HomeMy WebLinkAbout2024-09-30 Request for Continuance of Hearing (PL-BOA-2023-000065) DeVera, Ashley
From: SalasFerguson, Sinclair
Sent: Monday, September 30, 2024 10:22 AM
To: Planning Board of Appeals
Cc: Ian R. Wesley-Smith; Patrick K. Wong; Lactaoen, Kawehilani 5; Pause, Stephen (Steve);
Kekai, Mafia; Mendonca, Ashlee; Tavares, Sherilyn K.
Subject: 1'O Processing vs. DPW, PL-BOA-2023-000065: request for continuance of hearing set
for October 11, 2024
Attachments: #1 Complaint.pdf; #9 Order Putting COH's in Possession.pdf; #19 Def Kapoho's Mtn
to Vacate Order Putting COH in Possession.pdf
Good Morning,
I am writing to request a continuance of the above referenced appeal, due to the following:
• Steve in unable to attend the October 11, 2024 hearing date in the above referenced matter because he
has to attend an unexpected hearing for a significant condemnation case, in Hilo Circuit Court, on October
11, 2024, at 10:00 a.m.;
• Significant Condemnation Case:
o In 2018, in cooperation with FEMA and other relevant agencies,the County started planning for the
Pohoiki Road and Highway 137A Road Repair and Water Line Installation Project;
o On July 8, 2024,the County was forced to file an eminent domain action in Circuit Court, seeking
condemnation of property owned by Kapoho Land Company:the property is required by the County
to reconstruct Pohoiki Road (see attached complaint);
o On August 15, 2024,the Circuit Court issued an order, placing County in possession of the
property, so that County could continue with the road reconstruction project(order is attached);
o On August 26, 2024, Kapoho Land Company filed a motion to vacate the order that put County in
possession of the land (attached);
o On September 26, 2024, Steve Pause received notice that he is required to attend a hearing on
Kapoho Land Company's motion on October 11, 2024, at 10:00 a.m. in Hilo Circuit Court;
This Circuit Court hearing is significant to the County because if the Court denies Kapoho Land Company's
motion,the County can proceed to put the Pohoiki Road Reconstruction project out to bid (solicit a contractor to
reconstruct the road).
Additional information and reasoning in support of DPW's request for a continuance:
My understanding is that this matter was continued in the past because Steve was working directly with Nicole
Kanda (I'O's principal)to resolve this matter,which led me to believe that this appeal would be settled.
Settlement was not reached, and now 1'O Processing would like to proceed to a hearing.
However, I think the parties need more time to resolve the following litigation issues:
1. 1'O Processing submitted a request for documents to DPW,which DPW is working towards fulfilling—I
think it is prudent if all parties have sufficient time to review whatever is produced by DPW.
2. DPW and 1'O Processing are not in agreement as to which County witnesses are relevant;therefore, DPW
anticipates 1'O Processing will ask the BOA for subpoenas, requiring certain County employees to attend
the hearing—I think a continuance would give the parties and the BOA ample time to address these issues.
3. I think it is important that the parties have sufficient time to research and draft their respective prehearing
statements because the issues involved in this appeal are complex, which makes it more challenging to
simplify.
Additionally, last Friday, Sept. 27, 2024, DPW contacted 1'O Processing, requesting an in-person meeting to reach
a final resolution to this matter.
Finally, on Sept. 27, I raised Steve's scheduling conflict with I'O's attorney, and was informed that he could not
agree to a continuance.
1
Based on the above, DPW is asking for a two-month continuance: continuing the October 11, 2024 hearing to
December, 2024, in Kona.
Respectfully submitted,
Sinclair Salas-Ferguson
2
ELIZABETH A. STRANCE 4715
Corporation Counsel
Electronically Filed
SHERILYN K. TAVARES 9666 THIRD CIRCUIT
Deputy Corporation Counsel 3CCV-24-0000233
LERISA L. HEROLDT 7519 08-JUL-2024
Deputy Corporation Counsel Section Chief 05:32 PM
Corporation Counsel Dkt. 1 CMPS
County of Hawai`i
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
Telephone: 961-8251
Facsimile: 961-8622
E-Mail: Sherilyn.tavares(a,hawaiicounty.gov
Attorneys for Plaintiff
COUNTY OF HAWAII
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal Civil No.
corporation of the State of Hawai`i, (Hilo) (Condemnation)
Plaintiff, COMPLAINT; EXHIBIT"A";
vs. SUMMONS
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD, a Hawai`i Domestic Profit
Corporation; JOHN DOES 1 100; JANE
DOES 1 100; DOE PARTNERSHIPS 1 100;
DOE CORPORATIONS 1 100; DOE
ENTITIES 1 100; and DOE
GOVERNMENTAL UNITS 1-100,
Defendants.
COMPLAINT
Plaintiff COUNTY OF HAWAI`I("Plaintiff"), , by and through its undersigned counsel,
hereby alleges and avers as follows:
1. Plaintiff is a municipal corporation of the State of Hawai`i with the right,power
and capacity to take private property, all structures and improvements thereon, and franchises or
appurtenances thereunto belonging (wherever situated)within its jurisdiction for a public use
upon payment of just compensation therefor.
2. By resolution adopted by the County Council of the County of Hawai`i, that is,
Resolution 518-24, a certified copy of which is attached hereto as Exhibit"A" and made a part
hereof, Plaintiff is authorized to condemn and acquire portions of real property situated at
Kapoho, District of Puna, Island, County and State of Hawai`i, together with any and all
improvements and appurtenances thereunto belonging, free and clear of all liens and
encumbrances, identified as: (a) Tax Map Key Nos. (3) 1-4-001:002 (por.), shown as Lot 2-B in
Exhibit"A" attached hereto, containing an area of 0.577 acre, more or less; and(b) Tax Map Key
No. (3) 1-4-001:003 (por.), shown as Lot KL-1 in Exhibit"A" attached hereto, containing an
area of 0.365 acre, more or less (hereinafter collectively referred to as the "Property").
3. The acquisition of said portions of the Property is necessary for a public use, to
wit: the Reconstruction of Lava Inundated Roads, County Job No. E-4523, including the
necessary widening of Pohoiki Road in a manner that complies with current County roadway
standards, in the approximate vicinity of Kapoho, District of Puna, Island, County and State of
Hawai`i.
4. Plaintiff, on information and belief, alleges KAPOHO LAND &
DEVELOPMENT COMPANY, LIMITED and KAPOHO LAND PARTNERSHIP named herein
may have or may claim an interest in and to said Property.
5. Defendants John Does 1-100, Jane Does 1-100, Doe Partnerships 1-100, Doe
Corporations 1-100, Doe Entities 1-100, and Doe Governmental Units 1-100 are persons or
entities who may have or may claim an interest in the Property, whose true names, identities and
capacities are presently unknown to Plaintiff or its attorneys. A diligent and good faith effort has
been made by the Plaintiff and its attorneys to determine the true identities of said unidentified
defendants by reviewing books, records and files in the possession of the Plaintiff, its attorneys
and agents, but the Plaintiff has been unable to presently ascertain the name or names of said
unidentified defendants. As soon as the same are known to the Plaintiff or its attorneys, the
Plaintiff will identify said defendants and amend the pleadings accordingly.
WHEREFORE, Plaintiff prays as follows:
1. The Court adjudge the public use hereinabove alleged requires the condemnation
of the Property identified as: (a) Tax Map Key Nos. (3) 1-4-001:002 (por.), shown as Lot 2-B in
Exhibit"A" attached hereto, containing an area of 0.577 acre, more or less; and(b) Tax Map Key
No. (3) 1-4-001:003 (por.), shown as Lot KL-1 in Exhibit"A" attached hereto, containing an
area of 0.365 acre, more or less, free and clear of all liens and encumbrances.
2. The Court adjudge the amount of compensation and damages, if any, to be
awarded for the taking of said portion of the Property.
3. The Court determine all adverse or conflicting claims to said portion of the
Property and to the compensation and damages, if any, to be awarded for the taking of same.
4. Upon payment of the amount of the award to the Clerk of this Court, the Court
grant the condemnation of the portion of the Property by Order of Condemnation.
5. Plaintiff be awarded such other and further relief as may be just and proper.
Dated: Hilo, Hawai`i, July 8, 2024.
ls/Sherilyn K. Tavares
SHERILYN K. TAVARES
Deputy Corporation Counsel
COUNTY OF HAWAII ' :ft_*! STATE OF HAWAII
RESOLUTION NO. 518 24
AUTHORIZING THE ACQUISITION OF PRIVATE PROPERTIES BY EMINENT
DOMAIN,BEING PORTIONS OF TAX MAP KEYS: (3) 1-4-001:002 AND (3) 1-4-
001:003, SITUATED AT KAPOHO,PUNA, COUNTY AND STATE OF HAWAII,FOR
THE RECONSTRUCTION OF LAVA INUNDATED ROADS,COUNTY JOB NUMBER
E-4523,SPECIFICALLY POHOIKI ROAD.
WHEREAS,the County of Hawai`i ("County") is proceeding with the reconstruction of
lava inundated roads, which includes the reconstruction of Pohoiki Road, situated at Kapoho,
Puna, County and State of Hawaii; and
WHEREAS,the properties identified as Lot 2-B and Lot KL-1, as described and
delineated in Exhibit"A,"are required by the County in order to reconstruct Pohoiki Road in a
manner that complies with current County roadway standards,i.e., Lot 2-B and Lot KL-1 are
required to widen Pohoiki Road to comply with current County roadway standards;and
WHEREAS,the County was unable to reach an agreement with the current owner of Lot
2-B and Lot KL-1 for the purchase and sale of those properties to the County; and
WHEREAS,it is therefore necessary that the County exercise its right of eminent
domain to acquire Lot 2-B and Lot KL-1 for a public purpose and use, to wit:to widen Pohoiki
Road;and
WHEREAS,pursuant to Hawai`i Revised Statutes ("HRS") Sections 46-1.5(6),46-61,
and 101-2,the County has the authority to exercise its power of eminent domain to take'private
property for public use such as a roadway when in it is in the public interest to do so; and
WHEREAS, HRS Section 101-13 requires that a condemnation action by the County
must be authorized by a resolution of the County Council; now,therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the
Council of the County of Hawaii finds it necessary and in the public interest to take the private
properties identified as Lot 2-B and Lot KL-1, as described and delineated in Exhibit"A,"for
public use as a roadway,to wit:the properties will be used to widen Pohoiki Road when the road
is reconstructed as part of the County project entitled Reconstruction of Lava Inundated Roads,
Job Number E-4523.
BE IT FURTHER RESOLVED that the Corporation Counsel of the County of Hawaii
be and is hereby authorized and empowered to initiate proceedings in eminent domain, as
EXHIBIT "A"
provided by law, for the taking, acquisition,and condemnation of the aforesaid private
properties.
BE IT FURTHER RESOLVED that in the process of said proceedings in eminent
domain, the Corporation Counsel be and is hereby authorized and empowered to negotiate terms
of settlement, subject to the approval of the court before which such proceedings are prosecuted.
BEITFURTHER RESOLVED that the Clerk of the County of Hawai`i is directed to
transmit copies of this resolution to: (I) the owner of the properties identified in Exhibit "A" as
Lot 2-.B and Lot KL-1,to wit:Kapoho Land and Development Company,Limited,P.O.Box
374, Hilo,Hawai`i, 96721; (2)the Honorable Mitch Roth,Mayor; (3) Stephen Pause, Director of
the Department of Public Works; (4)Diane Nakagawa,Director of the Department of Finance;
and (5) Sinclair Salas-Ferguson,Deputy Corporation Counsel.
Dated at Kona ,Hawai`i,this 19th_day of lune . 20 24 .
INTRODUCED BY:
4111110 DIR
COUNCIL MEMBER, COUNTY OF HAWAII
Date of Introduction: June 5, 2024
Date of Ist Reading: June 5, 2024
Date of 2"`i Reading: June 19, 2024
Effective Date: June 19, 2024
COUNTY COUNCIL __ ROLL CALL VO I'b
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i EVANS X
GALIMBA X
I hereby certify that the foregoing RESOLUTION was by INABA X
the vote indicated to the right hereof adopted by the COUNCIL of the KAGIWADA X
County of Hawai`i on dune 19, 2024
KANEALI`I-KLEINFELDER X
KIERKIEWICZ X
ATTEST: KIMBALL. X
LEE LOY X
VILLEGAS X
8 0 1 0
,* _ /�► _^_v .e Reference: C--875/LAAC-59
-._ -' CLERK CHPERSON&PRESIDING OFFICER RESOLUTION NO. 518,_,2'
{
HEREBY CERTIFY that above is a
2 true and correct copy of the original
no,;wa lie in my office.
EXHIBIT "A"
COLinty Clerk
Exhibit A
THIS IS NOT A LEGALLY SUBDIVIDED LOT
DESCRIPTION
LOT 2 B
Being a Portion of L.P. 8177 on R.P.4497,L.C,Aw. 8859-B,Apana 5 to C.Kanaina
Situated at Kapoho,Puna,Island of Hawaii,Hawaii
Beginning at the northwest corner of this parcel of land and on the north side of Pohoiki Road,
the coordinates of said point of beginning referred to Government Survey Triangulation Station
"KAPOHO"being 6,087.05 feet South and 21,854.36 feet West and running by azimuths
measured clockwise from True South:
1. 306° 08' 30" 1544.17 feet along Remainder Lot 2-A;
2. 216° 08' 30" 15.61 feet along Remainder Lot 2-A;
3. 306° 08' 30" 172.11 feet along Remainder Lot 2-A;
4. 31° 24' 8.12 feet along Remainder Lot 2-A;
5. 121° 24' 272.36 feet along the north side of Pohoiki Road;
6. 126° 08' 30" 1404.95 feet along the north,side of Poboiki Road;
7. 141° 34' 50" 37.54 feet along the north side of Pohoiki Road;
8, 174° 50' 6.67 feet along the north side of Pohoiki Road to the point of
beginning and containing an area of 0.577 acre.
ISLAND SURVEY, INC.
SURVEYORS P•o.BOX 4215
HII.O,HAWAII 98720-0216
EXHIBIT "A"
LOT 2-B
The above-subject Lot is also a portion of an Existing future road widening setback along
Kapoho-Pahoa Road and Pohoiki Road.
March 19,2024 ISLAND SURVEY,INC.
Hilo,Hawaii fy c ,srJ
1.0
LICZNStO
PROFC5sIONAL
TMK:1-4-001.:002 portion suAvuon ROBERT T.SHIRAI
on
Licensed Professional
. Land Surveyor 5985
License expires 04/30/26
2
ISLAND SURVEY, INC.
</iegkl, SURVEYORS P.O,BOX 4215
HILO,HAWAII 96720-0216
EXHIBIT "A"
THIS IS NOT A LEGALLY SUBDIVIDED LOT
DESCRIPTION
LOT KL-1.
Being a Portion of L.P. 8177 on R.P.4497,L.C. Aw. 8559-B,Apana 5 to C.Kanaina
Situated at Kapoho,Puna,Island of Hawaii,Hawaii
Beginning at the southeast corner of this parcel of land,the coordinates of said point of beginning
referred to Government Survey Triangulation Station"KAPOHO"being 6,928.36 feet South and
20,83 8.04 feet West and running by azimuths measured clockwise from.True South:
1. 126° 08' 30" 1031.95 feet along Remainder Lot;
2. 141° 34' 50" 56.35 feet along Nanawale Forest Reserve;
3. 306° 08' 30" 108626 feet along the south side of Pohoiki Road;
4. 36° 08' 30" 15.00 feet along Lot 14 of Pohoiki Bay Estates,Unit 1 to the point of
beginning and containing an area of 0.365 acre.
March 19,2024 ISLAND SURVEY,INC.
Hilo,Hawaii
r:C
rERSEa
PROFESSIONAL 1
TMK:1.4-001.:003 portion *I su vnart * ROBERT T. SHIRAI
14,toes Licensed Professional
fr Land Surveyor 5985
A License expires 04/30/26
ISLAND SURVEY, INC.
SURVEYORS P.O.BOX 4215
HILO,HAWAII 96720.0218
EXHIBIT "A"
`
7(q<)//
4r%•
/
/ ¢. /
///// f, e7a,..aaanityam�,rM.Ma. \
/J °P// xrem.tuna Panaaap-f . 0 , 62'1
' 4 // REMAINDER LOT 2-A '
/� �"; ±556.61 ACRES A„,:,0\
O
7 47\ .5;*
° .JB/2. -..
--wNMertaw ky
ry. 210'0013V'76.8h
I
x LOT 2-B
'Fs; '
! 4 t..,4
\ .
577 ACRE
01505'30-1561 308
08'31'-1]212 31124 8Ax
-i]
-,
�"
i / 1SI1] � - •0 9 2031 36
v_•- sR6. \ 206718:30' — 0 5.24'
21.e51.34,,w -1t034so'37.54 PONOIKI I2V30ROAD t•0205
—'
'SAP0410'A 30808'001 — 105826
Bt.= v oliOsk
125,05'30" 4 — 1031.05 st• P f
LOT KL-1 8,928.38 S
20,838.04 W
yR.
0.365 ACRE •KAPOHO"d e
\/4114,, REMAINDER LOT a 10l
O7 3.378 ACRE'S
,8j
Nnitdm�of rHo�ror(wodl ,q,ene MN/...swum 00,us, b tot a let]
P LOT 5
F.
'.. P 01401101 BAY ES
L9114
xaaw tma 9.9190•99.9•91 ea U4 UNIT 1
War
O R ANi' 130155 T'0 KAPOHc 22 00 Al.O 281,0 CPLIENT COMPANY, LIN IYEII
00
PREIJMINARY MAPPING-NOT APPROVEDPUN SHW4N0 NoTyry
;.*:,,•,w,
+
ME SUBd+N510N OF WT 2 INTO am of Azimuths O'A
CemdPwleg referred
11ed A'1(.1PON0'd
REMAINDER LOT 2-A AND LOT 2-B and I.KoPsh,y stated Hawn 132-55
AND 111E 8U801N91O5 OF A PORTON OF LP.8177 CMI PSIMS-KaPoho Road Prof No:A-173-OF65
R 110. RP.4497.LC.AW.5559-8.MAMA 5 TO C.KMAINA INTO Owners o(subject oinllIotta so natod hereon to'Wade
adiJlatz
REMAINDER LOT AND LOT KL-1 owlets o
n•H, .w pw•r.0 ty me 80115 BEING PORTIONS OF LP.8177 ON R.P.4497,
p ov`,ey 1Mu t. L.CAW.8569-8,APANA 5 TO O.4860615
R s (1 KAP0H0.PUNA,IStfNO O HAWAII.HAWAII
e'r^Raen[r�Lt�9aL0u,ns Survey and Plan b9 Island Surva%Ina
31.1.54 Ns.ol cat 8,ts-5eee P.O.505 4215.Hilo,Hasalf 55720
•x^eve•APR��>� Mach 10,2024
•
l—
Tax Mop Kcy:(3)1-4^001:002 a 003 wan mm50 re x -290 50. t.
EXHIBIT "A"
STATE OF HAWAII SUMMONS CASE NUMBER
CIRCUIT COURT OF THE
THIRD CIRCUIT TO ANSWER CIVIL COMPLAINT
PLAINTIFF VS. DEFENDANT(S)
COUNTY OF HAWAII, a municipal corporation of the State KAPOHO LAND & DEVELOPMENT COMPANY, LTD, a
of Hawaii Hawaii Domestic Profit Corporation; JOHN DOES 1 100;
JANE DOES 1 100; DOE PARTNERSHIPS 1 100; DOE
CORPORATIONS 1 100; DOE ENTITIES 1 100; and DOE
GOVERNMENTAL UNITS 1-100
PLAINTIFF'S NAME&ADDRESS, TEL. NO.
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
ATTN: Sherilyn K. Tavares
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
(808) 961-8251
TO THE ABOVE-NAMED DEFENDANT(S)
You are hereby summoned and required to file with the court and serve upon
COUNTY OF HAWAII - OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325
Hilo. Hawaii 96720
plaintiff's attorney, whose address is stated above, an answer to the complaint which is herewith served upon you, within
20 days after service of this summons upon you. exclusive of the date of service. If you fail to do so, judgment by default
will be taken against you for the relief demanded in the complaint.
THIS SUMMONS SHALL NOT BE PERSONALLY DELIVERED BETWEEN 10:00 P.M.AND 6:00 A.M. ON
PREMISES NOT OPEN TO THE GENERAL PUBLIC, UNLESS A JUDGE OF THE ABOVE-ENTITLED
COURT PERMITS, IN WRITING ON THIS SUMMONS, PERSONAL DELIVERY DURING THOSE HOURS.
A FAILURE TO OBEY THIS SUMMONS MAY RESULT IN AN ENTRY OF DEFAULT AND DEFAULT
JUDGMENT AGAINST THE DISOBEYING PERSON OR PARTY.
�l Cfl
The original document is filed in the Effective Date of 28-Oct-2019
Judiciary's electronic case management Signed by: /s/Cheryl Salmo
system which is accessible via eCourt Kokua Clerk, 3rd Circuit, State of Hawaii
at: http:/www.courts.state.hi.us r� �4
OF 0
In accordance with the Americans with Disabilities Act, and other applicable state and federal laws. if you require a
reasonable accommodation for a disability. please contact the ADA Coordinator at the Circuit Court Administration Office on
HAWAII- Phone No. 808-961-7424. TTY 808-961-7422.. FAX 808-961-7411. at least ten (10)working days prior to your
hearing or appointment date.
Form 1C-P-787(3CCT)(10/19)
Summons to Complaint ®RG-AC-508(10/19)
ELIZABETH A. STRANCE 4715 Electronically Filed
Corporation Counsel THIRD CIRCUIT
3CCV-24-0000233
SHERILYN K. TAVARES 9666 15-AUG-2024
Deputy Corporation Counsel 12:11 PM
LERISA L. HEROLDT 7519
Deputy Corporation Counsel Section Chief Dkt. 9 ORD
Corporation Counsel
County of Hawai`i
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
Telephone: 961-8251
Facsimile: 961-8622
E-Mail: Sherilyn.tavares(21hawaiicounty.gov
Attorneys for Plaintiff
COUNTY OF HAWAI'I
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI`I
COUNTY OF HAWAI`I, a municipal Civil No. 3CCV-24-000233
corporation of the State of Hawaii, (Hilo) (Condemnation)
Plaintiff, ORDER PUTTING PLAINTIFF COUNTY
OF HAWAII IN POSSESSION
vs.
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD, a Hawai`i Domestic Profit
Corporation; JOHN DOES 1 100; JANE DOES
1 100; DOE PARTNERSHIPS 1 100; DOE
CORPORATIONS 1 100; DOE ENTITIES 1
100; and DOE GOVERNMENTAL UNITS 1-
100, '
Defendants.
ORDER PUTTING PLAINTIFF COUNTY OF HAWAII IN POSSESSION
Plaintiff COUNTY OF HAWAI`I, having filed an ex parte motion for order putting
plaintiff in possession, pursuant to Hawai`i Revised Statues § 101-29, and good cause appearing
for granting the same,
I /Clq
do hereby certify that the foregoing is a full,true and correct copy of the official court record of the Courts of the State of Hawaii. 5°9e�
Dated at:Hilo,Hawaii 15-AUG-2024,1s/Cheryl Salmo,Clerk of the Third Judicial Circuit,State of Hawaii taJ a
TTt uY ,4P
}
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. The Plaintiff be and is hereby awarded and put into possession of the real property
and easement described in Exhibit"A"attached to the complaint filed herein, together with all
improvements thereon and appurtenances thereunto belonging; and plaintiff may do such work
there as may be required for the purpose for which the property is sought.
2. This order shall become effective ten(10) days after service hereof, in accordance
with Hawai`i Revised Statues §101-29, as that section is qualified by Hawai`i Revised Statutes
§101-30, which together state, in relevant part, that:
(a) Where a county is the plaintiff, at any time after the commencement of an
action, the county may file a motion for an order of possession, supported by affidavit alleging:
1. The right of the county to maintain the action;
2. The public use for which the property is being taken; and
3. The sum of money estimated to be just compensation.
(b) The court shall issue an ex parte order of possession when the county has
deposited the appropriate sum of money with the clerk of the circuit court.
(c) The order shall become final ten (10) days after service of the order,
provided that within ten(10)days, after service, the court may,upon good
cause shown,vacate or modify the order,postpone the effective date
thereof
(d) No order of possession shall issue unless the plaintiff county has paid to
the clerk of the court, the amount of estimated compensation or damages
stated in the motion for issuance of the order.
3. The sum of$24,000.00 to be deposited with the chief clerk of this court by the
plaintiff as estimated just compensation for damages for the taking of the property described in
the complaint shall be held by said chief clerk pending further order of this matter.
4. This order shall be served personally on every defendant who is in actual
possession of the property. Service on each other defendant may be made personally or by
depositing a copy thereof in a United States Post Office, postage prepaid, certified mail with
return receipt requested and delivered to addressee only, addressed to the defendant at their last
known address or their attorney of record.
AUG 1 5 2024
Dated: Hilo,Hawai`i,
C
JUDGE OF THE ABOVE-ENTITLED COURT
PETER it.ituti d44..
Dir t
CADES SCHUTTE
A Limited Liability Law Partnership Electronically Filed
CALVERT G. CHIPCHASE 7757 THIRD CIRCUIT
LINDSAY N. MCANEELEY 8810 3CCV-24-0000233
Cades Schutte Building 26-AUG-2024
1000 Bishop Street, Suite 1200 08:31 PM
Honolulu, HI 96813-4212 Dkt. 19 MVAC
Telephone: (808) 521-9200
Fax: (808) 521-9210
Email: cchipchase@cades.com
lmcaneeley@cades.com
Attorneys for Defendant
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD., a Hawaii Domestic Profit
Corporation
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal CIVIL NO. 3CCV-24-0000233
corporation of the State of Hawai`i, (Hilo) (Condemnation)
Plaintiffs, DEFENDANT KAPOHO LAND &
DEVELOPMENT COMPANY,
v. LTD'S MOTION TO VACATE
ORDER PUTTING PLAINTIFF
KAPOHO LAND & DEVELOPMENT COUNTY OF HAWAII IN
COMPANY, LTD, a Hawai`i Domestic POSSESSION, FILED ON AUGUST
Profit Corporation; JOHN DOES 1-10; 15, 2024 [DKT. 9]
JANE DOES 1-10; DOE ORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; ROE MEMORANDUM IN SUPPORT OF
NON-PROFIT CORPORATIONS 1-10; MOTION
and ROE GOVERNMENTAL AGENCIES DECLARATION OF COUNSEL
1-10,
Defendants. DECLARATION OF A. LONO
LYMAN
EXHIBITS "1" - "10"
CERTIFICATE OF SERVICE
DEFENDANT KAPOHO LAND & DEVELOPMENT COMPANY, LTD.'S
MOTION TO VACATE ORDER PUTTING PLAINTIFF COUNTY OF
HAWAII IN POSSESSION FILED ON AUGUST 15, 2024 [DKT. 9]
Defendant Kapoho Land & Development Company, Ltd ("KLDC"), by its
attorneys, respectfully moves this Court for an order vacating the Order Putting
Plaintiff County of Hawaii in Possession, entered in this action on August 15, 2024
[Dkt. 9] ("Possession Order") and served on KLDC on August 21, 2024 [Dkt. 15].
This motion is brought pursuant to Rules 7 of the Hawaii Rules of Civil
Procedure and Hawaii Revised Statutes §§ 101-9, 101-29, and 113-5, and is based
upon the accompanying memorandum in support of motion, declaration, and exhibits
attached hereto, and the records filed herein.
DATED: Honolulu, Hawaii, August 26, 2024.
CADES SCHUTTE
A Limited Liability Law Partnership
/s/ Lindsay N. McAneeley
CALVERT G. CHIPCHASE
LINDSAY N. MCANEELEY
Attorneys for Defendant
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD.
THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal CIVIL NO. 3CCV-24-0000233
corporation of the State of Hawai`i, (Hilo) (Condemnation)
Plaintiffs, MEMORANDUM IN SUPPORT OF
MOTION
v.
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD, a Hawai`i Domestic
Profit Corporation; JOHN DOES 1-10;
JANE DOES 1-10; DOE ORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; ROE
NON-PROFIT CORPORATIONS 1-10;
and ROE GOVERNMENTAL AGENCIES
1-10,
Defendants.
MEMORANDUM IN SUPPORT OF MOTION
TABLE OF CONTENTS
I. INTRODUCTION 1
II. PROCEDURAL BACKGROUND 2
III. ARGUMENT 6
A. The County has not complied with HRS Chapter 343. 6
B. The County has not complied with HRS Chapter 113. 7
1. Chapter 113 sets out mandatory statutory preconditions to the County's
right to initiate this action. 7
2.The County failed to comply with mandatory statutory preconditions to the
commencement of this condemnation proceedings. 9
C. The County's failure to comply with HRS Chapter 113 renders this action
void ab initio 13
D. The County is not entitled possession of the Properties. 15
E. Additional good cause exists to vacate the Possession Order. 17
IV. CONCLUSION 17
TABLE OF AUTHORITIES
Cases Page(s)
Matter of Acquisition of Land for Cent. Indus. Park Project,
177 Mich. App. 11, 441 N.W.2d 27 (1989) 14
Bethune v. U.S., Dept. of Hous. & Urban Dev.,
376 F. Supp. 1074-78 (W.D. Mo. 1972) 12
City of Ocala v. Red Oak Farm, Inc.,
636 So.2d 81 (Fla. Dist. Ct. App. 1994) 14
City of Portland v. Kamm,
132 Or. 317, 285 P. 236 (1930) 14, 15
City of St. Charles v. DeVault Mgmt.,
959 S.W.2d 815 (Mo. Ct. App. 1997) 14
Mississippi Power Co. v. Leggett,
197 So. 2d 475 (Miss. 1967) 13, 15
In re Widening of Fort St., Honolulu,
6 Haw. 638 (1887) 13, 15
Statutes
42 U.S.C. § 4651 8
Haw. Rev. Stat. § 101-5 11
Haw. Rev. Stat. § 101-13 15
Haw. Rev. Stat. § 101-29 passim
Haw. Rev. Stat. § 113-1 7
Haw. Rev. Stat. § 113-5 passim
Haw. Rev. Stat. § 343-1 7
Haw. Rev. Stat. § 343-5 4, 7
Rules
Haw. Admin. R. § 11-200.1-2 6
Haw. Admin. R. § 11-200.1-10 6
Haw. Admin. R. § 11-200.1-31 4
Other
Haw. Const. art. 8 8
I. INTRODUCTION
Defendant Kapoho Land & Development Company, Ltd ("KLDC"), by its
attorneys, submits this memorandum in support of its motion to vacate the Order
Putting Plaintiff County of Hawai`i in Possession filed on August 15, 2024 [Dkt.9]
("Possession Order") and served on KLDC August 21, 2024 [Dkt. 15]. The
Possession Order was entered before KLDC timely appeared in this action and had
an opportunity to oppose the underlying Ex Parte Motion for an Order Putting In
Possession ("Motion"), which Plaintiff County of Hawai`i ("County") prematurely
filed before serving KLDC with the Complaint in this action.
As addressed below, the County has improperly commenced this proceeding
and sought possession of portions of two parcels of land ("the "Properties")1 owned
in part by KLDC2 without complying with the requirements of several applicable
statutes, including but not limited to: Hawai`i Revised Statutes ("HRS") Chapter 343,
Hawai`i's environmental review program; HRS § 113-5, which enumerates mandatory
preconditions to this condemnation proceeding; and HRS § 101-29, the provision
1 The County identifies the Properties as: TMK No. (3) 1-4-001:002 (por.) shown as
Lot 2-B in Exhibit "A" to the Complaint; and TMK No. 1-4-001:003 (por.), shown as
Lot KL-1 in Exhibit A to the Complaint. See Dkt. 1.
2 KLDC owns the surface rights to the Properties. The subsurface and mining rights
to the Properties are owned by a separate entity, Kapoho Land Partnership, a Hawai`i
Limited Partnership with Kapoho Management Co. Inc. as its General Partner
("KLP"), who has also entered a lease for the surface rights. KLP, in turn, has
entered into agreements for the subsurface rights and surface areas with Puna
Geothermal Venture ("PGV") for geothermal energy purposes, including the
development, operation and use of a geothermal power plants, delivery system roads,
electrical distribution systems, and monitoring stations and its use of subsurface
resources to produce energy. Declaration of A. Lono Lyman ("Lyman Dee!.") ¶¶ 3-4.
underlying the Motion, which addresses the requirements for establishing a right to
possession. This action was also commenced and possession sought without naming
all parties with interests in the Properties.
Accordingly, good cause exists not only to vacate the Possession Order but
to dismiss this action.
II. PROCEDURAL BACKGROUND
On July 8, 2024, the County initiated this condemnation proceeding to acquire
the Properties. Dkt. 1, ¶ 2. According to the County, the acquisition of the Properties
is necessary for a County Department of Public Works ("DPW') project involving the
reconstruction and widening of County roads ("Project"). Id.,¶ 3. Despite recognizing
that parties other than KLDC may have rights in the Properties, the Complaint
named only KLDC as a Defendant. See id., ¶ 4; see also Lyman Decl., ¶ 4.
On July 19, 2024, prior to serving the Complaint on KLDC, the County filed
the Motion, which sought an order for immediate possession of the Properties. Dkt.
5. The Motion asserted that possession will permit the County to do work that may
be required for the Project. Id. at 2. The Motion provided no substantive details
regarding the County's compliance with mandatory prerequisites to initiating this
proceeding. See generally, id. Nor does the Motion provide any details regarding the
basis for the County's right to maintain this action, other than to cite to Resolution
518-24 passed by the County Council on June 19, 2024. Id. at 2 & Exhibit A; see also
Ex. 4 (Resolution). The Motion does not provide any details regarding the Project,
much less made any showing for immediate need for the Properties. See generally,
id. Nor did the Motion make any showing as to the basis for its estimate of the just
2
compensation that would be owed for the taking of the Properties. Id.
Prior to any efforts by the County to condemn the Properties, KLDC had long
been concerned about the County's noncompliance with Hawai`i's environmental
review program, HRS Chapter 343, for the Project.3 Lyman Decl., ¶ 5. Despite
repeated comments and queries about this, the issue remained unresolved, with the
County stating only that it would do what the law required. Id. On August 2, 2024,
counsel for KLDC contacted counsel for the County to inquire about the status of the
County's compliance with Chapter 343 and to request documentation of any
compliance or basis for exempting the Project from environmental review under that
Chapter, along with confirmation of the Project's compliance with other pre-
construction legal requirements (e.g., HRS chapter 205A, 183C, and 6E). Declaration
of Counsel ("Counsel Decl."), ¶ 3. During that call, counsel for the County agreed
to contact DPW to obtain information on those issues and counsel for KLDC agreed
to accept service of the Complaint as of that date. Id., ¶ 4.
The County subsequently pointed KLDC to an Environmental Assessment
("EA") prepared by the Federal Emergency Management Agency ("FEMA") in
connection with its funding of two projects: the DPW roadway reconstruction and
realignment Project and the Department of Water Supply's ("DWS") accompanying
proposal to install water lines along those same roadways (together, the "Proposed
3 For over six years, since the end of the 2018 Lower East Rift Zone ("LERZ")
eruption, KLDC and the other Kapoho Companies supported the Puna-Makai
community and the County of Hawai`i striving for pono revitalization of the lands
directly impacted by the 2018 LERZ eruption. Lyman Decl. ¶ 2.
3
Action"). Id., ¶ 5. The FEMA EA, however, makes clear that it was prepared in
accordance with the federal National Environmental Policy Act ("NEPA") only and
that the County is responsible for compliance with all applicable state laws, including
HRS Chapter 343. See Ex. 1 (EA) at pdf pages 4 & 6. The accompanying Finding of
No Significant Impact ("FONSI") issued by FEMA for the Proposed Action similarly
expressly provides that "[t]he subrecipients [DPW and DWS] are responsible for
completing state and local environmental and land use reviews in accordance
with federal, state, and local regulations" and that failure to comply with that and
other conditions could jeopardize federal funding. Ex. 2 (FONSI) at 2 (emphasis
added).
Under Chapter 343, triggers for environmental review include the use of
County lands or funds and uses within a conservation district. See HRS § 343-5(a)(1)-
(2). The projects in the Proposed Action fall within these triggers. See Ex. 1 at pdf
pages 3 (describing proposed uses of"County roads") & 5 (noting that portions of the
County roads at issue are within the conservation district). Thus, compliance with
Chapter 343 is required. Chapter 343's implementing regulations provide that the
issuance of a federal FONSI does not constitute compliance with Chapter 343:
When a federal entity issues a FONSI and concludes that an EIS
is not required under the NEPA, this determination does not
automatically constitute compliance with this chapter. In these
cases, state and county agencies remain responsible for
compliance with this chapter. However, the federal FONSI
may be considered in the state or county agency determination.
Haw. Admin. R. § 11-200.1-31.
4
Review of the public record reflected that the County had not sought or
published notice of any Chapter 343 environmental assessment or exemptions.
Counsel Decl., ¶¶ 6- 8. Accordingly, it appeared the County had not taken any steps
to independently comply with Chapter 343. Id.4 Over the course of subsequent
communications in which counsel for KLDC sought clarification on that issue, the
County advised KLDC that it would be undertaking steps to comply with Chapter
343. Id, ¶ 10. However, as of this filing, there is still no published Chapter 343 notice
for the Project. Id.
Because the absence of full compliance with Chapter 343 renders any work on
the Project and this proceeding premature, KLDC requested that the County dismiss
this action and/or withdraw the Motion (which KLDC had subsequently learned of
but not been formally served with) pending its compliance with Chapter 343. Id, ¶
11. Counsel for the County advised KLDC that she would need to speak with her
client about the request. Id, ¶ 12. The parties agreed that if there was no agreement
by August 15, 2024, KLDC would proceed with filing its answer to the Complaint and
an opposition to the Motion. Id, ¶ 13. On the afternoon of August 15, 2024, counsel
for the County informed KLDC that she had not been able reach a County
representative with necessary authority to discuss KLDC's request. Id., ¶ 14.
Accordingly, KLDC proceeded with filing its answer to the Complaint and opposition
4 Questions also remained regarding the Project's compliance with other Hawai`i
laws, including HRS Chapters 205A, 183C, and 6E. Id, ¶ 9.
5
to the Motion. Id, ¶ 15; Dkt. 11, 13. Unbeknownst to KLDC, the Court had entered
the Possession Order earlier that day. Dkt. 9.
In connection with preparing this Motion to Vacate, additional deficiencies and
failures by the County to comply with statutory preconditions to the right to acquire
the Properties have been identified. These, in addition to the issues raised in KLDC's
Opposition to the Motion, are discussed below.
III. ARGUMENT
A. The County has not complied with HRS Chapter 343.
As detailed above, the County has not complied with Chapter 343 for the
Project, independently or as part of the broader Proposed Action that was the subject
of the federal EA. Notably, under Chapter 343, multiple actions must be treated as
a single action where the components are phases or increments of a larger total
program. HAR § 11-200.1-10 (Multiple or Phased Actions). "Program" means "a
series of one or more projects to be carried out concurrently or in phases within a
general timeline, that may include multiple sites or geographic areas, and is
undertaken for a broad goal or purpose." HAR § 11-200.1-2 (Definitions). Here, as
reflected in the FEMA EA, both the DPW roadway Project and related DPW waterline
project are part of a "program." Accordingly, a showing of compliance with Chapter
343 is required for both projects — along with any other related projects which may
fall within the definition of"program."
Until the County satisfies its obligations under Chapter 343, which at
minimum will involve public notice and public comment periods, questions remain
regarding whether the Project (or Proposed Action) will be approved as proposed, or
6
whether changes may be required — thus, giving rise to questions regarding the
necessity of and the County's right to the acquisition of the Properties. See HRS §
343-1 ( environmental review process will integrate the review of environmental
concerns with existing planning processes of the State and counties and alert decision
makers to significant environmental effects which may result from the
implementation of certain actions"); HRS §343-5 (requirements include public notice
and comment periods). Notably, in discussions with the previous County
administration, KLDC was informed that the Properties were not required for the
Project. Lyman Decl., ¶ 6. Thus, legitimate questions exist regarding whether the
Properties are necessary for the Project and will be required for any final, approved
version of the Project.
B. The County has not complied with HRS Chapter 113.
1. Chapter 113 sets out mandatory statutory preconditions to the
County's right to initiate this action.
HRS Chapter 113 applies to "to the acquisition of real property under the laws
of the State for use in any project or program in which federal or federal-aid funds
are used." HRS § 113-1. The FEMA EA confirms that the Project for which the
County seeks to acquire the Properties will be federally funded. Ex. 1. Accordingly,
it is indisputable that HRS Chapter 113 applies to any acquisition of properties for
the Project.
Chapter 113 expressly provides that "[i]n acquiring real property for any
project or program in which federal or federal-aid funds are used, the States "shall
5 The term "State," as used in this chapter, means the State of Hawai`i "and any
7
comply" with the policies set forth in HRS § 113-5, which include:
(1) Every reasonable effort shall be made to acquire expeditiously
real property by negotiation.
(2) Real property shall be appraised before the initiation of negotiations,
and the owner or the owner's designated representative shall be given
an opportunity to accompany the appraiser during the
appraiser's inspection of the property; provided that the State may
proceed without an appraisal in cases involving the donation of property
or the voluntary conveyance of property for nominal value or where the
property has fair market value of$2,500 or less.
(3) Before the initiation of negotiations for real property, an amount
shall be established which is reasonably believed to be just
compensation therefor and such amount shall be offered for the
property. In no event shall such amount be less than the approved
appraisal of the fair market value of such property.
HRS § 113-5 (emphases added).
Those requirements, by their terms, are mandatory preconditions to any
condemnation proceedings. Indeed, this Chapter was enacted for the purpose of
complying with the federal Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, 42 U.S.C. § 4651 ("Policies Act"), which includes
similar policies intended to, among other things, "encourage and expedite the
acquisition of real property by agreements with owners, to avoid litigation
and relieve congestion in the court[.]" See 42 U.S.C. § 4651 (emphases added);
H.R. Stand. Com. Rep. No. 307, 16th Leg. Reg. Sess. (1971), reprinted in 1971 Haw.
House J. at 833. As the state Legislature recognized, because "failure to meet the
requirements established by [the Policies Act] will mean non-approval of all new
department, agency, or instrumentality of the State, or a political subdivision of the
State" and, thus, includes the County. See Haw. Const. art. 8 (providing for the
creation of counties and other political subdivisions of the State).
8
federal highway project," Chapter 113 "is essential." H.R. Stand. Com. Rep. No. 307,
16th Leg. Reg. Sess. (1971), reprinted in 1971 Haw. House J. at 833. The Legislature
also expressed its support for the purposes underlying the federal law. Id.
Consistent with those purposes, HRS § 113-5 also provides:
(7) In no event shall the time of condemnation be advanced, on
negotiations or condemnation and the deposit of funds in court for the use
of the owner be deferred, or any other coercive action be taken to compel
an agreement on the price to be paid for the property.
(Emphases added).
2. The County failed to comply with mandatory statutory
preconditions to the commencement of this condemnation
proceedings.
Despite the express and unambiguous mandates of HRS § 113-5, the County
failed to comply with (at the very least) the requirements in subsections (1) through
(3) before initiating this proceeding.
Read together, HRS §113-5(1)-(3) require the condemning authority to—at the
barest minimum—(a) notify the property owner of the need to acquire the property,
(b) perform an appraisal for which the owner shall be given the opportunity to
accompany the appraiser during the inspection, (c) submit an offer for the property
to the ower, and (d) engage in good faith discussions about that offer before turning
to condemnation. The County, however, made no effort, much less any reasonable
effort, to satisfy any of these preconditions to condemnation proceedings. See Lyman
Decl., ¶¶ 6-19. Instead of complying with these requirements, the County proceeded
straight to requesting a resolution authorizing condemnation proceedings without
having had any communications with KLDC about the County's interest in the
9
Properties. Id.
Public records reflect that on or about April 26, 2024, DPW requested a
resolution authorizing the acquisition of the Properties. Ex. 3. That request stated
that the resolution was necessary because "attempts by Public Works to work with
the Owner to negotiate access and the purchase of these portions of the properties
required for this project have been unsuccessful." Id. at 2. However, at that time, the
County had not even notified KLDC of its interest in acquiring the Property, much
less provided KLDC an opportunity to participate in any inspection of the Properties
or provided KLDC with an offer for the purchase of the Properties. See Lyman Decl.,
¶¶ 6-10, 16-17; Ex. 5-6. Nor did the County even notify KLDC of its efforts to initiate
condemnation proceedings. Lyman Decl., ¶¶ 8-10; see also Ex. 5-6.
Upon subsequently learning from members of the community that a resolution
authorizing acquisition of the Properties ("Resolution 518-24") was scheduled for
hearing, KLDC submitted objections to the resolution and requested that it be
withdrawn or denied. See Lyman Decl., ¶¶ 8-10; Exs. 5, 6.Among other things, KLDC
noted that it had been informed by the prior administration in 2020 that the County
did not require any of KLDC's lands for the redevelopment and realignment of any
of the nearby roadways, and that it had received no contrary information from the
current administration in the four intervening years. Exs. 5, 6. KLDC confirmed that
the County "has not had a single negotiation, meeting or conversation" with KLDC
"about the use of [the Properties] for the Pohoiki Road restoration[.]" Ex. 6. Nor did
the County provide it with any notice that it would be seeking to acquire the
10
Properties through condemnation. Exs. 5, 6. Despite those objections and KLDC's
representation that it was amenable to negotiations with the County, on June 5, 2024,
the County Council voted for Resolution 518-24 to pass first reading. See Lyman
Decl., ¶¶ 10-12; Ex. 4 at 2; Ex. 7.
On June 6, 2024, KLDC spoke with DPW Director Pause, but Director Pause
made no meaningful effort to engage in negotiations with KLDC. Lyman Decl., ¶ 13;
Ex. 8. On June 10, 2024, KLDC wrote again to the County Mayor regarding the
County's failure to contact and negotiate with KLDC before initiating condemnation
efforts, KLDC's concern related to various issues, including its interest in exploring
options that would enable continued use of the Properties by PGV,6 and its need for
more information regarding exactly what portions of its land were proposed for
acquisition. Id., 1114; Ex. 9. KLDC made clear that it "would like to settle the issues"
but that it "do[es] not even know what portion of what parcels the County wants to
use." Ex. 9. Accordingly, KLDC requested details regarding the specific areas that
the County seeks to acquire and the areas that may be impacted, along with copies of
any appraisals. Id.
Later that day, DPW Director Pause provided KLDC with copies of a map and
appraisals the County procured for the Properties dated February 2024. Lyman Decl.,
¶ 15. KLDC was never invited to participate in any appraisal efforts for the Propertes
and had never seen the appraisals before they were provided to KLDC on June 10,
6 Notably, HRS §101-5 provides that "[i]n the taking of private property for public
use, a fee simple estate or any lesser estate may be acquired."
11
2024. Id., ¶ 16. The County did not provide KDLC with any written offer to purchase
the Property. Id., ¶ 17.
On June 18, 2024, KLDC reiterated its interest in resolving matters through a
negotiated agreement. Lyman Decl., ¶ 18. By letter dated June 18, 2024, Mayor Roth
informed KDLC that the County intended to proceed with the condemnation action
without further delay. Ex. 10. In this letter, the Mayor noted "[t]his does not mean
that we cannot continue to seek a mutual resolution of these matters," but any such
discussions would have to occur in the course of the condemnation proceeding. Id.
The next day, June 19, 2024, the County Council voted for Resolution 518-24 to pass
second reading and become effective. See Ex. 4. Thereafter, the County initiated
these proceedings and filed the Motion seeking possession of the Properties, once
again, without providing KLDC timely notice. Dkt. 1, 5.
As the foregoing shows, the County completely failed to satisfy subsections (1),
(2) and (3) of HRS §113-5. To satisfy those requirements, there must be a bona fide
attempt to reach an agreement based on good faith negotiations before the issue of
condemnation is ever raised as a possibility. See e.g. Bethune v. U.S., Dept. of Hous.
& Urban Dev., 376 F.Supp. 1074, 1077-78 (W.D. Mo. 1972) (examining a state
agency's failure to comply with the federal Policies Act, and stating "the acquiring
agency shall not institute nor threaten to institute condemnation proceedings
prior to the exhaustion of the negotiation procedures hereinabove"). Here, the County
under the Roth Administration did not engage in any, much less "every reasonable
effort" to negotiate with KLDC for the acquisition of the Properties before
12
commencing efforts to initiate condemnation proceedings as required by HRS § 113-
5(a). Indeed, the County did not even notify KLDC about its interest in acquiring the
Properties or its decision to seek authorization to condemn the Properties. See Lyman
Decl., ¶¶ 6-10; Ex. 5-6. Nor did the County give KLDC the opportunity to accompany
an appraiser during any inspection of the Property as required by HRS §113-5(b), or
provide KLDC with an offer to purchase the property, much less one that satisfies
HRS §113-5 (3). Id., ¶¶ 16-17. Thus, County's commencement of this action plainly
violates HRS Chapter 113.
C. The County's failure to comply with HRS Chapter 113 renders
this action void ab initio.
It is well settled law that the power of eminent domain must be exercised in
strict compliance with all applicable statues. As recognized in Hawai`i:
The Constitution provides that no person shall be deprived of ***
"property without due process of law," and it is undoubted law that when
a statute confers upon the Government or other parties the right to take
another's property for public purposes, every form and particular
required by such statute must be complied with.
In re Widening of Fort St., Honolulu, 6 Haw. 638, 646 (1887) (emphasis added); see
also e.g., Mississippi Power Co. v. Leggett, 197 So.2d 475, 479 (Miss. 1967) ("The
statutory right of eminent domain is an extraordinary right and one which must be
scrupulously exercised in strict compliance with the statute.") (emphasis
added).
Where the government fails to strictly comply with each statutorily imposed
requirement, the government lacks authority to commence the condemnation
proceeding and the court lacks jurisdiction over the unauthorized proceeding. See
13
e.g., Matter of Acquisition of Land for Cent. Indus. Park Project, 177 Mich.App. 11,
17, 441 N.W.2d 27, 30 (1989) (holding that "tendering of a good-faith offer is a
necessary condition precedent to invoking the jurisdiction of the circuit court
in a condemnation action" and concluding trial court properly dismissed
condemnation action because it was without subject matter jurisdiction where
the conditions precedent to condemnation were not satisfied) (emphasis
added); City of St. Charles v. DeVault Mgmt., 959 S.W.2d 815, 821 (Mo. Ct. App. 1997)
("It is well-settled that in a condemnation action, the court must initially determine
whether the condemnation is authorized by law i.e.: is there jurisdiction over the
condemnation proceeding" which involves determining, inter alia, whether "the
condemning authority complied with the conditions precedent to bringing
the action.") (emphasis added); City of Ocala v. Red Oak Farm, Inc., 636 So.2d 81, 83
(Fla. Dist. Ct. App. 1994) (recognizing that eminent domain statutes "must be
strictly complied with for a valid condemnation" and affirming trial court's
dismissal of condemnation proceeding where municipality lacked authority to initiate
suit where it failed to satisfy statutory prerequisites) (emphasis added); City of
Portland v. Kamm, 132 Or. 317, 320, 285 P. 236, 237 (1930) ("Statutes authorizing
the condemnation of private property for a public use are wholly in invitum, and,
since they are in derogation of vested rights, must be strictly construed, and
proceedings taken in pursuance of them must comply strictly with all the
requirements of the statute; otherwise such proceedings will be null and void.")
(emphasis added).
14
Thus, having failed to comply with Chapter 113 and satisfy all statutory
preconditions to condemnation, as a matter of law, the County is not authorized to
bring this condemnation proceeding. Because the County has not properly invoked
the Court's subject matter jurisdiction, nor can it until it satisfies all applicable
statutory requirements for condemnation, this action is void ab initio. See e.g., id.
D. The County is not entitled possession of the Properties.
To be entitled to possession, the County must establish: (1) it has the right to
maintain this action; (2)the public use for which the property sought to be condemned
is being taken; and (3) the sum of money estimated to be just compensation for
damages. HRS § 101-29. The County supported its request for possession with a
bare declaration containing conclusory assertions that those requirements were met
and a copy of approved Resolution 518-24, which the County contends authorizes the
acquisition of the Properties through this proceeding.
However, as shown above, the County's claim that it has a right to maintain
this action is incorrect. Having failed to comply with statutory conditions
precedent to initiating condemnation proceedings, it was unlawful for DPW to seek
and for the County Council to approve Resolution 518-24. See In re Widening of Fort
St., Honolulu, 6 Haw. 638; Mississippi Power Co. 197 So.2d 475. The County may
only exercise its right of eminent domain if authorized by a lawful resolution. HRS
§ 101-13. Accordingly, because Resolution 518-24 was issued before the County's
satisfaction of legal preconditions, it is invalid and does not lawfully give the County
the right to maintain this action. See Kamm, 285 P. at 237 (1930) (failure to "strictly
with all the requirements of the statute" renders proceedings null and void).
15
Having also failed to comply with HRS Chapter 343, there is no final approved
Project and thus no basis to conclude the Properties are needed by the County for a
public use. Until environmental review and any associated design changes are
complete and approved, the County's claimed need for the Properties is simply
speculative.
Additionally, the County provided no more than conclusory assertions
regarding the estimated compensation for the acquisition of the Property. See Dkt. 5
(Motion) at 2 & Pause Aff., ¶ 5. The County does not provide any explanation much
less support for its proffered estimate. In any event, to the extent it relied on any
appraisals procured by the County for the amount tendered, as discussed above, any
such appraisals failed to comply with the requirements of HRS Chapter 113.
Furthermore, KLDC vehemently disputes the estimate provided. See Lyman
Decl., ¶ 20. Relevant to the issue of valuing the Properties is the fact that they are
subject to leases and subleases involving PGV surface uses, which include power
plants, delivery systems, roads, electrical distribution systems, and monitoring
stations and PGV's use of subsurface resources to produce energy. Id., ¶ 21. These
leases and subleases are the source of substantial income, including surface and
resource rents and resource royalties, the value of which exceeds the compensation
proposed by the County. Id., ¶ 22. The County's failure to properly account for this
loss of income from the acquisition of the Properties further demonstrates the
impropriety of the request for immediate possession of the Properties. Indeed, it
would be profoundly prejudicial to KLDC and other interested parties to subject them
16
to such immediate losses, contemporaneous with the transfer of the Properties before
this case is properly and fully adjudicated. Id., ¶ 23. This prejudice is all the more
profound where the County failed to comply with its statutory obligations.
For these reasons, the County cannot establish a right to possession of the
Properties under HRS §101-29, and the Possession Order must be vacated.
E. Additional good cause exists to vacate the Possession Order.
In addition to the foregoing, an award of possession is also improper because
all parties with an interest in the Properties are not properly named in this action
and before the Court. See Dkt. 1; Lyman Decl. ¶ 4. Furthermore, because ownership
of the surface and subsurface rights to the Properties have been bifurcated and
because of the use of the Properties by PGV, there are also legitimate questions as to
whether any acquisition of the Properties should be the full fee simple estate, or a
lesser estate as provided for under HRS § 101-5. See Lyman Decl., ¶ ¶ 22-23. This is
among the critical issues that should have been part of the required negotiations with
KLDC (and the other interested parties) and still requires attention. To grant
possession of the Properties without full consideration of this issue would be in error.
Finally, any claim by the County that immediate possession is necessary and
that time is of the essence would be unfounded as the County cannot lawfully proceed
with the Project until there has been full compliance with HRS Chapter 343 (and
other applicable laws).
IV. CONCLUSION
For the foregoing reasons, KLDC respectfully submits that the Possession
Order must be vacated. Any other result would amount to the denial of due process
17
required by the federal and State Constitutions and the Hawai`i statutes governing
the exercise of the power of eminent domain.
DATED: Honolulu, Hawai`i, August 26, 2024.
CADES SCHUTTE
A Limited Liability Law Partnership
/s/ Lindsay N. McAneeley
CALVERT G. CHIPCHASE
LINDSAY N. MCANEELEY
Attorneys for Defendant
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD.
18
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal CIVIL NO. 3CCV-24-0000233
corporation of the State of Hawai`i, (Hilo) (Condemnation)
Plaintiffs, DECLARATION OF COUNSEL
v. EXHIBITS "1"-"4"
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD, a Hawai`i Domestic
Profit Corporation; JOHN DOES 1-10;
JANE DOES 1-10; DOE ORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; ROE
NON-PROFIT CORPORATIONS 1-10;
and ROE GOVERNMENTAL AGENCIES
1-10,
Defendants.
DECLARATION OF COUNSEL
I, LINDSAY N. MCANEELEY, hereby declares as follows:
1. I am an attorney with Cades Schutte LLP, counsel for Defendant
Kapoho Land & Development Company, Ltd ("KLDC"), in the above-captioned
action. I make this declaration based upon personal knowledge, and I am competent
to testify to the matters set forth herein.
2. KLDC initially retained our firm to assist with evaluating whether the
County of Hawai`i ("County") had complied with environmental review under
Hawai`i Revised Statutes ("HRS") Chapter 343 for the Department of Public Works'
("DPW') proposed reconstruction and realignment of Pohoiki Road and other County
roads ("Project").
3. On August 2, 2024, I contacted counsel for the County to inquire about
the status of the County's compliance with HRS Chapter 343 for the Project, and to
request documentation of any compliance or basis for exempting the Project from
environmental review under that Chapter, along with confirmation of the Project's
compliance with other pre-construction legal requirements (e.g., HRS chapter 205A,
183C, and 6E).
4. Counsel for the County agreed to contact DPW to obtain information on
those issues and I agreed to accept service of the Complaint filed in this action as of
that date.
5. We were subsequently informed that because the Project will be funded
in some part by the Federal Emergency Management Agency ("FEMA") that FEMA
prepared an Environmental Assessment ("EA") for the Project (and the related
proposal by the Department of Water Supply's ("DWS") to install water lines along
those same roadways (together, the "Proposed Action"), which concluded with
FEMA's issuance of a Finding of No Significant Impact ("FONSI") for the Proposed
Action.
6. The FEMA EA and associated FONSI, however, make clear that the EA
was prepared in accordance with the federal National Environmental Policy Act
("NEPA") only and that the County remains responsible for compliance with all
applicable state laws, including HRS Chapter 343.
7. Haw. Admin. R. § 11-200.1-31, one of Chapter 343's administrative
rules, further provides in pertinent part as follows:
When a federal entity issues a FONSI and concludes that an EIS is not
required under the NEPA, this determination does not automatically
constitute compliance with this chapter. In these cases, state and county
agencies remain responsible for compliance with this chapter.
8. Review of the public record reflected that the County had not published
notice of any Chapter 343 environmental review or exemptions therefrom.
Accordingly, it appeared the County had not taken any steps to independently comply
with Chapter 343.
9. Questions also remained regarding the Project's compliance with other
Hawai`i laws, including HRS Chapters 205A, 183C, and 6E.
10. Over the course of subsequent communications in which our firm sought
clarification on whether the County had taken any steps to independently comply
with Chapter 343, the County advised that it would be taking steps to comply with
Chapter 343. However, upon review of the public record, there is still no published
Chapter 343 notice for the Project.
11. On behalf of KDLC, I requested that the County dismiss this action
and/or withdraw its Ex Parte Motion for an Order Putting Plaintiff County of Hawai`i
in Possession ("Motion"), which KLDC had subsequently learned of, pending its
compliance with Chapter 343.
12. Counsel for the County advised KLDC that she would need to speak with
her client about the request.
13. The parties agreed that if there was no agreement by August 15, 2024,
KLDC would proceed with filing its answer to the Complaint and an opposition to the
Motion.
14. On the afternoon of August 15, 2024, counsel for the County informed
KLDC that she had not been able reach a County representative with necessary
authority to discuss KLDC's request.
15. Accordingly, KLDC proceeded with filing its answer to the Complaint
and opposition to the Motion that afternoon.
16. Unbeknownst to KLDC, the Court had entered the Possession Order
earlier that day.
17. Attached hereto as Exhibit 1 are true and correct excerpts of the Final
EA prepared by FEMA for the Pohoiki Road and Highway 137 Road Repair and Water
Line Installation projects that I obtained from the link provided to me by counsel for
the County and applied highlighting to.
18. Attached hereto as Exhibit 2 is a true and correct copy of the FEMA
FONSI regarding the Pohoiki Road and Highway 137 Road Repair and Water Line
Installation projects that I obtained from the link provided to me by counsel for the
County.
19. Attached hereto as Exhibit 3 is a true and correct copy of
correspondence document (COM 0875.000 2022-2024) obtained from the County of
Hawai`i Council Agendas website containing correspondence related to the Request
for Council Action submitted by the Department of Public Works Engineering
Division on April 18, 2024 and associated requests for waivers from the Finance
Committee and the Committee on Legislative Approvals and Acquisitions on April
26, 2024 and April 30, 2024, respectively. This document is available at:
https://records.hawaiicounty.gov/WebLink/0/doc/1076262/Page 1.aspx.
20. Attached hereto as Exhibit 4 is a true and correct copy of Resolution
518-24, which is attached as Exhibit "A" to the Complaint filed in herein as Dkt. 1.
I declare under penalty of perjury that the foregoing is true and accurate.
DATED: Honolulu, Hawai`i, August 26, 2024.
/s/Lindsay N. McAneeley
LINDSAY N. MCANEELEY
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal CIVIL NO. 3CCV-24-0000233
(Hilo) (Condemnation)
corporation of the State of Hawaii,
DECLARA ION OF A. LONO
Plaintiffs, LYMAN
v.
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD, a Hawaii Domestic
Profit Corporation; JOHN DOES 1-10;
JANE DOES 1-10; DOE
CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-10; ROE NON-
PROFIT CORPORATIONS 1-10; and
ROE GOVERNMENTAL AGENCIES 1-
10,
Defendants.
DECLARATION OF A. LONO LYMAN
I, A. LONO LYMAN, hereby declares as follows:
1. I am the manager and Konohiki of Defendant Kapoho Land &
Development Company, Ltd ("KLDC") in the above-ca tioned action. I make this
declaration based upon personal knowledge, and I am competent to testify to the
matters set forth herein.
2. For over six years, since the end of the 2018 Lower East Rift Zone
("LERZ") eruption, I as manager and Konohiki of KLDC and the other Kapoho
Companies have supported the Puna-Makai community and the County of Hawaii.
striving for Pono revitalization of the lands directly im.acted by the 2018 LERZ
eruption.
3. According to the Complaint filed by the County of Hawai`i ("County")
against KLDC on July 8, 2024 (Dkt. 1), the County initiated this condemnation
proceeding to acquire portions of two parcels of land owned in. part by KLDC
identified as TMK No. (3) 1-4-001:002 (por.) shown as Lot 2-B in Exhibit "A" to the
Complaint and TMK No. 1-4-001:003 (por.) shown as Lot KL-1 in Exhibit A to the
Complaint (the"Properties") for a project involving the reconstruction and widening
of County roads ("Project").
4. KLDC owns the surface rights to the Properties. The subsurface and
mining rights to the Properties, however, are owned by a separate entity, Kapoho
Land Partnership a Hawaii Limited Partnership with Kapoho Management Co. Inc.
its General Partner ("KLP"), who has also entered a lease with KLDC for the surface
rights. KLP, in turn, has entered into agreements for the subsurface rights and
surface areas with Puna Geothermal Venture ("PGV") for geothermal energy
purposes, including the development, operation and use 4 f geothermal power plants,
delivery systems roads, electrical distribution systems, and monitoring stations and
its use of subsurface resources to produce energy.
5. Prior to any efforts by the County to cond mn the Properties and for
several years, KLDC had expressed concern about the C' unty's noncompliance with
Hawai`i's environmental review program under Hawaii. Revised Statutes ("HES")
Chapter 343 for the Project. Despite repeated comment and queries about this, the
issue remained unresolved, with the County stating only that it would do what the
law required.
6. Separately, in telephonic communications with the Mayor Kim's
administration for the County in late-2020, I was told at none of the properties
owned by KLDC were needed for the redevelopment an realignment of any of the
nearby County roadways, including Pohoiki Road, High`ay 137, Highway 132 and
Lighthouse Road.
7. I received no contrary information from the administration of Mayor
Roth until recently.
8. In late May, 2024, I learned through communications with other
members of the Puna Makai community that the County Council had placed on its
agenda a resolution seeking authorization to condemn properties owned by KLDC
("Resolution").
9. Upon learning that information, I contacted the County Council to
obtain a copy of the proposed Resolution and express my objection to it.
10. In my letters objecting to the Resolution, I explained that the last
information I received from the County was that it did not need any KLDC land for
any of its roadway work, that I had received no notice fro the County of its interest
in acquiring any KLDC properties for the Project, its intInt to pursue condemnation,
or the proposed Resolution, and there had been no neg Itiations whatsoever for the
r
acquisition any properties. Attached hereto as Exhiltit 5 is a true and correct
highlighted copy of a letter dated May 31, 2024 that I sent to County Council Chair
Kimball. Attached hereto as Exhibit 6 is a true and correct highlighted copy of a
Lletter dated June 4, 2024 that I submitted as testimony i connection with the first
hearing on the Resolution.
11. Despite my requests for the hearing on the hesolution to be deferred or
for the Resolution to be denied or withdrawn, on June 5 2024, the County Council
voted for Resolution 518-24 to pass first reading.
12. During that hearing and afterward, I expressed my interest in
negotiating a resolution to this matter, including in correspondence sent directly to
Mayor Roth. Attached hereto as Exhibit 7 is a true and correct highlighted copy of
a letter dated June 5, 2024 that I sent to Mayor Roth following the County Council's
first vote on the Resolution.
13. On June 6, 2024 I spoke with DPW Director Pause, but Director Pause
made no meaningful effort to engage in negotiations with KLDC. Attached hereto as
Exhibit 8 is a true and correct highlighted copy of an email I sent on June 7, 2024
memorializing that conversation.
14. On June 10, 2024, I wrote to the County Mayor regarding the County's
failure to contact and negotiate with KLDC before initiating condemnation efforts,
KLDC's concern related to various issues, including the interest in exploring options
h
that would enable continued use of the Properties by PGV, and its need for more
information regarding exactly what portions of its land re proposed for acquisition.
I made clear that KLDC would like to settle the issues put that I do not even know
I
what portion of what parcels the County wants to use. requested details regarding
the specific areas that the County seeks to acquire and the areas that may be
impacted, along with copies of any appraisals. Attached hereto as Exhibit 9 is a true
and correct highlighted copy of my letter dated June 10, 2024 to Mayor Roth.
15. Later that day, DPW Director Pause provided KLDC with a map and
the appraisals the County procured for the Properties da fed February 2024.
16. KLDC was not informed of the County'' intent to appraise the
Properties or invited to participate in any appraisal efforts and had never seen the
appraisals before they were provided to KLDC on June 10, 2024.
17. The County did not provide KDLC with any written offer to purchase
the Property.
18. On June 18, 2024, KLDC reiterated its interest in resolving matters
through a negotiated agreement.
19. However, by letter dated June 18, 2024, Mayor Roth informed KDLC
that the County intended to proceed with the condemnation action without further
delay. Attached hereto as Exhibit 10, is a true and correct copy of the letter from
Mayor Roth to me dated June 18, 2024.
20. I have recently reviewed a copy of the County's Ex Parte Motion for an
Order Putting Plaintiff County of Hawai`i in Possession kt. 5). With respect to the
issue of the sum of money estimated by the County to be just compensation for the
acquisition of the Properties, KLDC vehemently disptes that $24,000.00 would
justly compensate for the acquisition for the Properties.
21. Relevant to the issue of valuing the Properfes is the fact that they are
subject to leases and subleases involving the PGV surface uses, which include power
plants, delivery systems, roads, electrical distribution systems, and monitoring
stations and its use of subsurface resources to produce en rgy.
22. These leases and subleases are the source of substantial income, .
including surface and resource rents and resource royal ties, the value of which I
ri
believe exceeds the compensation proposed by the County.
23. It would be profoundly prejudicial to KLDC and other interested parties
to subject them to a taking and such immediate losses (`contemporaneous with the
transfer of the Properties before this case is properly and. fully adjudicated,
particularly given the questions related to the County's compliance with Hawaii
eminent domain statutes and laws applicable to the Project that serve as the basis
for this proceeding, including but not limited to HRS Chapter 343. .
I declare under penalty of perjury that the foregoing is true and accurate.
DATED: Honolulu, Hawaii, August 26, 2024.
1 . LONO Ii YMAN
Y''
-
^sem r ...a .;.
, _ F —ods
t .
Final Environmental Assessment
Pohoiki Road and Highway 137
Road Repair and Water Line Installation
County of Hawaii, Hawaii
DR-4366-HI PW-55 and PW-53
OCTOBER 2023
atipniF� Federal Emergency Management
�_ FA Agency, Region n9
gee- U.S. Department of Homeland
Security
1111 Broadway, Suite 1200
Oakland, California 94607
EXHIBIT 1
This document was prepared by:
CCPRS
2551 Dulles View Drive, Suite 700
Herndon, VA 20171
Contract No.: 70FB8018D00000003
Task Order: 70FB8021 F00000110
1 Introduction
The County of Hawaii Department of Public Works (DPW) and the County of Hawaii
Department of Water Supply (DWS)both applied to the U.S. Department of Homeland
Security's Federal Emergency Management Agency (FEMA) through the Hawaii Emergency
Management Agency (HI-EMA) for funding to repair roads and install water lines under
FEMA's Public Assistance (PA)Program. HI-EMA is the direct Applicant for the grants, and
DPW and DWS are the Subapplicants.
The PA Program provides assistance to state, territorial, tribal, and local governments, as well as
private nonprofit organizations, so that communities can respond to and recover from major
presidentially declared disasters. The 2018 Kilauea eruption resulted in the presidentially
declared disaster FEMA-DR-4366-HI, dated May 11, 2018.
DPW proposes to realign and reconstruct approximately 9.1 miles of County roads that were
inundated with lava from the 2018 Kilauea volcano eruption in the easternmost portion of the
island to bring them back to their pre-disaster function. DWS proposes to install water lines
along approximately 7.8 miles of the same County roads. The two projects are collectively
referred to as the Proposed Action. Table 1 summarizes the project components and proposed
improvements. Figure 1 in Appendix A shows the project area and location map.
Table 1. Proposed Project Components and Improvements
Length of Length of
Section Location Description Road Water Line Proposed
(Coordinates) Improvements Installation Improvements
Pohoiki Road Intersection of Pohoiki Road 23,315 feet 23,500 feet Realign and
and Highway 132 to (4.4 miles) (4.5 miles) reconstruct road,
intersection of Pohoiki Road install water line
and Highway 137
(19.480953, -154.903204 to
19.460427, -154.843547)
Leilani Avenue Along Leilani Avenue 1,000 feet Not Reconstruct road
between Kahukai Street and (0.2 mile) Applicable
Pohoiki Road (19.471849, -
154.89259 to 19.469645, -
154.894254)
Highway 137 Along Highway 137 from 18,000 feet 17,400 feet Realign and
(north, Kalapana- Pohoiki Road to the (3.4 miles) (3.3 miles) reconstruct road,
Kapoho Beach intersection with Highway 132 install water line
Road) and Kumukahi-Lighthouse
Road
(19.460504, -154.843569 to
19.507936, -154.834805)
Kapoho Beach Along road from Highway 137 60 feet 75 feet Reconstruct road
Road (19.502695, -154.833576) (0.01 mile) (0.01 mile) and install water
line
Final Environmental Assessment
DR-4366-HI PW-55 and PW-53 Pohoiki Road and Highway 137 Road Repair and Water Line Installation Page 1
Length of Length of
Section Location Description Road Water Line Proposed
(Coordinates) Improvements Installation Improvements
Moani Street Along road from Highway 137 25 feet Not Reconstruct road
(19.498548, -154.83332) (0.005 mile) Applicable
Pua 0 Kapoho Along road from Highway 137 25 feet Not Reconstruct road
Street (19.49516, -154.833228) (0.005 mile) Applicable
Kapoho Kai Drive Along road from Highway 137 25 feet Not Reconstruct road
(19.49169, -154.833115) (0.005 mile) Applicable
Kumukahi- Along road from intersection 892 feet Not Reconstruct road
Lighthouse Road of Highways 132 and 137 (0.2 mile) Applicable
(19.507936, -154.834805 to
19.508319, -154.832218)
Highway 137 Along Highway 137 near 4,850 feet Not Reconstruct road
(near MacKenzie MacKenzie State Recreation (0.9 mile) Applicable
State Recreation Area
Area, Kalapana- (19.450334, -154.851667 to
Kapoho Beach 19.441317, -154.861427)
Road)
This environmental assessment(EA) was prepared to evaluate the Proposed Action (i.e.,both the
DPW and DWS projects) in accordance with the National Environmental Policy Act(NEPA) of
1969,the President's Council on Environmental Quality (CEQ) regulations to implement NEPA
(40 Code of Federal Regulations [CFR] Parts 1500 to 1508),U.S. Department of Homeland
Security Instruction 023-01-001, and FEMA Instruction 108-01-1,NEPA implementing
procedures. FEMA is required to consider potential environmental impacts before funding or
approving actions and projects. The purpose of this EA is to analyze the potential environmental
impacts of the Proposed Action. FEMA will use the findings in this EA to determine whether to
prepare an environmental impact statement or to issue a Finding of No Significant Impact
(FONSI).
Section 428 of the Robert T. Stafford Relief and Emergency Assistance Act(42 U.S. Code
5189f), as amended, authorizes FEMA to provide specific exemptions, or"Alternative
Procedures,"to PA Program regulations, allowing Subapplicants to drive their own recovery.
Subapplicants are allowed flexibility in meeting their post-disaster recovery needs (as opposed to
being limited to rebuilding the infrastructure that existed before the disaster). Subapplicants may
propose an "alternate"project for disaster recovery funding if the public welfare would be better
served by an action other than restoration of the damaged facilities to their pre-disaster design.
The 428 Alternative Procedure grant funds are capped and based on an agreed-upon amount in a
fixed cost estimate. The County applied to FEMA for an alternate project. The alternate project
would realign some inundated roads and install inundated water lines in the project area rather
than returning them to their pre-disaster location and would also realign and install water lines
along part of Pohoiki Road that was not inundated with lava. FEMA would provide funding for
the project as authorized under Section 428 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, Public Law 100-707, as amended.
Final Environmental Assessment
DR-4366-HI PW-55 and PW-53 Pohoiki Road and Highway 137 Road Repair and Water Line Installation Page 2
4.17.2 Proposed Action
Because there currently is no public water service in the project area, construction of the
Proposed Action would not affect existing utilities. The Proposed Action would therefore have
no short-term effect on utilities.
Implementation of the Proposed Action would provide water service to the project area. Water
lines would be installed along Pohoiki Road and Highway 137. Fire hydrants would be installed
along the water line and laterals would be added to connect to adjacent properties. The Proposed
Action would have no impact on electrical utilities or onsite sewage disposal systems; however,
the Proposed Action would therefore have major long-term benefits related to water utilities.
4.18 Public Health and Safety
Emergency services and evacuation routes are limited in the project area because of the 2018
lava inundation that affected the project area roads and water service. The Hawaii County Police
Department and Hawaii County Fire Department serve the project area.
4.18.1 No Action Alternative
Under the No Action alternative, emergency services would continue to have limited access to
the project area. There would be limited evacuation routes in the event of a natural disaster.
Residents or visitors to the area would be negatively impacted because of their inability to
evacuate the area in the event of an emergency, depending on the scale and type of emergency.
The lack of water service could adversely affect fire response and suppression. Therefore, the No
Action alternative would have a moderate effect on public health and safety.
4.18.2 Proposed Action
Under the Proposed Action, construction work would be staged such that access to the project
area would be maintained and emergency services would not be impeded. The Proposed Action
would therefore have negligible short-term impacts on public health and safety.
Implementation of the Proposed Action would improve access to the project area for emergency
services. Residents and visitors to the area would benefit from having multiple evacuation routes
from the project area in the event of an emergency or natural disaster. The restoration of water
service and the installation of fire hydrants would benefit project area residents, improving
resilience against impacts from future disasters. The Proposed Action would therefore have
major long-term benefits on public health and safety.
4.19 Land Use and Zoning
NEPA directs federal agencies to confirm their actions are consistent with state and local land
use plans. Zoning within Hawaii County is established and regulated by the County. The County
of Hawaii General Plan (2005) lays out long-range goals and objectives regarding land use
throughout the County. The Hawaii State Land Use Law (Hawaii Revised Statutes Chapter
205) establishes a Land Use Commission and its responsibilities, and Hawaii County Code
Chapter 25 addresses zoning and defines zoning districts and land use designations.
The designated land uses throughout the project area are within an agricultural district, with
some portions of Highway 137 also identified as with a conservation district.
Final Environmental Assessment
DR-4366-HI PW-55 and PW-53 Pohoiki Road and Highway 137 Road Repair and Water Line Installation Page 42
4366-HI Pohoiki Road and HWY 137 Road Repair Water Line Installation Draft EA-Comment Response Matrix
Commentor Date Comment Summary of Comment Response to Comment
Received Category
Deborah Ward 09/04/23 Hawaii's The draft Environmental Assessment(EA)for the Pohoiki Road and Please see section 1.0 of the
on behalf of Env. Highway 137 Road Repair and Water Line Installation was issued in EA for a statement regarding
Sierra Club, Review August but could not be found on the website/bulletin of the Office of NEPA compliance.FEMA
Hawar i Island Program Environmental Quality Control,nor did we find it in the Federal Register. anticipates that the
Group Cultural This document does not disclose whether it is a NEPA or HEPA Subapplicant,the County of
Resources compliant document,and whether compliance with HRS 343, Hawaii,will obtain all required
Conservation District Rules,and Coastal Zone Management rules have permits and adhere to all
been addressed. applicable state statutes,
FEMA should communicate to the County it's anticipation of HRS 6E including HRS 343 and the
(Historic Preservation),HRS 343(environmental review),205A(Special AMTP.
Management Area),and HRS 183(Conservation District)studies, Please see the General
compliance and permits before the project work is undertaken or, Response Regarding Cultural
certainly,re-imbursed. Resources.
We believe that the planned order of Phases 1-4 should be re-ordered, As stated in Section 4.12 of the
due to the cultural sensitivity and potential indirect impacts to the EA,and under the
revered Ka Lae o Kumukahi,site of mele,chants,ancient burials and recommendation of the Hawaii
historic stone structures. State Historic Preservation
We assert that FEMA was mistaken in its finding of No Historic Division(SHPD),FEMA
Properties Affected,because of an unreasonably narrow interpretation considered both direct and
of 36 800.16(i).Given the totality of the evidence that the opening of indirect Areas of Potential
this road would at least indirectly,or secondarily,expose the historic Effect(APE)for the purpose of
properties to reasonably foreseeable alteration of their characteristics, the Section 106 process.All
the finding Historic Properties Affected should have followed. areas where construction and
ground-disturbing activity
There are a variety of compromises for K-LR which would honor the would occur were included and
wishes of Section 106 consultation participants,while preserving the a 0.5-mile radius around the
County's ability to use FEMA funds for all,or most,of the K-LR direct APE.The indirect APE for
restoration.For example,recommending that the County(i)de-couple the Kumukahi-Lighthouse Road
K-LR restoration from Phase 1,re-designating it to Phase 4,and 00 portion was further expanded
prepare to gate the road,once restored.This would allow time for the to include an additional 1.5
Burial Treatment and Preservation Plan"being negotiated by third miles to the east
parties and outside of FEMA's Section 106 consultation,"and the
Comprehensive Preservation Plan,currently under professional In addition,the SHPD approved
development,to be finalized and implemented. an Archeological Monitoring
and Treatment Plan on
08/29/23.
20
4366-HI Pohoiki Road and HWY 137 Road Repair Water Line Installation Draft EA-Comment Response Matrix
Commentor Date Comment Summary of Comment Response to Comment
Received Category
A.Lono Lyman 09/05/23 Hawaii's Comments on the Draft Ek The draft EA does not disclose whether it is Comment noted.
Env. a NEPA and/or NEPA compliant document,and whether it complies Please see section 1.0 of the
Review with HRS 343,Conservation District Rules,and Coastal Zone EA for a statement regarding
Program Management rules.The draft EA reads as if it was compiled and NEPA compliance.FEMA
drafted using artificials intelligence software and algorithms.The draft
Level of anticipates that the
NEPA EA as presented is fatally flawed for the reasons discussed above and Subapplicant,the County of
below and it should be revised and republished as a draft NEPA/NEPA
Analysis Hawaii,will obtain all required
environmental impact statement.The draft EA segments or piecemeals permits and adhere to all
elements of the Kilauea Recovery Program(KRP)to circumvent a more applicable state statutes,
comprehensive environmental review of the KRP and the consideration including HRS 343.
of cumulative impacts.The EA does not include consideration of the
Hawaii State environmental review requirements under HRS 343.The Artificial intelligence and
EA fails to consider the broader context of impacts by focusing on the algorithms were not utilized to
alignments rather than the context of the surrounding area and region conduct analysis or draft the
impacted,such as for cultural resources,rare and endangered species EA.
and habitats,and coastal resources.The EA relies on literature reviews Please see Section 5.0 of the
and not on field work,with the limited exception of the cultural for the cumulative impacts
resources in the alignments area.For cultural resources,the State of discussion including how the
Hawaii's standard of an inventory of cultural resources is not propose project relates to the
undertaken and not described.The EA does not present an analysis of Kilauea Recovery Program.
area's human population and vehicular traffic volumes,instead relying
on characterizations crafted by artificial intelligence software and Please refer to Section 8.0 of
algorithms.The EA mentions environmental justice,but no analysis is the EA for a complete listing of
provided in the document,and it incorrectly defines the impacted all the field assessments
population as those living in the linear projects'footprint including completed for this the
staging areas.In the draft EA,cultural resources are described in the proposed project
context of those in the alignment,and not in the context of their inter- The analysis,coordination and
relationship and the relationship with surrounding cultural resources in mitigation measures presented
the region.Permit requirements are not clearly or properly addressed in the draft EA indicates a
in the draft EA.Permits and compliance with regulatory requirements is finding of no significant impact
an integral part of the draft EA's rationalizing that there will not be a An EIS is not warranted with
negative impact or a significant negative impact.Cumulative Impacts such a finding.
are required to be addressed in an environmental impact statement
but not in an environmental assessment.An environmental
assessment is to be done as part of the planning process before
finalizing a project's plans.
31
FEMA
FINDING OF NO SIGNIFICANT IMPACT
Pohoiki Road and Highway 137 Road Repair and Water Line Installation
BACKGROUND
The Federal Emergency Management Agency (FEMA)makes federal assistance available to state,local,
tribal, and territorial governments and certain private nonprofit entities under the Hazard Mitigation
Assistance (HMA)and Public Assistance (PA)grant programs. These non-federal entities are the
recipients and subrecipients of FEMA's grant programs. FEMA's grant programs foster the protection of
health, safety, and welfare of citizens, assist communities in recovering from damages caused by
disasters, and reduce future losses resulting from natural disasters. The HMA grant program encompasses
several pre-disaster grant programs that support action that reduces or eliminates long-term risk to people
and property from future disasters. The PA program provides grant assistance to repair or restore disaster-
damaged facilities or make other site improvements and may include mitigation measures along with
repair,in accordance with Sections 406 and 428 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act,Public Law 100-707, as amended.
FEMA is required during decision making to evaluate and consider the environmental consequences of its
actions,in accordance with The National Environmental Policy Act of 1969(NEPA);the Council on
Environmental Quality (CEQ)regulations implementing NEPA; the Department of Homeland Security
(DHS)Directive 023-01,Revision 01 and DHS Instruction 023-01-001-01,Revision 01; and FEMA
Directive 108-1 and FEMA Instruction 108-1-1. The purpose of the Environmental Assessment(EA)was
to provide the analysis and determine the effects of the proposed project implementation, and alternatives,
on the environment. The EA also discloses the federal decision-making process, agency coordination, and
public participation in determining whether to revise the EA,withdraw the EA,prepare this Finding of No
Significant Impact(FONSI),or initiate an Environmental Impact Statement(EIS).
PROJECT DESCRIPTION
The EA includes and evaluation of two scenarios, a no action alternative as a benchmark, and the
proposed action alternative. The proposed action alternative seeks to restore County of Hawai'i roads and
water lines in the Puna district on the Island of Hawai`i that were destroyed during the 2018 Kilauea
volcanic eruption and lava inundation. The County of Hawai`i Department of Public Works (DPW) and
the County of Hawai`i Department of Water Supply (DWS) are the joint subrecipients of FEMA's PA
grant program under a Section 428 Alternative Procedure grant. DPW proposes to realign and reconstruct
approximately 9.1 miles of County roads that were inundated with lava in the easternmost portion of the
island. DWS proposes to install water lines along approximately 7.8 miles of the same County roads. The
two projects are collectively referred to as the Proposed Action in the EA.
Along road sections covered by hardened lava from the 2018 eruption,the road surface will be
constructed on top of the hardened lava and will change elevation to follow the grade of the naturally
hardened lava. Some of the roads will be realigned,in addition to being reconstructed,to avoid important
vegetation and/or meet current design standards. Ductile iron pipes,with a 6-inch or 4-inch inner diameter
water lines,will be installed under the unpaved shoulder of the road,or in some cases,under existing
culverts. In road sections where the remnant heat of the hardened lava is too high to install water lines
underground,the new water line would be installed in a V-shaped riprap trench.The work will take place
Page 1 of 4
EXHIBIT 2
FEMA
FINDING OF NO SIGNIFICANT IMPACT
Pohoiki Road and Highway 137 Road Repair and Water Line Installation
along County of Hawai'i rights-of-way and adjacent private parcels. In total,the entire project is
anticipated to take approximately 25 months, from completion of the project design,obtaining right-of-
way access,to completion of four phases of construction.
SUMMARY OF POTENTIAL EFFECTS
The proposed action alternative has mostly short-term,minor,but in some instances long-term minor
impacts to resources,primarily relating to construction disturbances and realigned roadways.Minor
impacts are measurable, and the changes would be small and localized. Impacts or benefits would be
within or below regulatory standards, as applicable.FEMA expects the proposed action alternative will
have positive,long-term impacts on living standards of residents in the area,with the restoration of water
utilities and transportation networks and benefits regarding economic recovery for businesses in the area.
The following permit and project conditions are meant to mitigate for the effects associated with the
proposed action alternative.
PERMITS & PROJECT CONDITIONS
The subrecipients are responsible for obtaining all applicable federal, state,and local permits and other
authorizations and adhering to permit conditions for project implementation,prior to construction.
Subrecipients are responsible for providing copies of permits and authorization to the grant recipient,the
Hawai`i Emergency Management Agency, and FEMA,prior to project closeout, and should do so upon
obtaining them. Any substantive change to the approved scope of work will require reevaluation by
FEMA for compliance with NEPA,other laws, and Executive Orders.
The subrecipients must also adhere to project-specific conditions as documented during project
implementation and observe the project conditions as set out in the EA and below. FEMA expects the
following conditions are applicable the entire scope of work covered by the EA.Failure to comply with
these grant conditions may jeopardize federal funds:
1. The subrecipients are responsible for completing state and local environmental and land use reviews
in accordance with federal, state,and local regulations.
2. Excavated soil and waste materials must be managed and disposed of in accordance with applicable
federal, state, and local regulations.
3. The subrecipients are responsible for complying with state air quality regulations, and with state and
federal guidance regarding vehicle and equipment idling. Best management practices(BMPs)
applicable to minimizing effects to air quality shall be incorporated,including limiting vehicle
idling and utilizing fugitive dust suppression techniques.
4. The subrecipients are responsible for complying with federal, state, and local water quality,
stormwater,water pollution control,erosion, and sedimentation regulations,ordinances, and
guidance.
Page 2 of 4
FEMA
FINDING OF NO SIGNIFICANT IMPACT
Pohoiki Road and Highway 137 Road Repair and Water Line Installation
5. Subrecipients must comply with any requirements and avoidance measures pursuant to Section 7 of
the ESA and of Executive Order 13112. If protected species are observed during construction,
activities that could result in harm or disturbance must stop immediately and the subrecipient must
notify the recipient and FEMA. USFWS may require FEMA to conduct additional consultation.
Subrecipients must follow the conditions specified in the informal consultation between FEMA the
United States Fish and Wildlife Service (USFWS)for the proposed action, as set out in the EA.
Subrecipients must minimize the introduction or spread of invasive species,including
decontamination procedures on vehicles and equipment, and using weed-free products. Avoidance
and minimization measures per species and BMPs for prevention of the spread of invasive species
are specified in Appendix C of the EA.
6. The subrecipients must follow the conditions resulting from consultation with the Hawai`i State
Historic Preservation Division(SHPD)and SHPD-approved Archeological Monitoring and
Treatment Plan (AMTP). Secretary of Interior(SOI)-qualified archaeologist will serve as a monitor
for all ground disturbing activity associated with the proposed action. Archaeological monitors will
monitor construction to protect cultural resources,traditional cultural resources of concern, and
culturally sensitive plants. If unexpected archaeological resources are encountered during
construction,the subrecipient and its construction contractor(s)must stop work and notify the
recipient and FEMA. Per the approved AMTP,FEMA will determine what additional consultations
with the SHPD, OHA,Native Hawaiian Organizations, and Native Hawaiian lineal descendants are
required, and what additional conditions or avoidance measures may apply.
7. The subrecipients must follow all permit conditions and manufacture guidelines applicable to the
handling and application of any hazardous substances used in connection with actions evaluated in
the EA. In the event of discovery of soil or water contaminants exceeding reportable levels,the
Subrecipient and its construction contractor(s)will follow applicable federal, state, and local
protocol to report and respond to the contaminants. Should any spills occur from construction
vehicles,they are to be addressed and contained in accordance with local regulations.
8. The subrecipients must follow the noise and transportation conditions set forth in the EA.
Construction work will be limited to daytime hours. Vehicle and equipment runtimes will be kept to
a minimum. Construction work will be staged to maintain access to the project area. The
subrecipient's construction contractor will implement a traffic control plan. A minimum of one
travel lane will remain open in each direction all day. From 2:30 p.m.to 9 a.m. traffic will be
allowed to flow at the posted speed limit. Travel control devices will be installed in conformance
with federal guidance.
PUBLIC INVOLVEMENT
The EA reflects the evaluation and assessment of the federal government,the decision maker for the
proposed action,considering substantive comments received during the public review period to inform
the final decision regarding grant approval and project implementation.The public involvement process
began with County-led public meetings and an initial public notice distributed electronically by FEMA
and the County of Hawai'i. The draft EA was made available for agency and public review and comment
Page 3 of 4
FEMA
FINDING OF NO SIGNIFICANT IMPACT
Pohoiki Road and Highway 137 Road Repair and Water Line Installation
for a period of 30 days,concluding on September 5,2023. The public was invited to submit written
comments by emailing: fema-rix-ehp-documents@fema.dhs.gov or by mail to: Regional Environmental
Officer,FEMA Region 9, 1111 Broadway, Suite 1200, Oakland, CA 94607-4052.
The EA was made available to the public on FEMA's website at: https://www.fema.gov/emergency-
managers/practitioners/environmental-historic/nepa/environmental-assessment-pohoiki-road. and on the
County's website at: https://www.dpw.hawaiicounty.gov/resources/bulletins#Engineering.
Hard copies of the EA were made also available at the following two locations:
• Hawaii County Department of Public Works Office (Aupuni Center, 101 Pauahi Street, Suite 7,
Hilo,HI 96720)
• Hawaii County Department of Public Works Office (West Hawaii Civic Center, 75-5044 Ane
Keohokalole Highway,Bldg. D, 1st Floor,Kailua-Kona,HI 96740)
In total,49 comments were received on the draft EA,with one comment receiving 263 endorsements. The
comments were primarily from residents and business owners in the vicinity of the project area.The
primary focus of the comments related to the protection of cultural resources, and a request to shift the
construction sequencing of one segment of road repair from phase one to phase four of the proposed
project schedule. The request for the shift in construction sequencing reportedly allowed for the
completion of a community-led preservation plan of a culturally significant site,Kumukahi,in the vicinity
of the project area. The subrecipients DWS and DPW agreed to shift the construction of the road near
Kumukahi from phase one to phase four of the construction schedule. The Final EA reflects the revision
in the construction sequencing,based on the public comments. The public comments and FEMA's
responses are incorporated into the Final EA and presented in Appendix E.
In addition to the public involvement performed during the development of the EA,FEMA will provide
this FONSI and final EA to the interested parties per CEQ NEPA Implementing Regulations 40 CFR
§1501.6.
FINDINGS
In accordance with NEPA and the FEMA Directive and Instruction,FEMA has determined that the
evaluated actions will have no significant adverse impact on the quality of the human environment. As a
result of this FONSI, an EIS will not be prepared, and the proposed action as described in the EA may
proceed. This FONSI serves as the final public notice for the proposed action.
APPROVED BY:
CHELSEA D KLEIN Digitally signed by CHELSEA D KLEIN
Date:2023.10.1908:0:50-11000'
Chelsea D. Klein Date
FEMA Lead Environmental Planning and Historic Preservation Advisor
Page 4 of 4
Mitchell D. Roth Diane Nakagawa
Mayor Director
•+0•1�� i„' 'r. Aaron K.H. Brown
Deputy Director
,TE OF'N�'�
County of Hawaii
Finance Department
25 Aupuni Street,Suite 2103 • Hilo,Hawai`i 96720
(808)961-8234 • Fax(808)961-8569
April 26, 2024
e
Heather Kimball, Council Chair and a
Members of the Hawai`i County Council =�.
Hawai`i County Council
25 Aupuni Street as.
Hilo, Hawai`i 96720 :,
•
Re: Acquisition of Private Property CD
A
Enclosed is a resolution authorizing the acquisition of private property by eminent
domain of Tax Map Key Numbers (3) 1-4-001:002 and (3) 1-4-001:003 for public use in
the reconstruction of lava inundated roads.
In order to proceed with the"Reconstruction of Lava Inundated Roads—Pohoiki Road"
project, the Department of Public Works requests that this resolution be waived from
Finance Committee and be placed on the May 15, 2024 Council agenda. If there are any
questions,please do not hesitate to call Keone Thompson of the Department of Public
Works at 961-8327.
0-k14-k/L
Diane Nakagawa
Director of Finance
Enc.
c: DPW
Comm. No. M
Ref. To: I iv
Hawai'i County is an Equal Opportunity Employer and ProviderRef. Date "i PR 3 0 2024
EXHIBIT 3
Form#: B-52
7/18/91
DEPARTMENT OF FINANCE
REQUEST FOR COUNCIL ACTION
DEPARTMENT: Public Works DATE: 4115/2024
STAFF CONTACT: Keone Thompson PHONE: 808-961-8327
A. REQUEST:
The Department of Public Works Engineering Division (DPW) requests a resolution authorizing the
acquisition of private properties by eminent domain, being portions of Tax Map Keys: (3) 1-4-001: 002 and
(3) 1-4-001: 003.
In order to proceed without delay with work on the Reconstruction of Lava Inundated Roads Pohoiki Road,
Public Works respectfully requests Council to waive the Finance Committee meeting and be placed on the
May 15, 2024 Council Meeting Agenda.
B. BACKGROUND AND JUSTIFICATION (USE ADDITIONAL SHEETS AS NEEDED):
The subject properties are identified in Exhibit A as Lot 2-B and Lot KL-1. Portions of these parcels are
necessary for the Reconstruction of Lava Inundated Roads - Pohoiki Road, County Job Number E-4523.
Previous attempts by Public Works to work with the Owner to negotiate access and the purchase of these
portions of the properties required for this project have been unsuccessful.
jr toU p
4 au
SIGNED: DATE: 04/18/24
Department Head
JNtY,9F N,.k.,,. CINDY EVANS
HOLEKA GORO INABA =c.°' n` • 9% JENN KAGIWADA
Chairperson �;�
�d'rl�" MATT KANEALI`I-KLEINFELDER
*i '' <. * ASHLEY L.KIERKIEWICZ
MICHELLE M.GALIMBA % ' == -� HEATHER L.KIMBALL
Vice Chair %,'sr- r;N,o;°P.�_ SUSAN L.K.LEE LOY
', TF.rias • REBECCA VILLEGAS
HAWAII COUNTY COUNCIL
County of Hawai`i
Hawai`i County Building
25 Aupuni Street
Hilo, Hawai`i 96720
April 30, 2024
Heather L. Kimball, Council Chair
Hawai`i County Council
25 Aupuni Street
Hilo, Hawai`i 96720
RE: Resolution No. 518-24 • AUTHORIZING THE ACQUISITION
OF PRIVATE PROPERTIES BY EMINENT DOMAIN,BEING PORTIONS OF
TAX MAP KEYS: (3) 1-4-001:002 AND (3) 1-4-001:003, SITUATED AT KAPOHO,
PUNA, COUNTY AND STATE OF HAWAII,FOR THE RECONSTRUCTION
OF LAVA INUNDATED ROADS, COUNTY JOB NUMBER E-4523,
SPECIFICALLY POHOIKI ROAD.
Pursuant to Section 2(g) of Rule 4 of the Rules of Procedure of the Council of the County of
Hawaii, this written request is submitted with my approval that the above-referenced matter be
waived from the Committee on Legislative Approvals and Acquisitions to the full Council for
immediate action. In reviewing this matter,timely approval is crucial. It is therefore
advantageous that approval is granted and the matter be placed onto the next Council agenda for
review. However, in the event this request is denied, for whatever reason, I understand the
matter shall be referred to the Committee on Legislative Approvals and Acquisitions for
placement on its future agenda.
Sincerely,
.)Y)C::;‘74
'Holeka Goro Inaba, Chairperson
Committee on Legislative Approvals and Acquisitions
Approved/Date/Waive to Council: /Disapproved/Date/Refer to LAAC:
1,/ ///7.g0/72Pz
Heather L. Kimball, Council Chair eather L. Kimball, Council Chair
Hawai`i County Council Hawai`i County Council
tY OF H`
COUNTY OF HAWAII •� �' :ft_*! STATE OF HAWAII
RESOLUTION NO. 518 24
AUTHORIZING THE ACQUISITION OF PRIVATE PROPERTIES BY EMINENT
DOMAIN,BEING PORTIONS OF TAX MAP KEYS: (3) 1-4-001:002 AND (3) 1-4-
001:003, SITUATED AT KAPOHO,PUNA, COUNTY AND STATE OF HAWAII,FOR
THE RECONSTRUCTION OF LAVA INUNDATED ROADS,COUNTY JOB NUMBER
E-4523,SPECIFICALLY POHOIKI ROAD.
WHEREAS,the County of Hawai`i ("County") is proceeding with the reconstruction of
lava inundated roads, which includes the reconstruction of Pohoiki Road, situated at Kapoho,
Puna, County and State of Hawaii; and
WHEREAS,the properties identified as Lot 2-B and Lot KL-1, as described and
delineated in Exhibit"A,"are required by the County in order to reconstruct Pohoiki Road in a
manner that complies with current County roadway standards,i.e., Lot 2-B and Lot KL-1 are
required to widen Pohoiki Road to comply with current County roadway standards;and
WHEREAS,the County was unable to reach an agreement with the current owner of Lot
2-B and Lot KL-1 for the purchase and sale of those properties to the County; and
WHEREAS,it is therefore necessary that the County exercise its right of eminent
domain to acquire Lot 2-B and Lot KL-1 for a public purpose and use, to wit:to widen Pohoiki
Road;and
WHEREAS,pursuant to Hawai`i Revised Statutes ("HRS") Sections 46-1.5(6),46-61,
and 101-2,the County has the authority to exercise its power of eminent domain to take'private
property for public use such as a roadway when in it is in the public interest to do so; and
WHEREAS, HRS Section 101-13 requires that a condemnation action by the County
must be authorized by a resolution of the County Council; now,therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the
Council of the County of Hawaii finds it necessary and in the public interest to take the private
properties identified as Lot 2-B and Lot KL-1, as described and delineated in Exhibit"A,"for
public use as a roadway,to wit:the properties will be used to widen Pohoiki Road when the road
is reconstructed as part of the County project entitled Reconstruction of Lava Inundated Roads,
Job Number E-4523.
BE IT FURTHER RESOLVED that the Corporation Counsel of the County of Hawaii
be and is hereby authorized and empowered to initiate proceedings in eminent domain, as
EXHIBIT "A" EXHIBIT 4
1
provided by law, for the taking, acquisition,and condemnation of the aforesaid private
properties.
BE IT FURTHER RESOLVED that in the process of said proceedings in eminent
domain, the Corporation Counsel be and is hereby authorized and empowered to negotiate terms
of settlement, subject to the approval of the court before which such proceedings are prosecuted.
BEITFURTHER RESOLVED that the Clerk of the County of Hawai`i is directed to
transmit copies of this resolution to: (I) the owner of the properties identified in Exhibit "A" as
Lot 2-.B and Lot KL-1,to wit:Kapoho Land and Development Company,Limited,P.O.Box
374, Hilo,Hawai`i, 96721; (2)the Honorable Mitch Roth,Mayor; (3) Stephen Pause, Director of
the Department of Public Works; (4)Diane Nakagawa,Director of the Department of Finance;
and (5) Sinclair Salas-Ferguson,Deputy Corporation Counsel.
Dated at Kona ,Hawai`i,this 19th_day of lune . 20 24 .
INTRODUCED BY:
4111110 DIR
COUNCIL MEMBER, COUNTY OF HAWAII
Date of Introduction: June 5, 2024
Date of Ist Reading: June 5, 2024
Date of 2"`i Reading: June 19, 2024
Effective Date: June 19, 2024
COUNTY COUNCIL __ ROLL CALL VO I'b
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i EVANS X
GALIMBA X
I hereby certify that the foregoing RESOLUTION was by INABA X
the vote indicated to the right hereof adopted by the COUNCIL of the KAGIWADA X
County of Hawai`i on dune 19, 2024
KANEALI`I-KLEINFELDER X
KIERKIEWICZ X
ATTEST: KIMBALL. X
LEE LOY X
VILLEGAS X
8 0 1 0
,* _ /�► _^_v .e Reference: C--875/LAAC-59
-._ -' CLERK CHPERSON&PRESIDING OFFICER RESOLUTION NO. 518,_,2'
{
HEREBY CERTIFY that above is a
2 true and correct copy of the original
no,;wa lie in my office.
EXHIBIT "A"
COLinty Clerk
Exhibit A
THIS IS NOT A LEGALLY SUBDIVIDED LOT
DESCRIPTION
LOT 2 B
Being a Portion of L.P. 8177 on R.P.4497,L.C,Aw. 8859-B,Apana 5 to C.Kanaina
Situated at Kapoho,Puna,Island of Hawaii,Hawaii
Beginning at the northwest corner of this parcel of land and on the north side of Pohoiki Road,
the coordinates of said point of beginning referred to Government Survey Triangulation Station
"KAPOHO"being 6,087.05 feet South and 21,854.36 feet West and running by azimuths
measured clockwise from True South:
1. 306° 08' 30" 1544.17 feet along Remainder Lot 2-A;
2. 216° 08' 30" 15.61 feet along Remainder Lot 2-A;
3. 306° 08' 30" 172.11 feet along Remainder Lot 2-A;
4. 31° 24' 8.12 feet along Remainder Lot 2-A;
5. 121° 24' 272.36 feet along the north side of Pohoiki Road;
6. 126° 08' 30" 1404.95 feet along the north,side of Poboiki Road;
7. 141° 34' 50" 37.54 feet along the north side of Pohoiki Road;
8, 174° 50' 6.67 feet along the north side of Pohoiki Road to the point of
beginning and containing an area of 0.577 acre.
ISLAND SURVEY, INC.
SURVEYORS P•o.BOX 4215
HII.O,HAWAII 98720-0216
EXHIBIT "A"
LOT 2-B
The above-subject Lot is also a portion of an Existing future road widening setback along
Kapoho-Pahoa Road and Pohoiki Road.
March 19,2024 ISLAND SURVEY,INC.
Hilo,Hawaii fy c ,srJ
1.0
LICZNStO
PROFC5sIONAL
TMK:1-4-001.:002 portion suAvuon ROBERT T.SHIRAI
on
Licensed Professional
. Land Surveyor 5985
License expires 04/30/26
2
ISLAND SURVEY, INC.
</iegkl, SURVEYORS P.O,BOX 4215
HILO,HAWAII 96720-0216
EXHIBIT "A"
THIS IS NOT A LEGALLY SUBDIVIDED LOT
DESCRIPTION
LOT KL-1.
Being a Portion of L.P. 8177 on R.P.4497,L.C. Aw. 8559-B,Apana 5 to C.Kanaina
Situated at Kapoho,Puna,Island of Hawaii,Hawaii
Beginning at the southeast corner of this parcel of land,the coordinates of said point of beginning
referred to Government Survey Triangulation Station"KAPOHO"being 6,928.36 feet South and
20,83 8.04 feet West and running by azimuths measured clockwise from.True South:
1. 126° 08' 30" 1031.95 feet along Remainder Lot;
2. 141° 34' 50" 56.35 feet along Nanawale Forest Reserve;
3. 306° 08' 30" 108626 feet along the south side of Pohoiki Road;
4. 36° 08' 30" 15.00 feet along Lot 14 of Pohoiki Bay Estates,Unit 1 to the point of
beginning and containing an area of 0.365 acre.
March 19,2024 ISLAND SURVEY,INC.
Hilo,Hawaii
r:C
rERSEa
PROFESSIONAL 1
TMK:1.4-001.:003 portion *I su vnart * ROBERT T. SHIRAI
14,toes Licensed Professional
fr Land Surveyor 5985
A License expires 04/30/26
ISLAND SURVEY, INC.
SURVEYORS P.O.BOX 4215
HILO,HAWAII 96720.0218
EXHIBIT "A"
`
7(q<)//
4r%•
/
/ ¢. /
///// f, e7a,..aaanityam�,rM.Ma. \
/J °P// xrem.tuna Panaaap-f . 0 , 62'1
' 4 // REMAINDER LOT 2-A '
/� �"; ±556.61 ACRES A„,:,0\
O
7 47\ .5;*
° .JB/2. -..
--wNMertaw ky
ry. 210'0013V'76.8h
I
x LOT 2-B
'Fs; '
! 4 t..,4
\ .
577 ACRE
01505'30-1561 308
08'31'-1]212 31124 8Ax
-i]
-,
�"
i / 1SI1] � - •0 9 2031 36
v_•- sR6. \ 206718:30' — 0 5.24'
21.e51.34,,w -1t034so'37.54 PONOIKI I2V30ROAD t•0205
—'
'SAP0410'A 30808'001 — 105826
Bt.= v oliOsk
125,05'30" 4 — 1031.05 st• P f
LOT KL-1 8,928.38 S
20,838.04 W
yR.
0.365 ACRE •KAPOHO"d e
\/4114,, REMAINDER LOT a 10l
O7 3.378 ACRE'S
,8j
Nnitdm�of rHo�ror(wodl ,q,ene MN/...swum 00,us, b tot a let]
P LOT 5
F.
'.. P 01401101 BAY ES
L9114
xaaw tma 9.9190•99.9•91 ea U4 UNIT 1
War
O R ANi' 130155 T'0 KAPOHc 22 00 Al.O 281,0 CPLIENT COMPANY, LIN IYEII
00
PREIJMINARY MAPPING-NOT APPROVEDPUN SHW4N0 NoTyry
;.*:,,•,w,
+
ME SUBd+N510N OF WT 2 INTO am of Azimuths O'A
CemdPwleg referred
11ed A'1(.1PON0'd
REMAINDER LOT 2-A AND LOT 2-B and I.KoPsh,y stated Hawn 132-55
AND 111E 8U801N91O5 OF A PORTON OF LP.8177 CMI PSIMS-KaPoho Road Prof No:A-173-OF65
R 110. RP.4497.LC.AW.5559-8.MAMA 5 TO C.KMAINA INTO Owners o(subject oinllIotta so natod hereon to'Wade
adiJlatz
REMAINDER LOT AND LOT KL-1 owlets o
n•H, .w pw•r.0 ty me 80115 BEING PORTIONS OF LP.8177 ON R.P.4497,
p ov`,ey 1Mu t. L.CAW.8569-8,APANA 5 TO O.4860615
R s (1 KAP0H0.PUNA,IStfNO O HAWAII.HAWAII
e'r^Raen[r�Lt�9aL0u,ns Survey and Plan b9 Island Surva%Ina
31.1.54 Ns.ol cat 8,ts-5eee P.O.505 4215.Hilo,Hasalf 55720
•x^eve•APR��>� Mach 10,2024
•
l—
Tax Mop Kcy:(3)1-4^001:002 a 003 wan mm50 re x -290 50. t.
EXHIBIT "A"
A. Lono Lyman
Konohiki Kapoho Companies
KLDC, KMC and KLP
May 31, 2024
Aloha Council Chair Kimball
Thank you for your staff sending me a copy of Resolution 518-24. I did not receive notice
of it and could not find it on the Council website. I ask that Resolution 518-24 be deferred
due to the lack of any communication by the Roth administration on this matter with the
Kapoho Companies and the lack of notice on this resolution.
The Roth administration has had no negotiations and a paucity of communication with the
Kapoho Companies regarding uses of these properties for Highway 137 and other pending
road construction. The only substantive conversation I have had with the Roth
administration regarding roads was a conversation with the current Chief Engineer
concerning a grading permit for a road reconstruction on a road owned by the Kapoho
Companies that was improperly signed by a resident of the subdivision.
The last conversation I had with the County regarding their road needs and the Kapoho
Companies lands was with Mr. Ben Isshi in late 2020, and he indicated the County did not
need rights-of-way or acquisition of any of our lands. Mr. Isshi has since retired. I have
also heard from two other property owners that the Roth administration has only recently
contacted them regarding similar needs for 137.
Since there has been no effort by the Roth administration to communicate and negotiate
with the Kapoho Companies on this matter and no notice on this resolution, I ask that the
resolution be deferred. The fact that other landowners are experiencing belated requests
suggests to me that the Roth administration is trying to do something that should have
been done a long time ago. Further, a HRS 343 environmental report, which is required for
such projects, would have been a process for addressing these needs. While HRS 343 is
applicable the Roth administration has ignored the need to comply. I will send testimony A
A Lono Lyman
Konohiki Kapoho Companies
KLDC, KMC and KLP
cc: Kapoho Companies Attorney
EXHIBIT 5
AM Lono Lyman
Manager and Konohiki 4 ‘tr
Kapoho Companies
P. 0. Box 374
Hilo, Hawai'i 96721
June 4,2024
Aloha Hawai'i County Members:
Regarding Draft Resolution 518-24
I am asking that Resolution 518-24 be denied or withdrawn.
I am A Lono Lyman,and 1 am the sole representative for the landowner of the properties that are the subject of this
proposed authorization for condemnation.I am the manager and the Konohiki of Kapoho Land&Development Co.
Ltd.and Kapoho Land Partnership,a Elawai'i limited partnership with Kapoho Management Company Inc. as its
general partner. (Collectively these are referred here as the Kapoho Companies.)I was the Hawai'i County
Planning Director between December 1984 and December 1988, and since 1973 have had a career in Hawaii
land use and environmental planning and permitting.
The Roth administration has not had a single negotiation, meeting or conversation with the Kapoho Companies
about use of these lands for the Pohoiki Road restoration but is asking this Council to exercise its extraordinary
power of condemnation to take these lands.
The last conversation I had with the County about use of these properties for the restoration and realignment of
upper Pohoiki Road was with Ben Ishii, before he retired. He told me that the Kapoho Company lands were not
needed for the realignments of Pohoiki Road, or for the government Road(Highway 137), and t'or Highway 132
restorations Makai of Old Government Road(Lighthouse Road). This was restated to me many times by Roth
Administration Planning Director Zendo Kern,who has consistently told me that the County does not need any more
of the Kapoho Companies' lands for the 2016 LERZ eruption restoration program.
In addition to having had zero negotiations,discussions, and meetings with the Roth administration regarding
Pohoiki Road restoration, I have not been notified of this proposed resolution by any means other than the coconut.
wireless.I have been contacted ny two lanuowners wno abut t'orionet Koaa, and triey bold tell me mat me county
administration has made last minute changes requesting the uses of their lands for Pohoiki Road
The LERZ eruption restoration work should have been conducted with a Hawaii State HRS 343 EA/EIS. I have
provided the Roth administration with legal analysis supporting this position, and their response has always
been that they will do what is legally required. The HRS 343 EA/EIS process would have addressed alignment
issues and the potential environmental and cultural impacts that are now surfacing with the rush to do something
before the 2024 elections. Portions of this work in the Special Management Area("SMA") outside of the right-
of-way also may trigger SMA permit requirements.
1 will not be able to attend the Wednesday morning County Council meeting because of midday meetings 4 have on
Oahu,but I will make myself available all-day Tuesday and on Wednesday morning by phone. I can be contacted at
808-282-0448.
Mahalo a nui lea,
A. Lone Lyman 1
Kapoho Companies Manager and Kona
PS:Public Work's statement last week at a Puna Revitalization meeting that I was extremely ill is not true!
EXHIBIT 6
A. Lono Lyman
Manager and Konoiki
Kapoho Companies
P. O. Box 374
Hilo, Hawai'i 96721
June 4,2024
Aloha Hawai'i. County Members:
Regarding Draft Resolution 518-24
I am asking that Resolution 518-24 be denied or withdrawn.
Accompanying are two photos taken by Hawaii County Police of a crime hub and chop-shop that
was established on Kapoho Land properties after the reopening of Highway 132.
HPD and the mayor have been supportive of enforcement. However the clean up will cost a low five
figures.
I will not be able to attend the Wednesday morning County Council meeting because of midday
meetings I have on Oahu,but I will make myself available all-day Tuesday and on Wednesday
morning by phone. I can be contacted at 808-282-0448.
Mahalo a nui loa,
a .
A Lono Lyman
Kapoho Companies Manager and Konohiki
Highway 132 Crime Hub and Chop-shop On Kapoho Companies lands established after the
opening of Highway 132.
Photo Done
•
i
� ' �. 4Mshw aft fi y
•
x a
{
i 4 '
1� 1
tl •
HI
,
F s. xga S �t S,4t
l}}fid
i ' i
J.
h
�'vY� V rAr . .,.roai
i
jrt ��y;� 4 .
R
t — ,,
1 d i
d
!r
.r..� I ¢ *.r
u '`. Vii_) !'.'?'.i"—.7:4;:,'";.M....
t
'iSJ "t � 4 A� x�t iN : f }1 - � ^.V�Ti,t4. r ^— . !`. . 4�. `� A ` �ix...,.;,,..-',;',.....f..":„..,...-,,,....;,:,-
?`: j l ,;� hga 1, _n *." - .,5 to + � t „,_ •
q . R �..- �' iY..x: r'Y.. r 4K� . "iyt �sr,i_ 41tom
ith
" +
-:-.!- !:''''.•"''''''''' " k #; Y ''' .Y-"x'�ti yk, dCs4'-U` \ Y "• y.,'..r.:1-....1,':,,i,"., �r • �
`-..:.:.:4:-.-'',;:4'..r: ,�
Air J{T -' y....4 x `4 j,-i,'f
T— ' . ` 'fir ,'
[', \:• " tr '''''',-,',3.......
�.•,::..-7,1.:,..4
t t „t !�if .'.'-',..':1'','•: � In' x <-
h.t•
r2• ~'4f —^ n ''--,,---;;--1.`.j..
y' s . , % j r. "',' ' 3iu�` a 1 \ wq P - � \ �5 ' ���� � i ks mor.4u���Xv0.i � ., 1 I v_'f �-,� ( J
„
A. Lano Lyman
Manager and Konoiki
Kapoho Companies
P. 0. Box 374
Hilo, Hawaii 96721
June 4, 2024
Aloha Hawaii County Members:
Supplemental Testimony 3 Regarding Draft Resolution 518-24
I am asking that Resolution 5 18-24 he denied or withdrawn.
Accompanying are images of Kumukahi and the impacts from the reopening of Highway 132 dispite
the Lighthouse Road remaining closed.
f will not be able to attend the Wednesday morning County Council meeting because of midday
nlectirnes f have on Oahu,but I will make myself available all-day Tuesday and on Wednesday
morning by phone. I can be contacted at 808-282-0448.
Mahalo a nui feta.
it ...... -ID
A Lono Lyman -
Kapoho Companies Manager and Konohiki
ur
a , '
"HE KAULANA i<A 'AINA 0 PUNA NO KA PUKA MAI 0 KA LA MA KUMUKAHI.,." (THE LAND OF PUNA IS FAMOUS FOR THE
SUN'S FIRST APPEARANCE AT KUMUKAHI). Quote from A RESOURCE GUIDE OF TRADITIONS AND HISTORY OF
KUMUKAII,THE AHUPUA'A OF I<ULA AHUPUA'A AND DISTRICT OF PUNA, Kurnu Popo Associates, November 2022.
11614„
•
• sii4;
•
Post-2018 LERZ eruption tracks off Lighthouse Road as evidence of trespassing on private property and violation of
Hawaii State statutes and applicable administrative rules regulating the State Conservation District and protecting pre-
contact Hawaiian cultural sites and protecting federal rare and endangered species and their habitats.
_ w
,..:14
. ,
. ,..
- . . • .'- . , • • .. .,.,,,,, _.„ . , :.,,, ,
,,,..,,,..;,.. -,...•,,- •
,...-.„.. -
-, ,.:,, , ,-: ,
✓, i - r w'f �1t r" r F • r .w iii • ., .. .. .:,.. f-, . ...„2.14,;,"'S
,.., .,.„,...;. .,...., . ,-. , . . , ..., ... , -.,.. „. :.-,, :, 7
,
"' w . , :
Pre•2018 LERZ eruption tracks off of Lighthouse Road as evidence of trespassing on private property and violation of
Hawaii State statutes and applicable administrative rules regulating the State Conservation District and protecting pre
contact Hawaiian cultural sites, and protecting rare and endangered species and their habitats.
4 11,
• „1/414111,44.
10, '4%444.
4
, -#
4 1P
•
i • ,1,4,-Ealg: „Ai*.
Um' ft,;f6 *tg
, , ;tit* •
10,
ee,
dr,
lie* 'kW joi
v 41‘411;t1',-
"" 40-110 40,0
41
40. va
There are no bathroom facilities at Kumukahi. Emergency access is by helicopter.
R '1' L
Aa
W,
� 1
•
1 40i
i
x
$
Ate .
r'
, s a , ' •„
J
Post-2018 LERZ eruption vehicles on private property made a road to the Lighthouse Road in violation of Hawaii State
statutes and applicable administrative rules regulating the State Conservation District and protecting pre-contact
Hawaiian cultural sites and protecting federal rare and endangered species and their habitats.
•
--
aP
� ,- —
•
4.
Pre-2018 LER7, about 100 cars and several hundred campers at Kapoho Bay end of the accreted land. All vehicles and
users trespass over private to get to this destination.
liti II't.. x!If4
Manager and Konohiki
Kapoho Companies
P. O. Box 374
Hilo, Hawaii 96721
June 4, 2024
Aloha Hawai'i County Members:
Supplemental Testimony 5 Regarding Draft Resolution 518-24
lam asking that Resolution 518-24 be denied or withdrawn.
Accompanying is a copy of the legal analysis f provided the County aadministraiion rc_,arclina,.;
Hawaii State environmental reporting requirements for the HRS 343 FA/I I'~ kir the 20 f 8
eruption revitalization infrastructure projects_ The County administratioia has not provided aim
reason for the requirements not being aipplicaaHe.
1 will not Itc ..aHe !co attt11c1 the Weduesdav roti ning County Council meeting because of midday
have on Oahu_bat I will make myself available all-day "l uesday and on Wodnesda
naurning
by phone. I can he contacted at 808-282-01f18.
��.ialia;lu a nui boa,
A Lona r,ym an
Kapoho Companies Manager and Konohiki
11-200,1-2: "Program" means a series of one of more projects to be carried out concurrently or in
phases within a general timeline,that may include multiple sites or geographic areas, and is undertaken
for a broad goal or purpose.A program may include:a number of separate projects in a given
geographic area which, if considered singly, may have minor impacts, but if considered together, may
have significant impacts; separate projects having generic or common impacts; an entire plan having
wide application or restricting the range of future alternative policies or actions, including new
significant changes to existing land use plans, development plans, zoning regulations, or agency
comprehensive resource management plans; implementation of multiple projects over a long time
frame; or implementation of a single project over a large geographic area.
"Project" means a discrete, planned undertaking that is site and time specific, has a specific goal or
purpose, and has potential impact to the environment,
§11-200.1-10 Multiple or phased actions.A group of actions shall be treated as a single action when:
The component actions are phases or increments of a larger total program;
An individual action is a necessary precedent to a larger action;
An individual action represents a commitment to a larger action: or
The actions in question are essentially identical and a single EA or EIS will
adequately address the impacts of each individual action and those of the group of
actions as a whole.
§11-200.1-13 Significance criteria. (a) In considering the significance of potential environmental effects,
agencies shall consider and evaluate the sum of effects of the proposed action on the quality of the
environment.
(b) in determining whether an action may have a significant effect on the environment,the agency shall
�ururcier every phase or a proposed action,the expected impacts, and the proposed mitigation
measures. In most instances, an action shall be determined to have a significant effect on the
environment if it may:
irrevocably commit a natural,cultural,or historic resource;
Curtail the range of beneficial uses of the environment;
Conflict with the State's environmental policies or long-term environmental goals
established by law;
Have a substantial adverse effect on the economic welfare, social welfare, or
cultural practices of the community and State;
. `,1 Have a substantial adverse effect on public health;
l 1 Involve adverse secondary impacts,such as population changes or effects on public
facilities;
Involve a substantial degradation of environmental quality;
Be individually limited but cumulatively have substantial adverse effect upon the
environment or involves a commitment for larger actions;
Have a substantial adverse effect on a rare,threatened, or endangered species,or
its habitat;
Have a substantial adverse effect on air or water quality or ambient noise levels;
I ; Have a substantial adverse effect on or be likely to suffer damage by being located
in an environmentally sensitive area such as a flood plain,tsunami zone,sea level
rise exposure area, beach, erosion-prone area, geologically hazardous land, estuary,
fresh water, or coastal waters;
'.: i Have a substantial adverse effect on scenic vistas and viewplanes, during day or
night, identified in county or state plans or studies; or
Require substantial energy consumption or emit substantial greenhouse gases.
11-200.1-15 (d)
All exemptions under subchapter S are inapplicable when the cumulative impact of planned successive
actions in the same place,over time, is significant, or when an action that is normally insignificant in its
impact on the environment may be significant in a particularly sensitive environment.
31- When the responsibility of preparing an EIS is delegated to a state or county agency, this chapter
shall apply in addition to federal requirements under the NEPA.The office and state or county
agencies shall cooperate with federal entities to the fullest extent possible to reduce duplication
between federal and state requirements.This cooperation,to the fullest extent possible, shall
include joint EISs with concurrent public review and processing at both levels of government.
Where federal law has EIS requirements in addition to but not in conflictwith this chapter,the
office and agencies shall cooperate in fulfilling the requirements so that one document shall
comply with all applicable laws.
Where the NEPA process requires earlier or more stringent public review,filing, and
distribution than under this chapter,that NEPA process shall satisfy this chapter so
that duplicative consultation or review does not occur.The responsible federal
entity's supplemental EIS requirements shall apply in these cases in place of this
chapter's supplemental EIS requirements.
The course and scope of conduct allowed by both recreational and commercial aquarium collection
permits issued under HRS§ 188-31 and DLNR's administrative scheme encompass activity that qualifies
as a "program" or"project."The activity is a "specific plan"or"a planned undertaking"—and,therefore,
a"project"---because it involves the systematic and deliberate extraction of aquatic life using
procedures, equipment, facilities, and techniques authorized or required by HRS§ 188-31 and related
administrative rules for the specific purpose of holding captive such aquatic life for aquarium purposes
in order to earn profit(in the case of commercial permit holders)or for non-commercial use (in the case
of recreational permit holders).
In the same vein,both recreational and commercial aquarium collection are "programs" within the plain
meaning of that word:the"plan or system under which action may be taken" is the purposeful and
methodical extraction of aquatic life from State waters through the use of fine meshed nets and traps
and the transfer of such aquatic life to facilities that are capable of keeping the collected aquatic life
alive.The "desired goal" is to take aquatic life from its habitat and hold it in a state of captivity for
aquarium purposes, as defined by FIRS§ 188-31(4)(1), in order to earn profits(in the case of commercial
permit holders) or for non-commercial use (in the case of recreational permit holders).Additionally,the
method by which extraction is accomplished involves instruments and techniques that enhance the
efficiency and amount of the collection.22 Accordingly, aquarium collection conducted under permits
t403 P,3d 2921
issued pursuant to FIRS§ 188-31 and DLNR's administrative rules is a "program or project" and therefore
constitutes a HEPA"action."...
Umberger v. Dept of Land& Natural Res.,403 P.3d 277 (Haw. 2017)
It has been frequently stated that "HEPA's purpose is 'to establish a system of environmental review
which will ensure that environmental concerns are given appropriate consideration in decision making
along with economic and technical considerations.' "' Nuuanu Valley Assn v_ City R Cty. of Honolulu, 11
Hawai'i 90, 103, 194 P.3d 531, 544(2008)(quoting HRS§ 343-1 ).The Hawai`i Legislature enacted HEPA
after finding"that an environmental review process will integrate the review of environmental concerns
with existing planning processes of the State and counties and alert decision makers to significant
environmental effects which may result from the implementation of certain actions." FIRS § 343-1. The
legislature also found "that the process of reviewing environmental effects is desirable because
environmental consciousness is enhanced, cooperation and coordination are encouraged, and public
participation during the review process benefits all parties involved and society as a whole." Id.
Environmental impact statements also "allow decision-makers to make informed decisions" when
confronted by certain proposed actions. H.Stand. Comm. Rep. No. 521, in 2005 House Journal, at 1242.
The purpose of HEPA and the legislature's intent in enacting HEPA indicate that it was not meant to be
applied only to a narrow set of activities.See generally Pearl Ridge Estates Cmty.Ass'n v. Lear Siegler,
Inc., 65 Haw. 133, 140-41,648 P.2d 702, 707(1982) (noting that HEPA's scope is wider"than the federal
or the typical state analogue" (quoting Molokai Homesteaders Coop.Ass'n v. Cobb, 63 Haw.453, 465,
629 P.2d 1134, 1143 (1981) )).This determination is supported by the wide range of activities and
courses of conduct to which HEPA has been applied, including construction of buildings, expansion of or
modifications to preexisting buildings, development of residential communities, and other real estate
developments;23 construction on government lands in order to build or connect to sewage lines,
waterlines,or other infrastructure;24 development of public
[403 P.3d 2931
transportation;25 construction of power generating facilities and the drilling of exploratory geothermal
wells;26 the growing of imported algae on facilities in state lands;27 and the Management Plan of the
Observatory Site on the summit of Haleakala in which a new solar telescope was under construction.28
The commonality amorFg the varied activities to which HEPA has been applied is their potential of
producing"environmental concerns" that HEPA intended to be "given appropriate consideration in
decision making along with economic and technical considerations." See Nuuanu Valley Ass'n, 119
Hawaii at 103, 194 P.3d at 544 (quoting HRS§343-1 ).The diversity of the subject matter of previous
HEPA cases affirms that the word "action" has not been (and should not be) narrowly construed. In this
light, our determination that aquarium collection is a HEPA"action" furthers HEPA's purpose as stated
under FIRS § 188-31 : it "will ensure that environmental concerns are given appropriate consideration in
decision making"so as to foster a holistic and thoughtful decisional process. HRS§ 343-1. Given the
nature, magnitude, and scale of aquarium collection under HRS§ 188-31 and DLNR's administrative
rules, any environmental effects that aquarium collection may have fall squarely within the ambit of
what HEPA's environmental review framework intends to integrate into governmental decision
ma k i n g.29
Lastly, our interpretation of"action" and our conclusion that it includes aquarium collection pursuant to
permits issued under HRS § 188-31 and DLNR's administrative rules are also supported by HEPA's
framework.As discussed, the fact that a proposed activity qualifies as an "action" does not mean that it
would require environmental review,since the activity must also fall within a statutory category listed in
i-Ii2s r .243- ) and not c=ncrnpt from I iCPA.Sec Siel f d club, lip Ndwdl'r at 3Ob, lb/ id.3d at 299. And
for applicant actions, as in this case,the agency must exercise discretionary consent as to the proposed
activity in order for the activity to be subject to HEPA.See infra Part V.D.Thus,our interpretation of
"action," which would include a range of activities that has the potential of producing environmental
effects, is supported by the HEPA framework because other steps in the HEPA analysis serve to
counterbalance the scope of the meaning of"action."That is,the succeeding steps in the HEPA analysis
filter activities that qualify as "actions" in order to determine which "actions" actually require
environmental review.
Umberger v. Dep't of Land & Natural Res_,403 P.3d 277 (Haw. 2017)
HRS §343-4(a)(2)(8)8 requires that an EIS be prepared for all actions proposing the use of conservation
land"which will probably have significant environmental effects."See Molokai Homesteaders Co-op.
Ass'n v. Cobb, 63 Haw. 453,629 P.2d 1134(1981).
"Significant effect", under HRS § 343-1(8) 9 means:
...the sum of those effects that affect the quality of the 164 Haw.35] environment, including actions
that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are
contrary to the State's environmental policies or long-term environmental goals as established by law,
or adversely affect the economic or social welfare.
However, as this definitional provision illustrates, "significant effect" is a relative concept.The
quality and gravity of the effect on the environment which may be caused by a proposed activity varies
according to the circumstances involved.Any determination, therefore, is highly subjective.
Nevertheless, an agency making such a determination must consider every phase and every expected
consequence of the proposed action. EIS Regs. 1:31(a);See Molokai Homesteaders Co-op.Ass'n v. Cobb,
supra.
To assist agencies in interpreting HRS§343-1(8), HRS§343-5 authorizes the Environmental Quality
Commission (hereinafter EQC) to establish guidelines specifying classes of actions which will be exempt
from the preparation of an EIS because such actions will probably have minimal or no significant effect
on the environment. 10...
McGlone v. Inaba, 636 P.2d 158, 64 Haw. 27 (Haw. 1981)
Appellants argue that DOT's limitation of its consideration to the direct effects of the harbor
improvements, rather than of the Superferry operations at Kahului harbor, is similar to the Corps" failure
to recognize the cotentral for increased tanker activity Hue to HIP dock c tancinn in Ci-nn Advr� Ates.
Accordingly,Appellants state:
HDOT, in its exemption determination, does not disclose that these improvements are conditions
precedent to the implementation of the Hawaii Superferry project. Most importantly, HDOT, in is
exemption determination, never analyzes the environmental impacts that these harbor improvements,
in facilitating the Hawaii Superferry project,will have on already congested state harbors and roadway
systems, as well as on threatened and endangered species, an increase in the rate of alien species
introductions, and the curtailment or restriction of recreational and cultural uses.All of these are clear
errors requiring reversal. . . .
Appellees,for their part, argue that Ocean Advocates is inapplicable, because it involved the
adequacy of the Corps' analysis in its Final EA, and did not involve a"decision not to prepare an EA" as
Appellants state in their brief.Appellees also take issue with Appellants'citation of Ocean Advocates as
support for its assertion that"uncertainty about the impacts of a project have been sufficient to require
EISs and to reverse exemptions."
Appellees'attempts to minimize the applicability of Ocean Advocates miss the point. Regardless of
Appellants' apparent misstatements regarding the case, Ocean Advocates is persuasive authority
regarding how a factually-similar scenario is treated under NEPA,and provides an example of a court
analyzing the secondary effects of harbor alterations, namely, what effect they will have on the activity
of ocean vessels.
c. application to this case
Kahana Sunset Owners Ass'n and McGlone make clear that when an agency considers an exemption
it must determine that the action will probably have minimal or no significant effects on the
environment, and McGlone teaches that in addition to the direct site of impact the agency must also
consider other impacts that are "incident to and a consequence of the primary impact."Considered
together with these Hawaii precedents, Ocean Advocates provides a concrete analogy to the legal error
committed by DOT.
DoT's written exemption determination is restricted to the harbor improvements and does not
consider the secondary impacts that may result from the use of Hawaii Superferry in conjunction with
Kahului Harbor. Rather, DOT treats the physical improvements in isolation,fitting them into two
exemption classes related to"security and safety equipment," (exemption class 3 item 3) and "alteration
or addition of improvements with associated utilities,which are incidental to existing harbor and boat
ramp operations, in accordance with master plans [that comply with HEPA)" (exemption class 6 item 8).
See supra Section 1.8.2.Although DOT, in its exemption determination letter, does reference the Hawaii
SurGrrcrry ("we rzdve uecerrntneo marine operation of Hawaii Superterry at Kahului Harbor conforms
with the intended use and purpose of the harbor and
[167 P.3d 3351
meets conditions that permit exemption from environmental review at such location based on the
method of operation planned"),it restricts its analysis to the harbor equipment that will be employed in
order to facilitate the Superferry's operation ("ferry activity at Kahului Harbor will use equipment
appropriate for a harbor, include only minor facilities improvements and will be conducted at an existing
pier facility that is consistent with the purpose and reason for which it was originally developed"). See
id.The exemption letter does not consider whether Superferry operation independent of the harbor will
have any significant effect on the environment. Rather, DOT appears to studiously restrict its
consideration of environmental impact to the physical harbor improvements themselves. Although DOT
does say that"[tihe installation and result of the minor improvements noted will not produce or create
any adverse air quality, noise or water quality impact," which could imply a reference to the Superferry
itself, as the "result" of the harbor improvements,this statement is oblique and does not indicate that
secondary impacts were considered. Purposely or not, DOT ignores the more direct language suggested
by OEQC in its sample exemption memorandum, wherein an agency director would state that he or she
"ha[s] considered the potential effects of the above listed project as provided by Chapter 343, HRS and
Chapter 11-200, HAR . , . [and] declare[s]that th[e] project will probably have minimal or no significant
effect on the environment and is therefore exempt from the preparation of an environmental
assessment." Guidebook,supra at 50.
As suggested by Appellees, it is not the province of this court"to substitute its judgment for that of
an agency within the executive branch of government. . . ." Obayashi Hawaii Corp., 81 Hawai'i at 182 n.
12, 91413.2d at 1375 n. 12.The flip side of this caution, however, is that this court"must ensure that the
agency has taken a 'hard look' at environmental factors." Id. at 182 n. 12,914 P.2d at 1375 n. 12
(quoting Stop H-3 Ass'n v. Lewis, 538 F.Supp. at 159).
The applicable standard of review requires that this court determine, as a matter of law, whether or
not DOT has followed the correct procedures and considered the appropriate factors in making its
determination that the harbor improvements made to Kahului harbor to facilitate the Superferry project
should be exempted from the requirements of HRS chapter 343. See supra Section II.C.3.
Stated simply, the record in this case shows that DOT did not consider whether its facilitation of the
Hawaii Superferry Project will probably have minimal or no significant impacts, both primary and
secondary,on the environment.Therefore, based on this record,we can only conclude that DOT's
determination that the improvements to Kahului Harbor are exempt from the requirements of HEPA
was erroneous as a matter of law.The exemption being invalid,the EA requirement of HRS§ 343-5 is
applicable.This issue being dispositive, we need not consider Appellants'other arguments.50
rV. CONCLL) IUN
The stated purpose of HEPA is"to establish a system of environmental review which will ensure that
environmental concerns are given appropriate consideration in decision making along with economic
and technical considerations." HRS §343-1.
In enacting HEPA and establishing a system of environmental review,the legislature expressly
emphasized the importance of public participation in the process:
The legislature further finds that the process of reviewing environmental effects is desirable
because environmental consciousness is enhanced, cooperation and coordination are encouraged, and
public participation
[167 P.3d 336]
during the review process benefits all parties involved and society as a whole.
Id. (emphasis added).
Contrary to the expressly stated purpose and intent of HEPA, the public was prevented from
participating in an environmental review process for the Superferry project by DOT's grant of an
exemption to the requirements of HRS chapter 343.The exemption was erroneously granted as DOT
considered only the physical improvements to Kahului harbor in isolation and did not consider the
secondary impacts on the environment that may result from the use of the Hawaii Superferry in
conjunction with the harbor improvements. "All parties involved and society as a whole" would have
benefitted had the public been allowed to participate in the review process of the Superferry project, as
was envisioned by the legislature when it enacted the Hawaii Environmental Policy Act.
Sierra Club v. Department of Transp., 167 P.3d 292, 115 Hawaii 299 (Haw. 2007)
A. Lono Lyman
Manager and Konohiki
Kapoho Companies
P. 0. Box 374
Hilo, Hawai'i 96721
June 5, 2024
Aloha Mayor Roth:
After almost four years of no conversations, meetings, or negotiations concerning the County's
LERZ eruption road and infrastructure program as it relates to the upper Pohoiki road,the Roth
administration has chosen to initiate condemnation procedures for portions of TMK 1-4-001:002
and 003 owned by the Kapoho Companies.
This email is to: record our deepest disappointment in this action; state that(notwithstanding any
statement to the contrary)we have always been available for negotiation; and that the Kapoho
Companies will take all necessary legal measures to protect its land and rights.
The County gave no notice to the Kapoho Companies regarding this action,and it came to my
attention through the Puna coconut wireless. The Council today,June 5, had its first of two readings
for Resolution 518-24 and Council voted 7-0 to authorize the condemnation.
The Kapoho Companies lands had 1,225 acres covered by lava in the 2018 LERZ eruption. During
and after the 2018 LERZ eruption,the Kapoho Companies did everything the County asked us to do
to help the County and community. During the eruption,we allowed tenants to expand their
papaya orchards at their own risk. Since 2019,we have waived agricultural rents to help our
agricultural tenants. At one point during the 2016 LERZ eruption, County Civil Defense asked to use
an area to launch USGS drones, and in 24 hours we secured a needed waiver from the US
Department of Justice which enabled us to do as requested.
In 2019,the Kapoho Companies and Puna Geothermal Ventures provided access for neighbors who
lived off Highway 132. During and since the 2018 LERZ eruption,the Kapoho Companies have not
received any financial aid or assistance from the County, State, and Federal governments.
In mid-2020,we informed the Kim County Administration that we were withholding new and
retracting existing road right-of-way and right-of-entry authorizations and putting on hold a land
exchange requested by the County.The Kapoho Companies'reasons include uncontrolled
trespassing, dumping, and agricultural theft on our lands related to the highway 1321137 road
reconstruction; desecration and theft of Iwi Kupuna at Kumukahi, both recently and twenty plus
years ago; no action on the County's promise to prepare and adopt a management plan for the
Kumukahi area; and the deterioration of communication with the Kim County Administration.
Another reason for this action was the excessive use of our Lands for graded areas outside the right-
of-way,with these scars still visible along Highway 132.
EXHIBIT 7
Mayor Roth
June 5, 2024
Page 2
Before retiring, Ben Ishii orally informed me that no additional lands were needed from Kapoho for
the upper Pohoiki and Lighthouse Roads work. During the past almost four years,Zendo Kern and
you have reiterated this in meetings and correspondence.
I know you are aware of my positions on the County Kilauea Revitalization Plan and Infrastructure
Program needing a HRS 343 EA/EIS and in areas a SMA permits and a State CDUA approvals, so I
will only mention them in passing as outstanding issues
Councilwoman Kierkiewicz asked if we were open to negotiation: and my response is that we are
open to negotiation on the open issues stated above and that we are open to litigation.
While I will be out of the State from June 21 through July 30, 2024, I will remain engaged with the
management of the Kapoho Companies. I can be reached at 808-282-0448 or at
lymana001@hawaii.rr.com.
Sincerely,A. Lono Lyman
t" 41111110
Manager and Konohiki Kapoho Companies
Cc: Chief Engineer
Legal Counsel
From: Iymana001@hawaii.rr.com
To: "Steve.Pause@hawaiicounty.gov", "MitchD.Roth@hawaiicounty.gov", "ashley.kierkiewicz@hawaiicounty.gov",
"holeka.inaba@hawaiicounty.gov", "Iymana001@hawaii.rr.com"
Cc:
Sent: Friday June 7 2024 5:42:07PM
Subject: Kapoho Companies Lands and County Restoration of 2018 LERZ Infrastructure
A. Lono Lyman
Manager and Konohiki
Kapoho Companies
P. 0. Box 374
Hilo, Hawaii 96721
June 7, 2024
Aloha:
Doctor Pause and I spoke by telephone yesterday afternoon,June 6, 2024. For me, the conversation was very
unsatisfactory. However,he did respond to Council member Kierkiewicz's request to call me.
I heard a lot from him how this is all my fault. He seems very proud to have initiated the extraordinary
condemnation. He even inappropriately laughed at a sincere point I made that was not offered in jest. There was
not one iota of interest on settling this and other matters.
Doctor Pause, please send me PDF maps of all Kapoho Companies' TMK parcels that will be abutting,
impacted by, or part of any of the 2018 LERZ infrastructure (roads,water lines,parks, etc.)project identifying
the TMK`s affected and identifying what portions any of the lands are affected. Please also send me any
appraisal information for any of our properties
EXHIBIT 8
What I have been told consistently over the last almost 4 years is that none of the Kapoho companies' lands
would be used or affected. I do not believe anything I have been told, even by the Mayor and Planning Director.
given the County administration initiating condemnation after four years of silence,NO notice, and not even a
phone call.
With the exception of Public Works, everyone in the County knows Kapoho Companies' Oahu post office box
and other contact information that the County uses to send me anything but our real property tax notices.
A Lono Lyman
Manager and Konohiki
Kapoho Companies
808-282-0448
lymana001@hawaii.rr.com
Post Office Box 3896
Honolulu, Hawaii 96812-3896
2
A. Lono Lyman
Konohiki/Manager
Kapoho Land Partnership
and Kapoho Land & Development Co. Ltd.
P. 0. Box 3896 Honolulu, Hawaii 96812
P. 0. Box 374 Hilo, Hawaii 96721
June 10, 2024
Aloha Mayor Roth:
What I have been told consistently over the last four (4) years is that none of the Kapoho
companies' lands would be used or affected by any future road realignments. I have had no
conversations, meetings, or negotiations with the Roth Administration regarding the upper
Pohoiki Road realignment.
I would like to settle the issues for the upper Pohoiki Road realignment; however I do not even
know what portion of what parcels the County wants to use.
1) Please email me all the details (maps, metes-and-bounds, highway profile) regarding
the specific areas the County wants to use.
2) Please email me any information on the appraisal you said the County has for these
parcels.
3) Please advise me if it is possible to have an easement satisfactory to the Kapoho
Companies and any other user of these lands, such as PGV.
4) Please email me and mail me PDF maps of all Kapoho Companies' TMK parcels that
will be abutting, impacted by, or part of any of the 2018 LERZ infrastructure (roads,
water lines, parks, etc.) project identifying the TMK's affected and identifying what
portions any of the lands are affected.
The conditions I have for settling this are:
A) The County Administration immediately ask the Council to pause the second reading of
the condemnation.
B) In the future, if the County administration wants something from the Kapoho Companies
it asks by phone, email, or snail mail, with phone being the preferred method of
communication.
C) A memorandum of understanding regarding other revitalization issues I have raised over
the past years.
D) A joint written statement to be made upon settling by the County Administration and the
Kapoho Companies committing to future direct communication and efforts.
E) Drafting of the above by the County subject to review and approval by the Kapoho
Companies.
Sincerely,
A Lono Lyman
Manager and Konohiki Kapoho Companies
EXHIBIT 9
'Ce
Mitchell D.Roth c, [tai..
hello. Deanna Sako
w Managing Director
a a ' Robert H.Command
•R Deputy Managing Director
01' IN f thiari
Offir of Alvi
25 Aupuni Street,Suite 2603 . Hilo,Hawaii 96720 (808)961-8211 Fax(808)961-6553
KONA: 74-5044 Ane Keohokalole Hwy.,Bldg C . Kailua-Kona,Hawai`i 96740
(808)323-4444 ® Fax(808)323-4440
June 18, 2024
Via U. S. Mail
A. Lono Lyman A. Lono Lyman
Konohiki/Manager Konohiki/Manager
Kapoho Land Partnership Kapoho Land Partnership
and Kapoho Land & Development Co. Ltd. and Kapoho Land & Development Co. Ltd.
P. O. Box 3896 P. O. Box 374
Honolulu, Hawaii 96812 Hilo, Hawaii 96721
Dear Mr. Lyman:
Re: Kapoho Companies Settlement Proposal for Upper Pohoiki Road Realignment
Thank you for your letter dated June 10, 2024 in which you expressed your concerns
regarding the upper Pohoiki Road realignment. As you are aware, due to the importance of this
project for the community, it is an urgent matter for the County to proceed with the realignment
without delay.
With respect to your concerns regarding the specific areas the County wishes to use, I
understand that the director of the Public Work's Department ("DPW"), Mr. Stephen Pause, sent
the requested information to you regarding maps, metes-and-bounds and highway profile on June
10, 2024, along with the relevant appraisals. Regarding your request for a possible easement, the
DPW Director does not think that this is possible, but the County is willing to entertain your
request. Regarding your fourth point of concern, the DPW Director has opined that no other
TMK parcels held by Kapoho Companies will be affected.
While appreciated, the County must respectfully decline your conditions for settlement,
and proceed with the condemnation action without further delay. This does not mean that we
cannot continue to seek a mutual resolution of these matters, but will ensure that the road
realignment project will continue to move forward towards completion.
Sincerely,
Digitally signed by Mitchell
D R.?, Date 202406.1814:13:10
Mitchell D. Roth, Mayor
County of Hawai'i
c: Public Works Director, Stephen Pause (via e-mail only)
County of Hawaii is an Equal Opportunity Provider and Employer.
EXHIBIT 1 0
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal Civil No. 3CCV-24-0000233
corporation of the State of Hawai`i, (Hilo)(Condemnation)
Plaintiffs, CERTIFICATE OF SERVICE
v.
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD, a Hawai`i Domestic
Profit Corporation; JOHN DOES 1-10;
JANE DOES 1-10; DOE
CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-10; ROE NON-
PROFIT CORPORATIONS 1-10; and
ROE GOVERNMENTAL AGENCIES 1-
10,
Defendants.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing was duly served upon the following by JEFS as follows:
ELIZABETH A. STRANCE, Esq.
Corporation Counsel
SHERILYN K. TAVARES, Esq.
Deputy Corporation Counsel
LERISA L. HEROLDT, Esq.
Deputy Corporation Counsel Section Chief
Corporation Counsel
County of Hawai`i
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
Email: Sherilyn.tavares@hawaiicounty.gov
Attorneys for Plaintiff
COUNTY OF HAWAII
DATED: Honolulu, Hawai`i, August 26, 2024.
CADES SCHUTTE
A Limited Liability Law Partnership
/s/ Lindsay N. McAneeley
CALVERT G. CHIPCHASE
LINDSAY N. MCANEELEY
Attorneys for Defendant
KAPOHO LAND & DEVELOPMENT
COMPANY, LTD.
2