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HomeMy WebLinkAboutCOM 0549.000 2004-2006 JMSV^os y,~ O ~dd~. IDexie ICaetsnn ;harry Kins . Mayor' ; • hlanggfng Direc[or fir,, Peter L. Hendricks Sri of~a+'~ Dep~~ty Munagng />vectar COUNTY OF HAWAII 25 Anpuni S[reet, Room 215 • Hilq Hawaii 96720-4252 • (808) 961-8211 Fax (808) 961-6553 KONA- 75-x706 Kuakmi Highway, Suite ]03 Kailua-Kona, Hawai'~ 96740 (808) X29-SZ26 • Fax (808) 32GS663 November 4, 2005 Honorable Stacy Higa, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, III 96720 Dear Chairman Higa and Members: State Land Use Boundary Amendment Application (SLU OS-003) Request: Agricultural to Rural Change of "Lone Application (RE7. OS-011) Request: A-Sato RA-2a Applicant: Martin I?. Smith Tax Map Key: 6-2-11:30 Change of Zone Application (REZ OS-008) Applicant: Errol & Andrea Yim Request: A-20a to A-l0a Tax Map Key: 7-3-26:14 ,Change of Zone Application (REZ OS-O] 4) Applicant: Moani Heights at the Uplands at Mauna Kea Community Association Request: RM-15 to RS-15 Tax Map Key: 6-2-16:1-19 As required by Chapter 4, Sec. 6-4.3(C), Hawaii County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regarding the above-referenced requests. Sincerely, f ^IarryT f Mayor enclosures _ cc: Planning Department Q ~ Q ~y Comm. No. p~f.~ ~ 1 ~ ~ Fla~a,~i'i CoimiV is an lyual Opportunity Provider and L:mplover REf• T07 Ref. Jate NOV 5 tv or p~_ ~C ..N,w'+ County of Hawaii PLANNING COMMISSION Aupuni ('enter • 101 Pauahi Slree[, Sui[e 3 • Hilo, Hawaf`i 96720 Phone (808)961-8288 • Fax (808)9A1-8742 November 4, 2005 Stacy Higa, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Higa and Council Members: Change of Zone Application (REZ OS-014) Applicant: Moani Heights at the Uplands at Mauna Kea Community Association Request: RM-15 to RS-15 Tax Map Key: U-2-16: L-19 The Planning Commission, after a duly held public hearing on October 21, 2005, voted to recommend for your approval the proposed legislative bill to change the district classification from a Multiple Family Residential - 15,000 square foot (RM-15) district to a Single Family Residential 15,000 square foot (RS-15) district for approximately 13.028 acres of land. The area consists of several lots within the Uplands of Mauna Kea Subdivision located mauka of the Queen Kaahumanu Highway (Highway 19) and the Hapuna Beach Prince Hotel and Mauna Kea Beach Hotel complexes, Ouli, South Kohala, Hawaii. The Commission concurs with the following Planning Director's reasons for recommending favorable consideration of the change of zone: Hawaii County is an Equal Opportunity Provider and Employer Stacy Higa, Chairman and Members of the County Council Page 2 The applicant requests a Change of Zone from Multiple-Family Residential (RM- 15) to Single-Family Residential (RS-15). The total acreage of the 19 lots is approximately 13.028 acres and includes seventeen (17) fully-developed lots, one (1) open space lot (parcel 18), and one (1) roadway lot (parcel 19). The objective of the rezoning is to more accurately reflect the actual use of the lots within the subdivision. All the existing structures in the subdivision are single-family dwellings, and the CC&R's recorded on September 9, 1999 as Document Nos. 99-145646 and 99-145647 states that all lots (other than open space, service or roadway lots) "shall be used only for single family residential purposes and accessory uses. No single family residential lot shall be improved except with a residence structure or complex designed to accommodate no more than one single family and its servants and occasional guests, plus such other improvements and structures as are necessary or customarily incident to a single family structure." The Uplands at Mauna Kea Subdivision was approved under Subdivision No. 7163 on August 19, 1999. The project area is located approximately 1,000 feet mauka of the Queen Kaahumanu Highway. Of the 19 properties which are the subject of this application, single-family dwellings have been constructed on 17 lots (parcels ]-17). Parcel 18 is reserved for open space, and Parcel 19 is a roadway lot. Lots in the subdivision (exclusive of roadway lots and the open reserve lot) range in size from 17,497 to 44,985 square feet. In order to consider an area for any type of zoning designation, the applicable goals, policies and standards of the General Plan must be adequately addressed. It is only through such a comprehensive policy analysis approach that evaluations and decisions can he made to better time and stage developments to achieve growth determined by the General Plan and related planning documents. The implications of these evaluations and decisions must be also considered as they may have an impact on similar areas in the County. The proposed change of zone request from the Multiple-Family Residential (RM- 15) to aSingle-Family Residential (RS-IS) zoned district will conform to, among others, the goals, policies and standards of Land Use, Economic and Housing Elements of the General Plan. The change of zone would complement the existing single family residential uses in the area. The project area abuts the 1-Iapuna Golf Course, which is zoned Open. The properties are surrounded by single-family and multiple-family residences. This request would complement a policy of the Land Use element of the General Plan which states, "allocate appropriate requested zoning in accordance with the existing or projected needs of neighborhood, community, region and County." Although the subdivision is zoned Multiple-Family Residential, only single-family dwellings are Stacy Higa, Chairman and Members of the County Council Page 3 permitted in the subdivision. Single-family dwellings have been constructed on 17 lots. The requested Single-Family Residential zoning designation would be more appropriate for the area. The Land Use Pattern Allocation Guide (LUPAG) Map component of the General Plan is a representation of the document's goals and policies to guide the coordinated growth and development of the County. It reflects a graphic depiction of the physical relationship among the various land uses. The properties are designated Medium Density Urban, which includes village and neighborhood commercial and single family and multiple family residential and related functions (multiple family residential - up to 35 units per acre). The properties are located within an area adequately served with essential services and facilities. Access to the properties is from Amaui Road, a privately owned and maintained roadway with a 60-foot wide right-of--way with 25-foot asphalt paving and grass swales. County water is available to the properties. The subdivision is serviced by a private sewer system meeting the standards and requirements of the Department of Health. Electric and telephone services are available to the project area. The closest police substation and fire station is located five miles south of the site at Mauna Lani Resort. Medical services are available at the North Hawaii Community Hospital in Waimea or the Kona Community Hospital in Kealakekua. The request is not contrary to Chapter 205A, Hawaii Revised Statutes, relating to Coastal Zone Management Area. The properties are not located within the Special Management Area and are not oceanfront properties. Thus, no shoreline processes will be affected by the proposed action. According to the applicant, no valued cultural, historical or natural resources exist on the property and there is no evidence of any traditional and customary Native Hawaiian rights being practiced on the site; thus, the proposed action will not affect traditional Hawaiian rights. Thus, it is not anticipated that the proposed request will have any adverse impact on cultural or historical resources in the area. Stacy Higa, Chairman and Members of the County Council Page 4 The Plood Insurance Rate Maps (FIRM) indicate that the area is located in Zone "X," areas outside the 500-year flood plain. There are no significant drainage ways that adversely affects the project site. The entire site has been grubbed and graded as part of the Uplands at Mauna Kea Subdivision. No formal archaeological study was submitted. According to the applicant, several archaeological studies were conducted of the project site. As a result of all previous permits and approvals, mitigation measures have been implemented. The proposed action will not result in any additional development of this fully developed and landscaped subdivision. Given the subdivision's urban setting, the presence of any known rare, threatened, or endangered species or endangered floral and fauna species is remote. The subdivision is not used for access to the mountains or shoreline and no access to these areas will be impacted by the proposed action. In view of the recent Hawaii State Supreme Court's "PASH" and "Ka Pa'akai O Ka'Aina"decisions, the issue relative to native Hawaiian gathering and fishing rights must be addressed in terms of the cultural, historical, and natural resources and the associated traditional and customary practices of the site: • Investigation of valued resources: No formal archaeological, cultural or botanical survey was included with the request. • The valued cultural, historical, and natural resources found in the rezoning area: The project area is fully developed with single family residences. The applicant has stated that as a result of previous permits and approvals, mitigation measures have been implemented. The proposed action will not result in any additional development of this fully developed and landscaped subdivision. Given the subdivision's urban setting, the presence of any known rare, threatened, or endangered species or endangered floral and fauna species is remote. • Possible adverse effect or impairment of valued resources: Native plants maybe destroyed by construction or ground alteration. According to the applicant, there are no endangered species of flora on the properties. • Feasible actions toprotect native Hawaiian rights: According to the applicant, no gathering is taking place on the site. Thus, to the extent to which traditional and customary native Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian rights; therefore, no action is necessary to protect these rights. Stacy Higa, Chairn~an and Members of the County Council Page 5 Based on the above findings, this request to reclassify the properties from a Multiple-Family Residential (RM-15) to aSingle-Family Residential (RS-15) zoned district would result in an appropriate land use pattern and further benefit the general public. For your favorable consideration, an amendment to Section 25-8-12 (Kawaihae-Puako Zone Map), of the County Zoning Code is transmitted. We are enclosing copies of the staff Background and Planning Director's Recommendation for your information. Sincerely, Cl~' Fred Galdones, Chairman Planning Commission Lmoaniheights02pc Enclosures ec: Mr. Roger Rule Mr. Gregory R. Mooers Department of Public Works Department of Water Supply Planning Department -Kona Department of Land & Natural Resources-HPD1Kona Rodney Haraga, Director/DOT-Highways, Honolulu BMoaniHeigM1tsREZ.doo-9/13/05 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND REPORT MOANI HEIGHTS COMMUNITY ASSOCIATION at the UPLANDS AT MAUNA KEA CHANGE OF ZONE APPLICATION (REZ OS-0141 The MOANI HEIGHTS COMMUNITY ASSOCIATION at the UPLANDS AT MAUNA KEA has submitted an application for a Change of Zone from Multiple-Family Residential 15,000 square feet (RM-1 S) to Single-Family Residential 15,000 square feet (RS-1 S) for approximately 13.028 acres of land at the Uplands at Mauna Kea, Otili, South Kohala, Hawaii, TMK: 6-2-16: l to 19. BACKGROUND INFORMATION 1. Request: Change of lone from Multiple-Family Residential (RM-15) to Single-Family Residential (RS-15). The total acreage of the 191ots is approximately 13.028 acres and includes seventeen (17) fully-developed lots, one (1) open space lot (parcel 18), and one (1) roadway lot (parcel 19). 'i"he objective of the rezoning is to more accurately reflect the actual use of the lots within the subdivision. All the existing structures in the subdivision are single-family dwellings, and the CC&R's recorded on September 9, 1999 as Document Nos. 99-145646 and 99-145647 states that all lots (other than open space, service or roadway lots) "shall be used only for single family residential purposes and accessory uses. No single family residential lot shall be improved except with a residence structure or complex designed to accommodate no more than one single family and its servants and occasional guests, plus such other improvements and structures as are necessary or customarily incident to a single family structure." (Eahibiit A -Change of Zone application) 2. Moani Heights at the Uplands at Mauna Kea Subdivision: The subdivision was approved under Subdivision No. 71.63 on August 19, 1999. 3. Chronology of the project area: • December 6, ] 994 -under Docket No. A84-574, State Land Use Commission approves the amendment from Agricultural to Urban for 82.080 acres. -t- ATTACH: Cartm. 549 Bill 177 • dune 2, 1486 -effective date of Ordinance No. 86 46 (REZ 528) which established the various zoning to allow the development of the Mauna Kea Properties, Inc.lHapuna Beach Resort project. This ordinance amended the affected area from Unplanned to RS-15 for approximately 12.476 acres. • September 6, 1995 -effective date of Ordinance No. 95 107 (REZ 804) which amended the various zoned districts to allow the development of the Hapuna Golf Course and abutting parcels. This ordinance amended the affected area from RS- 15 TO RM-15. STATE AND COUNTY PLANS 4. State Land Use Designation: Urban. 5. GP LUPA(~ Map: Medium Density Urban. 6. County Zoning: Multiple-Family Residential 15,000 square feet (RM-IS). 7. Coastal Zone Management, HRS, Chapter 205A: The entire State of Hawaii lies within the Coastal Zone Management area. 8. Special Management Area: The properties are located within the County`s Special Management Area (SMA). The SMA is a part of the Coastal Zone Management Program regulated by the County. Construction of single-family dwellings are normally exempt from the definition of "development" under Planning Commission's Rule No. 9- 4(10)(B)(i). DESCRIPTION OF PROPERTIES AND SURROUNDING AREA 9. Subject Properties: The 19 properties comprise the Uplands at Mauna Kea Subdivision located approximately 1,000 feet mauka of the Queen Kaahuiii'anu Highway. Single- family dwellings have been constructed on 171ots (parcels 1-17}. Parcel 18 is reserved for open space, and Parcel 19 is a roadway lot. Lots in the subdivision (exclusive of roadway lots and the open reserve lot) range in size from 17,447 to 44,985 square feet. 10. Surrounding Zoning and Land Uses: The project area abuts the Hapuoa Golf Course, which is zoned Open. The properties are surrounded by single-family and multiple- familyresidences. -2- 1 I. U.S.D.A. Soil Type: Kawaihae Soil Series. The soil type has a very thin surface layer of extremely stony, very fine sandy loam about two inches thick. Permeability of the upper layer is moderate, runoff is medium and the erosion hazard is moderate. 12. Land Study Bureau's Productivity Rating: Unclassified. 13. FIRM: Zone "X", areas outside of the 500-yeaz flail plain. 14. Flora/Fauna Resources: No formal flora fauna study was submitted. According to the applicant, there was a botanical survey conducted on the site, and no proposed, listed or candidate endangered or threatened plant species were observed Mourning Doves and the Pueo or Hawaiian Owl was identified in an ornithological and feral mammal field survey. 15. Archaeological/Historical Resources: No formal archaeological study was submitted. According to the applicant, several archaeological shidies were conducted of the groject site. As a result of all previous permits and approvals, mitigation measures have been implemented. The proposed action will not result in any additional development of this fully developed and landscaped subdivision. 16. Cultural Resources: According to the applicant, no traditional and customary Native Hawaiian rights are presently being conducted on the properties. 17. RecreationaWisusl Resources: No scenic or open space resources to the shoreline coastal view plane or coastal ecosystem will be negatively impacted by the proposed action. 18. Public Access: The subdivision is not used for access to the mountains or shoreline and no access to these areas will be impacted by the proposed action. PUBLIC UTILITIES AND SERVICES 19. Access: Access to the properties is from Amaui Road, a privately owned and maintained roadway with a b0-foot wide right-of--way vvith 25-foot asphalt paving and grass swales. 20. Water: County water is available to the properties. 21. Wastewater: The subdivision is serviced by a private sewer system meeting the standards and requirements of the Department of Health. 22. Essential Utilities and Services: Electricity and telephone services are available to the -3- site. The closest police substation and fire station is located five miles south of the site at Mauna Lani Resort. Medical services aze available at the North Hawaii Community Hospital in Waimea or the Kona. Community Hospital in Kealakekua AGENCIES' AND ORGANIZATIONS' COMMENTS 23. None as of this writing AGENCIES - NO COMMENTS OR OBJECTIONS 24. Police Department, Fire Department, Civil Defense Agency AGENCIES - NO RESPONSE 25. Department of Public Works, Department of Water Supply, Rest Property Tax Office, Department of Land and Natural Resources Land and Historic Preservation Division, Department of Health PUBLIC COMMENTS 26. None as of this writing. - -a- Posh Otfice Box 1 1 Ol MOOERS K:+muela, Hawaii 96743 ENTERPRISES, LLC eh<~„e ($os> $$o-14ss Fax ($08) 8$0-1456 ~llYtGl USC AZl'CYKU$lVCS gmooecs rE-hawaii.rr.ann CHANGE OF ZONE: MULTIPLE-FAMILY RESIDENTIAL, 15,000 S.F. (RM-15) TO SINGLE-FAMILY RESIDENTIAL, 15,000 S.F. (RS-15) Tax Map Key: (3) 6-2-16:001 through :021 inclusive Ouli, South Kohala, Hawaii Applicant: Roger Rule, President Moani Heights Community Association at the Uplands at Mauna Kea Submitted by: Mooers Enterprises, LLC Jnly n, coos E~E!"~IBIT -~...~.r..~ Moani Heights Ct~.,,~ge of Zone Application TABLE OF CONTENTS Page CHANGE OF ZONE APPLICATION CHANGE OF ZONE QUESTIONNAIRE TABLE OF CONTENTS i I. GENERAL INFORMATION 2 II. SUBJECT REQUEST/PROPOSED DEVELOPMENT 4 III. CONFORMANCE WI'CH STATE AND COUNTY PLANS A. State Land Use Designation 5 B. Hawaii State Plan 5 C. Applicable Goals/Policies and Objectives of the General Plan........ 6 D. General Plan Designation 7 E. County Zoning Code 8 F. Special Management Area 8 G, Chapter 205A: Coastal Zone Management Act 8 H. Mountain Access 8 IV. PHYSICAL CHARACTERISTICS & ENVIRONMENTAL SETTING Physical Characteristics and Environmental Setting 9 Historic Resources 10 Cultural Resources 10 Natural Resources ("Flora-Fauna) 10 Social-Economic Characteristics 11 Surrounding Lands 11 i Moani Heights Ct,~,~ge of Zone Application V. PUBLIC FACILITIES AND UTILITIES A. Location 11 B. Access 11 C. Water Service 11 D. Utilities 12 E. Wastewater Disposal 12 F. Police Services 12 G. Fire Services 12 H. Public Recreation 12 I. Schools 12 VI. ENVIRONMENTAL ASSESSMENT AND ANALYSIS A. Relationship between local short term uses of environment and maintenance and enhancement of long term productivity.• ................................12 B. Mitigative measures proposed to avoid, minimize, recta or reduce impact . 12 C Alternatives to the proposed development 12 D. Irreversible and irretrievable commitments of natural resources that would be involved if the proposed action !s Implemented 13 VII. PROPOSED FINDINGS 13 VIII. EXHIBITS A. Moani Heights CC&R's, Section2.3 Relating to Single Family Use B. LocationNicinity Maps C. Change of Zone Exhibit D. Site Photographs ii CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at [he Opl sat auna Kea Comm ssociation, Roger Rule, President APPLICANT'S SIGNATURE: © ATE: S .31 ~S ADDRESS: Rgj;er Rule 62-4012 Moani Pikake Place Kamuela, Hawaii 96743 LIST APPLICANT'S INTEREST [F NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.) 329-8240 (Res.) 880-1290 (Fax) 880-1291 LANDOWNER(S): See attached sheet with ownership information for all affected parcels: LANDOWNER SIGNATURE(S): Attached letters of authorization. DATE: (May be by letter) LANDOWNER(S) ADDRESS: See attached sheet with address information for all affected parcels. REQUEST: Multiple-Family Residential 15,000 (RM-15) Tn Single-Family Residential 15,000ssf(RS-IS) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) 6-2-0]6:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFEC"FED AREA(S) TO BE REZONIiD: /3 ~ alrtl AGENT: Gregory R. Mooers, President ADDRESS: Mooers Entemricee I i.(' P.O. Sox 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) sao-lass (Res.) sao-lasa _ (Fax) gao-1456 Please indicate to whom original correspondence and copies should be: sent. ORIGINAL: Gregory Mooers COPIES: Roger Rule, President (See Instructions on Reverse Side) ATTACHMENT Residential Rezoning PLANNING DEPARTMENT COONTY OF HAWAII APPLICATION FOR CHANGE OF TONE 1• If your request ;.s approved, do you intend to subdivide the subject land in accordance with the approved change of zone? Done if yes, please answer the rest of question 1 and then to question 3. a. How many acres of the requested area do you intend to subdivide? all b. Into what lot sizes? 15,000 c. if your request is approved, approximately how long after the date of approval do you expect to submit your subdivision plans to the Planning Department for preliminary approval? Done d. Do you intend to build houses on the newly created lots? Done if yes, please answer the following questions: on how many of those lots? All At what approximate price range? House not for Lots sale Total 0 Approximately how long, after approval of the subdivision, would the first house be available for occupancy? Done Sf you intend to subdivide, please submi= a preliminary schematic subdivision plan together with your change of zone application form. 2. If you have no firm plans of subdividing the subject area, do you intend to: a. Sell or lease the land to someone who has firm plans b. Se11 or lease the land to someone who has tentative plans? c. Sell or lease the land to someone who has rye plans? d. Keep .it? e. other (please state; If you intend to do either a, b, or c, please elaborate on the kind of plans the other party has. Please, also, include in your answer approximately how soon after approval of your rezoning do you expect to transfer the subject land to another party. 3. Do eoa think that your request and your further plans for the land will alleviate the local housing situation? No How? 9. Are there any buildings on the subject area? Yes If so, what kind? what do you intend to do with those buildings if your request is approved? The homes will remain as residences for the owners. -2- 5• Is the subject land currently being used for any agricultural activity? No If so, please list the kinds of products grown and on how many square feet or acres of land per product. 6• To your knowledge, has there been any flooding andlor drainage problem on the subject area? No If so, please describe the problem. Do you think that the roads leading to the subject area needs improvement? No If so, what kind? Is the road adequate for the proposed traffic volume or load? Yes 8• What sort of governmental assistance and/or improvements do you feel will be needed in the subject area when developed? yes Ids a. Schools X b. Roads X c. Sewer X d. Drainage X e. police Protection X -3- Yes ~ f. Fire Protection X g, Recreational Facilities _ X h. Public Oti;.ities X ~ other For those checked "yes," please elaborate what type or kinds of improvements andlor assistance are needed. Signature: ~ ~ti`~- Address: 62-4012 Moani Pikake Place, Kamuela, Telephone: 880-1290 Date: lone 1.2005 6337A150A -9- P.D. 5/89 MOANI HEIGHTS AT THE UPLANDS AT MAUNA KEA OWNERSHIP INFORMATION Tax Mau KeY Owners and Addresses 6-2-016:001 Robert J. and Peggy H. Lamaysou 2480 Cowper Street Palo Alto ,California 94301 6-2-016:002 Jones Family Trust Colburn and Alana Jones, Trustees 26 Encina Drive ' Carmel Valley, California 93924 6-2-016:003 Suzanne Louise Hill and Michael Philip Luce 62-4014 Moani Pikake Place Kamuela, Hawaii 96743 6-2-016:004 Roger C. Rule and Eileen F. Lacerte 62-4012 Moani Pikake Place Kamuela, Hawaii 96743 6-2-016:005 Fred Nicholas Kozy and Shirley Ann Kozy Trust 62-4008 Moani Pikake Place Kamuela, Hawaii 96743 6-2-016:006 Robertson Family Trust Thomas and Linda Robertson, Trustees PMB 480 936 B 7th Street Novato, California 94947 (5?) 6-2-016:007 Donald Edward and Nancy Taylor August 10 Masconomo Street Manchester, Massachusetts 01944 6-2-016:008 Joseph A. Lueken Trust and Janice E. Lueken Trust 514 Rolling Hills Drive, NW Bemidji, Minnesota 56601 6-2-016:009 Richard A. Hayes Trust and Celebrina M. Hayes Trust 80413utte Street Sausalito, California 94965 Tax Mao Kev Owners and Addresses 6-2-016:010 E. J. Maslowski Jr. Revocable Trust Edmund J. Maslowski Jr. Trustee 10843 E. Acoma Drive Scottsdale, Arizona 85259 6-2-016:011 Brockl Family Trust Catl and Linda Brockl, Trustees 1344 Rivergate Drive Lodi, Califomia 95240 6-2-016:012 John S. and Patricia M. Richardson 14634 Granite-Way Saratoga, California 95070 6-2-016:013 Allan S. and Pamela G. Marks 7 Brady Place Menlo Park, California 94025 6-2-016:014 Iain and Yuko Muir 40 ] Homat Sharon 4-9-3 Minami-Azbu, Minato-ku Tokyo, Japan 106-0047 6-2-016:015 Shine Family Trust William and Cathy Shine, Trustees 478 Eldridge Avenue Mill Valley, California 94941 6-2-016:016 Radin 1990 Trust David and Lois Radin, Trustees 62-3648 Moani Pikake Way Kamuela, Hawaii 96743 6-2-016:017 Vincente G. T. Oriente 9700 Winter Palace Drive Las Vegas, Nevada 89145 6-2-016:018 Moani Heights at Uplands at Mauna Kea 6-2-016:019 Community Association 6-2-016:020 c/o Roger Rule, President 6-2-016:021 62-4012 Moani Pikake Place Kamuela, Hawaii 96743 RE~EfVEO JUN092005 CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT, (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands a[ Mauna Kea Cormunity Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-s24o (Res.)sso-1290 (Fax)aso-1291 LANDOWNER(S): 6-2-016:001 Robert and Peggy Lamaysou _ LANDOWNERSIGNATURE(S)• BATE: (..S.oS (Ma e by letter) LANDOWNER(S) ADDRESS: 2480 Cowper St. alo Alto, California 94301 REQUEST: Multiple-Family Residential 15,000 (RM-1 S) TO Single-Family Residential 15,000 sf (RS-15) (Existing caning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTEB AREA(S) TO BE REZONED: 13+acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)88o-1455 (Res.)880-1454 (Fax)88o-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side} RECEIVED JUN092005 CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-a24o (Res.)aso-1290 (Fax)sso-1291 LANDOWNER(S): 6-2-016:002 Jones Fa rust, Colburn and Alana Jones, Truste s LANDOWNER SIGNATURE(S)• TiLiyfcc~ _ ZDATE: f~ (May be by letter) LANDOWNER(S) ADDRE$ : 26 Encina Drive, Carmel Valley, California 93924 REQUEST: Multiple-Family Residential 15,000 (RM-15) TO Single-Family Residential 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFEC'CED AREA(S) TO BE REZO[xIED: 13+acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) 880-1455 (Res.1880-1454 (Fax)880-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-40]2 Moani Pikake Place, Kamuela, Hl 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community'Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-8240 (Res.)sso-1290 (Fax)sso-1291 LANDOWNER(S): 6-2-016:003 Suzan}n~e Hill and Michael Luce LANDOWNER SIGNATURE(S): / Yb DATE: G o O~ (May be by letter) LANDOWNER(S) ADDRESS: 62-4014 Moani Pikake Place KamuelpHawaii 96743 REQUEST: Multiple-Family Residential 15,000 (RM-I S) 'I'O Single-Family Residential 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS:1"fooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)880-1455 (Res.)880-]454 (Fax)S8o-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See [nstructions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LI5T APPLICANT'S INTEREST [F NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-s24o (Res.)sso-1290 (Fax)sao-1291 LANDOWNER(S): 6-2-016:004 Roger Rule and Eile L e LANDOWNER SIGNATURE(S): C TE:S 3C O (May be 1 tter) LANDOWNER(S) ADDRESS: 62-4012 Moani Pikake Place Kamuelp,Ilawaii 96743 REQUEST: Multiple-Family Residential ] 5,000 (RM-15) TO Single-Family Residential 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:00] through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) aso-lass (Res.)ggo-lasa (Fax)88o-14s6 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 9674; LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-azao (Res.)sao-1290 ~aX)sso-1291 LANDOWNER(S): 6-2-016:005 Fred and Shirley Kozy LANDOWNER SIGNATURE(S):` / DATE: ~ 336J'~,-- (1 ay be by letter) LANDOWNER(S) ADDRESS: 62-4008 Moani Pikake Place KamueL,Hawaii 96743 REQUEST: Multiple-Family Residential 15,000 (RM-15} TO Single-Family Residential 15,000 sf (RS-1 S) (Existing zoning) (Proposed Zoning) TAX MAP ICEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SI`LE OF PROPERTY OR AFFEC"CED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)880-1455 (Res.)88o-1454 _ (Fax)88o-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) FtECE~VE:D JUN G ~ _J0 CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moans Heights at the Uplands a[ Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moans Pikake Place, Kamuela, HI 96743 L[ST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-s2ao (Res.)ssoaz9o (Fax)ssoa291 LANDOWNER(S): 6-2-016:006 Robertson Family "Crust, Thomas and Linda Robertson, Trustees LANDOWNER SIGNATURE(lS~,~ .A ,c'dj>/. ;~~iz~r~~ DATE: ~ . 7 ~ D S (Mai be by letter) LANDOWNER(S) ADDRESS: PMB 480, 936 B 7 Sireet, Novato, Ca{ifomia 94947 REQUEST: Multiple-Family Residential 15,000 (RM-15) TO Single-Family Residential 15,000 sf(RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moans Pikake Place and Moans Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTF,D AREA(S) TO BE REZONED: 13+acres AGENT: Gregory R Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) 880-1455 (Res.)880-1454 (Fax)880-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) REG~ivEra ~uNOy2oo5 CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT'S (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of C'ommuni Association tY LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-s2ao (Res.)sao-1290 (Fax)asoaz9l LANDOWNER(S): 6-2-016:007 Donald Edward and Nancy Taylor August LANDOWNER SIGNATURE(S) 't 9 DATE: ~~Q6 ~ (M y be y letter) LANDOWNER(S) ADDRESS: 10 Masconomo Street, Manchester MA, 019 REQUEST: Multiple-Family Residential 15,000 (RM-IS) TO Single-Family Residential 15,000 sf (RS-1 S) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) 880-1455 (Res.)88o-1454 (Fax)ggo-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested. information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT O WNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-82ao (Res.lsso-lz9o (Fax)aso-1291 LANDOWNER(S): 6-2-016:008 Joseph A. Luek"ern Tm/st and Janice E. Lueken Trust LANDOWNERSIGNATURE(S):/~~~fi(R,eQ~t ~qNp~ ~j,~f~~ DATE:(-C,-O~ (pfo-QS~ (May be by letter) LANDOWNER(S) ADDRESS: 51 Rolling Hills Drive, NW, Bemidji, Minnesota 56601 REQUEST: Multiple-Family Residential 15,000 (RM-1 S) 'f0 Single-Family Residential 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)880-1455 (Res.)880-1454 (P~)880-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) RE~f1VEG ,~UNOSZuu; CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested informartion) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-szao (Res.)sso-1290 (Fax)88o-1291 LANDOWNER(S): 6-2-016:009 Rich d A. Hayes Tru and Celebri M. Hayes Trust n LANDOWNER SIGNATURE( it1 / ATE:-Trtr~ c3Z7S ay be by letter) LANDOWNER(S) ADDRESS: 804 Butte Street, a to, Cahfarnia 94965 REQUEST: Multipl~Family Residential 15,000 (RM-15) TO Single-Family Residential 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 02] inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)sso-1455 (Res.1880-1454 (Fax)s80-1456 Please indicate to whom original correspondence and copies should he sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instmctions on Reverse Side) nct,~ivtU JUN092005 CI~NGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS; Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-8240 (Res.)880-1290 (Fax)880-1291 LANDOWNER(S):6-2-0[6:010 E.J. Masl s Jr. Re ust, Edmund J. Maslowski, Jr. Trustee LANDOWNER SIGNATURE(S): - DATE: T~.re r Lo ~S" (May be by letter) -r LANDOWNER(S) ADDRESS: 10843 E. Acoma Drive, Scottsdale, AZ 85259 REQUEST: Multiple-Family Residential 15,000 (RM-15) TO Single-Family Residential 15,000 sf(RS-l5) (Existing inning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort - - - SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: I3+acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) sso-lass (Res.)88o-1454 (Fax)ggo-lash Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) ,RECEIVEC JUN002005 CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT ~ (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-szao (Res.)88o-1290 (Fax)88o-1291 LANDOWNER(S): 6-2-016:011 Brockl Family Trust, Carl and Linda Brockl, Trustees LANDOWNER SIGNATURES • ~ ~R~"1'l-ce. DATE: O6-ca}-o5 (May e by letter) LANDOWNER(S) ADDRESS: 1 44 Rivergate Dr., Lodi, California 95240 REQUEST: Multiple-Family Residential 15,000 (RM-15) TO Single-Family Residential 15,000 sf (RS-I S) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)8R0-1455 (Res.)880-1454 (Fax)880-1456 Please indicate to whom original correspondence and copies should t>e sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule .RECEiVEu JuNOS2oo5 CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTERES"I' IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICE'sRS: PHONE:(Bus.)329-8240 (Res.)880-1290 (Fax)880-1291 LANDOWNER(S): 6-2-016:012 John S. and Patricia M. Richards LANDOWNER SIGNATURE( ~ iO ~ ~'~~DATE: !1~ (Ma letter) LANDOWNER(S) ADORES :14634 Granite Way, Saratoga, California 95070 REQUEST: Multiple-Family Residential 15,000 (RM-l5) TO Single-Family Residential 15,000 sf(RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPER"I'Y OR AFFECTED AREA(S) TO BE REZONED: 13+acres AGENT: Gregory R_ Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)880-1455 (Res.)880-1454 (Fax)880-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) REGE~'~~[; JUiV092005 CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT'S (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 N(oani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association L[ST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-8240 (Res.)880-1290 (Fax)880-1291 LANDOWNER(S): 6-2-016:013 Allan S. and Pamela G. Marks ~ LANDOWNER SIGNATURE(S) y.. ATE: y-U~~ (May be by letter) LANDOWNER(S) ADDRESS: 7 Brady Place, Menlo Park, California 94025 REQUEST: Multiple-Family Residential 15,000 (RM-15) TO Single-Family Residential 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 02] inclusive _ STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFEC"I'ED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) sso-14ss (Res.)sso-Iasa ~ax)sso-lash Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) LWU-¢VOJ-J ICI] Vb:VI V~D47 C~U715 '~'";/VI CHANGE OF ZONE APPLICATION FLCANNUI rG DEFARTM NT (Type or legibly print the requested information) APPLICANT: Moaai Heights at tba Uplands m Matala Koa Community Association APPLICANT'S SIGNATURE; DATE ~ ADDRESS: Roger Rule, Precedent of the Commuru~y nssusia~wu, ue-1012 Moani Pikake Place. Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: Pmldmu of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(]ius.).3z9-g2ao (Res.)ggo-1290 (Fax)Ygo•1291 LANDOWNER(S): G2.016:o14lain d Yuko Muu LANDOWNER SIGNATURE( ~DATE: ~ 6 aS -4MaY a by leaer) LANDOWNER(S) ADDRESS: 401 omet Sharon 4-9.3 Minsmi-Azbu, Minato-ku, Tokyo, Japan 106-0047 REQUEST: Multiple-Family Residential IS,000 SRM-15~ TQ SiaQle-Family Residential 13,000 sf(RS-IS) TAX MAP KEY: (3) - 2 016:G01 tlvoug6 021 lacluaeve (Fropoeed Zooiag) STREE7 ADDRESS GF PROPERTY: Moani Pikake Plau atsd Moani Pikake Way, Mauoa Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(5) TO BE REZONED: 1J+aeros AGENT: Gregory R. Mooch, President ADDRESS: Mooars Entorpriaaa, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Gus.) ggo-lass (Res.lgg0-1454 (Fax)gga14s6 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See [nsttvctions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT ~ (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, Hi 96743 LIST APPLdCANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-8240 (Res.)880-1290 {Fax)880-1291 LANDOWNER(S): 6-2-016:015 Shine Family Trust, William and Cathy Shine, Tmstee5 LANDOWNER SIGNATURE(S):_~',t~,,c,,~,,.i (ably /~,{y,,,~, DATE: (May be by letter) ~ LANDOWNER(S) ADDRESS: 478 F.Idridge Ave. Mill Valley, California 94941 REQUEST: Multiple-Family Residential 15,000 (RM-15) TO Single-Family Residemial 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAY MAP KEY: (3) -6-2-016:D01 through 021 inclusive STREE7~ ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: i3+acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)880-1455 (Res.)880-1454 `_(Fax)880-]456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heigh[s at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTERES"I' IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)'29-8240 (Res.)88o-1290 _ (Fax)880-1291 LANDOWNER(S): 6-2-016:016 Radin 1990 Trust, David and Lois Radin, Twstees LANDOWNER SIGNATURE(S): i Q~1,~, cQ,~,~ DATE: 3lOS (May be by letter) LANDOWNER(S) ADDRESS: 62-3648 Moani Pikake Way, Kamuela, Hawaii 96743 REQUEST: Multiple-Family Residential 15,000 (RM-15) TO Single-Family Residential 15,000 sf(RS-IS) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: l3+acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.D. Box 110] Kamuela, Hawaii 96743 TELEPHONE:(Bus.)88o-1455 (Res.)880-1454 (Fax)880-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: l ~~,g` DATE: (?r OS ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)324-s2ao (Res.)S8o-1290 (Fax)S$o-1291 LANDOWNER(S): 6-2-016:017 Vincente G.T. n+a-9rieate _ LANDOWNER SIGNATURE(S): v~ DATE: ~0~13 f o,~ (May be by letter) LANDOWNER(S) ADDRESS: 9700 Winter Palace Drive, Las Vegas, Nevada 84145 REQUEST: Multiple-Family Residential 5,000 (RM-15) TO Single-Family Residential 15,000 sf (RS-15) (Existing zoning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERTY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE:(Bus.)sso-]455 (Res.)850-1454 __(Fax)88o-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Kule (See Instructions on Reverse Side) CHANGE OF ZONE APPLICATION COUNTY OF HAWAII PLANNING DEPARTMENT (Type or legibly print the requested information) APPLICANT: Moani Heights at the Uplands at Mauna Kea Community Association APPLICANT'S SIGNATURE: DATE: ADDRESS: Roger Rule, President of the Community Association, 62-4012 Moani Pikake Place, Kamuela, HI 96743 LIST APPLICANT'S INTEREST IF NOT OWNER: President of Community Association LIST PRINCIPAL(S) INCLUDING NAMES OF MAIN OFFICERS: PHONE:(Bus.)329-8240 (Res.)880-1290 (Fax)880-1291 LANDOWNER(S): 6-2-016:018, :019, :0 , . 21 Moani Hei hts at the Uplands Community Association LANDOWNER SIGNATURE(S): C _ DATE: O (May be by letter) LANDOWNER(S) ADDRESS: c/o President Rule 62-4012 Moani Pikake Place, Kamuela, Hawaii 96743 REQUEST: Multiple-Family Residential 15,000 (RM-l5) TO Single-Family Residential 15,000 sf (RS-15) (Existing inning) (Proposed Zoning) TAX MAP KEY: (3) -6-2-016:001 through 021 inclusive STREET ADDRESS OF PROPERLY: Moani Pikake Place and Moani Pikake Way, Mauna Kea Resort SIZE OF PROPERTY OR AFFECTED AREA(S) TO BE REZONED: 13+ acres AGENT: Gregory R. Mooers, President ADDRESS: Mooers Enterprises, LLC P.O. Box 1101 Kamuela, Hawaii 96743 TELEPHONE: (Bus.) 880-1455 (Res.)880-1454 _(Fax)880-1456 Please indicate to whom original correspondence and copies should be sent. ORIGINAL: Gregory R. Mooers COPIES: Roger Rule (See Instructions on Reverse Side) Moani Heights t.nange of Zone Application BACKGROUND AND COUNTY ENVIRONMENTAL REPORT MOANI HEIGHTS AT THE UPLANDS AT MANUNA KEA CHANGE OF ZONE: MULTIPLE-FAMILY RESIDENTIAL 15,000 S.F. (RM-15) TO SINGLE-FAMILY RESIDENTIAL 15,000 S.F. (RS-15) Tax Map Key: (3) 6-2-16:001 TO :021 inclusive Ouli, Waimea, South Kohala, Hawaii Applicant: Roger Rule, Association President The applicant, Roger Rule, President of the Community Association at Moani Heights at the Uplands at Mauna Kea, is seeking a Change of Zone from Ntuttiple-Family Residential 15,000 s_f. (RM-15) to Single-Family Residential 15,000 s.f (RS-15) for a 13.028 acre parcel located on the north side of Amaui Road and east side of Queen Kaahumanu Highway at the Uplands at Mauna Kea, Ouli, South Kohala, Hawaii, Tax Map Key (3) 6-2-016:001 - :02] inclusive. This request is made to change the zoning of the subject properly to a designation that reflects how the property has been developed and what the permitted uses of the property actually are. 1 Moani Heights C.nange of Zone Application I. GENERAL INFORMATION: The subject property is a fully developed single-family residential project within the Mauna Kea Resort. Even though the property is zoned for Multiple-Family development (RM-15) the property was developed as asingle-family residential project by the developer. The Protective Covenants, Conditions and Restxictions (CC&R's) for this development stipulate that this property "...shall be used only for single family residential purposes." Please see the exhibits for a copy of these CC&R's. The owners of the subject property are as listed below: Tax Map Key Owners and Addresses 6-2-016:001 Robert J. and Peggy H. Lamaysou 2480 Cowper Street Palo Alto ,California 94301 6-2-016:002 Jones Family Trust Colburn and Alana Jones, Trustees 26 Encina Drive Carmel Valley, California 93924 6-2-016:003 Suzanne Louise Hill and Michael Philip Luce 62-4014 Moani Pikake Place Kamuela, Hawaii 96743 6-2-016:004 Roger C. Rule and Eileen F. Lacerte 62-4012 Moani Pikake Place Kamuela, Hawaii 96743 6-2-016:005 Fred Nicholas Kozy and Shirley Ann Kozy Trust 62-4008 Moani Pikake Flace Kamuela, Hawaii 96743 b-2-016:006 Robertson Family Trust Thomas and Linda Robertson, Trustees PMB 480 936 B 7th Street Novato, California 94947 (5?) 6-2-016:007 Donald Edwazd and Nancy Taylor August 10 Masconomo Street Manchester, Massachusetts 01944 2 Moani Heights C,~~ange of Zone Application 6-2-016:008 Joseph A. Lueken Trust and Janice E. Lueken Trust 514 Rolling Hills Drive, NW Bemidji, Minnesota 56601 6-2-016:009 Richard A. Hayes Trust and Celebriua M. Hayes Trust 804 Butte Street Sausalito, California 94965 6-2-016:010 E. J. Maslowski Jr. Revocable Trust Edmund J. Maslowski Jr. Trustee 10843 E. Acoma Drive Scottsdale, Arizona 85259 6-2-016:011 Brockl Family Trust Carl and Linda Brockl, Trustees 1344 Rivergate Drive Lodi. California 95240 6-2-016:012 John S. and Patricia M. Richardson 14634 Granite Way Saratoga, California 95070 6-2-016:013 Allan S. and Pamela G. Marks 7 Brady Place Menlo Park, California 94025 6-2-016:014 Iain and Yuko Muir 401 Homat Sharon 4-9-3 Minami-Azbu, Minato-ku Tokyo. Japan 106-0047 6-2-016:015 Shine Family Trust William and Cathy Shine, Trustees 478 Eldridge Avenue Mill Valley, California 94941 6-2-016:016 Radin 1990 Trust David and Lois Radin, Trustees b23648 Moani Pikake Way Kamuela, Hawaii 96743 6-2-016:017 Vincente G. T. Oriente 9700 Winter Palace Drive Las Vegas, Nevada 89145 3 Moani Heights C.rrange of Zone Application 6-2-016:018 Moani Heights at Uplands at Mauna Kea b-2-016:019 Community Association 6-2-016:020 c/o Roger Rule, President 6-2-016:021 62-4012 Moani Pikake Place Kamuela, Hawaii 46743 II. SUBJECT REOUESTIPROPOSED DEVELOPMENT: A. The applicant is proposing change the zoning fora 13.0`__>8 acre pazcel from the Multiple-Family Residential ] 5,000 s.f (RM-15} zone to the Singe-Family Residential 15,000 s.f. (RS-IS) zone to conform with the actual and permitted uses of the subject property. B. The site presently is fully developed with 17 single family homes. Please see the site photographs in the exhibits. C. The 13.028 acre parcel is a roughly triangular shaped lot located on the north side of Amaui Road. Please see the vicinity maps and rezoning exhibit in the Exhibits. D. Access to the subdivision is from Amaui Road part of a private roadway system with a 60' right-of--way with 25' asphalt paving and grass swales. 7`hese roadways are owned and maintained by the Master Association of the Uplands at Mauna Kea. Please see the site photographs in the exhibits. E. The Moani Heights subdivision's interior roadways are paved with a 50' right of way with 22' of asphalt paving. These roadways and their standards were reviewed and approved by the County at the time this development was permitted in 1995. Please see the change of zone exhibit and the site photographs. F. Underground utilities are provided to each of the 171ots from the Moani Heights Subdivision's existing infrastructure that presently serves the site. G. This proposed change of zone will result in no additional construction and will in fact confirm that no additional dwellings can be added in the future. H. There aze restrictive covenants for the subdivision that prohibit second dwellings being developed on any of the lots. 4 Moani Heights ~..ange of Zone Application III. CONFORMANCE WITH STATE AND COUNTY PLANS: A. State Land Use Designation: The State Land Use District Classification of the subject pazcel is Urban. The proposed single-family zoning is consistent with this designation. B. Hawaii State Plan: The Hawaii State Plan consists of goals, objectives, policies and priority directions to guide the future long-range development of the State. The proposed action conforms with the applicable objectives and policies discussed below. GOALS • A strong, viable economy characterized by stability, diversity, and growth that enable the fulfillment of the needs and expectations of Hawaii's present and future generations. • A desired physical environment characterized by beauty, cleanliness, quiet, stable and natural systems, and uniqueness that enhances the mental and physical well being of the people. • Physical, social and economic well being for individuals and families that nourishes a sense of community responsibility and caring of participation in family life. APPLICANT"S RESPONSE: The existing approved subdivision is already contributing to the attainment of the goals in the Hawaii State Plan, in that the subdivision has increased the availability of residential products to Hawaii residents that contribute to the stability, diversity and growth of the local and regional economies. Specifically the approved subdivision does provide housing opportunities in a planned setting where the design, operation, maintenance and provisions for environmental protection can be effectively, efficiently and economically controlled in proximity to existing and planned developments within the Mauna Kea Resort that has a 5 Moani Heights L„ange of Zone Application planned setting that encourages a sense of community responsibility and participation in family life. B. Applicable Goals. Policies and Courses of Action of the General Plan: The Hawaii County General Plan contains goals, policies and courses of actions as well as a Land Use Pattern Allocation Guide (LUPAG) Map. The project is also consistent with the Goals Policies and course of action in the General Plan. LAND USE Through the careful analysis and examination of past and present situations, the following goals, policies, and standards are set forth to physically plan the lands in the County in the best interest of the island's residents. GOALS • Designate and allocate land uses in appropriate proportions and mix and in keeping with the social, cultural, and physical environments of the County. POLICIES • Zone urban- and rural- types of uses in areas with ease of access to community services and employment centers and with adequate public utilities and facilities. • Allocate appropriate requested zoning in accordance with the existing or projected needs of neighborhood, community, region and County. • The county shall encourage the development and maintenance of communities meeting the needs of its residents in balance with the physical and social environment. STANDARDS • Zoning requests shall be reviewed with respect to General Plan designation, district goals, regional plans, State Land Use District, compatibility with adjacent zoned uses, availability of public services and utilities, access, and public need. 6 Moani Heights C ,.ange of Zone Application ROUSING GOALS • Attain safe, sanitary, and livable housing for the residents of the County of Hawaii. • The cornerstone of the County's housing programs and activities shall continue to be the encouragement and expansion of appropriate home ownership opportunities for our residents. APPLICANT'S RESPONSE: The proposed action will be the best classification for these lands and in the best interest of the island's residents. The proposed zoning is the appropriate designation as it has access to community services, employment centers and necessary utilities. The proposed action meets the needs of the South Kohala community by providing resort-residential type lots and is in balance with the physical and social environment. The proposed action is consistent with the new General Plan which designates this area as "Major Resort" and the surrounding zoning and land uses. C. General Plan Designation: The Land Use Pattern Allocation Guide (LUPAG) Map component of the General Plan is a representation of the document's goals, policies, standazds and courses of action. It is also a graphic depiction of the physical relationship between the various land uses. The LUPAG Map establishes the basic urban and non-urban form for areas within the County. The project azea is designated as a "Major Resort Area". A "Major Resort Area" is defined as aself-contained resort destination area which provides basic and support facilities for the needs of the entire development. This project is consistent with this designation. 7 Moani Heights Cr,~nge of Zone Application D. County Zoning Code: The current zoning for this parcel is Multiple-Family Residential 15,000 s.f. (RM- 15). The single-family use is allowed under this designation I This change of zone request is to change the zone of the property to Single-Family Residential 15,000 s.f (RS-] 5) to accurately define the current use and restrict fiuther development in the future. E. Special Management Area: ~ The subject property is not located within the County's Special Management Area (SMA), and as such does not require a SMA permit. F. Chapter 205A: Coastal Zone Mauagement Act: The subject property is located mauka of Queen Kaahtunanu Highway and does not inhibit access to or along the shoreline. The proposed change of zone of the subject property will not negatively impact recreational resources, visual resources to or from the shoreline, including access Co and along the shoreline or coastal ecosystems as all development has already occurred. Therefore no scenic or open space resources to the shoreline coastal view plane or coastal ecosystem will be negatively impacted by the proposed action. No additional development is proposed as a result of this action and therefore there will be no increased environmental or ecological impact from the proposed action. G. Mountain Access: The subject property is surrounded by the regional roadway system, golf course, vacant lands and resort-residential subdivisions. The subject property is not used for access to the mountains or any mountain feature, therefore no public access to these areas will be impacted by the proposed change of zone. 8 Moani Heights Gunge of Zone Application IV. PHYSICAL CHARACTERISTICS AND ENVIRONMENTAL SETTING: Physical Characteristics/Environmental Setting: A. The 13.028 acre parcel is a roughly triangular shaped lot located north of Amaui Road and east or mauka of Queen Kaahumanu Highway. Please see the location map and rezoning exhibit in the Exhibits. B. The property's Amaui Road frontage is approximately 1100 feet, and its frontage along the golf course is approximately 1100 feet. Please see the site plan in the exhibits. C. Annual rainfall for the area is less than 12 inches according to An Inventory of Basic Water Resources Data: Island of Hawaii, published by the Department of Land and Natural Resources. D. The site slopes from its southern boundary down to the northern boundary at a grade between 5 and 10%. E. The site presently is fully developed with 17 single-family dwellings and associated roadway lots. Please see the site plan and site photographs in the exhibits. F. The U. S. Geological Survey has categorized the island into nine zones of compazative hazard rates from lava flows, with Zone 1 being the highest and Zone 9, the lowest severity of hazard. The U. S. Geological Survey designates the subject property as "Lava Hazard Zone 8"; Only a few percent of this azea has been covered by lava in the past 10,000 years. G. The site is located approximately one mile from the ocean at Kaunaoa Bay. H. The State Department of Agriculture's Agricultural Lands of Imuortance to the State of Hawaii (ALISH) has no classification for this property. I. The United States Department of Agriculture Soil Survey identifies the soil type to be of the Kawaihae Soil series. The soil type has a very thin surface layer of extremely stony, very fine sandy loam about 2 inches thick. Beneath this layer is stony silt loam and loam at a depth of about 30 inches is hazd pahoehoe lava. Permeability of the upper layer soil is moderate, runoff is medium and erosion hazard is moderate. 9 Moani Heights C'hunge of Zone Application J. The Land Study Bureau's overall master productivity rating system classifies the soil as Class "E" or Very Poor for agricultural use. K. According to the Flood Insurance Rate Map (FIRM) prepared by FEMA, the property is in Zone "X", an area outside the 500-year flood plain. L. According to a botanical survey conducted on the site, no proposed, listed or candidate endangered or threatened plant species were observed. M. An ornithological and feral mammal field survey sighted Mourning Doves, an uncommon species in I~awaii and the Pueo'or Hawaiian Owl. No endangered species was identified on the project site. The water feature on the adjoining golf course attracts the indigenous migratory Pacific Golden Plover. Historic Resources: Several archaeological studies have been conducted of the project site. As a result of all previous permits and approvals, mitigation measures have been implemented. The proposed action will not result in any additional development of this fully developed and landscaped subdivision. Cultural Resources: No valued cultural, historical or natural resources exist on the subject property and no gathering is taking place. To the extent to which traditional and customary native Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian rights, therefore no action is necessary to protect those rights. Natural Resources (Flora-Fauna): According to a botanical survey conducted on the site, no proposed, listed ar candidate endangered or threatened plant species were observed. An ornithological and feral mammal field survey sighted Mourning Doves, an uncommon species in Hawaii and the Pueo or Hawaiian Owl. No endangered species was identified on the project site. The water feature on the adjoining golf course attracts the indigenous migratory Pacific Golden Plover. 10 Moani Heights C~~.,nge of Zone Application Social-Economic Characteristics: Sociai settlement pattern for the area: Waimea, along with the rest of South Kohala, has undergone significant change over the past two decades as resort development along the South Kohala coastline has grown and the base facilities for astronomy reseazch have been developed in town. This area has been a ranching community for many yeazs, the home of Parker Ranch and many smaller cattle operations. Farmers have settled in the area to grow truck crops for the Big Island and the rest of the state. There aze retirees from Oahu and the mainland who are attracted to the South Kohala resorts as well. Economic resources of the area: This resort community is the oldest resort on the Kohala Coast and is the home of many elegant single and multiple-family residences in a fully supported resort environment. The resort features a wide range of recreational resources including two golf courses and multiple tennis coiuts. Land Values: According to knowledgeable Realtors in this azea, similar single-family residences in the resort sell for $2,500,000 to $3,000,000. Surrounding Lands: Land Use/Zoning: The subject property is completely surrounded by the Uplands at Mauna Kea. This is a Major Resort Area with projects of single-family residences, multiple family residences and two hotels. V. PUBLIC FACILITIES AND UTILITIES A. The 13.028 acre pazcel is a roughly triangulaz shaped lot located north of maui Road and east or mauka of Queen Kaahumanu Highway. Please see the location map and rezoning exhibit in the Exhibits. B. Access is from Amaui Road a privately owned and maintained roadway with a 60 feet wide right-of--way with 25' asphalt paving and grass swales. C. The site is serviced by Department of Water Supply. 11 Moani Heights Gunge of Zone Application D_ Electrical, telephone and cable service are provided to the project site via the underground utility service of the Mauna Kea Resort. E. This azea is serviced by a private sewer system meeting with the standazds and requirements of the State Department of Health. F. The nearest police substation is located five miles south of the site at Mauna Lani. G. The nearest fire station is located five miles south of the site at Mauna Lani. H. The nearest public recreation facility is Hapuna Beach Park is one mile to the west of the site. Spencer Beach Park is located twd miles northwest of the site. 1. Public schools (eleven miles east) and private schools (eight miles east) provide educational services to the area. VI. ENVIRONMENTAL ASSESSMENT AND ANALYSIS A. Relationship between local short term uses of environment and maintenance and enhancement of long term productivity: In terms of the relationship between short-term use of man's environment and the maintenance and enhancement of long- term productivity, no short-term exploitation of resources that would entail negative long-term consequences has been identified for the proposed action. The proposed change of zone will have no impact and not lead to any further development. It will actually insure that no additional development can take place on the subject property. B. Mitigative measures proposed to avoid, minimize, rectify or reduce impact: The proposed change of zone will have no impact and not lead to any further development. All important cultural, historical and natural resources have been treated in accordance with agency requirements. C. Alternatives to the proposed development: One alternative to the proposed action would be to leave the parcel zoned as is. This would not allow the owners to zone the property for the permitted use detailed in the CC&R's. There would be no ordinance restriction to prevent additional density in the future should the CC&R's be changed. 12 Moani Heights G,...nge of Zone Application D. Irreversible and irretrievable commitments of natural resources that would be involved if proposed action is implemented: The proposed change of zone will have no impact and not lead to any further development or construction. The proposed action would involve the irreversible and irretrievable commitment of no quantities of natural resources. VII. PROPOSED FINDINGS: Given the conformance with all established State and County goals, policies and plans; the physical characteristics of the site and surrounding area; the present zoning and uses of the surrounding area; the minimal impact on public facilities and services; the minimal impact on the environment; the applicant requests a favorable consideration of this change of zone application. 13 Moani I+le G,.,~ ~~?~I~plieatinn LIST OF EX~TB~I"~"S , ,~~~i , Bour~DA~.~ ' ~x b 4 s r 4 t ~+~~'9 ~ ~ i ~ i °u. .I bt ky ~ ¢ f s y ~ ~4~~ . q ~ i ~ u ~ f { ~ ~ a ~ f~ r~ ~k I.,gCBt~an~1~$~ ; ~ a t , ? 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NV6 8 KAWASHIMA 999 Bishop Stnst 23rd Fba Honolulu, HewaN 96818 Teleohons (8081 544-8300 1 Pages: Tax Map Key: zr6em.z DECLARATION OF PROTECTIVE COVENANTS, CONDTI'IONS AND RESTRICTIONS FOR MOANI HEIGHTS AT THE L1Pi ANDS AT M_Ainys KEA THIS DECLARATION is made this 9th day of September, 1999, by MAUNA KEA PROPERTIES, INC., a Hawaii corporation, whose principal place of business and post office address is at 62-100 Kauna'oe Drive, Kamuela, Hawaii 96743-9706, hereinafter referred to as the "Declarant" with the consent and joinder of SOUTH KOHAE.A RESORT CORP., a Hawaii corporation, whose principal place of business and post office address is at 62-100 Kauna'oa Drive, Kamuela, Hawaii 96743-9706, hereinafter roferred to as the "Fee Owner", WITNESSETH: WI~REAS, the Fee Owner is the owner of certain real property situate at Ouli, Waimea, South Kohala, County and State of Hawaii, more particularly described in Exhibit "A" attached hereto and made a part hereof; and WHEREAS, Declarant is the developer of said real property pursuant to that certain unrecorded Development Agreement dated September 1, 1999, by and between the Declarant and Fee Owner, and 1 Watanabe. lag & Kavvasttima Attorneys at Iaw Page 1 f WHEREAS, Declarant, with the consent and joinder of the Fee Owner, intends to develop said real property in a manner which, to the extent possible, will increase the economic value, desirability and attractiveness of said real property to its owners; and WHEREAS, Fee Owner, and its Affiliates, including Declarant, as developer and/or owner of said real property and other real property in the vicinity thereof have a continuing I interest in maintaining the economic value, desirability and attractiveness of all such real ProPertY~ ' NOW, THEREFORE, Declarant hereby declares, with the consent and joinder of the Fee Owner, that all of the real property now or hereafter included in "Moani Heights at The Uplands at Mauna Kea", as hereinafter defined, shall, at all times, be owned, held, used and occupied subject to the provisions of this Declaration and to the covenants, conditions and restrictions herein contained, all of which are established and declared for the purpose of increasing the economic value, desirability and attractiveness of said real property and for the mutual benefit of the owners of any interest therein. The covenants, conditions and restrictions set forth in this Declaration shall run with said real property and shall be binding upon all persons acquiring any I right, title or interest in and to said real property, and shall inure to the benefit of the Declarant, the Association and each person who becomes an owner of any such interest therein, and each successor in interest of such owner, and shall also inure to the benefit of Fee Owner and its I Affiliates, including Declarant, as owner and/or developer of certain other benefitted properties described herein. f ARTICLE 1. DEFINITIONS I The following words when used in this Declaration, unless the context otherwise specifies or requires, shall have the following meanings: I 1.1. Affiliate. "Affiliate" means, with respect to any Person, another Person that directly or indirectly controls, is controlled by, or is under common control with such Person. 1.2 ~imendine Declaration. "Amending Declaration" means any instrument Recorded pursuant to Section 12.3 hereof, the purpose of which is to amend the terms of this Declaration. I 1.3 Annexin¢ Declaration. "Annexing Declaration" means any instrument Recorded pursuant to Section 11.3 hereof, the purpose of which is to annex additional real property to I Moani Heights at The Uplands. 1.4 hitect. "Architect" means a person licensed to practice architecture in the State of Hawaii. k 1.5 is "Articles" means the Articles of Incorporation of the Association filed I with the Director of the Department of Commerce and Consumer Affairs, pursuant to Chapter 415B of the Hawaii Revised Statutes, as amended. Watanabe. ing k ICawashima • - - • n_~ n 1.6 Association. "Association" means the Moani Heights at The Uplands at Mauna Kea Community Association, anon-profit Hawaii corporation, and its successors and assigns. 1.7 Association Protxrtv. "Association Property" means all real and personal property owned by. leased or subleased to the Association, including the Common Area. 1.8 Board. "Board" means the Board of Directors of the Association. 1.9 B - ws. "By-Laws" means the By-Laws of the Association. ~ 1.10 Common Area. "Common Area" means any Lot or other real property or any easement or other interest therein owned by, leased or subleased to the Association and all ~ improvements thereon. 1.11 cDe 1 nt. "Declarant" means Mauna Kea Properties, Inc., its successors and assigns, including such other person or persons whom said Mauna Kea Properties, Inc. may, by Recorded document, designate as having the powers and functions of Declarant, or some of such 1 powers and functions. J 1.12 Declaration. "Declaration" means this Declaration of Protective Covenants, 1 Conditions and Restrictions for Moani Heights at The Uplands at Mauna Kea, as the same may J be amended from tits to time. 1 1.13 Design Committee. "Design Committee" means the design committee established or to be established pursuant to Article VIII hereof, to review plans and specifications for the l construction of improvements within Moani Heights at The Uplands. 1 1.14 Desi~Reguiroments. "Design Requirements" means the design requirements referred to in Sections 8.11 and 8.12 hereof, which establishes certain standards and procedures for the construction of improvements within Moani Heights at The Uplands. 1.15 eeF Owner. "Fee Owned' means South Kohala Resort Corp., its successors and assigns, as the Owner of the land comprising Moani Heights at The Uplands as of the date of Recordation of this Declaration. 1.16 File P an No. 2249. "File Plan No. 2249" means the subdivision map entitled "The Uplands at Mauna Kea, Parcel B Subdivision", recorded in the Bureau of Conveyances of the State of Hawaii as File Plan No. 2249. 1.17 Guest. "Guest" means an employce (whether or not for hire), tenant, guest or invitee of an Owner, including transient guests; and any Person who is not an Owner and who has acquired any right, tide or interest in a Lot which is less than that of an Owner, including a lessee, licensee, or mortgagee, and any employce (whether or not for hire), tenant, guest or invitee of any such Person. J Watanabe, InS d: tCawaahirna anm,nvx at Lw Page 3 i i 1.18 ot. "Lot" means a portion of the real property included within Moani Heights at The Uplands, which is a legally subdivided lot. 1.19 Master Association. "Master Association" means The Uplands at Mauna Kea Community Association, anon-profit Hawaii corporation, formed pursuant to the Master Declaration, and its successors and assigns. 1.20 Master Declaration. "Master Declaration" means that certain Declaration of Protective Covenants, Conditions and Restrictions for The Uplands at Mauna Kea, dated August I ]0, 1999, Recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 99- 131337, as the same has been or may hereafter be amended. 1,21 em r. "Member" means any Person who is a member of the Association pursuant to Article III hereof. 1.22 Moani Heights at The Uplands at Mauna Kea. "Moani Heights at The Uplands at Mauna Kea" or "Moani Heights at The Uplands" means all of the land described in Exhibit "A" I attached hereto and made a part hereof, and all of the land annexed thereto pursuant to Article Xi hereof, together with all rights and interests appurtenant thereto, and all buildings and other improvements now or hereafter located thereon. 1.23 Other Uplands Procerties. "Other Uplands Properties" means all of those certain lands in The Uplands at Mauna Kea, owned by Fee Owner, Declarant or their Affiliates, as I described in Exhibit "C" attached hereto and made a part hereof. 1.24 Owner. "Owner" means any Person (including the Fee Owner) who is the Record ! I owner of a fee simple interest in any Lot and may include a Person who is the purchaser under a , Recorded agreement of sale for any Lot, as provided in the By-laws. Any Person who leases a Lot, or holds any interest in a Lot merely as security for the performance of an obligation, shall I not be deemed to be an Owner. 1.25 ers "Person" means a natural individual, corporation, partnership or any I other legal entity. 1.26 Poi "Points" are numerical figures assigned to each Lot to fix the ' I proportionate share of the total assessments levied by the Association to be borne by the Owner of that Lot, the proportionate voting power of the Owner of that Lot in the Association and the proportionate interest of the Owner of that Lot in distributions made by the Association. Points shall be assigned to Lots as follows: (a) Each Open Space Lot, each Recreational Lot and each Service Lot, and any Lot owned, leased or subleased by the Association, shall have no (uro) Points ~ assigned to it. (b) Each Single Family Residential Lot shall be assigned one (1) Point. ~ w~nnabe, Ing & g;awashima r Page 4 '"Total Points" at any time means the sum of all the Points then assigned to Lots within Moani Heights at The Uplands. 1.27 Rec "Record", "Recorded" and "Recordation" means with respect to any document, the recordation or filing of such document in the Bureau of Conveyances of the State of Hawaii and/or in the Officc of the Assistant Registrar of the Land Court of the State of Hawaii, as appropriate. 1.28 Subdivision. "Subdivision" and/or "Subdivide" means a parcel of real property legally divided or separated into lots as shown on a subdivision plan approved pursuant to the subdivision ordinances of the County of Hawaii, or the procedure of so dividing or separating real property. ARTICLE II: CLASSIFICATION OF REAL PROPERTY AND USE 2.1 possible Classifications. The real property included within Moani Heights at The Uplands shall be classified into the following use classifications: 2.1.1 Single Family Residential 2.1.2 Service 2.1.3 Open Space 2.1.4 Recreational 2.2 Desi enadon of Real Propem Use. The use classification for each Lot within Moani Heights at The Uplands shall be as set forth in Exhibit "B" attached hereto and made a part hereof. Each Annexing Declaration shall designate the use classification for each Lot thereby annexed to Moani Heights at The Uplands pursuant to Article.XI ,hereof. 2.3 Sinele Family Residential Lots. All Lots classified as Single Family Residential Lots shall be used only for single family residential purposes and accessory uses. No Single Family Residential Lot shall be improved except with a residence swcttue or complex designed to accommodate no more than one single family and its servants and occasional guests, plus such other improvements and swctures as are necessary or customarily incident to a single family swcture. 2.4 Service Lots. All Lots classified as Service Lots shall be used only for roadway, utility and related purposes and accessory uses. 2.5 Oren Space Lots. All Lots classified as Open Space Lots shall be reserved for open area conservation, landscaping, drainage, utility and signage purposes. No buildings shall be permitted to be conswcted, erected, placed or maintained on Open Space Lots, except for Watanabe. Ing 8c Kawnthima s........va at I~w Paae 5 landscape features, walls, fences, signs, and necessary drainage and utility facilities and equipment, including common mailbox facilities. 2.6 Recreational Lots. All Lots classified as Recreational Lots shall be used only for recreational purposes and accessory uses. As of the date of Recording of this Declaration, there are no Recreational Lots in Moani Heights at The Uplands. 2.7 Rieht to Conduct Sales Activities. Notwithstanding anything contained in this Declaration to the contrary, as long as any Lot is owned by the Fee Owner, the Declarant or any of their Affiliates, the Declarant and the Fce Owner shall have the tight to use such Lot or Lots for conducting extensive sales activities for Moani Heights at The Uplands and any other projects on land covered by the Master Declaration, including the use of any Lot or Lots for model units, i sales and management offices, and other sales displays and activities. ARTICLE III: THE ASSOCIATION 3.1 General Purposes and Powers. The Association has been or will be incorporated to be and constitute the Association to which reference is made in this Declaration. Upon dissolution of the Association, the assets of the Association shall be disposed of as set forth in the Articles. 3.2 vLlembershio. Each Owner, by virtue of being an Owner and for so long as the person is an Owner, shall be a Member of the Association. 3.3 Board of Directors. The affairs of the Association shall be managed by a Board of Directors which may by resolution delegate any portion of its authority to an Executive Committce composed of not fewer than three (3) directors. The number and qua]ifications of directors shall be as provided in the Articles and By-Laws of the Association. I 3.4 Votin¢ Ri¢hts. Voting by proxy shall be permitted. The-right of each Owner to vote may not be severed or separated from any Lot, and any sale, transfer or conveyance of the estate of an Owner in such Owner's Lot shall operau to transfer the appurtenant voting rights i without the requirement of any express reference thereto. Members of the Associatian shall be endued to vote as follows: 3.4.1 Class A Voting Rig,. Each Owner other than the Fee Owner and its Affiliates shall have Class A voting tights and shall have one vote for each Point assigned to such Owner's Lot. The vote for any Lot owned by two or more Persons shall be exercised in accordance with the provisions of the By-Laws. 3.4.2 Class B Voting Ri ts. Fce Owner and its Affiliates shall have Class B voting rights and shall have three votes for each Point assigned to Lots owned by Fee I Owner or its Affiliates until the earlier to occur of the following events: (a) when the total Class A votes then existing are equal to or greater than the total Class B votes thin waunatx, laa R Kaw~shum . Paae 6 existing (when given three votes for each Point assigned to a Lot owned by Fee Owner or its Affiliates); provided, however, that Class B voting rights of three votes for each Point shall be restored upon annexation of additional real property to Moani Heights at The Uplands if the Class B voting rights (when given three votes for each Point assigned to a Lot owned by Fee Owner or its Affiliates) result in a total of Class B votes greater than the total of Class A votes; or (b) when Declarant's right to annex additional real property to Moani Heights at The Uplands without the consent of the Owners expires as provided in Section 11.2 hereof. Upon the occurrence of the earlier of such events, and subject to the proviso contained in subparagraph (a) hereof, Class B voting rights shall be one vote for each Point assigned to Lots owned by the Fete Owner or its Affiliates. in all other respects there shall be no difference between Class A and Class B voting rights. 3.5 uorv .The presence of a majority of the voting power of the Association, in person or by proxy, at a meeting to consider a matter shall constitute a quorum for consideration of that matter. Except as a grcater percentage of votes is rryuirrd under a specific provision of this Declaration, or of the Articles, the By-Laws, or by law, s majority of the votes cast on the matter or, in the case of elections in which there are more than two candidates, a plurality of votes cast, shall decide the matter. 3.6 ~cles and By-Laws. The purposes and powers of the Association and the rights and obligations with respect to Owners as Members of the Association set forth in this Declaration may and shall be amplified by provisions of the Articles and the By-Laws, including any reasonable provisions with respext to corporate matters, but in the: event that any such provisions maybe, at any time, inconsistent with any provision of this Declaration, the provisions of this Declaration shall govern. 3.~ Notification of Association. Each Owner, within ten (10) days after any sale, vansfer, or convcyance of any interest in the Owner's Lot, shall notify the Association of such sale, transfer or conveyance. ARTICLE IV: CERTAIIV RIGHTS AND OBLIGATIONS OF THE ASSOCIATION _ 4.1 Association's Riehts in Lots. The Association shall have the right, upon not less than 24 hours prior written notice, to enter upon any I..ot for the purposes of enforcing this Declaration. 4.2 Maintenance of Association Pronertv. The Association shall be obligated to provide for the care, operation, management, maintenance, repair and replacement of Association Property in accordance with aFirst-Class Resort Standard. For purposes of this Section 4.2, the term "First-Class Resort Standard" means as of any given time, the standard adhered to by owners and operators of first-class destination resorts. As of the date of this Declaration, the Mauna Kea Beach Hotel, the Hapuna Beach Prince Hotel and the Maui Prince Hotel constitute first-class destination resorts within the purview of this definition. Without limiting the i ~ Watanabe. Ing & ttawashime Attmneya at Lw Page 7 1 generality of the foregoing, said obligations shall include keeping Association Property in good, clean, attractive and sanitary condition, order and repair; repairing wink and other damage caused by the elements; and making necessary or desirable alterations, additions, betterments or improvements to or on Association Property. 4.3 Manaein Agent. From and after the Assessment Date (as defined in Section 5.3 hereof), the Association shall at all times employ a responsible managing agent (the "Managing Agent") which is licensed as a real estate broker in compliance with Chapter 467 of the Hawaii Revised Statutes, as amended, and is registered as a managing agent pursuant to Section 514A-95 of the Hawaii Revised Statutes, as amended, and complies with all requirements of such registration, to manage all affairs of the Association. The initial Managing Agent far the ' Association shall be Augustine Realty, whose address is at P.O. Box 2002, Kailua-Kona, Hawaii 96745, or such other address as may be provided to the Association by tTle Managing Agent. Without limiting the generality of the foregoing, the Managing Agent shall prepare the Operating Budgets of the Association as requirrd by Article V hereof; shall determine the amount of Assessments payable by each Owner, shall collect such Assessments and pay such amounts collected to the appropriate parties in satisfaction of Association obligations; shall arrange for all 1 legal and/or accounting services rryuired by the Association; shall provide for the upkeep, l maintenance and repair of all Association Property; and shall perform such other duties from time to time assigned to it by the Association. The Association shall not terminate or replace the Managing Agent without the consent of Declarant, which consent shall not be unreasonably withheld 4.4~,abor and Services. The Association may obtain and pay for the services of any other Person to manage its affairs, or any pari thereof, to the extent it deems advisable, as well as the services of such other personnel, including independent contractors, as the Association shall determine to be necessary or desirable for the proper operation of Moani Heights at The Uplands or the Association, whether such personnel arc furnished or employed dirrctly by the Association or by any Person with whom or with which it contracts. The Association may grant such Person the exclusive right to use portions of the Association Property for the benefit of such Person's employees. ` 4.5 Association Functions. The Association may undertake or contract for any lawful activity, function or service for the benefit of its Members. The Association shall obtain from any governmental authority any licenses necessary or appropriate to carry out its functions hereunder. The activities, functions or services undertaken or contracted for by the Association shall include, without limitation, the providing of legal and accounting services necessary or L desirable in connection with the enforcement of this Declaration; the granting or conveying of easements or rights of way over, across, along or under any real property of the Association; and the enforcement of all rights granted to the Association in any ]case, sublease, easement or other instrument. L 4.6 personal Propertv of Association. The Association may acquire and hold tangible L and intangible personal property and may dispose of the same by sale or otherwise. L watuube. Ing & Kawuhima ?nn....w .t 1 iu, Paee 8 4 4.7 Real Property of Association. The Association shall accept fee simple title to, or leasehold, subleasehold or easement interest in, all real property, including, without limitation, Service Lots and Open Space Lots, from time to time conveyed to it by or at the direction of Declarant, provided that the Association need not accept any such real property if such real property is subject to a lien securing or evidencing an obligation to pay money, except for a lien for nondelinquent roal property taxes and/or assessments. 4.8 Adoption of Rules and Reteulations. In addition to the Homeowners' Rules described in Section 6.5 hereof, and subject to the use rights and restrictions contained in Article VI hereof, and all other provisions of this Declaration, the Association may make, amend, repeal and enforce reasonable and uniformly applied rules and regulations governing the use of Association Property; provided, however, that any such rules and regulations and any 1 amendments or ropes] thereof, shall not be effective unless the same shall have been approved in writing by Declarant, which approval shall not be unroasonably withheld. The Association shall furnish each Member with a written copy of each and every rule or regulation adopted pursuant J to this Section 4.8; provided, however, that failtrre to furnish said copy shall not be deemed to J invalidate said roles or regulations to any extent. 4.9 Enforcement of Rules. The Association shall have the right to enforce any of the rules and regulations of the Association and the obligations of any Member under this Declaration or any provision of the Articles or By-Laws by having the Association suspend the right of such Member to vote at meetings of the Association; provided that such voting suspension may not be imposed for a period longer than thirty (30) days per violation; provided further that if any such violation continues for a period of ten (]0) days after notice of such violation has bcen given to such Member, such continuing violation shall be deemed to be a new violation and shall be subject to the imposition of new penalties. No penalty may be imposed under this Section 4.9 until the Member. accused of any such violation has been afforded the right to have a hearing before the Board or a committee designated by the Board to conduct such hearing, or has, in writing, waived such right. Each such Member shall have the right to be heard in person, by submission of a written statement, or through a spokesperson, at any such hearing. All costs and expenses incurred by the Association in connection with any such hearing shall be charged as common expenses of the Association and assessed to sll Membcra as provided in Article V hereof. The Association may also take judicial action against any Member to enforce compliance with such rules, regulations or other obligations or to obtain damages for noncompliance, ell to the extent permitted by law. 4.10 Observance of Rules by Guests. No Guests shall violate the provisions of this Declaration or the rules and regulations adopted from time to time by the Association whether rolating to the use of Lots, the use of Association Property, or otherwise, and violations by any Member's Guests shall be treated as a violation by such Member and shall be enforceable in accordance with the provisions hereof. 4.11 Association's Rieht to Charee Fees. The Association may charge roasonable fees for the use of Association Property as the Board shall determine. i w.ua.be, Ind k x,w.a6im. A~Yi to Ia~r Paae 9 4.12 Dedication of Land. The Association may dedicate, grant easements in or transfer any part of the Common Area or other Association Property to any public agency, authority or utility. It is understood that the Service Lots are not intended to be dedicated or conveyed to the County of Hawaii; provided, that if the Association desires, at some future tune, to dedicate the Service Lots to the County of Hawaii, the Association shall be responsible for making any necessary improvements to such Service Lots that may be required by the County of Hawaii at ' the time of such dedication in order to make the Service Lots conform to the then existing standards for publicly owned roads. I 4.13 ~irant of Easements. Upon the request of Declarant, the Association shall grant or consent to the grant of easements in the Common Area or any part thereof, to Declarant or to I such other parties as Declarant shall designate, for golf cart paths, access, drainage, utilities and other purposes; provided that such grants do not unreasonably interfere with the use of such Common Area by the Owners. 4.14 Real Propertv Taxes. The Association shall pay all property taxes, assessments, rates and charges levied on or against any portion of Association Property. The Association may ' contest, by appropriate legal proceedings commenced before the same become delinquent, and conducted in good faith and with due diligence, the amount, validity or application of any taxes, assessments, rates or charges. The Association shall not be required to pay the contested amount until final determination of such contest; provided, however, that the Association shall pay all , such taxes, assessments, rates and charges, together with all interest, penalties and costs accrued , thereon or imposed in connection therewith, forthwith upon the commencement of proceedings ' to foreclose any lien which attached tp such property or any part thereof as security therefor, of within such further time as may be duly allowed by any stays of such foreclosure proceedings. I 4.15 ~orrowinp of Monev. The Association shall have the right to borrow money, upon such terms as the Board may accept, to be used by the Association in order to repair, ' replace, maintain, operate or administer any Association Property, ar make additions, alterations or improvements to any Association Property; provided that Memberi; holding seventy-five percent (7596) of the voting power of the Association other than Fee Owner vote in favor of such ' borrowing, after having received notification of the terms of such borrowing, and the purpose and use of such funds. The cost of such borrowing, including, without limitation, sU principal, interest, commitment fees and other expenses payable in connection with such borrowing shall f be an expense of the Association and included in the Association's Operating Budget for all applicable years, as provided in Section 5.2 hereof. ' 4.Iti Master Association Assessments. The Association shall collect from each Owner, as part of the Assessment payable by each Owner, all assessments payable by Owners to the Maser Association pursuant to the Master Declaration. The Association shall pay directly to the Master Association all assessments payable by Owners to the Master Association. 4.17 Irrtnlied Riehts. The Association shall have and may exercise any right or I privilege given to it expressly by this Declaration, or reasonably to be implied from the provisions of this Declaration, or given or implied by law, or which may be necessary or ' desirable to fulfill its duties, obligations, rights or privileges. wauaa6e, Ing & IGwasltima Ree 10 1 '11i ]f 4.18 Oblieation to Maintain Drainage Facilities. The Association shall, at all times, at the common expense of the Owners, maintain, repair and keep in good condition and repair, all ' drainage catch basins, channels, inlets, outlets, drain lines, drain facilities and equipment (the l "Drainage Facilities") located within any drainage easements or drain line easements designated I~ or shown on File Plan No. 2249 (the 'Drainage Eascments"). Without limiting the generality of the foregoing, the Association shall periodically inspect all Drainage Facilities, shall keep the same clear of all debris, silt or other accumulated material, and shall maintain adequate ground cover as may be necessary to prevent erosion. ,j 4.19 Obligation to Maintain Water Line Facilities and Read Wat ears. The Q Association shall, at all times, at the common expense of the Owners, maintain, repair and keep in good condition and repair, the individual water sub-meters for the Lots within Moani Heights at The Uplands, and all water lines, water transmission facilities and related improvements, . facilities and equipment located within or serving the Lots in Moani Heights at The Uplands, which connect the maser water meter for Moani Heights at The Uplands to the individual water sub-meters for the Lots (the "Master Water Facilities'. Each Owner shall, at such Owner's sole cost, maintain, repair and keep in good condition and repair, all such lines, facilities, improvements and equipment connecting the individual water sub-meter for such Owner's Lot to the improvements on the Lot. The Association shall be responsible for payment of the master ' water bill for Moani Heights at The Uplands, and shall collect from each Owner, as a Special Assessment payable by such Owner, all water charges allocable to such Owr?ex's Lot, plus the reasonable administrative expense related to collection of such Special Assessment. The water " charges allocable to each Lot shall be calculated by the Association on an equitable basis, based ~y on actual water usage for each Lot as indicated by readings of the individual water sub-meters for I the Lots, on a periodic basis. T'he Association may adopt additional rules and regulations consistent with the provisions hereof, relating to the maintenance and repair of the Master Water Facilities and the collection of water charges from the Owners. ARTICLE V: ASSESSMENTS 5.1 ~ssessmenta. Each Owner, or, in the event of multiple Owners of the same Lot, i such multiple Owners jointly and severally, shall be obligated to, and shall pay to the Association ' amounts as hereinafter provided based on each Point assigned to the Lot or Lots owned by such ~ Owner or Owners, which amounts are herein called "Assessments". Assessments shall include "Regular-', "Supplementary" and "Special" Assessments. Subject to the provisions hereof, the Board shall have the power and authority to reasonably detemtine all matters in connection with Assessments, including, without limitation, the determination of the amount of Assessments and where, when and how Assessments should be paid to the Association, and each Owner shall comply with all such determinations. 5.2 Detemtination of Budgets and Assessments. The fiscal year of the Association ' shall be the calendar year. Within sixty (GO) days prior to the commencement of each fiscal year after the Assessment Date (as defined in Section 5.3 below), the Board shall determine the total amount to be raised by Regular Assessments during such fiscal year. The amount to be raised by Wuuube, lag do Kawuhims Attorneys u Lw Ps~e 31 r r Regular Assessments for any fiscal year shall be determined in the following manner. The Board shall prepare or cause to be prepared and shall approve a budget for the fiscal year showing, in reasonable detail, the estimated operating costs and expenses which will be payable in that fiscal year to fulfill the regular operating functions and obligations of the Association in that fiscal year, including amounts necessary to cover obligations made in connection with, or contemplated under, any previously approved budgets, plus an amount sufficient to provide a reasonable carry over reserve for the next fiscal year (the "Operating Budget"). The Operating Budget shall include all assessments payable by Owners to the Master Association pursuant to the Master Declaration. The Board shall subtract from the Operating Budget the amount equal to the anticipated surplus attributable to Assessments collected but not disbursed in the fiscal year or partial fiscal year immediately preceding the fiscal year for which the Operating Budget has been prepared. In lieu of such subtraction the Association may elect to refund to the Owners said anticipated surplus. At least thirty (30) days prior to the commencement of each fiscal year, the Board shall furnish to each Owner, a copy of the Operating Budget, and a notice of the projected amounts of Regular Assessments and Supplementary Assessments, if any, payable by each Owner for such fiscal year. If the Board fails to determine or cause to be determined the total amount to be raised by Regular Assessments in any fiscal year, and/or fails to notify the Owners of the amount of such Regular Assessments for any fiscal year, then the amount of Regular Assessments shall be deemed to be the amount assessed in the previous fiscal year or partial fiscal year, until the new amount has been determined. 5.3 First Assessments. Declarant shall be responsible for paying all operating costs of the Association, including amounts payable by Owners pursuant to the Master Declaration, and the cost of the care, operation, management, maintenance and upkeep of all Association Property, until such time that Declarant notifies the Association of the date certain (not less than sixty (60) days after delivery of such notice) when the Association shall become responsible for such costs (the "Assessment Date'7. The Board shall estimate the costs and expenses to be incurred by the Association from the Assessment Date until the commencement of the next full fiscal year of the r Association. The estimate shall be assessed to each Owner as provided'in Section S.5 hereof as a Regular Assessment as of the Assessment Date, and the Association shall famish notice of such amounts to each Owner, at least thirty (30) days prior to the due date of the first Regular i Assessment. f 5.4 Supplementarv Assessments. In addition to Regular Assessments, the Association may levy Supplementary Assessments, payable over such period as the Association may determine: (a) for the purpose of defraying any expense incurred or to be incurred as provided in this Declaration, including the acquisition of Association Property; or (b) to cover the deficiency, in the event that, for whatever reason, the amount received or to be received by the Association from Regular Assessments is less than the amount determined and assessed by the Association. 5.5 ~portionment of ReQUIar and Supplemcntarv Assessments. The amount of the Regular or Supplcmentary Assessment for any fiscal period payable by the Owner for each Lot owned by such Owner shall be computed by multiplying the total amount to be raised by such Assessments by a fraction, the numerator of which shall be the number of Points assigned to such Watwbe, lo; ec Kawuhimi Atloraeyt u Lw Pale 12 r Lot, and the denominator of which shall be the Total Points assigned to all Lots within Moani Heights at The Uplands. The Association shall notify all Members of the amounts of all Regular ~ and Supplementary Assessments payable by such Members. g.( dial Assessments. In addition to Regular Assessments and Supplementary r Assessments, the Association may levy Special Assessments, payable by such Owners and over such period as the Association may determine, for expenses which are incurred or to be incurred by the Association as provided in this Declaration, either (a) for the benefit of fewer than all of the Owners, or (b) as a result of any Owner's act or failure or refusal to act or otherwise comply ! with the provisions of this Declaration or any rules and/or regulations promulgated by the ~ Association pursuant to this Declaration, or the Design Requirements. Such Special Assessments shall be payable by the Owners that aro benefitted by the expenses incurred, or that ~ caused the expenses to be incunrd, as determined by the Association. The Association shall ~ notify all such Members of the amounts of any Special Assessments payable by such Members. Without limiting the generality of the foregoing, the water charges allocable to each Lot shall be payable by the Owner of such Lot as provided in Section 4.19 hereof, and shall be assessed as a ~ Special Assessment against such Lot. 5.7 Time for Payments. The amount of any Assessment, charge or other amount payable with respect to any Owner or such Owner's Guests or Lot shall be payable quarterly, or as otherwise specified by the Board,'and, in any event, thirty (30) days after any notice of the amount due as to such Assessment, charge or other amount shall have been given by the ' Association to such Owner, and interest and late fees maybe assessed on any such amounts which are not paid when due, as provided in Section 5.8 below. 5.8 Interest and Late Fees. The Association shall have the tight to charge interest (at a rate not to exceed any maximum permitted by law), and reasonable late fees in amounts established by the Board, for any Assessments which are not paid when due. All interest and late fees assessed against any Owner shall be the separate, distinct and personal debt and obligation ~ of such Owner and, in the case of multiple Owners, such debt shall be the joint and several obligation of such multiple Owners. The Association may deduct and apply portions of _ payments of Assessments received from the Owner to unpaid interest and late fees; provided, that the Association mails a written notice to such Owner, at least seven (7) days prior to the first deduction, which states that (a) failure to pay interest and late fees will result in the deduction of „ interest and late fees from future payments of Assessments, so long as the delinquency continues to exist, and (b) interest and late fees shall be imposed against any future payments of Assessments which are less than the full amount owed due to the deduction of unpaid interest and late fees from such payment. 5.9 No Withholdin¢ of Payments of Assessments. No Owner shall withhold payment of any Assessment claimed by the Association. 5.10 Dispute by Owner. Subject to Section 5.9 hereof, an Owner may dispute the amount and/or validity of an Assessment claimed by the Association in accordance with the provisions set forth hereinbelow: ' Watuube, lag & ICawuhitm Atoorneys u law Page 13 (a) Owner's Request for Written Statement. An Owner who disputes the amount of any Assessment may request from the Association, and the Association shall provide, a written statement indicating (i) the total amount of interest, late fees, lien filing fees, attorney's fees and costs, if any, and any other charge included in the Assessment; (ii) that the Owner may submit the dispute regarding the amount or validity of the Assessment [o mediation or arbitration, provided that the Owner has paid the Assessment in full and keeps the payment of Assessments current; and (iii) that payment in full of the Assessment does not prevent the Owner from contesting the Assessment or receiving a refund of amounts not owed. (b) Mediation and Arbitration. An Owner who pays the Association the full amount of the Assessment claimed by the Association, including all interest, late fees, F lien filing fees, attorney's fees and costs, and any other charge owed by such Owner to the f Association, may submit the dispute concerning the amount or validity of the Assessment to mediation, or the Owner may file a claim in any coon with jurisdiction in the State of Hawaii. In the event that the Owner submits the dispute to mediation and the Owner and the Association shall fail to resolve the dispute through mediation, either party may seek to resolve such dispute by arbitration as provided in Chapter 65g, Hawaii Revised Statutes, as amended; provided, that an Owner may only file for arbitration if all amounts claimed by the Association shall have been paid in full on or before the date of filing for arbitration. In the event that the Owner shall fail to keep all Assessment payments current during the arbitration proceeding, the Association may ask the arbitrator(s) to temporarily suspend the proceeding. If the Owner pays all such Assessments within thirty (30) days after the date of suspension of the arbitration proceeding, the Owner may ask the arbitrator(s) to recommence the arbitration proceeding. Jn the event that the Owner fails to pay all such Assessments or after paying all such Assessments fails to ask the C arbitrator(s) to recommence the arbitration proceeding within said thirty (30) day period, the Association may ask the arbitrator(s) to dismiss the arbitration proceeding. After the arbitration trreedng has been dismissed, all amounts claimed by the Association shall be due and payable in full, and such Owner shall not have the right: to dispute the amount or validity of the Assessment which had been the subject of the mediation or arbitration proceeding. Nothing in this Section 5.10 shall limit the rights of the Owner to the protection of all fair debt collection practices mandated under federal or state law. An Owner shall be entitled to receive a refund of any amounts paid to the Association which have been determined to be not owed by such Owner to the Association. 5.11 Lien for Assessments and Other Amounts. 5.11.1 Association's Lien for Assessments. In the event that an Owner does not pay in full any Assesstent, late fees, charges or other amounts or any installment thereof or any interest accrued thereon when due, the Owner shall be deemed to be in default and, upon Recordation of a notice of default describing the Lot owned by the defaulting Owner, the Association shall have a lien against the Owner's interest in such Lot to secure payment of any such Assessment, late fees, charges or other amounts due and waunabe. loB do ICawrs6im~ ....._w _...r n.~ t t owing to the Association with respect to the Owner or with respect to such Owner's Guests or Lot, plus interest from the date due and payable until paid in full, plus all costs y and expenses of collecting the unpaid amount, including attorney's fees. The lien may be foreclosed in the manner for foreclosure of mortgages in the State of Hawaii. The foregoing remedies shall be in addition to any other remedies provided bylaw for the enforcement of such obligation. Notwithstanding the above, the lien described herein shall be subject and subordinate to all mortgages Recorded against the Lot prior to the Recordation of the notice of default described above. ( 5.11.2 Declarant's Lien for Assessments. Notwithstanding anything contained J herein to the contrary, in the event that (a) the Association fails to comply with any of the provisions of this Declaration, or (b) any Owner fails to comply with any provision of this Declaration and the Association fails to enforce such provision within thirty (30) days after written request for such compliance and enforcement from Declarant, then in any J such event, Declarant may take such actions and expend such monies as may be reasonably necessary to enforce such provisions, and shall provide written notice to the Association and/or such Owner of such failure, and of the actions to be taken by J Declarant in connection therewith (the "Declarant's Notice'7. The Declarant's Notice shall set forth the alleged noncompliance by Owner, and the amounts expended by the Declarant as a result of such noncompliance, and all such amounts shall be deemed to be "Assessments" as provided for in this Article V, payable directly to the Declarant. The l Declarant shall have the right to charge interest and reasonable late fees in amounts established by Declarant, for any Assessments which are not paid to Declarant when due. i All interost and late fees assessed against any Owner shall be the separate, distinct and personal debt and obligation of such Owner and, in the case of multiple Owners, such debt shall be the joint and several obligation of such multiple Owners. In the event that i any Owner does not pay in full such Assessments, interest, late fees, charges or other amounts on or before the date due as stated in the Declarant's Notix, then such Owner shall be deemed to be in default and, upon Recordation of a notice of default describing the Lot owned by the defaulting Owner, the Declarant shall have a lien against such Owner's interest in such Lot to secure payment of any such Assessment, interest, late fees, charges or other amounts required to be paid to the Declarant as aforesaid, plus interest from the date due and payable until paid in full, and all costs and expenses incurred by Declarant in collecting the unpaid amount, including attorneys' fees. The lien may be foreclosed in the manner for foreclosure of mortgages in the State of Hawaii. Notwithstanding the above, the lien described herein shall be subject and subordinate to all mortgages Recorded against the Lot prior to the Recordation of the notice of default - described above. In addition to the foregoing remedies, Declarant shall have any other remedies it tray have either at law or in equity for the enforcement of any obligations hereunder in favor of or for the benefit of Declarant. Nothing in this Section 5.11 shall be deemed or construed to relieve, release, or discharge the Association or any Owner from any of their respective obligations under this Article V or any other provision of this Declaration. watasabe, >nt k ICawashita~ Attorneys ~t Iaw Pt+ae 15 5.12 Estoncel Certificate. Upon payment of a reasonable fee and upon written request of an Owner, the Association shall famish a written statement setting forth the amount of Assessments, interest, late fees, or charges, if any, due or accrued and then unpaid with respect to the Owner, the Lot owned by such Owner and such Owner's Guests, and the amount of the Assessments for the current fiscal period of the Association payable with respect to the Lot owned by such Owner, which statement (except as to the amount of subsequently dishonored checks mentioned in such statement as having been received within thirty (30) days immediately preceding the date of such statement) shall, with respect to the party to whom it is issued, be conclusive against the Association that no greater or other amounts were then due or accrued and unpaid. 5.13 Liability of Owners and Purchasers. The amount of any Assessment, interest, late fee, or other charge or amount owing to the Association or Declarant by any Owner under this Declaration shall be a joint and several obligation of such Owner and such Owner's heirs, personal reprosentatives, successors, successors in trust and assigns. Each such amount, together with inurest thereon, may be recovered by suit for a money judgment by the Association or Declarant without foreclosing or waiving any lien securing the same. 5.14 Collection From Tenant. 1n the event that any Owner at any time rents or leases such Owner's I.ot and defaults for a period of thirty (30) days or more in the payment of Assessments, interest, lau fees, charges or other amounts rrquirrd to be paid to the Association or the Declarant, the Association or Declarant, so long as such defauh continues, may demand and receive from any tenant or lessee (hereinafter in this paragraph roferred to as "tenant' occupying the Lot, or from the Owner's rental agent, if any, the rent due or becoming due from such tenant to the Owner up to an amount sufficient to pay all sums due to the Association or the Declarant from the Owner, including all interest, lau fees, attorneys' fees and costs of I enforicement, if any: and any such payment of such rent to the Association or the Declarant by the unant or such roots] agent shall be a full and sufficient discharge of such tenant or Mental agent as between such tenant or rental agent and the Owner to the extent of the amount so paid; and no such demand or acceptanx of root by the Association or Declarant from.any tenant or rental agent shall be deemed to be a consent or approval of any rental agreement or lease by the Owner or a release or discharge of any of the obligations of the Owner hereunder remaining unpaid or unperformed or an acknowledgment of surrender of any rights or duties hereunder. In the event that the Association or Declarant shall make any such demand upon the unant or rental agent, the anent or roots] agent shall not have the right to question or dispute the Association's or Declarant's right to make such demand, and shall be obligated to make such payments to the Association or Declarant as demanded by the Association or Declarant with the effect as aforesaid; provided, however, that neither the Association nor the Declarant may exercise its right to make such demand if a receiver or commissioner has been appointed to take charge of the Lot pending a mortgage foreclosuro or if a mortgagee is in possession pending a mortgage I foroclosuro. ARTICLE VI: USE RIGHTS AND RESTRICTIONS watnube, tog k Kawuhimt •e....~.~..r.... • 6.1 Owners' Rights in Association Property. Each Owner, as a Member of the ~ Association, shall have a right and easement of use and enjoyment in and to all Association Property, which right and easement shall be appurtenant to each Owner's interest in such Owner's Lot. The rights of Owners to use Association Property shall be subject to this ~ Declaration, the Articles, By-Laws, Design Requirements, Homeowners' Rules, and all other rules and regulations of the Association. ~ 6.2 Approval by Design Committee. Subject to the provisions of Section 6.4 hereof, no new improvements conswcted by an Owner, and no material alterations in existing improvements, shall be conswcted, placed or made on any Lot of any classification, except in t: accordance with plans, specifications, and other materials approved by the Design Committee, and in accordance with the applicable Design Requirements. The Design Committee shall not approve any work or improvements for a Lot or portion of a Lot which is inconsistent with the ~ provisions of this Declaration or the Master Declaration. 6.3 Maintenance. All Lots and improvements thereon shall be maintained by the Owner thereof in good and clcan condition and repair, clear of all trash, rubbish and other debris. f After the conswction of any improvements and landscaping of any Lot, such improvements and i[ landscaping shall be maintained in good and clean condition and repair in accordance with the original plans and specifications therefor, and to the extent reasonably practicable, in accordance with the First-Class Resort Standard as provided in Scction 4.2 hereof. Any improvements which are damaged or destroyed shall be repair+cd, rebuilt or restored, in accordance with the original plans and specifications therefor, or such other plans and specifications as may be approved by the Design Committee, within a reasonable period of time after such damage or destruction, as detemrined by the Design Committee. All trees, shrubbery and other plants on any Lot shall be kept at reasonable heights as conumplated by the original landscaping plans therefor, so as not to urueasonably obstruct views from other Lots. 6.4 Conswction of Improvements by Declarant. Notwithstanding any provisions to the contrary contained in Section 6.2 hereof, or elsewhere in this Declaration, any work performed on any Lot by Declarant, its representatives, agents, employee's, or contractors shall be permitted without the approval of the Design Committee. Declarant, its representatives, agents, employees or contractors may proceed with work on any such improvements without complying with the provisions of Article VIII hereof. 6.5 Homeowners' Rules. Moani Heights at The Uplands Homeowners' Rules (the "Homeowners' Rules") dated August 10, 1999, are hereby adopted as the rules and regulations of the Association which shall govern the use of all Lots within Moani Heights at The Uplands. The Homeowners' Rules aro hereby incorporated herein by reference and made a part hereof, subject to any amendments or repeal thereof as may be made by the Association, under the authority granted in Suction 4.8 hereof. No Owner and no Owner's Guests shall use or permit the use of any Lot in violation of the Homeowners' Rules. 6.6 Subdivision or Consolidation of Lots. No Lot may be consolidated with another Lot, or divided or subdivided, and no fractional portion of any Lot may be conveyed or otherwise transferred w as to be held in divided ownership, except as follows: w.tanabe. ~ a: Rawu6ime Atarney~ u Lw Paae 17 (a) Realienment of Boundaries. Adjoining Lot Owners may, with the prior approval of the Design Committee, and upon compliance with all applicable laws, ordinances, rules and regulations, consolidate and resubdivide such Lots to accomplish the relocation of the boundary line between such Lots, if such consolidation and resubdivision will not cause or result in a violation of any building or other restriction contained herein or in any such laws, ordinances, rules and regulations. In such case, no restrictions, easements or land classifications established for such Lots with respect to the former boundary line shall be changed or shifted by reason of the change of boundary line, except as approved by the Design Committee. No such consolidation and resubdivision shall affect the voting rights of the Owners of such Lots, or the obligations of such Owners to pay Assessments. (b) Consolidation of Lots. The Owner or Owners of two adjoining Lots may, with the prior approval of the Design Committee, and upon compliance with all applicable laws, ordinances, rules and regulations, consolidate such adjoining Lots into one Lot (the "Consolidated Lot"). Notwithstanding anything contained herein to the contrary, upon such consolidation, (i) the Design Committee may waive any applicable setback requirement as between the two adjoining Lots, and (ii) the Consolidated Lot shall be deemed to constitute two (2) Lots, for all purposes set forth herein, including, without limitation, the assignment of 'Points", with respect to voting rights, and the Owner's obligation to pay Assessments as provided in this Declaration and the Owner's obligation to pay assessments as provided in the Master Declaration. (c) Death of an Owner. Upon the death of an individual Owner, the deceased Owner's interest in such Owner's Lot may be transferred to such Owner's heirs, and, if more than one, such heirs may hold such Lot in fractional or divided ownership. 6.7 Water Use and Conservation-. Because of the grid climate and limitations on the supply of fresh water within the area of Moani Heights at The Uplands, all Lots within Moani Heights at The Uplands shall be subject to, and each Owner shall comply with, the following water conservation measures: ~ (a) All Lots shall be subject to the water use and conservation limitations and measures set forth in the Master Declaration; (b) No wells, fountains, ponds, reflecting pools, swimming pools, lagoons or j'~ similar water systems shall be permitted on any Lot without the Design Committee's prior written approval of plans and specifications therefor, and any water studies rrquired by the Design Committee in connection therewith (it being understood that subject to such approval, one swimming pool of reasonable size shall be permitted on each Lot); I (c) All landscaping and irrigation systems on Lots shall be designed so as to i minimize water consumption; 1 Watanabe, ing & ICewuhime ~ e,..,..,.,,... r n.... r a (d) The use of water for landscape irrigation purposes shall not exceed 1500 gallons per day for any Lot, based on monthly meter readings of total use, divided by the number of days elapsed since the previous reading; (e) All landscape irrigation systems on Lots shall require separate submeters of a type approved by the Design Committee; (f) Each Owner shall keep a written record of the landscape irrigation submeter for such Owner's Lot, on a monthly basis, and shall submit such record to the ~ Design Committee and the Declarant on or before January 15 and July 15 of each calendar year, or at such other times designated by the Design Committce; (g) The Managing Agent and the Design Committee's duly appointed representatives shall have the right to enter into or upon any and all Lots for the purpose of reading the submetera located therein at least once each month at reasonable times; (h) The Design Committee may impose other reasonable construction requirements intended to restrict water usage in connection with any approval of plans and specifications for any improvements to be constructed on any Lot; and (i) The Declarant and/or the Design Committce may at any time during the R. term hereof impose water conservation measures, including, without limitation, requiring the use of water conservation devices and practices to keep the total consumption of - water or any Lot below a reasonably specified maximtun usage per day. 6.8 No Private Golf Carts. No private golf carts, unlicensed vehicles or any similar types of motorized vehicles may be used or operated on the roadways or other areas within Moani Heights at The Uplands, except for maintenance and servix carts utilized by Fee Owner, Declarant or their Affiliates in connection with their operations or activities within Moani Heights at The Uplands or any of the Other Uplands Properties. I ARTICLE VII: EASEMENTS 7.1 Easements in Lots for Repair. Maintenance and Emereencies. The Association ~ shall have an easement for access through each Lot for making erergency repairs thereon necessary to prevent damage to Association Property or to another Lot. Nothing contained heroin shall be deemed to obligate the Association to make any such emergency repairs. 7.2 Gross Neelieence or Willful Misconduct. Any damage to any L.ot caused by the gross negligence or willful misconduct of the Association or any of its agents during any entry onto any Lot shall be repaired by and at the expense of the Association. 7.3 Floodine and Erosion. No Owner shall permit to be constructed on such Owner's Lot any improvements which will create a problem of flooding, erosion or interference with natural water flow or runoff damaging to such Owner's Lot or other Lots in Moani Heights at Watanabe, lrt~ k ICawuhim~ Anorneys at law Page 19 i The Uplands, or to the Other Uplands Properties, nor shall any Owner fail to reasonably act so as II to minimize runoff damage or interference with the natural flow of storm waters. 7.4 Development Easements. The Declarant, Fee Owner and/or their Affiliates, or a developer designated by Declarant, are or may be engaged in the development, conswction and/or sale of other projects in the areas adjacent to or in the vicinity of Moani Heights at The Uplands, and shall have (a) the right in the nature of an easement over and upon all of Moani II Heights at The Uplands to conduct such development, construction and sales activities, including the right to discharge, emit, diffuse and inflict noise, dust, lights, odor and other minor nuisances of every description arising in connection with activities incidental to such development, conswction and sales activities; and (b) the right to designate and grant to governmental agencies, utility companies or other appropriate parties, easements for drainage, water, electrical, ~i; sewer, telephone cable television, access and other utility purposes over, under, upon, across and through all of Moani Heights at The Uplands including each Lot thereof; provided that such easements do not unreasonably interfere with the use of the Lots by the Owners thereof. 7.5 Golf Course and Resort Overations. Moani Heights at The Uplands is located adjacent to the golf course currently known as the Hapuna Golf Course, and the owners and operators thereof shall have the right, in the nature of an casement, to conduct resort-related activities, including, without limitation, golf play, golf tournaments, and other resort related events on and in the vicinity of such golf course, and to subject Moani Heights su The Uplands to all nuisances, effects and consequences incidental thereto. Each Owner, by acceptance of a Lot or any other interest in Moani Heights at The Uplands (a) has acknowledged that the location of Moani Heights at The Uplands with respect to such golf course may result in nrrisanxs, u disturbances or hazards to persons and property on or within Moani Heights at The Uplands as a result of such golf course and resort operations, and has determined that the benefits to the Owner outweigh the risks associated therewith, (b) covenants and agrees to assume all risks associated with the location of Moani Heights at The Uplands and such Owner's Lot, with respect to such golf course, including without limitation, the risk of property damage, bodily injury or death arising out of or in connection with the use of golf carts, stray golf balls, or other activities incidental to such golf course and resort operations, and (c) covenants and agrees to indemnify and hold harniless the Fee Owner, the Declarant, their Affiliates, and the owners and operators of such golf course, and their respective officers, directors, employees, agents, successors and assigns, from any actions, liabilities, claims, losses, damages, costs and expenses, including attorneys' fees, arising out of any claims made by, through or under such Owner or such Owner's Lot (including, without limitation, by any of such Owner's Guests), in connection with the maintenance, operation or use of such golf course and all operations thereon. 7.6 Resort Service Area (L.aundrv) and Wastewater Treatment Plant. Moani Heights at The Uplands is located in the vicinity of the Resort Service Arcs (Laundry) and the Wastewater Treatment Plant, which are owned and operated by Affiliates of the Fee Owner to service the Mauna Kea Resort and the Hapuna Resort, and the owners and operators thereof shall have the right, in the nature of an easement, to conduct appropriate activities on and in the vicinity of such properties, and to subject Moani Heights at The Uplands to all nuisances, noises, odors, effects end consequences incidental thereto. Each Owner, by acceptance of a Lot or any ' other interest in Moani Heights at The Uplands (s) has acknowledged that the location of Moani Watwbe, ioa k K.wuhirtu Attorneys at Lw Page 20 Heights at The Uplands with respect to such properties may result in nuisances, noises, odors, disturbances or hazards to persons and property on or within Moani Heights at The Uplands, and has determined that the benefits to the Owner outweigh the risks associated therewith, (b) covenants and agrees to assume all risks associated with the location of Moani Heights at The Uplands and such Owner's Lot, with respect to such properties and operations, and (c) covenants and agrees to indemnify and hold harmless the Fee Owner, the Declarant, their Affiliates, and the owners and operators of such properties, and their respective officers, directors, employees, agents, successors and assigns, from any actions, liabilities, claims, losses, damages, costs and expenses, including attorneys' fees, arising out of any claims made by, through or under such Owner or such Owner's Lot (including, without limitation, by any of such Owner's Guests), in connection with the maintenance, operation or use of such properties and all operations thereon. 7.7 4~ccess Easements. The Declarant, Fee Owner and their Affiliates shall have a ' perpetual non-exclusive easement over and across al] roadways and Common Areas within Moani Heights at The Uplands, for access to and within the Haptma Golf Course and any of the Other Uplands Properties, for all purposes related to the operation of the Hapuna Golf Course or any of the Other Uplands Properties. 7.8 Drainage Easements. The Association shall have perpetual non-exclusive easements over, under, across, upon and through, all Drainage Easements described in Section 4.18, including the right to construct,' use, maintain, repair, replace and reconstruct the Drainage Facilities described in Section 4.18, together with a right of access over and across all individual Lots within Moani Heights at The Uplands, as reasonably necessary for the exercise of said rights; provided that such tight of access shall not unreasonably interfere with the tree of the Lots by the Owners thereof. The Declarant, Fee Owner and therr Affiliates, as owners/developers of the Other Uplands Properties, and any third-party developer designated by Declarant, shall also have perpetual non-exclusive easements over, under, across, upon and through, all Drainage Easements, including the right to use all Drainage Facilities located therein for drainage purposes; such easements to be held together with and appurtenant to the Other Uplands Properties. 7.9 Easements in Lots for Water Facilities. The Association shall have an easement over and across each Lot as may be necessary to repair and maintain the Master Water Facilities described in Section 4.19 and/or to read and otherwise inspect the water submeters and related n facilities located within each Lot. The Department of Water Supply of the County of Hawaii and/or other appropriate private or public utility companies shall have an easemem over and across the roadways, common areas and individual Lots within Moani Heights at The Uplands, as may be necessary to repair and maintain the master water meter therefor and/or to read and otherwise inspect the master water meter and all water facilities within Moani Heights at The Uplands. ARTICLE VIII: DESIGN COMMITTEE 8.1 Creation. The Moani Heights at The Uplands Design Committee (the "Design Committee") is hereby created with all of the rights, powers, privileges and duties herein set w,r„nbe, ma ~ Ka.raslwm Attorneys a La Paae 21 forth. The Design Committee shall consist of such number of members as the Declarant or the Board, whichever then has the right to appoint and remove members of the Design Committee, shall from time to time determine. 8.2 T_ er The initial Design Committee shall be appointed by Declarant for such term as determined by Declarant. Members of the Design Committee appointed by the Board shaft serve for such terms as determined by the Board. 8.3 Annointment. Declarant shall have the sole right to appoint and remove the members of the Design Committee until the twentieth (20th) anniversary of the dau of ' Recording this Declaration, or until Declarant shall assign said right to appoint and remove to the Board of Directors, whichever shall first occur. Thereafter, the Board shall have the sole right and the obligation to appoint and remove the members of the Design Committee. Declarant may, at any time and from time to time, assign such right to appoint and remove members of the Design Committee to the Board, and the Board shall accept such obligation. 8.4 Removal: Resienation. Any Design Committee member appointed by Declarant may be removed by Declarant with or without cause. Any Design Committee member appointed by the Board may be removed by the Board with or without cause. Any Design Committee member may resign by submitting a written notice to the Declarant or the Board, whichever then + has the right to appoint and remove members of the Design Committee, stating the effective dau I of such resignation, and acceptance of the resignation shall not be necessary to make the resignation effective. 8.5 pesi~ Committee Functions. Subject to the provisions of Section 6.4 hereof, the functions of the Design Committee, in addition to any functions set forth elsewhere in this Declaration, shall be to consider and approve or disapprove any plans, specifications or other materials submitted to it, as required by Section 6.2 hereof, for the erection, construction, installation, alteration, placement or mainunancc of any buildings, landscaping or other improvements within Moani Heights at The Uplands, or for the aluration or remodeling of, or construction of additions to, any then existing structures within Moani Heights at The Uplands; to require that any such building, landscaping or other improvements to be constructed within Moani Heights at The Uplands comply with this Declaration and applicable Design Requirements; to adopt and amend Design Requirements as provided in this Article VIII; to + make all determinations regarding compliance with the provisions of this Article VIII and the Design Requirements; and to perform such other duties as may, from time to tune, be delegated to it by the Declarant or the Board. The Design Committee shall meet from time to time as necessary to adequately perform its duties hereunder, and the Design Co»unittec's action on matters shall be by an affirmative you of the majority you of the Committee. Any action required to be taken by the Design Committee may be taken without a meeting if a consent in I writing, setting forth the action so taken or to be taken, shall be signed by all of the Design j Committee members. The Design Committee shall keep and maintain a t~ecord of all actions taken by it. 8.6 Review of Plans. Subject to the provisions of Section 6.4 hereof, the Design Committee shall approve or disapprove said plans, specifications and other maurials in wawube, Ing a: ttawuhim~ accordance with the procedures set forth in the Design Requirements; provided, however, that the Design Committee's approval or disapproval of any such plans, specifications and other materials shall be given in writing within sixty (60) days after its receipt of all of the required plans, specification and other materials. If the Design Committee shall disapprove of any such . plans, specifications, or other materials, it shall within said sixty (60) day period, send notice of its disapproval to the Person or Persons applying for said approval at the address set forth in the application therefor. If notice of disapproval is not so sent within said sixty (60) day period, and the Design Committee thereafter fails to respond within thirty (30) days after the Person applying for approval delivers written notice to the Design Cor~mittce that it has failed to respond within the required time, then the plans, specifications and of er materials submitted shall be deemed to have been approved by the Design Committee. 8.7 Requirements for Plans. Subject to the provisions of Section 6.4 hereof, all plans and specifications for any new building or other improvement within Moani Heights at The Uplands shall be prepared by an Architect, shall be submitted to the Design Committee for its approval, and shall include, without limitation, floor, elevation, plot and grading plans; ' specifications for the principal exterior materials; description of color schemes; provisions to be made for automobile parking; outside lighting plans, if any; and a detailed description of the location, character and method of utilization of all utilities. Tn addition, such plans and ' specifications shall include landscaping plans prepared by a landscape architect licensed to practice landscape architecture in the State of Hawaii. The plans and specifications for any alteration, modification or addition to the exterior of any existing building or improvement by an Owner (other than the Fee Owner, the Declarant, or any of their Affiliates) including, without limitation, alurations such as exterior painting (except for repainting with the same color paint), and changes in or addition of fencing, must contain the same information as required for any new building or other improvements, except that plans for nonswctural alterations, modifications or additions need not be prepared by an Architect. After approval of any plans, specifications and other materials, the Design Committee shall, upon written request from the Owner, provide said Owner with s statement of approval in a form appropriate for Recordation. 8.8 Standards of Review. The Design Committee, in reviewing plans, specifications and other materials submitted to it, shall consider their compliance with any applicable Design Requirements; the suitability of the proposed building or other improvement for the area in which it will be located; the quality of the materials to be used in construction; and the effect of the proposed building or other improvement on Moani Heights at The Uplands, and on the Other Uplands Properties. Notwithstanding anything to the contrary contained in this Article VIII, the Design Committce may approve plans, specifications and other materials submitted to it for buildings or improvements which are not in strict compliance with the applicable Design Requirements if any such building or improvement is suitable to the area in which it will be located. 8.9 Prosecution and Completion of Work After Approval. After approval by the Design Committee of any plans, specifications or other materials, the construction, alteration or other work described in the approved plans, specifications or other materials (the "Approved Plans") shall be performed as promptly and diligently as possible and in complete conformity with the Approved Plans. Failure to commence such construction, alteration or other work Watanabe, tog Qc Kawsshims Attorneys at Lw Page 23 i i, within eighteen (I S) months after the date of approval, or within such other time as the Design Committee shall specify, or the failure to complete the proposed work strictly in accordance with the Approved Plans within eighteen (18) months after the commencement of such work, shall ~ operate automatically to revoke the approval by the Design Committee and, upon demand by the Design Committee, the Lot upon which such conswction, alteration or other work was undertaken shall be restored by the Lot Owner as nearly as possible to its state existing prior to any such conswction, alteration or other work, and/or the improvements conswcted on the Lot F shall be reconswcted to comply with the Approved Plans; provided that if said Lot is not so restored or the improvements are not so reconswcted, the Declarant, the Design Committee or ' the Association may undertake such restoration or reconstruction and charge the cost thereof to the Owner of said Lot, which cost shall be enforceable as an Assessment in accordance with Article V hereof. The rights and remedies provided for in the preceding sentence are cumulative with all other rights and remedies available to the Association and the Design Committee under this Declaration and at law or in equity. The Design Committee and its duly appointed agents may enter upon any Lot at any reasonable time or times to inspect the progress or status of any such conswction, alteration or other work. The Design Committee may Record a notice to show ~ that any such work has not been approved or that any approval given has been automatically i, revoked. 8.10 Other Preconditions to conswction. in order to help ensure that any improvements are constructed in a timely fashion in compliance with all Design Committee ~ requirements and approvals, each Owner shat) also submit to the Design Committee, prior to the commencement of any conswction on any Lot, copies of (a) the conswction contract(s) for all work to be performed on the Lot, (b) performance and payment bonds covering the total cost of conswction, from a corporate surety authorized to do surety business in the State of Hawaii or having a net worth in excess of S 10,000,000, and (c) such other documents and information as r' may be reasonably required by the Design Committee. 8.11 Design Requirements Promuleated by Declarant. The "Design and Construction Requirements for Homes -The Uplands at Mauna Ices" dated August 1Q, 1999, are hereby adopted as the Design Requirements which govern and serve as the standard for the conswction of all buildings and improvements to be conswcted or maintained within Moani Heights at The Uplands. Such Design Requirements are hereby incorporated herein by reference and made a t part hereof, subject to any amendments or repeal thereof as may be made by the Design Committee, under the authority granted in Section 8.12 hereof. The Declarant may, at the timc of annexation of any land to Moani Heights at The Uplands, include in the Annexing Declaration, ~ Design Requirements applicable to the land so annexed. The Design Requirements included in any such Annexing Declaration shall govern and serve as the standard for the conswction of all buildings and improvetrtents on such land, subject to any amendment or repeal thereof as may be made by the Design Committee under the authority granted in Section 8.12 hettof. II 8.12 De~~mt Requirements Adopted by Desittrr Committee. The Design Committee may from time to time, with the approval of Declarant, amend the Design Requirements for Moani Heights at The Uplands and/or adopt additional Design Requirements. A copy of all such Design Requirements as they may from time to timc be adopted, amended or repealed, certified Watanabe. IttQ de ICawashima by a member of [he Design Committee, shall be available at all times at the office of the Association for the inspection of any Owner, or Architect or agent of an Owner. 8.13 Reconstroction of Improvements. The reconstruction after deswction of any improvement within Moani Heights at The Uplands which is accomplished in substantial compliance with the approved plans and specifications pursuant to which such improvement was originally constructed, shall be approved by the Design Committee upon compliance by the Owner with all design review procedures set forth in the Design Requirements. 8.14 Liability of Design Committee Members. Provided that Design Committer P members act in good faith and with due diligence, neither the Design Committer nor any member thereof shall be liable to the Association, any Owner or any other Person for any damage, loss or prejudice suffered or claimed on account of: v (a) the approval or disapproval of any plans, specifications and other materials, whether or not defective; or ' (b) the conswction or performance of any work, whether or not pursuant to approved plans, specifications and other materials; or (c) .the development or manner of development of any land within Moani . Heights at The Uplands; or (d) the execution and Recordation of a form of approval pursuant to Section 8.7, or disapproval pursuant to Section 8.9, whether or not the facts stated therein are correct or (e) the performance of any other function pursuant to the provisions of this Declaration. 8.15 Professional Advice. The Design Committee may employ the services of architects (including landscape architects), engineers or other consultants to render professional advice, and may pay a reasonable compensation for such services which compensation may be - charged to amOwncr who has submitted plans, specifications or other materials requiring review by any such architect, engineer or other consultant provided that such compensation may only be charged to such Owner if such Owner was provided advance notice that such compensation would be charged. 8.16 Design Review Fees. The Design Committee shall have the right to charge and set the amount of reasonable fees for its review of any plans, specifications and other materials ' required hereunder, which shall be charged to the Owner making such submission. Such fees may include a standard fee for normal design review processing and additional fees for Design Committce members' dme, administrative expenses, fees payable to architects, engincers, or other consultants as provided in Section 8.15 hereof, and other costs and expenses including reasonable attorneys' fees incurred by the Design Committee in connection with its review. waunane. Ing & Kawuhimr Attarnevs at Lw Page 25 i r Ir ARTICLE IX: INSURANCE 9.1 Procertv Insurance. From and after the Assessment Date (as defined in Section 5.3 hereof), the Association shall purchase and at all times maintain insurance (the "Property lnsunnce") which covers Association Property including, without limitation, all Common Area and any and all buildings and improvements thereon, against loss or damage by fire and other hazards sufficient to provide for the repair or replacement thereof in the event of such loss or damage. The Property Insurance policy shall provide coverage against all losses covered by an ISO Commercial Property "Special" Causes of Loss Form or its equivalent and (a) shall provide r, for coverage in an amount equal to 10096 of the full replacement value at the time of loss with an agreed value endorsement; (b) shall comply with all requirements set forth in Section 9.2 hereof; (c) shall be obtained from a responsible insurance company authorized to do business in the State of Hawaii; and (d) shall provide for deductibles in such amount as may be deemed appropriate by the Board. 9.2 Reouirements of Property Insurance Policies. Every policy of Property Insurance required pursuant to Section 9.1 hereof shall, to the extent obtainable at reasonable cost: (a) Provide that the liability of the insurer thereunder shall not be affected by, and that the insurer shall not claim any right of set off, counterclaim, apportionment, proration or contribution by reason of any other insurance obtained by or for any Owner, (b) Contain no provision relieving the insurer from liability for loss occurring while the hazard to Association Property is increased, whether or not such hazard is within the ]rnowledge or control of the Board; F (c) Provide that such policy may not be canceled or reduced by amount or r type of coverage, whcther or not requested by the Board, except by the insurer's giving at least sixty (60) days' prior written notice of such cancellation or modification to the Board, the Declarant, and each mortgagee covered by a standard mortgagee clause; (d) Contain a waiver by the insurer of any right of subrogation to any right of E the Board, the Association, the Managing Agent, the Declarant, or any other person under them. (e) Name the Declarant as an additional insured, to the extent that the Declarant has an insurable interest thereunder, (f) Contained a standard mortgagee clause which shall: (1) Provide that any reference to a mortgagee in such policy shall mean and include all holders of mortgages of Association Property, in their respective order and preference, who are named in such mortgagee clause; W~hnebe, log & Kawutuon P~~ 06 (2) Provide that such insurance as to the interest of any mortgagee shall not be invalidated by any act or neglect of the Board, the Association, the Managing Agent, the Declarant or any other person under any of them; (3) Provide that, without affecting any protection afforded by such mortgagee clause, any proceeds payable under such policy shall be payable to the Association; and (4) Provide that the insurer shall give a mortgagee written notice of the insured's cancellation of the policy at least sixty (60) days prior to the effective date of cancellation; (g) Be accompanied by the certificate of a licensed insurance broker or agent certifying that the policy complies with and satisfies all of the requirements set forth in Section 9.1 hereof and this Section 9.2. 9.3 Flood Insurance. if the Association Property or any part thereof is located in an identified flood hazard area as designated by the federal Department of Housing and Urban Development, and if the Board of Directors shall deem it prudent to do so, the Association may purchase and maintain flood insurance (the "Flood Insurance") issued under the National Flood Insurance Program. 9.4 Liability Insurance. From and afar the Assessment Date (as defined in Section 5.3 hereof), the Association shall also purchase and at all times maintain a policy of commercial general liability insurance (the `liability Insurance's written on an occurrence basis, to include coverage foi• bodily injury (including death), property damage, personal injury, advertising injury, premises and operations, independent contractors, blanket contractual liability and firs legal liability, and insuring the Association, its directors, officers, employees, members of the Design Committee, and the Managing Agent and its employees, and all Owners with respect to Association Property. The Liability Insurance policy (a) shall be obtained from a responsible insurance company authorized to do business in the State of Hawaii; Cb)-shall comply with all requirements set forth in Section 9.5 hereof, and (c) shall contain such reasonable limits as may be established by the Board, but not less than: (i) Bodily Injury and Property Damage Combined Single Limit of $2,000,000.00 per Occurrence, $4,000,000.00 General Aggregate, (ii) Personal and Advertising Injury Limit of $2,000,000.00 per Person/Organizadon subject to $4,000,000.00 General Aggregate, and (iii) Fire Legal Liability limit of $50,000.00 for any one fire. 9.5 Requirements of Liability Insurance Policies. Every policy of Liability Insurance required pursuant to Section 9.4 hereof shall, to the extent obtainable at reasonable cost: (a) Provide that the policy and the coverage provided thereunder may not be canceled or substantially modified by the insurer except by the insurer giving to the first named insured, and each mortgagee covered by a standard mortgagee clause, at least sixty 1 (60) days' prior written notice of such cancellation or modification; 1 Watanabe, log & IGwuhima Attomeya at Ltw Page 27 i (b) Contain a waiver by the insurer of any right of subrogation to any right of the Board, the Association, the members of the Design Committee, the Managing Agent, the Declarant, or any of the Owners against any of them; (c) Contain a "severability of interest" endorsement precluding the insurer from denying the claim of the Board, the Association, the members of the Design Committee, the Managing Agent, the Declarant or any Owner because of negligent acts of any of the others; (d) Name the Declarant as an additional insured, to the extent that the Declarant has an insurable interest thereunder; and (e) Be accompanied by the certificate of a licensed insurance broker or agent certifying that the policy complies with and satisfies all of the requirements set forth in Section 9.4 hereof and this Secdon 9.5. 9.6 Conies of Insurance Policies. The Association shall from time to time cause to be deposited with the Declarant and any mortgagee of record of any interest in Association Property requesting the same, at least fifteen (15) days prior to the effective date or renewal date thereof, current certificates of, and if required by such parry, true copies of, the policies of all Property Insurance and Liability Insurance required to be maintained by the Association, and all other insurance maintained by the Association. 9.7 Difference in Conditions or Al] Risk Insurance. If deemed appropriate by the Board, the Association may also purchase and maintain an ISO Difference in Conditions Policy or All Risk Policy (the "DIC Insurance"), insuring the Association Property or any portion thereof against earthquakes, floods or other perils, in such amounts, and with such deductibles as are deemed appropriate by the Board. { 9.8 he .The Board may also procure directors' and officers' liability f insurance ("Directors and Officers Insurance'? with such coverage and'iin such amount as t;hall be determined by the Board, and insurance against such additional risks as the Board may deem advisable for the protection of the Association, of a character normally carried with respect to properties of comparable character and use in the State of Hawaii. 9.9 Review of Policies. The Board will review not less frequently than annually the adequacy of its insurance program and shall report in writing its conclusions and actions taken on such review to the Members and to the Declarant and each mortgagee of record of any interest in Association Property which shall have requested a copy of such report. The Board shall increase the limits of all insurance from time to time so that the same are not less than such limits as are being carried generally for similar properties in the area. Copies of every policy of insurance procured by the Board of Directors shall be available for inspection by any Member (or p»rchaser holding a contract to purchase an interest in a Lot) at the office of the Managing Agent. g,lp ('nst and Exnensc of Insurance. The cost and expense of all insurance obtained by the Association, except insurance obtained at the request of and specifically benefitting any i w.u~.be. t„g ~ ww,sn~. AnRneK ~f rJW path 28 particular Member or group of Members, shall be an expense of the Association. Notwithstanding the above, any insurance obtained by the Association ai the request of or ' specially benefitting members of the Board, as such members, or members of the Design Committee, as such members, shall be deemed an expense of the Association. 9:11 Insurance by Members. Any insurance policy obtained by a Member shall be such that it will not diminish or adversely affect or invalidate any insurance or insurance recovery under policies carried by the Association and shall, to the extent reasonably practicable, contain a waiver of the right of subrogation by the insurer as t~any claim against the Association, the Board, the Declarant, and any of their respective offs ers, dircctors, employces and managing agents, and against other Members and their employees and Guests. 9.12 Receiot and Application of Insurance Proceeds. Except to the extent that sdme particular Person has a legal right to receive insurance proceeds directly, all insurance proceeds and recoveries shall be paid to and received by the Association. 9.13 Owner-Increased Premiums. In the event that, as a consequence of the hazardous use of any Lot, or of any Owner-installed improvements upon any Lot, the premiums of any policy of insurance purchased by the Association are incrcased, or a special policy is required, ' the cost of such increase or special policy shall be payable by the Owner of such Lot. 9.14 Waiver of Riehts. To the extent that any loss, damage, cost, expense or other liability is covered by insurance, the Association and each Owner hereby expressly waive, and shall have no claim or cause of action for such loss, damage, cost, expense or other liability against each other, or against any other Owner, the Managing Agent, Declarant or any other person claiming under any of them. 9.15 Workers' Compensation and Emolovers' Liability Insurance. If the Association has any employees, the Association shall, at its sole cost and expense, purchase and maintain J Workers' Compensation and Employers' liability Insurance. Any such Workers' Compensation and Employers' Liability insurance policy(ies) shall provide such covet`Age in such amounts as is decmed reasonable by the Board, but in no event less than that required by Hawaii law. ARTICLE X: DESTRUCTION, CONDEMNATION AND 1 RESTORATION OF MOANI HEIGHTS AT THE UPLANDS 1 10.1 Certain Definitions. The following teens shall have the following definitions: 10.1.1 Substantial and Partial Deswction. "Substantial Deswction" shall exist whenever damage or deswction to any Lot, improvement or facility which is part of the Common Area is valued at fifty percent (5096) or more of the total assessed value of such Lot, improvement, or facility; "Partial Deswction" shall mean any other lesser damage or deswc6on. Wauaabe, loa ~ Kawuhum Aaaoeys u Lw Prge 29 i 10.].2 Substantial and Partial Condemnation. "Substantial Condemnation" shall exist whenever an entire l.ot which is part of the Common Area is taken under eminent domain or by grant or conveyance in lieu of condemnation, or whenever a taking of a I portion of a Lot which is part of the Common Area, under eminent domain or by grant or conveyance in lieu of condemnation is valued at fifty percent (50%) or more of the total assessed value of such Lot and the improvements thereon. "Partial Condemnation" shall mean any other such taking by eminent domain or grant or conveyance in lieu of condemnation. I 10.1.3 Restoration. "Restoration", in the case of any damage or destruction, shall mean restoration of any Lot, improvement,or facility within the Common Area to a condition the same or substantially the same as the condition in which it existed-prior to I the damage or destruction, and in the case of condemnation, shall mean restoration of the remaining portion of the Lot to a state appropriate for a residential community. ' 10.1.4 Available Funds. "Available Funds" shall mean any proceeds of insurance or condemnation awards or payments in lieu of condemnation and any uncommitted income or funds of the Association including funds carried over from the previous fiscal year. Available Funds shall not include that portion of insurance proceeds legally required to be paid to any party other than the Association, including a mortgagee. I 10.2 determination by the Board. Upon the occurrence of any damage or destruction to the Common Area or any part thereof, or upon a complete or partial taking of the Common I Area under eminent domain or by grant or conveyance in lieu of condemnation, the Board shall make a determination as to whether such damage or taking was Substantial or Partial. I 10.3 Restoration of the Common Area. Restoration of the Common Area may be undertaken by the Association, at the discretion of the Board, without a vote of Owners in the event of Partial Dcswction or Partial Condemnation. Within sixty (60) days after the Board has determined that Substantial Deswction or Substantial Condemnation has oxurred, the Board shall send each Owner a written description of the Deswction or Condemnation and a ballot on which each Owner shall indicate whether or not Restoration is to be undertaken. Restoration shall be undertaken unless Owners holding at least seventy-five percent (7596) of the voting power of the Association vote against such Restoration. Tn the event the insurance proceeds or ` condemnation award actually received exceeds the cost of Restoration when such Restoration is undertaken pursuant to this Section 10.3, the excess shall be either used as determined by the Association, or used to reduce Assessments to be paid by Owners. 10.4 Action if Restoration of the Common Area is Disannroved. If Restoration is not ; undertaken in the event of Substantial Destruction or Substantial Condemnation, the Association shall remove all damaged or destroyed improvements from the Common Area and restore the Common Area to a safe condition. ]0.5 authority of Association to Restore. The Association, through the Board, as r attorney-in-fact for tech Owner, shall have full power and authority to restore the Common Area € whenever Restoration is undertaken as hereinabove provided. Such authority shall include the Wannabe, lab & 1Cawu6ima n_~ ~n right and power to enter into any contracts, deeds or other instruments which may be necessary or appropriate for Restoration. 10.6 Payment of ]nsurance Proceeds. Except to the extent that some particular Person has a legal right to receive insurance proceeds directly, all insurance proceeds and recoveries shall be paid to and received by the Association. 10.7 Supplementary Assessments for Restoration. Whenever Restoration is to be undertaken, the Association may levy a Supplementary Assessment payable over such period of time as the Association may determine, to cover the costs and expenses of restoration to the extent not covered by Available Funds. 10.8 Receipt and Application of Condemnation Funds. Except to the extent that some particular Person has a legal right to receive condemnation proceeds directly, all compensation, damages or other proceeds constituting awards for a complete or partial taking of the Common Area under eminent domain or by grant or conveyance in lieu of condemnation shall be payable - to the Association. The award shall be applied to costs and expenses of Restoration if undertaken, and to the extent not so applied, shall be used as determined by the Board. ARTICLE XI: EXPANSION OF MOANI HEIGHTS AT THE UPLANDS 11.1 Reservation of Rieht to Expand. Declarant reserves the right to expand by annexing to the real property included within Moani Heights at The Uplands, all or any portion of the Other Uplands Properties, plus buildings and improvements located thereon. Such expansion shall not require the consent of any Owners other than Declarant. 11 2 Limitation on Declarant's Ri¢ht to Expand. Declarant's right to annex such land shall expire with respect to any land not annexed on or before the twentieth (20th) anniversary of the date of Recording this Declaration; provided, however, that Declarant, at its sole option, may provide for an earlier expiration date of its right to annex such land, by Recordation of an Amending Declaration setting forth such earlier expiration date. 11.3 Annexinc Declarations. Declarant may effect any such expansion of Moani Heights at The Uplands by Recordation of an Annexing Declaration containing a legal description of the land annexed and setting forth such additional or different limitations, covenants, conditions and restrictions, and Design Requirements, if any, as are applicable to such . additional land. Such Annexing Declaration shall provide that the land so annexed shall, at all times, be owned, held, used and occupied subject to the provisions of this Declaration and shall designate the use classification of each Lot so annexed, as provided in Section 2.2 of this - Declaration. 11.4 Expansion of Definitions. In the event of such expansion, the definitions used in this Declaration automatically shall be expanded to encompass and refer to Moani Heights at The Uplands as so expanded. Thus, for example, "Moani Heights at The Uplands" shall rrrt:ar? the land described in Exhibit "A" hereto plus any additional land added by any Annexing VV~tanabe, Ittg Qc Kawashima Attorneys at Lw~ Page 31 i Declaration or Annexing Declarations, together with all buildings and improvements located thereon, and reference to this Declaration shall mean this Declaration as so modified. 11.5 Declaration Operative on New Land and Improvements. Any such additional land, buildings and improvements shall be subject to all of the terms and conditions of this Declaration and of such Annexing Declaration or Declarations upon Recordation of any such Annexing Declaration or Declarations; provided that in the event that any provision of such Annexing Declaration is inconsistent with any provision of this Declaration, the terms and conditions of this Declaration shall prevail. ARTICLE XII: MISCELLANEOUS 12.1 Release of Dedicated Lots. Declarant and Fee Owner shall have the right and power, without having to obtain the consent or approval of the Association, any Owner, or any other Person, to grant or dedicate any Lot or other property owned by Declarant or Fee Owner, and not subject to a purchase agreement or option in favor of another Perstm, to the County of Hawaii or the State of Hawaii, or to any other appropriate governmental agency, or to any public or private utility. Notwithstanding any other provision contained in this Declaration to the contrary, any such grant or dedication of any such Lot(s) may be made by Declarant or Fee Owner free and clear of, and no longer subject to, any of the terms, covenants, conditions or restrictions contained in this Declaration. Upon any such grant or dedication, the release and removal of this Declaration (and all of the terms, covenants, conditions and restrictions contained herein) as an encumbrance upon the Lot(s) or other property so granted or dedicated may, but need not necessarily, be made effective by Recordation in the Bureau of Conveyances of the State of Hawaii, of a certificate executed by Declarant certifying such grant or dedication of the Lot(s) or other property and noting the release and removal of the Declaration as an encumbrance upon said Lot(s) or other property pursuant to this Section 12.1. 12.2 Duration of Declaration. Each of the provisions contained in this Declaration shall run with the land and continue and shall, subject to the provisions of Section 12.12 below, remain in full force and effect perpetually or until (a) Members who Bold not less than seventy- five percent (7596) of the voting power of the Association affirmatively vote to terminate the Declaration; (b) the Declarant and any and all mortgagees having any security interest in Moani Heights at The Uplands including individual Lots therein have consented to such termination; and (c) an instrument setting forth such tem?ination executed by the duly suthoriud officers of the Association with the consent and joinder of the Declarant and said mortgagees, if any, has been Recorded in the Bureau of Conveyances of the State of Hawaii. 12.3 Amendment. Any provision contained in this Declaration may be amended or changed, and additional provisions may be added hereto by (a) the vote or consent of Members who hold not less than seventy-five percent (7596) of the voting power of the Association, and the recordation of a written instrument or instruments. specifying the amendment or change so approved, executed by the proper officers of the Association, except that Articles II, V, VIII, XI, and XII, Sections 3.2, 3.4, 4.2, 4.3, 4.7, 4.8, 4.13, 4.18, 4.19, 6.4, 6.5, 6.7, 6.8, 7.4, 7.5, 7.6, 7.7, i 7.8 and any other Section hereof benefitting or requiring any consent or approval of the Fee Owner or Declarant can only be amended with the consent, in writing, of Declarant or its W~tatube. Ing k ICaw~shime Attameys at law Page 32 successors or assigns; or (b) Declarant at any time prior to the first conveyance by Fee Owner of an interest in any Lot in Moani Heights at The Uplands to any person other than an Affiliate of Fee Owner. In addition to the above, Declarant shall have the right and power, without having to obtain the consent or approval of the Association, any Member, any Owner or any other Person, to amend this Declaration in order to release from the provisions of this Declaration, portions of the land encumbered hereby, or to encumber portions of other land not encumbered hereby, in the event of a Subdivision of portions of such land which changes the boundary line between land which is encumbered by this Declaration and other land (such as, for example, the Hapuna Golf Course) which is not encumbered by this Declaration. The release of such land from this Declaration (and from all of the terms, covenants, conditions and restrictions contained herein) as an encumbrance upon such land and/or the encumbrance of such land by this Declaration, may, but need not necessarily, be made effective by Recordation in the Bureau of Conveyances of the State of Hawaii of a certificate executed by Declarant certifying such Subdivision and noting the ' release and removal of the Declaration as an encumbrance upon such land, or the encumbrance of such land by this Declaration, pursuant to this Section 12.3. No amendment of this Declaration shall affect any mortgagee whose mortgage was Recorded prior to the Recordation of such ' amendment unless such mortgagee has consented to the same in writing. 12.4 Effect of Provisions of Declaration. Each provision of this Declaration, and any agreement, promise, covenant and undertaking to comply with each provision of this Declaration, and any necessary exception or reservation or grant of title, estate, right or interest to effectuate any provision of this Declaration: (a) shall be deemed incorporated in each deed or other inswment by which any right, title or interest in Moani Heights at The Uplands, or any Lot therein, is granted, devised or conveyed, whether or not set forth or referred to in such deed or . other inswment; (b) shall, by virtue of acceptance of any right, title or interest in Moani Heights at The Uplands or in any Lot therein by an Owner, be deemed accepted, ratified, adopted and declared as a personal covenant of such Owner, and, as a personal covenant, shall be binding on _ such Owner and such Owner's heirs, personal representatives, successors, successors in trust and assigns and shall be deemed a personal covenant to, with and for the benefit of the Association and the Declarant but not to, with or for the benefit of any other Owner, (c) shall be deemed a - real covenant by Declarant for itself, its successors and assigns, and also'an equitable servitude, running, in cach case, as a burden with and upon the title to Moani Heights at The Uplands and each Lot therein and, as a real covenant and also as an equitable servitude, shall be deerned a - covenant and servitude for the benefit of Moani Heights at The Uplands and each Lot therein; and (d) shall be deemed a covenant, obligation and restriction in favor of the Declarant, burdening and encumbering the title of Moani Heights at The Uplands and each Lot therein. If at any time during the tetra of this Declaration, any Owner purchases or otherwise acquirrs any interest in such Owner's Lot which has not been submitted to the provisions of this Declaration, . said interest so purchased or otherwise acquired shall thereafter be owned, held, used and occupied subject to the provisions of this Declaration and to the covenants, conditions and restrictions herein contained, and said Owner will continue to have the tights and to be subject to the obligations of an Owner as set forth herein. 12.5 Enforcement and Remedies. In addition to any other remedies herein provided, each provision of this Declaration with respect to an Owner or the Lot of an Owner shall be enforceable by the Association, by Declarant, or by any Owner by a proceeding for a prohibitive Watanabe, [ng 6c ISawultitm Anomeya at Lw Page 33 or mandatory injunction or by a suit or action to recover damages. If any court proceedings are instituted in connection with the right of enforcement and remedies provided in this Declaration, the prevailing party shall be entitled to recover from the losing party its costs and expenses in connection therewith, including attorneys' fees. Notwithstanding anything to the contrary contained herein, Declarant shall have no obligation to enforce any of the provisions of this Declaration. The failure to enforce any provisions hereof shall not constitute a waiver of any right to enforce such provision or any other provision hereof. 12.6 Protection of Encumbrancer. No violation or breach of, or failure to comply with, any provision of this Declaration and no action to enforce any such provision shall affect;•defeat, render invalid or impair the lien of any mortgage or other lien on any Lot taken in good faith and for value, and Recorded prior to the time of Recordation of an instrument describing the Lot and listing the name or names of the Owner or Owners of the Lot and giving Notice of such violation, breach or failure to comply; nor shall such violation, breach, failure to comply or action to enforce affect, defeat, render invalid or impair the title or interest of the holder of any such mortgage or other lien, or the title or interest acquired by any purchaser u~wn foreclosure of any such mortgage or other lien, or result in any liability, personal or otherwise, of any such holder or purchaser. Upon foreclosure of any such mortgage or other lien, no such holder who thereby assumes title to a Lot shall be required to correct past violations hereof with respect to said Lot so long as said Lot is neither occupied nor used for any purpose by such holder but is merely held for prompt resale, and provided that all money obligations accruing pursuant to this Declaration subsequent to such foreclosure shall be paid by such holder. Any such purchaser on foreclosure shall, however, take subject to ell provisions of this Declaration. 12.7 Construction. The provisions of this Declaration shall be liberally construed to promote and effectuate the fundamental concepts of Moani Hcights at The Uplands as set forth in I this Declaration, and no provision hereof shall be construed to excuse any Owner or Person from observing any law or regulation of any governmental body having jurisdiction over Moani Heights at The Uplands. I 12.8 Assienment of Powers. Any and all of the rights and powers vested in Declarant pursuant to this Declaration may be delegated, transferned, assigned, conveyed or released by Declarant to an entity which succeeds to the interest of Declarant in the Mauna Kea Resort, or to the Association, and such assignee, including the Association, shall accept the same effective I upon the Recordation by Declarant of a notice of such delegation, transfer, assignment, conveyance or release. 12.9 Non-Avoidance. No Owner through non-use of the Common Area or by abandonment of such Owner's Lot may avoid the burdens or obligations imposed on such Owner by this Declaration. I 12.10 Limited Liability. Neither Declarant, the Fee Owner, the Association, the Board, the Managing Agent, nor any officer or employee of any of the same, shall be liable to any party I for any action or for any failtrre to act with respect to any matter if the action taken or failure to act was in good faith and without malice. I w,ra.n~, t„a ~ x,WUnm. 12.1 I Successors and Assi¢ns. This Declaration shall be binding upon and shall inure to the benefit of the Declarant, the Association, and each Owner, and the hairs, personal representatives, successors, successors in wst and assigns of each. 12.12 Severabilitv and the Rule Aeainst Perpetuities. Invalidity or unenforceability of any provision of this Declaration in whole or in part shall not affect the validity or enforceability of any other provision or any valid.and enforceable pari of a provision of this Declaration. If any provision of this Declaration would violate the Rule Against Perpetuities or any other limitation on the duration of the provisions contained herein imposed by law, then such provisions shall be deemed to remain in effect only for the maximum permissible period permitted by law or unti121 years after the death of the last survivor of the now living descendants of Ethel Kennedy, the widow of the late Robert F. Kennedy. 12.13 Cautions. The captions and headings in this inswment are for convenience only and shall not be considered in conswing any provision of this Declaration. 12.14 No Waiver. Failure to enforce any provisions of this Declaration shall not operate as a waiver of any such provision or of any other provision of this Declaration. 12.15 Further Assurances. The Association and each Owner hereby agree to do such further acts and execute and deliver such further inswments as may reasonably be required to effectuate the intent of this Declaration. 12.16 Notices. Any notice, information or material required to be given hereunder shall be deemed furnished or delivered to a party at the time a copy thereof is personally delivered or deposited in the mail, postage prepaid, addressed to the party, and in any event, when such party actually receives such notice, information or material. Any notice, information or material delivered or famished to the name and address of an Owner as last shown on the books of the Association shall be deemed to be the proper delivery or furnishing of such notice, information or material. If notice of a meeting is given as provided for above, nonreceipt of actual notice by any Owner shall in no way invalidate the meeting or any ' proceedings taken or any business done at the meeting. Any Owner may waive notice of any meeting either prior to or at or after the meeting with the same effect as though notice of the . meeting had been given to such Owner. The presence of any Owner at a meeting shall be the equivalent of a waiver by such Owner of notice of the meeting. Notices, information or material required to be given hereunder to Declarant shall be addressed to the Declarant at 62-100 Kauna'oa Drive, Kamuela, Hawaii 96743-9706, or such other address provided to the Association by Declarant. Notices, information or material required to be given hereunder to the Association, the Board or the Design Committee shall be addressed to such entity in care of the Association at the oKce of the Association. 12.17 Word Usaee. The use of the masculine gender herein shall be deemed to include the feminine and neuter genders and the use of the singular shall be deemed to include the plural, whenever the text so requires. Waunabe, Ing R ICawashima At[aneys at Lw Page 35 12.18 Scope of Declaration. No land except that described in Exhibit "A" attached ' hereto and made a part hereof, and that annexed hereto as provided in Article XI shall be deemed subject to this Declaration, whether or not any such land is shown on any subdivision map filed by Declarant or is described or referred to herein or in any document executed and/or Recorded ' by Declarant. Without limiting the generality of the foregoing, the Hapuna Golf Course and clubhouse and the lands upon which they are located, and the Other Uplands Properties are not and shall not be deemed subject to the provisions hereof (unless annexed hereto in accordance with the provisions hereof). The provisions hereof inure to the benefit of, but do not in anyway encumber any of the Other Uplands Properties (unless annexed hereto in accordance with the provisions hereof). No designation, or any map Recorded or filed by Declarant, of any parcel, lot or other area as a private area, common area, road, street, school or park or as any other type of parcel, lot or area, shall be deemed to be a dedication or commitment or representation that such ' parrcel, lot or area is or will be used or restricted to such use, except with respect to parcels, lots or areas described in Exhibit "A" attached hereto and made a part hereof, or annexed to Moani Heights at The Uplands as herein provided and so designated by Declarant in a Recorded. document. No Owner, no public body or agency, and no other Person shall acquire any interest or rights in any land by reason of such designation or Recordation or filing except as aforesaid. Nothing herein or in any amendment hereto or on any maps shall be deemed to be a representation, warranty or commitment that Declarant will commit to Moani Heights at The Uplands, or subject to this Declaration, any land it may now own or may hereafter acquire other than that described in said Exhibit "A". 12.19 Riehts of Declarant. Each person acquiring any right, title or interest in Moani Heights at The Uplands, by the acceptance of any deed, mortgage, lease, rental agreement or other document conveying any right, title or interest in any part of Moani Heights at The Uplands, acknowledges and agrees that the Declarant, the Fee Owner, and their Affiliates, as developer and/or owner of the Other Uplands Properties, have a continuing interest in maintaining the attractiveness, economic value and desirability of Moani Heights at The Uplands, and that all previsions of this Declaration requiring the consent or approval of the Declarant are reasonable restrictions in light of such continuing interest. i IN W1T'NF.SS WHEREOF, Declarant has executed this Declaration as of the date set forth above. MAUN OPERTIES, INC. sy William F. 'elcke t Its President Yoicht Asari Its Vice President/Treasurer Declarant Wuanabe, ing 6c Kawashima Attorneys at Lw PaQe 36 CONSENT AND JOINDER OF THE FEE OWNER The Fee Owner does hereby consent to the provisions contained herein and joins with the Declarant in the execution of this Declaration as of the date set forth above, and agrees that the real property described in Exhibit "A" attached hereto and made a part hereof, shall at all times be owned, held, used and occupied subject to the provisions of this Declaration, and to the covenants, conditions and restrictions herein contained. SOUTH KOHALA RESORT CORP. is ~t r~a..4~'r' By L/~rE^r~s~ ti.~~r~1~ _ ~ _ ~ _ STATE OF HAWAII ) SS: CITY AND COUNTY OF HONOLULU ) On this iow+ day of , 1999, before me appeared W1LL.IAM F. MIF.I.CI{E and YOICHI AS , to be personally known, who, being by me duly sworn, did say that they are the President and Vice President/Treasurer, respectively, of MAUNA KEA PROPERTIES, INC., a Hawaii corporation; that said inswment was signed in behalf of said corporation by authority of it Board of Directors; a>1d that said officers acknowledged said instrument to be the free act and deed of said corporation. uN mH~ 4ijp~~~~~ ~~p,,,.....,Ggs, Notary blic, State of Hawaii r3~;:~~TAQy :y~'_ '~'mdy1~.!-Tigaahi My commission expires: ~F-i t-~ooo 9*= y* pUBL~~' :•c? ~~'t P~, / T F O F 11 ~ PAP wannalx, Ing & Kawashima . Page 38 STATE OF HAWAII ) SS: CITY COUNTY OF HONOLULU ) On this ~o±r+ day of ~.®••b+ , 1999, before me appeared ~ ~,~ra~ ~+~yv and ~Kt i KuroKAU~a to be personally known, who, being by me duly sworn, did say that they are the P~.~~dev,t and vtce Prtstdrr,+Isecrctsivy respectively, of SOITTH KOHALA RESORT CORP.,ja Hawaii corporation; that said inswment was signed and sealed in behalf of said corporation by authority of it Board,of Directors; and that said officers acknowledged said instrument to be the free act and deed of said corporation. ~~gagnuunuu~~~ ~~~~Q•Oy. N. N/Q,''%,,~~ Notary blic, Sta a of Hawaii '3tor OtARy;y~% weodyN.Higarli ~ _ My commission expires: ~-t ~-soot/ = q ~~~'pq '3~rr` 4 TE OF ~ ~iniiamimurr:u~ R 1 EXHIBIT "A" All of those certain parcels of land situate at Outi, Waimea, South Kohala, Island, County and State of Hawaii, more particularly described as lots 1 - 21 of "The Uplands at Mauna Kea Parse] B Subdivision", as shown on File Plan No. 2249, filed in the Bureau of Conveyances of the State of Hawaii. - . _ ~ o_....e6inu EXHIBIT `B" Classificatio Points Lot (F.r. 224!) I Single Family Residential I 2 1 3 I 4 1 5 I 6 I 7 1 8 I 9 ~ 1 10 I 11 I 12 1 13 1 14 I 15 ~ I 16 I 17 ~ I 18 Open Space 0 19 Service (Roadway) 0 20 ~ 0 21 ~ 0 Watanabe, L!B d; Kawuhime Paced I EXHIBIT "C" All of those certain parcels of land situate at Ouli, Waimea, District of South Kohala, Island and County of Hawaii, State of Hawaii, described as follows: I. The following lots, as shown on File Plan 2234, recorded in the Bureau of Conveyances of the State of Hawaii: Lot 1 Lot 2 Lot 3 Lot 4 Lot 5 Lot 7 Lot 8 Lot 9 Lot 10 Subject to all encumbrances of record. II. The following lots, as shown on File Plan 2235, recorded in the Bureau of Conveyances of the State of Hawaii: f Lot 3 Lot 4 Lot 5 Subject to all encumbrances of record. III. The following roadway lots, as shown on File Plan 2094; recorded in the Bureau of Conveyances of the Stau of Hawaii: portion of Road Lot A constituting The Uplands Entry Road f Road Lot B Road Lot C Road Lot D Road Lot E Subject to all encumbrances of record. ' w.wube, Ing Qc x,w.stwo. t~aye az Moani Heights Cn._,ge of Zone Application E~I~~T . ~„T i 'y tl M r 1 ~ d •i ~ L J b' + r ~ i ~f f m¢ ~ `r+i ,k~. E Y +i . l o + o ` i „ + u ~ ~ N 6 r = ~ ~ ~ ~ ~ z ~ z o ~ %t. !r'4 + i r' 1 ~ r+~ ©~g ~ Y ~ r~ ~ ~ ~ ~ ~~~y } W ! 4 ~ ~1 ~d s Y $ ~ G 3 $ k ~j Af C D E aHemaW°ma ~ ~ a_~ ~ O lH` ~ Hene l/ ~ (nhsrrid) _ ofO \~i MaJ~ o 1 ~a\ '~al~.p I T a PI O c~, ~ _ y9~~ ~~1~^6 ~ '~'~d ~dY i~v V~ O°~~ 2 2 a~P Kawaihae Harbor 9fo ~ O/A` I~ N~ Ry Pored C'yn anPored / F m '"Po,~, ~ a _ ~ KAWAIHAE 3 ~yE~/ \ Tong 7 Aonna LPu'uMaAnlo Heiau~ sae Nar'1 Hvr. ,Fe 9rc G a ~ Power _ ~ notlon Lawdhee g p Kllere ,a ry9 g rar ~a/~ SRnci - _ a 1 MILE Bence" Park j ~ a, - - - KawaiAae Rd ~ 4 / 4 7) }7 .7~ O - Keawehala i?t - Wai'ula'ula Pt ~ ~ ' - _ _ _ - ~ Foondabon p~ 5 rp 5 xnerewarer K 'ua P • etrPwd 1 Waiulaula Rockefeller y/ F~, ~eha ~ A O Nona q~ o, ~ ~'-~Lanikeha o~~ ~ G WY ,2.° d Ka'shaPt ~,~j\sQ\ ~ ~tl y ~ 6 Mahiole PI Mown Km ~ p. ` z Kauaa'oa Renee Hord 6 ~ Y/!oa ~ Fevweya ~ ~ Y Beach ~ Mauna Kea Seeb ~I~JU/U Hapuw BeacA TAe UP4a4 6 ` Beoch cay N. b ~ Pdnce Nore! u Meow 6ae x Course G~, ~ < ~ Hq ~ `n H~ X11 ]C 'F ~ D Tee eeueon P. p' Course rfs Ll dsm m_ m Ik. h M ne Ln pn, ~ O Mww Lw Le)h°IU ~ O A 1 B ~ C ~ D E Moani Heights C~.....ge of Zone Application EXHIBIT C Change of Zone. Exhibit 6ryrya o° ~ 0 p'~ 4 ~ ti pm~ ] ~ N n ~ ~ v0. ~ ~ ~ eb ~ ~ ` o ggz•lo~ - I~'~ o \ / ~ \ ` 1 \ m ~ c n \ i~ ~ r~~ I ~ ~ ! Ir t{ I 9 v-~ i \ ice/ - i~ \ _Jr ~ c ~ P I Q ` ~ ~ m I O \ .'st/ / it N i \ ~ I ~ / r ~ I- \ ~ I H=J iP ~ i ~ o~\ m i W W ry0~ 00 I Q s $I ~OO~~aJ ~m \ r' , NF~J LL ~ 1 I ~ ~ a~ I d~ ~dP ~ I I ~P i I I i r ~ r~ / / ~ m ~ a g $ =W ~g ~ 4 Moani Heights Ct,....ge of Zone Application E~~II.B~T D Site Photogx~~ph , Moani Heigh., ~hange of Zone Application SITE PHOTOGRAPIiS a~, r~" V f a e Moani Heights Entry Amaui Road looking east at entry. Moani Heights change of Zone Application SITE PHOTOGRAPHS tt ~ `r }ti .i'i~ Y q }F ~n ~ e.. n*A A • r Interior Roadway „4 -)c 2 (u `t :b-: i d,:. SG s~:'._. 5 S d r d p ,..ii ~.5 Y~ ray. 4~n iR a 3 1: Interior Roadway RMoaniHeightsRf3Z.doc - 9/13/05 COUNTY OF HAWAH PLANNING DEPARTMENT RECOMMENDATION MOANI HEIGHTS COMMUNITY ASSOCIATION at the UPLANDS AT MAUNA KEA CHANGE OF ZONE APPLICATION (REZ OS-014) Upon careful review of the request, the Planning Director is recommending that a favorable recommendation of the request for a Change of Zone be forwarded to the County Council. Since this recommendation is made without the benefit of public testimony, the Director reserves the right to modify andJor alter this position based upon additional information presented at the public hearing. This favorable recommendation is based on the following findings: The applicant requests a Change of Zone from Multiple-Family Residential (RM- 15) to Single-Family Residential (RS-15). The total acreage of the 191ots is approximately 13.028 acres and includes seventeen (17) fully-developed lots, one (1) open space lot (pazcel 18), and one (1) roadway lot (pazcel 19). The objective of the rezoning is to more accurately reflect the actual use of the lots within the subdivision. All the existing structures in the subdivision aze single-family dwellings, and the CC&R's recorded on September 9, 1999 as Document Nos. 99-145646 and 99-145647 states that all lots (other than open space, service or roadway lots) "shall be used only for single family residential purposes and accessory uses. No single family residential lot shall be improved except with a residence stnacture or complex designed to accommodate no more than one single family and its servants and occasional guests, plus such other improvements and structures as are necessazy or customarily incident to a single family structure." The Uplands at Mauna Kea Subdivision was approved under Subdivision No. 7163 on August 19, 1999. "fhe project area is located approximately 1,000 feet mauka of the Queen Kaahumanu Highway. Of the 19 properties which are the subject of this application, single-family dwellings have been constructed on 17 lots (parcels 1-17). Parcel 18 is reserved for open space, and Parcel 19 is a roadway lots. Lots in the subdivision (exclusive of roadway lots and the open reserve lot) range in size from 17,497 to 44,985 square feet. In order to consider an area for any type of zoning designation, the applicable goals, policies and standards ofthe General Plan must be adequately addressed. It is only through such a comprehensive policy analysis approach that evaluations and decisions can be made to better time and stage developments to achieve growth determined by the General Plan and related planning documents. The implications of these evaluations and decisions must be also considered as they may have :m impact on similar areas in the County. The proposed change of zone request from the Multiple-Family Residential (RM-15) to a Single-Family Residential (RS-15) caned district will conform to, among others, the goals, policies and standards of Land Use, Economic and Housing Elements of the General Plan. The change of zone would complement the existing single family residential uses in the area. The project area abuts the Hapuna Golf Course, which is zoned Open. The properties are surrounded 6y single-family and multiple- family residences. This request would complement a policy of the Land Use element of the General Plan which states, "allocate appropriate requested zoning in accordance with the existing or projected needs of neighborhood, community, region and County." Although the subdivision is zoned Multiple-Family Residential, only single-family dwellings are permitted in the subdivision. Single-family dwellings have been constructed on l7 lots. The requested Single-Family Residential zoning designation would be more appropriate for the area. The Land Use Pattern Allocation Guide (LUPAG) Map component of the General Plan is a representation of the document's goals and policies to guide the coordinated growth and development of the County. It reflects a graphic depiction of the physical relationship among the various land uses. The properties are designated Medium Density Urban, which includes village and neighborhood commercial and single family and multiple family residential and related functions (multiple family residenfial - up to 35 units per acre). The properties are located within an area adequately served with essential -2- services and facilities. Access to the properties is from Amaui Road, a privately owned and maintained roadway with a 60-foot wide right-ot=way with 25-foot asphalt paving and grass swales. County water is available to the properties. The subdivision is serviced by a private sewer system meeting the standards and requirements of the Department of Health. Electric and telephone services aze available to the project area. The closest police substation and fire station is located five miles south of the site at Mauna Lani Resort. Medical services are available at the North Hawaii Community Hospital in Waimea or the Kona Community Hospital in Kealakekua The request is not contrary to Chapter 205A, Hawaii Revised Statutes, relating to Coastal Zone Management Area. The properties aze not located within the Special Management Area and aze not oceanfront properties. Thus, no shoreline processes will be affected by the proposed action. According to the applicant, no valued cultural, historical or natural resources exist on the property and there is no evidence of any traditional and customary Native Hawaiian rights being practiced on the site; thus, the proposed action will not affect traditional Hawaiian rights. Thus, it is not anticipated that the proposed request will have any adverse impact on cultural or historical resources in the azea. The Flood Insurance Rate Maps (FIRM) indicate that the area is located in Zone "X," areas outside the 500-yeaz flood plain. There are no significant drainage ways that adversely affects the project site. The entire site has been grubbed and graded as part of the Uplands at Mauna Kea Subdivision. No formal azchaeological study was submitted. According to the applicant, several archaeological studies were conducted of the project site. As a result of all previous permits and approvals, mitigation measures have been implemented. The proposed action will not result in any additional development of this fully developed and landscaped subdivision. Given the subdivision's urban setting, the presence of any known rare, threatened, or endangered species or endangered floral and fauna species is remote. "fhe subdivision is not used fbr access to the mountains or shoreline and no access to these areas will be impacted by the proposed action. In view of the recent Hawaii State Supreme Court's "PASH" and "Ka Pa'akai O Ka Aina"decisions, the issue relative to native Hawaiian gathering and fishing rights -3- must be addressed in terms of the cultural, historical, and natural resources and the associated traditional and customary practices of the site: • Investigation of valued resources: No formal azchaeological, cultural or botanical survey was included with the request. • The valued cultural, historical, and natural resources found in the rezonin¢ azea: The project area is fully developed with single family residences. The applicant has stated that as a result of previous permits and approvals, mitigation measures have been implemented. The proposed action will not result in any additional development of this fully developed and landscaped subdivision. Given the subdivision's urban setting, the presence of any known rare, threatened, or endangered species or endangered floral and fauna species is remote. • Possible adverse effect or impairment of valued resources: Native plants may be destroyed by constrnction or ground alteration. According to the applicant, there are no endangered species of flora on the properties. • Feasible actions to protect native Hawaiian ri ts: According to the applicant, no gathering is taking place on the site. Thus, to the extent to which traditional and customary native Hawaiian rights are exercised, the proposed action will not affect traditional Hawaiian rights; therefore, no action is necessary to protect these rights. Based on the above findings, this request to reclassify the properties from a Multiple-Family Residential (RM-15) to aSingle-Family Residential (RS-IS) zoned district would result in an appropriate land use pattern and further benefit the general public. The accompanying drag bill to amend Section 25-8-12 (Kawaihae-Puako Zone Map), Article 8, Chapter 25 (Zoning Code) is provided for your favorable consideration. Please note the proposed conditions of approval attached to the draft bill. -a- CMoaniHeightsREZ.doc-9/ 13/05 MOANI HEIGHTS COMMUNITY ASSOCIATION at the UPLANDS AT MAUNA KEA CHANGE OF ZONE APPLICATION (REZ 05-014) CONDITIONS OF APPROVAL A. The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials be encountered, work in the immediate azea shall cease and the Department of Land and Natural Resources - State Historic Preservation Division (DLNR-SHPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-SHPD when it finds that sufficient mitigation measures have been taken. C. The applicant shall comply with all applicable County, State and Federal laws, Hiles, regulations and requirements. ~,i~I11VT~I' ~F ~ iAAI`I S`1"~T~ ~F HAW~I`I BILL NO. (PLANNING DEPT.) AN ORDINANCE AMENDING SECTION 25-8-12 (KAWA[HAE-PUAKO ZONF, MAP), Att'1'[CLE n, (:RAFTER 25 ('CONING CODE) OF THE IfAWAI`I COUNTY CODE, B`~' CHANGING THE DISTRICT CLASSIFTCATION FROM MULTIPLE-FAMILY RESIDENTIAL (RM-15) TO SINGLE FAMILY RESIDENTIAL (RS-15) AT OULI, SOUTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 6-2-16:1-19. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWA]`I: SECTION 1. Section 2~-K-] 2, Article 8, Chapter 25 (7.oning Code) of the Hawaii County Code, is amended to change the district classification of property described hereinafter as follows: The district classification of the following area situated at Ouli, South Kohala, Hawaii, shall he Single-Family Residential (RS-I5): Beginning at a pipc at the southwest corner of this parcel of land, on the northerly side of Road Lot C (`Amaui Drive) of South Kohala Resort (File Plan 2094), the coordinates oCsaid point of beginning referred to Government Survey Triangulation Station "PUAKO" being 8,544.70 feet North and 6,109.26 feet East, thence running by azimuths measured clockwise from True South: 1. 170° 26' 144.00 feet along Lot A of The Uplands at Mauna Kea, Part B, Subd~ibision No. 2 (File Plan 2247); 2. 245° 55' 40.00 feet along Lot A of The Uplands at Mauna Kea, Par[ B, Subdivision No. 2 (File Plan 2247); 3. 238° Ol' 40.00 feet along Lot A of The Uplands at Mauna Kea, Part B, Subdivision No. 2 (File Plan 2247); -1- (A) Frotectio~~ of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. JEV+..v"i"Y'ACiIED OLi~'3?Y'Y'?O~WS SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. INTRODUCED BY': COUNCIL MEMBER, COUNTY OF HAWAII INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: -4- OPEN OPEN RM-6 - - - - - - - RS-15 h ~ OPEN RM-15i OPEN OPEN ~ RM-# ` ~ J. Ra RM-6 OPEN OPEN RM-6 OPEN - - - ~ OPEN ~ , RM-15 `MULTIPLE-FAMILY RESIDENTIAL (RM~15) Kauuao T_p SINGLE-FAMILY RESIDENTIAL (RS-~ cv-to ~ ~ 13.028 ACRES I rt~p ~ fJ c ~ OPEN = f ~ RM-15 # y O maU~ ~ t, 1 h I p O ~ OPEN .v ~ ~ OPEN c Y i ~~tr'" f~'tiv ~ i OPEN r x 0 y ~ maw r ML-f0 - ML-f0 OPEN' 8,544.70 N - ~ . 6,10918E ~ Asa "PUAKO""~ N W O ~ ~-10 -/~//~w~` 1: OPEN ,gym ol° W V m ti A-Sa OPEN A 5a i 594 295 0 590 1181) 1770 2360 2950 Feet AMENDMENT TO THE ZONING CODE AMENDING SECTION 25-8-12 (KAWAIHAE-PUAKO ZONE MAP) ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CLASSIFICATION FROM MULTIPLE-FAMILY RESIDENTIAL (RM-15) TO SINGLE-FAMILY RESIDENTIAL (RS-15) AT OULI, SOUTH KOHALA, HAWAII PREPARED BY: PLANNING DEPARTMENT COUNTY OF HAWAII MK: 6-2-016:001-019 Date: Au ust 4, 200 EXHIBIT (Moani Heights at the Uplands at Mauna Kea Community Associations 174)