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HomeMy WebLinkAboutCOM 0821.004 2002-2004 Claudia J. Rohr 369 Nene St. Hilo, Hawaii 96720 res.(808) 934-8040, cell 938-5446 home fax: 935-0940 November 9, 2004 Re: REZ ordinance 355 to rezone portions of Pepeekeo Point to residential to allow for an eleven lot subdivision in Continental Pacific, LLC's Pepeekeo Makai lands. I am here to urge you to take the time to consider the facts surrounding Continental Pacific's subdivision before you move forward from committee. Please take the time to develop a strategic plan to ensure this development is completed in a timely way with no outstanding issues of concern. Please consider this an opportunity to guide this project to a reasonable and rational conclusion. This may be the last chance to make sure things get taken care of correctly and the last chance to negotiate concessions in the public interest. So, now I want to talk about some items that need review to properly proceed: The County Council needs to review Continental Pacific's Board of Appeals Settlement Agreement. It is misrepresentation to characterize this Settlement Agreement as a compromise agreement for the dispute in the Board of Appeals. There is not sufficient nexus between what was noticed at the Board of Appeals, what was discussed and argued, and the resultant Settlement Agreement. The Settlement Agreement is clearly a Development Agreement and it violates HCC Chapter 30 and the Sunshine Law. You have an obligation to get this corrected by holding public hearings to review and approve Continental Pacific's Development Agreement to correct the irregularities. "County council approval by resolution is a precondition for execution of a development agreement by the mayor". Chapter 30 states: "No development agreement shall be entered into unless the County council shall have held a public hearing on the proposed development agreement in the council district where the subject property and development requirements are located". There was no proposal to eliminate the village's common elements and open space at Pepeekeo Point in the BOA case. There is not sufficient nexus between what was discussed and argued in the BOA case and CP's subdivision design which eliminates public use of the roads, the ball fields and adjacent shoreline open space. COMM. No. 8 24. Ref. To: Pr~a Ref. Date L cU CP has gated and privatized roads. Even the Pepeekeo Light Station, which is federally owned public land with a reservation for a light station is now locked away behind the association of landowner's automatic gate. Although the grounds are open to the public and the best beach is nearby the public can't drive to it any more. CP is now proposing to disregard common open space to create residential lots, and to allow building elements within 40 feet of the pali edge. This is inconsistent with the developer's own arguments at the Bbard of Appeals and bad planning. . The presence of urban zoning and lack of conservation zoning at Pepeekeo Point make it imperative that consideration be given to preserving the ball fields and adjacent common open space along the shoreline. The village's common elements, including the roads, ball fields and adjacent open space along the shoreline were portions of land set aside for public use before the subdivision code was written. These common elements have essentially remained intact all these years and the public continuously perused the area and used them. Therefore the public has legitimate claim to concessions from the developer. In the BOA CP argued that it should be able to use the old house lots in Pepeekeo Mill Village as pre-existing lots of record for its PC&R. This was based on law and by the example of Hamakua Housing. Hamakua Housing's subdivision applications had been approved for use of camp house lots as pre-existing lots of record in ten cases. CP demanded equal protection under the law and argued there was no rational basis to treat CP differently under the laws and rules, which had not been formally changed. Hamakua Housing never subdivided the common open spaces to establish house lots. The common open spaces were preserved for the communities' welfare. Now the County Council must review this issue of equal protection before making a decision in this matter. I am asking you to take into account the historical use of Pepeekeo Point and the long term use of the common open space. It must be reserved for a park in the public interest. It would benefit the whole island and would service many people, including the nearby residents, people from the surrounding coastal communities, residents of Hilo, and any person who enjoys touring the island. It has been a vital part of the island's life style. The Planning Commissioners were discouraged from using their discretionary power to amend the conditions of SMA 03-009 for the SMA area at Pepeekeo Point. The Planning Director repeatedly emphasized that the BOA Settlement Agreement was a controlling document. We don't want this project to blow up in everyone's face. There is need for legal review for compliance with HCC Chapter 34, SMA and parks. Approval of the rezoning can be used as leverage to effect positive change by identifying what needs to be done to correct the deficiencies of the subdivision to date. Here are some public access issues: * deficient spacing of mauka makai access easements. Failure to obtain required County Council approval. * There is still no convenient parking and public access to the shoreline that will accommodate the disabled or elderly. * There is only partial compliance with legal requirements to establish public access easements in subdivision documents. * There has been a failure to create public easements with a continuous connection to a public . Access easements dead end on non-dedicated roads. File Plan 7644 needs to be amended. * failure to officially open the shoreline to public. * failure to post public access signs. Gates and no trespass signs currently discourage the public. Signs should be posted on gates to indicate public access information and the hours the gates will remain open. General shoreline access signs should show public way to shoreline. * Openings in fenced areas are too narrow as currently constructed. The average person has trouble negotiating their way through them. This has not changed for over a year although several people have made complaints. We are just ignored. * The Planning Director has issued final approval of at least three increments of CP's master subdivision plan in the past eighteen months. Continental Pacific, LLC continues to subdivide and sell land and doesn't perform on its promises and obligations. The developer appears to suffer no consequences. * The Pepeekeo Community Association has been negotiating with developer for special fishing access rights and other concessions. They have been meeting for three years and there have been lots of promises but no legal documents have been executed and recorded. CP has allowed them use of the property for fishing, which is both recreational and an opportunity for subsistence and kept everyone happy while avoiding real commitments. This has become part of the pattern. It is like the excuses about laying out the lateral trails on the ground holding up conveying any of the public accesses to the County. These are unreasonable delays. You must find a way to define what Continental Pacific has to do to perform on all these obligation. * The SMA recommendations and permit conditions were finally amended just two days before the final Planning Commission hearings to include special terms for the Pepeekeo Community Association even though their agreements were not legitimized in writing. * The amendments were not read into the record at the hearing, nor were copies handed out to the public in attendance. * There was some discussion concerning details but the discussions were disconnected from the issues of the permits. There was no discussion concerning why the amendments were applicable to the subject matter of the permits or what public interests had been given up or not pursued in exchange for exclusive fishing rights and cash contributions. * This procedural error shows how far a field CP operates. CP is encouraging the neighborhood association to pursue the hope of exclusive neighborhood gain instead of pursuing their rights under public domain laws. By holding up the neighborhood association's support and approval CP is eschewing the meaning of public interest. *CP's preference for private negotiated agreements effectively foreclosed public observation and participation in the government process in violation of the sunshine law. CONCLUSION: *You must hold this ordinance in committee until you get all issues resolved. You don't have enough information to proceed. The Council needs to step up to the plate and help the Planning Director whose hands are tied by the Settlement Agreement. You can use the rezoning ordinance to leverage positive change. Don't let the County be blamed for not doing their job. You must make sure there won't be a big mess in the end like Hokulia. Listening Device: Also, the County has failed to maintain the listening device over the past year and I have not been able to hear very well without it. The listening device installed in this room is the only device that allows me to comprehend and participate fully in hearings. I have been at a disadvantage in the hearings that have taken place for over a year. I have been properly requesting the listening device as an ADA accomodation which I did this time. I feel there has been willful neglect and consideration in this matter. I am beginning to find this repeated occurance suspect. I am asking for continuence and asking that the Council keeps the ordinance in committee until the next Hilo meeting because the County failed to provide the device as required by ADA. / JIts 1~