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Home My WebLink About2024-09-18 Planning Director Exhibit List (PL-BOA-2024-000105) DeVera, Ashley From: Watanabe, Kelsey Sent: Wednesday, September 18, 2024 3:38 PM To: Planning Board of Appeals Cc: Bailey, Elizabeth B. Subject: 1250 Oceanside LLC - PL-BOA-2024-000104 & PL-BOA-2024-000105 Attachments: 1250 Exhibit List.pdf Good Afternoon, Please find attached Exhibit list for both cases mentioned above. - Director of the Planning Department, County of Hawaii's Exhibit List; Certificate of Service Please process at your earliest convenience; no hard copy to follow. Thank you, Kelsey Ke l4ey W atcw►.a lrni Legal Technician Ito E. Britt Bailey, Deputy Corporation Counsel Sherilyn K. Tavares, Deputy Corporation Counsel Inha Kandatsu Kang, Deputy Corporation Counsel and Corporation Counsel Training Coordinator Office of Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, HI 96720 Phone (808) 961-8251 Fax (808) 961-8622 1 ELIZABETH A. STRANCE 4715 Corporation Counsel E. BRITT BAILEY 9814 JEAN K. CAMPBELL 7424 Deputies Corporation Counsel Office of the Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-Mail: ElizabethB.Bailey@hawaiicounty.gov Attorneys for COUNTY OF HAWAII PLANNING DIRECTOR BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAII In the Matter of Appeal CASE NOS. PL-BOA-2024-000104 & PL-BOA-2024-000105 of 1250 OCEANSIDE, LLC DIRECTOR OF THE PLANNING DEPARTMENT, COUNTY OF HAWAI`I'S From the decisions of the Planning Director, EXHIBIT LIST; CERTIFICATE OF dated April 29, 2024 (Docket Nos. 24-0001 & SERVICE 24-0002) Hearing Date: October 11, 2024 EXHIBIT LIST EXHIBIT DESCRIPTION NO. PL-BOA-2024-000104: In Re: C. & J. Coupe Family Ltd. P'ship, Zendo A Kern, Planning Director, County of Hawai`i's Declaratory Order, Docket 24-0001, April 29, 2024 PL-BOA-2020-000105: In Re: 1250 Oceanside, LLC, Zendo Kern, B Planning Director, County of Hawai`i's Declaratory Order, Docket No. 24-0002, April 29, 2024 C Ordinance No. 96-7, January 15, 1996 D Ordinance No. 96-8, January 15, 1996 County of Hawai`i, Office of the Corporation Counsel, Letter to Mr. E John De Fries RE: Material Breach by 1250 Oceanside of the Development Agreement between the County of Hawai`i and 1250 Oceanside, dated April 29, 2010 Dated: Hilo, Hawai`i, September 18, 2024. COUNTY OF HAWAI`I PLANNING DIRECTOR By: /s/E. Britt Bailey E. BRITT BAILEY Deputy Corporation Counsel Its Attorney 2 EXHIBIT A BEFORE THE PLANNING DIRECTOR PLANNING DEPARTMENT COUNTY OF HAWAI'1 STATE OF HAWAII- In AWAIIIn the Matter of DOCKET NO. 24-0001 DECLARATORY ORDER; EXHIBITS C&J COUPE FAMILY LIMITED PARTNERSHIP, Petitioner ZENDO KERN, PLANNING DIRECTOR, COUNTY OF HAWAI`I'S DECLARATORY ORDER I, BACKGROUND Hokuli'ais 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 Hawaii ("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 1 EXHIBIT A 894 force as of the date of the Development Agreement. Tn other words, the Ordinances and other 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 (1 983), 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 11 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 2 EXHIBIT A 895 agreements due to the failure to timely construct the required improvements and the invalidity of 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 ("Oceanside") 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 Halekii Extension")was accepted by the Hawaii 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 Haleki`i 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 (Petitioner"), an adjacent landowner, filed an action in the Circuit Court of the Third Circuit, State of Hawaii alleging that Oceanside 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. Cowl tV vfHawai`i et al., Civil No. 3CCV- 23-0000123 ("Lawsuit"). On September 15, 2023, the Circuit Court ruled Petitioner"shall avail itself of the declaratory ruling procedure provided under Hawai`i 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 Oceanside's 3 EXHIBIT A 896 compliance with the Ordinances and Development Agreement."' Order Granting in Part County Defendants 'Motion to Dismiss the Complaint,fbr Declaratory and Injunctive Relief,' Filed March 31, 2023 JDkt.17, Filed March 25, 2023 Mkt. 217, and Staying Proceedings Pending Referral to County of Hawai'1 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 Mkt, 1/, Filed May 11, 2023 Mkt. 157, filed in Lawsuit on January 12, 2024, at 6, Dkt. 149, Petitioner filed its Petition,fbr Declaratory Ruling on February 7, 2024, and Supplement to Petition for Declaratory Ruling, submitted on February 7, 2024 on March 27, 2024 (collectively, "Petition"). Oceanside filed its Petition fbr Declaratory Ruling on February 27, 2024 ("Oceanside Petition"). 11. 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 "Planning" or"Department" as used herein means the County's Planning Department. 4 EXHIBIT A 897 (1) A non-refundable filing and processing fee of one hundred dollars; (2) Name, address, telephone number, if available, and signature of each petitioner; (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 oldie City and County of.Honolulu ("CARD"), 114 Hawaii 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 Hawai`i 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: 1. Determine whether the Planning Director has the authority to determine—under the HRS, Hawaii Charter, County Code, and the Development Agreement—whether Oceanside is currently in compliance with the terms of the Development Agreement. 5 EXHIBIT A 898 2. Determine whether the Planning Director has the authority—under the HRS, Hawaii Charter, County Code and Development Agreement—to determine material breaches of the Development Agreement. 3. Determine which County official, if any, has the power to excuse a breach of the Development Agreement. 4. Determine whether Oceanside has,within the timeframe allotted, completed the following: a. designed and constructed/built the roads required under the Development Agreement and Incorporated Ordinances; and b. dedicated the roads required under the Development Agreement and Incorporated Ordinances. 5. Determine whether Resolution 317-12 and the Variance improperly amended the Development Agreement and Incorporated Ordinances. 6. Determine whether the Variance is unlawful, impermissible, and not authorized under Hawaii law. 7. Whether Petitioner received notice of the Variance, as required under the express dictate of County law. 8. Determine whether obligations in a development agreement can be excused by Variance under the Hawaii Constitution, HRS, Hawaii Charter, County Code, and Development Agreement. 9. Determine whether Resolution 317-12, as an improper attempt to amend the Development Agreement and Incorporated Ordinances, required notice to Petitioner which was not provided. 10. Determine whether the failures to provide notice of the Variance and Resolution were violations of Petitioner's right to due process of law. By its Supplemental Petition, Petitioner has requested the Director to issue a declaratory ruling as to the following additional questions: 1. Petitioner requests that Planning determine and declare whether Planning has primary jurisdiction to render decisions on the following issues: • Interpretation of Development Agreement • Interpretation, administration, and enforcement of Ordinances and Conditions 6 EXHIBIT A 899 • Validity/propriety of Variance No. VAR l0 027 and whether final decision on Variance has been made. 2. If Planning determines that is has authority to render decisions on the issues listed above, Petitioner requests that Planning identify the source of its authority. 3. Petitioner requests that Planning Director or Planning specifically identify those elements "well understood"by Planning that determine whether Oceanside is violating County law. 4. Petitioner requests that Planning identify the codes, rules, and requirements of Hawai'i law applicable to the issues in this matter, and identify Planning's final decision regarding Oceanside's compliance with or violation of, the same. 5. Petitioner request that Planning identify its final agency action on the applicability of the Ordinances and Conditions to Oceanside's property. 6. Petitioner requests that Planning state its interpretation of Ordinances and Conditions as applied to Oceanside's property. 7. Petitioner requests that Planning indicate its final agency action determining Oceanside's obligations under and compliance with, Ordinances and Conditions. 8. Petitioner requests that Planning identify its final agency action for Oceanside's alleged violations of Conditions. 9. Petitioner requests that Planning determine whether the construction standards and deadlines for the roadways are/were within the discretion of the County. 10.Petitioner requests that Planning identify whether there is any ambiguity regarding the applicability of the dedication requirements set forth in Ordinances and whether this allows County and Oceanside to present extrinsic evidence at the declaratory ruling hearing showing the County Council's intent regarding Ordinances. 11. Petitioner requests that Planning state whether Planning has rendered a final decision on Variance. 12. If Planning determines that it has rendered a final decision on Variance, Petitioner requests that Planning identify the date such decision was rendered. 13. If Planning determines that it has not rendered a final decision on Variance, Petitioner requests that Planning issue its final decision on Variance. 14. Petitioner requests that Planning declare whether its approval of a variance action is a "final agency action" that can be appealed. Conversely, if Planning determines that such 7 EXHIBIT A 900 decisions are not ripe for appeal, Petitioner requests that Planning provide an explanation and the legal basis therefor. 5. Petitioner requests that Planning identify the appropriate appellate tribunal to review Planning's decisions on variances. 16.Petitioner requests that Planning identify whether Oceanside was required to "provide roadway stub-outs ... to provide further connections between the [Hokuli'a Development Project] and its adjacent north and south boundaries. 7. Petitioner requests that Planning identify whether these roadway stub-outs were required so that future connections could provide access between properties adjacent to the Hokuli a Development Project. 18.Petitioner requests that Planning identify whether Oceanside's requirement to build the "roadway stub-outs" is dependent on the development of Petitioner's property. 19. Petitioner requests that Planning state whether it will bring a zoning enforcement. action against Oceanside. B. Department's Response 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: Initial Petition a. Question 1 does not designate any specific provision, rule or order of the Director or the Department. Tt seeks an interpretation of the Development Agreement but the Development Agreement is not a Department order. b. Questions 3, 8, and 10 do not designate a specific provision, rule or order of the Director or the Department. Supplemental Petition 8 EXHIBIT A 901 a. Questions I, 5, 7, 8, 9, 11, 12, 13, 16, 17, 18, and 19 do not designate any specific provision,rule or order of the Director or the Department. b. Questions 2, 3, 4, 14, and 15 do not designate any specific provision, rule or order of the Director or the Department and are an inappropriate reversal of the Petitioner's and Director's roles pursuant to Rule 3-1(b) in that, rather than providing the Director with the law to be applied and interpreted, Petitioner requests the Director cite to the applicable law. 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 Hawaii at 197, 159 P.3d at 156, and, therefore, they will not be addressed in this Order: Initial Petition 1. Question 2 seeks an interpretation of the Development Agreement but the Development Agreement is not a Department order. 2. Question 5 seeks an interpretation of the Development Agreement but the Development Agreement is not a Department order, and/or seeks review or affirmance of a Council action over which the Director has no authority, and/or seeks review or affirmance of a past Department action, i.e., the issuance of Variance 10-027, which is no longer appealable. See CARD, 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). 9 EXHIBIT A 902 3. Questions 6 and 7 seek review or affirmance of a past Department action, i.e., the issuance of Variance 10-027, which is no longer appealable. See CARD, 114 Hawaii at 196, 159 P.3d at 155. 4. Question 9 seeks review or affirmance of a Council action over which the Director has no authority. Supplemental Petition 1 . Questions 11, 12,and 13 seek review or affirmance of a past Department action, i.e., the issuance of Variance 10-027, which is no longer appealable. See CARD, 114 Hawaii at 196, 159 P.3d at 155. To avoid an unauthorized exercise of discretion, the Director will not address the Petition's above-referenced questions. 2. Questions Partially Within the Scope of the Director's Authority To the extent Initial Petition Question 4 requests the Director to interpret the Development Agreement, the question will not be addressed in this Order. To the extent that Supplemental Question 10 seeks procedural advice from the Director, the question will not be addressed in this Order. However, addressing the Ordinances' requirements and Oceanside's compliance therewith is a question which seeks Department advice on how a statute, agency rule, or order would apply to a specific set of facts. To the extent Initial Petition Question 4 and Supplemental Petition Questions 6 and 10 request an interpretation of the Ordinances' conditions as applied to the Project, those questions are within the Director's authority. 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" 10 EXHIBIT A 903 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 1.5-16, 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- 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 11 EXHIBIT A 904 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. IV. REQUEST FOR PUBLIC HEARING Planning Rule 3-2 requires that: [A]ny petitioner or party in interest who desires a hearing on a petition for a declaratory ruling shall submit a written request for a hearing, setting forth in the request the reasons why the matters alleged in the petition and the supporting material submitted will not permit the fair and expeditious disposition of the petition and,to the extent that such request for a hearing is dependent upon factual assertion, shall attach to the request an affidavit establishing such facts. 12 EXHIBIT A 905 The original Petition did not satisfy Planning Rule 3-2's requirements because it contained only a one-sentence request for a hearing without any of the required supporting material or reasoning. Petitioner supplemented its request by letters dated February 13, 2024, and April 25, 2004. Petitioner states a public hearing is "necessary to protect the rights of interested persons and to ensure a consistent disposition of all the issues presented across the three filings." Pet.'s April 24, 2024-letter. Petitioner did not give any clear indication of how the"rights of interested persons"will be protected by a public hearing aside from their statement that "a public airing of the issues will provide Planning Director with a fulsome appreciation of the facts on the ground." Id. Petitioner has had ample opportunity to provide the Director with any material or information which Petitioner feels is missing from the extensive existing written record, including Petitioner's own Petition and exhibits. Thus, the Director finds Petitioner has failed to establish why a public hearing, including presentations by the competing teams of attorneys of the information, history, and arguments found in the Petition and Oceanside's Petition, is necessary to permit the fair and expeditious disposition of the Petition, Given the extensive written records on this matter, the well documented Petition and the Oceanside Petition concurrently under the Director's review, Petitioner's request for a public hearing pursuant Planning Rule 3-2 is denied. 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 Zendo kern Zendo Kern;Apr 29,2024 15:26 HST) ZENDO KERN, PLANNING DIRECTOR 13 EXHIBIT A 906 BEFORE THE PLANNTNG DIRECTOR PLANNING DEPARTMENT COUNTY OF HAWAII STATE OF HAWAII- In AWAIIIn the Matter of DOCKET NO. 24-0001 CERTIFICATE OF SERVICE C&J COUPE FAMILY LIMITED PARTNERSHIP, 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: Kenneth R. Kupchak Mark M. Murakami Toren K. Yamamoto Jonathan N. Marchuk Attorneys for Petitioner Patrick K. Wong Derek B. Simon Ian R. Wesley-Smith Attorneys for 1250 Oceanside,LLC 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 907 EXHIBIT B BEFORE THE PLANNING DIRECTOR PLANNING DEPARTMENT COUNTY OF HAWAl`1 STATE OF HAWAII In the Matter of DOCKET NO. 24-0002 DECLARATORY ORDER; EXHIBITS 1250 OCEANSIDE, LLC, Petitioner ZENDO KERN, PLANNING DIRECTOR, COUNTY OF HAWAP`i'S DECLARATORY ORDER 1. 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 B 383 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 Hawaii 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 EXHIBIT B 384 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 Hawaii 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 Haleki`i 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 el al., Civil No. 3CCV- 23-0000123 ("Lawsuit"). On September 1.5, 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 EXHIBIT B 385 County Defendants'' Motion to Dismiss' the Complains fbr Declaratory and Injunctive Relief Filed March 31, 2023 [Dkt.1], Filed March 25, 2023 [Dkt. 211, and Staying Proceedings Pending Referral to County ofHawai`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 10 Dismiss' Complaint, Filed March 31, 2023(Dkt. IJ, Filed May 11, 2023[Dkt. 151, 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"). II. 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 EXHIBIT B 386 (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 ofAppeals of the City and County of Honolulu ("(.ARI)"), 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 Hawai`i at 196, 159 P.3d at 155. 111. 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 Hal eki`i Extension, Makai Haleki`i Extension, or Connector Road by a date certain or any milestone in the development ofHokuli`a. 5 EXHIBIT B 387 3. Whether the express terms of the Development Agreement impose any dedication obligations for the Mauka Halekii Extension, Makai Halekii 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 Hawaii County Code for the Mauka Halekii 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 Hawaii 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 Halekii 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 Halekii Extension, Makai Halekii 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 Hawaii County Code? 3. Can a roadway subject to a properly granted variance from Sections 23-86 and 23-95 of the Hawaii 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 Hawaii 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 Hawaii County Code? 6 EXHIBIT B 388 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, 201 1, 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, 201 1, 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 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 EXHIBIT B 389 I, 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 Hawaii 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, R EXHIBIT B 390 114 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 C:AR/), 114 Hawai`i at 196, 159 P.3d at 155. Dedication of the Halekii 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 Hawai`i 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 EXHIBIT B 391 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 EXHIBIT B 392 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 EXHIBIT B 393 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. Cly. 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 Ctv., 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 cif Tucson Bd. ofAdjustment,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 constniction 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 EXHIBIT B 394 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 Ze�talo /CQ Zendo kernlAf ZENDO KERN, PLANNING DIRECTOR 13 EXHIBIT B 395 EXHIBIT C COUNTY OF HAWAII ST'AT'E OF FIA.WAII BILL NO. 158 (Draft 5) ORDINANCE NO. E ' 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-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 28 Exhibit "1" 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- EXHIBIT C 29 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- EXHIBIT C 30 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- EXHIBIT C 31 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- EXHIBIT C 32 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- EXHIBIT C 33 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 ' 3C' " 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- EXHIBIT C 34 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- EXHIBIT C 35 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- EXHIBIT C 36 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- EXHIBIT C 37 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. 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- EXHIBIT C 38 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- EXHIBIT C 39 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- EXHIBIT C 40 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- EXHIBIT C 41 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- EXHIBIT C 42 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 "Be, 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- EXHIBIT C 43 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- EXHIBIT C 44 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- EXHIBIT C 4.5 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- EXHIBIT C 46 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- EXHIBIT C 47 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- EXHIBIT C 48 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, LINTY 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 APPRLOV ED as to , y '!: ^nd f -Ai13't ! // fit. ,'-1'w� DEPS 'Cc�RY=_)P..AT!C:N 'COUNSEL ..� CC::NTY CF HAWAII Date__,1-,i�� -22- EXHIBIT C 49 , . — — — 2 i f i 7 x : • .: : ; : . 1 i > !. Z 44, ?E I, . •• a 5 2 / 2 Z : i : . a _ -.,,, I: i • w Eil :.. - 4 :1 • • 7 2 1.4! ,,:f !: :.-.:.;:.! E ; I i : i ..-. - i : ! • i : : 2• s ! - a . 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" �� v.. r .> i'/ Iii �' t, 7 41,,,..7 .", I. + , .i. .74 'I I. /�..',..'. �S* 4 `Mite 40b,.../to sTAI,„,...., . v„...01.4. a. , tQ •a ... ‘ ..„, .4- 1.. e,,,,t„,lrovilA . -::\L.f7-1 404,47. ,JP, -r;• .f." .0.- lit .,1,-... . f \ + Vii: + i'" V. �ti Ii`- ; � ` t; � . it r#4.411w, r , •''� k l,' •'� �1;: r- e�'a neem 't., t/ii I�-• f yll{, f�j \ l1 10r:-.;17"2.,.--' 1lTr t 4 s e 1' 4I ,1 *4.%;: ' ,Ai. '�-'' , '+,�. Q \ s g ,* ' . ' %(1`11' ' �. i..: RDS , �.+ ,,� S.' • .�7.y r/ • ` r••, ' 1. 111 :: r - 4�'iffi ' 1'f 1 ..+,aZ •'-.«. • 1 ,� 1 ( 1 :," _,yam" r':' i< ;j o • i I'---,._. ?• .,N 1 ' WITP1(1,-W-AV-/- .,- ,. 4- .Y. N --,P11/L ; , 1, •-• , ....--• 4 -- ,„ ' \ 7 , .. . --1 , . ,-,---,______i- . -....,__ , .. ., _, /, , . 2. • .,- --s. , -v,i,.• 1, . - •:2,-....-......-I.-.„ • ,- -7-,. , ,-;,• •ii...v,..._ tiVIIN.° ° ___‘, - r , ."143.6`'. _ — ' i , 1 „.. c ...,‘,/ , ( , t,..„,. se _..,.., , ,i �; }r_ ,I s� y 1 _Y tlie. :..�_.•` �. i i ;%,4, ..,,,I ,,.�. t c `� P .°012 �:,a ' •,C,�,`-.Ir.......,,: :.--' �• f • - . �' ••.4---\ --.,.,�___/,• �I i I ,is �:v... � 'P J a>.% i y _ 4 _.,_ :. , ..,...,,..„.., . ..„,,,, ,,,,,,, ,,,,,, , uj -2,L,I, / . 7.,.., , i -7-• 7 11 . iP m ' ( I� •1. v 1 . ;� 't--w!-_al ., k.: i...•- p EXHIBIT C 51 1; ra we r,.. r I iZ Ln y • _ i� \•} ' ,R • '4ill �\ ,$,,,,,,-....---,-r•-------.7-7-•-- • . . ,f.1 1 •It .' �_ • \ ' LU ill }\Jr ' �r ''/', r_.,..,,.. ') r ( a I{+ ;a L�- +1. 1�'i I \a T1r`,1�• �\�� /; C\\, .. h . _I' ,f r P' i•G •� • _� .1 :`J \ �•j`\l - {r 11 fi•;i /� �/ ,�•1 Ilr• r i J4 >O!1,. — - ` . 1 1 r \` ,1 :-i I IJ( ii l : . �': ),• ,'pr,l' ,'-1, z.4 ` - ; 1' `' mad' a1/ )ir ' .1,.,7::: ::"; 7', ;;iJJ/' jY4i ( �'••r 1, l�\{ - ?1, -A1,4.4 •- asi .` ` } , kie it '. �, ' 17 '1'. :;=:15'0.s.,,ifirs , , • V. ," riwatiarr•-• ,/,.4,-,./.. ,......",. ,./,.,, ,4„, • ..,),)10.1 ' ...,("1,',", .I I'\:,,. -04, ,f. ' .' - . 'll- : '0 ‘..... ' . ' II . Z .1 ‘ x:ix , 74 • .,c,jr././11.;.--/ ....1.r.,,,4Stt'fl , ' . i !•: . 6 o",% k ,,I s ,t., . , 1 t • �• S a�w J .,- ' 4- ,t,. . :1„. s• .....-...4r , .,,,, „ . . L.,...„... • ,..„ ----_, , p / t tai, , i. 1• , ' •% �,r n .�p4--;J '/ 1 �:: • \: •,,�- J... .,....;,`..,\} ti'/r, \� ,. K•-J1 4 / fuss • --,..i.7 / : N • \• .•\ -`•� .,I, / ` .,� �� -� ! Il til, .\. 4 :e.:. ' f 1 4. '• s f' '.'1' 1 4. 999 I ( t• Lam.• ��'' iPa: • �- • r < cn L\ . _. ,A ,; >.;.4.1i 1-iii,.,4.1-04....,..4.,, .)1.)-. -- .. --,- ..,--. . , , • •• :1, . ., 0.-..,... ....., ,)t.. ,,,,„.1„. ,,,,,... Al. ,__,....,,,,,,. •, r/ r'.y �/,/„ +w�:,...t /r. y , J f'r` ,• �c ))JW\\�11K(11 Nr,� jl, ai' l ` "'^t ‘,1 t , J('Rvo-•,• . 0- ( � 1}may' • �`.A. 1 f \\` ' j I'�'•:1 r /( ,.,•• 4.;r + t/1/ - 4 \ U(I E -/ '"S r`,�JI �� &.•,,: Illu ( t1\�. -,r1,/1., ., • ,••Z., F.) :Atm.,�r I. KiMtsa is �1' t,u 1 1� t ` �� EXHIBIT C 52 OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , HawaiiR E C ~ . . (DRAFT 4) '96 JAN 16 FI 1 7 57 _ i _. .. -. � BALL VOTE L E �! Nral N fr YNOES dvki MS EX Introduced By: Takashi Domingo -- Arakaki X Date Introduced: December 15, 1995 First Reading: December 15, 1995 Bonk-Abramson }{ Chil Published: 1\l/Ads X 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 Arakaki X Effective: January 15 , 1996 Bonk-Abramson X Published January 24 , 1996 Childs X De Lima 1 x REMARKS: Domingo 1_ X _ ----._._.. — Osorio L X Rath ----. _ . . ._.. __ Ray X -- - Smith X —. _ ...r ..� I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. t. • *--,' i COUNCIL CHAIRMAN /A4/44e- ,°21 .COUNTY CLERK _ _ �� 104( Appr ved/Hrsapproved this /0 day o ,19 . di ,AW ANAL oVriR,COUNTY 6:WAIT Bill No.: 158 tDraft 5.Z�___ � Reference: C-734/PC-88 US Ord.No.: --__-_--._..___... ` EXHIBIT C 53 EXHIBIT 0 COUNTY OF HAWAII STATE OF HAWAII BILL NO. 181 (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-la) 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-la): 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 D 54 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- EXHIBIT D 55 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 "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° 3T 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- EXHIBIT 3-EXHIBIT D 56 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- EXHIBIT D 57 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- EXHIBIT D 58 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- EXHIBIT D 59 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° 2T 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- EXHIBIT D 60 104. 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° 4T 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- EXHIBIT D 61 127. 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- EXHIBIT D 62 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. 266D 28' 187.31 feet along Lot 3 (Government Land - County of Hawaii) to a point; -10- EXHIBIT D 63 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. 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- EXHIBIT D 64 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. 253D 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. 254D 39' 30" 21.88 feet to a point; 35. 269D 41' 41.10 feet to a point; 36. 288° 24' 45.97 feet to a point; 37. 255D 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; -12- EXHIBIT D 65 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 Pace13 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: -13- EXHIBIT D 66 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 1,13 0.00 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; 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- EXHIBIT D 67 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 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- EXHIBIT D 68 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 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; -16- EXHIBIT D 69 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- EXHIBIT D 70 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- EXHIBIT D 71 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- EXHIBIT D 72 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) 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- EXHIBIT D 73 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 gn use Cif an proyision,Qf recreational and restroom facilities at appropriate location 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;] (2)[(4)] [A] Upon opening the first phase of the park area, 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- EXHIBIT D 74 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 phasesin accordance with the public access plan; and L[(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-9f--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; -22- EXHIBIT D 75 (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",] 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, prrovided further that the section of the Mamalahoa Highway Bypass between Keauhou and Haleki'i Street shall be completed and available -23- EXHIBIT D 76 for public use prior to the occupancy of any dwelling unit within thc entire 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 ompletiQn 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_ [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 "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 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- EXHIBIT D 77 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- EXHIBIT D 78 tM [(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 Df Hawaii; (N)[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. (0)[(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]; (P)[(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- EXHIBIT D 79 (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; (Q)[(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- EXHIBIT D 80 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 subjent.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 prodnc't_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.. Ifthe subject property is subdivided in two or more increments, the amount of the fair hare 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 eachsuch 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 built ng sites as determined.bY the zoning of_ ucch ot. The fair share contribution in a form of cash, lands acilities,oxany combination thereof acceptable to the director in consultation with the affectedagencies_shalLhave a maximum combined value ara39.16 per lot. llasee,upon the applicant's representation of intent to subdivide and develop up to 400 lots, the indicatedtotalfair share contribution is 52A95;0_64.00, however the_total amountshall_beincreased..or reduced in proportion with_the actual number of subdivided_lots ccording o the calculation and payment provisions set forth in this Condition 0. The_fair share contribution shall be allocated as follows: 11) $3.490.85 per lot fot an indicated total of ,396 34Q:4f to the con ty..14 support park and recreational improvements and facilities; -28- EXHIBIT D 81 (2) a€$.4Q_per..Lot,_foran indicate tal QfS67j60,00 to.the_Count _to_suppo police facilities; l3) $33.2,61_per 10t.2for_arLindicated total of$133,044.00 to the County to support fire facilities; 1145..62 Reda...for an indicated total of 55124$±QQ to the County to support solid waste facilities; (_54 . 3,1Q1 6&ner lot,.f.or an_indicated total_Qf$l 24(,(72.00 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 effectiy_e date of this ordinance,based on the percentage change in the Honolulu Consumer Price Index (HCPI). In lieu of paving the fair share contribution the applicant may construct improvementsffacilities related to parks and recreation, fire.polices 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_againsUhe_sum specified_in Condition all for parks and recreation. ConditionR(4)forsolid waste facilities, and_in Condition R(5)_for road and traffic_improvements= For purposes_of adminisadministering_ idition_R„ the value of land contributed orthe cost of_any improvements require,.or_madein lieu of.the_fair share contribution shalLb_e_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; ] (,SI(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- EXHIBIT D 82 W[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; [(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; fyil(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)1 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- EXHIBIT D 83 (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: COUNCIL MEMBER, COUNTY OF I-I%:1. 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" ROVED as to tie- Fr te r`. c�nd///', GAMY'£CORPORA.T ION COUNSEL COUNTY OF HAWAII Date N _.— -31- EXHIBIT 31-EXHIBIT D 84 ii ' a ;1. ? 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' , f , 1, � � 91.-- • . l • .l ,I�r.-.•.i l ,7,1•/ ( �.}) i Pf. ! 2 g g i / `y-1 • • ., ,... )3), • , 7,,... ., ., ..4_, • / . ---------si '.•... , -T.-A----Lz4:4-.) e p.„ 0 .1 , , , ' •w-A,,. , . -*--1, ... : ,.,:c....p,1.4,47-1-7-17-. co CE •41's4,,1/4•-•1;',...,-19:As' 7 86 EXHIBIT D w0 • 1 cn ` '..# .. 1 CD om`.. r�-�. i 4 • --,S"'...'."`.:-�� -------- '• '� ' /_ \. `'._\ '1 of P / s H i \ . , , �' \� �. ,<` " 1, r. •gni c .hr, ,01,,..-,,,,....„ ,„.. `/4r 1 j'keit _� re ;1' ° (/ ••„)i'r` r 1•,,r. ref , 1 ` i 1/ I. 3iP ' }t �) !,� ,. o la•a �y ° j �� ,,�'��/J7v ill ri) 1 !'',. IA/y.... 1 i It ''` ... r S, ! , • .', 1.7 J'ry ',T. 4,,,,,. , 4,- 1'. r .,.1 l,^ a : ,._ I ..r, i ,11 si Y ii. CO ie r 1 •l~I-: )i�, {'' t":.r✓ i •l.l•'\\ ) , t , • i nc•J ',/_:/i.4,*. �, ; - I i 'I i �` a 1• f 1;V/1); a ":-- r \"`IY'�C'ti� .1i, 'Nil'," 1.. (• - 1' '1% I l r�t, Ok'^ dam: i zy' si,,• ; b ,. "` ft, oo (� .•,/ .. 1� ?� r •r•� S j • 1. •stt I 777 g ` __.4 .44„,,, �� I ';.L...7,,, �_ / •i �„�.� ., ,, 1 i 'r •',i.' — - • , • . •• ••- - • 4, • , •••—• , ' �' t`i!" C 1 ----1.... � 1F1 6- !a '''''''''.54,-;,./a44 .,.• ,w q'7`/• �7•.r r y _�� ® 0 0.1 , % :(' ' 1 .'0 . rkViLLI,t,-;' . . \,%. ., *... , ' i i ' r:::::::— " ' we r �.._ f. . _tt --1:-..1-4::4,.:;.A...,', ' "E; /I ...'�,r{C`; �> {� Z}•1. ,ni', i \x--t �! Cl) • 4A \;,' \ f .,"'�. '1" I.J', 4,)", 1 Rr. rill 5, \ C 1 18/x.Ir/J } /�l /: '� � J /r t 6)!) '/ 111/ , �lt� '11,1/1 1\ 1 1 1,•„• . 'r / ill/,Ill , . r .T \\ //(\L*, (. t)k. \�\ ,- t�tl�l�.`Virik:, .ill owl,/ 11\\\\`\�1 I). 1 I / V-.../' 1f' \v�\. • \1rd�1�1;...,,tt 1ttKiN1��>u a).. �., l.ayl m . 87 EXHIBIT D OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , Hawaii =� -- R E 0 r- ' ` , ;_ ( Diflli)16 RR 7 57 J F F I C E r,=ROLL,C4It 'E COUNTY ORYttg,WIAIROES ABS EX Introduced By: Takashi DomingoArakaki X Decenber 15, 1995 _ Date Introduced: Bonk-Abramson X First Reading: December 15, 1995 - Childs X Published: N/A De Irma 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 Returned: January 16 , 1996 Arakaki - X Effective: January 15 , 1996 Bonk-Abramson - X ` Published January 24 , 19 9 6 Childs X De Lima X REMARKS: g Domingo X __ _ Osorio X �..-- ___ . Rath X 1 '1 --_- — 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 Approved this day of ,r:: `✓' .. 19 9.4 OF . # lt , .. t714,4D OR,COUNTY 0 '' All BiI1 No.: 181 (Draft 6 ) Reference: C-821/PC-91 Ord No.: _ 9 6 Ei EXHIBIT D 88 EXHIBIT E Exhibit "A" Lincoln S.T. Ashida • William P. Keno'Mayor • `T- b ;• Corporation hJ� .. � Katherine A.Counsel Garson ;• , Assistant Corporation •'Ark.67-2r 67 x' •- Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)96t-8251 • Fax(808)961-8622 E-mail: corpcounseieco.hawaii,hi.us April 29, 2010 Sent via email. hard copy 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 Hawai`i 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. f. 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 Marnalahoa Highway-Halekii Street Intersection, construct the extension of Haieki'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 EXHIBIT E 397 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 Na. 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 Project, the Bypass Highway and the Coastline Park pursuant to the EXHIBIT E 398 • 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 for 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 signalizalion 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 l 4til 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: EXHIBIT E 399 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 li (Haleki'i Street to Napoopoo - $9,260,000 Marna{ahoy Highway/Haleki'i 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"Hoiculi'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.All 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 Hawai'i. 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 tender 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 141111 Hawai'i, detailing their proposed course for fulfilling these obligations. 400 EXHIBIT E 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 Hawai'i. 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. EXHIBIT E 4011 Mr. John De Fries April 29, 2010 • Page 6 H. Material breach by Oceanside The County of Hawai`i 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 coliateratize, Oceanside was deliberately vague and ambiguous. As of this writing, despite numerous requests for information, Oceanside has hot 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 Hawai'i on September, 15, 1999, Fite No. SUB 98-124 by December 31, 2001. This agreement was secured with a bond in the amount of$34,170,000. EXHIBIT E 402 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 l 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 HokuIi'a, et. al. v. American Motorists Insurance Company, et. al., Civil No. 10-1-116K (Third Circuit Court, State of Hawai`i), wherein Oceanside allegedly admitted in writing on March 3, 2010, that it was unable to complete work as promised with respect to various dub 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 403 EXHIBIT E BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I In the Matter of Appeal CASE NOS. PL-BOA-2024-000104& PL-BOA-2024-000105 of CERTIFICATE OF SERVICE 1250 OCEANSIDE, LLC From the decision of the Planning Director, dated April 29, 2024 (Docket No. 24-0001) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon the parties identified below by electronic mail service upon the following on September 18, 2024: Delivered via Electronic Mail (E-Mail and/or EPIC) DEREK B. SIMONS dsimon@carlsmith.com PATRICK K. WONG pwong@carlsmith.com IAN R. WESLEY-SMITH iwesley-smith@carlsmith.com Carlsmith Ball LLP 1001 Bishop Street, Suite 2100 Honolulu, HI 96813 Attorneys for 1250 Oceanside, LLC KENNETH R. KUPCHAK krk@,hawaiilawyer.com MARK M. MURAKAMI mmm@hawaiilawyer.com TOREN K. YAMAMOTO tky@,hawaiilawyer.com Damon Key Leong Kupchak Hastert 1003 Bishop Street, Suite 1600 Honolulu, HI 96813 Attorneys for Intervenors C & J Coupe Family Limited Partnership SYLVIA WAN, ESQ. sylviaa.wan@hawaiicounty.gov Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Board of Appeals BOARD OF APPEALS boardofappeals@hawaiicounty.gov 101 Pauahi Street, Suite 3 Hilo, HI 96720 Board of Appeals Dated: Hilo, Hawai`i, September 18, 2024. /s/E. Britt Bailey E. BRITT BAILEY Deputy Corporation Counsel 2