HomeMy WebLinkAboutCOM 0092.018 2004-2006 Claudia J. Rohr
369 Nene St.
Hilo, Hawaii 96720
res.(808) 934-8040, ce11938-5446
home fax: 935-0940
February 16, 2005
Re: REZ ordinance 356 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 and to vote no to this Bill..
So, now I want to talk about some items that need review to properly proceed:
It is misrepresentation to chazacterize this Settlement Agreement as a compromise
agreement for the dispute in the Boazd of Appeals. There is not sufficient nexus between
what was noticed at the Boazd of Appeals, what was discussed and azgued, and the
resultant Settlement Agreement.
The Settlement Agreement is cleazly 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 heazing 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.
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 aze open to the public
and the best beach is neazby 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
Comm. No. q L• Ifs.
Ref. To: QreseaNd(M~wn4)
Ref. i)tyt~ FFS 1 6 205_
developer's own arguments at the Board of Appeals and is in non conformance with the
General Plan policies and LUPAG Map land use elements. (see attached documents).
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 azea 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 aggued 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 under the law and due
process and reject Bill 356. 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 general pazk 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 azea 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, chapter 30, and the General Plan. 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 p~~blic Basemen wi h a continuou co nection to a
public road. 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 yeaz
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 yeazs 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 not approve more entitlements until all issues of public access are 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.
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