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HomeMy WebLinkAboutCOM 0438.033 2002-2004 Barbarascott i.u04 PifiY 10 f?(~ 8 25 755782 Lopeka Place Kailua-Kona. HI 96780 ~DUI`J ~ ~ ~ ~ Mav 3. 200-F Christopher J. Yuen, Planning Director County of Hawaii. Planning Department 101 Pauahi Street. Suite 3 Hilo. HI 96720-6013 Dear Mr. Yuen: SUBJECT: NANI KONA AINA, LLC (SLU 03-007/REZ 03-018) TMK: 7-5-10:066 Thank you for your response to the report [sent to you on March 12th. I sent the report with an intent to simplifi the verification process for the claims I had [Wade during the Public Hearing held on Mazch 8th in Kailua-Kona. [ appreciate [hat you took the time to review the information and explain your conclusions; however. I still think we aze looking at segmentation in the six-lo[ section, no matter how debatable the ownership issues appeaz. The actual focus for the azgument is the requirement for LUC approval and/or an environmental assessment. A matter. that you addressed, related to agency comments to the County of Hawaii Planning Department on agency specific criteria for a propem development. You pointed out that the County solicits comments from all of the required agencies. The root of the segmentation issue is that land developers may create lot sizes under 15-acres to avoid the LUC approval process. which appears to have stricter criteria than those required at the County level. The request to hate the Nani Kona Aina, LLC application referred to the LUC is based on the infrastructure and envirotmental impacts the subdivision development will create. The specific impacts relate to the required Waiaha water system improvements: the development of the Counts owned Hienaloli-Kahalui Road to provide a connection to the already stressed Nani Kailua Drive and Queen Kaahumanu Highway intersection: the inevitable flooding in the Hienaloli Drainageway; and the critical habitat for the endangered Hawaiian Hoarv Bat (Lasiurus cinereus semorusj and nesting site for the endangered Hawaiian Hawk (Buren solirrius). The County Department of Water Supply (DWS) has required a condition (C) to the proposed subdivision, that no development can begin until the applicant has accomplished improvements to the Waiaha water system, as per a pending agreement between Dan Bolton and [he DWS. Water is unavailable to the proposed subdivision from the salinity compromised local Kahaluu well system. There is no environmental assessment for the proposed Waiaha water improvements project that will affect a limited County resource and will require development of a pipeline from the Waiaha well area (mauka of Mamalahoa Highway. SR 180. according to the map), through whatever private property, and across the County Hienaloli-Kahalui connector road to the subdivision. The Waiaha water system improvements agreement has been negotiated pmately between the DWS and the developer over the last avo years, which has precluded any environmental assessment to evaluate potential impacts and provide for public comment. Furthermore, arranging the proposed subdivision approval before completing the contingent Waiaha water system improvements, or even an environmental assessment. is putting the cart before the horse. During the Planning Committee Meeting, Mr. Mooers announced the applicant's proposal to develop the Hienaloli-Kahalui connector road from a point. at [he subdivision entry. southbound to Hualalai Road. Condition (I) in the SLU/REZ application already requires [he County owned Hienaloli-Kahalui Road development adjacent to the subdivision. aligning to Aloha Kona Drive and Mani Kailua Drive and. coincidentally, also adjacent and Comm. No. $.7j3 Ref. To: Ref. Date MAY,~„_., l~n Christopher Yuen Page 2 April 30, 2004 aligning to approximate)} Sa acres of undeveloped properties owned under Bolton and CL&.D Six, LLC. The General Plan includes the Hienaloli-Kahalui road project as a connector from Palani Road to Hualalai Road, but it is still at the conceptual stage. The most recent official comment. Nm ember 2002, declared the project in need of additional evaluacon -there is current County confirmation that the project status has not changed and is still in need of additional evaluation. An actual solution to same of the Kailua-Kona congestion and overburdened Nani Kailua Driv e/Queen Ka'ahumanu Highway intersection would be to develop the road from [he proposed subdivision northbound to Palani Road -but that is not under consideration. There has been no environmental assessment or any other evaluation for the Hienaloli-Kahalui connector road project, north or south of the proposed subdivision: therefore, the applicant's connector road development proposal is not a valid considemtion. The Hienaloli Dminagevr'ac has had flooding problems in the past, and currently (with the recent rains) there has been a significant increase in water flow through the drainageway area. The developer has obtained a revised map from FEMA. Consideration of the U.S. Army Corps of Engineers Keopu-Hienaloli Feasibility Study is also necessary. The Stud} commenced in 2002 and is scheduled for completion sometime azoand Mazch of 2006 (2nd Qtr Federal FY2005). The Cotmty has committed Deer $500,000 in tax payer monies to [his sturh. which will ulcmateh close off the North Keopu Stream and divert that flow to the South Keopu Stream. which is part of the Keopu-Hienaloli watershed system and is bound to effect the Hienaloli Drainageway flood area. There has been no comment solicited from this federal agency to determine the effects of subdivision development on the flood control project. or to determine the effects of the altered stream system on the proposed subdivision. On the Connty level, the application for [he proposed subdivision includes a facomble recommendation from Planning Department although agency comments have expressed a number of reseryacons about the projeM. The County Planning Commission and the County Planning Committee have both provided negative recommendations. [t is appropriate to refer the approval process to the Land Use Commission to review the agency comments under the stricter criteria required for development approvals. One justification for the State LUC approval is that the actual land azea in question is over li-acres. While I appreciate your acknowledgement that Lots 1 and 6 may share common owners. you may have dismissed the main premise of the segmentation conclusion: the same owner has interest on all six lots, in cooperation with business associates as indicated by property transactions, in spite of the applicant's representative Apri12t1th "deny. deny, den" tactics. Since no activity has ye[ occurred on Lot 2. the relevance to development on that lot is limited to future accvih, which, according to Mr. Mocers, is inevitable. The Lot 2 ownership interest is evenly divided between [he Robert D. Triantos trust members: Robert D. Triantos. William L. Wong, and Gmnt Miller. Lot 3 currently has submitted the SLU Od-006/REZ O I-009 applications for a change from A-5a to RS-20. which will add another 12 homes in the same section. Lot 3 is listed under Gmjan Wilkemob Project. LLC, and the president and corporate agent of that compam's manager, WLW Development Methods. Inc., is William L. Wong. As a point of reference. both lots have ownership under the member names of the Robert D. Triantos Tnut. The common ownership of Lots 1 and 6 helps to illusvate the point I have attempted to make. The CL&D LLC entices are all manager-managed companies under the sole management of Nani Kona Aina LLC. as you no doubt have recognized. Nani Kona Aina, LLC is amember-managed compan}• whose sole member is Dan Bolton, and whose publicly listed corporate agent is Robert D. Triantos, of Carlsmith Ball. LLP. Your letter states that you have no information showing that the Weltons are involved in the ownership of any other lot than lot 1. That observacon, whatever the Wel[on's involvement may be, misses the point. Your letter mentions boundary adjustments as "the kind of thing that can occur between independent but cooperacng landowners." The boundary adjustment between Lot ~ and Lot which is interesting without an ownership transfer transaction, indicates a cooperative interest in the property development designated in the applications (SLU 02-007/REZ 02.017) submitted for TMK 7-~-I0:052. Christopher Yuen Page 3 April 30, 2001 The applications list Walter and Susan Welton as the fee owners of Lot 1 and lists CL&D One. LLC (signed be Dan Bolton) as the fee owner of Lot 5. The (SLU 02-007/REZ 02-017) applications date was August 8. 2002. The Gomes Famiy Ltd PTP and CLbLD One. LLC sold Lot 1 [o the Weltons on Mav 7. 2002; the same date [hat [he Gomes Family Ltd PTP sold Lot 5 to Robert D. Triantos. I[ does not fallow that CL&D One. LLC (Dan Bolton) can enter a boundan' adjustment agreement imoh'ing Lo[ ~ when the Lot ~ property did not belong to him on August 8, 2002. unless the new owner is working as his Agent for that specific property. The applications ($LU 02-007/REZ U2-017) for TMK 7-5-1U:U52 were approved on February 20. 2003. The most recent activity on Lots 1 & 5. dated July 8, 2003, is the Proposed Consolidation of Lots 1 & which includes Lot 1 (fMK 7-5-10:052) and Lot 5 (TMK 7-5-10:065), and the Resubdivision into Lats I to 16. Inclusive. Lots 5-4 & 5-B. and Lots R-1 & R-2 (Road Lots), TMK: 7-5-10:052 & 065 (SUB 2003-0067). The subdivider listed on the application is CL&D Nine. LLC (Dan Bolton), et al. The Iul} 8. 2003 Planning Department letter acknowledges the receipt of the preliminary plat map and filing fee for the referenced application for 20 lots. which adds three lots to the original SLU/REZ submitted b7 the Weltons and CLAD One, LLC under the separate TMK 7-5-10952 application (SLU 02-007/REZ OZ-017). The additional S.U11 acres. from Lot 5. will produce a combined/consolidated Lot 1 and Lot 5 area of 15.031 acres, which would require a LUC approval if the original application represented this acreage. According to information from the County of Hawaii Real Propem Tax abstract section and Website. Lot 5 has already acquired a zone change from A-Sa to RS-2U. [wonder how that happened without State Land Use Boundary Amendment or Change of Zone applications and County approvals. The original PC&R application (SUB 2000-0066). created the six lots that are currently in the section. The PC&R application (SUB 2003-0067) to incorporate all of Lot 5 into the already approved application (SLU 02-007/REZ 02-017) is indicative of segmentation. The only logical reason [o approach development approvals in this manner is to avoid the strict criteria required by the LUC process. The Lot 6 Nani Kona Aina. LLC (Dan Bolton) propem is adjacent to the Lot 1 & 5 PC&R and completes the current segmentation picture -even without considering the implications presented in the new application for Lot 3 (SLU 01-006/REZ 01-009). Please note the following segmentation references: OFF c- ~ F E:~r: x.::.~a,T:,L Qr.,L, ~r C ~t:TSCL ST~-F ~:F FL=~.vait April 2004 Avoid Project Segmentation The proposed action must be described in ns zntirety and camtot be brakzn up into component pans w hich, if each is taken sepazately. may pace mmintal impact on the environment. Szgmznting a project in this incremental wa} [o avoid the preparation of an environmental impact statement is against the lacy. If a project includes a later phase that cannot be fiilh described in the current EA becituse it is only likely [o be implzmented in the distant furore. the EA shotild disclose as much detail as possible about the furore phasz. Should the future phase of such a project e~entualh bz proposed. a new environmental reriew document will bz required at that tune. The En~v(ironmental Notice A SESn-lV 1OVrttI,Y BLLLETN OF TF3E OFFICE OF EvvmOtv„>EVraL Ql ALrrY CONIACL SErrE~mEx 23. 1999 Supreme Court Says No to Segmentation, Again!! The Hawaii Supreme Court has once again ruled that segmentation is illeeal. In Citizens for the Protection of the North Kohala Coastline vs. County of Hawaii the justices reiterated their previous statements in Kahana Sunset Owners Association vs. Cotmty of Maui concerning segmentation. In both cases the court opined that isolating a component of a development for environmental assessment wotild be segmentation of the project. At issue was whether a ]azger project (independenfly no[ a HRS 313 trigger) [ha[ requires an easement over a counh or state road (a HRS 313 trigger) should prepare an environmental assessment. The two rulings above clearly indicate that all components of a project need to be evaluated in its entirety to determine whether HRS 313 is applicable to the Christopher Yuen Page 1 April 30. 2004 action. [f any segment or phase of a project. however small, triggers HRS 3~t3. the whole project should undergo [he environmental review process. In ;m effort to avoid belaboring the segmentation point am further. I am requesting that you reconsider your conclusions. I would also like to call to }'our attention the specific triggers that require the environmental assessment under the Office of Envirottmental Qualitc Convol (OEQC) and hIRS 313. The specific triggers that apple to the Lot 6 application aze the following: 1. Use of state or county lands or hinds other than for feasibtiin- studies or the purchase of raw land (this also includes state or county' roads) 2. Development in an emirotunentalh• sensitive area Em ironmentath sensuiye arcas inehtde tood plains. n~tl;mds. beaches and roastal areas. uosiou-prone areas. eeoloeicalh b;tzardous land. critica habitat and estuaries. An abundance of public comments have been submitted to the County Council in opposition to the proposed subdivision. The opposition is not [o development the opposition is [o irresponsible development. We have the capability and the technology to manage our resotuces. protect our environment. provide adequate infrastructtve. and develop our commurtin -with everyone's interests in mind. It is my sincere request tlrat the Countp Council will refer this (SLU 03-007/REZ 03-017) application to the Land Use Commission for approval. Another possibilih is to defer the application until the appropriate OEQC environmental assessments are completed to address the Waiaha water system improvements project: the Hienaloli-Kahalui connector road development project: the U.S. Army Corps of Engineers Keopu-Hienaloli Feasibilih Studs and Flood Convol Project: and critical habitat preservation. Sincerely. - ~ ~ e.~: u. G¢Gr2C/ A'~l Balbara SCOtt (808)327-1277 cc: Ivlavor Kim Chairman Arakaki Councilmembers Land Use Commission