the Mauka Halekii Street Extension, the Makai Halekii Street Extension, or the Connector Road in accordance with the requirements of the Hawaii County Code. 58. Furthermore, Oceanside has placed the Guard Facility at the entrance of Hokulia, directly on the Required Public Roadways. The effect of said Guard Facility is the creation of a private gated community and, to the detriment of the public, the privatization of the Makai portion of the Halekii Street Extension and Connector Road. 59. Given that the Development Agreement and Incorporated Ordinances expressly required the Required Public Roads within Hokulia to be dedicated to the County (and the public at large), Oceanside has clearly breached the Development Agreement and Incorporated Ordinances by erecting the Guard Facility which, in effect, has allowed Oceanside to create and market Hokulia as a private gated community. The Makai Halekii Street Extension and Connector Road both being covered under the variance verify the information and belief of their substandard build. Worse yet, Oceanside illegally attempted to dedicate the Mauka Halekii Extension and the County unlawfully accepted said illegal dedication through County of Hawaii Resolution No. 317-12,despite said road not being in compliance with Chapter 23 of the Code and contrary to the Development Agreement and Incorporated Ordinances. 14 710088 IV. NO LEGAL AMENDMENT TO DEVELOPMENT AGREEMENT OR INCORPORATED ORDINANCES HAS BEEN ISSUED. 60. Paragraph 27 of the Development Agreement provides: This Agreement may be amended or canceled in whole or in part by mutual consent of the parties to this Agreement, or their successors in interest, as further evidenced by County Council resolution, provided that if the County Council determines that the proposed amendment would substantially alter the original terms of this Agreement, a public hearing on the amendment shall be held by the County Council before it consents to the proposed amendment. This language echoes both Haw. Rev. Stat. §46-130 and Hawaii County Code Section 30- 9's requirements to amend development agreements. 61. The process required to amend a County of Hawaii ordinance is a steeper hurdle. Ordinances are the laws of a county or municipality, and typically only amendable through a subsequent ordinance. (See Revised Charter of the City & County of Honolulu Section 3-204 (stating "[n]o ordinance shall be amended, revised or repealed by the council except by ordinance.")). 62. The County of Hawaii Charter lacks express language dictating the means to amend an ordinance. See generally County of Hawaii Charter (lacking similar language to the Revised Charter of the City & County of Honolulu Section 3-204). However, Section 2-2 of the County of Hawaii Charter states that "[a]11 powers of the county shall be carried into execution as provided by this charter or, if the charter makes no provision,by ordinance or resolution of the county council."Additionally, Section 3-8 of the Charter states that "[e]very legislative act of the council shall be by ordinance." 63. So, despite not expressly stating that an "ordinance shall not be amended, revised or repealed by the council except by ordinance", as the Charter of Honolulu does, the catchall provision of the County of Hawaii Charter creates a similar mechanism for amending ordinances. 15 710088 64. Neither the Development Agreement nor its Incorporated Ordinances have ever been lawfully amended, thus, Oceanside's obligations under both, specifically as to the design, build, and dedication of the Halekii Street Extension (both Mauka and Makai of the By-Pass Highway) and Connector Road, have never changed. 65. County and Oceanside are very much aware of the above detailed legal process of amending an ordinance, as they have previously amended the Incorporated Ordinance. On May 8, 2008, County enacted Ordinance 08-59 with the specific purpose of amending Ordinance 96- 8. 66. Ordinance 08-59 removed a requirement set in place by Ordinance 96-8 which called for a barricade of the Mauka Halekii Extension. In exchange for the removal of said condition, Oceanside was required to put in place a number of mitigation measures for the increase in traffic that the Mauka Halekii Extension would bring to the preexisting Halekii Street. County conducted a traffic study and held public hearings in order to determine the validity of said amendment. Following this legal ordinance amendment process, County Council and the Mayor signed Ordinance 08-59 into law. 67. However, despite being party to the proper amendment procedure back in 2008, County and Oceanside have since that time tried to circumvent the ordinance amendment requirements through a number of unpermitted and unlawful means (to be discussed in the following sections), misguidedly ignorant to, or maliciously ignoring, the clear and proper way to amend the Development Agreement and Incorporated Ordinances. V. THE VARIANCE 68. Sometime in or around 2010, Oceanside attempted to amend condition M-4 (Ordinance No. 96-7) and condition L-4 (Ordinance No. 96-8) by submitting Variance Application: VAR 10-027 (the "Variance"). Said application was an effort to circumvent 16 710088 dedication standards under the County Code prescribed under Sections 23-86 and 23-41 of the County Code. 69. Variance 10-027 was deficient for a number of reasons: (1) Oceanside failed to meet the specific criteria required for a variance under the County code, (2) the Variance unlawfully attempted to amend the Development Agreement and Incorporated Ordinances, and (3) Oceanside failed to provide Plaintiff with specific notice of the variance application. 70. Despite these deficiencies, County improperly and illegally issued the Variance on January 31, 2011. a. Conditions for Variance Were Not Met. 71. Section 23-15 of the Hawaii County Code states that all the following conditions must exist for a variance to be granted: i. There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial property rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; and ii. There are no other reasonable alternatives that would resolve the difficulty; and iii. The variance will be consistent with the general purpose of the district, the intent and purpose of this chapter, and the County general plan and will not be materially detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties 72. These express requirements to grant a variance were not met here, inter alia, because the most reasonable alternative was for Oceanside to do as it promised and bear the burdens that they agreed to in the Development Agreement and Incorporated Ordinances and build the Required Public Roads to County dedicable standards. Passing the burden to the County, while Oceanside purely reaps the benefits, is not a reasonable alternative for a variance. 73. Further, it is well settled law that in order to show deprivation of property rights warranting a variance, an applicant must prove something more than financial burdens or 17 710088 economic hardships. Surfrider Found. v. Zoning Bd. of Appeals, 136 Haw. 95, 110 (2015). Oceanside pleaded these economic hardship grounds when applying for the Variance. In their variance application, Oceanside claims that due to the special and unusual circumstances of the property (the topography of the Hokulia Development) full compliance with the County Standards of Section 23-86 and Section 23-95 would "add considerable cost to [Oceanside]." This does not meet the requirement for deprivation justifying a variance. b. Variance is an Improper, Impermissible, and Illegal Means to Amend Development Agreement and Incorporated Ordinance. 74. In actuality, the Variance was a thinly veiled attempt to amend the Development Agreement and Incorporated Ordinances. A method of amendment that is improper, impermissible, and illegal. 75. Specifically, in granting Variance 10-027, Oceanside sought to circumvent the express language of the Development Agreement and Incorporated Ordinances, which requires Oceanside to dedicate the Required Public Roads to County dedicable standards, as important public infrastructure. 76. This very issue was highlighted in a Memorandum from Division Chief of the Engineering Division of the Department of Public Works, Ben Ishii, to Leithead Todd (County Planning Director at the time) ("Ishii Letter"), "the application does not acknowledge that Ordinance 96-8 Condition L and M required dedication of the connecting roads [(Required Public Roads)]. DPW object to granting a variance without specifying cross section details and distinguishing those streets. For example, Halekii street extension which is a collector street . . . shall be dedicated to the County as required by ordinance. Because of safety, liability and maintenance concerns, separate details should be provided for roads that do not require dedication to the County by ordinance and those that do require dedication. Additional conditions such as roadside landscape and drainage system maintenance requirements and streetlights along with a surety in case of default should be imposed for roads required to be dedicated to the County." 18 710088 77. The Ishii Letter highlighted the fact that conditions on ordinances and requirements under development agreements are amended via the rules listed above, and may not permissibly be alleviated through simple variance. 78. To reiterate, the way to properly and legally amend an ordinance is via subsequent ordinance, not through variance. A fact that Oceanside and County are very well aware of, as they amended the Incorporated Ordinances in 2008 through Ordinance 08-59 (pertaining to barricading the Mauka Halekii Extension). 79. Thus, not only had Oceanside failed to meet the elements required to grant a variance, but they have also attempted to circumvent the law by impermissibly, improperly, and illegally attempting to amend the Development Agreement and Incorporated Ordinances. c. Improper Procedure: Failure to Provide Notice to Neighboring Landowners. 80. In addition, the Variance was also procedurally deficient. 81. Any and all applications for variances under the Chapter 23 of the County Code, requires specific notice to be provided to neighboring landowners. 82. Section 23-17 of the Hawaii County Code sets forth the notice provision of the subdivision variance procedure, expressly stating that in order for a variance to be issued, "the applicant shall serve notice of the application on owners of interest in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought." 83. Plaintiff (a neighboring landowner) was not, upon information and belief'', provided specific notice of Oceanside's application for Variance 10-027 as is required by the clear dictate of the law, let alone notice sufficiently disclosing the Variance's true impact. Plaintiff did not receive specific notice of the Variance application and the variance files provided by County(for Variance 10-027)do not include a certified mail receipt corroborating any such notice having been provided to Plaintiff. 19 710088 84. Oceanside's failure to provide notice of the Variance is made even more likely given their pattern of behavior when it comes to providing Plaintiff with notice of adverse (relative to Plaintiff's interest) attempts to amend the Development Agreement and Incorporated Ordinances. 85. Specifically, on January 23, 2020, Oceanside sent Planning Department Director, Michael Yee, a request to amend Condition M of Ordinance No. 96-8 under which Oceanside would no longer be obligated to dedicate the Required Public Roads. Such request required Oceanside to also provide a list of neighboring property owners who would be affected by the requested amendment. 86. Merits of the 2020 request to amend Ordinance No. 96-8 (which froze zoning on the land for over two decades) aside, Oceanside "conveniently" failed to include Plaintiff on the required list of neighboring properties. 87. As highlighted by Michael Yee's response to Oceanside, dated February 11, 2020 (the "Yee Letter"), this omission was due to Oceanside only seeking to notify property owners located 1,000 feet from the road lots rather than 1,000 feet from all property boundaries. This duplicity allowed Oceanside to avoid providing Plaintiff's lot (TMK: (3) 7-9-012:004) notification of any attempts to amend. 88. Despite the Yee Letter informing Oceanside to include Plaintiff on any notice lists, Plaintiff only recently discovered the attempted 2020 amendment through independent investigation. That is to say, Oceanside once again refused to freely (as required by law) provide specific notice of an attempt to adversely affect Plaintiff's property interest. 89. The blatant evasion displayed in Oceanside's failure to provide notice for the attempted 2020 amendment further corroborates the premise that the Variance similarly lacked the requisite notice. 20 710088 90. Thus, not only did the Variance lack substantive merit, it was also procedurally deficient as well. In almost all perceivable aspects, the Variance was improper, impermissible, and illegal. VI. UNLAWFUL GRANT OF MAUKA HALEKII EXTENSION WITHOUT ADHERENCE TO DEDICATION STANDARDS. 91. An illegal variance was not the only act of subterfuge at play here. Oceanside also attempted to dedicate substandard roadways to County in an attempt to sidestep its obligations under the Development Agreement and Incorporated Ordinances, and the County, for its part, accepted. 92. The County attempted to receive the Mauka Halekii Extension from Oceanside in the form of three roadway lots, more particularly described as Tax Map Numbers (3) 8-1- 035:004, (3) 8-1-035:001, and (3) 8-1-036-001 (portions of) (i.e. lots 10-A, 1B and 3-A2, which respectively correspond to the TMK numbers). The physical road upon the Mauka Halekii Extension sits on top of these three roadway lots. 93. Oceanside unlawfully and impermissibly "dedicated" roadway lots as the Mauka Halekii Extension and, pursuant to resolution No. 317-12 the County accepted said "dedication" on November 9, 2012 (the "Resolution"). 94. Dedication of the Mauka Halekii Extension was improper for two reasons: (1) Mauka Halekii Extension was not built to County standards required for dedication, thereby breaching the Development Agreement and Incorporated Ordinances, and (2) the actual intent of this resolution/dedication was to unjustly amend the Development Agreement and Incorporated Ordinances, either of which require notice to Plaintiff and the Public. a. Attempted Dedication is Material Breach of the Development Agreement and Incorporated Ordinances. 21 710088 95. First, the Resolution makes a number of representations that are patently untrue about the condition of the Mauka Halekii Extension. The Mauka Halekii Extension was accepted under the express condition that said road was "in full compliance with the provision of Chapter 23 of the Hawaii County Code." 96. However, the Mauka Halekii Extension was not built to dedicable standards, failing to be in full compliance with Chapter 23 of the Hawaii County Code in a number of ways. 97. Specifically, Hawaii County Code § 23-86(b) requires that dedicable streets "shall be constructed in accordance with the specifications in this section and those on file with the department of public works." In addition, dedicable streets "shall be installed under the supervision of the director of public works and to permanent grades approved by him." 98. Upon information and belief, the Mauka Halekii Extension (1) was not "constructed in accordance with the specifications in 1§ 23-86]," (2) was not "constructed in accordance" with the specifications "on file with the department of public works," and (3) was not "installed under the supervision of the director of public works[.]" 99. This is confirmed by the Planning Director Leithead Todd in the issuance of Variance 10-027 on January 31, 2011 where she states that: "It should be noted that the extension of Halekii Street has been completed without full right-of-way improvements per construction plans approved by the Department of Public Works." 100. The Mauka Halekii Extension is displayed below: 22 710088 101. This is in stark contrast to the already existing Halekii Street, which lies east of the Mauka Halekii Extension (the "Old Halekii Street"). The Old Halekii Street provides a greater width of pavement and multiple improvements. To illustrate the differences, the Old Halekii Street has 36-feet of paved surface, curbs, gutters, sidewalks, and streetlights. In contrast, the Mauka Halekii Extension shown above is a 24-foot wide paved surface, but devoid of curbs, gutters, sidewalks, and streetlights. It also has no graded and paved shoulders and swales as is standard for dedicable streets. Displayed in the photographs below is a west facing view from the vantage point of the Old Halekii Street toward the Mauka Halekii Extension: = r r � ' F6N •� yj �� a YES a�}� IY + }+C41 F b 23 710088 , cR w .; � �^4c, ../4.,,jet, iE 1 - 1 n Afte % ��yy t S`rr. . � °i r\‘'.1'. ^tet r S -y f'::..171:1:°',.,t7' .. 4"Y g�v J t Itx r ' 102. To further highlight the differences between the Old Halekii Street and the Mauka Halekii Extension, below is a photograph taken of the Old Halekii Street facing East: y t a. _x G - - . m @ a,; 6b +fwS'....'°-, - 7� k‘40%,1714.i.:.': •,�,•y y '". 103. The drastic decrease in infrastructure is not only impermissible and improper for dedication, but also may cause confusion and create a hazard for drivers and pedestrians, thereby exposing citizens to unsafe conditions. 24 710088 104. Further, and perhaps more damning, upon information and belief, the Mauka Halekii Extension was not constructed to the Department of Public Work's standard and based upon detailed plans and specifications approved by the Chief Engineer of the Department of Public Works, as had been represented and as is expressly required under County Code, nor did the director of public works supervise the construction of the Mauka Halekii Extension to ensure that it meets County standards. Both of which are requirements for dedicable streets under Section 23-86 of the County Code. 105. As stated above, the road that is the Mauka Halekii Extension was built in the early 2000's, before Oceanside in its current iteration, far before this current County administration, before Ordinance 08-59 was implemented to allow the opening of the road to the public, and before the importance of Mauka Halekii Extension as a secondary arterial road was even considered. 106. Importantly, the Variance sought to "permit[] the retention of existing" roadways within Hokulia which were not built to County dedicable standard. This included, but was not limited to, the Mauka Halekii Extension. The Variance, already lacking in merit as indicated above, also once again highlights the fact that the Mauka Halekii Extension was not legally dedicated to the County. 107. The fact that an after-the-fact variance was requested for the Mauka Halekii Extension's substandard condition all but proves that the roadway was neither "constructed in accordance with the specifications in [Section 23-86] and those on file with the department of public works" nor was it "installed under the supervision of the director of public works and to permanent grades approved by him." After all, if the Mauka Halekii Extension had been constructed and supervised to dedicable standard, it would not have needed a variance in order to be"dedicable". 25 710088 108. It is therefore unlikely, if not impossible, for the Department of Public Works to have provided specifications before construction as well as supervision during construction of the Mauka Halekii Extension in the form in which it was "dedicated" (as a secondary arterial). 109. Because it failed to meet the dedicable standards of the County, the dedication of the Mauka Halekii Extension was, for all intents and purposes, a sham. 110. Despite the warranties of the County made in the Resolution, the County illegally attempted to accept the Mauka Halekii Extension far below the acceptable standards, in violation of the Development Agreement and Incorporated Ordinances. 111. By attempting to accept the substandard dedication of the Mauka Halekii Extension, County has publicly violated its own standards set forth in the Hawaii County Code § 23-10, bald-facedly misrepresented adherence to the Development Agreement and Incorporated Ordinances, and dubiously attempted to deceive the public at large. 112. Further, this substandard attempt at dedication has placed the onus of maintaining the currently deficient Mauka Halekii Extension, as well as liability stemming from the road, upon the County and, by extension, its citizens. Thus, not only has the County's subterfuge betrayed the public trust, but it has also strapped its citizens with millions of dollars in construction costs, liability and long term maintenance. 113. Thus, the Mauka Halekii Extension needs to be closed and rebuilt to the express requirements of Chapter 23 of the Hawaii County Code. This means an 80-foot width and 24-feet of pavement, sufficient base course, graded and paved shoulders and swales, streetlights, and, perhaps most importantly, thorough and in-depth input from the Department of Public Works in the form of specifications before, and supervision during, construction. b. Attempted Dedication is, in Actuality, a Faulty Attempt to Amend the Development Agreement and Incorporated Ordinances, Which Required Notice to Plaintiff. 26 710088 114. What acceptance of the Mauka Halekii Extension truly represents is another attempt (albeit less public and more dubious) to, like the variance, circumvent the legal requirements to amend the Development Agreement and Incorporated Ordinances. 115. A resolution is not a valid way of amending a development agreement or a county ordinance. 116. In addition, as has been stated before, amendments to a Development Agreement (in this substantial way) and Incorporated Ordinances (in any way) requires notice to be provided to the public. Perhaps in attempts to stealthily avoid such notice, County and Oceanside simply ignored the requirements of the County Code and signed the resolution accepting the dedication in this substandard form, no questions asked. 117. Whatever the motive or justification the County had for issuing the Resolution, it failed to amend either the Development Agreement or the Incorporated Ordinances. 118. Thus, even if County could accept the dedication of these substandard "roadway lots" being offered by Oceanside (which they cannot, as detailed above), this acceptance of "roadway lots"would not relieve Oceanside of its obligations under the Development Agreement and Incorporated Ordinances to design and build the Mauka Halekii Extension (and all Required Public Roadways for that matter) on top of said "roadway lots" to the express dedicable standards prescribed under the County Code, and at Oceanside's sole cost and expense. 119. The Resolution was, in actuality an unlawful and impermissible attempt to amend the Development Agreement and Incorporated Ordinances. Because no lawful amendment to the Development Agreement or Incorporated Ordinances has been effectuated in the Resolution, the obligations under those instruments to dedicate the Mauka Halekii Extension (to County standards)has not been satisfied. 27 710088 VII. UNLAWFUL DENIAL OF PUBLIC INFRASTRUCTURE. 120. Finally, at some point in time, Oceanside constructed the Guard Facility just west of the point at which the Mamalahoa By-pass Highway meets the Makai Halekii Extension, effectively creating the "private" community known and marketed as Hokulia. 121. Sometime in or around 2011, Hokulia installed the first iteration of the Guard Facility in efforts to impede public access to the Required Public Roads. The aerial photograph below depicts the first location of the Guard Facility in 2011. MEMO lams 44 ... - • 122. Over the years, this Guard Facility has continuously increased its fortification. Changing locations within Hokulia in order to increasingly bolster efforts for the privatization of said "private" community. The 2013 image below shows the first major shift in the Guard Facility's location along the public road entrance to Hokulia. This position allowed the simple, rudimentary Guard Facility to have a better strategic position for controlling egress and ingress into Hokulia: 28 710088 r4 • • 123. The current iteration of the Guard Facility was provided after-the-fact permitting approval on August 28, 2014 and passed final inspection on July 28, 2015. In the pursuit of which, Oceanside misrepresented the structure as a simple "Greeter Hale", created solely for the purpose of distributing information. However, misrepresentation or not, the County's grant of a permit for the Guard Facility makes them complicit in the privatization of roads that were expressly to be dedicated to the public. 124. To further highlight the bad acts here, as of 2023, this simple "Greeter Hale" comes equipped with electric gates and cameras. The Guard Facility is now firmly positioned between the ingress and egress point of Hokulia's entrance and members of the public are required to state a name and purpose for their visit to the "public roadway". 29 710088 125. It is clear that Oceanside designed and built the Guard Facility as a linchpin in keeping Hokulia "private". The current iteration of which, affords Oceanside a stranglehold on the public's access to their community, as the Makai Halekii Street Extension is the only road currently entering Hokulia. 126. This privatization, flies entirely in the face of a true "public dedication" as required under the express language of the Development Agreement and the Incorporated Ordinances, and also robs the citizens of Hawaii of the public access to the shoreline park located on the Hokulia Lands, which was bargained for under the Development Agreement. 127. Following a dedication to the County, the Makai Halekii Street Extension and Connector Road will be the responsibility of the County. The County (and by extension its citizens) should not be strapped with the liability and costs associated with maintaining the Makai Halekii Extension and Connector Road when said public roadways have, in effect, become the private property of Oceanside. COUNT I: DECLARATORY RELIEF (All Defendants) 128. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 129. An actual controversy exists between Plaintiffs and Defendants because Oceanside has not complied with the Development Agreement and its Incorporated Ordinances, and the County Defendants have not enforced the conditions of the Development Agreement and its Incorporated Ordinances mentioned herein. 130. County Defendants are indefinitely and arbitrarily refusing to enforce the conditions set forth in the Development Agreement and ordinances incorporated therein. 30 710088 131. A declaratory judgment will serve to terminate the uncertainty or controversy giving rise to this proceeding. 132. Plaintiff is entitled to a declaratory judgment that Oceanside has violated the Development Agreement and Incorporated Ordinances by (1) not timely designing, building and dedicating Required Public Roads according to condition M of Ordinance 96-7 as well as conditions L and N of Ordinance 96-8, and (2) developing, marketing, and selling subdivided lots as part of a "private gated community" against the public access requirements of the Development Agreement. 133. Plaintiff is entitled to declaratory judgment that County unlawfully granted Variance to amend conditions expressly required under the Development Agreement and Incorporated Ordinances, as well as impermissibly accepted the Mauka Halekii Extension via Resolution accepting three roadway lots despite the roadway on said lots failing to meet County dedicable standards. COUNT II: INJUNCTIVE RELIEF—MANDAMUS TO ENFORCE DEVELOPMENT AGREEMENT (County Defendants) 134. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 135. "Mandamus relief is available to compel an official to perform a duty allegedly owed to an individual only if the individual's claim is clear and certain, the official's duty is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available." In re Disciplinary Bd. Of the Haw. Supreme Court, 91 Haw. 363, 368, 984 P.2d 688, 693 (1999). 136. Enforcement of the Development Agreement is a ministerial act in that it leaves no discretion to the County Defendants in determining whether the conditions of the Development Agreement have been met. 31 710088 137. Paragraph 25 of the Development Agreement provides: [w]ithin thirty (30) days after the Planning Department or the Office of the Mayor determines on the basis of the periodic report that OCEANSIDE has committed a material breach of the terms or conditions of this Agreement, the Planning Department or the Office of the Mayor, as applicable, shall inform OCEANSIDE in writing of the same, setting forth with reasonable particularity of the nature of the breach and any and all evidence supporting the finding and determination, provided, however, that OCEANSIDE shall be given reasonable time period in which to cure any such material breach. 138. Upon information and belief, the County Defendants have failed to inform Oceanside of its material breach of the Development Agreement due to the fact that Oceanside has not constructed the Required Public Roads to County decidable standards. Upon information and belief the County has failed to give Oceanside reasonable time in which to cure its breach. 139. Plaintiff is entitled to an order preliminarily and permanently enjoining the County Defendants from refusing to enforce the Development Agreement. 140. Plaintiff is entitled to a mandatory injunction and mandamus relief requiring the County Defendants to enforce the conditions of the Development Agreement and require Oceanside to construct the roads listed in condition M of Ordinance 96-7 and conditions L and N of Ordinance 96-8 to dedicable County standards, within a timeframe determined as reasonable by the Court. 141. The County and Oceanside should be required to submit a plan to the Court detailing how and when Oceanside will come into compliance with the ordinances mentioned herein. 142. No other remedy is available because without constructing the Required Public Roads to County dedicable standards Oceanside is unable to comply with the conditions of the Development Agreement. COUNT III: DENIAL OF DUE PROCESS UNDER THE UNITED STATES AND HAWAII CONSTITUTIONS 32 710088 143. Plaintiff hereby incorporates and adopts each and every allegation in all previous paragraphs. 144. Plaintiff has a valuable and constitutionally protected property interest as the neighboring property to Defendant. 145. The Fifth and Fourteenth Amendment of the United States Constitution, as well as the Hawaii State Constitution, provides that no person shall be deprived of life, liberty, or property without due process of law. See also Haw. Const. Art. I, § 5 (stating same). 146. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant property interest. Sandy Beach Def Fund v. City Council of City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 147. Pursuant to its rule making power under HRS § 91-2(a)(2), Hawaii County adopted Section 23-17 of the Hawaii County Code. Said section of the Code sets forth the notice provision of the variance procedure, expressly stating that in order for a variance to be issued, "the applicant shall serve notice of the application on owners of interest in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought." Further, the Hawaii County Code requires such notice to list "the nature of the use sought and the proposed accompanying structures, if any[.]" 148. In this case, Plaintiff, an "owner[] of interest in properties within three hundred feet of the perimeter boundary of the applicant's property", was afforded neither notice nor an 33 710088 opportunity to be heard at a meaningful time and in a meaningful manner before being deprived by County of its significant property interest via the grant of Variance 10-027. 149. Due process also includes a substantive component that guards against arbitrary and capricious government action which has no substantial relation to the public health, safety, morals or general welfare. Lopez v. State, 133 Haw. 311, 322, 328 P.3d 320, 331 (2014) (quoting In re Herrick, 82 Haw. 329, 349, 992 P.2d 942, 962 (1996)). 150. By granting the Variance the County allowed Oceanside to sidestep the express requirements of the Development Agreement and the Incorporated Ordinances, which had been put in place for the public's health, safety and general welfare. The Variance was granted despite both Oceanside and County having knowledge of the proper procedure to amend ordinances, and acknowledgement of these very issues in a memorandum from Ben Ishii of the Department of Public Works. Thus, County's grant of Variance 10-027 was arbitrary and capricious and directly at odds with the principals of public health, safety and general welfare. 151. For the above reasons, Plaintiff is entitled to a judicial declaration that County has interfered with Plaintiff's procedural and substantive due process rights. RELIEF SOUGHT WHEREFORE, Plaintiff respectfully requests that judgment be entered in their favor and against Defendants as follows: A. For appropriate declaratory relief regarding the unlawful acts and practices of Defendants. B. For a mandamus and injunction (respectively) against the County and Oceanside for the compliance and enforcement of the Development Agreement and Incorporated Ordinances, specifically in regards to building and dedicating the Roads to County standards and the immediate cessation of restricted public access and removal of the Guard Facility and the 34 710088 adjoining walls, gates, etc. that serve to impede public access, in a timeframe the Court determines to be reasonable, as well as declaration that the Variance and Resolution accepting dedication of the Mauka Halekii Extension were illegal and therefore void. C. For the immediate closure of the Mauka Halekii Extension, from the point at which it meets the Old Halekii Street (on the upper east end) and down to the point at which it connects to the Mamalahoa By-Pass Highway, until said Required Public Roadway can be brought up to dedicable county standards, inclusive of construction plans and specifications approved by the Department of Public Works as well as supervision by County engineers at the Department of Public Works during construction of the Mauka Halekii Extension. Such closure is necessary to protect the general public's health, safety and welfare from travel over a substandard road. D. For an award of reasonable attorneys' fees and costs to be awarded on directed judgment. E. Such other and further relief as the Court deems just and proper. DATED: Honolulu, Hawaii, March 31, 2023. DAMON KEY LEONG KUPCHAK HASTERT /s/Toren K Yamamoto KENNETH R. KUPCHAK TOREN K. 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A00563 APPENDIX "A" APPENDIX "B" ED Aie4iennethspringerLlisting�/ Big Island(/kennethspringerLlistingLg-island/)/ South Kona(/kennethsprinngerLlistings/big-islandLsouth-konaL)/ Hokulia(/kennethspringer/listings/big-island/south-kona/hokulia/) ,fir • • -,,,,,,_,-, •-- '''. •*.-144k-It-c:,,,,,&17-r141001401074-, likr • "` N. + ; '► -v Nom. r r� i -'.+b. "_".,___-"° 117u G 14t r 1 11 5 --A1.•---_ 't , aw w r " iy '' r. itf.',';r :/../'';'.:l/fJ'f. ,.'/f 1 / -° t)444'4 ".1/ / AAA ( ,��` wsS } 'tel 1 Y J/l/AY.',"/./„V„ !, , prey 0!- . � ' r s -- ,;,-- ,� :- .✓ y ` „+rte LI , - v f�A 1'�:1 ' ,k AZ , o- 4 44 ' N ../,'r ' Y --"''Y-r 'f"' {g I A A4 f,, -4'..!;4,4• 1 81-6511 LAUPAI WY in Kealakekua, Hawaii 9 Show Location(/kennethspringer/listings/81-6511-Iaupai-wy-kealakekua-hi-96750-1#map) Q Virtual Ti3ur(https:h tours.hawaiianvirtualtours.cam/1760809?idx=1) Print Page (https:h s3-us-west-2.amazonaws.com/rets- m is/feature_sheets/documents/000/136/964/original/136964_9694c307743f5a8df6b771 ca6268808 a.pdf? 1626479712) APPENDIX "B" $390,000 44,257 sq ft land 1.02 ac Est. Mortgage Payment$1,991 (/kennethspringer/listings/81-6511-laupai-wy-kealakekua-hi-96750- 1#mortgage calc) Fee Simple I Sold I Days on Market 94 Aloha! Niiim{JJ/J} t cbbr ,g� Kenneth (/kennethspringer) Springer (/kennethspringer) REALTOR SALESPERSON kennethspringer@hawaiilife.com (808)937-3535 „iip(Ilie r � L43.64( Mika (/mikaono) Ono (/mikaono) REALTOR SALESPERSON mikaono@hawaiilife.com (808)443-1281 r. A,. Aloha! ti . L Je f f(je f freid) Reid (/jeffreid) REALTOR SALESPERSON jeffreid@hawaiilife.com (808)339-6275 ACTIONS FOR 81-6511 LAUPAI WY ifik SET ALERT SEE THIS PROPERTY VIRTUAL OR IN-PERSON Located on the Kona Coast of Hawaii Island, Hokuli'a is a stunning 1,300 acre private residential community situated one of the world's most beautiful and culturally significant ocean-side properties. Hokuli'a extends three miles along the Kona Coast, rising from the dramatic shoreline up to an elevation over 700 feet with amazing ocean views. The Club at Hokuli'a is home to Jack Nicklaus Signature Design golf course and constantly ranked among the best courses in Hawaii. Polynesian styled pavilion with full bar and restaurant seating where seasonal whales, spinner dolphins and fishing vessels may be enjoyed. The sunsets are spectacular! Other Club Features are: Fitness Center Lap pool and Aquatics Tennis Courts Shoreline Park and Trails Locker Rooms and Lounges Akom and Massages Bocce Ball Courts The luxury amenity offerings available to members and their guests. Lot 183 is a superior 1.02 acre home site with panoramic ocean and whitewater views, gorgeous sunsets, views of Red Hill and the southern coastline with the waves crashing against the cliffs. Excellent home site for a great price. Elevation 579 feet. An equity membership in the Club at Hokuli'a, valued at $150,000, is included in the sales price. Hokuli'a is a gated community with security personnel on duty 24/7. PROPERTY DETAILS FOR 81-6511 LAUPAI WY TAXES FOR 81-6511 LAUPAI WY MLS # 647751 Tax Id 3810290350000 Property Type Land Gross Taxes $2,550 Lot Size (Ft) 44,257 Taxes For Tax Year 2020 Flood Zone X Pool N Water Source Municipal Topography Gentle Slope Solid Waste Disposal Private Contractor Listing Brokerage Windermere C&H Properties Hoa Fees $2,928 View Specify Coastline,Ocean,Ocean Horizon, Sunset County Data Click Here (https://gpublic.schneidercorp.com/Application.as... Appl D=1048&Layerl D=23618&PageTypel D=4&Pag... IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C & J COUPE FAMILY LIMITED ) CIVIL NO. PARTNERSHIP, ) ) SUMMONS Plaintiff, ) ) vs. ) ) COUNTY OF HAWAII; COUNTY OF ) HAWAII, PLANNING DEPARTMENT; ) ZENDO KERN, IN HIS OFFICIAL ) CAPACITY AS DIRECTOR OF THE ) COUNTY OF HAWAII, PLANNING ) DEPARTMENT; 1250 OCEANSIDE LLC; ) JOHN DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; and DOE ENTITIES) 1-10, ) ) Defendants. ) ) SUMMONS STATE OF HAWAI`I To the above-named Defendants: YOU ARE HEREBY SUMMONED and required to file with the Court and serve upon, KENNETH R. KUPCHAK, and TOREN K. YAMAMOTO, Plaintiff's attorneys, whose address is 1003 Bishop Street, Suite 1600, Honolulu, Hawai`i 96813, an answer to the Complaint which is hereby served upon you, within twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be rendered against you for the relief demanded in the Complaint. This Summons shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises not open to the general public, unless a judge of the above-entitled court permits, in writing on this Summons, personal delivery during those hours. A failure to obey this summons may result in an entry of default and default judgment against the disobeying person or party. DATED: Kailua-Kona, Hawai`i, CLERK OF THE ABOVE-ENTITLED COURT In accordance with theAmencans with Disabilities Act,and other applicable stale and federal laws,it you require e (1SPreasonable accommodation for a disability,please contact the ADA Coordinator at the Circuit Court Administration Off ce on OAHU-Phone No.808-539-4400,TTY 808-539-4853,FAX 539.4402,at least ten(10)working days prior to your hearing or appointment date_ 37 710088 STATE OF HAWAII CASE NUMBER CIRCUIT COURT OF THE SUMMONS THIRD CIRCUIT TO ANSWER CIVIL COMPLAINT PLAINTIFF VS. DEFENDANT(S) C & J COUPE FAMILY LIMITED PARTNERSHIP COUNTY OF HAWAII; COUNTY OF HAWAII, PLANNING DEPARTMENT; ZENDO KERN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE COUNTY OF HAWAII, PLANNING DEPARTMENT; 1250 OCEANSIDE LLC; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10 PLAINTIFF'S NAME&ADDRESS,TEL. NO. DAMON KEY LEONG KUPCHAK HASTERT KENNETH R. KUPCHAK#1085-0 TOREN K. YAMAMOTO#11520-0 1003 BISHOP STREET, SUITE 1600 HONOLULU, HAWAII 96813 TO THE ABOVE-NAMED DEFENDANT(S) You are hereby summoned and required to f le with the court and serve upon DAMON KEY LEONG KUPCHAK HASTERT, ATTN: KENNETH R. KUPCHAK, ESQ. and TOREN K. YAMAMOTO, ESQ. plaintiff's attorney, whose address is stated above, an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the date of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. THIS SUMMONS SHALL NOT BE PERSONALLY DELIVERED BETWEEN 10:00 P.M.AND 6:00 A.M. ON PREMISES NOT OPEN TO THE GENERAL PUBLIC, UNLESS A JUDGE OF THE ABOVE-ENTITLED COURT PERMITS, IN WRITING ON THIS SUMMONS, PERSONAL DELIVERY DURING THOSE HOURS. A FAILURE TO OBEY THIS SUMMONS MAY RESULT IN AN ENTRY OF DEFAULT AND DEFAULT JUDGMENT AGAINST THE DISOBEYING PERSON OR PARTY. OS C,4 The original document is f led in the Effective Date of 28-Oct-2019 q} Judiciary's electronic case management Signed by: /s/CherSalmo s a system which is accessible via eCourt Kokua r at: http:/www.courts.state.hi.us Clerk, 3rd Circuit, State of Hawaii ;fes o- ~ 0p •e- In In accordance with the Americans with Disabilities Act, and other applicable state and federal laws, if you require a reasonable accommodation for a disability, please contact the ADA Coordinator at the Circuit Court Administration Off ce on HAWAII-Phone No.808-961-7424,TTY 808-961-7422, FAX 808-961-7411, at least ten (10)working days prior to your hearing or appointment date. Form 1C-P-787(3CCT)(10/19) Summons to Complaint EliRG-AC-508(10/19) EXHIBIT 7a CARLSMITH BALL LLP Electronically Filed PATRICK K.WONG 5878 THIRD CIRCUIT 75-5722 Kauakini Highway, Suite 208 3CCV-23-0000123 Kailua Kona,Hawai`i 96740 12-JAN-2024 Tel.No. (808)329-6464 0314 PM Facsimile No. (808)329-9450 Dkt. 149 ORD pwong icarlsmith.com DEREK B. SIMON 10612 1001 Bishop Street,Suite 2100 Honolulu,Hawai`i 96813 Tel.No.(808) 523-2500 Facsimile N.Q. (808)523-0842 dsimon c(icarlsmith.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- - iwesl ey-smithnacarlsmith.com Attorneys for Defendant -1250 OCEANSIDE LLC IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`I C&J COUPE FAMILY LIMITED CIVIL NO. 3CCV-23-0000123- PARTNERSHIP, ORDER RE:DEFENDANT 1250 Plaintiff, OCEANSIDE LLC'S MOTION TO vs. DISMISS COMPLAINT,FILED MARCH 31,2023 [DKT. 1],FILED COUNTY OF HAWAII; COUNTY OF MAY 11,2023 [DKT. 15] HAWAII,PLANNING DEPARTMENT; ZENDO KERN,IN HIS OFFICIAL HEARING: CAPACITY AS DIRECTOR OF THE DATE: September 15, 2023 COUNTY OF HAWAII,PLANNING TIME: 3:00 p.m. DEPARTMENT; 1250 OCEANSIDE LLC; JUDGE: Hon.Wendy M.DeWeese JOHN DOES 1-10;JANE DOES 1-10;DOE CORPORATIONS 1-10;DOE PARTNERSHIPS 1-10;DOE ENTITIES 1-10; JUDGE: Hon.Wendy M.DeWeese TRIAL:None set Defendants. - - 4895-9945-3057.2.051730-00058 EXHIBIT 7a ORDER RE: DEFENDANT 1250 OCEANSIDE LLC'S MOTION TO DISMISS COMPLAINT, FILED MARCH 31, 2023 [DKT. 11FILED MAY 11, 2023 [DKT. 151 Defendant 1250 OCEANSIDE LLC's ("Oceanside")Motion to Dismiss Complaint,filed March 31, 2023[Dkt. 1J, filed May 11, 2023 [Dkt. 15] ("Motion"), came on for hearing before the Honorable Wendy M. DeWeese on September 15, 2023 at 3:00 p.m. Kenneth R. Kupchak, Esq. and Toren K. Yamamoto, Esq. (via Zoom) appeared for Plaintiff C &J Coupe Family Limited Partnership. Lerisa L. Heroldt, Esq. appeared for Defendant County of Hawai`i ("County"). Patrick K. Wong, Esq., Derek B. Simon, Esq. (via Zoom), and Ian R. Wesley- Smith (via Zoom) appeared for Oceanside. The Court, having considered the Motion, the opposition, reply memorandum, the argument of counsel, and the records and files in this action, and good cause appearing therefor, hereby finds, concludes, and orders as follows: FINDINGS OF FACT 1. To the extent that any of the following Findings of Fact shall be determined to be Conclusions of Law, they shall be deemed as such. 2. Plaintiff's First Amended Complaint for Declaratory and Injunctive Relief filed June 27, 2023 [Dkt. 83] ("Complaint"), alleges that Oceanside and the County have failed to comply with their obligations under County of Hawai`i Ordinance Nos. 96-7 and 96-8 (together, the "Ordinances"),, and the Development Agreement dated April 20, 1998, by and between the County and Oceanside's predecessor-in-interest, 1250 Oceanside Partners (the "Development Agreement"). 3. The Ordinances are incorporated by reference into "the Development Agreement, both of which relate, to the development of the residential subdivision known as Hokuli`a. - - - 4895-9945-3057.2.051730-00058 2 4. Plaintiff alleges that, as an adjoining landowner, it has suffered tangible harm arising from Oceanside's alleged failure to build certain roadways (including stub outs) to dedicable standards and provide adequate public access to the shoreline as required under the Ordinances and Development Agreement. 5. Plaintiff further alleges that it has suffered tangible harm, including deprivation of its constitutional due process rights, arising from the County's alleged failure to enforce the Ordinances and Development Agreement against Oceanside, and the County's alleged use of improper procedures for amending the Development Agreement. 6. Plaintiff's Complaint asserts the following three causes of action: (i) Count I (County and Oceanside) seeks a declaratory judgment that: (a) Oceanside has violated the terms of the Ordinances and Development Agreement; and (b) the __ County unlawfully granted a variance to amend the conditions of the Development Agreement and Ordinances, and unlawfully adopted a resolution accepting dedication of three roadway lots that do not meet County dedicable standards; (ii) Count II (County) seeks injunctive relief enjoining the County from refusing to enforce the Development Agreement; and (iii) Count III (County) seeks a declaratory judgmentthat the County has interfered with Plaintiff's procedural and substantive due process rights. 7. The Complaint does not assert a breach of contract claim, but Plaintiff uses its alleged status as a third-party beneficiary under the Development Agreement as a vehicle to argue that this Court has concurrent subject-matter jurisdiction under Haw. Rev. Stat. ("HRS") § 46-4(a). 4895-9945-3057.2.051730-00058 3 8. Oceanside's Motion seeks dismissal of Plaintiff's Complaint on a number of grounds, including under the primary jurisdiction doctrine. CONCLUSIONS OF LAW 1. To the extent that any of the following Conclusions of Law shall be determined to be Findings of Fact, they shall be deemed as such. 2. The Court and the County of Hawai`i Planning Department ("Planning Department") share concurrent jurisdiction over the subject matter of this action pursuant to HRS § 46-4, and venue is proper in this Circuit. 3. The primary jurisdiction doctrine is implicated when, as here, claims are originally cognizable by both the court and the administrative agency. Specifically, the primary jurisdiction doctrine comes into play when claims are originally cognizable in court, but where enforcement of the claims requires a resolution of issues, which under a regulatory scheme, have been placed within the special competence of an administrative body. 4. When the primary jurisdiction doctrine applies, the judicial process is generally suspended pending referral of the issues to the relevant admini§trative body for its views. 5. The Complaint's allegations warrant application of the primary jurisdiction doctrine because: a. the allegations raise issues of fact that are not within the conventional experience of judges and require the exercise of administrative discretion; b. application of the primary jurisdiction doctrine here will promote uniformity and consistency in the regulatory process; c. the- Court is not an expert in County zoning regulations, building standards, or the various other arcane nuances of County-level administrative procedures with 4895-9945-3057.2.051730-00058 4 • respect to complex development agreements, all of which are directly relevant to the determination of the issues raised in Plaintiff's Complaint; d. the Court is not the best-suited decision-maker for determining whether the Development Agreement and Ordinances were actually complied with, whether the Haleki`i street extension was built to dedicable standards, or whether the County's variance and resolution procedures allegedly used to amend the Development Agreement were proper amendments as contemplated by the,Development Agreement; and e. the Court may not substitute its judgment for the expertise of the Planning Department and County of Hawai`i Board of Appeals. 6. Application of the primary jurisdiction doctrine here requires Plaintiff to avail itself of the declaratory ruling procedure provided under HRS Chapter 91 and the Planning Department's Rules of Practice and Procedure by seeking a declaratory ruling from the County of Hawai`i Planning Director("Planning Director") regarding the County's enforcement of and Oceanside's compliance with the Development Agreement and Ordinances. 7. Even if referral of the issues raised in the Complaint to the County's administration process does not resolve Plaintiff's claims, at the very least it will develop a record in this case. The Planning Department's expertise and specialized knowledge is critical to the Court's ability to understand the issues raised sufficient to render an adequate and well- considered judgment in this case. This necessary perspective will only be available to the Court if the Court first refers the matter to the Planning Director.and the matter runs its course through the County's administrative process.. 4895-9945-3057.2.051730-00058 5 • ORDER GRANTING IN PART DEFENDANT 1250 OCEANSIDE LLC'S MOTION TO DISMISS COMPLAINT,AND FILED MARCH 31, 2023[DKT. 11, FILED MAY 11, 2023 [DKT. 15], AND STAYING PROCEEDINGS PENDING REFERRAL TO THE COUNTY OF HAWAII PLANNING DEPARTMENT Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED: 1. The Motion is hereby GRANTED, in part, under the primary jurisdiction doctrine; 2. Plaintiff shall avail itself of the declaratory ruling procedure provided under HRS Chapter 91 and the Planning Department's Rules of Practice and Procedure, and seek a declaratory ruling from the Planning Director regarding the issues raised in the Complaint, including Oceanside's compliance with the Ordinances and Development Agreement; 3. This action is STAYED pending the outcome of the County's declaratory ruling process; 4. Every six months following the entry of this Order, Plaintiff shall file a brief status report with the Court regarding Plaintiff's progress with the County's declaratory rulings process; Oceanside and the County may also submit similar reports. 5. All claims set forth in the Complaint remain in this action. DATED: Kailua-Kona, Hawai`i, Ire Z • JUDGE OF THE AB-71.—ENTITLED COURT 4895-9945-3057.2.051730-00058 6 - • �ECEWED JAN 1 Y 1(124 (LOB) APPROVED AS TO FORM: KENNETH R. KUPCHAK, ESQ. TOREN K. YAMAMOTO, ESQ. Attorneys for Plaintiff C &J COUPE FAMILY LIMITED PARTNERSHIP ELIZABETH A. STRANCE, ESQ. LERISA L. HEROLDT, ESQ. LAUREEN L. MARTIN, ESQ. Attorneys for County of Hawai`i C&J Coupe Family Limited Partnership v. County of Hawaii et al.; Civil No. 3CCV-23- 0000123; ORDER RE: DEFENDANT 1250 OCEANSIDE LLC'S MOTION TO DISMISS COMPLAINT, FILED MARCH 31, 2023 [DKT. 1], FILED MAY 11, 2023 [DKT. 15] 4895-9945-3057.2.051730-00058 7 Vrith7i,t3:7. 4 CEIVED LDB) DEC 0 6 2023 RECEIVEIEW JAN 12 2024 (LDBa EXHIBIT 7b ELIZABETH A. STRANCE 4715 Electronically Filed Corporation Counsel THIRD CIRCUIT LERISA L. HEROLDT 7519 3CCV-23-0000123 Deputy Corporation Counsel, Section Chief 19-JAN-2024 Office of the Corporation Counsel 10:11 AM County of Hawai`i Dkt. 151 ORDG 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: lerisa.heroldt@hawaiicounty.gov Attorneys for County Defendants IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII C &J COUPE FAMILY LIMITED Civil No. 3CCV-23-0000123 PARTNERSHIP, ORDER GRANTING IN PART Plaintiff, COUNTY DEFENDANTS'MOTION TO DISMISS THE COMPLAINT FOR DECLARATORY AND INJUNCTIVE vs. RELIEF,FILED MARCH 31, 2023 [DKT. 11, FILED MAY 25, 2023 [DKT. COUNTY OF HAWAII; COUNTY OF 21],AND STAYING PROCEEDINGS HAWAII, PLANNING DEPARTMENT; PENDING REFERRAL TO COUNTY ZENDO KERN, IN HIS OFFICIAL OF HAWAII PLANNING CAPACITY AS DIRECTOR OF THE DEPARTMENT COUNTY OF HAWAII, PLANNING DEPARTMENT; 1250 OCEANSIDE Hearing Held: LLC; JOHN DOES 1-10; JANE DOES 1- Date: September 15, 2023 10; DOE CORPORATIONS 1-10; DOE Time: 3:00 p.m. PARTNERSHIPS 1-10; and DOE Judge: Hon. Wendy M. DeWeese ENTITIES 1-10, Trial Date: None Defendants. 1 EXHIBIT 7b ORDER GRANTING IN PART COUNTY DEFENDANTS'MOTION TO DISMISS THE COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, FILED MARCH 31, 2023[DKT. 11, FILED MAY 25, 2023 [DKT. 21], AND STAYING PROCEEDINGS PENDING REFERRAL TO COUNTY OF HAWAII PLANNING DEPARTMENT County Defendants'Motion to Dismiss the Complaint for Declaratory and Injunctive Relief, filed March 31, 2023[Dkt. 1], filed May 25, 2023 [Dkt. 21] ("Motion") came on for hearing before the Honorable Wendy M. DeWeese on September 15, 2023, at 3:00 p.m. Kenneth R. Kupchak, Esq. and Toren K. Yamamoto, Esq. (via Zoom) appeared for Plaintiff C & J COUPE FAMILY LIMITED PARTNERSHIP ("Plaintiff'). Deputy Corporation Counsel Lerisa L. Heroldt, Esq. appeared for Defendant COUNTY OF HAWAII ("County"). Patrick K. Wong, Esq., Derek B. Simon, Esq. (via Zoom) and Ian R. Wesley-Smith (via Zoom) appeared for Defendant 1250 OCEANSIDE LLC ("Oceanside"). The Court, having fully examined and considered the pleadings, the Motion, the memoranda, declarations and exhibits filed in support of and in opposition to the Motion, the records and files herein, having heard and considered the arguments of counsel and having placed its ruling on the record on September 15, 2023, hereby FINDS, CONCLUDES AND ORDERS: FINDINGS OF FACT To the extent any of the following Findings of Fact are determined to be Conclusions of Law, they shall be deemed as such. 1. Plaintiffs First Amended Complaint for Declaratory and Injunctive Relief, filed June 27, 2023, Dkt. 83 ("Complaint"), alleges the County and 2 Oceanside have failed to comply with their obligations under County Ordinance Nos. 96-7 and 96-8 (collectively "Ordinances"), and the Development Agreement, dated April 20, 1998, by and between the County and Oceanside's predecessor-in- interest, 1250 Oceanside Partners ("Development Agreement"). 2. The Ordinances are incorporated by reference into the Development Agreement, and the Ordinances and Development Agreement relate to the development of the residential subdivision known as Hokuli`a ("Hokuli`a"), surrounding areas and roadways. 3. Plaintiff, as an adjoining landowner to Hokuli`a, claims it has suffered tangible harm arising from Oceanside's alleged failure to build certain roadways (including stub outs) to dedicable standards and provide adequate public access to the shoreline as required under the Ordinances and Development Agreement. 4. Plaintiff further claims it has suffered tangible harm, including deprivation of its constitutional due process rights, arising from the County's alleged failure to enforce the Ordinances and Development Agreement against Oceanside and the County's alleged use of improper procedures for amending the Development Agreement. 5. The Complaint asserts the following three claims: a. Count I (County and Oceanside): seeking, in part, a declaratory judgment Oceanside has violated the Ordinances' and Development Agreement's terms; 3 b. Count II: requesting injunctive relief enjoining the County from refusing to enforce the Development Agreement; and c. Count III: requesting a declaratory judgment the County has somehow interfered with Plaintiffs procedural and substantive due process rights. 6. The Complaint does not assert a breach of contract claim, even though Plaintiff uses its third-party beneficiary allegations as a vehicle to argue this Court has concurrent subject matter jurisdiction under Haw. Rev. Stat. § 46-4(a). 7. The County's Motion seeks a dismissal of Plaintiffs Complaint on various grounds, including the primary jurisdiction doctrine. CONCLUSIONS OF LAW To the extent any of the following Conclusion of Law shall be determined to be Findings of Fact, they shall be deemed as such. Pursuant to the foregoing findings of fact, the Court concludes: 1. The Court and the County of Hawai`i Planning Department ("Planning') share concurrent jurisdiction over the subject matter of this action pursuant to Haw. Rev. Stat. § 46-4, and venue is proper in this Circuit. 2. The primary jurisdiction doctrine is implicated when, as here, claims are originally cognizable by both the court and the administrative agency. The primary jurisdiction doctrine comes into play when claims are originally cognizable in court, but where enforcement of the claims requires a resolution of issues which, under a regulatory scheme, have been placed within a special competence of an administrative body. 4 3. When the primary jurisdiction doctrine is applied, the judicial process is generally suspended pending referral of the issues to the relevant administrative body for its views. 4. The Complaint's allegations warrant the application of the primary jurisdiction doctrine to this action because: a. the allegations raise issues of fact not within the conventional experience of judges, requiring the exercise of administrative discretion; b. Application of the primary jurisdiction doctrine here will promote uniformity and consistency in the regulatory process; c. the Court is not an expert in County zoning regulations, building standards or the various other arcane nuances of County-level administrative procedures with respect to complex development agreements, all of which are directly relevant to the determination of the issues raised in Plaintiff's Complaint; d. the Court is not the best-suited decisionmaker for determining whether the Development Agreement and Ordinances were actually complied with, whether the Halekii street extension was built to dedicable standards or whether the County's variance and resolution procedures allegedly used to amend the Development Agreement were proper amendments as contemplated by the Development Agreement; and e. the Court may not substitute its judgment for Planning's or the County Board of Appeals' expertise. 5 5. Application of the primary jurisdiction doctrine here requires Plaintiff to avail itself of the declaratory ruling procedure provided under flaw. Rev. Stat. ch. 91 and the Planning's Rules of Practice and Procedure (2021) by seeking a declaratory ruling from the County's Planning Director ("Planning Director") regarding the County's enforcement and Oceanside's compliance with the Development Agreement and Ordinances. 6. Even if referral of the issues raised in the Complaint to the County's administrative process does not ultimately resolve Plaintiffs claims, at the very least referral will cause the development of a record in this case. The Planning Director's expertise and specialized knowledge is critical to the Court's ability to understand the issues raised sufficient to render an adequate and well-considered judgment in this case. This necessary perspective will only be available to the Court if the Court first refers the matter to the Planning Director and the matter runs its course through the County's administrative process. ORDER GRANTING IN PART COUNTY DEFENDANTS'MOTION TO DISMISS THE COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, FILED MARCH 31, 2023 [DKT. 1], FILED MAY 25, 2023 [DKT. 21], AND STAYING PROCEEDINGS PENDING REFERRAL TO COUNTY OF HAWAII PLANNING DEPARTMENT Based on the Findings of Fact and Conclusions of Law herein, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. The Motion is hereby GRANTED, in part, under the primary jurisdiction doctrine; 6 2. Plaintiff shall avail itself of the declaratory ruling procedure provided under Haw. Rev. Stat. ch. 91 and the Planning's Rules of Practice and Procedure and seek a declaratory ruling from the Planning Director regarding the issues raised in the Complaint, including Oceanside's compliance with the Ordinances and Development Agreement; 3. This action is STAYED pending the outcome of Planning's declaratory ruling process; 4. Every six months following the entry of this Order, Plaintiff shall file a brief status report with the Court regarding Plaintiffs progress with Planning's declaratory ruling process; the County and Oceanside may also submit similar reports. 5. All claims set forth in the Complaint - •0 ai .' I this action. Dated: Kailua-Kona, Hawai`i 1111y9 _ 7 r■\ • frArelti JUDGE OF THE ABOVE-ENTITLED COURT APPROVED AS TO FORM: /s/ Kenneth R. Kupehak, Esq. Attorney for Plaintiff C & J COUPE FAMILY LIMITED PARTNERSHIP /s/ Derek B. Simon, Esq. Attorney for Plaintiff 1250 OCEANSIDE LLC 7 EXHIBIT 8 �•Y OIy William P. Keno/ �" �' BJ Leithead Todd Mayor Director `,,�•- rf g N 17irector ;I�•II Fr �: '7 � 2,-"ro;- . Margaret K.Masunaga #••••• Deputy • County of Hawaii PLANNING DEPARTMENT Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawai`i 96720 Phone(808)9614288 • Fax(808)961-8742 January 31, 2011 Sidney Fuke Planning Consultant 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: SUBJECT: Variance Application: VARIANCE(VAR 10-027) Agent: Sidney Fuke,Planning Consultant Applicant: 1250 Oceanside Partners Owner: 1250 Oceanside Partners Request: Variance from Chapter 23,Subdivisions TMK: 7-9-012:004,006,011,029 and 034; 8-1-004: 003, 064, 065, 068 and 070; 8-1-032: 054; 8-1-033: 013 through 017;and 8-1-026: 057 and 8-1-032: 054 After reviewing your Variance Application, the Planning Director certifies the approval of VAR 10-027 from minimum road improvements, subject to variance conditions. The variance is from Hawaii County Code, Chapter 23, Subdivisions, Article 6, Division 2, Improvements Required, Section 23-86, Requirements for dedicable streets and Section 23-95, Right-of-way improvement. VAR 10-027 permits the retention of existing and construction of new private 20-foot wide roadways with 50 and 60-foot wide rights-of-way within a multi-phased residential subdivision (Hokulia). The requested road section would be to omit the requirement for grading and paving of the road shoulders and replace with grassed shoulders. The decision to approve VAR 10-027 is based on the following background information and findings. BACKGROUND 1- Location. The subdivision measures approximately 1,552 acres and is located on the border of the North and South Kona districts. Hawai•i County is an Equal Opportunity Provider and Employer FEB .i ?On EXHIBIT 8 Sidney Fuke Planning Consultant Page 2 January 31, 2011 2. Zoning. The property is zoned Residential-Agriculture — 1 Acre (RA-1A) by the County and designated Agriculture (A) by the State Land Use Commission (LUC). 3. Subdivision Application. The Hokulia subdivision proposes a maximum of 665 residential lots, a golf course and associated amenities. Roads within the development, both existing and planned, are intended to be privately owned and maintained. The development is broken into three general phases: Phase I, Phase II, and Phase III. Phases I and II have been completed and granted final subdivision approval. Phase III is further separated into three sub-phases, North, South and East, with Phase III North and South having received tentative subdivision approval. Phase III East is under review by the Planning Department. 4. Variance Application. On April 20, 2010, a variance application was submitted for review, concerning the existing and proposed roads. On July 6, 2010 the variance application was returned, in part due to the department's stance that variance approval was not needed for Phases I, II and III North and South. Construction plans, including roadways with grassed shoulders in lieu of the paved shoulders, had already been approved by the County Departments of Public Works and Planning. Bonding and/or improvements in many of these road sections had already been completed. Following further discussion with the applicant and the request to reconsider, in order to legitimize the deviations from the subdivision code, the variance application was resubmitted on July 29, 2010 and included such items as the application, fee, narrative, maps and other associated material. Supplemental materials were also subsequently provided on October 18, 2010. 5. Agency Comments and Requirements. a. The State of Hawai`i Department of Health (DOH) memorandum is dated December 23, 2010. Refer to SOH-DOH memo in VAR application file. b. The Hawaii Fire Department (HFD) memorandum is dated January 4, 2011. Refer to HFD Memo in Variance application file. c. The Department of Public Works (DPW) memorandum is dated January 5, 2011. Refer to DPW memo in VAR application file. Sidney Fuke Planning Consultant Page 3 January 31,2011 6. Public Notice. The applicant filed a copy of the notice sent to surrounding property owners within 500 feet of the subject property. According to the affidavit provided by the applicant and dated May 18,2010, notices were provided on May 17`h. Notice of this application was published in the Hawaii Tribune Herald and West Hawai`i Today on December 28, 2010. The applicant filed an affidavit dated May 18, 2010, in regards to posting a sign upon the subject site that included pictures of the installed signage and other information. 7. Comments from Surrounding Property Owners or Public. a. A letter from Devlyn Akau, dated May 24, 2010, was submitted and cites concerns with impacts of development on the environment. Refer to memo in VAR application file. b. A letter from R. Dvorak, dated June 20,2010, was submitted and requests that no variances or future approval should be granted until past commitments are met. Refer to memo in VAR application file. Aside from the above, no further comments in support of or in opposition to the request have been submitted to the department REVIEW CRITERIA Chapter 23, Subdivisions, specifically, Section 23-14, provides the Planning Director general authority to grant variances from Chapter 23. Section 23-14 states in part: "Variances from the provisions of this chapter may be granted; provided, that a variance shall not allow the introduction of a use not otherwise permitted within the district; and provided further that a variance shall not primarily effectuate relief from applicable density limitations. Further, Section 23-15, Grounds for variances, states that no variance will be granted unless it is found that: a) There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial property rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; and b) There are no other reasonable alternatives that would resolve the difficulty; and c) The variance will be consistent with the general purpose of the district, the intent and purpose of this chapter, and the County general plan and will not be materially Sidney Fuke Planning Consultant Page 4 January 31, 2011 detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties. DISCUSSION The subject subdivision known as Hokulia is located in Central Kona which spans over 1,552 acres and will consists of 665 residential/agricultural parcels. The applicant is proposing a 20 foot roadway within 50 and 60-foot wide right-of-ways with the balance of the road-right-of-way being grassed in lieu of the Department of Public Works recommendation for shoulders and swales to be graded and paved. More specifically the applicant is seeking relief from all roadways within the subject subdivision, existing or proposed, including the Halekii Street extension (Road Lot R-1). The average slope of the subject property ranges from 15-20 percent, with some areas exceeding 20 percent. Therefore, full pavement of the right-of-way would increase water runoff impacting the lower and adjoining properties. The applicant has indicated that grassed swales would not only be more visually compatible and consistent with the area's character but would also act as natural storm drain and impede the velocity of any potential storm water. In considering Criteria "c" above, the department cites the DPW memo, dated January 5, 2011, which states in part the following: "The applicant asks for relief for all Hokulia Subdivision roads, none of which have received a construction final approval. DPW recommends that planning confirm if correct TMMC parcels are included on the application. The application does not acknowledge that Ordinance 96-008 Conditions L and M required dedication of the connecting roads. DPW objects to granting variance without specifying cross section details and distinguishing those streets. For example Halekii Street extension, which is a collector street, (see General Plan and Kona Community Development Plan), shall be dedicated to the County as required by ordinance. Because of safety, liability and maintenance concerns, separate details should be provided for roads that do not specifically require dedication to the County by ordinance and those that do require dedication. Additional conditions such as roadside landscape and drainage s.}.steni maintenance requirements and streetlights along with surety in case of default should be imposed for roads required to be dedicated to the County". It should be noted that the extension of Halekii Street has been completed without full right-of- way improvements per construction plans approved by the Department of Public Works. Sidney Fuke Planning Consultant Page 5 January 31, 2011 Also, similar type relief from road right-of-way improvements have been granted in the past for subdivisions where the road right-of-way and all improvements therein would be owned and maintained by an entity other than the County of Hawaii. More specifically, the development of the Lualaci subdivision in Waimea was given relief from improvements by installing grassed swales within the road rights-of-way. This approval was granted with the condition that there would be a written assurance for a maintenance program for the grassed swales. This program may include the requirements for a maintenance bond or other security to assure the work is done in a timely manner. In order to subdivide the property, an applicant is required to provide road improvements meeting the minimum requirements of the Department of Public Works. In review of the road variance request, the cost for additional right-of-way road improvements would be putting excessive demands upon the applicant when a more reasonable alternative (i.e. allowing the existing road improvement to continue with ongoing maintenance provided by the private owners association)may be permitted under the general authority of the Subdivision. INTENT AND PURPOSE Chapter 23, Subdivisions, specifically, Section 23-14, permits and provides the Planning Director general authority to grant variances from Chapter 23. The intent and purpose of road/access requirements to a proposed subdivision is to ensure legal and physical access to the proposed lots that are clearly defined and accessible from a public road by domestic and farm vehicles, police, fire, and other service vehicles under various weather conditions without constant maintenance. Further intent of requiring full improvements within the right-of-ways is to minimize the cost of its maintenance by the County of Hawaii. The applicant's report has stated in part: "However, as the existing and proposed roads are intended to be private, its maintenance and associated liability will be the responsibility of the homeowners association,who will eventually end up owning and maintaining all of the roads. Thus, the County's concern of maintenance— resulting in the full right-of-way pavement requirement — is absent for private roads. It should also be noted that this variance would not compromise any safety concern. There will still be a 20-22 foot wide paved road, which will be sufficient to allow for emergency vehicles to access the entire project area. The approval of this variance should therefore not be inherently violative of the spirit and intent of the Subdivision Code". Sidney Puke Planning Consultant Page 6 January 31, 2011 Based on the foregoing findings, this variance request would be consistent with the general purpose of the zoning district and the intents and purposes of the Zoning Code, Subdivision Code and the County General Plan. Furthermore, it is felt that the variances sought to permit the subdivision will not be materially detrimental to the public's welfare and will not cause substantial adverse impact to the area's character and to adjoining properties in this subdivision or immediate area. VARIANCE DECISION---CONDITIONS The variance request concerns the Department of Public Works recommendation for 20-foot paved roadways within 50 and 60 foot rights-of-way, with the balance of the right-of-way (shoulders and swales) being graded and paved, for all existing and proposed roadways within the subject subdivision including the Halekii Street extension (Road Lot R-1). The variance request, to permit the shoulder and swale areas to be grassed in lieu of the grading and pavement, is approved subject to following variance conditions: 1. Road Variance. The sub divider, owners, their assigns, or successors shall be required to provide written assurance meeting with the approval of the Planning director, in consultation with the Department of Public Works, that there will be a maintenance program for the grassed swales. This program may include the requirements for a maintenance bond or other security to assure the work is done in a timely manner. The proposed lots shall form a Homeowner or Road Association or include appropriate deed language, being covenants, conditions, and restrictions, which affect the entire property and/or proposed lots arising from the approval of the pending subdivision application and be duly recorded at the Bureau of Conveyances of the State of Hawaii by the Planning Department at the cost and expense of the applicant: a. The applicant and/ or owner(s) shall indemnify and defend the State of Hawaii or County of Hawaii from any and all liability arising out of vehicular access to and from the subject property utilizing the paved road or utilities within the Hokulia subdivision. Upon written demand of the County of Hawaii, the applicant and /or owners, their assigns, or successors shall agree to participate and pay their fair share percentage of any improvement district adopted for the purpose of roadway improvements serving the proposed lot(s) arising out of the Hokulia Subdivision. Should the improvement district require acquisition of any privately owned rights-of-way fronting the lots arising out of the Hokulia Subdivision, such tights-of-way shall be dedicated to the County without cost and the value of the dedication credited to the fair share Sidney Fuke Planning Consultant Page 7 January 31, 2011 contribution of the respective lot owner(s). Should the Council adopt a Unified Impact Fees Ordinance, setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. b. The future lot owner(s) agree to participate in any road maintenance agreement or/and pay their fair share to maintain access and paved roadways within the Hokulia Subdivision. In the event that there are any amendments or changes to the subdivision after the agreement is signed, the applicant shall be responsible for informing the County Planning Department of such amendments or changes so that the agreement can be amended concomitantly. Further, the written or recorded agreement shall be binding upon the owner(s), their successors or assigns and shall be incorporated as an exhibit and made part of each agreement of sale, deed, lease, or similar documents affecting the title or ownership of the existing property or approved subdivided lots. 2. The subdivision shall meet with all of the conditions of Ordinance No. 96 007 and Ordinance 96 008, Tentative Subdivision Approval conditions and requirements of the Hawaii County Zoning Code, Ordinance and Subdivision Code not covered by this variance. 3. The sub divider, owner(s), their assigns or successors shall pay any outstanding real property taxes and comply with all other applicable State statutes and County ordinances pertaining to building improvements and land use. Should any of the foregoing stated conditions not be complied with, the Planning Director may proceed to declare VAR, 10-027 null and void. Sincerely, //Liz/ BJ LEITHEAD TODD Planning Director GS:LN:nci P:1Adrnin Permits.Division\Variance12010 Files\VAR 10-027 1250 Oceanside Partners.doc Sidney Fuke Planning Consultant Page 8 January 31, 2011 ti cc: DPW—Engineering VAR 10-027 TMK File SUBDIVISION Files OPPONENTS EXHIBIT 9 tr^cs COUNTY OF HAWAII ..(4. 'L';‘;':•4'. STATE OF HAWAII . ,l�•OF•N+�• RESOLUTION NO. 317 12 RESOLUTION ACCEPTING THE DEDICATION OF ROAD LOTS 10-A, 1-B AND 3-A-2, BEING TAX MAP KEYS: (3) 8-1-035:004(POR.)(LOT 10-A), (3) 8-1-035:001 (POR.)(LOT 1-B)AND (3) 8-1-036:001 (POR.)(LOT 3-A-2), SITUATED AT HALEKII AND KEEKEE 1,DISTRICT OF SOUTH KONA, ISLAND,COUNTY AND STATE OF HAWAII, FROM 1250 OCEANSIDE PARTNERS,A HAWAI`I LIMITED PARTNERSHIP. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII: WHEREAS, 1250 Oceanside Partners, a Hawai`i limited partnership, is the owner of the Road Lots 10-A, 1-B and 3-A-2,portions of which contains an area of 7.868 acres, 0.081 acre and 0.066 acre, more or less,respectively, identified as a portion of Tax Map Keys: (3) 8-1-035:004(por.), (Lot 10-A), (3) 8-1-035:001 (por.)(Lot 1-B)and(3) 8-1-036:001 (por.) (Lot 3-A-2), situated at Haleki`i and Keekee 1, district of South Kona, Island, County and State of Hawai`i, as delineated on Exhibit"A"attached; and WHEREAS, subdivision approval for Road Lots 10-A, 1-B and 3-A-2 was granted on August 10, 2012, with the understanding that these lots will be transferred to the County of Hawaii as a secondary arterial road(rural)connected to the Mamalahoa Bypass; and WHEREAS, 1250 Oceanside Partners, a Hawai`i limited partnership is desirous of dedicating the above roadway lots to the County of Hawaii 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 EXHIBIT 9 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 Hawaii 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 Hawaii County Charter, provides that the council may accept gifts, which include the dedication of land, on behalf of the County of Hawai`i. 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 Hawaii accepts the dedication of Road Lots 10-A, 1-B and 3-A-2, portions of which contains an area of 7.868 acres, 0.081 acre and 0.066 acre, more or less, respectively, identified as a portion of Tax Map Keys: (3) 8-1-035:004 (por.) (Lot 10-A), (3) 8-1-035:001 (por.) (Lot 1-B) and (3) 8-1-036:001 (por.) (Lot 3-A-2) and, delineated on Exhibit "A" attached hereto for public road and drainage purposes. 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; 2 (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 Hilo , Hawai`i, this 9th day of November , 2012. INTRODUCED BY: 0/// 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 I IOFFMANN X the vote indicated to the right hereof adopted by the COUNCIL of the IKEDA X 1 County of Hawai`i on November 9, 2012 ONISHI X PILAGO X ATTEST: SMART X YAGONG X A YOSHIMO"I'O X wicapmet(pi , , , 4. A: ', ' ). 8 0 1 0 U---, Reference: C-896/Waived PWIRC JUNTY CLERK CHAIRPERSON & PRESIDI G O . ICER RESOLUTION NO. 317 12 3 .416 2a r ‘0i J r$..5S1. 1•141 1111 i LOT 3-A-1-A LOT 1-A-1 —1 � �1 nor 6 4414 DEDICATION LOCATION MAP HOKULI'A, PHASE 1 TO BE DEDICATED:HALEKI'I STREET (LOTS 10-A, 1-B AND 3-A-2) TYPE OF ROAD:80-FT. WIDE RIGHT-OF-WAY WITH 24-FT. WIDE AC PAVEMENT LENGTH OF ROAD,4.284 FEET NUMBER OF LOTS: 2 AVERAGE LOT SIZE: 52 ACRES TAX MAP KEY: 8-1-035 (3RD DIVISION) SHEET 1 OF 1 DATE APRIL 7,2012 p.\18000-18459\1 400.31\d9n\164003Ird dgn EXHIBIT "A" EXHIBIT 10 �yy0 £30NDLLNOd 40-1-9 001 WOAVH'0000 MOOS ONV H1HON:N000001 100183 p r 00'"3H 1SOIY1 1 3SVHd V,MNOH'3lLLL 10311O0d ..y E. m�' r T al fir CQ r^— 44 A5^ i. 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