HomeMy WebLinkAboutCOM 0042.025 2004-2006 Safarik, Gary
From: Baker, Phil [pbaker@BKNLAWYERS.com]
Sent: Monday, January 03, 2005 3:06 PM
To: Safarik, Gary; 'councilmanpete@hawaii.rr.com'
Subject: FW: Scanned Document
Soann001 PDF
C._
-----Original Message----- -
From: Baker, Phil
Sent: Monday, January 03, 2005 2:29 PM
To: 'itorigoe@co.hawaii.hi.us';'bjtodd@co.hawaii.hi.us'
Cc: 'jdefries@hokulia.com'
Subject: FW: Scanned Document
On behalf of 96 individual and families that have purchased lot in the Hokuli'a project, we hereby
request that a copy of the letter attached to this correspondence be included in the record of the
hearing which is scheduled for later today.
-----Original Message-----
From: doccentre2(cabknlawYers.com Imailto:doccentre2(c~bknlawyers.com]
Sent: Monday, January 03, 2005 8:54 AM
To: pbaker(c~BKNLAWYERS.com
Subject: Scanned Document
Sent by: Guest [doccentre2@bknlawyers.com]
Number of Images: 7
Attachment File Type: PDF
Comm. No. ZS
Ref, To: ~rNew! P~_
Ref. Uate~A~[__~_~_
BK;~N
BAKER, KEEI\ER & NAHRA LLP
ATTORNEYS
,lanuary 3, 2005
Via E-Mail: Itorigne@CO.HAWAILHI. US
Ivan Torigoe, Esq.
Office of County Corporation Counsel
Counly of Hawaii
Ifilo Lagoon Cen[er
Suite 235
Hila, HI 96720
Vin F.-Mail: BJTodd@CO.HAWAILHI.US
Bobby Jean Liethead-Todd, Esq.
Office of County Corporation Counsel
County of Hawaii
ililo Lagoon Center
Sui[e 235
Hilo, HI 96720
RE: Hokuli'a and the General Plan Revision
Dear Ms. Liethead-Todd and Mr. Torigoe:
This law firm represents 96 of the approximately 155 individuals and families that have
purchased lots in the Hokuli'a project (hereinafter, the "Hokuli'a Lot Owners). Our clients purchased
lots in aCounty-approved subdivision with the understanding that if 20% or more of their property was
used for income-producing agricultural purposes, in accordance with the County-approved development
plan, that they could build a home on their lots. it was always their understanding that the use of the
property was not to be completely agricultural but in accordance with both the entitlements granted by
Hawaii County and the Development Agreement between 1250 Oceanside Partners and the County
(hereinafter "Development Agreement"). Now, the County has before it a draft General Plan that
would change the rules of the game well after the cards have been dealt. Our clients cannot ignore this
serious threat to their interests.
Because many members of the current County Council took their seats only last month, our
clients have not had the opportunity to present their serious concerns to the current County Council. We
-I A list of our clients is appended hereto as Exhibit 1.
9FI JOSS-!1001
G33 West Fifth Street, 54`" FLuor, Los Angeles, Calitumia 90071-2005 "Pelephone: 213. 241.0900 Facsimile: 213.241. 0990
www.bknlawyeracom
January 3, 2005
Page 2
understand too that others would be significantly affected in various ways were Draft 1 to be adopted in
its current forni. h is disturbing to our clients that significant changes, which will affect them and
others, might be made without full and inclusive discussion and consideration of the implications of the
proposed action. In short, this hurried approach irons the risk of being divisive and disniptive Lo the
reasonable expectations of many, creating significant risks of liability to the County.
On behalf' of our clients, we write this letter to object to the adoption of Draft 1 of the
General Plan that would re-designate a substantial portion of Hokuli'a project lands as
"Important Agricultural Land." Under the temis of the proposed General Ylan, the County would
adopt a policy that any development of such lands must be primarily for agricultural use. The Hokuli~a
Lot Owners arc concerned that the previously approved uses, on the basis of which they made their
significant investments, might not be consistent with this new policy. They also believe that adoption of
the proposed General Plan would be inconsistent wish the Development Agreement and, under the
circumstances, would constitute a punitive action inflicting additional potential harm on people who
desire to build a home in Kona and to become contributing members of the community.
In com~ection with the Hokuli'a Lot Owners' purchase of their County-approved lots, they
reviewed the entitlements applicable to Hokuli'a. Uniformly, prior to their purchase, it was disclosed
that the property and project was subject to the Development Agreement. Not surprisingly, the
Development Agreement was critical to the Hokuli'a Lot Owners in making their purchase because it
represented an explicit, reliable and enforceable assurance that the project entitlements were vested and
not subject to change for an extended period. By way of example:
• Section 7 of the Development Agreement provides "Permitted uses of the Property shall be
all uses permitted under the Land Use Regulations and Approvals, including, without
limitation, the permitted uses in Chapter 205, HRS, the Zoning Code section 25-5-72, and all
supplemental uses allowed under Zoning Code sections 25-4-1 through 25-4-14."
• Section 20 of the Development Agreement provides that: "Oceanside shall have the right to
develop the Project, the Bypass Highway, and the Coastline Park in accordance with the
terms and conditions of this Agreement and the Approvals, and the parties shall have the
right to enforce the provisions of this Agreement."
There are a number of provisions in the Development Agreement, in addition to information
presented to the County in connection with its adoption and approval of the project entitlements, that
demonstrate that the Hokuli'a Lot Owners were express and intended third party beneficiaries of the
Development Agreement, were of the class of persons that were to be specifically benefited by the
Development Agreement, and were of the class of persons to whom the promises made by the County in
the Development Agreement were directed.
As a purchasers of Hokuli'a Tots, the existence of the Development Agreerent was of great
comfort because it would ensure that the project could be developed in the manner planned, including
[he construction of project infrash'ucture, such as sewer connections, water service, electricity,
telephone, and cable for the property.
vr~.~~s~~o~
633 West Fifth Street, 54"'Floor, Los Angeles, California 90071-2005 Telephone: 213. 2d1. 0J00 Facsimile: 213. 241. 0990
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January 3, 2005
Page 3
In reasonable reliance on the project entitlements and the Development Agreement, and
consistent with their desire to become a part of the Kona community, the Hokuli'a Lot Owners
purchased their lots with the intention of building upon them.
The land use changes for the Hokuli'a property embodied in Draft 1 of the proposed General
Plan would violate the Development Agreement, designed to benefit the Hokuli'a Lot Owners. In
furtherance of the County's promise that "Oceanside shall have the right to develop the Project," Section
21 of the Development Agreement provides in pertinent part:
Anr subsequent change in any applicable law adopted by the COUNTY ....which alters
or amends the Land Use Regulations,` including with limitation, any moratorium, shall
be void as to the Property.
Designating lands in Hokuli'a as "important Agricultural Land" constitutes a change in the Land Use
Regulations and any action that seeks to impose such a change constitutes an actionable breach of the
Development Agreement.
Equally important, there are other significant long term impacts that might well follow from the
County's proposed new land use designation. [f the Crial court's decision enjoining the construction of
homes at Hokuli'a is overturned on appeal, the new designation would create a substantial new litigation
risk that the issuance of building permits for individual homes or future subdivision approvals might be
challenged based upon an assertion that the intended use of the IoC or of the area to be subdivided does
not satisfy the new policy embodied in the Important Agricultural Land designation.
1f the trial court order is affirmed on appeal, other problems may well surface. In order to
proceed with the development of Hokuli'a, the trial court's order requires Oceanside to process an
application before the State of Hawaii's Land Use Commission ("LUC") to move the Hokuli'a lands into
the state land use urban district. Hawaii Comity's proposed designation of Hokuli'a lands as "Important
Agricultural Land" would materially affect Oceanside's ability to obtain LUC approval because it would
provide a basis for a determination that the current development plan is inconsistent with the County's
general plan.
In October of 2003, the Third Circuit Court enjoined the issuance of any additional building
permits to Hokuli'a Lot Owners. As a result, the property rights of the Hokuli'a Lot Owners have been
severely impacted by a judicial decision rendered in an action where they were never parties and had no
opportunity to he heard. The Hokuli'a Lot Owners have been denied procedural due process and the
judge's action constitutes a govenunental taking without compensation. Adoption of Draft 1 in its
-1"he Development Agreement defines "Land Use Regulations" in Sec[ion 2. v. which states:
"Land Use Regulations" shall mean any and all State and County laws, ordinances, resolutions, rules and
policies governing the permitted uses of the Property, including without limitation, uses density, design,
height size and building specifications of proposed buildings; construction standards and specifications
for roads and utilities, roadway improvements; affordable housing; community benefit assessments; water
utilization and all exaction requirements applicable to the development of the property; made applicable
and m force as of the date of this Ageement.
Ytll<OI$-0pJl
633 West Fifth Street, 54`" Ploor, Los Angeles, California 90071-2005 Telephone: 213. 241. 0900 Facsimile: 213. 241. 0990
www.bknlawyers.com
January 3, 2005
Page 4
current form would only exacerbate the hamts suffered by these individuals and make more difficult any
opportunity to pursue an application before the LUC.
The Hokuli'a Lot Owners have remained remarkably patient in an effort to permit the courts to
address and remedy the harm that they have suffered. A significant factor in their decision to show such
restraint has been the fact that the County has also been defending their rights and asking the Hawaii
Supreme Court to restore them promptly. At this stage, we think it is emcial that the County not take
action which may undermine the rights of the Hokuli'a Lot Owners. Adoption of Draft L of the General
Plan as it relates to Hokuli'a would violate general rules of fairness, it would violate the Development
Agreement and it would send a message to the Hokuli'a Lot Owners that the County is no longer doing
all it reasonably can to protect, and help achieve the restoration, of the rights heretofore granted to them
by the County and others.
We respectfully urge the Planning Committee to amend Draft 1 to eliminate the new land
use designation for Hokuli'a. I remain,
Very truly yours,
ROBERT C. BAKER
RCB/km
Enclosure
cc: John DeFries
eNl-a0J5-OWI
633 West Fifth Street, SA~"Floor, Los Angeles, California 90071-2005 "Telephone: 213. 241. 0900 Facsimile: 2l_l. 24L 0990
January 3, 2005
Page 5
EXHIBIT "1"
1. Bill & Jennifer Adams (William W. Adams, ATF)
2. Laurance & Suzanne Armour (Mali'e Investment Partners, LLC, Laurance H.
Armour, 111, Manager
3. Brian & Holly Baker (Brian J. Brilcer, Trustee)
4. William & Virginia Batiste (W. & V. Babtiste Tmst dated 1/23/01 -
William P. Babtiste, Virginia F. Babtiste)
5. G."t. & Libby Blankenship (G.T. Blankenship, Trustee;
Elizabeth Warren Blarilcenship, 'Crustee)
6. Don & Leslie Budinger (Donald V. Budinger)
7. Fred & Lori Charley (Frederick R. Charley)
8. Putman & Lisa Clark (Clark Realty Corp as to lots 60 & 100 -
Putman D. Clark as to Lot 246)
9. Dennis & Rosemarie Conklin (Conklin Family, L.P. -Lots 41 & 42)
10. Brian & Mary Cook (Puaa Development LLC)
1 l . Dennis & Honey Cook (De~mis K. Cook)
] 2. .lohn & Mary Cooper (John & Mary Cooper)
13. Dennis Crowley (Kona Manana LLC)
14. Alan & Erin Dickler (Aloha Aina, LLC by: Westpro Development, Inc.)
I5. George & Alice Doerller (George Doerfler)
16. Edward Dong, M.D. (Dr. Edward Dong)
17. Robert &i Sharon Edwards (Eris, LLC, Robert P. F,dwards)
18. Terry & Carol Eger (F. 'Terry & Carol Eger Trust -Lot 119)
19. Stephen & Kim Ewing (Stephen Ewing & Mary Kim Ewing)
20. Stan & Cindy Freimuth (Stanley G. Freimuth, Cynthia S. Freimuth)
2 L Patrick & Leslie Fujieki (Paul Mitchell Trust -Patrick T. Fujieki, Trustee
Paul Mitchell Trust)
22. Tokuo &Masako Fujita (Tokuo Fujita &Masako Fujita)
23. Mark Geist & Maureen Prisby
24. Dean & Patricia Gilpin (Dean R. Gilpin)
25. James & Karen Gremp (James L Gremp)
26. Irv & Sukey Grousbeck(H.Irving Grousbeck)
27. Larry & Jackie Gutsch (Gutsch Family Partners)
28. Robret Hackney, Jr. & Shauna Holiman (Hackahokulia, LLC Robert Hackney, Jr.
Member on behalf of Hackahokulia, LLC; Sharma Holiman, Member on behalf of Hackahokulia,
LLC)
29. Philip & Donna Harris (Phillip Harris, III & Donna L. Harris)
30. James & Carol Hebets (James Brian Hebets)
31. Dc Tony & Jem~ifer Hedley (Anthony K. Hedley)
32. Jamie & Susan Henwood (Jamie Ilenwood)
33. Ron & Carole Hogg (Ronald .I. Hogg, M.D.)
34. George &Dinah Hutchinson (Dinah Hutchinson)
35. Hale & Sally [resin (Hale S. Irwin)
36. David &Tracie Jansen (Dave &Tracie ,lansen -Lot 96 - HKH96 I,I,C Member)
asi-fms_aaoi
633 West Fifth Street, 54 Floor, Los Angeles, California 90071-2005 't'elephone: 2G. 2A1. 0900 Facsimile: 213. 24I. 0990
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January 3, 2005
Page 6
37. Jim & Jeri Jensen (C. James Jensen)
38. [an & Maggie Joye (Margaret Joye)
39. Keith & Nickie Katcher (Keith Katcher)
40. Rob & Barbara Kildow (Robert & Barbara Kildow -Lot 86)
41. Donnally King (Donnally King)
42. Richard & Joan Komen (Richard Komen & Joan Komen -Lot 245)
43. .1ohn & Kathleen Lopez (Kathleen Lopez, as Trustee of the Kathleen M. Lopez.
Trust UTAD 1/3/02)
44. Norma Maddy (Norma Foster Maddy)
45. George & Sharon Marshall (George D. Marshall & Sharon C. Marshall)
46. Andrew Meislin (Andrew Meislin
47. Dr. Stuart Mendel & Dr. Jennie Freiman (Stuart Mendel & Jennie Freiman)
48. Kevin & Patricia Moore (Kevin D. Moore)
49. Ellison C. Morgan (2030 Investors, LLC) (Portland)
50. Angelo & Phyllis Mozilo (Angelo J. Mozilo Trustee Mozilo Living Tnrst dated
5/12/88)
51. Ron Nelson & Bia Wahl (Ronald Nelson)
52. Jeff & Carolyn Newton (Jeffrey & Carolyn Newton)
53. Sally Nordstrom (Sally A. Nordstrom)
54. Bill & Pat O'Grady (William F. O'Grady and Patrice M. O'Grady)
55. Ed & Barbara O'Sullivan (Ed O'Sullivan)
56. Thomas & Shawna Pace (Cardinal [nveshnent Company, Inc. -
Thomas W. Pace, President)
57. J.R. & Lisa Parrish (.fames R. Parish)
58. Dr. Tom & Quida Pitts (Thomas R. Pitts)
59. Bil] & Linda Pope (AZ Sun Holdings, Inc., an Arizona Corporation;
Stephen E. Renneckar, V.P.)
60. Peter & Waltrand Riepenhausen (Waltrand & Peter Riepenhausen)
61. Reynold & Kirsten Rimoldi (Hirsten H. Rimoldi)
62. Rene & Theresa Romero (Rene & Therese Romero)
63. Gary & Laurel Ross (Gary D. Ross - I,ot 62 &
Greensprings Denver, LLC -Lot 109)
64. Richard & Joan Schleicher (Richard Schleicher)
65. Kim Scoggins (Patricia D.Rusnak & Kim F.Scoggins)
66. Charles & 'Cricia Shoemaker (Charles C Shoemaker)
67. James & Carol Simpson (James Simpson & Carol Simpson)
68. Duane & Mary Sparks (Duane D. Sparks)
69. Stevens, Richard (Westpro Development, hie.)
70 Rich & Leslie Tincher (Richard Tincher)
71. Doug Troxel (Douglas D. Troxel)
72. Tom & Rachel Tucker (Thomas A. Tucker)
73. Chris & Patti Webster (Christopher R. Webster & Patricia G. Webster, Husband
& Wife -Lot 257)
74. Louis ~ Daryl Weil (Louis A. Weil II)
75. Richard & Toni White (Richard White)
9AI-0Oi5~W0~
633 West Fifth Street, 54C° Floor, Los Angeles, California 90071-2005 Telephone: 2L3. 241. 0900 Facsimile: 213. 241. 0990
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January 3, 2005
Page 7
76. Christopher & Kristine Williams (Christopher & Christine Williams)
77. Don & Anne Wood, Jr. (Donald R. Wood, Jr.)
78. Steven & Deborah Zavodnick (Steven D. & Deborah A. Zavodnick)
79. Donald & Barbara Zepp (Donald C. Zepp, Trustee)
80. Akira Kajikawa (Akira Kajikawa)
81. Hide & Judy Tanigami (Hide & Judy Tanigami -Lot 82)
82. Barrie & Joan Parker (Uluwehi Properties, LLC)
83. Takao Horikoshi (Takao Horikoshi)
84. Yoshiko Mizumaki (Yoshiko Mizumaki)
85. Ryutaro Fukamachi (Ryutaro Fukamachi)
86. Mark Mowat (T Group Capital, LLC (owners of lots 13, 51, 60, 196, 198, ] 99,
202, 206, 207, & 235 )
87. George Berkey (Hokulia Investors, LLC)
88. Roger & Cindy Buckles (Roger Buckles)
89. George & Libby Peper (George Peper)
90. Mark & Karen DoerIlein (Mark & Karen Doerflein)
91. Jack Dempsey (Jack A. Dempsey -Lot 102; Boxer I Ttust, Jack A. Dempsey,
Trustee - Lot l 1 I)
92. Mark & Susan Davis (Trust)
93. Douglas & Susan Rhymes
94. Richard & Janet Goodmanson
95. Jonathan & Carol Salewski
96. Richard Belas and Judith Soltz
981~OS OOGI
633 West Fifih Sheet 54`" Flnor, Los Angeles, California 9UW 1-2005 'Celephone: 213. 241. 0900 Facsimile: 213. 241. 0990
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