2005-05-06 Answering Brief Re Ainaola Development

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commitments to road improvements, and community support, were not the basis for the imposition of Condition No. 7, and cannot support continuation of the condition now. ADC is correct in stating that the Planning Commission properly "did, in fact apply the criteria" of the zoning code, Hawaii County Code ("HCC") Section 25-2-65 (See Appendix"Y'), in issuing Use Permit No. 106 in 1992. Opening Brief, p. 17. ADC errs, however, in arguing that their representations of commitments to road improvements, and the reliance on these representations by the community are irrelevant. They are clearly relevant, since HCC Section 25-2-65(3)requires the commission to consider, in reviewing a Use Permit application, whether the proposed use "shall not unreasonably burden public agencies to provide roads and streets . . . and other related infrastructure." HCC Section 25-2-65(2)requires consideration of whether the proposed use"shall not be materially detrimental to the public welfare nor cause substantial, adverse impact to . . . surrounding properties." The burden of Ainaloa Boulevard improvement and maintenance may fall on a private road association, as it did in 1992, or upon the County, if condemnation or dedication occurs. Likewise, the burden of liability for injury or death on the Boulevard will be borne by whichever public or private entity is responsible. Hence, a developers' road impact obligations, as promised and incorporated into permit conditions, is facially relevant to any request for extension of a permit's life. FOF/COL, FOF Nos. 14 and 17, attacked by ADC, plainly state such relevance. FOF/COL, FOF No. 14 states in part: "At the time both permits were initially approved in 1992, the permits were granted based upon representations made by the Applicant and the understandings of the community that a number of much-needed improvements would be made 19