2005-05-06 Answering Brief Re Ainaola Development

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CCTr, ROA-E at 131-132. ADC cannot have it both ways, claiming a right to time extension based on the 1992 findings and conditions, and yet trying to jettison their major commitments to the County and Ainaloa community. The Planning Commission's findings that Condition No. 7, and ADC's road commitments were an important part of the basis of granting Use Permit No. 106 is clearly supported by substantial evidence and cannot be clearly erroneous. ADC also argues that there was no evidence to say that the Ainaloa Boulevard paving was "still required to satisfy community concerns." Opening Brief, p. 17. Again, (assuming a right to appeal the issue)it is ADC's burden to prove the opposite, that Ainaloa Boulevard road safety is no longer a community or County issue. Yet there is ample evidence that Boulevard safety is still a big issue. The fact that the Ainaloa Community Association surveyed its membership regarding the $1,000,000 Boulevard improvement donation, is itself plain evidence of continued relevance of this issue. Unfortunately, the survey failed to explain that the donation was proposed to be in lieu of the greater road benefits of the existing Condition No. 7 which ADC had not protested for 12.5 years. FOF/COL, FOF No. 18; CCTr, Testimony of Ed Smythe, ROA-E at 176. The Ainaloa Community Association's support for the reduction is also motivated by the assumption that the County "is making a move for the road" and may be relieving the Association from primary responsibility. CCTr, ROA-E at 116. Nevertheless, the Association supports the $1 million road donation, because it will "go towards the safety of it, which is what we wanted." CCTr., ROA-E at 117. The Planning Commission further found that the Hawaii County Council has resolved to complete the Puna Emergency Access Road ("PEAR")which includes Ainaloa Boulevard. Council member Gary Safarik testified to that, and that$2,000,000 already spent has provided 22