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 4 III. ANALYSIS 1. Owner has not Violated the 2008 Settlement. Pursuant to Section 1(g) of the 2008 Settlement, said document "supersede[d] and replace[d]"the 2004 Settlement. That being said, the 2008 Settlement does not prohibit the use of the Property as a "vacation rental" nor does it prohibit the Owner from establishing a website to advertise the Property. The 2008 Settlement simply requires that Unit A "shall not be occupied at any given time by more than five unrelated persons" and that Unit B "shall be occupied only by those individuals involved in the agricultural or farm related activity on the Property." Owner has adhered to both of these requirements. First, County unlawfully and erroneously levies allegations against Owner that they have violated a settlement obligation to only rent Unit A to no more than five unrelated persons, however, they provide no evidence to corroborate this assertion. This is likely due to the simple fact that no such evidence exists, after all, the "Ohana Retreat" is aptly named and Unit A is and has only ever been advertised for"large famil[ies]". In order to comport with the 2008 Settlement, Owners have always maintained that the while 8-bedrooms are available for rent in Unit A, said premises capacity could only be reached so long as no more than five unrelated persons were renting it. This has been Owner's requirements since the 2008 Settlement took effect and County has no evidence to show that Owner has breached that responsibility. Second, County unlawfully and erroneously alleges that the Owner has breached its responsibility to engage in farm activity while living in Unit B. Unit B is and has only ever been lived in by "individuals involved in the agricultural or farm related activity." Owner (Bruce Bergey), who lives in Unit B, has extensively engaged in farm activity on the Property for over 25-years. Owner has hand planted over 1,000 trees on the Property and to this day waters,prunes, harvests, and plants crops throughout the year. An additional room in Unit B is also inhabited by Andrew Bergey, the onsite manager of the Property. Andrew assists Owner with the Property's agricultural activity and is charged with maintaining the agricultural operations on the Property when Owner is on and off the island. Thus, while the Owner does spend some time off island, that does not bar him from inhabiting Unit B when he is in the State. As long as an occupant involves him or herself in the agricultural process while on the Property, they are not restricted from living in Unit B.