2025-09-11 Petition Filed Via Email

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hawai i lawyer.com® DAMON KEY LEONG KUPCHAK HASTERT A LAW CORPORATION Kona Plantation, LLC September 11, 2025 Page 2 II. BACKGROUND In around April of 2000, Owner, with the help of his son Matthew A. Bergey ("Matthew", collectively with Owner, the "Owners")), began the process of attaining various building permits related to the creation of two separate 8-bedroom/4-bathroom dwellings on the Property. The Planning Department, for its part, approved the creation of both dwellings, authorizing the total of 16-bedrooms on the Property via the issuance of Building Permit numbers 005433 and 005931. In 2002, Owners moved to separate Unit A and Unit B into two distinct condominium properties. In order to achieve that end a Declaration of Condominium Property Regime of Plantation Estates, dated November 13, 2002, was recorded in the Bureau of Conveyances of the State of Hawaii ("Bureau") as Document No. 2002-205148. On January 30, 2004, Owners were issued a Notice of Violation and Order, alleging that the Property maintained an "unpermitted additional farm dwelling" and was being used for the "operation of vacation rentals/retreats without an SMA permit." Owners, in turn, filed an appeal (BOA 04-004)which culminated in a settlement between the County and Owners dated September 8, 2004 ("2004 Settlement"). The 2004 Settlement required that Owners delete a website(www.konaplantation.com), as well as a prohibition from using Unit B as a "vacation rental." Sometime in or around January 2008, the County once again levied a Notice of Violation and Order against the Property and the Owners. On January 28, 2008, Owners once again appealed said Notice to the County of Hawaii Board of Appeals ("2008 Appeal"). Upon information and belief, as a result of the 2008 Appeal, the parties entered into a second settlement agreement("2008 Settlement"),which superseded the 2004 Settlement. The 2008 Settlement echoed the 2004 Settlement and provided that Unit A "shall not be occupied at any given time by more than five unrelated persons," and that Unit B was to be "occupied only by individuals involved in the agricultural or farm related activity on the Property." Of note, the 2008 Settlement did not include a prohibition of website advertisements nor did it prohibit "vacation rentals." The 2008 Settlement did, however, expressly "supersede[] and replace[] the [2004 Settlement]." On August 12, 2008, Unit A and Unit B were both transferred to Kona Plantation, LLC, an Oregon limited liability company, via Apaitinent Deeds recorded in the Bureau as Doc No(s)