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HomeMy WebLinkAbout2024-09-25 1250 Oceanside LLC 2nd Exhibit List, Exhibits 19-22 (PL-BOA-2024-000105) CARLSMITH BALL LLP PATRICK K. WONG 5878 75-5722 Kuakini Highway, Suite 208 Kailua Kona, Hawai`i 96740 Tel. No. (808) 329-6464 Facsimile No. (808) 329-9450 pwong@carlsmith.com DEREK B. SIMON 10612 1001 Bishop Street, Suite 2100 Honolulu, Hawai`i 96813 Tel. No. (808) 523-2500 Facsimile No. (808) 523-0842 dsimon@carlsmith.com IAN R. WESLEY-SMITH 10626 121 Waianuenue Avenue P.O. Box 686 Hilo, Hawai`i 96721-0686 Tel. No. (808) 969-8416 Facsimile No. (808) 935-7975 iwesley-smith@carlsmith.com Attorneys for 1250 OCEANSIDE, LLC BEFORE THE BOARD OF APPEALS PLANNING DEPARTMENT COUNTY OF HAWAII In the Matter of Appeal Case No. PL-BOA-2024-000105 of 1250 OCEANSIDE, LLC'S SECOND EXHIBIT LIST; EXHIBITS 19-22; 1250 OCEANSIDE, LLC CERTIFICATE OF SERVICE From the decision of the Planning Director, Hearing: dated April 29, 2024 (Docket No. 24-0002) Date: October 11, 2024 Time: 9:30 a.m. in Kona 4887-5251-7609.2.051730-00058 1250 OCEANSIDE, LLC'S SECOND EXHIBIT LIST Appellant 1250 Oceanside, LLC ("Oceanside"),by and through its attorneys, Carlsmith Ball LLP, hereby identifies the following exhibits that may be presented at the hearing currently scheduled for October 11, 2024, and/or during any further proceedings in this matter. Exhibits 1-10 where filed with Oceanside's General Petition for Appeal of Decision of the Planning Director, dated May 28, 2024, and Exhibits 11-18 were filed with Oceanside's Exhibit List on September 18, 2024. Exhibits 19-22 are filed with this Second Exhibit List. 1250 Record on Description of Exhibit Oceanside's Appeal Exhibit No. 1 Declaratory Order; Exhibits "A" — "C" 2 Petition for Declaratory Ruling; Exhibit "A"—"H" 3 Hawai`i County Ordinance No. 96-7 4 Hawai`i County Ordinance No. 96-8 5 Development Agreement, dated April 20, 1998 6 Complaint for Declaratory and Injunctive Relief; Appendixes "A" — "B"; Summons 7a Order Re: Defendant 1250 Oceanside LLC's Motion to Dismiss Complaint, Filed March 31, 2023 [Dkt. 1], Filed May 11, 2023 [Dkt. 15] 7b Order Granting in Part County Defendants' Motion to Dismiss the Complaint for Declaratory and Injunctive Relief, File March 31, 2023 [Dkt. 1], Filed May 25, 2023 [Dkt. 21], and Staying Proceedings Pending Referral to County of Hawai`i Planning Department 8 Letter from County of Hawai`i Planning Department dated January 31, 2011, approving Variance No. VAR 10-027 4887-5251-7609.2.051730-00058 2 1250 Record on Description of Exhibit Oceanside's Appeal Exhibit No. 9 Hawai`i County Council Resolution No. 317-12 10 Construction Plans (Coversheets) for Hokuli`a Phase 1, Package 1 & 2 (Sub 98-124) 11 Mayor Rule 1 (Development Agreements) 12 Shoreline Park Management and Public Access Plan, November 1998 13 Grant of Easement and Covenants, dated September 16, 1999 (Shoreline Park) 14 Hawai`i County Council Resolution No. 316-12 15 Hawai`i County Council Resolution No. 20-12 16 Dedication Deed (Kona Scenic Park), dated December 12, 2016 17 County of Hawaii v. C&J Coupe Earn. Ltd. P'ship, 124 Haw. 281, 299, 242 P.3d 1136, 1154 (2010) 18 Photographs, taken June 26, 2023 19 Letter from SidneyFuke, Planning Consultant to B.J. Leithead Todd, Planning Director, dated July 15, 2010 20 Letter from SidneyFuke, Planning Consultant to B.J. Leithead Todd, Planning Director, dated July 29, 2010 21 Letter from SidneyFuke, Planning Consultant to B.J. Leithead Todd, Planning Director, dated October 15, 2010 22 Annotated maps from County of Hawai`i Real Property Tax Office website 4887-5251-7609.2.051730-00058 3 Oceanside reserves the right to supplement this Second Exhibit List and identify additional exhibits not expressly noted herein in response to any pleadings, memorandum, arguments, exhibits, or witnesses identified or filed by any party. DATED: Honolulu, Hawai`i, September 25, 2024. Is/Derek B. Simon PATRICK K. WONG DEREK B. SIMON IAN R. WESLEY-SMITH Attorneys for 1250 OCEANSIDE, LLC 4887-5251-7609.2.051730-00058 4 EXHIBIT 19 SidneyFuke, Pla. .g Consultant / 100 Pauahi Street,Suite 212•Hilo,Hawaii 96720 h •Planning•Variance•Zoning maA171.1nr * Telephone (808)969-1522•Fax:(808)969-7996 i •Subdivision•Land Use Permits E-mail. sidfuke@hawaiiantel.net •Environmental Reports 2U)10 JUL 15 MMD 52 July 15, 2010 Ms. BJ Leithead Todd, Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo,HI 96720 ATTN: Mr. Joaquin Gamaio Dear Ms. Leithead-Todd: Subject: Variance Application— 1250 Oceanside Partners In a letter,dated July 6,2010,which was received on July 14,your office returned the subject application. I appreciated the time spent with me to go over this letter yesterday to clarify certain aspects of it and provide me with additional direction. Based on our discussion, it is my understanding that your department's position is that a road variance for Phases I, II,and III(North and South)is not needed,as constructions plans reflecting the requested road rights-of-way variance or relief for those phases were approved by the Departments of Public Works and Planning. Furthermore,bonds for the construction of those approved plans for Phases I and II were posted prior to receipt of final subdivision approvals,while Phase III(North and South)is still pending review. While that is an understandable and perhaps an expedient position,I noted that to make the project technically compliant with the Subdivision Code,a variance would be appropriate. This would be akin to your processing and approving setback variance requests for projects that were approved in the past based on an erroneous setback. Legitimizing those actions via the variance process precludes land title-related questions in the future. That was the intent of the 1250 Oceanside Partners' ("Oceanside")variance request. In addition to having the variance cover Phases I and II,Oceanside wanted it to also include Phase III(North and South)and Phase III (East). We note that although the construction plans for Phase III(North and South)may have been approved without improvements to the rights-of-way,Condition 4f of the tentative approval letter still contains the requirement for full improvements. Hence, Oceanside also wanted the variance to cover that portion as well thus enabling you to subsequently amend that particular condition. SCANNED By:0 ikils EXHIBIT 19 C Ms. B7 Leithead Todd, Director July 15, 2010 Page 2 Relative to Phase III (East), we realize that tentative approval has not been issued. However,comments from Department of Public Works also reflect the same level of improvements, as it did for Phase III (North and South). As such,the road improvement requirement technically should be the same for all of Phase III, and a variance for that portion should also be appropriate. Your letter also made reference to the bond as it relates to completion of the By-Pass, and. noted that this"must be addressed before any variance from roadways within the `project' are (sic)considered." Relatedly,you referenced an August 18,2008 letter from the former Planning Director wherein he wrote "we will not grant final subdivision approval for this or any subsequent phases of the project based upon a bond, unless we have satisfactory proof that funds are actually committed to complete the Bypass highway and that all measures are being taken to diligently move ahead with its construction." (Highlight added) We do not agree with the conclusion. The letter refers to not granting final subdivision approval. The variance request will not result in final subdivision approval. There are many other measures or conditions that need to be fulfilled before final subdivision approval can be granted, conditions which are under the jurisdiction of your office and/or the County. Accordingly, we do not agree that the variance cannot be processed because of the August 18, 2008 letter. We can understand and appreciate the reference to the zoning condition requiring the extension of Halekii Street(between the By-Pass and the existing Halekii Street)be improved to County dedicable standards. As such,this can be addressed by either having this portion deleted in the variance application or making its applicability subject to an amendment to the appropriate zoning condition. As you know,this letter covers not only some of our discussion but other items as well requiring clarification and/or further direction from you. As such, I would appreciate written confirmation and/or your thoughts on all of the items covered herein at your earliest opportunity. The application was filed over two months ago with your office and only yesterday received your letter returning the application. As such, I sincerely appreciated your making the time to go over this matter with me on such a short notice and would similarly appreciate a timely response to this letter. I stand ready to discuss this matter further with you and/or your staff. ' Ms. BJ Leithead Todd, Director July 15,2010 Page 3 Again,thank you very much for your time and direction on this matter. We look forward to hearing from you soon. Sincerely, \f\I SI E 14 .1 E Planning Consultant Copy— 1250 Oceanside Partners w/enclosure(letter of July 6, 2010)via email EXHIBIT 20 • SidneyFuke, Pia ig Consultant 100 Pauahi Street,Suite 212•Hilo, Hawaii 96720 •Planning•Variance•Zoning Telephone:(808)969-1522•Fax:(808)969-7996 •Subdivision•Land Use Permits E-mail:sidfukeehawaiiantel.net •Environmental Reports 2C'., JUL 2,7 Phi 3: 23 July 29, 2010 Ms. BJ Leithead Todd,Director Planning Department COUNTY OF HAWAI'I 101 Pauahi Street Hilo,HI 96720 Dear Ms. Leithead-Todd: Subject: Variance Application—1250 Oceanside Partners Pursuant to our meeting of July 28,2010,I am returning the subject matter for your review and processing. Also enclosed is the$100 filing fee,which was returned to my office. As discussed,your office will continue to process the variance as generally outlined in my letter of July 15,2010. Specifically,notwithstanding the past actions taken on the prior subdivision approvals,a de facto variance for Phases I and II will be entertained. Furthermore,the request will also cover the pending Phase III(North, South, and East)subdivision applications. Relative to Phase III— North and South, subsequent to action on the variance,Condition 4f of the tentative approval letter,dated July 10,2007,would be amended to reflect action of the variance. Furthermore, since the roadway requirements for Phase III-East are already known,this variance would also apply to this application as well. Relative to road improvement standards to Halekii Street and/or any roads within the project area,the operable ordinances and conditions are found in Condition M(4)of Ordinance 96 7 and Conditions L and M of Ordinance 96-8,pertinent excerpts of which are attached. In Ordinance 96 7,there are no specific standards identified except that it implies that the plans be subject to the Department of Public Works' approval. Condition M of Ordinance 96 8 states that certain roads need to be dedicated to the government. Again,there are no direct references to road standards. Given the above,we request that the variance also cover that section of Halekii Street between the By-Pass and the Kona Scenic Subdivision. However, if you determine that the • appropriate zoning condition(s)must still be amended,we request that you make its applicability subject to an amendment to the appropriate zoning condition. SCANNI 1)' O oil 2830 By: EXHIBIT 20 fit) Ms. BJ Leithead Todd, Director July 29, 2010 Page 2 Inasmuch as the substance of the application -which was time stamped in your office on April 21, 2010- has not changed, we do not believe that another notice to surrounding property owners is necessary. Furthermore, the already posted sign should likewise be sufficient. Evidence of these was provided to you in a letter, dated May 19, 2010. As outlined in my letter of May 11, 2010, the official acceptance date could be May 6, 2010; in which ease,the decision-making deadline would be July 5, 2010. If this is acceptable, given the time lapse, we would hereby respectfully request an additional 60 days to September 5, 2010 to have you finalize your decision. Again,thank you very much for your time and direction on this matter. If you require more information or have questions on this matter, please feel free to contact me. Sincerely, kr.)(1,41\) SI NEY M. FUKE Planning Consultant Enclosures Copy— 1250 Oceanside Partners wf enclosure(letter of July 6, 2010)via email w/o enclosures PLANNiNG DEPARTMENT County of Hawaii , I aut1I T w -o n 00 -n -nm X. > 0 00 m - 3313 m z z 0 O O K q-. d f . i... -... On C7O 0 t O D ov m mm z �-' C+� ,..... fr O ol ..... 6 ... una COUNTY OF HAWAII STATE OF HAWAII BILL NO. 181 (Draft 6) ORDINANCE NO. 96 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND SECTION 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a) AND UNPLANNED (U) TO AGRICULTURAL (A-1a) AT HONUAINO 3RD AND 4TH, HOKUKANO IST AND 2ND. KANAUEUE 1ST AND 2ND, HALEK.II, KEEKEE 1ST AND 2ND, ILIKAHI, KANAKAU IST AND 2ND, KALUKALU I ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA. HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-l 2: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 I. 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 Ist'and 2nd_ North Kona, Hawaii, shall be Agricultural (A-Ia): PARCEL I : 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 OI-IAU" 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 1 670 to John D. Parish on a portion of Land Commission Award 387, Pan 4. Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 152' 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; EXHIBIT B (K) A solid waste management plan shall be prepared meeting with the approval of the f 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 we]I 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 t_ including its intersection areas and its acquired ownership or control. The applicant shall provide the PIanning 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 PIanning 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 applirant'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",] consisting of two lanes with sufficient right-of-way for a total of four lanes / e .6 s i a l 1. i Is 1 IJ •i1• . I l. ■ • I W. I. I - l a • le .tI I U. ■ - I. s file s . I s •I/•• •I -23- • r I ' In* • 1 ' l lel l -1 S W' 1 . 1 1 1 1 i ect ; [04) construct the channelization improvements on Kuakin.i 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] j efnre i ic,spn pJctlnn w v V barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as pan of the required Halekii Street improvements [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use of Haleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and p pp -tj-n [the Phase I section ]of the Mamalahoa Highway Bypass until the entirero osed P P Marrtalah4a Bypass v' Cool; has been completed and opened for general public use; and L2[(6)] provide roadway stub-outs, generally shown in Exhibit "B", to provide fixture connections between the subject property, [the Alii Highway, and southern extensions there from;] ani the adiacent denies 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 J-liebway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] v apiunrauthjblicigiAliiW ■ • Iw.v w. l ones •l rl• l • Il r l ' lv r ■el• lrr r • Public Works. The applicant shall provide a landscape buffer along highway sections �t ithin five hundred feet of existing dwellings . as required by the chief engineer, to reduce the impacts.of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shaII 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 I2iehway 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 Marnala}iosa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; f(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 channelizatiori 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- 04)[(N)] All roadway improvements stated in Condition L [and MJ of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahaa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law] County of_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,J 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 PIanning 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]; f 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: -?6- I COUNTY OF HAWAII STATE OF HAWAII BILL NO. 158 ORDINANCE N4. � ? (Draft 5) AN ORD:NANCE 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 CLASSIFICATION FROM UNPLANNED (U) TO AGRICULT L (A THE DISTRICT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, URAL (A-1a) EAT E ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, F LU ALU 1ST, 2NDKEEAND 13 AND ONOULI 1ST, NORTH AND SOUTH KONA, HAWAII , COVERED 1E2BY 3RD KEY 7-- 9- 12 : 4 , 11 AND PORTION OF 3 AND 8-1 -4 : PORTTIONOFB3 .Y TAX MAP 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 : a s . The district classification of the following area situated at Honuaina 3rd and 4th, Hokukano 1st and 2nd and Kanueue 1st and 2nd, North Kona, Hawaii shall be Agricultural (A- 1a) : PARCEL 1': Beginning at the Northeasterly corner of this parcel of land, being also an angle point on the Southerly boundary of Royal Patent 1098, Land Commission Award 614 to Charles Hall , the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUJ 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 L. Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of its privately owned coastline park and trails; provided, that restrictions will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area ' s pristine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4 , Hawaii Revised Statutes . The applicant shall retain ownership of its coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in { accordance with the above terms and conditions . This condition shall not be applicable to any roadway, trail or other rights-of-way, which are deemed public highways or , trails as defined in Chapter 264 , Hawaii Revised Statutes ; M . Roadway improvements and access (es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works . Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall : 1 . construct the channelization and signalization of the Mamalahoa Highway-Haleki ` i Street intersection ; - 14 - { 2 . determine the final right-of-way alignment of the entire Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook, including its intersection areas and its acquired ownership or control . The applicant shall provide the Planning Director with a metes and hounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment of the Mamalahoa Highway Bypass, the requirement shall be deemed fulfilled upon the county' s formal initiation of condemnation action (s) for such segments and an agreement has been entered into between the applicant and the county providing for the applicant ' s reimbursement to the county for the acquisition of the lands condemned ; 3 • construct the Mamalahoa Highway Bypass in its entirety between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further, that the section of the Mamalahoa Highway Bypass between Keauhou and Haleki ' i Street shall be completed and available for public use prior to the occupancy of any dwelling unit within the entire project area ; 4 • construct the extension of Haleki ` i Street through the subject property as generally reflected in Exhibit `B', which phasing of improvements shall be approved by the - 15 - Department of Public Works . If, before the completion and opening of the entire Mamalahoa Highway Bypass, a portion of said bypass is completed and opened, and said portion provides a connection to Haleki' i. Street, a barricade or breakaway gate meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki ' i Street improvements . The purpose of this condition is to prevent the use of Haleki ' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened for general public use; and 5 . provide roadway stub-outs , generally shown in Exhibit "B', to provide future connections between the subject property and the adjacent properties to the north and south; provided that such stubouts shall be constructed in accordance with the construction phasing as approved by- the Department of Public Works . The applicant shall construct the Mamalahoa Highway Bypass to standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works . The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings . as required by the chief engineer, to reduce the impacts of noise and light on the residents therein - 16- and to generally beautify the highway appearance in such locations; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the ' Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalahoa Highway Bypass and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass incurred by the applicant, less the pro rata portion attributed to the subject property; N. In lieu of actual construction of infrastructural improvements as required under Conditions E. G. J. K, and M, the applicant may enter into an agreement with the Planning Director and the Department of Public Works and the Department of Water Supply, if applicable, to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and approved by the Corporation Counsel . Upon execution of such agreement and filing of the security with the county, if applicable, Final Subdivision Approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements . -17- APPLICATION FOR VARIANCE FROM SUBDIVISION CODE -, COUNTY OF HAWAII PLANNING DEPARTMENT (Type or Print the requested information) OWNER: 1250 Oceanside Partners OWNER'S SIGNATURE: - 1 -- � � — DATE: 4//1// ADDRESS: 78-6831 Alii Drive,Suite K-15 Kaiiva-Kona,HI 96740-2440 TELEPHONE: (Bus.)(808)324-1500 (Home) REQUEST: Relief from making improvements within the rights-of-way of existing and proposed private agricultural roads TAX MAP KEY: see attached sheet SUBDIVISION#- see attached sheet AREA OF PROPERTY: 1,542+1-acres ZONING OF PARCEL: RA-1A APPLICANT: 1250 Oceanside Partners APPLICANT'S SIGNATURE: 62 - �� DATE: 41't{/1[.7 APPLICANT'S INTEREST, IF NOT OWNER: APPLICANT'S REASONS(S)FOR REQUESTING A VARIANCE: (Please attach a detailed written explanation of the Purpose or Nature of the request. Photos and maps may be included.) No variance may be granted unless it is found that: 1. There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial property rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; 2. There are no other reasonable alternatives that would resolve the difficulty; and 3. The variance shall be consistent with the general purpose of the zoning district, the intent and purpose of the Zoning and Subdivision Codes, and the County General Plan and will not be materially detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties. THIS APPLICATION MUST BE ACCOMPANIED BY A FILING FEE OF ONE HUNDRED DOLLARS (S100) payable to the County Director of Finance. AND: 1. The Original and four(4) copies of the completed application form with attachments; 2. Five (5) copies of description of the property in sufficient detail for the public to precisely locate the property; 3. Five(5) copies of a scale-drawn plot plan of the property showing all existing and proposed structures and improvements; and 4. A list of the names, address and tax map keys of all owners of property within three hundred feet (300') of the perimeter boundary of the subject property. P.D. 07/97 f:\wp6Olforms\polvarisubd.frm 0 U 2 6 5 3 I—HI 0 11-4. dithish, BY 1250 OCEANSIDE PARTNERS 78 - 683I ALI ' I DRIVE # K 15 , KA ILLI .A - KON A , HI . 96740 P . 808 - 324 - 1500 F : 808 - 324 - 1800 • LETTER OF TRANSMITTAL To: Sidney Fuke 100 Pauahi Street Suite 245 Hilo, HI 96720 From: Barbara E. Neville Contract/Membership Administrator Date: April 16, 2010 Re: Application for Variance Mr. Fuke: Enclosed herewith please find the Application for Variance from Subdivision Code executed by Jo-Ann Hamilton. Jo-Ann is the President of Red Hill 1250, Inc., a Washington corporation, which is the General Partner of 1250 Oceanside Partners, a Hawaii limited partnership. Thank you. VARIANCE APPLICATION 1250 OCEANSIDE PARTNERS NORTH AND SOUTH KONA, HAWAII TMK: 7-9-012: 004, 006, 011, 029 and 034; TMK: 8-1-004: 003, 064, 065, 068 and 070; TMK: 8-1-032: 054; TMK: 8-1-033: 013 through 017; andTMK: 8-1-026: 057 and 8-1-032: 054 I. BACKGROUND A. General Background The applicant is the developer of an agricultural/residential (hereinafter referred to as "RA') subdivision called Hokulia located in central Kona, bordering the districts of North and South Kona. The subject project, spanning over 1,552 acres, will consist of, upon full build out, a maximum of 665 RA lots, a golf course, and related amenities. All of the existing and proposed RA lots will be consistent with the project's Agricultural (A-1a) zoning. Currently, there are an 18-hole golf course, a pavilion/clubhouse, an ocean park, and 359 approved RA lots. The RA lots are being developed in three (3) phases. To date, two (2) phases have been completed and granted final subdivision approval. Phase I consisted of 259 lots, while Phase Ii had 100 lots. Phase Ill consists of three (3) sub-phases. Phase Ill — North and South has been granted tentative subdivision approval, while Phase Ill — East is still pending with the Planning Department. The applicant intends to utilize an existing and proposed private 20- foot roadway within 50 and 60-foot wide rights-of-way. The Subdivision Code requires the construction of a minimum County agricultural standard roadway to service the proposed lots. The agricultural standard calls for a minimum 20-foot wide pavement within a minimum right-of-way of 50 feet. According to the Department of Public Works' County agricultural road standards, however, the balance of the right-of-way (shoulders and swales) need to be graded and paved. It is from the improvements to the balance of the right-of-way requirement that the applicant is seeking relief from. B. Project Location The subject project is located in central Kona, straddling the districts of North and South Kona. More specifically, it is located on the makai 1 side of the Mamalahoa Highway near the town of Kealakekua. One of its principal access is the extension of Haleki'i Street, while the other is from a County standard road constructed by the applicant and commonly referred to as the Hokulia By--Pass. (Figure 1) The RA component of this project is being developed in phases. As noted earlier, Phases I and II have been granted final subdivision approval. The roadways within these approved subdivisions have been assigned tax map key numbers. These road lots are identified by TMK: 8-1-026: 057 and 8-1-032: 054. The proposed roadways within Phase 3 are part of a subdivision that encompasses TMK: 7-9- 012: 004, 006, 011, 029 and 034; 8-1-004: 003, 064, 065, 068 and 070 and TMK: 8-1-032: 054; 8-1-033: 013 through 017. C. Status of Subdivisions As noted earlier, the master plan, as modified by the Settlement Agreement, calls for a maximum of 665 RA lots, an 18-hole goff course, clubhouse, ocean park, archaeological/cultural preserves, and other related amenities and facilities. The RA lots are being developed in phases. The different phases are noted on the overall subdivision plan found in Figure 2. As depicted on this plan, Phases 1 and 2 have been granted final subdivision approval and have been platted on the tax maps. Attached as Appendix A are the pertinent tax maps (9 sheets -TMK: 8-1-; 8-1-26; 8-1-27; 8-1-28; 8-1-29; 8-1-30; 8-1-32; 8-1-33; and 8-1-34)which depict these approved subdivided lots. Relative to Phase 3, there are three sub-phases identified as Phase 3 — North, Phase 3—South, and Phase 3 — East. Tentative approval was granted on July 10, 2007 covering Phase 3— North and South. Revised tentative approval for those subdivisions, with the same conditions, was approved on December 4, 2007. A copy of these approvals with the corresponding plat map is found in Appendix B. Although filed on or about January 2008, to date, tentative approval for Phase 3— East has not been granted. A copy of the acknowledgement letter and proposed subdivision layout is found in Appendix C. II. NATURE AND PURPOSE OF REQUEST A. Proiect Objective 2 \ i I ' V l I .Y T •,,1 .. \\ `-„, 7 l ' E 5 i S ? 1� Lam" 1 5 v - . \ ---\._ji ',-1 - r\,\\L______,-,-.., (' A L '1 i ! \ \\\-,,54, 1y k '` FIGURE 1 = 2 , .-1� o O w C N C7 f7 M - w W W W w W ie o = e U) R - �^ . =) _ _) _) =o Y avQ a Cl. a a a COtO 1 cn I- (///1_I LI U) j, k-ra &NEa < CL 1 a � i R Ai iaa ' Z CO g.�'dw�l,`ls 1xs. J ' w 2 if: ® a i It � ` 8 r ikiimiiitairinalTtit z : - , / < D lEaRiligA44,P. : Q ,7 a § iaj .44_ „, 4 , ? . : 4. E am 14'----I:47 ' 1 h.-411:riA - 4- * 4 _IL . _ #4•4•111•---• I i / rt. "a 8 ,�� gym`" ry 1ill , Q Cq Y __ x // ,,.....elfli.- ---,R. 13.11ptit) ,46,,,,,g1 , i :I," Q W e a/ lvffiiiiiiiiirrinpA N 7I g- 5 r Mrellitrt 4 Alw' All gad `►„mai 20 �� a co ,xeilagt: -':--,, 17.- AR litttrOTONTIOP' _,,ji L.Ii ri .'. ' ) i Ltim ,,,,..____,/. a .,,, ,, i ibia___ sw, . .., , ,, , /4. /sow - , 113-113nrito: 4 4:' ; ; a pAlio0 � ' 15,E ©0: _---, ,,1 - ---2 ,^ �„ 4414 110011, /A'allillir / ; -A 4,1,1,4‘,. '5) ;; AdriPA101101047A Eir2 ; ; miii A A A r.,94.1 I\ E r t siistimo . , . imi., 1 "eV.-----;\or , /'(,,,, II 1 ik, •-, Inv , / , . . ni-, i , : , Do ,14.4-4471-41/44";-114,11/./IP' 14/\ AA 1, y ,,,4807,-,„.._,- ileilVialr- -A V .1..-----"Ti.9/M a( grruLiftp4411i / 0 a M • Z cn I- E 2 0 11 W 2 `V W w d Z Q 1--- < < 20 '-- 2 a Z a 0 FIGURE 2 6.p.,,,a aps 10,..0\l.q,,,]a0.uon\ave\9 puemv IOPScS9002\99m191.1\91 As noted earlier, the applicant proposes to create a maximum of 665 RA lots as generally depicted in Figure 2. Some of the lots within Phases I and 11 have been sold, and it is the intent of the applicant to eventually have all RA lots within the project site sold over time. For project character and environmental reasons, the applicant wants to minimize excessive grading of the shoulders without compromising health, safety, and welfare concerns not only of existing and prospective lot owners but the public in general. As such and as discussed below, the applicant is requesting some measure of relief (variance)from the roadway right-of-way improvement requirements. B. Requested Variance As noted in Appendix B, tentative approval for Phase 3– North and South was granted subject to meeting certain conditions. Relative to this tentative approval, the applicant is requesting relief relative to the road improvement requirements outlined in Condition 4f. Specifically, the relief is from improving the rights-of-way for all roads and cul-de- sacs (be they for serving 6 or less lots or serving 6 or more lots), as well as to Propose Road Lot R-1 (Halekii Street Extension). Although Phase 3-- East has not been granted tentative approval, it is suspected that the road improvements will be the same. Furthermore, the already approved subdivisions for Phases I and II may or may not have those requirements. Nevertheless, the intent of this variance is — to cover all roads–whether y ap raved or not-within the entire project— We believe that the relevant provisions of the Subdivision Code from which this relief is being sought are Section 23-86 (Requirements for dedicable streets) and Section 23-95 (Right-of-way improvement). The other roadway requirements such as Section 23-41 (Minimum right-of-way and pavement widths) and Section 23-50 (Grades and curves)will be complied with. All of these existing and planned roads are intended to be privately owned and maintained by the Homeowner's Association. This would also include the extension of Haleki'i Street, which although available for public use, is intended to be maintained by the Homeowner's Association. To reiterate, the minimum pavement and right of width would be maintained. The only relief being sought is from making full improvements (grading and paving of the shoulders) of the right-of- 3 way or to that area between the edge of the roadway pavement and the balance of the road right-of-way. III. JUSTIFICATIONS FOR REQUEST In considering variances, the Subdivision Code outlines three (3) criteria that must be satisfied. These criteria and their relationship to the requested variances follow. A. Special and Unusual Circumstances There are special and unusual circumstances relating to the property that deprive the applicant of substantial property rights that would otherwise be available. One of the special and unusual circumstances in this instance is the topography of the subject property. The average slope of the subject property ranges from 10-15 percent, with some areas exceeding 20 percent. The topography of the property will thus result in a road that will have a grade that-while meeting County requirements -will be fairly steep. Under that basis, full pavement of the right-of-way will result in a 50- to 60-foot wide impervious surface, as opposed to only 20 to 22 feet for the road. Full pavement could thus potentially increase storm water runoff, impacting makai and adjoining properties. While drywells will be installed to address potential storm water runoff resulting from the impervious surface of the new roads, paving the entire right-of-way(i.e., from 20 or 22 feet to 50 or 60 feet) will increase the amount of impervious surface and necessitate the construction of more drywells. This will add considerable cost to the applicant. Then, too, this approach will also preclude the use of the shoulders and swales to act as natural storm drains and/or retardation of the velocity of any potential storm water. Additionally, reducing the graded and pavement width by 30 to 40 feet would result in less land disturbance and less visual impact resulting from the pavement and the excessive cut and fill slopes. While construction cost will be reduced, the relief will not compromise safety, as the pavement width will still be standard, and, if need be, the grassed shoulders can still enable one to pull off the travel way. . 4 Finally, this circumstance is made even more unusual, as the road will be kept under private ownership and not dedicated to the County. One of the intent of requiring full improvements within a right-of-way is to minimize the cost of its maintenance. Having the entire right-of- way paved minimizes erosion to the edge of road pavement as well as reduces the need to landscape and control unwanted weeds_ While that may be understandable for a public road, all roads within the project will be PRIVATELY owned and maintained. Thus, the issues commonly associated with public or government maintenance are not present. All lot owners, as well as the new lot owners, will have a responsibility to maintain roads within the project. Thus, there will be no public burden. As such, it is reasoned that that there are special and unusual circumstances that justify the granting of this request. Specifically: a. there may be some measure of deprivation of private property rights, as the applicant would not be able to serve its users in a manner consistent with a private subdivision or development, where there would be no burden to the Department of Public Works; and b. it may interfere with the best use or development of the site, as other options to absorb the fiscal and design cost and compromises of making the right-of-way improvements would have to be made. B. Reasonable Alternatives f As in all situations, there are alternatives. The determining factor, however, is reasonableness. in this situation, constructing a private, agricultural standard road in accordance with the requirements of the ` • Department of Public Works would add to the overall construction and possible maintenance cost of this project. There would not only have to be increased clearing and paving of the area outside of the road, but more drywells may have to be installed. Full pavement of the right-of-way would increase the potential for more surface runoff. This will then call for additional drainage system to be implemented. This will add unnecessarily to the cost of the project. The alternative is to not make the full improvements within the right- of-way. The road pavement width (20 to 22 feet)would still be consistent with the basic requirement, and, as such, public safety 5 should not be compromised. Additionally, what would appear to be an "urban" 50 to 60-foot wide roadway would be out of character in this rural/agricultural environment. Having the grassed swales would be visually more compatible and consistent with the area's character. C. Intent and Purpose The requested relief would still not be inherently violative of the spirit and intent of the subdivision code. The paved shoulder and swale requirement is intended largely for maintenance purposes. Having unimproved shoulders and swales would result in a gradual erosion of the edge of the 20 to 22-foot wide road pavement. This would be due, in part, to vehicles running off the edge of the pavement and parking within the road right-of-way. Additionally, full pavement of the swales and shoulders would help keep weeds in check. Like the potential road erosion problem, this would help minimize maintenance of the road. However, as the existing and proposed roads are intended to be private, its maintenance and associated liability will be the responsibility of the homeowners association, who will eventually end up owning and maintaining all of the roads. Thus, the County's concern of maintenance- resulting in the full right-of-way pavement requirement- is absent for private roads. It should also be noted that this variance would not compromise any safety concern. There will still be a 20-22 foot wide paved road, which will be sufficient to allow for emergency vehicles to access the entire project area. The approval of this variance should therefore not be inherently violative of the spirit and intent of the Subdivision Code. Finally, there would not be any noticeable impact to the public welfare. The applicant would perform all improvements, and the road would be privately owned and maintained. 6 APPENDIX A TAX MAP KEY MAPS , ...- retnel, "" z'.:;3,17,1,,r..••-• r;;;..M...=,. IMO:7; •.6...-,,,,...., 0. IC' 5 i Z IMiCkiks, i A .?.. 1 ,. .• 1 z... A 1 ..., I , t . , •,..., ..., - k F.• ‘ \ 0,,,p._ ,6_„,. tido, -1 , . ......„,4„,. ,....,_!.., ..i ;) t. 1---/ -:) j ,„ -F. ,,...,---,--- wa...--- i i • •'' • ,,,- ,deilW1- - Jar; Illiti,. , ..., ! 1 ? .t z c,.4 , „I. . t , 11 ../ \cy,, i .• I ........t-,.. , \ \„., -- N. i_. t; -} , ....NV % "*„, '''' ' '''Th--.r.1, 17 7TIW ..1 X% A e 1 1194 , 1r 4 1 ..- s . ... 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M _ f�� Q iip .m .„.- . , a '..,,, Hi_ a 5 44 =� 11,,i• 10 I as a S OD z va mS la 9 6 v ? 4g tlifi 77 • { APPENDIX B PHASE 3 - NORTH AND SOUTH TENTATIVE APPROVAL LETTERS AND MAPS Harry Kim :i■•��� ' :. *� ■'' Christopher J.Yuen a m Director Mayor �.� Brad Karokawa,ASLA LEED®AP aul ntg IIf tufuntt Deputy Director PLANNING DEPARTMENT 101 Pauahi Street, Suite 3 • Hilo,Hawaii 96720-4224 (808)961-8288 • FAX(808)961.8742 December 4, 2007 Sidney M. Fuke Planning Consultant 100 Pauahi Street,Suite 212 Hilo, HI 96720 Dear Mr. Fuke: REVISED PRELIMINARY PLAT MAP(Sheet 2 of 3) SUBDIVIDER: 1250 Oceanside Partners iHokuli`a Phase 3 North Subdivision° Proposed Consolidation of Lot 6 of Hokuli`a(Amended)(File Plan 2290), Lot C,Part 2 of Hokuli`a Phase 2 Large Lot Subdivision(Amended)(File Plan 2306), Lots A-1,A-2 and Parcel 10(Mamalahoa Bypass Road)of Subdivision No. 7287-Revised(3), And TMK: 7-9-012:006&011, And its Subdivision into Lots 1 to 135, Inclusive, and Road Lots R-1 to R-21, Inclusive, And Parcel 10-A and Designation of Preservation Sites and Easements, Honuaino 3rd&4th, Hokukano 1st&2nd, &Kanaueue 1'&2nd, North Kona, Island of Hawaii, Hawaii, TMK: 7-9-012:004,006,011,029&Portion 034;and 8-1-004:064 &065 (SUB 01-000566) This is to acknowledge receipt of ten(10)copies of the revised preliminary plat map(Sheet 2 of 3)dated November 19,2007,for"Hokuli'a Phase 3 North Subdivision"in compliance with Condition L(5) of Ordinance No. 96-8. Please be advised that the condition of our Tentative Approval letter of July 10, 2007, remain applicable for Final Subdivision Approval inasmuch as the revised preliminary plat map(Sheet 2 of 3)coincides with the pending construction plans. By a copy of this letter, we are forwarding a copy of the revised preliminary plat map to the listed officers for their review and files. Hawaii County ds an Fslual Opp;irtunu rrsywider and Employer. Sidney M. Fuke Planning Consultant Page 3 December 4, 2007 { Should you have any questions,please feel free to contact Ed Cheplic of this department. Sincerel 7, CHRISTOPHER J. N Planning Director ETC:Inm P.WON UBDINDcCurnen tOStibe2007-41511E-07-0005661250O SIdeHfaiu Ph3NdhREVPPM.doc Banc.: Revised PAM (Sheet 2 of 3; 11-19-07) xc: Manager, DWS w/Revised PPM(Sheet 2 of 3) Director, DPW wlRevised PPM(Sheet 2 of 3) District Environmental Health Program Chief,DOH w/Revised PPM(Sheet 2 of 3) District Engineer, DOT wlRevised PPM (Sheet 2 of 3) Director, DEM wlRevised PPM(Sheet 2 of 3) DPW-ENG-KONA w/Revised PPM(Sheet 2 of 3) DLNR-Historic Preservation Division(Oahu)wlRevised PPM(Sheet 2 of 3) Bob Stuit, 1250 Oceanside Partners Robert W.Cunningham,LPLS,Belt Collins Hawaii,Ltd. �, �,i:s , j1,`ero. ; .Q1,, , y \ 1, • %o\k . �' i'i 'i l iiT lr` 1111 I\\\ t ' \\ 1 K ,r " .[ 11; 'i' fill) I� HI 11 \.1 `\\ �. 4. �, • CYC .. / ) Jt Ii(‘ c..)\\ ,,y, ,7",-(-</r/ f I) I I V\ \ .--,----,,,\ \fri,, 1:,,i, I, . A\ , ,,,t III , I/ f- r ! \ I 7 ( 1 , i',,,\ 0.ilrfil 1:. :`(,' \\1I /1 ( ( ! i , I / !"r r'fi 1 • "t* :-./) '441,:',,Ti ,sr-- rs''' 0y, 11 ,'. \ \ i i t 1/ 1 - 7 '1'I' •AV* ‘-lrioti*hyd,lb/V:1N 1 li ,),.' - ";" i if'2 )"I O eil: ; • . Harry Kim :T . Christopher J.Yuen Mayor Director • IA ','"-e•••• Brad Kurokawa.ASIA LEED®AP Deputy Dire,t‘ r LflU1ttJOf j 4Z ti.mtii PLANNING DEPARTMENT 101 Pi;Jahl Strect, Suitc 111!:), 46720 "z C4: ;80f;j 96?-s,2i.k • FAX "'WS:9t,I July 10. 2007 Robert W Cunningham, LPLS Belt Collins Hawaii, Ltd, 2153 North King Street, Suite 200 Honolulu, HI 96819-4554 Dear Mr. Cunningham: TENTATIVE APPROVAL SUBDIVIDER: 1250 Oceanside Partners "Hokuli'a Phase 3 North Subdivision" Proposed Consolidation of Lot 6 of Hokuli`a (Amended), File Plan 2290, Lot C, Part 2 of Hokuli`a Phase 2 Large Lot Subdivision (Amended) File Plan 2306, Lots A-1, A-2 and Parcel 10 of Subdivision No. 7287-Revised (3), and TMK: 7-9-012:006 &011, And its Subdivision into Lots 1 to 134, Inclusive, and Road Lots R-1 to R-21, Inclusive, And Parcel 10-A and Designation of Easements and Preservation Sites, Honuaino 3rd &4th, Hokukano 1 &2 , & Kanaueue 1St & 2nd, North Kona, Island of Hawaii, Hawai`i, TMK: 7-9-012:004, 006, 011 029 & Portion 034; and 8-1-004064 & 065 (SUB 07-000566) "Hokuli'a Phase 3 South Subdivision" Proposed Consolidation of Lots 9 & 13 of Hokuli'a (Amended), File Plan 2290, Lots 26 through 30 and R-4, Part A of Hokuli'a Phase 2 (Amended), File Plan 2307 and Lot B, Part 1 of Hokuli'a Phase 2 Large Lot Subdivision (Amended) File Plan 2306, And its Subdivision into Lots 1 to 85, Inclusive, and Road Lots R-1 to R-14, Inclusive, And Designation of Easements and Preservation Sites, Hokukano 1st through Onouli 1st, South Kona, Island of Hawaii, Hawaii TMK: 8-1-004:068 & Pors. of 003 &070;8-1-032:Por.054; & 8-1-033:013 thru 017 (SUB 07-000566) Please be informed that Tentative Approval of the preliminary plat maps (Sheets 1, 2 &3)dated April 6, 2007,for both Hokuli'a Phase 3 North and Phase 3 South Subdivisions, is hereby granted with modifications and conditions, Robert W. Cunningham, LPLS Belt Collins Hawaii, Ltd. Page 2 July 10, 2007 The subdivider is now authorized to prepare detailed drawings of the subdivision plan in accordance with Chapter 23, Subdivision Control Code, County of Hawaii, as modified. Before final approval can be granted, the following conditions must be met 1) Water System a) Water for the proposed subdivision is subject to the "Well Site Development Agreement" between the"Greenwellsn, 1250 Oceanside Partners, and the Water Board of the County of Hawai A water commitment for the proposed subdivision will be effected upon successfully completing the drilling of an exploratory well capable of producing a sufficient quantity and quality of potable water and bonding of the production well and off-site improvements. b) Construct necessary water system improvements, which shall include, but be limited to: 1) water mains capable of delivering water at adequate pressure and volume under peak-flow and fire-flow conditions. The minimum diameters of mains shall be 6 inches; 2) service laterals that will accommodate appropriately-sized meters to each lot; 3) subject to other agencies' requirements to construct improvements within the road rights-of-way fronting the property affected by the proposed development, the subdivider shall be responsible for the relocation and adjustment of the Department's affected water system facilities, should they be necessary; and 4) fire hydrants spaced no more than 600 feet apart. On dead-end streets,the last fire hydrant shall be located at one half the distance from the last house, or unit, fronting the property line, or to the driveway or access for the property. c) Submit construction plans and design calculations prepared by a professional engineer, registered in the State of Hawaii, for review and approval. d) Payment of the required facilities charge, pursuant to the "Well Site Development Agreement" between the'Greenwells", 1250 Oceanside Partners, and the Water Board of the County of Hawai'I. e) Submit the appropriate documents, properly prepared and executed, to convey the water system and improvements and necessary easements to the Water Board of the County of Hawaii prior to the issuance of final subdivision approval. A registered land surveyor shall stamp and certify the metes and bounds description within the conveyance documents. However, prior to the water meter services being granted to the development or any lots within, the conveyance documents shall be accepted by the Water Board. 2) Drainage a) Identify FIRM Flood Zones AE, VE, and X Shaded boundaries and areas on the final plat map. b) Determine the base (100 year) flood elevations for the Flood Zone A and other areas subject to inundation within the subdivision. Submit a flood study, prepared by a licensed civil engineer, to the Department of Public Works for review and comment in conjunction with the required infrastructure construction plans. c) Identify the Flood Insurance Fate Map (FIRM) Flood Zone A boundaries arid base flood elevations on the final plat map. Robert W.Cunningham, LPLS Belt Collins Hawaii, Ltd. Page 3 July 10, 2007 d) Identify all other watercourses and drainage ways besides those designated as flood hazard areas on the FIRM and encumber with drainage easements. e) Portions of the proposed subdivision is situated within the Federal Emergency Management Agency's (FEMA) flood zone and will alter the FIRM boundaries and based flood elevations. For the affected areas, obtain FEMA Conditional Letter of Map Revision (CLOMR) prior to start of construction. Upon completion of construction, obtain FEMA Letter of Map Revision (LOMR) as a condition of subdivision final approval or if the final approval is secured with a bond and agreement, prior to release of the bond. f) Additional storm runoff due to development shall be disposed within the subdivision and shall not be discharged onto adjacent properties or roadways. For planned drywells, satisfy Department of Health (DOH)drywell requirements, including issuance of an underground injection control (U IC) permit to the subdivider. 3) Wastewater a) All wastewater generated by the proposed subdivision will be disposed of within a private sewer treatment plant situated within the Hokuli`a project site. All sewerage system requirements necessary to support the proposed subdivision shall be shown, as appropriate, on subdivision construction drawings to be submitted to the Department of Public Works and Department of Environmental Management for review and comment. 4) Access and Roadway Improvements a) Provided common access easements encumbering the side-by-side poles of flag lots. Identify easements by azimuths/distances on the final plat map and indicate/designate easements as a combined access to serve both proposed side-by-side flag lots. b) Roadway design/layout including allowable street grades and curves shall conform to Section 23-50 of the Hawaii County Code (HCC). c) All cul-de-sacs and dead end streets shall comply with Section 23-48 of the Subdivision Code. d) Provide adequate sight distance at all road intersections. e) Provide 10-foot wide"no vehicular access" planting screen easement on all lots fronting Haleki'i Street and Mamalahoa Highway By-pass Road. f) All proposed subdivision roads shall be constructed in conformance with the requirements of the Subdivision Code (Chapter 23, HOC). 1) For subdivision roads serving more than six (6) lots, construct minimum 20-foot dedicable pavement with paved shoulders and swales, within a minimum 50-foot wide right-of-way, conforming with DPW Standard Details R-33 and R-34. 2) For road lots serving six(6)lots or less, construct a minimum 16-foot wide non-dedicable pavement within a minimum 20-fool wide right-of-way, conforming to DPW Standard Detail R-39. 3) Proposed Road Lot R-1 (Haeki, Street Extension) shall be constructed to County dedicable standards, meeting with the approval of The Department of Public Works. 4) Construct turnarounds at the end of the proposed cul-de-sacs in conformance with Section 23-48 of the Subdivision Code. Robert W. Cunningham, LPLS Belt Collins Hawaii, Ltd. Page 4 July 10, 2007 g) Install street lights/signs/pavement markings as required by the Traffic Division. h) Submit construction plans and drainage report for review and comment of the Department of Public Works i) identify all private roadways on the construction plans. 5) Pursuant to Condition F of Change of Zone Ordinance No. 96-7, all electrical and communication utilities and systems shall be placed underground, with the exception of the main 69kv transmission line from the Mamalahoa Highway to the electrical substation. 6) All easements affecting proposed lots shall be identified for its purpose and to which proposed lot(s) and/or grantee(s) the easement is in favor of. This shall be shown on the final plat map. 7) Comply with all conditions of Change of Zone Ordinance Nos. 96-7, 96-8 and SMA Use Permit No. 356. Some of the various requirements include: a) continue to implement the approved interim archaeological protection/preservation plan; b) ensure that proposed subdivision remains consistent with final comprehensive public access plan; c) comply with solid waste management plan approved in 2000; d) submit required fair share contributions pursuant to Condition R of Ordinance No. 96-8; 8) Property Tax Certification. Submit written proot that all taxes and assessments on the property are paid to date. 9) Surveyor's Certification. Place property markers in accordance with the final plat map. Surveyor shall submit certification upon completion. 10) Final Plat Map. Submit ten (10)copies of the final plat map prepared in conformity with Chapter 23, Subdivisions,within one year from the date of tentative approval, on or before July 10,2008. If not, tentative approval to the preliminary plat maps shall be deemed null and void. Only upon written request from the subdivider and for a good cause can a time extension be granted, provided it is submitted forty-five (45)days before the expiration of said period of one year. As part of final plat map submittal; the Planning Director requests an additional copy of the final plat map be submitted as a ".dwg"or".dxf" diskette file prepared by CAD software. 11) Time Limit. Subdivider shall complete all requirements specified as conditions for tentative approval of the preliminary plat maps within three (3)years of said tentative approval,on or before July 10, 2010. An extension of not more than two (2) years may be granted by the director upon timely request of the subdivider. Please be aware that if at any time during the fulfillment of the foregoing conditions, should concerns emerge such as environmental problems or other problems which were earlier overlooked or not anticipated/accounted for in data/reports available to date, this could be sufficient cause to immediately cease arid desist from further activities on the proposed subdivision, pending resolution of the problems. The Planning Director shall confer with the listed officers to resolve the problems and notify you accordingly. No final approval for recordation shall be granted until all the above conditions have been met. I • Robert W. Cunningham, LPLS Belt Collins Hawaii, Ltd. Page 5 July 10,2007 Land shall not be offered for sale, lease or rent until final approval for recordation of the subdivision is granted by the Planning Director or the proposed subdivision has been issued a preliminary order of registration by the Department of Commerce and Consumer Affairs (DCCA) in accordance with the requirements of Chapter 484, Hawaii Revised Statutes. There has been considerable legal controversy over subdivisions in the agricultural district, including the recent Kelly, et.al. v. 1250 Oceanside Partners, etal., Civil No. 00-1-0192K, Because of the state of the law at this time, we recommend that subdividers in the State Land Use Agricultural district consult with, and rely on, independent legal counsel in deciding whether their subdivisions comply with the requirements of Chapter 205, Hawaii Revised Statutes. We also recommend that you advise lot purchasers to consult with, and to rely on, independent legal counsel regarding permissible uses and the effect of Land Use Commission Rule 15-15-25(b), Hawaii Revised Statutes Section 205-4.5, and Hawaii County Planning Department Rule No. 13, on the requirements to build and occupy dwellings on lots within the subdivision. For the Subdivider's information, the United States Postal Service (USPS)has informed this office of new mail delivery guidelines,which encourages the use of centralized mail delivery equipment. We have enclosed a flyer provided by the USPS. These new mail delivery guidelines must be considered as it may have an effect upon the proposed subdivision depending on the type of centralized mail delivery to be provided. We encourage the Subdivider to contact the local USPS Growth Coordinator at(808)423-3908. The Subdivider is ultimately responsible to ensure that the proposed subdivision will accommodate the necessary easements or facilities to provide for centralized mail delivery in accordance with USPS mail delivery guidelines. Should you have any questions, please feel free to contact Ed Cheplic of this department. Sincerer, ; LrA CHRISTOPHER J Pianninq 'Director DSA:lnm P•,wF•SG'SUscmoxunten;stSopc2wii 3'\SUB Ui 006566 125UU,:eanseunoau6aPn3North&SoutnTH a0c. Robert W. Cunningham, LPLS Belt Coffins Hawaii, Ltd Page 6 July 10, 2007 Manager, DWS Director, DPW District Environmental Health Program Chief, DOH District Engineer, DOT DPW-ENG-KONA 1250 Oceanside Partners Aldney Fuke, Planning Consultant Ili. i iii Ai is fly lj yam;- - - i; !I" i ° ''-'441 i lyaa�`w!ytiy �! 1 "" ii ,I,- `-iF�� •- "4" 04 ,, , .,. 0 ,, i LI* ,lara - i A.._.delL hil iv " 1C �,1s 1' ff p /- ri.V.Vir 4401 !--raMI :A.tiU1-.A4.=, P i) 'Ai - 41 0 mir i H 1 4fiL.,...r7_,.,.4t. no.; 1 ,,._, ;,\ -..1-,„ , ,, . 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F. _.41 moi'- ,1 `�r•:t - -- �!.;,i+1,71,1-7,1147, :i � l�- � + f - ,� -•kr I,' !.ion:�,�; -7,11 ' r'_ tru 'r., ...i:._ ' t1`f^,i' C1®W I IYIr01 914 ' • el �]dAlBm Y i I i APPENDIX C I PHASE 3 - EAST ACKNOWLEDGMENT LETTER AND MAP Harry Kim ;i•�,{� i/'l' Christopher J.Yuen Mayor Director :;;•d;-;;,+' ` ' Brad Kurokawa,ASLA LEED®AP arruntg- u f Paftraii Deputy Director PLANNING DEPARTMENT 101 Pauahi Street, Suite 3 • Hilo,Hawaii 967204224 (808)961-8288 • FAX(808)961-8742 February 8, 2008 Sidney M. Fuke Planning Consultant 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: REVISED PRELIMINARY PLAT MAP SUBDIVIDER: 1250 OCEANSIDE PARTNERS "Hokuli4a Phase 3 East" Part A.-Subdivision of Lot 1-A into Lots 1 to 26, Inclusive&Road Lots R-1, R-2, R-3&R-4; and Part B-Consolidation of Lot 2 of Hokuli'a (Amended)(File Plan 2290) and Lot 3-A-1 of Hokuli'a, Mamalahoa- • Haleki'i Intersection Improvement Subdivision No. 1, - And Resubdivision into Lots 27 to 58, Inclusive&Road Lots R-5, R-6, R-7& R-8, Kanaueue 1st&2nd, Haleki'i&Keekee 1st, North Kona&South Kona, Island of Hawaii, Hawaii .TMK: 8-1-004:059& Por.060 and 8-1-035:Por. 001 (SUB-07-000685) This-is to acknowledge receipt of ten (10) copies of the revised preliminary plat map dated January 22, 2008, for the referenced application. Due to topographic issues, the plan was revised to reflect a direct access from Halekii Street By a copy of this letter, we are forwarding a copy of the revised preliminary plat map to the listed officers for their review. We shall contact you upon receipt of their response on this matter. Should you have any questions, please feel free to contact Ed Cheplic of this department. Sincerely, ,HRISTOPHER J. YUEN Planning Director ETC:Inm P:Iwp601SU8oI Mocumentst5ubc2008-11SU8-07-00068512500ceansideHokuliaPh3EastREVPPM.doc Hawaii County is an Equal Opportunity Provider and Employer. Sidney M. Puke Planning Consultant Page 2 February 8, 2008 xc: Manager, DWS w/Revised PPM Director, DPW w/Revised PPM District Environmental Health Program Chief, DOH w/Revised PPM District Engineer, DOT w/Revised PPM Director, DEM w/Revised PPM DPW-ENG-KONA w/Revised PPM DLNR-Historic Preservation Division (Oahu)w/Revised PPM Robert Stuit, 1250 Oceanside Partners Robert W. 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Q 1 U M UU *4 a c• pi c.T A 0 Maw '- °C © 0 a W oo ¢ < m o 00 I-CI La W ° r IE CsnSt.)1.4 J.() /(t12tIOD €,N:,41iNti ' 'f*33(' ONINNY1d EXHIBIT 21 SidneyFuke, Plaamu. g Consultant F 4 im7mmr 100 Pauahi Street,Suite 212•Hilo, Hawaii 96720 •Planning•variance•Zoning Telephone:(808)969-1522•Fax:(808)969-7996 •Subdivision•Land Use Permits E-mail:sidfuke®hawaiiantel.net _ •Environmental Reports ! October 15,2010 Ms. BJ Leithead Todd, Director Planning Department COUNTY OF HAWAII 101 Pauahi Street Hilo,HI 96720 ATTN: Mr. Garrett Smith Dear Ms.Leithead-Todd: Subject: Variance Application — 1250 Oceanside Partners This is to follow up on my meeting of October 14 with your staff,Mr. Garrett Smith, regarding the subject matter. I appreciated his cooperative effort and spirit to help bring this matter to a satisfactory and imminent conclusion. During this meeting,some of the more salient points discussed(and somewhat expanded herein)relating to the substance of the request included: 1. Section 23-95 of the Subdivision Code requires improvements to a road right-of-way in accordance with the standard on file with the Department of Public Works ("DPW"). The standard calls for paving the entire road right-of-way,regardless of whether the right-of-way and improvements therein are dedicated to the County. The applicant's requested relief(variance)is from this provision,particularly as it relates to all roads within the Hokuli'a project("Project"). 2. In terms of subdivision applications relating to this Project,there are essentially five (5)phases—Phases I, II, III-North,III-South,and III-East. Their status are: a. Phases I and II received final subdivision approval with a bond to assure construction of all required infrastructure improvements. These bonds are still active,as all improvements have not been completed to date. Please note that, contrary to Section 23-95,the County-approved construction plans did not reflect full improvements within the road rights-of-way. SCANNED By: EXHIBIT 21 Ms. BJ Leithead Todd, Director October 15, 2010 Page 2 b. Phases III-North and III-South received tentative subdivision approval on July 10, 2007. Condition 4f of said approval required full improvements within the road right-of-way. Construction plans for these phases that were submitted to the County for review and approval do not reflect full improvements within the road right-of-way. It is the applicant's understanding that these plans have already been approved. c. Phase III-East is still under review by your office. In a Ietter, dated February 8, 2008,your office acknowledged receipt of the revised map and added that further action would be taken upon receipt of agency comments. To date, however, no action has been taken. 3. There are certain conditions of the rezoning ordinances that require and/or imply public use of the extension of Haleki'i Street and the road connecting to adjacent properties north and south of the Project. Specifically,as noted in my letter of July 29, 2010,the operable ordinances and conditions are found in Condition M of Ordinance 96 7 and Conditions L and M of Ordinance 96-8,pertinent excerpts of which were provided in that letter. Per Condition M of Ordinance 96 7 and Condition L of Ordinance 96 8, "Roadway improvements and access(es)to the subject property, including all plans and constructions, shall meet with the approval of the Department of Public Works." (Emphasis added) Condition M of Ordinance 96 8 required the improvements called for in Condition L of ordinance 96 8 be dedicated to the County. These included, among other improvements,the extension of Haleki'i Street and the primary road stub-outs to the adjoining properties north and south of the Project. It should be noted that the extension of Halekii Street has been completed without full right of way improvements per construction plans approved by the DPW. 4. Finally, variances from improving the road right-of-way have been approved in the recent past for subdivisions where the road right-of-way and all improvements therein would be owned and maintained by an entity other than the County. For example, in the development of the Luala'i subdivision of former Parker Ranch, Inc. properties in Waimea,relief from improvements by installing grassed swales within the road rights-of-way was granted by the Planning Director. This approval Ms. BJ Leithead Todd, Director October 15,2010 Page 3 was granted with the condition that a)there would be a written assurance that there would be a maintenance program for the grassed swales; and b)the future lot owner would acknowledge this condition and the county's non-obligation to make sidewalk improvements. It should be noted that most of the roads within the Luala'i project (unlike Hokuli'a) are intended to eventually be dedicated to the County. A copy of this letter, dated March 27, 2002, is enclosed. Furthermore, in a letter, dated June 29, 2007, the Planning Director granted a similar relief for a subdivision in Wainaku, South Hilo. Conditions paralleling the Luala'i subdivision were also imposed. A copy of this letter is also enclosed. In that regard, please find also enclosed pertinent provisions of the recorded "Declaration of Covenants, Conditions and Restrictions for Hokuli'a"which requires the Village Association(of which all lot owners within the project are mandated to a part of)to be responsible for the costs of operating, maintaining,and insuring,among other improvements within the project, the rights-of-way and streets. This is found in Article V, Section 5.2. It is our belief that the conditions of homeowners' awareness of and maintenance responsibility for private roads reflected in the above two projects are addressed in the CC&R's affecting the Hokuli'a project. Given the above, we again renew our request for your favorable action on the applicant's variance request covering the entire Hokuli'a project. Specifically, these would affect: a. the already approved subdivisions covering Phases I and II; b. the pending Phase III (Worth, South,and East) subdivision applications. Relative to Phase III—North and South, subsequent to action on the variance, Condition 4f of the tentative approval letter, dated July 10, 2007, need to be amended to reflect action of this variance. Furthermore, since the roadway requirements for Phase III-East are already known,this variance would also apply to this application as well and reflected in a forthcoming tentative approval letter; and Ms. BJ Leithead Todd, Director October 15, 2010 Page 4 c. the extension of Haleki'i Street between the Mamalahoa Highway By-Pass and the Kona Scenic Subdivision as well as the primary road within the Project that would stub-out to the adjoining properties to the north and south. This approval could be subject to the condition that a)there be documentation of all lot owners' awareness of the private road condition and their obligation to maintain these roads (which we believe have already been addressed in the Project's recorded CC&R's); and b) its applicability to the extension of Haleki'i Street and the main stub-out road would be subject to the DPW's approval as noted in Conditions M&L of Ordinance 96 8. As in the past,the DPW has allowed such a relief with a maintenance and liability and public use agreement. I trust that the above information helps in your review and eventual disposition of this application. If you require further information or discussion,please feel free to contact me. Again, thank you very much for your staffs time and direction on this matter. Sincerely, SIDNEY . FUKE Planning Consultant Enclosures Copy— 1250 Oceanside Partners w/enclosures via email CEIVED APR -- 3 2002 c - JNZY OF Nq'•. • Harry Kim ;: g,•;�/:. Christopher I. Yuen Mayor � ... Director ?. oF'N:�` Roy R. Takemoto Deputy Director Lxiurtf .rf Painzat PLANNING DEPARTMENT 25 Aupuni Street,Room 109 •Hilo,Hawaii 96720-4252 (808)961-8288 •Fax(808)961-8742 March 27, 2002 Mr. William L. Moore William L. Moore Planning 159 Halai Street Hilo, Hawaii 96720 Dear Mr. Moore: CHANGE OF ZONE ORDINANCE NO. 96-117 (REZ 715) Applicant: Parker Ranch, Inc. Subject: Compliance with Conditions M(1)gLAr'-r.'„ f'"- TMK: 6-2-01: 19; 6-7-01: Portion of 25; 6-7-02: 09, 48 and Portion of 17; and 6-8-01: Portions of 1 & 8 This is in response to your letter of November 12, 2001 requesting a determination that development within the residential zoned lands within the Parker Ranch Waimea Town Center area be allowed with grassed swales in lieu of curbs, gutters and sidewalks. It also our understanding that Parker Ranch is proposing to dedicate these roads to the County upon completion of the improvements In reviewing the request, we understand that the maximum grade within the project area will not exceed 8%. Further, there is adequate rainfall under normal conditions to maintain the grass shoulders without the need for irrigation. We also understand that the grass shoulders will be improved with a cinder/soil mixture to provide structural support in the event cars drive or park on the shoulders. The rezoning ordinance provides that the Planning Director may waive curbs, gutters, and sidewalks. It is our further understanding that subdivision maps and road construction plans have been prepared for the portion of the Waimea Town Center area to the north of the "Parker Ranch • Mr. William L. Moore William L. Moore Planning Page 2 March 27, 2002 Connector Road". This area has been further identified as the Parker Ranch/Schuler Homes Community. There are no specific development proposals for the remaining residential areas to the south of the "Connector Road" as well as the along the eastern portion of the Waimea Town Center. We note that the Waimea Village Design Plan supports the use of grassed swales in lieu of curbs, gutters, and sidewalks. Based on the above understanding, please be infoluied that the proposed roadway cross sections for the Parker Ranch/Schuler Homes Community area, including grassed swales in lieu of curbs, gutters and sidewalks area allowed, provided that the following conditions are complied with: 1. Parker Ranch, it successors or assigns shall'be required toprovide written assurance meeting with the approval of the Planning Director, in consultation with the Department of Public Works that there will be a maintenance program for the grassed swales. This program may include the requirements for a maintenance bond or other security to assure the work is done in a timely manner. 2. If access concerns are raised in relation to the Americans with Disabilities Act (ADA) or other County, State of Federal regulation that require the provision of sidewalks or other access improvements that Parker Ranch, it successors or its assigns shall be responsible for the upgrading of the road improvements to confoiiii to such requirements. Parker Ranch shall provide appropriate assurances for this upgrade, meeting with the approval of the Planning Director, in consultation with the Department of Public Works. 3. That Parker Ranch, its successors or assigns shall include in its covenants for the residential zoned lands where grassed swales are proposed, notification that the buyers of residential units in the area be clearly infoiiiied of the improvements that are being provided and that the County shall not be responsible for providing sidewalks within this area in the future and shall further provide that if sidewalks or other improvements are desired, the residents of the area shall be responsible for the cost of improvements. Said covenants shall be approved by the Planning Director, in consultation with the Department of Public Works. The specific requirements to address these concerns, including any bonds or other required security, shall be in place prior to dedication of the road improvements to the County. At the same time, Parker Ranch should be aware that final authority for acceptance of dedication of the • S Mr. William L. Moore William L. Moore Planning Page 3 March 27, 2002 roads are with the County Council. Accordingly, this assurance is provided that the Council will accept dedication of the proposed road improvements. We will address the roadway standards for the balance of the residential areas within Parker Ranch's Waimea Town Center area when you have specific development proposals for those areas. Please call me if you have any questions on this matter at 961-8288. Sincerely, CHRISTOPHER . N Planning Directo CJY:pak Wpwin60\Pat\Parker Ranch Change of Zone(Rez 715) xc: Mr. Dennis Lee,Director, Department of Public Works Department of Public Works, Engineering Division Subdivision Section Planning Department - Kona Parker Ranch 1 • / 4 40,�jY Oi N+k, ' W Harry Kim ,�/, �. Christopher J.Yuen Mayor '� = Director. E;;•M.+' Brad Kurokawa,ASLA LEED®AP Tountg rd. �. �t tttt Deputy Director PLANNING DEPARTMENTi 101 Pauahi Street, Suite 3 • Hilo,Hawaii 96720-3043 (808)961-8288 • FAX(808)961-8742 June 29, 2007 Plant-Mason Family Trust c/o Mr. Sidney Fuke SIDNEY FUKE PLANNING CONSULTANT 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: SUBJECT: VARIANCE-VAR 07-023 Applicant: PLANT-MASON FAMILY TRUST Owner: PLANT-MASON FAMILY TRUST Request: . Variance from Chapter 23, Subdivisions Improvements Required Tax Map Key: 2-6-032:006, (SUB 05-000135) After reviewing your variance application, the Planning Director certifies the approval of Variance-VAR 07-023 subject to variance conditions. The variance allows alternative road improvements to be constructed for proposed subdivision(SUB 05-000135) of subject TMK property. The variance is from road condition 3-c or requirement to construct certain road improvements according to Tentative Subdivision letter dated February 28, 2007 or Chapter 23, Subdivisions, Division 2, Improvements Required, Section 23-50, Grades and curves, Section 23-41, Minimum right-of-way and pavement widths, Section 23-86, Requirements for dedicable streets, and Section 23-95,Right-of-way improvement. BACKGROUND 1. Location. The referenced TMK property is Lot 1-D containing approximately 14+ acres is part of Wainaku Farms Subdivision being portion of Grant 2975 to Kekaula and Grant 2977 to Maa, and situated at Wainaku, South Hilo, Hawaii. 2. Zoning. The subject property is zoned Residential and Agricultural(RA-la) by the County and designated Rural"R"by the State Land Use Commission(LUC). The property is subject to Ordinance Hawai`i County is an Equal Opportunity Provider and Employer. Plant-Mason Family Trust do Mr. Sidney Fuke SIDNEY FUKE PLANNING CONSULTANT Page 2 June 29, 2007 3. Subdivision Request/PPM. The owner's agent submitted proposed subdivision application(SUB 05-000135). Tentative approval (TA)to the subdivision's preliminary plan map (PPM)was granted on February 28, 2007 subject to TA conditions. 4. Variance Application. The subject variance application was acknowledged by Planning Department artment letter dated April 18, 2007. The agent's background report states in part: Page 2: "B. Requested Variance As note above, final approval of this subdivision is subject to meeting all conditions of tentative approval. Condition 3c requires improvements to Kulana Kea Road consistent with Sections 23-41 improvements to Kulana Kea Road consistent with Sections 23-41 improvements to Kulana Kea Road consistent with Sections 23-41 (Minimum right-of-way and pavement widths),23-50 (Grades and curves), 23-86 (Requirements for dedicable streets), and 23-95 (Right-of-way improvement). The private road serving the subject property has a 60-foot wide right-of-way with a 20-foot wide agricultural standard pavement. The grades and curves of this road also comply with Section 23-50. The applicant has no intension of having Kulana Kea Road dedicated to the County and, as such, Section 23-86 is not applicable. However,the applicant cannot comply with Section 23-95, and this is the subject of this relief(variance) request. As Kulana Kea Road is intended to be a private road and commonly owned eventually by all the landowners of the Wainaku Farm Lots Subdivision and the future lot owners of the proposed subdivision,the applicant is requesting some measure of relief from the full County road standard requirement. Specifically, the request is to gain exemption from grading and paving the shoulders and swales or that area between the edge of the roadway pavement and the balance of the road right-of-way." Page 3. Plant-Mason Family Trust do Mr. Sidney Fuke SIDNEY FUKE PLANNING CONSULTANT Page 3 June 29, 2007 "It should be noted that the applicant will be making some measure of improvements to the intersection of Kulana Kea Road and the "public" Wainaku Avenue. This is a requirement outlined in the rezoning of this site(Condition E. Ord. No.06 116) This, as well, as the water line improvements, will have general benefit to other homeowners within the Wailuku Farm Subdivision. Cumulatively,that cost plus the road right-of-way improvements,make the burden on one applicant quite excessive." 5. Agency Comments and Requirements: VAR 07-023: a The Department of Public Works(DPW)memorandum dated May 7,2007 states in part: "We have reviewed the subject application received on April 18,2007 and offer the following comment: The DPW still believes that to safeguard public welfare and safety, road improvements for Kulana Kea Road to satisfy Section 23-41, 23-50, 23-86 and 23-95 of the Hawaii County Code (HCC)should be provided. However, if the Planning Director finds that the applicant's reasons provide valid grounds to justify HCC, Section 23-15,the DPW defers to that determination." b. The County of Hawaii Fire Department memorandum is dated May 10, 2007. (Refer to the HFD memorandum in variance file). 6. Notice to Surrounding Property Owners/Posted Sign. The applicant's agent " submitted an affidavit and copy of notice mailed to surrounding property owners within"five hundred feet of the perimeter boundary"of subject TMK property. According to the affidavit and submittals the notice was mailed on or about May 3, 2007. Posted Sign: The applicant's agent submitted photograph of the original sign and revised sign posted on the property and affidavits dated May 7, 2007 and June 15, 2007. Plant-Mason Family Trust do Mr. Sidney Fuke SIDNEY PUKE PLANNING CONSULTANT Page 4 June 29, 2007 7. Comments from Surrounding Property Owners or Public. No other agency comments were received. The following objection letter and support letters were received: 7a. Objection letter dated May 11, 2007 from Keith De La Cruz. 7b. Letter dated May 18, 2007 signed by Evonne F. Bjornen(TMK: 2-6- 032:020) and Paul N. Tallett (TMK: 2-6-032:024) supporting the variance request. ALTERNATIVES/SPECIAL AND UNUSUAL CIRCUMSTANCES Access/Roadway. The first alternative requires the subdivider or owners to construct access and roadways improvements pursuant to tentative subdivision approval letter and conditions dated February 28, 2007. The applicant's agent is requesting variance from tentative subdivision condition-Item No. 3, dated February 28, 2007, specifically"3) c)"which states: "Improvements to Kulana Kea Road shall conform to Sections 23-41, 23-50 and 23-86 of the Hawaii County(Subdivision) Code. The entire road right-of-way shall be improved as required by Section 23-95 of the Subdivision Code and in conformance with DPW Standard Details R-33 and R-34." The second alternative acknowledges that existing paved road within the Kulana Kea Road or "Drive"right-of-way fronting the subject TMK property or proposed subdivision is adequate. INTENT AND PURPOSE OF THE SUBDIVISION CODE Roadway Variance. The intent and purpose of access requirements to a proposed subdivision is to ensure legal and physical access to the proposed lots that is clearly defined and accessible from a public road by domestic and farm vehicles,police, fire, and other service vehicles under various weather conditions without constant maintenance. The subject TMK property was recently rezoned and subject to rezoning conditions. The network of paved roads fronting the subject TMK property were created and paved prior to the rezoning of the property. According to Planning Department records, "Kulana Kea Road has a right-of-way width of 60 feet with a 20-foot wide pavement in good condition, and this is a private roadway. The shoulders are basically grassed". Plant-Mason Family Trust do Mr. Sidney Fuke SIDNEY FUKE PLANNING CONSULTANT Page 5 June 29, 2007 In view of the condition of the 20 feet wide paved road and grassed shoulders within Kulana Kea Drive right-of-way identified on the PPM, there should be no adverse impact by allowing the proposed subdivision to access and use the existing privately owned 20-feet wide paved road (Kulana Kea Drive) fronting the proposed subdivision. Road maintenance for Kulana Kea (Drive)Road fronting the proposed subdivision identified on the PPM will be privately addressed and shared among the current owners and users. Therefore,based on the representations made by the applicant's agent and evaluation of existing paved roadway and shoulder improvements (Kulana Kea Drive)within Kulana Kea Road right- of-way fronting the subject TMK property by the Planning Department,the Planning Director has concluded that the tentative approval condition requiring the subdivider to construct dedicable road improvements within Kulana Kea Road are not necessary. The subject variance application was acknowledged by letter dated April 18, 2007 and additional time to incorporate information dated June 12, 2007 regarding intersection improvements and revised affidavit dated June 15, 2007 regarding the posted posting sign was necessary. In consideration of the foregoing,the applicant granted the Planning Director an extension of time to June 29, 2007 to render decision on the subject variance application. Based on the foregoing findings,this variance request would be consistent with the general purpose of the zoning district and the intents and purposes of the Zoning Code, Subdivision Code and the County General Plan. Furthermore, the variance requested will not be materially detrimental to the public's welfare and will not cause substantial adverse impact to the area's character and to adjoining properties. DETERMINATION-VARIANCE CONDITIONS The variance requested from Tentative Approval condition to improved Kulana Kea(Drive) Road(excluding necessary road improvements to road within the Kulana Kea Road(Right-of- Way)near the intersection Wainaku Road and Kulana Kea Road required by Ordinance No. 06 116)to allow proposed subdivision of subject TMK property is approved subject to following variance conditions: 1. The applicant, owners, their assigns, or successors shall be responsible for complying with all stated conditions of approval including remaining conditions of Tentative Subdivision approval letter dated February 28, 2007. • Plant-Mason Family Trust c/o Mr. Sidney Fuke SIDNEY FUKE PLANNING CONSULTANT Page 6 June 29, 2007 2. ROAD VARIANCE. The subdivider, owners, their assigns, or successors understand that the lots arising out of SUB 05-000135 will use and maintain the privately owned Kulana Kea(Drive)Road on their own without any expectation of governmental assistance to maintain the existing access or roadway improvements within the privately owned Kulana Kea(Drive)Road identified on the subdivisions preliminary plat map or any other necessary access and utility easement(s)within the proposed subdivision. The applicant,owners, their assigns, or successors shall file a written agreement or approved written document with the Planning Department within one (1)year from the issuance of tentative subdivision approval and prior to receipt of final subdivision approval of SUB 05-000135. The proposed lots shall form a Homeowner or Road Association or include appropriate deed language,being covenants, conditions, and restrictions,which affect the entire property and/or proposed lots arising from the approval of the pending subdivision application and be duly recorded at the Bureau of Conveyances of the State of Hawaii by the Planning Department at the cost and expense of the applicant: a. The applicant and/or owner(s) shall indemnify and defend the State of Hawaii or County of Hawaii from any and all liability arising out of vehicular access to and from the subject property utilizing the paved road or utilities within the Kulana Kea Road right-of-way. Upon written demand of the County of Hawaii, the applicant and/or owners, their assigns, or successors shall agree to participate and pay their fair share percentage of any improvement district adopted for the purpose of roadway improvements serving the proposed lot(s) arising out of SUB 05-000135. Should the improvement district require acquisition of any privately owned rights-of-way fronting the lots arising out of SUB 05- 000135, such rights-of-way shall be dedicated to the County without cost and the value of the dedication credited to the fair share contribution of the respective lot owner(s). Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. Plant-Mason Family Trust do Mr. Sidney Fuke SIDNEY FUKE PLANNING CONSULTANT Page 7 June 29, 2007 b. The future lot owner(s) agree to participate in any road maintenance agreement or/and pay their fair share to maintain access and paved roadway within the Kulana Kea right-of-way. In the event that there are any amendments or changes to the subdivision after the agreement is signed,the applicant shall be responsible for informing the County Planning Department of such amendments or changes so that the agreement can be amended concomitantly. Further, the written or recorded agreement shall be binding upon the owner(s), their successors or assigns and shall be incorporated as an exhibit and made part of each agreement of sale, deed, lease, or similar documents affecting the title or ownership of the existing property or approved subdivided lots. c. Implement drainage improvements to mitigate stormwater runoff along Kulana Kea Drive. 3. The subdivision application's (SUB 05-000135) final plat map shall meet Ordinance No. 06 116 conditions, Tentative Subdivision Approval conditions dated February 28, 2007, and requirements of the Hawaii County Zoning Code, Ordinance and Subdivision Code not covered by this variance. 4. The subdivider, owner(s), their assigns or successors shall pay any outstanding real property taxes and comply with all other applicable State statutes and County ordinances pertaining to building improvements and land use. Should any of the foregoing stated conditions not be complied with, the Planning Director may proceed to declare subject Variance null and void. Thank you for your understanding and patience during our review. Sincere CHRISTOPH YUEN Planning Director WRY/DSA:cd P\WP60\WRY\FORMLETT\VAR07-023 SUBROADWAYTMK26032006.FUKE-PMl 1' • Plant-Mason Family Trust c/o Mr. Sidney Fuke SIDNEY FUKE PLANNING CONSULTANT Page 8 June 29, 2007 xc: DPW-Engineering Branch SUB 05-000135 Keith De La Cruz Evonne F. Bjornen • goolimiev ass MC. C iCtrr.:F 11; .sr - CL:Waf ate- . .s+ r LAND COURT SYSTEM REGULAR SYSTEM Return by Mail X Pickup To: Red Hill 1250, Inc. 8777 N. Gainey Center Drive, Suite 205 Scottsdale,Arizona 85258 Attn: Philip A. Edlund TITLE OF DOCUMENT: - FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR HOKULI'A PARTIES TO DOCUMENT: DECLARANT: 1250 Oceanside Partners, a Hawaii limited partnership,whose principal place of business and mailing address is 78-6831 Ali'i Drive, Suite K-15,Kailua-Kona,Hawaii 96740 TAX MAP KEY(S): (3) 8-01-4: por. 3 and 65 (This document consists of Z pages) 1460184.1051730-00003 ra FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR HOKULI'A THIS AMENDMENT is made this 23rd day of May ,2001 by 1250 • OCEANSIDE PARTNERS,a Hawaii limited partnership,whose principal place of business and mailing address is 78-6831 Ali'i Drive, Suite K-IS, Kailua-Kona, Hawaii, 96740 (hereinafter referred to as "Declarant"). 1 5 RECITALS: WHEREAS,Declarant has recorded that certain Declaration of Covenants, Conditions and Restrictions for Hokuli'a dated December 20, 1999, in the Bureau of Conveyances of the State of Hawaii (the "Bureau") as Document No. 99-200357, as supplemented by Supplemental Declaration to Declaration of Covenants, Conditions and Restrictions for Hokuli'a Phase 2, dated January 10,2002 and effective as of January 22,2002 and recorded in the Bureau as Document No. 2002-010556 (the "Declaration"); and WHEREAS, pursuant to the terms of Section 24.1 of the Declaration, until termination of the Class"B" Control Period,Declarant may unilaterally amend the Declaration for any purpose; and WHEREAS, the Class"B"Control Period has not terminated; and WHEREAS, Declarant desires to amend the Declaration, with regard to Agricultural Uses of the Property; NOW THEREFORE,pursuant to the powers retained by Declarant under Section 24.1 of the Declaration, Declarant does hereby declare as follows: 1. Amendment to Section 5.1. Declarant does hereby amend Section Si of the Declaration by deleting Section 5.1 in its entirety and substituting therefor the following: Subject to the rights and obligations of the Association set forth in this Declaration, each Owner shall maintain his/her Lot and all landscaping and Improvements on the Lot in a manner consistent with the Governing Documents,the Community-Wide Standard, all applicable covenants and any reasonable regulations of the Association,unless such maintenance responsibility is otherwise assumed by or assigned to the Association or a Village pursuant to any Supplemental Declaration or other declaration of covenants applicable to such Lot. Except for trees shown on the Lot Information Plan or permitted under Section 11.16,trees and other vegetation shall be limited to eight feet in height,unless approved by the Association.This Section shall not be interpreted to give an Owner the right to prune, trim, cut or remove any Agricultural 2 1460184-1.05130/02 IN WITNESS WHEREOF, Declarant has executed this instrument as of the date first above written. Declarant: 1250 OCEANSIDE PARTNERS,a Hawaii limited liability partnership By:Red Hill 1250, Inc., a Washington corporation, its general partner By: ' Name: e Anderson Its: C4-L&Lrv1�c�Vl_. STA IE OF ARIZONA ) SS. COUNTY OF MARICOPA ) On this 23`4 day of May, 2002, before me personally appeared Lyle Anderson and personally known to me, on the basis of satisfactory evidence, who, being by me duly sworn or affirmed, did say that such person executed the foregoing instrument as the free act and deed of such person and, if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Name: Karn Reinke Notary Public, State of Arizona ;t.,;,_ OFFic 1ALSEAL- My commission expires: ;► KARN REINKE NGtary Public- e of Arizona t ?�► MARICOPA COUNTY My Comm.Explirs Aug.15,2004 7 1460184-1.05/24/02 Upon recording,please return to: DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR HOKULI'A Upon recording, please return to: HYATT& STUBBLEFIELD,P.C. Attorneys and Counselors 1200 Peachtree Center South Tower 225 Peachtree Street,N.E. Atlanta,Georgia 30303 • nitvLav v maintenanceandL`S Repair 5.1. Maintenance of Lots. d ?z Subject to the rights and obligations of the Association set forth in this Declaratio Owner shall maintain his/her Lot and all landscaping and Improvements on then, each consistent with the Governing Documents, the Community-Wide Standard a Lot In nd all aapp plicable marble covenants, unless such maintenance responsibility is otherwise assumed byor assigned a Association or a Village pursuant to any Supplemental Declaration or other declaration the covenants applicable to such Lot. This Section shall not be interpreted to give an Owner the aration of right to prune, trim,: cut or remove any Agricultural Product, tree, plant, or the Association Easement. other vegetation from 5.2. Maintenance of Villa e Any Village Association shall maintain its common property and any otherro e which it has maintenance responsibility in a manner consistent with the GoverningDoc rte for oc the Community-Wide Standard and all applicable covenants. umnts, Upon resolution of the Board, Owners within each Village shall be responsible paying, through Village Assessments, the costs of operating, maintaining, and insuringfor portions of the Area of Common Responsibility within or adjacent to such Village. hcertainy include, without limitation, the costs of maintaininganyg s may and greenspace between the Village and adjacent public roads, private streets features,within the Village,llway and lakes or ponds within the Village, regardless of ownership and regardless of the facttlhat such maintenance may be performed by the Association; provided, all Villages which that similarly situated shall be treated the same. g are The Association may assume maintenance responsibility for property within anVilla e in addition to that designated by any Supplemby agreement ental Declaration, either y with the g Village or because, in the Board's opinion, the level and quality of service then beingrovi dd is not consistent with the Community-Wide Standard. All costs of maintenance pursuant to this paragraph shall be assessed as a Village Assessment only against the Lots within the Village to which the services are provided. The provision of services in accordance with this Section sh not constitute discrimination within a class. all 5.3. Responsibility for Repair er and Replac --- vllllill L. Unless otherwise specifically provided in the Governing Documents, or in oth instruments creating and assigning maintenance responsibility, er responsibility for maintenance shall include responsibility for repair and replacement, as necessary, to maintain theroe to a level consistent with the Community_Wide Standard. P p rtY By virtue of taking title to a Lot, each Owner covenants and agrees with all other rs and with the Association to carry property insurance for the full replacement cost.ofall insurable improvements on his/her Lot, less a reasonable deductible, unless either the Village Association 22 _._- EXHIBIT 22 4 ti ' 41r a ..\,,..... ,■ s, 41161 " `.. t-w ti r 4 8. • 1 Ackerman Ranch Inc. ,' (TMK: (3)7-9-012:004) --- Ii,Mauka Halekii Extension • •',� 4. ._,�_._ (TMK(3) 8-1-036:999) .___-• ---'w. Ir. -_ 0bF 'I r I.`., 4,a 1° aar ms . i 141 6 ( Q C . liI I, .• ' { l i r' ( J . .. . i r., I Connector Road .1 (TMK (3) 8-1-004:070) s J \- ' F Mamalahoa Bypass : a iit „ s xI " fit ,. a a1111. % f , Makai Halekii Extension " r , • (TM,K(3) 8-1-004:070) r3Connector Road (TMK (3) 8-1-030:055) o ' \ 4 `b l a`a 1 it,_.,_. )_ . _-- C &J C• oupe Family Limited Partnership (TMK: (3)8-1-007:045) r. r > i r' EXHIBIT 22 iiimmix, If: ,r IF n. y A. . b iiAn Fi"#k.° ' — Ackerman Ranch Inc (TMK: 11 (3) 7-9-012:004) '` .t . - ^ 1 .^ w a Or $ yr*" if 1 t 1. J " Connector Road (TMK (3) 8-1-004:070) m y . r iii? 4 M ,miµ �..'` 5ww ifs" ,.,' yHy*1� uyRlf+�d� A. % t ' fdF w, T" 'w.. fisa i*, • %.* '00, A f.s Y J� p4 OM1 wtw , ,. "' M4 Liow a Connector Roadr , -, (TMK (3) 84-030:055) ill . , a. 1I " '' e.. :fin ��. ' Y� �r _nay' " ic, an,..,,,,, N IWw771 y ,'. q n MI C &J Coupe Family Limited ` „o\ Partnership (TMK: (3) 8-1-007:045) k . 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',,... „..,„ BEFORE THE BOARD OF APPEALS PLANNING DEPARTMENT COUNTY OF HAWAI`I In the Matter of Appeal Case No. PL-BOA-2024-000105 of CERTIFICATE OF SERVICE 1250 OCEANSIDE, LLC From the decision of the Planning Director, dated April 29, 2024 (Docket No. 24-0002) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon the following parties by electronic mail (E-Mail) on September 25, 2024: ELIZABETH A. STRANCE, ESQ. JEAN K. CAMPBELL, ESQ. ELIZABETH B. BAILEY, ESQ. Corporation Counsel, County of Hawaii Hilo Lagoon Center 101 Aupuni Street, Suite 325 Hilo Hawaii 96720 Attorneys for Defendant COUNTY OF HAWAII KENNETH R. KUPCHAK MARK M. MURAKAMI TOREN K. YAMAMOTO 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 Attorneys for Intervenor C & J COUPE FAMILY LIMITED PARTNERSHIP DATED: Honolulu, Hawai`i, September 25, 2024. 4887-5251-7609.2.051730-00058 Is!Derek B. Simon PATRICK K. WONG DEREK B. SIMON IAN R. WESLEY-SMITH Attorneys for 1250 OCEANSIDE, LLC 4887-5251-7609.2.051730-00058 6