2005-05-06 Answering Brief Re Ainaola Development

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As ADC admits, it agreed to Condition No. 7 as part of a community benefits package that would be made conditions of Use Permit No. 106. Opening Brief, p. 3., Findings of Fact, Conclusions of Law, Decision and Order dated November 15, 2004 ("FOF/COL"), FOF No. 17 quotes the current Planning Department recommendations: . . . In supporting this project, the community had relied in large part to (sic)the representations made by the applicant in 1992. . . . The community had supported the project based upon representations made by the applicant at the time the permits were approved, and not to provide the required benefits to the community would negate the good faith efforts of both the applicant and the community. The community had relied on the applicant to provide benefits. The agreements or understandings were included as conditions in the permits to offset the impact of the proposed project on the surrounding community. The record plainly reflects such prior representations and reliance. ADC's own representative, planning consultant and former Planning Director, Sidney Fuke ("Mr. Fuke"), verified ADC's representations of community benefits: But in either case like back in the 1990's, the late— early 1990's, there were representations made into the—to the Ainaloa community and association and larger because, unlike the situation today, the only legal access to the subject property is through Ainaloa Boulevard. And as a result, the discussions and everything else relating to community or community related type of benefits, focused primarily with the Ainaloa Community Association and not with the Hawaiian Acres subdivision. There were representations made then and some of which the applicant is willing to honor at this point in time, but as I indicated early, he's not—the developer's not in a position to share—you know, share what he doesn't have. CCTr, ROA-E at 124-125. Mr. Fuke further admitted that ADC had committed, to the County and the community, to reconstruct Ainaloa Boulevard. In explaining what ADC now wants, he testified: Couple things. One is like extending the time within which to submit and secure final plan approval, basically like a five-year period, retroactive to December, 2003. 2