2005-05-06 Answering Brief Re Ainaola Development

Home

The subject Use Permit No. 106 was dated November 9, 1992. ADC could have, but did not appeal Condition No. 7 within 30 days of November 9, 1992. Use Permit No. 106 actually was appealed by other parties, all the way through affirmance by the Hawaii Supreme Court. FOF/COL, FOF No. 7 (uncontested on appeal), Record on Appeal, Folder A, ("ROA-A"), pp. 280-289 (See Appendix"2"). Hence, ADC actually defended Use Permit No. 106, with Condition No. 7, through all levels of appeals. Further, ADC failed to appeal the continued imposition of Condition No. 7 in its two prior extensions of Use Permit No. 106. ADC admits that it"never developed any portion of its golf course, primarily due to the collapse in the Japanese economy soon after the permit was issued in the early 1990s. ADC admits that"Time extensions for the development of the project were granted by the County Planning Director in 1994 and by the Commission in 1998 because of worldwide economic situation, as well as appeals by a neighboring property owner." Opening Brief, p. 5; CCTr, ROA-E at 126-129. Hence, ADC took two previous extensions over 12.5 years due to global economic problems, without seeking relief from Condition No. 7 from the County or on appeal. Boulevard safety is still a big issue. The Ainaloa Community Association ("Association") surveyed its membership regarding the proposed $1,000,000 Boulevard improvement donation, showing 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 Association's support for the reduction is also motivated by the assumption that the County "is making a move on accepting the roadway" and may be relieving the Association from primary responsibility. CCTr, ROA-E at 116. Nevertheless, the 4